                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Baker v. Harper, 2012 IL App (3d) 110343




Appellate Court            THOMAS G. BAKER, SHARON L. BAKER, and MICHAEL W.
Caption                    BAKER, Plaintiffs-Appellees, v. VICTORIA J. HARPER, Fulton
                           County Treasurer and Collector, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-11-0343


Filed                      March 9, 2012


Held                       Where plaintiffs purchased 163.61 acres of a 225.29-acre parcel of
(Note: This syllabus       farmland and the new parcel was assessed as “rural, vacant, non-farm”
constitutes no part of     property with a value of $165,250 and taxes of $15,372.22, plaintiffs filed
the opinion of the court   an action claiming that the new property should have been assessed as
but has been prepared      farmland, and the trial court entered summary judgment for plaintiffs, the
by the Reporter of         appellate court vacated that judgment and dismissed the appeal by the
Decisions for the          county treasurer and collector, since plaintiffs failed to exhaust their
convenience of the         administrative remedies by not appealing the assessment to the board of
reader.)
                           review and the trial court’s judgment was therefore void.


Decision Under             Appeal from the Circuit Court of Fulton County, No. 10-TX-47; the Hon.
Review                     William C. Davis, Judge, presiding.


Judgment                   Judgment vacated and appeal dismissed.
Counsel on                 John Clark, State’s Attorney, of Lewistown (Patrick Delfino, of State’s
Appeal                     Attorneys Appellate Prosecutor’s Office, of counsel), and Christopher E.
                           Sherer (argued), of Giffin, Winning, Cohen & Bodewes, P.C., of
                           Springfield, for appellant.

                           Steven B. Morgan (argued), of Perbix & Morgan, of Havana, for
                           appellees.


Panel                      PRESIDING JUSTICE SCHMIDT delivered the judgment of the court,
                           with opinion.
                           Justices O’Brien and Wright concurred in the judgment and opinion.



                                             OPINION

¶1         Defendant, Victoria J. Harper, Fulton County treasurer and collector, appeals the trial
        court’s grant of summary judgment to Thomas G. Baker, Sharon L. Baker and Michael W.
        Baker (Taxpayers) on their tax objection complaint. Taxpayers claimed that the tax notice
        was defective, invalidating the tax and negating the need for exhaustion of administrative
        remedies. The trial court agreed and granted summary judgment. Defendant now appeals.

¶2                                             FACTS
¶3          In 2008, Taxpayers purchased 163.61 acres of a 225.29-acre parcel. The original 225-acre
        parcel was assessed as farmland in 2008. A new tax parcel was created for Taxpayers. The
        taxes assessed on the new property in 2009 were $15,372.22. In 2008, the real estate tax for
        the original 225.29 acres was $240.
¶4          Taxpayers received a 2009 assessment notice. It stated that the new property would be
        assessed at $165,250 and that the prior year’s assessed value was $0. The notice further
        identified the fact that the new parcel was classified as “rural, vacant, non-farm” property.
        The notice also stated that Taxpayers had the right to appeal the assessment to the Fulton
        County Board of Review (the Board). Taxpayers did not file an appeal with the Board.
        Instead, they filed a complaint in the circuit court of Fulton County, claiming that the new
        property should have been assessed as farmland, as the original parcel had been assessed.
¶5          Defendant filed a motion to dismiss, asserting that the trial court lacked jurisdiction due
        to Taxpayers’ failure to exhaust their administrative remedies. The trial court denied the
        motion, as well as defendant’s motion to reconsider. It held that exhaustion of remedies did
        not apply due to the defective notice sent to Taxpayers.
¶6          Taxpayers moved for summary judgment, which the trial court granted. Defendant
        appeals.

