In re Application of the Douglas County Treasurer & ex officio County Collector
2014 IL App (4th) 130261
Appellate Court of Illinois, Fourth District
January 27, 2014
2014 IL App (4th) 130261
JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Pope and Steigmann concurred in the judgment and opinion.
Appellate Court Caption: In re: The Application of the Douglas County Treasurer and Ex Officio County Collector of Douglas County, Illinois, for Order of Judgment and Sale Against Real Estate Returned Delinquent for the Nonpayment of General Taxes for the Year 2006, DENNIS D. BALLINGER, Petitioner-Appellant, v. DOUGLAS A. MOORE and RICHARD W. MOORE, Not Individually But as Coexecutors of the Estate of JOAN J. COOK, Deceased; CLIFFORD M. JONES; and NANCY H. JONES, Respondents-Appellees. Decision Under Review: Appeal from the Circuit Court of Douglas County, No. 07-TX1-17; the Hon. Michael G. Carroll, Judge, presiding.
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Summary judgment was properly entered for respondents in their action to set aside the tax deed acquired by petitioner, since he failed to make a “diligent inquiry” as to persons with an ownership interest in the property as required by
Judgment
Affirmed and remanded with directions.
Mark S. Morthland (argued), of Moore, Susler, McNutt & Wrigley, LLC, of Decatur, for appellant.
James D. Lee (argued), of J.D. Lee Law Offices, LLC, of Tuscola, for appellees.
Panel
JUSTICE KNECHT delivered the judgment of the court, with opinion.
Justices Pope and Steigmann concurred in the judgment and opinion.
OPINION
¶ 1 In January 2008, petitioner, Dennis D. Ballinger, purchased the taxes due for tax year 2006 on a 40-acre parcel of farmland in Douglas County (permanent index No. 02-07-24-200-002) (hereinafter the property). In 2010, Ballinger acquired a tax deed for the property. In September 2011, respondents Douglas A. Moore, Richard W. Moore (both as coexecutors of the estate of Joan J. Cook), Clifford M. Jones, and Nancy H. Jones filed a petition for relief from judgment pursuant to
¶ 2 Ballinger appeals, arguing the trial court erred in granting respondents’ summary judgment motion because (1) Nancy does not have a “recorded” ownership interest in the property to be entitled to relief pursuant to
¶ 3 I. BACKGROUND
¶ 4 A. Background to the Property
¶ 5 A brief background to the property and respondents’ familial relationship is necessary to understand the parties’ arguments. (See Appendix A.) Gertrude Jones owned the property at the time of her death in May 1946. At the time of her death, Gertrude had two living children, Theodore Jones and Melville Jones. Nancy is Melville‘s daughter. Gertrude‘s third son, George Jones, predeceased her in 1945. George was survived by his wife, Cecily Jones (later Cecily B. Cline), and children, Joan, William and a third child who is not relevant to this appeal. In her will, Gertrude devised the property to Cecily, for life, with the remainder to her grandchildren. Cecily died in January 1984. William‘s son, Clifford, obtained his interest in the property in 1990. Joan died in April 2011, and was survived by her children, Douglas and
¶ 6 Joan lived in Charlotte, North Carolina; Nancy has lived in Taylorville, Illinois, for 35 years; and Clifford has lived in Champaign, Illinois, for 6 years.
¶ 7 B. The Initial Proceedings
¶ 8 In January 2008, Ballinger purchased the property‘s taxes due for tax year 2006. In June 2010, Ballinger filed a petition requesting the trial court to issue a tax deed, stating the redemption period would expire on December 9, 2010. He submitted a “Take Notice” to the Douglas County clerk for certified mailing to (1) the Douglas County clerk, (2) Clifford (with a Bristol, Wisconsin, mailing address), (3) William, (4) the Internal Revenue Service, (5) the United States Attorney General, (6) the United States District Attorney, and (7) “Joan Jones Moore” (with a Charlotte, North Carolina, mailing address). The return receipts for the governmental entities and William were returned as delivered. The return receipt for Clifford was returned as “Returned to Sender/Attempted/Not Known.” The return receipt for “Joan Jones Moore” was returned as “Returned to Sender/Unclaimed/Unable To Forward.” We note Ballinger attached a 2009 federal tax lien for Clifford with a Tuscola, Illinois, mailing address. Ballinger published the “Take Notice” in the Tuscola Journal between August 11, 2010, and August 25, 2010.
