In re APPLICATION FOR A TAX DEED (Opal Castleman and Stephen R. Castleman, Petitioners-Appellees, v. Jerry Jean; Stewart Producers, Inc.; Washington County Clerk; Evelyn M. Fair; Unknown Owners or Parties Interested; and Nonrecord Claimants, Respondents (Jerry Jean, Respondent-Appellant; SI Resources, LLC, Appellant; William Groome, Intervenor-Appellee)).
NO. 5-17-0354
APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
September 18, 2018
2018 IL App (5th) 170354
Honorable Daniel J. Emge, Judge, presiding.
Appeal from the Circuit Court of Washington County. No. 14-TX-11
NOTICE Decision filed 09/18/18. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
JUSTICE MOORE delivered the judgment of the court, with opinion. Justices Goldenhersh and Overstreet concurred in
OPINION
¶ 1 The section 2-1401 petitioner, Jerry Jean, appeals the May 23, 2017, order of the circuit court of Washington County, which granted intervenor William Groome‘s motion to dismiss Jean‘s petition to declare void or to vacate, pursuant to
I. FACTS
¶ 3 On September 19, 2014, Opal Castleman filed a pro se petition for tax deed in the circuit court of Washington County, naming the following respondents: Jerry Jean, Stewart Producers, Inc., Washington County Clerk, Evelyn M. Fair, unknown owners or parties interested, and nonrecord claimants. The petition alleged that the Castlemans had purchased the delinquent real estate taxes with respect to all oil, gas, and other mineral rights related to parcel No. 07-72-23-000-052-00, located in Washington County. According to the petition and the attachments thereto, the redemption period for these mineral rights was to expire on February 25, 2015. The circuit court issued an order directing the issuance of the tax deed on March 4, 2015.
¶ 4 On April 2, 2015, SI Resources filed a petition, pursuant to
¶ 5 On July 1, 2015, Groome filed a motion to intervene in the litigation, alleging that he obtained a quitclaim deed to the mineral rights in the subject property from the Castlemans. The circuit court granted the motion to intervene that same date. On September 10, 2015, Groome filed a motion, pursuant to
¶ 6 Meanwhile, on November 4, 2015, Jean filed an entry of appearance in the postjudgment proceedings. On November 13, 2015, Jean filed a petition to void, or in the alternative, to vacate, pursuant to
¶ 7 On November 16, 2015, Groome filed a motion to strike Jean‘s section 2-1401 petition on the basis that Jean did not request leave to file the motion and that counsel for SI Resources, who also represented Jean, had previously admitted that “Jean clearly does not have standing to vacate the order for tax deed [for mineral rights on] property he no longer has any interest in whatsoever.” The motion to strike further argued that Jean should seek leave to file his petition to vacate and Groome should have the opportunity to object. On November 30, 2015, Jean filed a motion to stay proceedings on his section 2-1401 petition pending this court‘s disposition of SI Resources‘s appeal of the circuit court‘s order dismissing its section 2-1203 petition. On December 8, 2015, Groome filed an undesignated motion to dismiss Jean‘s petition to void and/or vacate the order issuing the tax deed on the basis that Jean has no interest in the mineral rights that are the subject of the tax deed, having given a quitclaim deed to those mineral rights to SI Resources on or about March 27, 2015.
