Excalibur Energy Co. v. Rochman
| Decision Date | 18 August 2014 |
| Docket Number | No. 5–13–0524.,5–13–0524. |
| Citation | 22 N.E.3d 322 |
| Parties | EXCALIBUR ENERGY COMPANY, Plaintiff–Appellee, v. Marilyn ROCHMAN, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
Mindy S. Salyer, Amanda L. Moressi, Brittney B. Rykovich, Salyer Law Offices, LLC, Chicago, IL; William L. Broom III, Patricia A. Small, Barrett, Twomey, Broom, Hughes & Hoke, LLP, Carbondale, IL, Attorneys for Appellant.
Jana Yocom, Jana Yocom, P.C., Mt. Vernon, IL, Attorney for Appellee.
delivered the judgment of the court, with 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.
¶ 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 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.
¶ 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 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 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.
¶ 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, 235 Ill.Dec. 905, 706 N.E.2d 460 (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, 180 Ill.Dec. 691, 607 N.E.2d 1204 (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, 343 Ill.Dec. 1, 934 N.E.2d 1 (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...
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