Hillers v. Boylan

598 N.E.2d 402, 233 Ill. App. 3d 3, 174 Ill. Dec. 205, 1992 Ill. App. LEXIS 1283
CourtAppellate Court of Illinois
DecidedAugust 13, 1992
DocketNo. 4—91—0935
StatusPublished

This text of 598 N.E.2d 402 (Hillers v. Boylan) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hillers v. Boylan, 598 N.E.2d 402, 233 Ill. App. 3d 3, 174 Ill. Dec. 205, 1992 Ill. App. LEXIS 1283 (Ill. Ct. App. 1992).

Opinion

JUSTICE COOK

delivered the opinion of the court:

Plaintiff, Vera Hillers, filed a class action suit against James Boylan, county treasurer and county collector for McLean County, and against McLean County, seeking an accounting and damages. The complaint alleged the county collector was without authority to impose interest on late installments of real estate taxes for the portion of the month remaining after the taxes were paid. The trial court granted defendants’ motion to dismiss. We affirm.

At some time prior to June 1, 1988, plaintiff received a tax bill from McLean County for general real estate tax due on parcel No. 14—36—35—009. The total tax liability for the first installment was $1,651.13 payable on or before June 3, 1988. Plaintiff paid the first installment on June 22, 1988, plus a penalty of $24.77 assessed by the county collector. The penalty equalled one month’s interest at V-!z%, even though plaintiff’s payment was not delinquent for the entire month.

On February 22, 1990, plaintiff filed a two-count class action complaint. Named as defendants were James E. Boylan, county collector and treasurer of McLean County, and the County of McLean. Count I sought a preliminary and permanent injunction against defendants, prohibiting and enjoining them from the assessment and collection of unlawful penalties on delinquent tax payments. Plaintiff voluntarily nonsuited count I, which is not involved in this appeal. Count II sought an accounting and damages equal to the sum plaintiff claims was illegally collected.

In response to the complaint, defendants filed a section 2— 619 motion to dismiss (see Ill. Rev. Stat. 1989, ch. 110, par. 2—619) on April 30, 1990. The motion to dismiss was based on three grounds relevant to this appeal: (1) a court sitting in equity had no jurisdiction over plaintiff’s complaint; (2) defendants were immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1—101 et seq.)\ and (3) the voluntary-payment doctrine barred recovery by plaintiff. On October 23, 1990, the court granted defendants’ motion to dismiss and allowed plaintiff 21 days to file an amended complaint. On November 15, 1990, plaintiff filed a motion to reconsider and intent to stand on pleadings. Defendants filed a response to the motion to reconsider on December 17, 1990. Plaintiff subsequently waived oral arguments on the motion to reconsider, and on October 25, 1991, the trial court denied the motion to reconsider. Plaintiff, on November 25, 1991, filed a motion for entry of a final order, which order was entered on December 5, 1991. Plaintiff appeals from the trial court’s order dismissing count II with prejudice.

Plaintiff’s first claim is that defendants’ motion to dismiss was improperly granted, because the trial court had jurisdiction. An action concerning the collection of taxes may arise in equity where the tax is unauthorized by law, where the tax is levied upon exempt property, or where there exists no adequate remedy at law. (Inolex Corp. v. Rosewell (1978), 72 Ill. 2d 198, 201-02, 380 N.E.2d 775, 776-77; Santiago v. Kusper (1990), 133 Ill. 2d 318, 324, 549 N.E.2d 1251, 1254.) We find none of these situations exist in this case, and the trial court lacked jurisdiction to grant equitable relief.

