In re Application for Judgment and Sale by Co. Treasurer
Annotate this Case
No. 3--97--0257
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1998
_________________________________________________________________
In re APPLICATION FOR JUDGMENT ) Appeal from the Circuit Court
AND SALE BY THE COUNTY ) of the 13th Judicial Circuit,
TREASURER AND ex officio ) La Salle County, Illinois
COUNTY COLLECTOR OF LA SALLE )
COUNTY, ILLINOIS IN CONFORMITY )
WITH THE REVENUE ACT OF 1939, )
AS AMENDED, )
)
EVELYN MUFFLER, )
Petitioner-Appellee, )
)
v. ) No. 94--TX--42
)
RONALD EVENSON, Trustee under )
a Trust Agreement dated )
January 16, 1992 and known as ) Honorable
the RONALD N. EVENSON and ) James A. Lanuti,
JEANNINE K. EVENSON TRUST, ) Judge Presiding
Respondent-Appellant. )
_________________________________________________________________
JUSTICE HOMER delivered the opinion of the court:
_________________________________________________________________
Respondent, Ronald Evenson, appeals from the trial court's
denial of a motion to vacate an order which directed the county
clerk to issue a tax deed for real property. Evenson is the
trustee of a land trust in which the real property was held. On
appeal, we must decide whether section 21--380 of the Property
Tax Code (the Code) (35 ILCS 200/21--380 (West 1996)) requires
that a redemption under protest be made if the redemption occurs
after a petition for a tax deed has been filed. Evenson argues
that the trial court erred when it ruled that an attempted
redemption failed because the redemption was not made under
protest. For the following reasons, we reverse the judgment of
the trial court.
FACTS
Explosives Technologies International, Inc., (ETI), was the
original owner of the subject real property located in La Salle
County. After ETI moved its principle office in 1993, ETI's tax
manager mailed a change of address to the La Salle County
collector. ETI paid the 1992 taxes. However, the 1993 real
estate tax bill was sent to ETI's former address and ETI did not
receive or pay the 1993 taxes.
After the county collector obtained judgment and order of
sale, Evelyn Muffler purchased the property at a tax sale held on
November 21, 1994. Subsequently, Muffler paid the 1994 taxes
when they became delinquent. On November 22, 1995, ETI sold the
real estate to Ronald Evenson under a trust agreement. Evenson
paid the 1995 taxes as they became due.
On August 5, 1996, Muffler filed with the circuit court a
petition for tax deed. A notice in the form prescribed by
section 22--10 of the Code (35 ILCS 200/22--10 (West 1996)) was
received by Evenson on or about August 7, 1996. The notice
provided, inter alia:
"This notice is to advise you that the above
property has been sold for delinquent taxes
and that the period of redemption from the
sale will expire on November 21, 1996.
***
Check with the county clerk as to the exact
amount you owe before redeeming.
***
This notice is also to advise you that a
petition has been filed for a tax deed which
will transfer title and the right to
possession of this property if redemption is
not made on or before November 21, 1996.
***
You may be present at the [scheduled hearing]
but your right to redeem will already have
expired at that time.
***
Redemption can be made at any time on or
before November 21, 1996, by applying to the
County Clerk of LaSalle, Illinois, at the
County Courthouse in Ottawa, Illinois.
For further information, contact the County
Clerk."
Evenson informed ETI of the notice. On August 12, 1996,
ETI'S tax manager contacted the La Salle County clerk and was
advised that the sum of $3,085.81 was required to redeem the real
estate. This amount included 1993 and 1994 taxes. The manager
wired the money to the clerk and was advised by a deputy clerk
that nothing more was necessary. On August 13, 1996, the clerk
issued a redemption certificate to Evenson. In September, 1996,
Evenson contacted the clerk's office to inquire into the status
of the redemption and was informed that all taxes were paid and
he had nothing to be concerned about.
On December 13, 1996, the petition for tax deed was heard.
