                              Illinois Official Reports
                                      Appellate Court



                         Dumas v. Pappas, 2014 IL App (1st) 121966




Appellate Court          BETTY J. DUMAS and JEROME CASIMIR, Plaintiffs-Appellants,
Caption                  v. MARIA PAPPAS, Cook County Treasurer and ex officio County
                         Collector, DAVID ORR, Cook County Clerk, and JOSEPH
                         BERRIOS, Cook County Assessor, Defendants-Appellees.



District & No.           First District, Sixth Division
                         Docket No. 1-12-1966



Rule 23 Order filed      December 13, 2013
Rule 23 Order
withdrawn                February 3, 2014
Opinion filed            February 7, 2014



Held                     The dismissal of plaintiffs’ petition for a writ of mandamus and a
(Note: This syllabus     declaratory judgment against the county treasurer, county clerk, and
constitutes no part of   county assessor with prejudice and without leave to amend was
the opinion of the       affirmed, notwithstanding plaintiffs’ allegations of errors in the
court but has been       calculation of their property taxes, since plaintiffs failed to exhaust
prepared     by    the   their administrative remedies, failed to state a cause of action for the
Reporter of Decisions    issuance of a writ of mandamus, and failed to allege that their property
for the convenience of   was exempt or that the real estate taxes were unauthorized by law, they
the reader.)             were not entitled to amend their petition, and they could not allege
                         additional facts establishing subject matter jurisdiction.




Decision Under           Appeal from the Circuit Court of Cook County, No. 12-CH-2120; the
Review                   Hon. Michael B. Hyman, Judge, presiding.
     Judgment                 Affirmed.


     Counsel on               Betty J. Dumas-Casimir and Jerome J. Casimir, of Chicago, appellants
     Appeal                   pro se.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Patrick T. Driscoll,
                              Jr., Tatia Gibbons, and Julie Ann Sebastian, Assistant State’s
                              Attorneys, of counsel), for appellees.



     Panel                    JUSTICE HALL delivered the judgment of the court, with opinion.
                              Presiding Justice Rochford and Justice Lampkin concurred in the
                              judgment and opinion.




                                               OPINION

¶1         The pro se plaintiffs, Betty J. Dumas and Jerome J. Casimir, appeal from an order of the
       circuit court of Cook County dismissing their petition for a writ of mandamus and for a
       declaratory judgment against the defendants, Maria Pappas, Cook County treasurer, David
       Orr, Cook County clerk, and Joseph Berrios, Cook County assessor. On appeal, the plaintiffs
       contend that the circuit court erred in dismissing the petition and that they should have been
       allowed to amend the petition. For the reasons set forth below, we affirm the judgment of the
       circuit court.
¶2         On January 20, 2012, the plaintiffs filed a pro se petition seeking a writ of mandamus
       ordering defendant Orr to recompute the plaintiffs’ property tax bills for the years 2007
       through 2011 and for a judgment declaring that the overassessment of their real property was
       unlawful since it was based on an improper method of valuation, erroneous billings and lack
       of notice of the sale of the property. In support of the petition, the plaintiffs alleged that in
       January 2007, they were the owners of real property located at 3620 South Calumet Avenue,
       Chicago. In 2007, a fire destroyed the structure on the property, and the property was vacant
       for the remainder of 2007 and 2008.
¶3         The plaintiffs alleged that errors occurred in the assessment of their property based on the
       following facts:
                   A. For the 2007 tax year, the property had an assessed value of $5,706, an
               equalized value of $5,706 and was subject to $783.61in real estate taxes.
                   B. For the 2008 tax year, the now-vacant property had an assessed value of
               $28,037 and was subject to $3,116.68 in real estate taxes.

