                                                                    SECOND DIVISION
                                                                    May 6, 2008




No. 1-06-3589


THE BOARD OF EDUCATION OF PARK FOREST-                      )
CHICAGO HEIGHTS SCHOOL DISTRICT                             )
NO. 163, COOK COUNTY, ILLINOIS, a Body                      )       Appeal from the
Politic; and VIRGINIA FORD, a Current                       )       Circuit Court of
Individual Taxpayer and Cook County, Illinois               )       Cook County.
Resident,                                                   )
                     Plaintiffs-Appellants,                 )
                                                            )
       v.                                                   )
                                                            )
JAMES M. HOULIHAN, COOK COUNTY                              )       Honorable
ASSESSOR, and THE COOK COUNTY                               )       Martin S. Agran,
BOARD OF REVIEW, and THORNCREEK                             )       Judge Presiding.
APARTMENTS II AND III, L.L.C., Michigan                     )
Limited Liability Companies, et al.,                        )
                                                            )
                      Defendants-Appellees.                 )

       JUSTICE SOUTH delivered the opinion of the court:

       This appeal arises from an order of the circuit court of Cook County granting defendants’

combined motions to dismiss with prejudice, pursuant to section 2-619.1 of the Code of Civil

Procedure (735 ILCS 5/2-619.1 (West 2006)), plaintiffs’ verified complaint for declaratory relief

and relief by issuance of writs of prohibition and/or mandamus.

       Plaintiffs, the Board of Education of Park Forest-Chicago Heights School District No.

163, and Virginia Ford, who is an elected member of the Board of Education of School District

No. 163 and a taxpaying resident therein since 1995, filed a declaratory action to overturn what

they alleged were fraudulently induced assessments made by defendant Cook County Assessor
1-06-3589

James M. Houlihan from 1996 through 2005 on properties owned by defendants Thorncreek

Apartments II and III, L.L.C. (hereinafter referred to as the Thorncreek defendants) in Park

Forest, Cook County, Illinois. According to the complaint, 412 units of town homes were

purchased by the single developer, Thorncreek defendants, in 1995 and purportedly sold to 12

investors in various forms. The names of these individual contract buyers do not appear in the

chains of title because under the articles of the warranty deeds and option agreements they are

prohibited from claiming any ownership interests, either legal or equitable, in the premises.

       Between 1986 and 1995, the assessor consistently classified the Thorncreek properties as

Class 3-99 rental condominiums. Class 3-99 is a subcategory of Class 3 and is for rental

condominium units in a single development of one or more contiguous parcels with seven or

more rental units, which are assessed at 33% of the property’s fair market value. In 1996, 1997,

1998 1999, 2002, and 2003 the purported owners of the properties, all of whom were represented

by the same legal counsel, appealed these Class 3 assessments by petitioning the Board of

Review (the Board) to grant their properties a Class 2-99 classification, which is a subcategory of

Class 2 and is for residential condominiums, which are individually owned units or

condominiums with less than seven rental units and are assessed at 16% of the property’s fair

market value. These petitions alleged that the purported owners owned certain property in Park

Forest, Illinois, and the units were the only units they owned consisting of six residential

condominium units. Attached to each petition was a copy of the real estate contract and the

closing statement indicating that each purported owner purchased only six units on the property.

Paragraph five of each petition stated:


                                                -2-
1-06-3589

               “That as the Petitioner owns 6 or less residential condominium

               units, the present assessed valuation which reflects 33% of the

               property’s market value and [price] per unit, is excessive an [sic]

               contrary to the applicable Cook County Assessment Ordinance.”

        The Board granted these petitions each time and lowered the classification of the

properties from Class 3-99 to Class 2-99 for the years 1996-2000, 2002, and 2003. No appeals

were taken in 2001, 2004, and 2005 because the assessor classified the Thorncreek properties as

Class 2-99 residential condominiums. In 2004, the assessor’s office permanently classified the

properties as Class 2-99 residential condominiums.

       According to the complaint, the Thorncreek defendants engaged in, and were continuing

to engage in, a fraudulent scheme to avoid having the properties classified as Class 3 rental

condominium property, and the alleged sales of these properties to the purported purchasers in

groups of six units or less were shams designed to ensure that the properties would be classified

or reclassified as Class 2 residential condominium properties to be assessed at the lower rate.

Count I requested a judgment declaring that the properties were incorrectly classified as Class 2-

99 residential condominiums for the tax years 1996 through 2005, inclusive, and that the proper

classification was Class 3-99 for residential condominiums for the tax years 1996 through 2005.

