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06/19/96 APPLICATION COUNTY COLLECTOR FOR JUDGMENT

June 19, 1996

IN RE APPLICATION OF THE COUNTY COLLECTOR FOR JUDGMENT AND ORDER OF SALE AGAINST LANDS AND LOTS RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL TAXES FOR THE YEAR 1990 AND PRIOR YEARS (DONALD D. PARISI, RESPONDENT-APPELLANT,
v.
DEAN L. JOHNSON AND RITA DIXON NIELSEN, UNKNOWN OWNERS AND PARTIES IN INTEREST, PETITIONERS-APPELLEES).



Appeal from the Circuit Court of Kane County. No. 94-TX-26. Honorable R. Peter Grometer, Judge, Presiding.

Released for Publication July 23, 1996.

The Honorable Justice Bowman delivered the opinion of the court: Geiger and Thomas, JJ., concur.

The opinion of the court was delivered by: Bowman

The Honorable Justice BOWMAN delivered the opinion of the court:

Respondent, Donald D. Parisi, filed an amended motion pursuant to section 2--1203 of the Code of Civil Procedure (735 ILCS 5/2--1203 (West 1994)) to vacate the trial court's order directing the county clerk to issue a tax deed. The tax purchaser, petitioner Dean L. Johnson, filed a motion to dismiss Parisi's amended motion. The trial court entered an order dismissing the amended motion. Parisi now appeals that order. We reverse and remand.

BACKGROUND

The following facts may be gleaned from the record. Parisi owns certain property located in Hampshire, Illinois (subject property). The listed assessees of the subject property are Parisi and his deceased father, Frank Parisi, in care of their business, Dundee Realty.

On October 28, 1991, Johnson purchased a tax certificate for the subject property. On June 13, 1994, he filed a petition for a tax deed, which requested that the trial court enter an order directing the county clerk to issue a tax deed conveying the subject property to Johnson if the owed taxes were not redeemed within the time and manner provided by law. The period of redemption expired on October 19, 1994, at which time Parisi had not redeemed the owed taxes.

On October 26, 1994, Johnson filed an application for a tax deed, along with a supporting affidavit. That same day the trial court entered an order directing the county clerk to issue a tax deed to Johnson for the subject property. However, this order contained an error in the legal description of the subject property. Consequently, on January 31, 1995, Johnson filed an amended petition for a tax deed and a motion for leave to file an amended order for a tax deed.

On January 31, 1995, the trial court entered an amended order directing the county clerk to issue a tax deed to Johnson for the subject property. On or about February 2, 1995, the county clerk issued a tax deed to Johnson, which he recorded on February 7, 1995. On February 9, 1995, Johnson conveyed the subject property to Rita Dixon Nielsen by warranty deed, which Nielsen recorded on February 16, 1995.

On March 1, 1995, Parisi filed a motion to vacate the judgment, the amended order, and the tax deed pursuant to section 2--1203 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1203 (West 1994)) and section 22--45 of the Property Tax Code (35 ILCS 200/22--45 (West 1994)). On March 24, 1995, Parisi filed an amended motion to vacate the judgment, the amended order, the tax deed, and to quiet title. The amended motion also added Nielsen as a party in interest.

On April 10, 1995, Johnson filed a motion to dismiss Parisi's amended motion. Johnson's motion alleged that tax deeds are incontestable under section 22--45 of the Property Tax Code except by filing an appeal or a petition under section 2--1401 of the Code (735 ILCS 5/2--1401 (West 1994)). Johnson requested that the trial court dismiss Parisi's motion because Parisi did not contest the issuance of the tax deed by either of these methods. On July 12, 1995, after hearing arguments on the matter, the trial court entered an order granting Johnson's motion to dismiss.

Parisi then filed a notice of appeal of the trial court's order. The notice of appeal was file stamped August 14, 1995. The notice of filing attached to the notice of appeal states that the notice of appeal was filed with the clerk of the circuit court of Kane County on August 11, 1995. The certificate of service attached to the notice of appeal states that Parisi's attorney mailed a copy of the notice of appeal to Johnson on August 14, 1995. On February 8, 1996, Parisi filed an application to amend his notice of appeal and to file an amended notice of appeal, which this court granted on February 22, 1996. The certificate of mailing attached to the amended notice of appeal states that Parisi's attorney served the original notice of appeal upon the clerk of the court of Kane County by mailing the document on August 11, 1995.

ARGUMENT(S)

Parisi has two contentions on appeal: (1) section 22--45 of the Property Tax Code permits a party to contest the issuance of a tax deed by filing a motion under section 2--1203 of the Code; and (2) Johnson was not entitled to the issuance of a tax deed for the subject property because he failed to comply with the notice requirements of the Property Tax Code (35 ILCS 200/22--10, 22--15, 22--20, 22--25 (West 1994)).

Preliminarily, we must determine whether this court has jurisdiction over the appeal. Johnson claims that Parisi did not file a notice of appeal within 30 days of the trial court's order dismissing Parisi's amended section 2--1203 motion. As such, Johnson argues, ...


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