¶ 8 On February 17, 2016, the circuit court entered an order granting Jean‘s motion to stay the proceedings on his motion to void and/or vacate the issuance of the tax deed pending this court‘s disposition of SI Resources‘s appeal of the circuit
¶ 9 On February 24, 2017, SI Resources filed a petition to void and/or vacate, pursuant to
¶ 10 On May 23, 2017, the circuit court entered an order, granting Groome‘s motion to dismiss Jean‘s petition to declare void or vacate the order issuing the tax deed but denying the motion to dismiss the petition filed by SI Resources. On June 12, 2017, Groome filed a motion to reconsider that portion of the order that denied his motion to dismiss the petition filed by SI Resources. On June 19, 2017, Jean filed a motion to reconsider that portion of the order that granted Groome‘s motion to dismiss his petition. After full briefing on both motions to reconsider, the circuit court held a hearing on the motions on July 31, 2017. On August 14, 2017, the circuit court entered an order, granting Groome‘s motion to reconsider, dismissing SI Resources‘s petition in its entirety, and denying Jean‘s motion to reconsider the circuit court‘s previous dismissal of his petition. On September 18, 2017, Jean and SI Resources filed a notice of appeal. Additional facts will be set forth as necessary throughout this opinion.
II. ANALYSIS
¶ 12 As Jean and SI Resources point out, Groome‘s motion to dismiss failed to specify whether he sought to dismiss their petitions under
¶ 13 “In ruling on a motion to dismiss under either section 2-615 or section 2-619 of the Code, the court must accept all well-pled facts in the complaint as true and draw all reasonable inferences from those facts in favor of the [petitioners].” Id. (citing Miner v. Gillette Co., 87 Ill. 2d 7, 19 (1981)). In addition, “[b]ecause the resolution of either motion involves only a question of law, our review is de novo.” Id. We can affirm the circuit court‘s decision on a motion to dismiss on any ground in the record, regardless of whether the circuit court relied on that ground or whether the circuit court‘s reasoning was correct. Pryweller v. Cohen, 282 Ill. App. 3d 899, 907 (1996).
¶ 14 SI Resources and Jean also note that the circuit court‘s dismissal of SI Resources‘s section 2-1401 petition was in response to Groome‘s motion to reconsider, which they argue was improper. As they set forth in their brief, “[t]he purpose of a motion to reconsider is to bring to the court‘s attention newly discovered evidence that was not available at the time of the hearing, changes in the law, or errors in the court‘s previous application of existing law.” (Emphasis added.) Ragan v. Columbia Mutual Insurance Co., 291 Ill. App. 3d 1088, 1099 (1997). Our review of Groome‘s motion to reconsider, as well as the circuit court‘s order granting the motion and dismissing SI Resources‘s section 2-1401 petition, reveals that the basis for the motion to reconsider and the circuit court‘s granting of same was an error in the circuit court‘s previous application of existing law. Accordingly, there was no error based on the circuit court‘s granting Groome‘s motion to reconsider.
¶ 15 With all of the previous standards in mind, we will address, in turn, the propriety of the circuit court‘s decision to dismiss the petitions filed by Jean and SI Resources. Before doing so, however, a review of the procedures required by the
A. Required Procedures Prior to Issuance of Tax Deed
¶ 17 For the purposes of our analysis, it is important to distinguish those procedures required of the county collector prior to the sale of delinquent property to a tax buyer from those procedures required of a tax buyer prior to the issuance of a tax deed.2 Our supreme court succinctly set forth these procedures in In re Application of the County Collector, 225 Ill. 2d 208, 212 (2007) (hereinafter Lowe II). The procedures required of the county collector prior to the sale of delinquent property were stated therein as follows:
“Once property taxes become delinquent, the Property Tax Code *** provides that the county collector may file an application in the circuit court for judgment and order of sale of the delinquent property. The [Property Tax] Code directs that the county collector
shall publish notice of its intent to file an application for judgment. [Citation.] The notice must be published in a newspaper in the township where the property is located at least 10 days before the application is filed. [Citation.] In addition, the county collector shall send a notice of the application for judgment and sale, by certified or registered mail, to the person in whose name the taxes were last assessed at least 15 days before the date of the application for judgment and sale of the delinquent property. [Citation.] The county collector must present proof of the mailing to the court along with the application for judgment. [Citation.] The property owner can pay the delinquent taxes and costs anytime prior to the sale. [Citation.] If judgment is entered against the property, the county collector shall offer the property for sale pursuant to the judgment. [Citation.]” Id.