Count II requested the court to issue writs of prohibition and/or mandamus directing the Board

of Review to either reverse its decisions and reclassify the properties for tax purposes as Class 3-

99 for 1996, 1997, 1998, 1999, 2000, 2002, and 2003, or conduct a hearing to reconsider whether

it should reclassify the properties as Class 3-99 for the tax years 1996, 1997, 1998, 1999, 2000,


                                                -3-
1-06-3589

2002, and 2003. Count II requested writs of prohibition and/or mandamus directing the assessor

to either reverse its prior decisions to classify the properties for tax purposes as Class 2-99 for tax

years 2001, 2004, and 2005 and future tax years or reconsider, in light of the new evidence,

whether to classify the properties for tax purposes as Class 2-99 for tax years 2001, 2004, and

2005.

        All defendants filed a section 2-619.1 motion to dismiss on the grounds that plaintiffs had

failed to pursue their available remedies under the Property Tax Code (Code) (35 ILCS 200/1-1

et seq. (West 2006)), and failed to make a demand of the assessor or the Board for the relief

sought with respect to the mandamus count. While plaintiffs conceded they did not participate in

the statutory appeals process under the Code, they maintained in their response to the motions to

dismiss that they were prevented from learning who the true owners of the properties were in a

time sufficient for them to exercise the appeals process due to the fraudulent conduct of the

Thorncreek defendants, and that, therefore, they did not have an adequate remedy at law.

        After hearing arguments from all the parties, the trial court granted the motions to dismiss

on the grounds that plaintiffs were precluded from obtaining declaratory relief because they

failed to exhaust their available remedies under the Code and the Thorncreek defendants’ alleged

fraud did not provide an exception to that rule.

        On appeal, plaintiffs have requested this court to consider whether the trial court’s

granting of the motions to dismiss the complaint was erroneous due to the allegedly deceitful real

estate transactions of the Thorncreek defendants which rendered any remedies set forth under the

Code inadequate.


                                                   -4-
1-06-3589

       Section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2006))

permits a party to combine a section 2-615 motion to dismiss based upon a plaintiff’s

substantially insufficient pleadings with a section 2-619 motion to dismiss based upon certain

defects or defenses. It is proper for a court when ruling on a motion to dismiss under either

section 2-615 or section 2-619 to accept all well-pleaded facts in the complaint and reasonable

inferences from those facts as true. Buckner v. O’Brien, 287 Ill. App. 3d 173, 176 (1997);

Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156, 164 (2003). Our

review is de novo for motions brought under either section. Edelman, Combs & Latturner, 338

Ill. App. 3d at 164.

       A motion to dismiss under section 2-619 should be granted when it raises one or more

affirmative matters which negate the plaintiff’s cause of action or which refute crucial

conclusions of law or material facts that are unsupported by allegations of specific facts

contained or inferred in the complaint. Brackett v. Galesburg Clinic Ass'n, 293 Ill. App. 3d 867,

870 (1997). A motion to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS

5/2-615 (West 2006)) is properly granted where the plaintiff fails to state a cause of action upon

which relief can be granted. Neade v. Portes, 193 Ill. 2d 433, 439 (2000).

       The Property Tax Code provides a mechanism for interested parties who have standing to

file a complaint with the Board of Review and states, in pertinent part:

                       “In counties with 3,000,000 or more inhabitants,

               complaints that any property is overassessed or underassessed or is

               exempt may be made by any taxpayer. Complaints that any


                                                -5-
1-06-3589

               property is overassessed or underassessed or is exempt may be

               made by a taxing district that has an interest in the assessment to a

               board of review. All complaints shall be in writing, identify and

               describe the particular property, otherwise comply with the rules in

               force, be signed by the complaining party or his or her attorney,

               and be filed with the board of appeals (until the first Monday in

               December 1998 and the board of review beginning the first

               Monday in December 1998 and thereafter) in at least duplicate.

               The board shall forward one copy of each complaint to the county

               assessor.” 35 ILCS 200/16-115 (West 2006).

       Any taxpayer or taxing body which has an interest in the decision of the Board of Review

and is dissatisfied with its decision or the decision of the board of appeals as it pertains to the

assessment of his or her property for taxation purposes may appeal the decision to the Property

Tax Appeal Board for review. That section states in pertinent part:

               “[A]ny taxpayer dissatisfied with the decision of a board of review

               or board of appeals as such decision pertains to the assessment of

               his or her property for taxation purposes, or any taxing body that

               has an interest in the decision of the board of review or board of

               appeals on an assessment made by any local assessment officer,

               may *** (ii) in assessment year 1999 and thereafter in counties

               with 3,000,000 or more inhabitants within 30 days after the date of


                                                 -6-
1-06-3589

               the board of review notice or within 30 days after the date that the

               board of review transmits to the county assessor pursuant to

               Section 16-125 its final action on the township in which the

               property is located, whichever is later, appeal the decision to the

               Property Tax Appeal Board for review.” 35 ILCS 200/16-160

               (West 2006).

