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12/07/95 CINCH MANUFACTURING COMPANY v. EDWARD J.

December 7, 1995

CINCH MANUFACTURING COMPANY, PETITIONER, AND COMMONWEALTH EDISON COMPANY, PETITIONER-APPELLANT,
v.
EDWARD J. ROSEWELL, COUNTY TREASURER AND EX-OFFICIO COUNTY COLLECTOR OF COOK COUNTY, ILLINOIS, AND THE CITY OF CHICAGO, RESPONDENTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE FRANCIS BARTH, JUDGE PRESIDING.

Presiding Justice Hoffman delivered the opinion of the court: Cahill and Theis, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The petitioner, Commonwealth Edison Company (Edison), appeals from the trial court's denial of a motion to amend its petition for a return of personal property taxes paid under protest. The trial court found that 13 articles of personal property in dispute were not part of a timely filed petition and therefore it lacked jurisdiction to permit the amendment. Edison appeals, alleging that the trial court erred in denying its proposed amendment. We affirm.

The county clerk of Cook County extended personal property taxes levied by Cook County taxing bodies, including the City of Chicago (City) and the County of Cook (County), for the 1978 tax year. Nine hundred thirty-seven (937) personal property tax bills were issued to Edison for that tax year on items of personal property owned by it and located in Cook County. In accordance with section 195 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 676 (repealed by Pub. Act 81-1, 1st Sp.Sess., ยง 11, eff. December 11, 1982)), Edison paid all 937 tax bills in full and under protest.

On February 6, 1980, Edison and Cinch Manufacturing Company (Cinch) filed one petition pursuant to section 195 (Ill. Rev. Stat. 1979, ch. 120, par. 676) seeking the return of personal property taxes paid under protest for the 1978 tax year. Attached to that petition was "Schedule A", listing 924 items of personal property owned by Edison and one item owned by Cinch.

Edison and other tax objectors later entered into settlement agreements with many of the taxing bodies involved. The agreements included all of Edison's perfected tax objections on personal property for 1978. The settlement agreement between Edison and the City, entered into on June 15, 1987, provided that it "shall be in total settlement for all taxes payable by the City to the Objectors based on their objections filed against the City's property tax levies for the Settlement Period." Pursuant to the settlement agreement with the City, the trial court entered a "Final Pronouncement Order" on August 3, 1987, and incorporated the agreement into the order. In the order, the court found that the county collector made a prima facie case on its application for judgment. The court sustained all timely-filed objections to the 1978 taxes levied by the City to the extent of $.020 per $100 of equalized assessed valuation and overruled the objections in all other respects. The order stated that the trial court retained jurisdiction to enter refund orders consistent with the pronouncement order and the provisions of the settlement agreement.

On January 30, 1989, Edison and the County filed a written settlement agreement with the trial court settling the objections to the 1978 personal property taxes. The County was the last taxing body to settle these objections. Pursuant to this settlement agreement, the trial court entered a "Final Pronouncement Order" on March 8, 1989, in substantially the same form as the pronouncement order entered as a result of the settlement with the City except that it did not specifically incorporate the settlement agreement and it sustained the objections to the extent of $.015 per $100 of equalized assessed valuation.

Subsequently, on February 1, 1990, the Cook County Treasurer sent Edison a computer printout of "the 1978 Personal Property Illegal Rate refund" and requested that Edison check the list for errors. After checking the printout, Edison discovered that, due to a clerical error on its part, 13 items of personal property had been omitted from "Schedule A" of its tax objection petition even though the taxes on those items had been paid in full under protest. On July 30, 1990, Edison filed a motion to amend its petition to include the 13 omitted items. The City and the County opposed the motion to amend.

After a hearing, the court denied Edison's motion to amend, finding that it did not have jurisdiction to amend or modify the final pronouncement order because the motion to amend was not filed until a year and a half after the order was entered. After its motion to reconsider was denied, Edison filed a notice of appeal.

On appeal, this court found that the trial court had jurisdiction to consider Edison's motion to amend because the pronouncement order, although labelled "final," was not a final order because the court did not determine the amount of the refund. ( Cinch Manufacturing Co. v. Rosewell (1993), 255 Ill. App. 3d 37, 41, 627 N.E.2d 276, 279, 194 Ill. Dec. 160.) Because Edison appealed from a nonfinal order, we dismissed the appeal for lack of appellate jurisdiction.

The trial court subsequently denied Edison's motion to amend on August 26, 1994, finding that its failure to include the 13 items of personal property in the initial petition was a jurisdictional defect under section 195 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 676). The trial court noted that the defect could not be cured by amendment, since the statute required the petition to be filed within one year from the date of the taxes being paid under protest and Edison had filed its motion to amend more than 10 years after paying the taxes under protest. In addition, the court found that Edison had settled its tax objections with the County and the City in good faith and could not seek a modification of that settlement.

The court entered judgment for a refund of $117,532.65 on August 31, 1994. After Edison's motion to vacate was denied, it filed this appeal.

Section 195 of the Revenue Act of 1939 provided that any person paying taxes under protest "may file a petition in the circuit court for the county where the payment under protest was made, praying for the return of all or any part of the personal property taxes so paid under protest." (Ill. Rev. Stat. 1979, ch. 120, par. 676.) The form of the written protest was set forth in section 195 and required inclusion of the tax collector's warrant book volume and item number of the personal property involved. Section 195 also provided that if a petition was not filed within one year of paying the taxes under protest, "the protest shall be deemed ...


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