                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           Young v. Johnson, 2011 IL App (2d) 110287




Appellate Court            J. NORMAN YOUNG, as Trustee of the J. Norman Young Trust, Dated
Caption                    September 16, 1993, and as Successor Trustee of the Nadyne H. Young
                           Trust, Dated September 16, 1993, Plaintiff-Appellant, v. CHRISTINE J.
                           JOHNSON, De Kalb County Collector; SHARON HOLMES, De Kalb
                           County Clerk; KATHLEEN HOLLONBECK, d/b/a KGH Investments;
                           DOUGLAS JOHNSON and SUSAN JOHNSON, d/b/a Tax Lien
                           Investments; and THE TOWN OF CORTLAND, Defendants-Appellees.



District & No.             Second District
                           Docket No. 2-11-0287


Filed                      December 29, 2011


Held                       In an action arising from plaintiff’s failure to pay the special service area
(Note: This syllabus       taxes on property he owned, the trial court properly dismissed plaintiff’s
constitutes no part of     complaint seeking a declaratory judgment that the sale of the taxes was
the opinion of the court   not an available remedy and seeking a writ of mandamus to compel
but has been prepared      foreclosure on the delinquent parcels and an injunction based on
by the Reporter of         plaintiff’s partial payment of the total tax obligation, since plaintiff could
Decisions for the          not establish a “clear right” to relief and he forfeited his argument based
convenience of the         on partial payment.
reader.)


Decision Under             Appeal from the Circuit Court of De Kalb County, No. 10-MR-122; the
Review                     Hon. Melissa S. Barnhart, Judge, presiding.
Judgment                   Affirmed.


Counsel on                 Craig J. Cobine and John F. Philipchuck, both of Dommermuth, Brestal,
Appeal                     Cobine & West, Ltd., of Naperville, for appellant.

                           Robert K. Bush and Parker H. Johnson, both of Ancel Glink Diamond
                           Bush DiCianni & Krafthefer, PC., of Chicago, for appellee Town of
                           Cortland.


Panel                      PRESIDING JUSTICE JORGENSEN delivered the judgment of the
                           court, with opinion.
                           Justices Bowman and Hutchinson concurred in the judgment and opinion.


                                              OPINION

¶1         Plaintiff, J. Norman Young, appeals the dismissal under section 2-619 of the Code of
        Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2010)) (affirmative defense) of his
        complaint. For the following reasons, we affirm the dismissal.

¶2                                         I. BACKGROUND
¶3          This is plaintiff’s third appeal before this court concerning the imposition and collection
        of a special service area tax (SSA tax) imposed upon property known as the Young Farm.
        See Young v. Holmes, No. 2-09-0151 (modified upon denial of rehearing July 9, 2010)
        (unpublished order under Supreme Court Rule 23) (affirming the trial court’s dismissal of
        plaintiff’s challenge to the constitutionality and validity of the SSA); Young v. Johnson, No.
        2-10-0020 (2010) (unpublished order under Supreme Court Rule 23) (remanding plaintiff’s
        tax objection challenge to 2008 SSA taxes on limited grounds such as technical errors or
        miscalculations–not constitutionality and validity). To recap this court’s prior rulings, we
        found the SSA tax to be lawful overall, but we allowed plaintiff to challenge any
        miscalculations through tax objection proceedings.
¶4          Plaintiff, along with 11 other owners, planned to develop the farm and the surrounding
        area into a residential subdivision. The proposed development needed a sewage treatment
        facility, which would be paid for with the SSA tax. Each owner would pay for the treatment
        facility based on how many lots each planned to develop (at a cost of $8,000 per lot for
        access to the treatment facility). Because plaintiff alone planned to develop over 500 lots, his
        share of the SSA tax was quite large, totaling over $4 million to be paid in amounts of
        approximately $270,000 per year over a number of years. Initially, the new treatment facility
        would be funded by the sale of special revenue bonds, structured under a trust indenture
        between the Town of Cortland and Wells-Fargo Bank. The bonds would be paid for from