       Although the existence of another remedy ordinarily will not preclude bringing a

declaratory judgment action, declaratory relief is unavailable in revenue cases. It is the rule,

applying general equitable principles, that relief by way of declaratory judgment is not available

if the statute provides an adequate remedy. People ex rel. Fahner v. American Telephone &

Telegraph Co., 86 Ill. 2d 479, 485 (1981); La Salle National Bank v. County of Cook, 57 Ill. 2d

318, 322 (1974). “The application of the rule that equity jurisdiction cannot be invoked where

there is an adequate remedy at law depends upon the circumstances of each case.” Paul v. City

of Rockford, 283 Ill. App. 310, 319 (1936). It is a well-recognized principle that, because a

remedy at law is afforded in a case, equity will not also take jurisdiction of the same set of facts.

If the remedy in equity is more adequate because of special circumstances in the situation, the

jurisdiction of equity will be sustained. Famous Permanent Wave Shops, Inc. v. Smith, 302 Ill.

App. 178, 186 (1939), quoting Mayer v. Collins, 263 Ill. App. 219, 224 (1931).

       Here, the issue is whether the plaintiffs, under the particular circumstances of this case

involving the allegedly fraudulent conduct of the Thorncreek defendants, had an adequate

remedy at law. Specifically, they argue that because the Thorncreek defendants embarked upon


                                                 -7-
1-06-3589

this fraudulent scheme, they were prevented from learning who the true owners of the property

were until long after the statutory period of objecting to the assessment had passed, and

consequently, any potential administrative remedy established under section 16-115 of the

Property Tax Code was rendered inadequate.

        The tax objection procedure as outlined under the Property Tax Code states in pertinent

part:

                      “(a) A tax objection complaint under Section 23-10 shall be

               filed in the circuit court of the county in which the subject property

               is located. *** The complaint shall name the county collector as

               defendant and shall specify any objections that the plaintiff may

               have to the taxes in question. No appearance or answer by the

               county collector to the tax objection complaint, nor any further

               pleadings, need be filed. ***

                      ***

                      (2) The taxes, assessments, and levies that are the subject of

               the objection shall be presumed correct and legal, but the

               presumption is rebuttable. The plaintiff has the burden of proving

               any contested matter of fact by clear and convincing evidence.

                      (3) Objections to assessments shall be heard de novo by the

               court. The court shall grant relief in the cases in which the objector

               meets the burden of proof under this Section and shows an


                                                -8-
1-06-3589

               assessment to be incorrect or illegal. If any objection is made

               claiming incorrect valuation, the court shall consider the objection

               without regard to the correctness or any practice, procedure, or

               method of valuation followed by the assessor, board of appeals, or

               board of review in making or reviewing the assessment, and

               without regard to the intent or motivation of any assessing official.

               The doctrine known as constructive fraud is hereby abolished for

               purposes of all challenges to taxes, assessments, or levies.

                      (c) If the court orders a refund of any part of the taxes paid,

               it shall also order the payment of interest as provided in Section

               23-20. Appeals may be taken from final judgments as in other civil

               cases.” 35 ILCS 200/23-15 (West 2006).

       Plaintiffs point out they are not contending that the assessments by the county were

fraudulent or even constructively fraudulent but that the Thorncreek defendants’ “deceitful real

estate transactions” amounted to fraud, thereby rendering the remedy provided under sections 16-

115 and 16-160 inadequate.

       It has often been held that declaratory judgment is not a viable alternative to the statutory

remedies provided by the Code and that relief should not be granted under the declaratory

judgment act (735 ILCS 5/2-701 (West 2006)) in any tax case that would not require relief in

equity by injunction. See Hulse v. Kirk, 28 Ill. App. 3d 839, 841 (1975). The law is well

established that “equity will not assume jurisdiction unless special grounds for equitable


                                               -9-
1-06-3589

jurisdiction are established and unless the plaintiff does not have an adequate remedy at law

subject to two exceptions; namely, where a tax is unauthorized by law or is levied upon exempt

property.” Lopin v. Cullerton, 26 Ill. App. 3d 748, 752 (1975); see also Clarendon Associates v.