¶ 18 The supreme court then explained the procedures required by the tax buyer in order to obtain the issuance of the tax deed as follows:
“Following a tax sale, the [Property Tax] Code provides that, in order to seek a tax deed, the tax purchaser must deliver a notice to the county clerk to be given to the party in whose name the taxes were last assessed. [Citation.] This notice must be delivered to the county clerk within five months after the tax sale, and the county clerk must mail the notice, within 10 days of receipt, by registered or certified mail. [Citation.] This section 22-5 ‘Take Notice’ advises a party that his property has been sold for delinquent taxes, that redemption can be made until a specified date, and that a petition for tax deed will be filed by the tax purchaser if redemption is not made. [Citation.]
The [Property Tax] Code provides for a second ‘Take Notice’ to be sent to the owners, occupants and parties interested in the delinquent property not less than three months or more than five months prior to the expiration of the period of redemption. [Citation.] This section 22-10 take notice must give notice of the sale and the date of expiration of the period of redemption. [Citation.] The section 22-10 take notice must be served: personally by the sheriff; by registered or certified mail, return receipt requested; and by three publications in a newspaper. [Citations.]
Also ‘within 5 months but not less than 3 months prior to the expiration of the redemption period,’ the tax purchaser may file a petition in the circuit court seeking an order directing the county clerk to issue a tax deed to the property. [Citation.] In order to receive an order issuing a tax deed, the redemption period must expire without any redemption taking place, and the tax purchaser must prove to the circuit court that it has strictly complied with the statutory notice provisions set forth in sections 22-10 through 22-25 of the [Property Tax] Code [citations].” Id. at 212-13.
B. Obtaining Relief After Issuance of Tax Deed
¶ 20
“(1) proof that the taxes were paid prior to sale;
(2) proof that the property was exempt from taxation;
(3) proof by clear and convincing evidence that the tax deed had been procured by fraud or deception by the tax purchaser or his or her assignee; or
(4) proof by a person or party holding a recorded ownership or other recorded interest in the property that he or she was not named as a party in the publication notice as set forth in Section 22-20, and that the tax purchaser or his or her assignee did not make a diligent inquiry and effort to serve that person or party with the notices required by Sections 22-10 through 22-30.”
Id.
¶ 21 It is worth reiterating that although
C. Count I of Both Section 2-1401 Petitions—to Declare the Tax Deed Void
¶ 23 Count I of both section 2-1401 petitions seeks to have the tax deed declared void pursuant to
In addition, count I seeks to void the tax deed on the basis of a violation of Jean‘s due process rights under the
1. Vulcan Materials
¶ 25 In determining, on the face of the pleadings, that count I of the petitions
“An order is rendered void not by error or impropriety but by lack of jurisdiction by the issuing court. [Citation.] This court has repeatedly held that a tax-sale proceeding is in rem and the court acquires jurisdiction over the land when the county collector makes his application for judgment and order of sale. [Citations.] Once acquired, the court retains its jurisdiction to make all necessary findings and enter all necessary orders supplemental to the original tax sale. [Citation.]
It is well established that once a court acquires jurisdiction, subsequent fraud, concealment, or perjury will not render its order void. [Citations.]” Id. at 165.4
¶ 26 Applying the principles set forth in Vulcan Materials to the facts of the instant case, the circuit court obtained in rem jurisdiction over the property at issue after the county collector made the application for judgment and order of sale. As such, any alleged impropriety on the part of the Castlemans after the tax sale would render the issuance of the tax deed voidable rather than void. See id.; see also S.I. Securities v. Powless, 403 Ill. App. 3d 426, 443 (2010). Jean and SI Resources argue, however, that Illinois courts have strayed from the jurisdictional standard for declaring a tax deed void articulated in Vulcan Materials and its progeny under facts that they contend are similar to those in the case at bar. In order to address their argument, we must examine the cases upon which they rely in support of this proposition.