¶ 9 On December 30, 2010, Ballinger requested the trial court to issue a tax deed for the property. By affidavit, Ballinger stated the property‘s owners were the “Cecily B. Cline Estate,” Clifford, William, and “Joan Jones Moore.” He also stated, upon diligent inquiry of “pertinent documents on file” in the Douglas County court clerk‘s office he could not locate addresses for the “Cecily B. Cline Estate Heirs, Devisees & Legatees.” The same day, the trial court ordered issuance of the tax deed. Ballinger recorded the deed on June 24, 2011.
¶ 10 C. The Instant Proceedings
¶ 11 On September 19, 2011, respondents filed a petition for relief from judgment pursuant to
¶ 12 In November 2011, Ballinger filed a motion to dismiss respondents’ petition. Ballinger asserted he reviewed the records in the Douglas County recorder‘s office in June 2010, and at the time of his search respondents “did not have any interest whatsoever in the subject property.” He argued (1) “the law imposes upon [him] the duty to only conduct one search of the records in the Recorder‘s Office,” and (2) the Moores did not have an interest because they acquired their interest through Joan, who died in April 2011. He added (1) Nancy was a remainderman under Gertrude‘s will, but “[she] had no recorded interest in the subject property at the time [he] conducted a search of the records in the Recorder‘s Office” because she was not named in the will; and (2) the publication notice “cures any defect that may exist in
¶ 13 In February 2012, respondents filed a memorandum in opposition to Ballinger‘s motion to dismiss. Respondents asserted counsel performed “an independent title search” of the Douglas County recorder of deeds‘, circuit clerk‘s, treasurer‘s, and supervisor of assessments’ offices. Based on counsel‘s search, respondents contended someone examining Gertrude‘s will and the property‘s ownership should have determined whether Melville had any children. This would have led to Nancy. They added Nancy could be discovered through another deed covering other property devised in Gertrude‘s will.
¶ 14 In February 2012, the trial court denied Ballinger‘s motion to dismiss. In its detailed, five-page order, the court ruled Ballinger admitted Nancy was Gertrude‘s grandchild. It rejected Ballinger‘s contention Nancy did not have an ownership interest because her interest vested when the life estate terminated in 1984. It added “it is obvious that there was no due diligence” by Ballinger in locating owners as the record showed notice was sent to someone who was not an owner, William, and no notice was sent to someone who was actually an owner.
¶ 15 In November 2012, respondents filed a motion for summary judgment pursuant to
¶ 16 In February 2013, Ballinger filed a cross-motion for summary judgment. Ballinger asserted (1) “Nancy H. Jones had no recorded interest in the subject property at the time [he] conducted a search of the records in the Recorder‘s Office,” (2) “Nancy Jones was *** a remainderman under a life estate that had been created by the will of Gertrude W. Jones,” (3) “[i]t is a crucial point that none of the names of the grandchildren were listed in the will of Gertrude Jones,” and (4) he was not required to serve notice “on an individual who was not specifically named in the will of Gertrude W. Jones.” Ballinger did not attach an affidavit in support of his motion.
¶ 17 D. The Trial Court‘s Order
¶ 18 On March 8, 2013, the trial court issued its written order. The court held respondents were entitled to relief under
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 Ballinger appeals, arguing the trial court erred in granting respondents’ summary judgment motion because (1) Nancy did not have a “recorded” ownership interest in the property to be entitled to relief pursuant to
¶ 22 A. Standard of Review
¶ 23 A grant of summary judgment is only appropriate when the pleadings, depositions, admissions, and affidavits demonstrate no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.
¶ 24 Ballinger‘s appeal raises issues of statutory interpretation of
¶ 25 B. Section 22-45 of the Property Tax Code
¶ 26
“(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.”
35 ILCS 200/22-45 (West 2010) .
¶ 28 Ballinger does not contest Nancy has an ownership interest in the property. Rather, he asserts the trial court incorrectly interpreted
¶ 29 1. What Is a “Recorded” Ownership Interest?
¶ 30 The fundamental rule of statutory interpretation is to ascertain and give effect to the legislature‘s intent. General Motors Corp. v. Pappas, 242 Ill. 2d 163, 180, 950 N.E.2d 1136, 1146 (2011). “The best indication of legislative intent is the statutory language, given its plain and ordinary meaning.” Id. A statutory provision should be evaluated as a whole, with each provision construed in connection with other sections. Id. “Although a court should first consider the statutory language, a court must presume that the legislature, in enacting a statute, did not intend absurdity or injustice.” Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 64, 809 N.E.2d 1248, 1268 (2004).