Evenson did not appear and did not file a written protest. The
court granted the petition. On December 18, 1996, the county
clerk executed and delivered a tax deed conveying the real estate
to Muffler. The clerk later refunded the redemption funds to
Evenson.
On January 9, 1997, Evenson filed a motion to vacate the
court order directing the issuance of a tax deed. The motion was
denied and Evenson appeals.
ANALYSIS
In denying Evenson's motion to vacate, the trial judge
stated:
"That's what you are supposed to be able to
do, redeem in the first two years. That's
what they did here. But now the
[petitioner's] argument is based on this
fifth district case[.] [The respondent] is
cut off because a petition for tax deed had
been filed, so, therefore, they (sic) had to
redeem under protest. If I were sitting on
the [appellate court] I might have a
different position reviewing this, but I
don't think I can ignore this case. *** I'm
bound by this case."
In re Application by St. Claire County Treasurer, Howell v.
Galmon, 276 Ill. App. 3d 1084, 659 N.E.2d 457 (5th Dist. 1995),
was the only reported appellate court opinion on point at the
time the trial court rendered its ruling in the instant case.
Galmon held that redemptions after the filing of a petition for
tax deed must be made under protest as provided by section
205/253(f) of the Code (35 ILCS 205/253(f) (West 1992)), the
substantially identical predecessor statute to section 21--380
(35 ILCS 200/21--380 (West 1996)). Section 21--380 provides,
inter alia:
"Redemption under protest. Any person redeeming under
this Section at a time subsequent to the filing of a
[petition for a tax deed], who desires to preserve his
or her right to defend against the petition for a tax
deed, shall accompany the deposit for redemption with a
writing substantially in the following form: [form
omitted]***." 35 ILCS 200/21--380 (West 1996).
The primary rule in statutory construction requires courts
to give effect to the intent of the legislature. Boaden v.
Department of Law Enforcement, 171 Ill. 2d 230, 664 N.E.2d 61
(1996). The best indication of the intent of the legislature is
the language of the subject statute. Brock v. Anderson Road
Ass'n, 287 Ill. App. 3d 16, 677 N.E.2d 985 (1997). Therefore,
courts must give the clear and unambiguous terms in a statute
their plain and ordinary meaning. County of Du Page v. Graham,
Anderson, Probst, & White, Inc., 109 Ill. 2d 143, 485 N.E.2d 1076
(1985). Legislative intent must be garnered from a review of the
entire statutory plan. City Suburban Electric Motors, Inc. v.
Wagner, 278 Ill. App. 3d 564, 663 N.E.2d 77 (1996). Where the
language is clear, a court must confine its inquiry to a
consideration of the language and must not look to extrinsic
aids. In re Marriage of May, 286 Ill. App. 3d 1060, 678 N.E.2d 71 (1997). Review of questions of statutory construction are
undertaken de novo. Wright v. Chicago Municipal Employees Credit
Union, 265 Ill. App. 3d 1110, 639 N.E.2d 203 (1994). One
district of the Illinois Appellate Court is not required to
follow decisions of the other districts, although there may be
compelling reasons to do so when dealing with similar facts and
circumstances. In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 604 N.E.2d 929 (1992).
While the instant case was on appeal, the second district
decided In re Application of the County Treasurer, Bluegreen
Corporation v. C and W Investment, Inc., No. 2--96--1203, (Sept.
26, 1997). Bluegreen rejected Galmon and ruled in favor of the
property owner under facts substantially similar to those in the
case at bar. We agree with the rationale in Bluegreen and
decline to follow Galmon. Our examination of the relevant
statutes supports this view as does our consideration of the
arguments in the instant case.
In Bluegreen, the second district examined the plain
language of section 21--380 and concluded it evinces a clear
legislative intent that the section only apply to those who have
opted to redeem under protest after a petition for tax deed has
been filed and who desire to preserve their right to defend
against the petition. Bluegreen, No. 2--96--1203, slip op. at
9. The second district correctly recognized that the right to
redemption is independent of the right to defend against a tax
deed.