Korzen, 56 Ill. 2d 101, 105 (1973).

        In several cases, however, our supreme court has held that in addition to the two

exceptions noted above, equity will enjoin the collection of taxes when there has been a

fraudulent assessment of property. Clarendon Associates, 56 Ill. 2d at 105-06, citing Chicago,

Burlington & Quincy R.R. Co. v. Cole, 75 Ill. 591 (1874); Porter v. Rockford, Rock Island & St.

Louis R.R. Co., 76 Ill. 561, 596 (1875); Pacific Hotel Co. v. Lieb, 83 Ill. 602, 612 (1876); Bates

v. Parker, 227 Ill. 120, 126 (1907); Calumet & Chicago Canal & Dock Co. v. O’Connell, 265 Ill.

106 (1914); People’s Gas Light & Coke Co. v. Stuckhart, 286 Ill. 164, 176 (1918); Adlrich v.

Harding, 340 Ill. 354, 361 (1930); Ames v. Schlaeger, 386 Ill. 160, 162 (1944). In view of the

existence of the present statutory remedy, there is no apparent reason for continuing to afford

equitable relief in such cases unless the remedy at law is found to be inadequate. Clarendon

Associates, 56 Ill. 2d at 107.

        “The doctrine of exhaustion of remedies is a judicially created doctrine that precludes a

party from seeking review in the courts without first pursuing all administrative remedies

available.” In re Application of the Cook County Collector for the 1981 Tax Year, 173 Ill. App.

3d 821, 824 (1988). “The principal reason for exhaustion of administrative remedies in property

tax cases is to afford the tax authorities an opportunity, in the first instance, to correct fraudulent

or excessive assessments.” In re Application of Cook County Collector, 173 Ill. App. 3d at 824.


                                                 - 10 -
1-06-3589

          In People ex rel. Fahner v. American Telephone & Telegraph Co., 86 Ill. 2d 479, 486

(1981), the supreme court embarked upon a discussion of the exhaustion of remedies doctrine. It

stated:

                         “[A]n action for declaratory judgment can be maintained in

                 revenue cases where the procedure for assessing and collecting

                 taxes is specifically provided by statute only in situations where the

                 party bringing the action does not have an adequate remedy at law.

                 Therefore, in cases in which the statute does provide an adequate

                 remedy at law, an action in such a case is not one cognizable in the

                 first instance in the courts but is a matter properly maintained in

                 the first instance by an administrative agency alone. Thus these tax

                 cases fall within and are controlled by the doctrine of exhaustion of

                 remedies ***.” Fahner, 86 Ill. 2d at 486.

          In rendering its decision in the instant case, the trial court acknowledged all of the cases

which stand for the proposition that declaratory actions can be maintained in revenue cases where

the party bringing the action does not have an adequate remedy at law, and noted that the courts

will not review the assessment of property upon which taxes are based unless the assessments are

fraudulent or constructively fraudulent. However, the trial court went on to state that in each of

those cases, none of them dealt with fraud perpetrated by anyone other than the assessor or public

officials and that no exception existed for situations in which a taxpayer, such as the Thorncreek

defendants, has allegedly committed fraud.


                                                  - 11 -
1-06-3589

       We note that there is no statutory authority for the Cook County assessor to go back to

prior years and collect taxes for years where warrants have already been extended and the taxes

have been paid, nor have plaintiffs put forth that argument. Plaintiffs, while acknowledging there

is no statute or case law that empowers the courts to order the assessor to reverse the

classifications going back to 1996, ask us to carve out an exception due to the unusual

circumstances of this case. While this court may be sympathetic to such an appeal, we cannot act

beyond the parameters of the law and make exceptions that are not based in the law. The fact

remains that plaintiffs have an adequate remedy at law for future assessments, but a court of

equity is not empowered to order the assessor to go back to past years, reclassify a classification,

and decertify an assessment where warrants have been extended and the taxes collected.

       Plaintiffs also requested that the circuit court issue a writ of mandamus upon the assessor.

However, mandamus is appropriate only where there is a clear right to the requested relief, a

clear duty on the part of the respondent to act, and a clear authority in the respondent to comply

with the terms of the writ. Pucinski v. County of Cook, 192 Ill. 2d 540, 545 (2000). For the

reasons stated above, plaintiffs cannot meet this burden because they do not have a clear right to

the relief requested, nor is there a duty on the part of the assessor to act or comply with the terms

of such a writ of mandamus.

       Accordingly, the judgment of the circuit court is affirmed.

       Affirmed.

       HOFFMAN, P.J., and HALL, J., concur.




                                                - 12 -