2. In re Application of the County Collector
¶ 28 We begin with In re Application of the County Collector, 397 Ill. App. 3d 535 (2009) (hereinafter Devon Bank). In that case, Devon Bank filed a section 2-1401 petition to set aside a tax deed issued to Checkmate Acquisitions (Checkmate), contending that it had never received any notice of sale, as required by the Property Tax Code. Id. at 536-37. A subsequent purchaser of the tax buyer opposed the petition, arguing that because he was a bona fide subsequent purchaser of the property for value, and lack of jurisdiction did not affirmatively appear on the face of the tax deed proceeding record, under
¶ 29 On appeal, Devon Bank argued that the tax deed was void because Checkmate violated its due process rights by failing to conduct a diligent inquiry to determine who owned the property and failed to serve any notice of the sale on Devon Bank, the owner of record. Id. Devon Bank further argued that this violation of its constitutional due process rights precluded the circuit court from acquiring jurisdiction to order the issuance of the tax deed and rendered the issuance of the tax deed void. Id. In addition, Devon Bank argued that Miller could not be a bona fide purchaser for value because he was also charged with knowledge of the public records. Id.
¶ 30 The Devon Bank court began its analysis by explaining that prior to the 1990s, subsections (1) through (3) of section 22-45 were the only means to procure relief from tax deeds, and subsection (3), fraud, was most commonly alleged as a means for procuring relief. Id. at 544 (citing In re Application of the County Collector, 217 Ill. 2d 1, 20-21 (2005) (hereinafter Lowe I), rev‘d on other grounds, 225 Ill. 2d 208 (2007)). The Devon Bank court further explained that in 1993, the General Assembly enacted subsection (4) as an additional means for collateral relief from a tax deed to address situations where there was a lack of any notice. Id. (citing Lowe I, 217 Ill. 2d at 21-22). The Devon Bank court concluded that this enactment, along with
¶ 31 At most, Devon Bank represents a statement of the applicability of section 22-45(4) of the Property Tax Code as a means of rendering a tax deed void. Based on the holding in Devon Bank, in situations where there is no notice to the owner of record, there is section 2-1401(f) relief available to the property owner pursuant to section 22-45(4)
¶ 32 Taking the factual allegations in count I of both section 2-1401 petitions in this case as true, there is no allegation that Jean received no notice, by publication or otherwise, of the tax deed proceedings. In fact, the record establishes that Jean was included in the publication notice put forward by the Castlemans. For this reason alone, whether we consider it a grounds for voiding the tax deed or rendering it voidable, section 22-45(4) of the Property Tax Code does not apply to the tax deed in the case at bar.7 Moreover, Devon Bank does not constitute authority for the proposition that the tax deed in this case should be deemed void for a violation of due process or lack of personal jurisdiction because neither SI Resources nor Jean asserts that Jean failed to receive notice of the tax sale, redemption period, or tax deed proceedings.8 Accordingly, we find no authority in Devon Bank to disturb the circuit court‘s decision to grant Groome‘s motion to dismiss count I of both section 2-1401 petitions.
3. DG Enterprises, LLC-Will Tax, LLC v. Cornelius
¶ 34 We turn now to SI Resources and Jean‘s reliance on our supreme court‘s decision
“(1) whether an order issuing a tax deed is void and subject to collateral attack because of the failure to include the address and phone number of the county clerk in the publication and certified mail take notices that were required to be sent to the delinquent owner prior to the issuance of the tax deed and (2) whether due process standards were violated where certified mail notices to the owner were return[ed] unclaimed.” Id. ¶ 1.