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                   C. For the 2009 tax year, the property had an assessed value of $3,360, an
               equalized value of $3,360 and was subject to $2,295.27 in real estate taxes.
                   D. For the 2010 tax year, the property had an assessed valuation of $3,360, an
               equalized value of $3,360 and was subject to $546.75 in real estate taxes.
¶4         The plaintiffs alleged they paid the 2003 through 2006 real estate taxes. They believed
       they paid the 2007 taxes and owed no outstanding taxes. On February 24, 2009, the plaintiffs
       paid the first installment of their property tax in the amount of $391.81. They denied
       receiving a tax bill for 2007 or a notice of unpaid taxes. They also denied receiving the
       statutory notices of a tax sale for the years 2006 and 2007 or that a petition for a tax deed had
       been filed. They further alleged that on January 13, 2011, they contested the erroneous
       assessments for the years 2007 through 2009, by filing an application for a certificate of error
       with the county assessor. They never received a decision from the assessor or a response to
       their application.
¶5         The defendants filed a motion to dismiss the petition pursuant to section 2-619.1 of the
       Code of Civil Procedure (the Code) (735 ILCS 5/2-619.1 (West 2010) (a combined motion
       under sections 2-615 and 2-619 of the Code)). The defendants sought dismissal of the
       petition under section 2-615 of the Code based on the plaintiffs’ failure to state a cause of
       action for mandamus. They also sought dismissal under section 2-619 of the Code based on
       the lack of subject matter jurisdiction.
¶6         In granting the motion to dismiss, the circuit court determined that the petition failed to
       set forth sufficient facts to support the plaintiffs’ cause of action for the issuance of a writ of
       mandamus. The court further found that the failure of the plaintiffs to file a tax objection
       complaint prevented the court from hearing the claim. The court dismissed the petition with
       prejudice. The plaintiffs appeal.

¶7                                               ANALYSIS
¶8         The plaintiffs contend that their petition stated a cause of action for mandamus based on
       their allegation that assessor Berrios failed in his duty to act on their application for a
       certificate of error. The plaintiffs further contend that it was error to dismiss the petition with
       prejudice without allowing them an opportunity to file an amended petition.

¶9                                     I. Dismissal of the Petition
¶ 10                                      A. Standard of Review
¶ 11       This court reviews the dismissal of a complaint pursuant to sections 2-615 and 2-619
       de novo. See R&B Kapital Development, LLC v. North Shore Community Bank & Trust Co.,
       358 Ill. App. 3d 912 (2005) (section 2-615 dismissal); Schrager v. Bailey, 2012 IL App (1st)
       111943 (section 2-619 dismissal).
¶ 12       In reviewing an order dismissing a complaint for failure to state a cause of action, the
       court accepts as true all well-pleaded facts and all reasonable references that may be drawn
       from those facts. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). The allegations
       in the complaint are construed in the light most favorable to the plaintiff, and the complaint
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       should be dismissed only where no set of facts can be proved entitling the plaintiff to
       recovery. Marshall, 222 Ill. 2d at 429. A plaintiff must allege sufficient facts, not simply
       conclusions, to bring a claim within a legally recognizable cause of action. Marshall, 222 Ill.
       2d at 429-30.

