Bigelow Group, Inc. v. Rickert

• Decision Date: 24 October 2007
• Docket Number: No. 2-06-0879.,2-06-0879.
• Citation: 877 N.E.2d 1171
• Parties: The BIGELOW GROUP, INC., Bigelow-Aurora, LLC, John Prusko, Darren J. Finnegan and April K. Finnegan, Michael Pfile and Heather Spring, Michael Hammond and Kirsten Hammond, Verdie Samko, Peter N. Rosch, Angela Kokkinos, Kristi Stone and Ryan Stone, DeKalvin Epps and Charlene Epps, Michael Sanders and Jana Blumberg, Keith P. Campbell and Nicole Campbell, Bryan and J. Sirota, Nick Marasco and Lauren Marasco, and Sherman Carter and Marsha Carter, Plaintiffs-Appellants, v. David J. RICKERT, Kane County Collector, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

877 N.E.2d 1171

The BIGELOW GROUP, INC., Bigelow-Aurora, LLC, John Prusko, Darren J. Finnegan and April K. Finnegan, Michael Pfile and Heather Spring, Michael Hammond and Kirsten Hammond, Verdie Samko, Peter N. Rosch, Angela Kokkinos, Kristi Stone and Ryan Stone, DeKalvin Epps and Charlene Epps, Michael Sanders and Jana Blumberg, Keith P. Campbell and Nicole Campbell, Bryan and J. Sirota, Nick Marasco and Lauren Marasco, and Sherman Carter and Marsha Carter, Plaintiffs-Appellants, v. David J. RICKERT, Kane County Collector, Defendant-Appellee.

No. 2-06-0879.

Appellate Court of Illinois, Second District.

October 24, 2007.

Stephen M. Cooper, Peter M. Storm, Philip J. Piscopo, Law Offices of Cooper & Storm, Geneva, for Bigelow-Aurora, LLC, Jana Blumberg, Keith P. Campbell, Nicole Campbell, Marsha Carter, Sherman Carter, Charlene Epps, DeKalvin Epps, April K. Finnegan, Darren J. Finnegan, Kirsten Hammond, Michael Hammond, Angela Kokkinos, Lauren Marasco, Nick Marasco, Michael Pfile, John Prusko, Peter N. Rosch, Verdie Samko, Michael Sanders, Bryan Sirota, J. Sirota, Heather Spring, Kristi Stone, Ryan Stone, The Bigelow Group, Inc.

John A. Barsanti, Kane County State's Attorney, St. Charles, Joseph F. Lulves, Assistant State's Attorney, Geneva, for David J. Rickert.

Justice O'MALLEY delivered the opinion of the court:

Plaintiffs, the Bigelow Group, Inc. (Bigelow), et al.,¹ timely appeal the trial court's decision to grant summary judgment in favor of defendant, Kane County Collector David J. Rickert, on plaintiff's complaint, which sought an injunction against defendant's practice of refusing to allow property tax payment by specification and a declaration that defendant's refusal to accept payment by specification violated the Property Tax Code (Code) (35 ILCS 200/1 et seq. (West 2004)), the due process clauses of the United States and Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const.1970, art. I, § 2), and the equal protection guarantees of the United States and Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const.1970, art. I, § 2). For the reasons that follow, we affirm.

Though the parties' cross-motions for summary judgment include transcripts of depositions from officials involved in the tax assessment and collection process as well as other documentary evidence, the parties do not contest the relevant facts. Accordingly, only a brief recitation of those facts is necessary for an understanding of the issues presented in this appeal. Bigelow, a housebuilder that sold homes to the individual plaintiffs, was in the practice of dividing its developments into several lots (each of which received its own property index number (PIN) from the Aurora Township assessor), dividing those lots into subparcels, building a home on each subparcel, and then selling the subparcels to its customers. The assessor would assign an individual PIN to each subparcel upon recording its conveyance. The customers would later pay the full year's property tax bill for their respective subparcel, but, at the closing of the sale of each subparcel, Bigelow would give its customers a credit for the portion of the year Bigelow had owned the property.

In Kane County, if a parcel is divided after September 10 of a given year, the new PINs for the divided parcels do not become effective for taxation purposes until the next assessment year. Normally, then, since subparcels sold by Bigelow after September 10 would not be assigned individual PINs (and, instead, the lot containing all of the subparcels would remain under one PIN), Bigelow, as owner of the lot, would have been required to pay the year's taxes for the entire lot, including taxes for any already-sold subparcels within the lot. In previous years, defendant accommodated Bigelow by allowing tax payment by specification, a procedure by which taxpayers who own separate portions of a larger property (with a single PIN) may specify their individual tax liability for their portions of the parcel and pay their taxes separately. However, in 2004, defendant stopped accepting payment by specification. (In his deposition, which was attached to defendant's motion for summary judgment, defendant stated that Bigelow was the only taxpayer that requested or used payment by specification prior to his decision to stop accepting it.) Thus, in 2004 and 2005, for any subparcels Bigelow sold after September 10 of the previous year, defendant sent Bigelow a bill for taxes on the undivided lots containing the subparcels. Bigelow then collected taxes from the homeowners in order to satisfy the tax liability on the property, but it did so only after several parcels were placed in a tax sale due to their tax delinquency and after interest and penalties on the delinquency had been incurred.