Unlike Devon Bank, the record owner of the property was named in the publication notices, and so the court in DG Enterprises ruled out subsection 22-45(4) of the
¶ 35 The court in DG Enterprises went on to conduct an analysis of whether the delinquent property owner‘s due process protections were violated by the lack of actual notice to her of the tax deed proceedings. See id. ¶¶ 33-50. SI Resources and Jean argue that in doing so, the DG Enterprises court, like the Devon Bank court, was considering whether the tax deed was void. According to SI Resources and Jean, because they allege in count I of their petitions that the tax deed is void for the Castlemans’ depriving Jean of due process, the circuit court erred in granting the motions to dismiss. We disagree with this reading of DG Enterprises. Nowhere in the supreme court‘s due process analysis does the court state that if it had found due process lacking, the tax deed would be void, rather than voidable. Indeed, the court states at the beginning of its analysis, that it is considering if “the tax deed should be set aside” due to the delinquent owner‘s due process rights being violated. Id. ¶ 34. In making its analysis and concluding that the property owner‘s due process rights were not violated, the court referred to the United States Supreme Court‘s decision in Jones v. Flowers, 547 U.S. 220 (2006), as well as its own analysis in Lowe II, 225 Ill. 2d 208. DG Enterprises, 2015 IL 118975, ¶ 34. It is these cases that lead us to conclude that, even if taken as true, the allegations in count I of both section 2-1401 petitions, though characterized as a violation of Jean‘s due process protections, do not render the tax deed at issue void, but merely voidable.
4. Jones and Lowe II
¶ 37 In Jones, the due process issue was whether the government provided sufficient notice to a property owner of his tax delinquency and his right to redeem the property prior to a public sale. Jones, 547 U.S. at 223-24; see also DG Enterprises, 2015 IL 118975, ¶¶ 35-36. An issue such as this, dealing with irregularities in procedure prior to the county collector making an application for judgment and order for sale, would be one that, if true, would render the tax deed void under the rule of Vulcan Materials, because it arises prior to the circuit court acquiring in rem jurisdiction. In contrast, the due process issue alleged in Lowe II, like the due process issue alleged in the case at bar, dealt with the sufficiency of the take notices required to be issued by the tax buyer after the judicial sale, at a time when the circuit court already acquired in rem jurisdiction
¶ 38 Here, SI Resources and Jean seek to declare the tax deed void based on an alleged due process issue dealing with the adequacy of notice occurring on the part of the Castlemans after the county had filed its application and received a judgment allowing the sale of the property, which conferred in rem jurisdiction on the circuit court. We find the rule of Vulcan Materials remains good law, and as explained above, the authority cited by SI Resources and Jean to suggest otherwise does not support their position. For these reasons, the allegations in count I, taken as true, would make the tax deed at issue voidable rather than void, and because count I of both section 2-1401(f) petitions seek to have the tax deed declared void, they were properly dismissed.
¶ 39 In the vast majority of cases, a tax deed being void or voidable would be a distinction without a difference as long as the property owner could otherwise meet the requirements of a section 2-1401 petition and allege and prove one of the grounds for setting aside a tax deed as set forth in section 22-45 of the Property Tax Code. However, in the case at bar, where Jean no longer has any interest in the subject property, and SI Resources acquired an interest in the property after the judgment issuing the tax deed was entered, the circuit court found that neither petitioner has standing to pursue a section 2-1401 petition to set the tax deed aside. We turn, then, to the circuit court‘s dismissal of count II of the petitions, which seek to set aside the tax deed based on an allegation that the tax deed was procured by fraud.