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¶7                                           ANALYSIS
¶8         Defendant raises two general arguments. First, that the trial court did not have
       jurisdiction to hear the tax objection due to Taxpayers’ failure to exhaust administrative
       remedies. Second, she argues that even if the trial court had jurisdiction, its grant of summary
       judgment was improper where the Property Tax Code (the Code) (35 ILCS 200/1-1 (West
       2010)) states that a failure to give notice required by the Code does not invalidate a tax.
¶9         Taxpayers argue that the exhaustion of administrative remedies requirement is not
       applicable here due to defendant’s failure to give proper statutory notice. They also argue that
       defendant’s failure to properly notify them of the increase renders the tax invalid.
¶ 10       “Where a circuit court determines jurisdictional issues without hearing testimony, we
       review the court’s determination de novo.” In re Marriage of Seffren, 366 Ill. App. 3d 628,
       634 (2006).

¶ 11                                          I. Jurisdiction
¶ 12        “A reviewing court must ascertain its jurisdiction before proceeding in a cause of action,
       regardless of whether either party has raised the issue.” Secura Insurance Co. v. Illinois
       Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009). Here, to decide our jurisdiction, it is
       first necessary to determine whether the trial court had jurisdiction. The notice of appeal was
       timely filed, but “[i]f [the] trial court did not have jurisdiction, the parties cannot confer
       jurisdiction on a reviewing court merely by taking an appeal.” (Internal quotation marks
       omitted.) KT Winneburg, LLC v. Calhoun County Board of Review, 403 Ill. App. 3d 744, 747
       (2010).
¶ 13        Section 23-10 of the Code states: “An objection to an assessment for any year shall not
       be allowed by the court *** if an administrative remedy was available by complaint to the
       board of appeals or board of review under Section 16-55 or Section 16-115, unless that
       remedy was exhausted prior to the filing of the tax objection complaint.” 35 ILCS 200/23-10
       (West 2010). “A failure to give any notice required by this Code shall not impair or affect
       the validity of any assessment as finally made.” 35 ILCS 200/24-25 (West 2010).
       Additionally, “No error or informality in the proceedings of any of the officers connected
       with the assessment, levying or collection of the taxes, not affecting the substantial justice
       of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof.” 35
       ILCS 200/21-185 (West 2010).
¶ 14        Taxpayers argue that they are exempt from having to exhaust their administrative
       remedies due to defendant’s failure to provide them with proper notice under section 12-30
       of the Code. 35 ILCS 200/12-30 (West 2010). Section 12-30(a) requires that a notice “shall
       be mailed *** to each taxpayer whose assessment has been changed.” Id. “The notice sent
       under this Section shall include *** [t]he previous year’s assessed value after board of
       review equalization[;] *** [and] [c]urrent assessed value and the date of that valuation.” 35
       ILCS 200/12-30(b) (West 2010). Taxpayers’ position is that the notice did not comply with
       these requirements since the previous year’s assessed value was listed as $0 on the notice
       they received.
¶ 15        Taxpayers admit that an administrative remedy was available to them, but they argue the