¶ 31 Before addressing the statutory language, we note the primary purpose of the Property Tax Code‘s tax sale provisions is to encourage property owners to pay their taxes, not to assist tax deed petitioners in depriving actual owners of the property. In re Application of the County Treasurer, 347 Ill. App. 3d 769, 777, 807 N.E.2d 1042, 1051 (2004) (hereinafter HomeSide); In re Application of the County Treasurer & ex officio County Collector, 394 Ill. App. 3d 111, 118-19, 914 N.E.2d 1158, 1165 (2009) (A.P. Properties, appellant). We read
¶ 32 The Property Tax Code does not define the phrase “recorded ownership or other recorded interest,” the word “recorded,” or specify where such ownership interest must be recorded. The First District has interpreted “recorded interest” in
¶ 34 Ballinger’s argument focuses on the first clause of
¶ 35 Ballinger‘s proposed construction of
“The section contains no provision requiring that a will probated in the county in which the real estate is situated shall not be constructive notice of its contents to anyone dealing with such land, nor is there any section of the Conveyance act made applicable to wills. Clearly, the legislature in passing the various sections of that act requiring recording in the recorder‘s office of foreign wills and other instruments in writing could not have overlooked the fact that a will devising lands situated in the county in which it is probated as directly affects title to real estate in such county as any other instrument which is required by the Conveyance act to be recorded in the recorder‘s office. It would seem, therefore, that the legislature took cognizance of the fact that the probate of a will should constitute constructive notice. The legislature must have recognized that the probate or county court is a court of record and its records are a part of the records of the county. One examining the condition of a title, as is well recognized, is required to look further than the recorder‘s office to know the condition of the title. If there be a judgment against the land owner of record in that county, either as an original judgment or a transcript of a judgment of a foreign court, the purchaser of real estate is required to take notice of the lien of such judgment though it is not filed of record in the recorder‘s office. So with special assessments and special taxes. There appears, therefore, to be no reason why the legislature should have required that in addition to recording a will in the probate court it should likewise be recorded in the recorder‘s office, for to so require would not tend to give additional protection to the
purchaser and would impose an unnecessary burden on the land owner.” Clark, 335 Ill. at 189-90.
Ballinger‘s argument is similar to the one rejected by the supreme court in Clark. He too would ignore probate records. This despite the well-established principle a will admitted to probate transfers title to real property and the fact the Conveyances Act does not require a will to be recorded. See Stokes, 225 Ill. App. 3d at 839; Havill, 332 Ill. at 16 (“The effect of the probate of a will is to vest the title in the devisee as completely as a deed from the owner of property vests the title in his grantee ***.”). As the supreme court identified in Clark, this imposes an unnecessary burden on an owner to protect his or her interest. We decline the invitation to read
¶ 36 Ballinger‘s interpretation is ultimately untenable. His interpretation would (1) transform the “diligent inquiry” requirement into a limited search of the recorder of deeds’ records, (2) impose a requirement not contemplated by probate and property law on a property owner who acquired her interest through a will not recorded in the recorder‘s office, and (3) frustrate a true owner‘s ability to reclaim her property. We will not so interpret
¶ 37 2. Did Nancy Have a Recorded Interest?
¶ 38 Ballinger asserts Nancy does not have a “recorded” ownership interest because Gertrude‘s will does not specifically name Nancy as a grandchild. It is uncontested Gertrude‘s will was probated after her death and a matter of public record since 1946; it devised the property, after the life estate, to her “grandchildren”; and Nancy is Gertrude‘s granddaughter. Ballinger has offered no legal citation or convincing argument in support of his contention Nancy‘s ownership interest should be ignored because she was not expressly named in the will. See
¶ 39 D. Ballinger‘s Claim He Conducted a Diligent Inquiry
¶ 40 Ballinger contends a question of material fact exists as to whether he conducted a diligent inquiry to determine Nancy‘s ownership interest. Ballinger takes issue with the trial court‘s interpretation of what is required for a diligent inquiry and argues the Property Tax Code does not include an “exhaustive list” of what is required. He adds no provision requires tax scavengers to (1) serve a tax notice on “every interested party or owner *** no matter what the cost” and (2) conduct “interviews or discussions with the neighbors or purported interest holders in attempting to fully determine every single individual known and thus served.” On the merits, he asserts (1) Gertrude‘s probate file does not identify Nancy as a granddaughter, (2) “when the life tenant *** died her estate was probated and again Nancy Jones’ name was not mentioned anywhere in that file,” (3) the life estate holder‘s will included a provision transferring the property to her daughter, and (4) his efforts revealed William was an interested party and he was served with notice. He appears to assert the diligent inquiry requirement is satisfied where notice publication is given to unknown owners.
¶ 41 1. What Is a Diligent Inquiry?
¶ 42 The Property Tax Code requires the tax purchaser to conduct a “diligent inquiry” to locate property owners and interested parties.