Sections 21--345, (right of redemption), and 21--350,
(period of redemption), make no distinction between redemptions
made prior or subsequent to the filing of a petition for tax
deed. See 35 ILCS 200/21--345, 350 (West 1996). Furthermore,
the notice prescribed by section 22--10 (notice of expiration of
period of redemption) does not refer to the provisions of section
21--380 or specify that a redemption under protest is required.
See 35 ILCS 200/22--10 (West 1996).
Section 22--30 of the Code allows for petitions for tax
deeds to be filed at any time within five months but not less
than three months prior to the expiration of the applicable
redemption period. 35 ILCS 200/22--30 (West 1996). Section 21--
350 prescribes a two-year limitation for redemptions from the
date of sale. In this case, the redemption period expired
November 21, 1996. Redemption was made on August 12, 1996.
Adherence to Galmon would require us to hold that the
redemption under protest procedure should be followed even in
cases in which a property owner does not assert a defense but
merely wishes to pay the taxes and redeem his property. Such
interpretation is flawed and would lead to unjust results. A
section 21--380 hearing is unnecessary in such instances because
a defense does not exist. Muffler's argument that redemption is
a defense which should be identified on the redemption under
protest form is without merit. Redemption is not a defense but a
right given to the property owner.
We hold that a person may redeem, without redeeming under
protest, any time prior to the expiration of the statutory period
of redemption regardless of whether or not there is a pending
petition for tax deed. The redemption under protest provisions
contained in section 21--380 apply only to persons wishing to
defend against the petition. We conclude that the trial court's
order directing the clerk to issue a tax deed to Muffler is
invalid and must be vacated.
Because of our holding we need not address Evenson's
contentions that the trial court should have allowed him to
complete the redemption under protest form, and that the notice
provided by Muffler was defective because it failed to accurately
describe the property.
CONCLUSION
For the foregoing reasons, we reverse the orders of the
circuit court of La Salle County directing that a tax deed be
issued to the petitioner and denying the respondent's motion to
vacate and remand this cause for further proceedings consistent
with this opinion.
Reversed and remanded.
HOLDRIDGE and SLATER, JJ., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1998
_________________________________________________________________
In re APPLICATION FOR JUDGMENT ) Appeal from the Circuit Court
AND SALE BY THE COUNTY ) of the 13th Judicial Circuit,
TREASURER AND ex officio ) La Salle County, Illinois
COUNTY COLLECTOR OF LA SALLE )
COUNTY, ILLINOIS IN CONFORMITY )
WITH THE REVENUE ACT OF 1939, )
AS AMENDED, )
)
EVELYN MUFFLER, )
Petitioner-Appellee, )
)
v. ) No. 94--TX--42
)
RONALD EVENSON, Trustee under )
a Trust Agreement dated )
January 16, 1992 and known as ) Honorable
the RONALD N. EVENSON and ) James A. Lanuti,
JEANNINE K. EVENSON TRUST, ) Judge Presiding
Respondent-Appellant. )
_________________________________________________________________
JUSTICE HOMER delivered the opinion of the court:
_________________________________________________________________
Respondent, Ronald Evenson, appeals from the trial court's
denial of a motion to vacate an order which directed the county
clerk to issue a tax deed for real property. Evenson is the
trustee of a land trust in which the real property was held. On
appeal, we must decide whether section 21--380 of the Property
Tax Code (the Code) (35 ILCS 200/21--380 (West 1996)) requires
that a redemption under protest be made if the redemption occurs
after a petition for a tax deed has been filed. Evenson argues
that the trial court erred when it ruled that an attempted
redemption failed because the redemption was not made under
protest. For the following reasons, we reverse the judgment of
the trial court.
FACTS
Explosives Technologies International, Inc., (ETI), was the
original owner of the subject real property located in La Salle
County. After ETI moved its principle office in 1993, ETI's tax
manager mailed a change of address to the La Salle County
collector. ETI paid the 1992 taxes. However, the 1993 real
estate tax bill was sent to ETI's former address and ETI did not
receive or pay the 1993 taxes.