D. Count II of Both Section 2-1401 Petitions—To Vacate Tax Deed
¶ 41 The circuit court dismissed count II of both section 2-1401 petitions, finding that neither Jean nor SI Resources has standing to bring such a petition to vacate the tax deed. ” ‘A complaint may be involuntarily dismissed for lack of standing pursuant to section 2-619(a)(9) of the Code.’ ” Schacht v. Brown, 2015 IL App (1st) 133035, ¶ 12 (quoting Lyons v. Ryan, 201 Ill. 2d 529, 534 (2002)). In Schacht, this court set forth the following general principles of standing:
“The doctrine of standing ensures that issues are raised only by those parties with a real interest in the outcome of the controversy. [Citation.] To have the requisite standing to maintain an action, a plaintiff must complain of some injury in fact to a legally cognizable interest. [Citation.] The alleged injury must be: (1) distinct and palpable, (2) fairly traceable to the defendants’ actions, and (3) substantially likely to be prevented or redressed by the grant of the requested relief. [Citation.] Furthermore, the
plaintiff is not required to ‘allege facts establishing that he has standing to proceed‘; ’ [r]ather, it is the defendant‘s burden to plead and prove lack of standing.’ [Citation.] Dismissal is mandated where a plaintiff lacks standing, because such a deficiency negates the very cause of action.” Id. ¶ 14.
¶ 42 While the foregoing general standing principles apply to the ability of a party to bring a cause of action, we are mindful that we are, in this case, addressing the ability of the petitioners to bring a section 2-1401 petition to collaterally attack a final judgment. As stated above,
1. Jean‘s Standing
¶ 44 In support of his motion to dismiss, Groome attached a copy of a quitclaim deed in which Jean gave SI Resources his interest in the subject property on March 27, 2015. Accordingly, at the time he filed his section 2-1401 petition, Jean had no interest in the subject property.9 Nevertheless, Jean, without citation to authority, argues that Groome did not set forth any proof or evidence that Jean does not have any interest in the outcome of this section 2-1401 proceeding. We disagree. Because Jean no longer had any interest in the property when he filed
his section 2-1401 petition, the principles of standing preclude him from bringing the petition. See Countrywide Home Loans Servicing, LP v. Clark, 2015 IL App (1st) 133149, ¶ 35 (citing Glisson v. City of Marion, 188 Ill. 2d 211, 219 (1999)); see also In re Application of the Hamilton County Treasurer, 96 Ill. App. 3d 158, 162 (1981) (hereinafter Gholson) (in order to bring a petition to set aside a tax deed, the petitioner must have some bona fide title or interest in the property). For this reason, the circuit court did not err in dismissing Jean‘s section 2-1401 petition.
2. SI Resources‘s Standing
¶ 46 The final issue we must address is whether the circuit court erred in dismissing count II of SI Resources‘s section 2-1401 petition. Count II of SI Resources‘s section 2-1401 petition seeks to have the tax deed set aside pursuant to
“the right to bring suit for the purpose of setting aside a tax sale, and having the deed declared void, is not confined to the original owner of the land, but may be exercised by
his mortgagee, or by any person who can show such an interest in the estate as would have entitled him to redeem.”
¶ 47 We note that Miller was decided long before
¶ 48 The general rule in Illinois is that ” ‘[a] nonparty to a judgment has no standing to seek relief from that judgment by filing a section 2-1401 petition.’ ” Hurlbert v. Brewer, 386 Ill. App. 3d 1096, 1102 (2008) (quoting In re J.D., 317 Ill. App. 3d 445, 449-50 (2000)); see also Restatement (Second) of Judgments § 64 & cmt. d, at 149 (1982). Only a few narrow exceptions have been recognized. Hurlbert, 386 Ill. App. 3d at 1102 (citing Restatement (Second) of Judgments § 64 & cmt. d, at 149 (1982)). Under these narrow exceptions, a nonparty may seek relief pursuant to
¶ 49 In Hurlbert, an insurance company that would be the sole source of satisfaction of the judgment was found to have standing because, at the time of the judgment, the parties sought to hold the insurance company liable for the judgment, meeting the injury exception. Id. at 1103. Similarly, in G.M. Sign, Inc. v. Schane, 2013 IL App (2d) 120434, ¶ 35, an insurance company was found to meet the injury exception to the general rule because it was the only entity from which the judgment could be satisfied. In Browning, Ektelon Division v. Williams, 256 Ill. App. 3d 299, 301-02 (1993), the exception was invoked to permit a nonparty corporation to proceed with a section 2-1401 petition where the underlying judgment was entered against its wholly owned subsidiary and the plaintiff in the underlying proceeding cited the nonparty corporation‘s assets in its attempts to collect on the judgment.