¶ 13                                            B. Discussion
¶ 14       In support of their claim for a writ of mandamus, the plaintiffs alleged that assessor
       Berrios refused and failed to respond to their January 13, 2011, certificate of error
       application. The procedure governing the issuance of certificates of error is set forth in
       section 14-15 of the Property Tax Code. 35 ILCS 200/14-15 (West 2010). Section 14-15
       provides in pertinent part as follows:
               “[I]f *** the county assessor discovers an error or mistake in the assessment, the
               assessor shall execute a certificate setting forth the nature and cause of the error. The
               certificate when endorsed by the county assessor, or when endorsed by the county
               assessor and board of appeals *** where the certificate is executed for any
               assessment which was the subject of a complaint filed in the board of appeals ***,
               may, either be certified according to the procedure authorized by this Section or be
               presented and received in evidence in any court of competent jurisdiction.
               Certification is authorized, at the discretion of the county assessor, for: (1) certificates
               of error allowing homestead exemptions ***; (2) certificates of error on residential
               property of 6 units or less; (3) certificates of error allowing exemption of [tax exempt]
               property ***; and (4) other certificates of error reducing assessed value by less than
               $100,000. Any certificate of error not certified shall be presented to the court. The
                county assessor shall develop reasonable procedures for the filing and processing of
                certificates of error.” 35 ILCS 200/14-15(a) (West 2010).
¶ 15       Where a public official has failed or refused to comply with requirements imposed by
       statute, the court may compel the official to comply with the statutory requirement by means
       of a writ of mandamus, provided the requirements for the writ have been satisfied. Noyola v.
       Board of Education of the City of Chicago, 179 Ill. 2d 121, 132 (1997). Although an
       extraordinary remedy, mandamus proceedings are governed by the pleading rules applicable
       to actions at law. Noyola, 179 Ill. 2d at 133. A plaintiff seeking a writ of mandamus must
       “demonstrate a clear, affirmative right to relief, a clear duty of the defendant to act, and clear
       authority in the defendant to comply with the writ.” Givot v. Orr, 321 Ill. App. 3d 78, 90
       (2001). However, mandamus cannot be used to compel a public official to perform an act
       which requires the exercise of his discretion. Hadley v. Ryan, 345 Ill. App. 3d 297, 301-02
       (2003) (mandamus could not be used to compel the Attorney General to prosecute a claim;
       by statute, the decision to prosecute was within his discretion).
¶ 16       In Illinois, a taxpayer has neither a statutory nor constitutional right to participate in a
       certificate of error procedure. Ball v. County of Cook, 385 Ill. App. 3d 103, 105 (2008); see
       Chicago Sheraton Corp. v. Zaban, 71 Ill. 2d 85, 91 (1978) (legislature intended the certificate
       of error procedure to be an expeditious summary process without the participation by the
       taxpayer for correcting the assessor’s errors). Moreover, section 14-15 gives the assessor
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       discretion to execute a certificate of error in certain instances, such as where the residential
       property is six units or less or where the assessed valuation would be reduced by less than
       $100,000. 35 ILCS 200/14-15(a) (West 2010). Based on the allegations in and the exhibits to
       the petition, the plaintiffs’ property was less than six units and the assessed valuation would
       be reduced by less than $100,000. Since the assessor’s duty was discretionary, the plaintiffs
       failed to state a cause of action for the issuance of a writ of mandamus.
¶ 17        In any event, the plaintiffs cannot prevail on their request for mandamus or a declaratory
       judgment because the circuit court lacked subject matter jurisdiction to grant such relief. Our
       supreme court has recognized that the Property Tax Code is a comprehensive statute
       regulating the assessment and collection of taxes. Millennium Park Joint Venture, LCC v.
       Houlihan, 241 Ill. 2d 281, 295 (2010). Prior to seeking relief in the circuit court for an
       incorrect assessment, a taxpayer must first exhaust his administrative remedies provided by
       the statute, beginning with the board of review. Millennium Park Joint Venture, LCC, 241 Ill.
       2d at 295. “[T]he Board of Review may revise or correct an assessment as appears to be just
       on complaint by a taxpayer that ‘any property is overassessed, underassessed, or exempt.’ ”
       Millennium Park Joint Venture, LCC, 241 Ill. 2d at 296 (quoting 35 ILCS 200/16-95 (West
       2008), citing 35 ILCS 200/16-120 (West 2008)). The taxpayer then may either appeal to the
       Property Tax Appeal Board or file a tax objection complaint in the circuit court specifying
       the objections to the tax. Millennium Park Joint Venture, LCC, 241 Ill. 2d at 296; 35 ILCS
       200/16-160, 23-15 (West 2010). “[T]he adequate remedy at law is to pay the taxes under
       protest and file a statutory objection.” Millennium Park Joint Venture, LCC, 241 Ill. 2d at
       296. Only where the tax is unauthorized by law or where it is levied on tax-exempt property
       may the taxpayer bypass the statutory remedy and seek injunctive or declaratory relief in the
       circuit court. Millennium Park Joint Venture, LCC, 241 Ill. 2d at 296.
¶ 18        In this case, the plaintiffs failed to allege that their property was tax exempt or that the
       real estate tax on their property was unauthorized by law. They did allege that the assessment
       was illegal and unlawful. However, “a true ‘unauthorized by law’ challenge arises where the
       taxing body has no statutory power to tax in a certain area or has been given no jurisdiction
       to tax a certain subject, as opposed to a complaint that merely alleges procedural errors or
       irregularities in the taxing process, in which case equity relief would not be available.”
       Millennium Park Joint Venture, LCC, 241 Ill. 2d at 307.
¶ 19        The plaintiffs failed to allege that they exhausted their administrative remedies prior to
       filing their petition or that their property was tax exempt. The allegations in the petition did
       not establish that the tax was unauthorized by law. Therefore, the circuit court lacked subject
       matter jurisdiction to grant them mandamus relief or grant them the declaratory judgment
       they requested. Compare Millennium Park Joint Venture, LCC, 241 Ill. 2d at 308 (where the
       tax assessment was “unauthorized by law,” the circuit court had subject matter jurisdiction to
       rule on the merits of the suit for declaratory and injunctive relief). In the absence of subject
       matter jurisdiction, dismissal of the petition was proper.