After the county collector obtained judgment and order of
sale, Evelyn Muffler purchased the property at a tax sale held on
November 21, 1994. Subsequently, Muffler paid the 1994 taxes
when they became delinquent. On November 22, 1995, ETI sold the
real estate to Ronald Evenson under a trust agreement. Evenson
paid the 1995 taxes as they became due.
On August 5, 1996, Muffler filed with the circuit court a
petition for tax deed. A notice in the form prescribed by
section 22--10 of the Code (35 ILCS 200/22--10 (West 1996)) was
received by Evenson on or about August 7, 1996. The notice
provided, inter alia:
"This notice is to advise you that the above
property has been sold for delinquent taxes
and that the period of redemption from the
sale will expire on November 21, 1996.
***
Check with the county clerk as to the exact
amount you owe before redeeming.
***
This notice is also to advise you that a
petition has been filed for a tax deed which
will transfer title and the right to
possession of this property if redemption is
not made on or before November 21, 1996.
***
You may be present at the [scheduled hearing]
but your right to redeem will already have
expired at that time.
***
Redemption can be made at any time on or
before November 21, 1996, by applying to the
County Clerk of LaSalle, Illinois, at the
County Courthouse in Ottawa, Illinois.
For further information, contact the County
Clerk."
Evenson informed ETI of the notice. On August 12, 1996,
ETI'S tax manager contacted the La Salle County clerk and was
advised that the sum of $3,085.81 was required to redeem the real
estate. This amount included 1993 and 1994 taxes. The manager
wired the money to the clerk and was advised by a deputy clerk
that nothing more was necessary. On August 13, 1996, the clerk
issued a redemption certificate to Evenson. In September, 1996,
Evenson contacted the clerk's office to inquire into the status
of the redemption and was informed that all taxes were paid and
he had nothing to be concerned about.
On December 13, 1996, the petition for tax deed was heard.
Evenson did not appear and did not file a written protest. The
court granted the petition. On December 18, 1996, the county
clerk executed and delivered a tax deed conveying the real estate
to Muffler. The clerk later refunded the redemption funds to
Evenson.
On January 9, 1997, Evenson filed a motion to vacate the
court order directing the issuance of a tax deed. The motion was
denied and Evenson appeals.
ANALYSIS
In denying Evenson's motion to vacate, the trial judge
stated:
"That's what you are supposed to be able to
do, redeem in the first two years. That's
what they did here. But now the
[petitioner's] argument is based on this
fifth district case[.] [The respondent] is
cut off because a petition for tax deed had
been filed, so, therefore, they (sic) had to
redeem under protest. If I were sitting on
the [appellate court] I might have a
different position reviewing this, but I
don't think I can ignore this case. *** I'm
bound by this case."
In re Application by St. Claire County Treasurer, Howell v.
Galmon, 276 Ill. App. 3d 1084, 659 N.E.2d 457 (5th Dist. 1995),
was the only reported appellate court opinion on point at the
time the trial court rendered its ruling in the instant case.
Galmon held that redemptions after the filing of a petition for
tax deed must be made under protest as provided by section
205/253(f) of the Code (35 ILCS 205/253(f) (West 1992)), the
substantially identical predecessor statute to section 21--380
(35 ILCS 200/21--380 (West 1996)). Section 21--380 provides,
inter alia:
"Redemption under protest. Any person redeeming under
this Section at a time subsequent to the filing of a
[petition for a tax deed], who desires to preserve his
or her right to defend against the petition for a tax
deed, shall accompany the deposit for redemption with a
writing substantially in the following form: [form
omitted]***." 35 ILCS 200/21--380 (West 1996).
The primary rule in statutory construction requires courts
to give effect to the intent of the legislature. Boaden v.
