In re County Treasurer

• Decision Date: 05 June 2007
• Docket Number: No. 2-05-1209.,2-05-1209.
• Parties: In re Application of the COUNTY TREASURER AND EX OFFICIO COUNTY COLLECTOR, for Judgment and Order of Sale Against Real Property Returned Delinquent for Nonpayment of General Taxes for the Year 1998 and Prior Years (AAM/US Bank LLC, Petitioner-Appellant, v. The Lake Carroll Association, Respondent-Appellee).
• Court: United States Appellate Court of Illinois

869 N.E.2d 1065

In re Application of the COUNTY TREASURER AND EX OFFICIO COUNTY COLLECTOR, for Judgment and Order of Sale Against Real Property Returned Delinquent for Nonpayment of General Taxes for the Year 1998 and Prior Years (AAM/US Bank LLC, Petitioner-Appellant, v. The Lake Carroll Association, Respondent-Appellee).

No. 2-05-1209.

Appellate Court of Illinois, Second District.

June 5, 2007.

Thomas H. James, James & Associates, Forreston, for AAM/US Bank LLC.

James P. Arrigo, David J. Freeman, Tressler, Soderstrom, Maloney & Priess, Bolingbrook, for The Lake Carroll Association.

Justice KAPALA¹ delivered the opinion of the court:

Petitioner, AAM/US Bank LLC, appeals from a November 8, 2005, order of the circuit court of Carroll County denying its motion for summary judgment and granting that of respondent, the Lake Carroll Association. For the reasons that follow, we affirm in part, reverse in part, and remand.

I. BACKGROUND

On August 5, 2002, petitioner filed a petition for tax deed for 16 parcels of real estate in Carroll County. On February 11, 2003, the trial court granted the petition and issued petitioner an "Order for Issuance of Tax Deed" (Tax Deed Order) for 15 of the 16 properties.² Each order required "that the Carroll County Clerk do forthwith make, execute, and deliver to said Petitioner upon surrender to said County Clerk of the Certificate of Purchase delivered to the original purchaser, a good and sufficient deed conveying to said Petitioner" the real estate described in the order.

Following the trial court's February 11, 2003, orders, petitioner was issued tax deeds for the properties on various dates, beginning on July 3, 2003. Petitioner obtained other deeds on July 25, 2003, October 1, 2003, October 14, 2003, and November 4, 2003. On the same dates these deeds were issued, they were recorded.

On September 10, 2003, petitioner filed a motion for declaratory judgment concerning respondent's claims for homeowners' assessment fees on the 15 properties. In its motion, petitioner requested a declaration that it would not be responsible for the homeowners' assessment fees until it submitted each order to the county clerk, who would then issue a deed and record the deed with the county recorder. In response, respondent argued that petitioner was obligated to pay assessment fees on the properties as of February 11, 2003, when the Tax Deed Orders were entered.

On October 29, 2003, the trial court denied petitioner's motion for declaratory judgment and found that the properties were subject to homeowners' assessment fees that accrued since February 11, 2003, the date of the Tax Deed Orders. However, on May 14, 2004, the trial court granted petitioner's motion to reconsider and vacated its October 29, 2003, order. The trial court also granted petitioner's motion for leave to file an amended motion for declaratory judgment as a writ of assistance. In addition, the trial court granted petitioner's motion to consolidate the pending case regarding the 15 properties discussed above (No. 02-TX-29) with petitioner's other pending tax cases involving properties subject to respondent's assessment fees (No. 01-TX-9, No. 01-TX-10, No. 01-TX-13, No. 02-TX-26, No. 03-TX-10, No. 03-TX-11, No. 03-TX-12, No. 03-TX-13, No. 03-TX-14).³

On June 15, 2004, petitioner filed its amended motion, entitled "Amended Application in Writ of Assistance for Declaratory and Other Relief; and Claim for Unjust Enrichment." In its amended application, petitioner sought a declaration that it was not liable for any of respondent's assessment fees, past, present, or future, because the assessment obligations were not covenants running with the land and the covenant of assessments contained in the "Declaration of Restrictive Covenants, Lake Carroll" (Declaration) violated the rule against perpetuities. Petitioner also alleged that even if respondent could properly charge assessment fees upon the properties at issue, petitioner was not liable for the assessment fees that accrued between the date of the Tax Deed Orders and the dates the deeds were recorded. Petitioner also requested that any and all assessments it paid to respondent for the properties at issue be returned with prejudgment and postjudgment interest.