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¶ 20                       II. Dismissal With Prejudice Without Leave to Amend
¶ 21       The plaintiffs contend that the circuit court erred in dismissing their petition with
       prejudice. Relying on section 14-109 of the Code, they argue that seeking the wrong remedy
       was not fatal to their cause of action and that they should have been allowed to amend their
       complaint. The defendants point out that the plaintiffs did not file a motion seeking leave to
       amend. Issues not raised in the trial court are forfeited and may not be raised for the first time
       on appeal. In re Marriage of Romano, 2012 IL App (2d) 091339, ¶ 85. Even if we were to
       consider the issue, no error occurred.
¶ 22       Section 14-109 provides in pertinent part as follows:
               “Where [mandamus] relief is sought *** and the court determines, on motion directed
               to the pleadings, or on motion for summary judgment or upon trial, that the plaintiff
               has pleaded or established facts which entitle the plaintiff to relief but that the
               plaintiff has sought the wrong remedy, the court shall permit the pleadings to be
               amended, on just and reasonable terms, and the court shall grant the relief to which
               the plaintiff is entitled on the amended pleadings or upon the evidence.” 735 ILCS
               5/14-109 (West 2010).
¶ 23       The plaintiffs’ reliance on section 14-109 is misplaced. Section 14-109 gives a plaintiff
       the right to amend where he has alleged sufficient facts but sought the wrong remedy. In this
       case, the circuit court determined that the plaintiffs failed to allege sufficient facts to support
       their right to relief. Therefore, the plaintiffs were not entitled to amend their petition under
       section 14-109.
¶ 24       Moreover, filing an amended pleading would not cure the defect in the original petition.
       Since the plaintiffs could allege no additional facts establishing subject matter jurisdiction,
       the circuit court did not err in dismissing the petition with prejudice without leave to amend.
       See Hadley, 345 Ill. App. 3d at 303-04 (denial of leave to file an amended complaint was not
       an abuse of discretion where the amended complaint would not have cured the defects in the
       original complaint).

¶ 25                                        CONCLUSION
¶ 26      The dismissal of the plaintiffs’ petition for writ of mandamus and declaratory judgment
       was proper for the reasons stated above. The dismissal of the petition with prejudice and
       without leave to amend was not error.
¶ 27      The judgment of the circuit court is affirmed.

¶ 28      Affirmed.




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