Department of Law Enforcement, 171 Ill. 2d 230, 664 N.E.2d 61
(1996). The best indication of the intent of the legislature is
the language of the subject statute. Brock v. Anderson Road
Ass'n, 287 Ill. App. 3d 16, 677 N.E.2d 985 (1997). Therefore,
courts must give the clear and unambiguous terms in a statute
their plain and ordinary meaning. County of Du Page v. Graham,
Anderson, Probst, & White, Inc., 109 Ill. 2d 143, 485 N.E.2d 1076
(1985). Legislative intent must be garnered from a review of the
entire statutory plan. City Suburban Electric Motors, Inc. v.
Wagner, 278 Ill. App. 3d 564, 663 N.E.2d 77 (1996). Where the
language is clear, a court must confine its inquiry to a
consideration of the language and must not look to extrinsic
aids. In re Marriage of May, 286 Ill. App. 3d 1060, 678 N.E.2d 71 (1997). Review of questions of statutory construction are
undertaken de novo. Wright v. Chicago Municipal Employees Credit
Union, 265 Ill. App. 3d 1110, 639 N.E.2d 203 (1994). One
district of the Illinois Appellate Court is not required to
follow decisions of the other districts, although there may be
compelling reasons to do so when dealing with similar facts and
circumstances. In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 604 N.E.2d 929 (1992).
While the instant case was on appeal, the second district
decided In re Application of the County Treasurer, Bluegreen
Corporation v. C and W Investment, Inc., No. 2--96--1203, (Sept.
26, 1997). Bluegreen rejected Galmon and ruled in favor of the
property owner under facts substantially similar to those in the
case at bar. We agree with the rationale in Bluegreen and
decline to follow Galmon. Our examination of the relevant
statutes supports this view as does our consideration of the
arguments in the instant case.
In Bluegreen, the second district examined the plain
language of section 21--380 and concluded it evinces a clear
legislative intent that the section only apply to those who have
opted to redeem under protest after a petition for tax deed has
been filed and who desire to preserve their right to defend
against the petition. Bluegreen, No. 2--96--1203, slip op. at
9. The second district correctly recognized that the right to
redemption is independent of the right to defend against a tax
deed.
Sections 21--345, (right of redemption), and 21--350,
(period of redemption), make no distinction between redemptions
made prior or subsequent to the filing of a petition for tax
deed. See 35 ILCS 200/21--345, 350 (West 1996). Furthermore,
the notice prescribed by section 22--10 (notice of expiration of
period of redemption) does not refer to the provisions of section
21--380 or specify that a redemption under protest is required.
See 35 ILCS 200/22--10 (West 1996).
Section 22--30 of the Code allows for petitions for tax
deeds to be filed at any time within five months but not less
than three months prior to the expiration of the applicable
redemption period. 35 ILCS 200/22--30 (West 1996). Section 21--
350 prescribes a two-year limitation for redemptions from the
date of sale. In this case, the redemption period expired
November 21, 1996. Redemption was made on August 12, 1996.
Adherence to Galmon would require us to hold that the
redemption under protest procedure should be followed even in
cases in which a property owner does not assert a defense but
merely wishes to pay the taxes and redeem his property. Such
interpretation is flawed and would lead to unjust results. A
section 21--380 hearing is unnecessary in such instances because
a defense does not exist. Muffler's argument that redemption is
a defense which should be identified on the redemption under
protest form is without merit. Redemption is not a defense but a
right given to the property owner.
We hold that a person may redeem, without redeeming under
protest, any time prior to the expiration of the statutory period
of redemption regardless of whether or not there is a pending
petition for tax deed. The redemption under protest provisions
contained in section 21--380 apply only to persons wishing to
defend against the petition. We conclude that the trial court's
order directing the clerk to issue a tax deed to Muffler is
invalid and must be vacated.
Because of our holding we need not address Evenson's
contentions that the trial court should have allowed him to
complete the redemption under protest form, and that the notice
provided by Muffler was defective because it failed to accurately
describe the property.
CONCLUSION
For the foregoing reasons, we reverse the orders of the
circuit court of La Salle County directing that a tax deed be
issued to the petitioner and denying the respondent's motion to
vacate and remand this cause for further proceedings consistent
with this opinion.
Reversed and remanded.
HOLDRIDGE and SLATER, JJ., concur.
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