                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




  In re Application of the County Treasurer & ex officio County Collector of Lake County,
                                 2011 IL App (2d) 100911




Appellate Court            In re THE APPLICATION OF THE COUNTY TREASURER AND ex
Caption                    officio COUNTY COLLECTOR OF LAKE COUNTY, ILLINOIS, FOR
                           JUDGMENT AND ORDER OF SALE AGAINST REAL ESTATE
                           RETURNED DELINQUENT FOR THE NONPAYMENT OF
                           GENERAL TAXES AND SPECIAL ASSESSMENTS FOR THE YEAR
                           1999 AND PRIOR YEARS (Warren M. Mose 1996 Trust, and Thomas
                           A. Violini and Paul Goldberg, as Successor Co-trustees, Petitioners-
                           Appellants, v. Glen Investments, Wayne Hummer Trust Company, N.A.,
                           as Trustee under a Trust Agreement Dated December 4, 2002, and known
                           as Trust Number LFT-1730, and ASPEN PARTNERS, LLC,
                           Respondents-Appellees).
District & No.             Second District
                           Docket No. 2-10-0911


Filed                      November 23, 2011


Held                       Where petitioners’ predecessor constructed a sewer and water main
(Note: This syllabus       system in return for a recapture agreement under which the predecessor
constitutes no part of     obtained an interest in the land to secure payment, and when the property
the opinion of the court   was subsequently sold for delinquent taxes and a tax deed was issued to
but has been prepared      respondents, petitioners and the owners each moved to vacate the tax
by the Reporter of         deed, the appellate court reversed the trial court’s denial of the petitions
Decisions for the          to vacate, on remand the trail court did not abuse its discretion in granting
convenience of the         petitioners’ request to vacate the tax deed without giving other relief,
reader.)
                           since petitioners’ interest in the land was based on the recapture
                           agreement, and in the absence of a showing of what that interest was,
                           there was no basis for determining the fair market value of the property
                           and awarding petitioners damages based on that value.
Decision Under              Appeal from the Circuit Court of Lake County, Nos. 00-TX-1, 02-TD-
Review                      197; the Hon. Wallace B. Dunn, Judge, presiding.



Judgment                    Affirmed.


Counsel on                  James C. Bakk, of Law Offices of James C. Bakk, of Waukegan, for
Appeal                      appellant.

                            Margaret Morrison Borcia, of Morrison & Morrison, P.C., of Waukegan,
                            for appellee.


Panel                       JUSTICE McLAREN delivered the judgment of the court, with opinion.
                            Justices Bowman and Zenoff concurred in the judgment and opinion.




                                               OPINION

¶1          Petitioners, the Warren M. Mose 1996 Trust with Thomas A. Violini and Paul Goldberg
        as successor co-trustees (the Mose Trust), appeal the trial court’s order denying them money
        damages pursuant to their petition to vacate a tax deed order against respondent Aspen
        Partners, LLC. No other party to the proceedings has appealed from the judgment entered by
        the trial court. On appeal, the Mose Trust argues that the trial court erred by failing to (1) find
        that Aspen Partners was not a bona fide purchaser for value; and (2) determine a fair market
        value of the property and assess a damages judgment against Aspen Partners and in favor of
        the Mose Trust. We affirm.

¶2                                      I. BACKGROUND
¶3          We recite only the facts necessary for this appeal. Warren Mose constructed a sanitary
        sewer and water main system on property known as the Clavey Property, located in Vernon
        Hills. In 1988 Mose and Gordon Clavey, the beneficiary of a land trust that held title to the
        Clavey property, executed a recapture agreement that provided that the land trust would pay
        Mose $80,000 plus interest by December 31, 1992, or when the property was sold, whichever
        occurred first. The agreement further provided that if Mose was not paid by such time, he
        would have “the right to assert his right of claim through a lien against the real estate.” In
        1992 Clavey created the Gordon Clavey Living Trust (Clavey Trust), which became the
        beneficiary of an intervening land trust that previously held title to the Clavey property. In

