Excalibur Energy Co. v. Rochman

2014 IL App (5th) 130524

• Court: Appellate Court of Illinois
• Decided: August 22, 2014
• Docket: 5-13-0524
• Status: Unpublished

Opinion

NOTICE 2014 IL App (5th) 130524 Decision filed 08/18/14, corrected 08/22/14. The text of NO. 5-13-0524 this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the IN THE disposition of the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

EXCALIBUR ENERGY COMPANY, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Franklin County. ) v. ) No. 09-MR-32 ) MARILYN ROCHMAN, ) Honorable Thomas J. Dinn III, ) Honorable E. Kyle Vantrease, Defendant-Appellant. ) Judges, presiding. ________________________________________________________________________

JUSTICE SCHWARM delivered the judgment of the court, with opinion. Justices Goldenhersh and Cates concurred in the judgment and opinion.

OPINION

¶1 The plaintiff, Excalibur Energy Company (Excalibur Energy), filed a second-

amended complaint in ejectment claiming ownership to property in Franklin County and

alleging that a tax deed, from which the defendant, Marilyn Rochman, claimed ownership

of the same property, was void for lack of notice to Excalibur Energy's predecessor in

title. Rochman appeals the circuit court's order granting summary judgment in Excalibur

Energy's favor. For the reasons that follow, we reverse the circuit court's judgment and

remand the cause with directions to dismiss the plaintiff's second-amended complaint.

1 ¶2 BACKGROUND

¶3 On July 2, 2009, Excalibur Energy filed its complaint against Rochman, alleging

that a tax deed, issued to Rochman's predecessor in title, Franklin County, as trustee, was

void for lack of notice to Excalibur Energy's predecessor in title, the Joseph B. Gould

Trust (Gould Trust). Specifically, in its "[s]econd [a]mended [c]omplaint [i]n

[e]jectment" filed on July 16, 2012, Excalibur Energy alleged that in the 1980s Riverside

American Farms, Inc. (Riverside), acquired in fee the surface and mineral rights

underlying the disputed property in Franklin County. Excalibur Energy alleged that in

1991, Riverside deeded to Gould Trust a mineral interest in fee in the property, subject to

a conditional reversionary interest, which reserved in Riverside a one-half interest in the

mineral rights if Riverside paid in full a note due Gould Trust before May 1, 1996.

Excalibur Energy alleged that the note was not paid and, therefore, Gould Trust's mineral

interest in fee vested by operation of law on May 1, 1996.

¶4 Pursuant to Excalibur Energy's allegations, the record reveals that in 2003, Clyde

E. Tritt and Carolyn Dirks executed an assignment and quitclaim deed to the Gould

Foundation. Although named in the deed "as co-trustees" of the Gould Trust, Dirks and

Tritt signed this deed as "co-executor[s]" of the estate of Joseph B. Gould. On May 16,

2006, the Gould Foundation transferred its mineral interest in fee in the disputed premises

by virtue of a warranty deed issued to Excalibur Energy.

¶5 Excalibur Energy further alleged that, meanwhile, Franklin County, as trustee,

took purported title to property pursuant to a tax deed dated September 17, 1997, and

recorded October 23, 1997. Excalibur Energy alleged that this 1997 tax deed did not

2 include in its legal description the property in dispute here. Excalibur Energy alleged that

Franklin County, as trustee, thereafter conveyed the property to Rochman by quitclaim

deed dated January 22, 2008, and recorded January 25, 2008, and that this quitclaim

deed, purporting to be a tax deed, also did not include in its legal description the property

in dispute here.

¶6 Excalibur Energy alleged, however, that a "[c]orrective [t]ax [d]eed" was executed

on February 11, 2008, from David Dobill to Franklin County, as trustee, and recorded

February 19, 2008. Excalibur Energy alleged that this deed included the property in

dispute and listed it as "being the former interest of Riverside American Farms: Account

of Joseph Gould Trust" even though Gould Trust was taxed under a different bill number.

Excalibur Energy alleged that another corrective deed, a quitclaim deed dated February

15, 2008, and recorded February 19, 2008, transferred the same property from Franklin

County, as trustee, to Rochman.