Plaintiff paid her taxes and penalty on June 22, 1988, without protest. Defendants claim there is no equity jurisdiction here, because plaintiff is asking for relief which was available by statute. (Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 306 N.E.2d 299; Ames v. Schlaeger (1944), 386 Ill. 160, 166, 53 N.E.2d 937, 939.) The Hlinois legislature has established an extensive and specific statutory method for the calculation, payment, and protest of real estate taxes. Section 224 of the Revenue Act of 1939 (Act) provides that the first installment of real estate tax is due before the first day of June. (Ill. Rev. Stat. 1989, ch. 120, par. 705.) To encourage the prompt payment of the tax, any unpaid installment is subject to interest of lxk% per month. (Ill. Rev. Stat. 1989, ch. 120, par. 705.) By the terms of the Act this penalty interest is a part of the tax. (Ill. Rev. Stat. 1989, ch. 120, par. 482(11).) In order to object to all or any part of the real property tax, a person shall pay all the tax due and include with each payment a writing indicating that the payment is made under protest. (Ill. Rev. Stat. 1989, ch. 120, par. 675.) The court shall then enter a judgment, and if the party protesting the tax is owed money, a refund shall be paid. (Ill. Rev. Stat. 1989, ch. 120, pars. 675, 716.) We hold the trial court did not have equity jurisdiction, because plaintiff had an adequate remedy at law. This result is consistent with the analysis of equity jurisdiction in Santiago and Kousins v. Anderson (1992), 229 Ill. App. 3d 486, 593 N.E.2d 1095 (Kousins III).

Plaintiff also claims the after-payment portion of the interest penalty was unauthorized by law, and therefore the trial court had jurisdiction. The cases most on point are Kousins v. Anderson (1989), 180 Ill. App. 3d 827, 536 N.E.2d 487 (Kousins I), Kousins v. Anderson (1989), 189 Ill. App. 3d 771, 545 N.E.2d 779 (Kousins II), appeal denied (1990), 129 Ill. 2d 564, 550 N.E.2d 557, and Kousins III (229 Ill. App. 3d 486, 593 N.E.2d 1095). The facts, as they were reviewed in Kousins III, were as follows. The taxpayers’ first installment of their 1984 real estate tax was due on June 2, 1985, but was not paid until July 12, 1985. The county assessed a penalty against the taxpayers at the rate of lxk% per month for the entire months of June and July, notwithstanding the first installment was paid during July. The taxpayers alleged any penalty covering the period after the delinquent tax payment was unauthorized by law. The trial court granted the county’s motion to dismiss, holding the taxpayers failed to establish the complained-of penalty was unauthorized by law. Therefore, the court was without equity jurisdiction. Kousins, 229 Ill. App. 3d at 489, 593 N.E.2d at 1097.

Consistent with the supreme court’s decision in Santiago, we have relied on the language of the statute, the long-standing interpretation of the statute, and the legislature’s subsequent amendment of the statute after a contrary judicial construction (which we discuss below), and we find the tax questioned in the case at bar was not unauthorized.

Section 224 of the Act, as it read when the tax in question was assessed, authorized assessment of a monthly interest penalty: “such unpaid first installment shall bear, interest after the first day of June annually at the rate of lx/2% per month for all real property other than farmland.” (Ill. Rev. Stat. 1987, ch. 120, par. 705.) Based on this language we must determine whether this section authorized an interest penalty for the entire month or on a per diem basis through the day the payment was made.

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Related

Kousins v. Anderson
536 N.E.2d 487 (Appellate Court of Illinois, 1989)
Inolex Corp. v. Rosewell
380 N.E.2d 775 (Illinois Supreme Court, 1978)
Santiago v. Kusper
549 N.E.2d 1251 (Illinois Supreme Court, 1990)
Clarendon Associates v. Korzen
306 N.E.2d 299 (Illinois Supreme Court, 1973)
Ames v. Schlaeger
53 N.E.2d 937 (Illinois Supreme Court, 1944)
Kousins v. Anderson
545 N.E.2d 779 (Appellate Court of Illinois, 1989)
Kousins v. Anderson
593 N.E.2d 1095 (Appellate Court of Illinois, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
598 N.E.2d 402, 233 Ill. App. 3d 3, 174 Ill. Dec. 205, 1992 Ill. App. LEXIS 1283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hillers-v-boylan-illappct-1992.