¶ 50 Conversely, where a nonparty has become affected by a judgment after the judgment is entered, even involuntarily, our courts have held that there is no standing to file a section 2-1401 petition. In Frandsen v. Anderson, 108 Ill. App. 2d 194, 199 (1969), a party to a judgment filed suit against an attorney for malpractice arising from that attorney‘s representation of the party in the proceeding leading to the judgment. The attorney filed a section 72 petition under our former Civil Practice Act (now section 2-1401), seeking to vacate the judgment. Id. Finding that the attorney was not a party or privy to the record nor injured directly by the judgment, the court held the petition was properly dismissed due to lack of standing. Id. at 201-02.
¶ 51 In the case at bar, SI Resources was a complete stranger to the judgment at the time it was entered. It was not in privity with any party, was not injured by the judgment, and would derive no benefit from its reversal. It was not until SI Resources purchased a quitclaim deed conveying to him “all of [Jean‘s] interest that he may own or be entitled to” that SI Resources had a basis to claim an interest in having the judgment issuing the tax deed to the Castlemans set aside. To hold that SI Resources has standing to proceed would be to hold that a nonparty can essentially purchase the standing to petition to set aside a judgment pursuant to section 2-1401. Such a holding would constitute a vast expansion of the narrow exceptions to the rule that only parties can file a section 2-1401 petition to set aside a judgment. And because section 22-45 of the Property Tax Code clearly limits the manner and extent of attacking a judgment issuing a tax deed to that of any other type of proceeding, in order to reverse the circuit court‘s dismissal of SI Resources‘s section 2-1401 petition, we would have to disregard this clear language set forth in section 22-45. We cannot do so.
¶ 52 To the extent that this court‘s decision in Gholson, 96 Ill. App. 3d 158, is contrary to our holding in this case, we note that it predates the enactment of section 22-45 of the Property Tax Code. In Gholson, the party petitioning to set aside the tax deed purchased an interest in the property subject to the tax deed proceedings almost a year after the tax deed was issued. Id. at 162. Although the Gholson court recognized potential problems with a subsequent purchaser establishing the diligence and “freedom from negligence” elements required to set aside the tax deed, the court nevertheless reversed the dismissal of a petition to set aside a tax deed on the basis of “the uncertainty of prior precedent.” Id. at 162-63. With the enactment of section 22-45, and our foregoing analysis of the standing of a nonparty to file a section 2-1401 petition, we find that Gholson is abrogated and/or overruled.
¶ 53 Similarly, this court‘s decision in Excalibur Energy Co. v. Rochman, 2014 IL App (5th) 130524, does not contradict our holding in this case. In Excalibur Energy, the plaintiff filed a complaint for ejectment, alleging it was entitled to possession of certain property because a tax deed issued to the plaintiff‘s predecessor in title was void for lack of notice. Id. ¶ 1. The circuit
¶ 54 Although we found it necessary, based on the plain language of
III. CONCLUSION
¶ 56 For the following reasons, we affirm the orders of the circuit court of Washington County that dismissed the section 2-1401 petitions brought by Jean and SI Resources.
¶ 57 Affirmed.
Opinion Filed: September 18, 2018
Justices: Honorable James R. Moore, J. Honorable Richard P. Goldenhersh, J., and Honorable David K. Overstreet, J., Concur
Attorneys for Appellants: Mindy S. Salyer, Amanda L. Moressi, Salyer Law Offices, LLC, 33 North Dearborn Street, Suite 1505, Chicago, IL 60602
Attorney for Appellees: Paul T. Slocomb, Hoffman & Slocomb, 1115 Locust Street, 4th Floor, St. Louis, MO 63101