¶7 Excalibur Energy alleged that from June 23, 2006, until July 2007, pursuant to a

division order, Countrymark Cooperative LLP (Countrymark) paid oil revenue amounts

from the property to Excalibur Energy and that Excalibur Energy and its predecessors in

title paid all real estate taxes that were assessed. Excalibur Energy alleged, however, that

after July 2007 until June 10, 2008, Countrymark paid the various amounts of oil revenue

from the property to Rochman and that Rochman thereby unlawfully withheld from

Excalibur Energy the possession of the property. Excalibur Energy requested the circuit

court to quiet title to the premises, order Rochman's ejectment, and determine the amount

owed to it for Rochman's wrongful possession.

3 ¶8 On August 14, 2012, Rochman filed a combined motion to dismiss Excalibur

Energy's second-amended complaint (735 ILCS 5/2-619.1 (West 2008)). In her motion,

Rochman argued, among other things, that because the "court having exclusive

jurisdiction over the tax deed ha[d] failed to hear any issues thereon, [Rochman's] title to

the subject premises [was] valid" and Excalibur Energy was barred from asserting its

claim in ejectment.

¶9 On September 5, 2012, Excalibur Energy filed a motion for summary judgment.

Excalibur Energy requested the circuit court to find that the 1994 default judgment and

resulting 1997 tax deed to the Franklin County trustee were void. Excalibur Energy

argued that the tax court had lacked jurisdiction to render the default judgment and issue

the tax deed because there were defects in the delinquent list and publication notice, the

purported tax deed failed to describe the property at issue, and Gould Trust did not

receive any notice of the tax proceedings. Thereafter, Rochman filed a motion to strike

Excalibur Energy's motion for summary judgment.

¶ 10 On November 2, 2012, after hearing arguments, the circuit court denied

Rochman's motion to dismiss, motion to strike Excalibur Energy's motion for summary

judgment, and request to answer the second-amended complaint in ejectment. On

November 28, 2012, the circuit court entered its written order granting Excalibur

Energy's motion for summary judgment.

¶ 11 In its order, the circuit court held that Excalibur Energy and its predecessors had

paid the real estate taxes that were assessed in their names and that they had received no

notice of the tax deed proceedings. The circuit court held that the records of the tax deed

4 proceedings established that notice was not sent to the Gould Trust, even though its

interest in the property was shown in the grantor-grantee index in the county clerk's

office. The circuit court found that the "[c]orrective [t]ax [d]eed" executed on February

11, 2008, from David Dobill to Franklin County, as trustee, and recorded on February 19,

2008, was the first deed to include the property at issue in the legal description. The

circuit court found that it was the first time that the Gould Trust was mentioned. The

circuit court found no explanation of the reasons or authority for delivery of this deed.

¶ 12 The court concluded that Excalibur Energy had provided proof that its predecessor

in title held a recorded interest in the property but was not named a party in the

publication notice as set forth in section 22-20 of the Property Tax Code (35 ILCS

200/22-20 (West 2008)), and that Franklin County, as trustee and tax purchaser, did not

make a diligent inquiry and effort to serve the property owner with notice required by the

Property Tax Code (35 ILCS 200/22-10 to 22-30 (West 2008)). The circuit court held

that the total lack of notice of the tax deed proceedings rendered the tax deed void for

lack of trial court jurisdiction over the property owner. Accordingly, the circuit court

granted Excalibur Energy's motion for summary judgment and granted it possession of

the premises.

¶ 13 In her motion to reconsider and later-filed addendum, Rochman argued, among

other things, that Excalibur Energy had failed to plead a cause of action for ejectment,

that Excalibur Energy had failed to present evidence that Gould Trust had held fee title

subject to a conditional reversionary interest in Riverside or that Gould Trust's fee

interest had vested by operation of law in 1996, and that there was no evidence of record

5 regarding a total lack of notice in the underling tax deed proceeding. On September 27,

2013, the circuit court denied Rochman's motion to reconsider and addendum to the

motion to reconsider. Rochman filed a timely notice of appeal.

¶ 14 ANALYSIS

¶ 15 "A motion for summary judgment should only be granted when the pleadings,

depositions, and affidavits demonstrate that there is no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law." Jackson v. TLC

Associates, Inc., 185 Ill. 2d 418, 423 (1998). "Summary judgment is a drastic measure

and should only be granted if the movant's right to judgment is clear and free from

doubt." Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102

(1992). Our review of a circuit court's order granting summary judgment is de novo. Id.

¶ 16 Pursuant to its second-amended complaint, Excalibur Energy's claim for ejectment

(see 735 ILCS 5/6-101 et seq. (West 2008)) rests on its argument that the 1997 tax deed

issued to Franklin County, as trustee, was void, and thus, Franklin County had no title to

transfer to Rochman. Excalibur Energy thus seeks to set aside a tax deed.

