Ball v. County of Cook

• Decision Date: 12 September 2008
• Docket Number: No. 1-06-3734.,1-06-3734.
• Citation: Ball v. County of Cook, 896 N.E.2d 334, 385 Ill. App. 3d 103, 324 Ill.Dec. 548 (Ill. App. 2008)
• Parties: Robert C. BALL, Cornelius King, Sr., James Stevens, and Alice Weed, Indiv. and on Behalf of Others Similarly Situated; and the State of Illinois ex rel. Charles D. Levy, Plaintiffs-Appellants, v. The COUNTY OF COOK, a Body Politic and Corporate; Edward J. Rosewell, Indiv. and as Former Treasurer of Cook County; and Maria Pappas, as Treasurer of Cook County, Defendants-Appellees.
• Court: Appellate Court of Illinois

896 N.E.2d 334

385 Ill. App. 3d 103

Robert C. BALL, Cornelius King, Sr., James Stevens, and Alice Weed, Indiv. and on Behalf of Others Similarly Situated; and the State of Illinois ex rel. Charles D. Levy, Plaintiffs-Appellants, v.The COUNTY OF COOK, a Body Politic and Corporate; Edward J. Rosewell, Indiv. and as FormerTreasurer of Cook County; and Maria Pappas, as Treasurer of Cook County, Defendants-Appellees.

No. 1-06-3734.

Appellate Court of Illinois, First District, Sixth Division.

September 12, 2008.

John G. Jacobs, Bryan G. Kolton, The Jacobs Law Firm, Chtd., Chicago, IL; Edward T. Joyce, Rowena T. Parma, Edward T. Joyce & Associates, P.C., Chicago, IL, for Appellant.

Richard A. Devine, State's Atty. for Cook County, Chicago, IL (Patrick T. Driscoll, Jr., Deputy State's Atty. Chief, Civil Actions Bureau, Michael C. Prinzi, Paul A. Castiglione, Asst. State's Attys., of Counsel), for Appellee.

Justice CAHILLdelivered the opinion of the court:

Plaintiffs appeal the dismissal of their third amended class-action complaint against defendantsCook County, its former treasurer Edward J. Rosewell and its current treasurer Maria Pappas.Plaintiffs alleged defendants illegally failed to notify them that they were entitled to refunds of overpaid property taxes.Defendants moved to dismiss the complaint under section 2-619 of the Code of Civil Procedure(735 ILCS 5/2-619(West 2006)).The trial court granted the motion.Plaintiffs appeal.We affirm.

Plaintiffs first filed a complaint in 1999.They filed amended complaints in 2001 and 2003.Ball alleged he paid his 1987Cook County real estate tax bill without claiming the homestead exemption to which he was entitled.In 1990, with the help of plaintiff Levy, owner of Refund Research Associates, Inc., Ball claimed his homestead exemption and sought a refund of the excess taxes.The Cook County assessor issued a "certificate of error."The circuit court certified the certificate of error in the amount of $338.18.Despite this, Ball was not notified of the certificate of error nor did he receive a refund.King and Weed made similar allegations as to the 1987 tax year.Stevens' allegations related to tax year 1989.

There were eight counts in plaintiffs' third amended complaint: (1) conversion/theft; (2) fraud/constructive fraud; (3) breach of fiduciary duties; (4) conspiracy; (5) unjust enrichment, (6) constructive trust; (7) accounting; and (8) a qui tam action on behalf of the State and Levy under the Whistleblower Reward and Protection Act (Whistleblower Act)(740 ILCS 175/4(West 2006)), alleging that defendants had violated the Uniform Disposition of Unclaimed Property Act (Unclaimed Property Act)(765 ILCS 1025/1 et seq.(West 2006)).The trial court dismissed all counts of the complaint on defendants' motion after a hearing on November 22, 2006.

On appeal, plaintiffs raise six issues: (1)they are entitled to refunds under section 14-15 of the Property Tax Code(35 ILCS 200/14-15(West 2006)), which governs certificates of error when the assessor discovers an assessment error; (2) their claims are not barred by the five-year statute of limitation in section 20-175 of the Property Tax Code(35 ILCS 200/20-175(West 2006)), which governs refunds for erroneous assessments and overpayments; (3) alternatively, the unpaid refunds constitute abandoned property and defendants violated the Unclaimed Property Act(765 ILCS 1025/1 et seq.(West 2006)) by failing to notify plaintiffs and return their property; (4)plaintiffs should be allowed to recover their refunds through one or more of seven common law remedies; (5) this matter is not barred by the preclusion doctrines of the law of the case, res judicata and collateral estoppel based on earlier litigation involving Levy and Pappas; and (6)the trial court erred in dismissing plaintiff Levy's claim under the Whistleblower Act(740 ILCS 175/1 et seq.(West 2006)).

Our review of the dismissal of a complaint under section 2-619 of the Code of Civil Procedure(735 ILCS 5/2-619(West 2006)) is de novo.So is our review of questions of statutory interpretation.Alvarez v. Pappas,229 Ill.2d 217, 220, 321 Ill.Dec. 712, 890 N.E.2d 434, 437(2008).

Plaintiffs first argue they are entitled to refunds under a certificate of error in section 14-15 of the Property Tax Code(35 ILCS 200/14-15(West 2006)).This section states that when the county assessor discovers an error in a property tax assessment, the assessor "shall execute a certificate setting forth the nature and cause of the error."35 ILCS 200/14-15(West 2006)).Next, "[a] certificate of error * * * shall be given effect by the county treasurer, who shall mark the tax books and, upon receipt of [a certificate] from the county assessor or the county assessor and the board of review * * * shall issue refunds to the taxpayer accordingly."35 ILCS 200/14-15(West 2006)).