Petitioner attached the Declaration to its amended application. The Declaration contains the covenants and restrictions that pertain to the land within the Lake Carroll Development. The Declaration expressly authorizes respondent to "levy annual assessments against all Lots in the Development." The Declaration states that any unpaid assessments may become a lien on the property. The Declaration also provides that its terms are intended "to operate as covenants running with the land for the benefit of each and all other such Lots and Parcels in the Development and their respective owners, present and future." The Declaration is dated May 15, 1972, and states that it shall exist "until January 1, 1995, after which the same shall be [automatically] extended for successive periods of ten (10) years each."

On July 11, 2005, respondent moved for summary judgment, arguing that there was no genuine issue of material fact and that petitioner's amended application for declaratory judgment and claim of unjust enrichment should be denied as a matter of law. On August 29, 2005, petitioner also filed a motion for summary judgment. On November 8, 2005, the trial court granted respondent's motion for summary judgment and denied petitioner's motion for summary judgment. The trial court held that the homeowners' assessments were covenants running with the land and did not run afoul of the rule against perpetuities. The trial court further held that once a person obtains an order for the issuance of a tax deed, he has the right to obtain a tax deed and record it that day, and his liability for the assessments relates back to the date of the order for the issuance of the tax deed. Petitioner now appeals the order of the trial court. The trial court has stayed its judgment pending the mandate of this court.

II. DISCUSSION

Although petitioner separates its argument on appeal into five different issues, we believe these issues condense into two basic contentions. First, petitioner contends that it is not liable for any past, present, or future assessments on the properties, even following the recording of its tax deeds, because (1) the tax deeds were purchased free and clear of any restrictions and assessments, and any assessment fees sought by respondent were eliminated upon issuance of the tax deeds; (2) respondent has waived or is estopped from collecting assessments, due to its failure to pursue its right to those assessments at the tax deed proceedings; and (3) the covenant of assessments in the Declaration is void under the rule against perpetuities. Second, petitioner contends that even if it is liable for assessment fees, the trial court incorrectly chose the date of the Tax Deed Orders, rather than the dates of recording of the tax deeds, as the date the assessments began to accrue. Based on these two contentions, petitioner also contends that respondent owes petitioner prejudgment and postjudgment interest and was unjustly enriched by petitioner's payment of the assessments. We will address the second issue first, as it will help to illustrate when title to the properties vested in petitioner. The nature and extent of the titles are relevant to the relative merits of the first issue.

"Summary judgment is proper if, when viewed in the light most favorable to the nonmoving party, the pleadings, affidavits, depositions, and admissions on file demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Allegis Realty Investors v. Novak, 223 Ill.2d 318, 330, 307 Ill.Dec. 592, 860 N.E.2d 246 (2006). When parties file cross-motions for summary judgment, they agree that no material issue of fact exists and only a question of law is involved. Board of Education v. Cunningham, 346 Ill. App.3d 1027, 1030, 282 Ill.Dec. 631, 806 N.E.2d 1219 (2004). In such a case, we review de novo the trial court's decision. Cunningham, 346 Ill.App.3d at 1030, 282 Ill.Dec. 631, 806 N.E.2d 1219.

As a preliminary matter, we must address respondent's motion to strike the "Nature of the Case" section of petitioner's brief. Respondent argues that this section of petitioner's brief is not a simple introductory paragraph but rather is composed of self-serving, conclusory, and argumentative statements. Petitioner responds that respondent's motion to strike should be denied because it was not filed separately pursuant to Supreme Court Rule 361 (210 Ill.2d R. 361), and that, despite being 4½ pages long, the "Nature of the Case" section was not too long compared with the length of its brief.

Supreme Court Rule 341(h)(2) states that an appellant's brief should contain:

"(2) An introductory paragraph stating (i) the nature of the action and of the judgment appealed from and whether the judgment is based upon the verdict of a jury, and (ii) whether any question is raised on the pleadings and, if so, the nature of the question.

Illustration:

`This action was brought to recover damages occasioned by the alleged negligence of the respondent in driving his automobile. The jury rendered a verdict for the plaintiff upon which the court entered the judgment from which this appeal is taken. No questions are raised on the pleadings.'" 210 Ill.2d R. 341(h)(2).

We agree with respondent that petitioner's 4½-page "Nature of the Case" section far exceeds the concept of an introductory paragraph and violates the direction of Rule 341(h)(2). However, "`[t]he striking of an appellate brief, in whole or in part, is a harsh sanction and is appropriate only when the alleged violations of procedural rules interfere with or preclude review.'" In re Detention of Powell, 217 Ill.2d 123, 132, 298 Ill.Dec. 361...