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In Re Application of Kane County Collector

OPINION FILED AUGUST 13, 1985.

IN RE APPLICATION OF KANE COUNTY COLLECTOR (VIRGINIA J. THARP, PETITIONER-APPELLANT,

v.

ROBERT CRITTON, KANE COUNTY TREASURER, ET AL., RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Kane County; the Hon. Paul Schnake, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Petitioner, Virginia J. Tharp, appeals for the second time the judgment of the circuit court of Kane County entered on her petition for indemnity filed pursuant to section 247a(4) of the Revenue Act of 1939 (the Act), which section is designed to ameliorate in some instances the harsh consequences of a tax foreclosure. Ill. Rev. Stat. 1979, ch. 120, par. 728a(4).

Petitioner lost her home, located at 825 Royal Lane, Dundee, for nonpayment of real estate taxes for 1975. A tax deed was issued to Michael Lapat on December 21, 1979, after the redemption period expired. After a hearing on the petition, the trial court awarded her $1 as indemnity. On appeal, she asserted that the trial court erred in not awarding indemnity in the amount of the fair cash value of the subject property: $75,000. This court determined that section of the Act required the court to make a two-pronged determination: first, whether the petitioner is "equitably entitled to just compensation" and, second, the amount of such compensation. (In re Application of Kane County Collector (1981), 102 Ill. App.3d 43, 45.) We determined that the amount of the compensation to be awarded is not discretionary with the court, but is delineated by the statute; i.e., fair cash value of the real estate as of the date that the tax deed issued, less any mortgages or liens thereon. (Ill. Rev. Stat. 1979, ch. 120, par. 728a(4).) Because it was clear that the trial court was concerned with the "equities of the situation" in awarding petitioner $1 as indemnity, we concluded the trial court applied the wrong standards in the case, and we reversed and remanded "for a new trial on the issues." (In re Application of Kane County Collector (1981), 102 Ill. App.3d 43, 49.) Petitioner now appeals from the judgment of the circuit court entered upon retrial that she was not entitled to the equity relief sought.

Petitioner contends that (1) the trial court's denial of indemnity was contrary to the law of the case as established by this court's first opinion; (2) the denial of indemnity was against the manifest weight of the evidence; and (3) the denial of indemnity frustrates the purpose of the statute and the legislative intent.

LAW OF THE CASE

Petitioner asserts she proved her entitlement to the indemnity to the first trial court and that this court agreed, thereby establishing the law of the case on point one of the two-pronged tests; i.e., "the trial court correctly ruled that the petitioner came within the protection of section 247a(4) of the Revenue Act of 1939." (In re Application of Kane County Collector (1981), 102 Ill. App.3d 43, 46.) Consequently, having confined its consideration to the question whether the trial court erred in allowing only a token award which "confirms [her] right to indemnity but gives her no relief," petitioner contends this court's determination that the amount of the damages is not discretionary but must be for the loss or damage sustained amounts to a specific finding that the amount of the award to petitioner should have been $75,000, the value of the property as stipulated to by the parties. Petitioner asserts the trial court's refusal after remand to enter an order awarding her that amount was error. The trial court also refused to grant petitioner's motion after remand seeking the same relief by way of summary judgment; however, petitioner's brief contains no argument on that issue and it is not considered here.

• 1 As respondent points out, however, it is clear that the thrust of this court's first opinion was that the trial court had used the wrong approach when it determined that the "equities of the situation" warranted an award of only $1 to petitioner as indemnity. As noted above, we ruled that the trial court should have made a two-pronged determination rather than an award based on the "equities of the situation." (102 Ill. App.3d 43, 48.) Because the trial court used the wrong approach in making its decision, its $1 indemnity award was an anomaly, since if the trial court was of the opinion that the petitioner was entitled to indemnity, its award should have reflected the amount of the loss sustained by her. If the trial court did not believe petitioner was entitled to indemnity, no award of any kind would have been warranted. Our determination that petitioner "came within the protection of section 247a(4)" is not synonymous with a finding that petitioner was entitled to indemnity. Our determination in that regard was made in passing favorably on petitioner's motion to strike respondent's argument on appeal on the applicability of the amendatory provisions of Public Act 81-512 to the cause at bar because respondent failed to file a cross-appeal. Effective January 1, 1980, the amendment in question added to the statute words which "simply add[ed] an additional remedy to another class of persons" (In re Application of the Cook County Treasurer & Ex-Officio Collector (1983), 119 Ill. App.3d 212, 215), to which class this court determined petitioner belonged. (In re Application of Kane County Collector (1981), 102 Ill. App.3d 43, 45-46.) Section 247a(4) of the Act, with the added words shown in italics, provides:

"(4) Any owner of real estate sold pursuant to any provision of this Act at a sale held subsequent to September 1, 1970, who without fault or negligence of his own sustains loss or damage by reason of the issuance of a tax deed pursuant to Sections 266 or 266a, and who is barred or in any way precluded from bringing an action for the recovery of such real estate or any owner or [sic] property containing four or less dwelling units who resided thereon the last day of the period of redemption who, in the opinion of the Court which issued the tax deed order, is equitably entitled to just compensation, has the right to indemnity for the loss or damage sustained. Indemnity shall be limited to the fair cash value of the real estate as of the date that the tax deed was issued, less any mortgages or liens thereon." Ill. Rev. Stat., 1984 Supp., ch. 120, par. 728a(4).

• 2 The respondent had argued before the first trial court that the statute as amended by this language did not govern the case since the tax sale was held and the tax deed issued prior to the effective date of the amendatory provision. It is clear, however, that where an amendment is remedial in nature, all rights of action thereunder will be enforceable under the new procedure, without regard to whether they accrued before or after such change of law or whether suit had been instituted or not, unless there is a savings clause as to existing litigation. (Sostak v. Sostak (1983), 113 Ill. App.3d 954, 960; Maiter v. Chicago Board of Education (1980), 82 Ill.2d 373, 390, cert. denied (1981), 451 U.S. 921, 68 L.Ed.2d 312, 101 S.Ct. 2000.) Consequently, this court determined that the petitioner "came within" its protection.

As petitioner argues, it is true that the "law of the case" as decided on a previous appeal is binding on both the trial court and the appellate court in subsequent appeals (Gord Industrial Plastics, Inc. v. Aubrey Manufacturing, Inc. (1984), 127 Ill. App.3d 589, 591), save, for instance, where in the interim the supreme court decides the precise question contrary to the rule announced in the appellate court. (Relph v. Board of Education (1981), 84 Ill.2d 436, 443-44 (reversing Hagopian v. Board of Education (1980), 83 Ill. App.3d 1097.)

"[T]he rule that a trial court is bound by the law of the case, as found by a court on appeal, is not applicable to issues of fact [citations], and matters concerning the merits of the controversy between the parties which were presented to but not decided by the appellate court can be relitigated on remand [citations]." Zokoych v. Spalding (1980), 84 Ill. App.3d 661, 667.

• 3, 4 Further, it has been established that the correctness of a trial court's action on remand is to be determined from the appellate court's mandate, as opposed to the appellate court's opinion unless, of course, the mandate directs the trial court to proceed in conformity with the opinion. (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill.2d 291; Perrin v. Pioneer National Title Insurance Co. (1982), 108 Ill. App.3d 181.) Although the common law record provided this court by petitioner failed to include a copy of the mandate in violation of Supreme Court Rule 321 (87 Ill.2d R. 321), this court may take judicial notice of its own records in the same case before it. (State Farm Mutual Automobile Insurance Co. v. Grebner (1971), 132 Ill. App.2d 234; Brantley v. Delnor Hospital, Inc. (1970), 120 Ill. App.2d 185.) The mandate issued at bar directed only that "the judgment of the trial court is reversed and the cause remanded for a new trial." Had it been this court's intention to have judgment entered in petitioner's favor for the full cash value of the loss sustained by her as shown by the evidence in the first trial, it was within this court's power to specifically order such relief in our mandate to the trial court. (87 Ill.2d R. 366.) That action was not taken; rather, we remanded the cause so that the trial court could reconsider the petition using the "correct" two-pronged approach as determined in our opinion. Our opinion specifically noted that the cause was being reversed and remanded for a new trial on the issues because the trial court had applied the wrong standard in the case. The clear implication is that a de novo hearing was being mandated. A new trial is a trial de novo, and the subsequent trial judge is not bound by the findings of his predecessor. Travelers Insurance Co. v. Robert R. Anderson Co. (1983), 112 Ill. App.3d 812, 817.

Accordingly, the court below did not err in refusing to simply enter judgment in petitioner's favor.

ABUSE OF DISCRETION

Petitioner next contends the trial court's judgment was against the manifest weight of the evidence. Specifically, petitioner asserts the trial court erred in its reasoning that her ability to continue to work as a nurse bore any relationship to her ability to manage business and financial affairs such as the payment of real estate taxes. She characterizes the record as being "replete with evidence" indicating she was unable to manage her business affairs subsequent to the death of her husband and, later, her attorney.

Respondent argues the evidence presented does not show petitioner was so depressed as to have rendered her helpless to cope with her financial affairs; rather, that ...


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