¶ 17 The Property Tax Code (35 ILCS 200/1-1 et seq. (West 2008)) governs the

issuance of tax deeds. Pursuant to the Property Tax Code, "[t]he legislature intended a

tax deed, once it is issued, to be virtually incontestable." S.I. Securities v. Powless, 403

Ill. App. 3d 426, 429 (2010). "The legislature's intent was to provide a tax buyer with a

new and independent title, free and clear from all previous titles and claims of every kind,

and assurance to the tax buyer that his title and rights to the property would be

unimpaired." Id. "The legislature drafted the Property Tax Code in this manner because,

6 prior to 1951, there was an alarming increase in the rate of tax delinquencies, and 'almost

any defect or deficiency, no matter how minute, in a tax deed proceeding that led to the

issuance of a tax deed made a deed suspect and generally void.' " Id. (quoting Killion v.

Meeks, 333 Ill. App. 3d 1188, 1191 (2002)). Nonetheless, "the primary purpose of the

tax sales provisions of the Property Tax Code is to coerce tax delinquent property owners

to pay their taxes, not to assist tax petitioners in depriving the true owners of their

property." In re Application of the County Collector, 295 Ill. App. 3d 703, 710 (1998).

¶ 18 Accordingly, a party's ability to set aside a tax deed is very limited. 35 ILCS

200/22-45, 22-55 (West 2008). Under section 22-45 of the Property Tax Code (35 ILCS

200/22-45 (West 2008)), there are three ways in which a party may challenge a tax deed:

(1) by filing a direct appeal from the order directing the issuance of the deed; (2) by filing

a motion for relief under section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-

1203 (West 2008) (motion made within 30 days after judgment)); or (3) by filing a

petition for relief under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-

1401 (West 2008)). In re Application of the County Treasurer & ex officio County

Collector, 2013 IL App (3d) 120999, ¶ 23. Section 22-45 further limits the grounds for

which relief from a tax deed may be obtained under section 2-1401 to the following four

situations: (1) where there is proof that the taxes were paid prior to sale; (2) where there

is proof that the property was exempt from taxation; (3) where there is proof by clear and

convincing evidence that the tax deed had been procured by fraud or deception by the tax

purchaser or his assignee; or (4) where there is proof that a party with a recorded

ownership or other recorded interest was not named in the required publication notice and

7 the tax purchaser or his assignee did not make a diligent inquiry and effort to serve that

party with the required notices. 35 ILCS 200/22-45 (West 2008); In re Application of the

County Treasurer & ex officio County Collector, 2013 IL App (3d) 120999, ¶ 23.

Section 22-45 further provides, however, that relief from such an order may be had under

section 2-1401 in the same manner and to the same extent as may be had with respect to

final orders and judgments in other proceedings. 35 ILCS 200/22-45 (West 2008).

¶ 19 Section 2-1401 establishes a comprehensive, statutory procedure that allows for

the vacatur of a judgment older than 30 days. 735 ILCS 5/2-1401 (West 2008); People v.

Vincent, 226 Ill. 2d 1, 7 (2007). Section 2-1401(b) provides that the petition must be

filed in the same proceeding in which the order or judgment was entered, but it is not a

continuation of the original action. 735 ILCS 5/2-1401(b) (West 2008). The purpose of

a section 2-1401 petition is to alert the circuit court to facts that, if they had been known

at the time, would have precluded entry of the judgment. People v. Haynes, 192 Ill. 2d

437, 461 (2000).

¶ 20 As an initial pleading, a section 2-1401 petition is the procedural counterpart of a

complaint and subject to all the rules of civil practice that that character implies. Vincent,

226 Ill. 2d at 15. "From the petition's character as an initial pleading, it follows that the

respondent may answer or move to dismiss the petition either under section 2-615 of the

Code [of Civil Procedure] (735 ILCS 5/2-615 (West 2008)) for failure to state a claim or

under section 2-619 of the Code [of Civil Procedure] (735 ILCS 5/2-619 (West 2008))

based on an affirmative defense ***." Blazyk v. Daman Express, Inc., 406 Ill. App. 3d

203, 207 (2010). "Where a motion to dismiss under section 2-1401 is denied, the court

8 should allow the moving party a chance to answer the allegations contained in the

petition." Manning v. Meier, 114 Ill. App. 3d 835, 840 (1983). "In any event, as with

other initial pleadings, barring a default (see 735 ILCS 5/2-1301(d) (West 2008)), no

recognized mode of civil practice provides for the grant of a section 2-1401 petition when

the only paper filed has been the petition." Blazyk, 406 Ill. App. 3d at 207.