It is settled Illinois law that a taxpayer has no statutory or constitutional right to participate in a certificate of error procedure.In re Application of the Cook County Treasurer for the 1968, 1973, 1980 & Other Tax Years,172 Ill.App.3d 192, 199, 122 Ill.Dec. 472, 526 N.E.2d 865(1988), citing, inter alia, Chicago Sheraton Corp. v. Zaban,71 Ill.2d 85, 15 Ill.Dec. 634, 373 N.E.2d 1318(1978).In Chicago Sheraton Corp., our supreme court held that the certificate of error procedure was separate and distinct from the refund procedure available to the taxpayer.Chicago Sheraton Corp.,71 Ill.2d at 91, 15 Ill.Dec 634, 373 N.E.2d 1318.A taxpayer has no private cause of action under the statutory provisions for certificates of error.Chicago Sheraton Corp.,71 Ill.2d at 91, 15 Ill. Dec. 634, 373 N.E.2d 1318."[T]he General Assembly intended the certificate of error procedure to be an expeditious summary process, without participation by the taxpayer, for correcting the assessor's errors."Chicago Sheraton Corp.,71 Ill.2d at 91, 15 Ill.Dec. 634, 373 N.E.2d 1318.A taxpayer who claims an incorrect assessment or exemption has a remedy elsewhere in the statute.Chicago Sheraton Corp.,71 Ill.2d at 90-91, 15 Ill.Dec. 634, 373 N.E.2d 1318.

In the Property Tax Code, the statutory remedy for refunds of erroneous assessments or overpayments appears in section 20-175(35 ILCS 200/20-175(West 2006)).Alvarez,229 Ill.2d at 221, 321 Ill.Dec. 712, 890 N.E.2d 434.Section 20-175 provides:

"If any property is twice assessed for the same year, or assessed before it becomes taxable, and the erroneously assessed taxes have been paid * * * or have been overpaid by the same claimant or by different claimants, the County Collector, upon being satisfied of the facts in the case, shall refund the taxes to the proper claimant.* * * A claim for refund shall not be allowed unless a petition is filed within 5 years from the date the right to a refund arose."(Emphasis added.)35 ILCS 200/20-175(West 2006).

Plaintiffs argue that this section is inapplicable to their claims because it applies only to "property twice assessed for the same year, or assessed before it becomes taxable, and the erroneously assessed taxes have been paid"(35 ILCS 200/20-175(West 2006)).They argue that because the property at issue here was neither twice assessed nor assessed before it became taxable, section 20-175(35 ILCS 200/20-175(West 2006)) does not control.But Alvarez answers this argument.There, our supreme court decided that "to give effect to the legislature's intent, we must construe section 20-175 as permitting refunds of overpaid taxes, regardless of whether any erroneous assessment of property is involved."Alvarez,229 Ill.2d at 233-34, 321 Ill.Dec. 712, 890 N.E.2d 434.

"[T]he legislature has established a mechanism for obtaining a refund of overpaid taxes and taxpayers must comply with its terms to receive a refund."Alvarez,229 Ill.2d at 234, 321 Ill.Dec. 712, 890 N.E.2d 434.The method is set forth in section 20-175, which includes a limitation period.Alvarez,229 Ill.2d at 234, 321 Ill.Dec. 712, 890 N.E.2d 434.Refunds of overpaid taxes are barred if the claims were made more than five years after the plaintiff made the overpayments.Alvarez,229 Ill.2d at 234, 321 Ill.Dec. 712, 890 N.E.2d 434."[T]he right to request a refund of taxes generally accrues at the time the taxes are paid."Alvarez,229 Ill.2d at 234, 321 Ill.Dec. 712, 890 N.E.2d 434, citingSundance Homes, Inc. v. County of Du Page,195 Ill.2d 257, 267, 253 Ill.Dec. 806, 746 N.E.2d 254(2001).Where it is undisputed that a request for a refund is made more than five years after the taxes were paid, the request is barred.Alvarez,229 Ill.2d at 234, 321 Ill.Dec. 712, 890 N.E.2d 434.Plaintiffs have no answer to the holding in Alvarez.

Here, plaintiffs paid the taxes at issue for tax years 1987 and 1989, payable in 1988 and 1990, respectively.The refunds they seek are available only through section 20-175 of the Property Tax Code(35 ILCS 200/20-175(West 2006)).Alvarez,229 Ill.2d at 234, 321 Ill.Dec. 712, 890 N.E.2d 434.Plaintiffs did not file their complaint until 1999, 11 and 9 years, respectively, after their taxes were paid.Under the five-year statute of limitation in section 20-175, plaintiffs' claims are barred.

Plaintiffs alternatively argue that their overpayments should have been treated as abandoned property under the Unclaimed Property Act(765 ILCS 1025/1 et seq.(West 2006)).They rely on sections 8and8.1 of the Unclaimed Property Act, which provide that funds and tangible property held for an owner by a public authority or governmental unit for more than seven years are presumed abandoned.765 ILCS 1025/8, 8.1 (West 2006).Plaintiffs maintain that because they were entitled to refunds in the early 1990s, their overpayments should have been considered abandoned property after seven years.They contend that defendants, as holders of abandoned property, were required to report and remit all abandoned property to the state...