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       notice they received was defective, exempting them from the requirement of exhausting
       administrative remedies.
¶ 16       Defendant points out that there are a number of statutory exceptions to the rule of
       exhaustion of administrative remedies. She then argues that since Taxpayers cannot avail
       themselves of any of these enumerated exceptions, the circuit court did not have jurisdiction.
       Taxpayers agree that they are not entitled to the possible statutory exceptions. However,
       Taxpayers respond that they are exempt from the requirement to exhaust administrative
       review for a reason not addressed by defendant. They rely on the case of People v. Jennings,
       3 Ill. 2d 125 (1954). The Jennings court recognized a constitutional right to notice when
       property is assessed for taxation and held that the exhaustion of administrative remedies rule
       was inapplicable when a statutory provision requiring notice to taxpayers was not strictly
       complied with. Id. at 127-28, 130.
¶ 17       The issue in Jennings was whether a failure to publish the personal property assessments,
       as required by statute, invalidated the tax. Id. at 126. The court noted that in a previous case
       it had stated, “ ‘Every tax-payer, under the constitution and laws of this State, has a right to
       notice when his property is assessed for taxation, with an opportunity to be heard upon the
       justness of the taxation. To this end statutory provisions are made for such notice and
       hearing. These provisions are for the protection of the tax-payer, they are mandatory, they
       must be strictly complied with, and a disregard of them will render the tax illegal.’ ” Id. at
       128 (quoting Heidenway v. Harding, 336 Ill. 606, 611 (1929)). The court went on to say that
       even though the legislature had provided that “ ‘no error or informality in the proceedings
       of any of the officers connected with the assessment, levying or collection of the taxes, not
       affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax
       or the assessment thereof[ ]’ (Ill. Rev. Stat. 1953, chap. 120, par. 716[ ]),” the tax was invalid
       due to the failure to give notice. Jennings, 3 Ill. 2d at 129. The court explained that such an
       exception applied “only where there has been an attempt to comply with the law but the
       attempt is not effective on account of some informality or clerical error.” Id. at 129.
¶ 18       Taxpayers argue that the previously assessed value should have been the assessed value
       of the original tract in the previous year, multiplied by the ratio of acres in the new property
       to the acres in the original property (163.61 ÷ 225.29 = .726; .726 × $240 = $174.24). In the
       alternative, Taxpayers argue that the notice should have had “N/A” listed as the previous
       year’s assessment.
¶ 19       Defendant’s position is that there was no previous year’s assessed value; the property,
       having been split from a larger tract, was a new property that had no previously assessed
       value. In the alternative, defendant argues that even if the assessed value should have been
       computed as described by Taxpayers, the failure to include it is merely a clerical error.
¶ 20       We note that Taxpayers provide no authority for the proposed method of determining the
       previous assessed value. Such a simplistic view of property assessment is not realistic. When
       a property is subdivided, it may be that the value of the new properties will be in direct
       proportion to the new property’s size as compared to the original property’s size, but it surely
       is not in every case. Such a formula would ignore the reality that 90% of the value in a
       property may be found in only 10% of its area. The better view is that the new property


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       simply did not have a prior assessed value. It had never been assessed.
¶ 21       In regard to Taxpayers’ alternative argument, we fail to see any difference between
       indicating the previous year’s assessment was “$0” or “N/A.” Either way, Taxpayers were
       put on notice that defendant believed the property in question had no previously assessed
       value. Defendant’s decision to use either option is not an error; even if it were, it is at most
       a clerical error that does not deprive Taxpayers of notice and, therefore, does not excuse their
       failure to seek administrative remedies.
¶ 22       There is no error in the notice mailed to Taxpayers; they are not excused in failing to
       exhaust their administrative remedies. Their tax objection cannot proceed due to their failure
       to seek relief from the Board. 35 ILCS 200/23-10 (West 2010).
¶ 23       The requirement that Taxpayers exhaust their administrative remedies before filing a tax
       objection is jurisdictional. See Winneburg, 403 Ill. App. 3d at 751. Because we find
       Taxpayers were not exempt from seeking relief from the Board, the trial court lacked
       jurisdiction. Id. at 752. Since the trial court lacked jurisdiction, its judgment is void.
       Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 531 (2001). Our authority is limited to vacating
       the trial court’s judgment and dismissing this appeal. People v. Flowers, 208 Ill. 2d 291, 307
       (2003); Kyles v. Maryville Academy, 359 Ill. App. 3d 423, 431-32 (2005). We vacate the trial
       court’s judgment.
¶ 24       Now, having found that the trial court had no jurisdiction–and after having vacated its
       order as void–we are left without jurisdiction to do anything else except dismiss this appeal.
       Flowers, 208 Ill. 2d at 307; Winneburg, 403 Ill. App. 3d at 752.

¶ 25                                    CONCLUSION
¶ 26      For the foregoing reasons, the judgment of the circuit court of Fulton County is vacated
       and this appeal is dismissed.

¶ 27      Judgment vacated and appeal dismissed.




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