                                                  -2-
     revenues generated by the SSA tax. Plaintiff purchased $420,000 in bonds issued in
     conjunction with the SSA, putting him in the unique position of being both an owner of
     property subject to the SSA tax and a bondholder who would receive a portion of the SSA
     tax proceeds.
¶5       Due to economic conditions, such as the decline in the housing market, the residential
     development was never completed. However, plaintiff was still obligated to pay the SSA tax
     for the treatment facility (which was completed). Plaintiff paid the 2008 general real estate
     taxes for his undeveloped lots (approximately $2,000), but he did not pay the 2008 SSA tax
     for his undeveloped lots (approximately $286,867).
¶6       As a result of plaintiff’s failure to pay the 2008 SSA tax, the county collector pursued the
     statutory remedy of a tax sale. The statute authorizing SSA taxes states that “[t]he lien and
     foreclosure remedies provided in Article 9 of the Illinois Municipal Code shall apply upon
     non-payment of the special tax.” 35 ILCS 200/27-75 (West 2008). The Illinois Municipal
     Code (the Code), article 9, division 2, under which the county levied the SSA tax, states:
              “When the ordinance under which a local improvement is ordered provides that the
         improvement shall be made wholly or in part by special taxation of contiguous property,
         that special tax shall be levied, assessed, and collected, as nearly as may be, in the
         manner provided in the section of this Division 2 providing for the mode of making,
         assessing, and collecting special assessments.” (Emphasis added.) 65 ILCS 5/9-2-41
         (West 2008).
     Under division 2, delinquent special assessments or special taxes may be included in the
     county collector’s annual tax sale. The county collector designates a day on which an
     application shall be made to the court for an order of sale (65 ILCS 5/9-2-83 (West 2008)),
     advertises the sale of delinquent taxes (65 ILCS 5/9-2-84 (West 2008)), and mails notice to
     the delinquent property owners (65 ILCS 5/9-2-88 (West 2008)). Thereupon, the “general
     revenue laws” of the state, i.e., the Property Tax Code (35 ILCS 200/1-1 et seq. (West
     2008)), apply to the unpaid special taxes and to unpaid general taxes, with respect to the
     annual tax sale. 65 ILCS 5/9-2-97 (West 2008); see also People v. Taylorville Sanitary
     District, 371 Ill. 280, 283 (1939) (legislature intended collection of special taxes to be
     enforced under general revenue law); People v. Forest Park Methodist Church, 408 Ill. 431,
     434 (1951) (same). Under this authority, county officials sold the 2008 SSA tax on the farm
     to a tax lien investment business.
¶7       In August 2010, plaintiff filed a three-count complaint, challenging the sale of the 2008
     SSA tax. In count I, plaintiff sought a declaratory judgment that selling the 2008 SSA tax was
     not a remedy available to the county in the face of plaintiff’s admitted nonpayment of the
     SSA tax. Plaintiff insisted that the Town of Cortland was required, under article 9, division
     3, of the Code, to foreclose on the tax delinquent parcels. Skipping to count III, which is
     closely related to count I, plaintiff sought a writ of mandamus to compel the Town of
     Cortland to foreclose on the tax delinquent parcels. In count II, plaintiff sought an injunction
     on the sale of SSA taxes based on a partial payment of the total tax obligation (i.e., payment
     of the general real estate taxes). The trial court dismissed the complaint and denied a motion
     to reconsider. This appeal followed.


                                               -3-
¶8                                          II. ANALYSIS
¶9          Plaintiff challenges the section 2-619 dismissal of his complaint. We review de novo the
       trial court’s dismissal. Van Meter v. Darien Park District, 207 Ill. 2d 359, 368 (2003).

