Palos Bank & Trust Co. v. Ill. Prop. Tax Appeal Bd.

• Decision Date: 30 September 2015
• Docket Number: No. 1–14–3324.,1–14–3324.
• Citation: 42 N.E.3d 40
• Parties: PALOS BANK AND TRUST COMPANY, as Trustee Under Trust No. 1–5530, Plaintiff–Appellant, v. ILLINOIS PROPERTY TAX APPEAL BOARD and the Cook County Board of Review, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

42 N.E.3d 40

PALOS BANK AND TRUST COMPANY, as Trustee Under Trust No. 1–5530, Plaintiff–Appellant

v.ILLINOIS PROPERTY TAX APPEAL BOARD and the Cook County Board of Review, Defendants–Appellees.

No. 1–14–3324.

Appellate Court of Illinois, First District, Third Division.

Sept. 30, 2015.

Carey, Filter, White & Boland, Chicago (Edmund P. Boland and Michael J. Murray, of counsel), for appellant.

Lisa Madigan, Attorney General, Chicago (Carolyn E. Shapiro, Solicitor General, and Valerie Quinn, Assistant Attorney General, of counsel), for appellee Illinois Property Tax Appeal Board.

Anita M. Alvarez, State's Attorney, Chicago (Daniel F. Gallagher, Benjamin Bilton, and Julie Ann Sebastian, Assistant State's Attorneys, of counsel), for appellee Cook County Board of Review.

OPINION

Presiding Justice MASON

delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Palos Bank filed three administrative appeals to the Property Tax Appeal Board (PTAB) challenging the tax assessment of its property by the Cook County Board of Review (Board). The PTAB denied relief in all three cases. Palos then filed three separate complaints in the circuit court seeking administrative review pursuant to the Administrative Review Law (735 ILCS 5/3–101 et seq.

(West 2012) (Act)). Following consolidation of the actions, the circuit court dismissed the appeal due to Palos' failure to effect service upon the Board as required by the Act. Palos appeals, arguing that (1) its good-faith effort to effect proper service should preclude dismissal, and (2) the Board waived any objection to jurisdiction by appearing and seeking affirmative relief from the circuit court. Because the requirements of the Act must be strictly adhered to and cannot be waived, we affirm the dismissal of Palos' complaints.

¶ 2 BACKGROUND

¶ 3 Palos filed three administrative appeals to the PTAB contending that its property, an industrial complex, was incorrectly assessed for the tax years 2008, 2009, and 2010. In three separate decisions all issued on August 23, 2013, the PTAB found that no change in the Board's assessment of the property was warranted. Each of the decisions identified the parties of record as Palos and the Board.

¶ 4 Thirty-four days later, on September 26, 2013, Palos filed three separate complaints in the circuit court seeking judicial review of the PTAB's administrative decisions. The complaint involving tax year 2008 was docketed as No. 2013 COPT 07 (07 case), the complaint involving tax year 2009 was docketed as No. 2013 COPT 08 (08 case), and the complaint involving tax year 2010 was docketed as No. 2013 COPT 09 (09 case). In all three complaints, Palos named the PTAB and the Board as defendants and explicitly noted that the Board was the party “of record” to the PTAB proceedings.

¶ 5 On the same day, Palos filed a “Summons in Administrative Review” form for each complaint. In the caption at the top of each form, Palos listed the defendants to the action as the PTAB and the Board. But the “Certificate of Mailing” section of each form indicated that a copy of the summons was sent to the PTAB and Anita Alvarez, the Cook County State's Attorney.¹ The record also contains a printout of the circuit court's online docket showing that certified mail was issued to the PTAB and the State's Attorney on September 26, 2013.

¶ 6 The PTAB filed an appearance in all three cases. The Board filed an appearance in the 09 case but not in the other two cases. The Board then filed a motion to dismiss the 09 complaint pursuant to section 2–619 of the Code of Civil Procedure

(735 ILCS 5/2–619 (West 2012) ) because summons had been served on the State's attorney rather than the Board and because Palos failed to file an affidavit designating the last known address of each defendant, as required by the Act. The PTAB adopted the Board's motion to dismiss the 09 case and also filed section 2–619 motions to dismiss the 07 and 08 cases.

¶ 7 Before the motions to dismiss were resolved, the three cases were consolidated. A month later, the circuit court held a hearing on the combined motions to dismiss. The Board's counsel stated for the record that she was appearing only in the 09 case. She made no argument before the court but rested upon the brief that she had previously submitted in support of her motion to dismiss.

¶ 8 After hearing arguments from Palos and the PTAB, the circuit court dismissed the action, finding that Palos had not strictly complied with the Act and that Palos' lack of compliance mandated dismissal.

¶ 9 ANALYSIS

¶ 10 Palos contends that the circuit court erred in dismissing its action for administrative review. We review a section 2–619

dismissal de novo.