¶ 21 Section 2-1401(f) has been held to have codified the common law means to

collaterally attack a void judgment. 735 ILCS 5/2-1401(f) (West 2008); Ford Motor

Credit Co. v. Sperry, 214 Ill. 2d 371, 380 (2005) (a void judgment is, from its inception, a

complete nullity and without legal effect); Sarkissian v. Chicago Board of Education, 201

Ill. 2d 95, 103 (2002) (a judgment is void when the court lacks jurisdiction over the

subject matter or the parties). Section 2-1401 expressly differentiates petitions

collaterally attacking judgments on voidness grounds from all other types of collateral

attacks. 735 ILCS 5/2-1401(f) (West 2008) ("Nothing contained in this Section affects

any existing right to relief from a void order or judgment, or to employ any existing

method to procure that relief."); Sarkissian, 201 Ill. 2d at 104; In re Application of the

County Collector, 397 Ill. App. 3d 535, 542 (2009). Section 2-1401 petitions attacking a

judgment on voidness grounds may be brought at any time and are not subject to the two-

year statute of limitations. Sarkissian, 201 Ill. 2d at 103-04. A section 2-1401(f) petition

alleging voidness is also exempt from the general requirements of section 2-1401

petitions, such as, for example, those alleging a meritorious defense or due diligence. In

re Application of the County Collector, 397 Ill. App. 3d at 543; Sarkissian, 201 Ill. 2d at

104.

9 ¶ 22 In this case, the circuit court entered summary judgment in favor of Excalibur

Energy based on its complaint in ejectment. The circuit court held that because Excalibur

Energy and its predecessors had received no notice of the tax deed proceedings, the court

in those proceedings lacked jurisdiction, and the tax deed was void. The circuit court

therefore set aside the tax deed.

¶ 23 Although case law supports the circuit court's conclusion that a tax deed is void

where tax deed proceedings result in a total failure to provide notice (In re Application of

the County Collector, 397 Ill. App. 3d at 537, 548 (tax deed void because total failure to

provide notice violated due process and means the circuit court never acquired personal

jurisdiction over property owner)), Excalibur Energy's complaint in ejectment was not a

valid attack on the tax deed. Section 2-1401 of the Code of Civil Procedure (735 ILCS

5/2-1401 (West 2008)) provided the only vehicle for the plaintiff in this case to vacate the

tax deed. See S.I. Securities, 403 Ill. App. 3d at 430.

¶ 24 Excalibur Energy cites Glos v. Patterson to assert that a tax deed can "be negated"

in an action in ejectment. Glos v. Patterson, 195 Ill. 530, 533-34 (1902) (court allowed

ejectment action to eject defendant whose title flowed from tax deed and denied

defendant's request for taxes and costs, stating that trial court's judgment was not one

setting aside tax deed). In Glos, however, the court noted that the defendant, in seeking

to introduce the tax deeds executed prior to the execution of the plaintiff's title, sought

not to prove paramount title but to recover taxes paid. Id.

¶ 25 Excalibur Energy's reliance on Glos appears anachronistic in light of the clear

language of sections 22-45 of the Property Tax Code and 2-1401 of the Code of Civil

10 Procedure (35 ILCS 200/22-45 (West 2008); 735 ILCS 5/2-1401 (West 2008)), along

with the courts' construction of these sections and their predecessors since 1902. See

Urban v. Lois, Inc., 29 Ill. 2d 542, 546-47 (1963); People ex rel. Wright v. Doe, 26 Ill. 2d

446, 451-52 (1962); Freisinger v. Interstate Bond Co., 24 Ill. 2d 37, 41-42 (1962); Remer

v. Interstate Bond Co., 21 Ill. 2d 504, 510 (1961); Southmoor Bank & Trust Co. v. Willis,

15 Ill. 2d 388, 394-95 (1958) (after 1951 revision of section 266 of the Revenue Act (Ill.

Rev. Stat. 1959, ch. 120, ¶ 747), predecessor to section 22-45 of the Property Tax Code,

as well as the 1955 revision of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1959,

ch. 110, ¶ 72), predecessor to section 2-1401 of the Code of Civil Procedure, supreme

court concluded that tax titles were incontestable except by direct appeal or pursuant to

section 72). Indeed, our conclusion is bolstered by courts addressing this very issue. See