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     1993 the recapture agreement was amended to extend the final payment date to December
     31, 1994. The Clavey property was not sold by that date, and Mose was never paid the
     principal due him.
¶4        Mose recorded the original recapture agreement with the Lake County recorder of deeds
     in 1993. However, he failed to file a mechanic’s lien. In 1996 Mose assigned all his interests
     in the recapture agreement and the amended recapture agreement to the Mose Trust. In 2010
     Mose died and Violini and Goldberg succeeded as co-trustees of the Mose Trust.
¶5        In 2002 a tax deed was issued to the Glen Investments, Wayne Hummer Trust Company,
     N.A., which then sold the Clavey property to Aspen Partners in 2003. Subsequently, Mose
     filed an amended petition pursuant to section 2-1401 of the Code of Civil Procedure (735
     ILCS 5/2-1401 (West 2002)) to vacate the tax deed under the recapture agreement. The
     petition alleged that Mose had an interest in the Clavey property and that he was not properly
     served with notice by the tax deed purchaser. Mose requested that the trial court declare all
     subsequent sales to be null and void and sought any further relief the court deemed just. The
     Clavey Trust also filed a section 2-1401 petition to vacate the tax deed, and the two petitions
     were consolidated. The trial court denied the consolidated petitions to vacate. On appeal, this
     court reversed the trial court’s judgment, determining, inter alia, that Mose and the Clavey
     Trust had interests in the Clavey property sufficient to require notice pursuant to sections 22-
     10 through 22-30 of the Property Tax Code (35 ILCS 200/22-10 through 22-30 (West 2002)).
     In re the Application of the County Treasurer & ex officio County Collector of Lake County,
     Illinois, for Judgment & Order of Sale Against Real Estate Returned Delinquent for the Non-
     payment of General Taxes & Special Assessments for the Year 1999 & Prior Years, Nos. 2-
     06-0729, 2-06-0730, 2-06-0739 cons. (2008) (unpublished order under Supreme Court Rule
     23) (Clavey I). We further held that the trial court’s finding that Aspen Partners was a bona
     fide purchaser for value was against the manifest weight of the evidence. Id. at 37. We
     remanded the case to the trial court for further proceedings.
¶6        On remand, after a hearing, the trial court granted Mose’s (now known as the Mose
     Trust) section 2-1401 petition and vacated the tax deed, but granted the Mose Trust no other
     relief. Regarding the Clavey Trust, the trial court also vacated the tax deed and awarded the
     Clavey Trust $3,877,654.28 in damages against Glen Investments. The Mose Trust filed this
     appeal.

¶7                                       II. ANALYSIS
¶8       The Mose Trust argues that the trial court erred by failing to find that Aspen Partners was
     not a bona fide purchaser for value. The Mose Trust fails to recognize that, under the “law
     of the case” doctrine, issues that were decided in a previous appeal are binding on the trial
     court on remand. See Bjork v. Draper, 404 Ill. App. 3d 493, 501 (2010). In Clavey I, this
     court determined that “the trial court’s finding that Aspen Partners, LLC, was a bona fide
     purchaser for value was against the manifest weight of the evidence.” Clavey I, slip order at
     38. On remand, the trial court was bound by this determination. Because this court already
     determined the issue, the trial court did not err by failing to make a finding that Aspen
     Partners was not a bona fide purchaser for value.


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¶9          Next, the Mose Trust argues that the trial court erred by failing to determine a fair market
       value of the Clavey property and assess a damages judgment against Aspen Partners and in
       favor of the Mose Trust. The Mose Trust argues that the trial court should have awarded it
       the fair market value of at least $7.5 million less the $4.1 million it awarded to the Clavey
       Trust and minus appropriate deductions.
¶ 10        The Mose Trust essentially argues that it is entitled to the same relief obtained by the
       Clavey Trust. The relief granted to the Clavey Trust was based on its interest as a prior
       owner. However, the Mose Trust has failed to establish that its interest in the property was
       the same as that of the Clavey Trust. Further, the Mose Trust has failed to establish that it is
       entitled to any relief based upon the interest it had in the property. The prior law of the case
       determined that Mose had an interest, but it was never suggested or determined that this
       interest was the same as or similar to the interests held by the Clavey Trust.
¶ 11        The interest that the Mose Trust has in the property is limited to the interest that Mose
       had. The interest that Mose had in the property was based on the recapture agreement. Clavey
       I, slip order at 34-35. The Mose Trust had the burden to establish what its interest was, or
       what its rights were, under the recapture agreement. See Ollivier v. Alden, 262 Ill. App. 3d
       190, 196 (1994). However, the Mose Trust failed to do so. In addition, the Mose Trust failed
       to establish what damages it incurred pursuant to the terms of the recapture agreement. The
       Mose Trust chose to grasp at the coattails of the Clavey Trust instead of seeking the relief
       it might have been entitled to under the recapture agreement. Because the Mose Trust failed
       to establish that it was entitled to the relief it sought, we cannot say that the trial court abused
       its discretion by failing to determine the fair market value of the property and award
       damages, based upon such value, in favor of the Mose Trust. See Ollivier, 262 Ill. App. 3d
       at 196 (the party seeking to recover damages bears the burden of proving the correct
       measurement of damages and the final computation of damages based on that measurement).

¶ 12                                   III. CONCLUSION
¶ 13       The judgment of the circuit court of Lake County is affirmed.

¶ 14       Affirmed.




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