“ ‘such inquiry as a diligent man, intent upon ascertaining a fact, would usually and ordinarily make,—inquiry with diligence and in good faith to ascertain the truth.’ ” Shockley v. Good, 13 Ill. 2d 298, 302-03, 148 N.E.2d 763, 765 (1958) (quoting Van Matre v. Sankey, 148 Ill. 536, 562, 36 N.E. 628, 635 (1893)).
This inquiry must be “as full as the circumstances of the situation will permit.” Liepelt, 17 Ill. 2d at 433. As discussed above, Illinois courts have held “a tax purchaser has failed to act with minimal diligence if he has not made reasonable efforts to notify all persons whose interest may reasonably be inferred from the public records regarding the property‘s ownership.” Glohry, 2011 IL App (1st) 101966, ¶ 44.
¶ 43 2. Did Ballinger Make a Diligent Inquiry?
¶ 44 On appeal, Ballinger contends a question of material fact exists about whether he made a diligent inquiry. He does not contest what he did but takes issue with the trial court‘s conclusion he did not conduct a diligent inquiry. Our review of Ballinger‘s argument and the record reveals no dispute as to the material facts. The dispute between the parties is over the legal effect of the settled facts.
¶ 45 Ballinger‘s argument about the trial court‘s interpretation of the “diligent inquiry” requirement misunderstands what is required by the Property Tax Code. The Property Tax
¶ 46 In determining whether a question of material fact exists several procedural principles of summary judgment are important to remember: (1) parties filing cross-motions for summary judgment concede the absence of factual issues and request the court to decide the question presented as a matter of law (Pielet, 2012 IL 112064, ¶ 28); (2) “facts contained in an affidavit in support of a motion for summary judgment which are not contradicted by counteraffidavit are admitted and must be taken as true for purposes of the motion” (Purtill v. Hess, 111 Ill. 2d 229, 241, 489 N.E.2d 867, 871-72 (1986)); and (3) a nonmovant cannot rest on his pleadings to create a genuine issue of material fact if the moving party has supplied facts which, if not contradicted, would warrant judgment in the movant‘s favor (Land v. Board of Education of the City of Chicago, 202 Ill. 2d 414, 432, 781 N.E.2d 249, 260 (2002)). Here, Ballinger conceded the absence of a factual issue when he filed a cross-motion for summary judgment. Further, respondents filed four affidavits in support of the summary judgment motion but Ballinger did not file a counteraffidavit. Ballinger admitted all facts contained in respondents’ affidavits, including the following: (1) he did not contact William, (2) Clifford had farmed the property for the past 15 years, and (3) no one with an ownership interest received notice of the tax proceedings. Now on appeal, Ballinger does not contest the evidence showing he did not (1) ask tenants, neighbors, local farmers, or anyone else about who owned the land; (2) ask William who owned the property or how to contact them; (3) conduct an Internet search; or (4) try to locate Nancy. Ballinger does
¶ 47 His arguments about Gertrude‘s will miss the point. The will‘s failure to identify Nancy does not absolve Ballinger from determining who Gertrude‘s grandchildren were. His efforts focused on the daughter-in-law‘s estate where he was able to identify three grandchildren. The record is clear, however, he did not examine Gertrude‘s other two sons to determine if those sons had children. Had he traced the family line through Melville he would have discovered Nancy. He investigated one branch of the family tree while ignoring the other two branches of the tree. Ballinger‘s efforts to serve Clifford and Joan are telling of his minimal approach to locating the property‘s owners. The notices sent to Joan and Clifford were returned undeliverable. Yet Ballinger did not make an effort to locate them by contacting William, using Clifford‘s Tuscola address contained on the federal tax lien, or even determining if “Joan Jones Moore” was Joan‘s correct name. See Jones v. Flowers, 547 U.S. 220, 229 (2006) (noting tax sale purchasers “who actually desired to inform a real property owner” of the proceedings would not just “do nothing when a certified letter sent to the owner is returned unclaimed”). As a result, no one with an ownership interest in the property was actually notified of the tax sale proceedings. We reject Ballinger‘s contentions a publication notice cures his failure to conduct a diligent inquiry. See Jones, 547 U.S. at 237. As the trial court stated, Ballinger‘s efforts constitute “an absolute failure” and reveal a “de minimis approach” in attempting to locate the property owners.
¶ 48 E. The Trial Court‘s Order
¶ 49
¶ 50 III. CONCLUSION
¶ 51 We affirm the trial court‘s judgment. We remand with directions for the trial court to amend its order to comply with
¶ 52 Affirmed and remanded with directions.
Case No. 4-13-0261
JUSTICE KNECHT
APPELLATE COURT JUSTICE