Barber v. American Airlines, Inc., 241 Ill.2d 450, 455, 350 Ill.Dec. 535, 948 N.E.2d 1042 (2011).

¶ 11 It is apparent from the record that Palos did not strictly comply with the service requirements of the Act.² Section 3–103

provides that “[e]very action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision.” (Emphasis added.) 735 ILCS 5/3–103 (West 2012). Because the Board was a party to the administrative hearing, Palos was required to both name the Board as a defendant and serve it with summons. 735 ILCS 5/3–107 (West 2012). Although Palos did name the Board, it erroneously served the State's Attorney, who was not a party to the proceedings before the PTAB and did not represent the Board in those proceedings. Additionally, section 3–105 of the Act requires that a plaintiff file with the circuit court an affidavit that designates “the last known address of each defendant upon whom service shall be made.” 735 ILCS 5/3–105 (West 2012). The record contains no such affidavit from Palos.

¶ 12 Defendants argue that Palos' failure to comply with the requirements of the Act warranted dismissal of the complaints for administrative review. Because the Act is a departure from the common law, the procedures it establishes must be strictly complied with. Ultsch v. Illinois Municipal Retirement Fund, 226 Ill.2d 169, 179, 314 Ill.Dec. 91, 874 N.E.2d 1 (2007)

. Indeed, the need for strict compliance is explicitly set forth in the statute: “Unless review is sought of an administrative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision.” 735 ILCS 5/3–102 (West 2012). This court has held that the Act's provisions regarding joinder of necessary parties and service of summons upon those parties are “mandatory, interlocking and nonwaivable.” Gilty v. Village of Oak Park Board of Fire & Police Commissioners, 218 Ill.App.3d 1078, 1083, 161 Ill.Dec. 648, 578 N.E.2d 1294 (1991).

¶ 13 Palos nevertheless contends that the circuit court erred in dismissing its action for two reasons: first, since Palos substantially complied with the requirements of the Act, the good-faith exception should excuse its errors in service; and second, the Board waived the issue of personal jurisdiction by seeking affirmative relief from the circuit court and by voluntarily appearing in the consolidated case. We consider these arguments in turn.

¶ 14 Substantial Compliance and the Good–Faith Exception

¶ 15 Palos first argues that its failure to serve the Board, which it characterizes as a minor technical defect, does not warrant dismissal because Palos made a good-faith effort to comply with the statute and substantially complied with its requirements. We disagree because, as discussed above, the Act does not merely require substantial compliance; it requires strict compliance.

¶ 16 On this point, Gunther v. Illinois Civil Service Comm'n, 344 Ill.App.3d 912, 280 Ill.Dec. 127, 801 N.E.2d 1072 (2003)

, is instructive. The Gunther plaintiff filed a timely complaint for administrative review in the circuit court, naming all necessary parties, including the Illinois Department of Transportation (IDOT). In the attached summons, he named IDOT as a party, but he did not list IDOT's name or address under the “ ‘Certificate of Mailing’ ” section at the bottom. Id. at 913, 280 Ill.Dec. 127, 801 N.E.2d 1072. Instead, he listed the name and address of IDOT's counsel, the Attorney General. IDOT was never served with summons. Id. The Gunther court held that plaintiff's failure to strictly adhere to the requirements of the Act required dismissal of the action. Id. at 914, 280 Ill.Dec. 127, 801 N.E.2d 1072. The court rejected plaintiff's argument that dismissal was not warranted because he was in substantial compliance with the statute and his error was de minimis.

Id. at 914–15, 280 Ill.Dec. 127, 801 N.E.2d 1072. Likewise, Palos' partial compliance with the statute, which is nearly identical to the Gunther plaintiff's “substantial compliance,” does not preclude dismissal of its suit.

¶ 17 Courts have recognized a narrow good-faith exception in cases where a plaintiff made a good-faith effort to comply with the Act but failed to do so because of errors committed in the clerk's office or other factors beyond the plaintiff's control. Burns v. Department of Employment Security, 342 Ill.App.3d 780, 792, 277 Ill.Dec. 304, 795 N.E.2d 972 (2003)

. But Palos has not identified any factors beyond its control that prevented it from serving the Board in a timely fashion. Mere “substantial compliance” is not enough to trigger the good-faith exception. Gunther , 344 Ill.App.3d at 915, 280 Ill.Dec. 127, 801 N.E.2d 1072.

¶ 18 The cases cited by Palos in which the good-faith exception was applied are distinguishable. In Azim v. Department of Central Management Services, 164 Ill.App.3d 298, 303, 115 Ill.Dec. 307, 517 N.E.2d 718 (1987)

, plaintiffs' failure to issue summons within the statutory 35–day period did not mandate dismissal where “[t]he delay in the...