Plaintiffs filed a complaint seeking to recover their interest and penalty damages and also to require defendant to accept payment by specification, but, after both parties filed motions for summary judgment, the trial court entered summary judgment in favor of defendant. After the trial court denied their motion to reconsider, plaintiffs timely appealed.

All of plaintiffs' appellate arguments are directed at the propriety of the trial court's decision to grant summary judgment in favor of defendant. "Summary judgment is proper where, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill.2d 294, 305, 297 Ill.Dec. 319, 837 N.E.2d 99 (2005). "The function of a reviewing court on appeal from a grant of summary judgment is limited to determining whether the trial court correctly concluded that no genuine issue of material fact was raised and, if none was raised, whether judgment as a matter of law was correctly entered." American Family Mutual Insurance Co. v. Page, 366 Ill.App.3d 1112, 1115, 304 Ill.Dec. 418, 852 N.E.2d 874 (2006). The propriety of a trial court's decision to grant summary judgment presents a question of law, which we review de novo. Page, 366 Ill.App.3d at 1115, 304 Ill.Dec. 418, 852 N.E.2d 874.

At the outset, we note that defendant devotes a considerable portion of his appellate brief to the argument that, regardless of the merits of plaintiffs' contentions, we should not consider them, because plaintiffs did not follow the proper procedure under the Code for tax objections. See 35 ILCS 200/23-5 (West 2004) (outlining procedure for payment of taxes under protest). Plaintiffs respond that this procedure does not apply, because they are not objecting to either the imposition or the amount of taxes but rather to defendant's method of collecting taxes. However, we do not reach this issue, because, as discussed below, even assuming this action to be a proper vehicle for plaintiffs' complaint, we reject plaintiffs' arguments on their merits.

Plaintiffs' first argument is that defendant's refusal to allow payment by specification violates his duties under the Code. Plaintiffs contend that defendant's "utter refusal to act even on reasonable requests" is an "abdication of his duties" under the Code, because it constitutes his failure to make a policy to review requests for payment by specification. Before determining whether defendant's actions violate the Code as plaintiffs contend, we note our disagreement with their characterization of the facts. Defendant does, in fact, have a policy regarding payment by specification: he does not allow it in any instance. Therefore, defendant is not "refus[ing] to act" on plaintiffs' requests for payment by specification; rather, he is denying their requests. Likewise, defendant's policy is not, as plaintiffs contend, a "refusal to exercise his discretion." Defendant's policy is an exercise of his discretion; the policy simply leads to a result plaintiffs do not favor. The question presented here is whether this policy violates the Code. That question turns on our interpretation of the relevant provision of the Code.

Section 20-210 of the Code, which governs payment by specification, provides as follows:

"Taxes payable in installments; payment under specification. Except as otherwise provided in Section 21-30, current taxes shall be payable in 2 equal installments. * * * The collector may receive taxes on part of any property charged with taxes when a particular specification of the part is furnished. If the tax on the remainder of the property remains unpaid, the collector shall enter that specification in his or her return, so that the part on which the tax remains unpaid may be clearly known. The tax may be paid on an undivided share of property. In that case, the collector shall designate on his or her record upon whose undivided share the tax has been paid." (Emphasis added.) 35 ILCS 200/20-210 (West 2004).

The cardinal rule of statutory interpretation is to ascertain and give effect to the legislative intent, and the best indication of the legislative intent is the language used in the statute. In re Application of the County Treasurer, 351 Ill.App.3d 244, 248, 286 Ill.Dec. 408, 813 N.E.2d 1101 (2004). A court must give statutory language its plain and ordinary meaning, and a court cannot read limitations or conditions into a statute when none are expressed. In re Application of the County Treasurer, 351 Ill.App.3d at 248, 286 Ill.Dec. 408, 813 N.E.2d 1101. "Where the language is unambiguous, the statute must be given effect without resort to other aids of construction." Krautsack v. Anderson, 223 Ill.2d 541, 553, 308 Ill.Dec. 302, 861 N.E.2d 633 (2006). The word "may" ordinarily connotes discretion. Krautsack, 223 Ill.2d at 554, 308 Ill.Dec. 302, 861 N.E.2d 633. Though plaintiffs criticize defendant's reliance on the "mere fact the statute says `may...