Elliott v. Johnson, 156 Ill. App. 3d 70, 73 (1987) (in view of the statutory requirement

that a tax deed may be challenged only by direct appeal or by a motion pursuant to

section 2-1401, plaintiff's complaint to quiet title was correctly dismissed); In re

Application of Hamilton County Treasurer, 96 Ill. App. 3d 158, 162 (1981) (provision for

bringing of petition to set aside a tax deed pursuant to section 72 of the former Civil

Practice Act (Ill. Rev. Stat. 1979, ch. 110, ¶ 72) has been held to preclude an attack on tax

title through an equitable proceeding to quiet title); McCann v. Laster, 19 Ill. App. 3d

407, 409 (1974) ("[i]t has been uniformly and consistently held that in absence of appeal,

the court order authorizing issuance of a tax deed stands as a valid judgment, subject to

attack after 30 days, only by a petition filed under Section 72 of the Civil Practice Act,"

not by complaint to quiet title); Buschmann v. Walsh, 120 Ill. App. 2d 242, 245 (1970)

11 (suit to quiet title is not the proper proceeding to consider a collateral attack upon a

judgment of the county court issuing a tax deed).

¶ 26 Moreover, Excalibur Energy's complaint could not be treated as a petition for

relief from judgment authorizing issuance of the tax deed, in view of the statutory

requirement that such petitions "be filed in the same proceeding in which the order or

judgment was entered." 735 ILCS 5/2-1401(b) (West 2008); McCann, 19 Ill. App. 3d at

409 (complaint to quiet title could not under any circumstances be treated as a motion for

relief of judgment, which must be filed in the same proceeding in which the order was

entered, even though it is not a continuation thereof). "[A] section 2-1401 proceeding

will always involve the same parties as the underlying case and will always relate back to

the original judgment in the underlying case." Niemerg v. Bonelli, 344 Ill. App. 3d 459,

466 (2003). "It is filed in the same case in which the judgment was entered, and the

pleading bears the same docket number." Id.

¶ 27 Accordingly, the plaintiff's complaint in ejectment should have been dismissed on

Rochman's motion. See 735 ILCS 5/2-1401 (West 2008); Elliott, 156 Ill. App. 3d at 73;

In re Application of Hamilton County Treasurer, 96 Ill. App. 3d at 162; McCann, 19 Ill.

App. 3d at 409; Buschmann, 120 Ill. App. 2d at 245. We therefore reverse the circuit

court's order granting Excalibur Energy's motion for summary judgment, and we remand

the action to the circuit court with directions to dismiss Excalibur Energy's complaint in

ejectment.

¶ 28 CONCLUSION

¶ 29 For the reasons stated, we reverse the judgment of the circuit court of Franklin

12 County with directions to the circuit court to dismiss the plaintiff's second-amended

complaint in ejectment.

¶ 30 Reversed and remanded with directions.

13 2014 IL App (5th) 130524

NO. 5-13-0524

IN THE

FIFTH DISTRICT

EXCALIBUR ENERGY COMPANY, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Franklin County. ) v. ) No. 09-MR-32 ) MARILYN ROCHMAN, ) Honorable Thomas J. Dinn III, ) Honorable E. Kyle Vantrease, Defendant-Appellant. ) Judges, presiding. ________________________________________________________________________

Opinion Filed: August 18, 2014 ________________________________________________________________________

Justices: Honorable S. Gene Schwarm, J. Honorable Richard P. Goldenhersh, J., and Honorable Judy L. Cates, J., Concur ________________________________________________________________________

Attorneys Mindy S. Salyer, Amanda L. Moressi, Brittney B. Rykovich, Salyer for Law Offices, LLC, 111 W. Washington Street, Suite 860, Chicago, Appellant IL 60602; William L. Broom III, Patricia A. Small, Barrett, Twomey, Broom, Hughes & Hoke, LLP, 100 North Illinois Avenue, P.O. Box 3747, Carbondale, IL 62902-3747 ________________________________________________________________________

Attorney Jana Yocom, Jana Yocom, P.C., 320 South 11th Street, Suite 1, Mt. for Vernon, IL 62864 Appellee ________________________________________________________________________