¶ 10          A. Counts I and III: Remedies Available to Municipality in the Face of
                                      Nonpayment of the SSA Tax
¶ 11        Plaintiff argues that selling the 2008 SSA tax pursuant to article 9, division 2, of the
       Code was not an appropriate remedy in the face of plaintiff’s admitted nonpayment of said
       tax. He does not argue that defendants did anything improper under article 9, division 2; he
       merely seeks a declaration that, instead, the remedies set forth in article 9, division 3, of the
       Code (i.e., foreclosure) should have been followed. Plaintiff’s argument presents a question
       of statutory interpretation, which we review de novo. People v. Robinson, 217 Ill. 2d 43, 54
       (2005). The primary rule of statutory construction is to give effect to the legislature’s intent,
       the best evidence of which is the plain language of the statute. Ultsch v. Illinois Municipal
       Retirement Fund, 226 Ill. 2d 169, 181 (2007).
¶ 12        Specifically, plaintiff argues that defendants should have followed section 9-3-41, which
       states:
            “Whenever any assessment has been levied against any real estate, the assessment or
            installments thereof shall become delinquent the first day of July next after the due date
            thereof ***. *** Such municipality shall institute proceedings to foreclose and sell the
            property for the payment of any assessment, or installment thereof, remaining delinquent
            6 months after the delinquency date. Any holder of any bond or of any interest coupon
            is entitled to summary relief by mandamus or injunction to enforce the provisions
            hereof.” (Emphases added.) 65 ILCS 5/9-3-41 (West 2008).
¶ 13        Plaintiff argues that, because section 27-75 of the Property Tax Code (35 ILCS 200/27-75
       (West 2008)) states that “[t]he lien and foreclosure remedies provided in Article 9 of the
       Illinois Municipal Code shall apply to the non-payment of the special tax” (emphasis added),
       the collecting municipality is required to use foreclosure remedies. There are numerous
       problems with this argument.
¶ 14        First, there is some question as to whether division 3 even applies. At issue here is the
       nonpayment of SSA taxes. Division 3 refers to assessments–not special taxes. 65 ILCS 5/9-3-
       41 (West 2008). In contrast, division 2, under which the county sought a remedy, does refer
       to special taxes. 65 ILCS 5/9-2-41 (West 2008). Second, and as is dispositive, the plain
       language of section 27-75 of the Property Tax Code invites municipalities to use any of the
       several remedies available under article 9. 35 ILCS 200/27-75 (West 2008). In point of fact,
       section 27-75 uses the word “remedies,” in the plural, contradicting plaintiff’s position that
       a municipality must use the one and only remedy, foreclosing on the property, set forth in
       division 3. Certainly, there could be many instances where it would not be in either party’s
       best interest to immediately foreclose (either on the tax lien or on the property itself–a
       distinction plaintiff fails to clearly cite). Even division 3, if it could be said to apply, offers


                                                  -4-
       more than one remedy: “lien and foreclosure” remedies. 65 ILCS 5/9-3-41 (West 2008).
       Moreover, the introductory language of division 3 itself contradicts plaintiff’s position that
       division 3 provides the exclusive remedy: “This Division 3 shall not be construed as
       repealing any other laws with respect to local improvements [i.e., those set forth in Division
       2], but shall be considered as an additional grant of power ***.” 65 ILCS 5/9-3-1 (West
       2008).
¶ 15        Next, plaintiff challenges the trial court’s dismissal of count III, wherein, based on his
       status as a bondholder, he sought a writ of mandamus to compel the town to foreclose on the
       property. Plaintiff is in the unique position of being both an owner of tax delinquent property
       and a bondholder who would receive the tax proceeds (had they been paid). Again, division
       3 provides that bondholders may seek relief for unpaid assessments. 65 ILCS 5/9-3-41 (West
       2008) (as quoted above).
¶ 16        A writ of mandamus is a summary writ that commands the officer to whom it is
       addressed to perform a duty that the plaintiff is entitled to have performed and that the party
       owing the duty has failed to perform. Illinois Wood Energy Partners, L.P. v. County of Cook,
       281 Ill. App. 3d 841, 852 (1995). A complaint for mandamus must set forth all the material
       facts to demonstrate a clear right to the writ. Doe v. Carlson, 250 Ill. App. 3d 570, 573
       (1993). The plaintiff has the burden of setting forth every material fact necessary to show the
       plain duty of the defendant. Wood Energy, 281 Ill. App. 3d at 852.
¶ 17        We reject plaintiff’s argument on the ground that he cannot establish a “clear right” to
       relief, as is required in mandamus actions. As established above, municipalities are not
       required to seek a remedy under article 9, division 3, for failure to pay SSA taxes. Therefore,
       plaintiff does not have a clear right to compel the town or the county to follow article 9,
       division 3.
¶ 18        The above rationale is dispositive. Therefore, we do not address plaintiff’s argument that
       defendants did not attach an affidavit to a supporting document in their motion to dismiss,
       i.e., the trust indenture between the town and Wells-Fargo Bank, which preemptively limited
       bondholders’ ability to seek mandamus.

¶ 19             B. Count II: Injunction to Compel Acceptance of Partial Payment
¶ 20       Finally, plaintiff challenges the court’s dismissal of count II, wherein he sought an
       injunction to compel defendants to accept a partial payment of his tax obligation (i.e., the
       general real estate tax but not the SSA tax) and thereby, apparently, postpone the use of
       article 9 remedies. Plaintiff cites no authority in support of his position, mentions the issue
       only fleetingly in his initial brief, and completely abandons the issue in his reply brief.
       Therefore, he has forfeited the argument. Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006).

¶ 21                                 III. CONCLUSION
¶ 22      For the aforementioned reasons, we affirm the trial court’s dismissal.

¶ 23      Affirmed.

                                                 -5-
