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09/26/97 APPLICATION COUNTY TREASURER AND EX

September 26, 1997

IN RE APPLICATION OF THE COUNTY TREASURER AND EX OFFICIO COUNTY COLLECTOR, FOR JUDGMENT AND ORDER OF SALE AGAINST REAL PROPERTY RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL TAXES AND SPECIAL ASSESSMENTS FOR THE YEAR 1992 AND PRIOR YEARS (BLUEGREEN CORPORATION OF LAKE CARROLL, PETITIONER-APPELLANT,
v.
C AND W INVESTMENT, INC., RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Carroll County. No. 96--TX--1. Honorable John W. Rapp, Jr., Judge, Presiding.

Released for Publication October 24, 1997.

The Honorable Justice Doyle delivered the opinion of the court. Bowman and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Doyle

The Honorable Justice DOYLE delivered the opinion of the court:

This appeal raises the issue of whether section 21--380 of the Property Tax Code (Tax Code) (35 ILCS 200/21--380 (West 1996)) requires that a redemption be made under protest if the redemption occurs after a petition for a tax deed has been filed. Petitioner, Bluegreen Corporation of Lake Carroll (Bluegreen), appeals from an order of the circuit court of Carroll County which denied Bluegreen's motion to vacate an order to issue a tax deed to respondent, C&W Investments, Inc. (C&W). Bluegreen contends that the trial court erred when it ruled that Bluegreen's attempt to redeem after C&W filed a petition for a tax deed failed because Bluegreen did not redeem under protest.

The essential facts are not in dispute. At a tax sale held on November 29, 1993, C&W purchased a parcel of real property located in Carroll County (the property) and received a certificate of purchase for the property. On March 8, 1996, C&W filed a petition for a tax deed on the property. In addition, at C&W's direction, the county clerk issued a "Take Notice" dated March 8, 1996, to each owner, occupant, and lien holder of record, including a lien holder known as Patten Corporation.

Bluegreen, the successor to Patten Corporation, received a Take Notice. The Take Notice advised Bluegreen that the property had been sold for delinquent taxes; the period of redemption would expire July 19, 1996 (an extended period of redemption); a petition for a tax deed had been filed; a hearing on the matter was set for July 22, 1996; and Bluegreen could be present at the hearing, but the right to redeem would have already expired at that time. The Take Notice urged Bluegreen to redeem immediately to prevent loss of the property and advised that "redemption can be made at any time on or before July 19, 1996[,] by applying to the County Clerk."

On July 11, 1996, William J. Urquart, a Bluegreen employee, called the county clerk's office in Carroll County to obtain redemption information regarding the property. Urquart spoke to a deputy clerk who advised him that the redemption amount for the property was $4,627.67. On the same date, Urquart sent a cashier's check to the county clerk's office in the amount of $4,627.67 to redeem the property. The county clerk's office received the check on July 12, 1996.

On July 22, 1996, the trial court conducted a hearing on C&W's petition for a tax deed. Bluegreen did not appear at the hearing. C&W's president, Walter Pratt, testified on C&W's behalf. While Pratt was testifying, the court asked if the property had been redeemed. C&W's attorney, Eric Pratt, responded:

"There was an attempt to redeem. I submit the County Clerk's Affidavit signed by Judith Gray on the matter that's before the Court. Of particular importance is that the entire redemption amount was paid; however, the party in an attempt to redeem did not comply with Section 35 ILCS 200-21-380 [sic] in that they did not file a redemption under protest document which I have the statute for here."

In support of its position, C&W provided the trial court with a copy of a decision from the Appellate Court, Fifth District, In re Application for Judgment & Sale by the County Treasurer & ex officio County Collector, 276 Ill. App. 3d 1084, 213 Ill. Dec. 541, 659 N.E.2d 457 (1995) (hereinafter Galmon, one of the parties in the case). C&W asserted that Galmon controlled this case and required the party attempting to redeem to do so under protest. C&W further asserted that a party attempting to redeem under protest was required to file a form entitled "Redemption Under Protest." C&W argued that because the party attempting to redeem in this case (Bluegreen) did not file such a form the attempted redemption failed.

C&W advised the trial court that there were no contrary opinions to Galmon. The court then entered an order directing the county clerk to issue a tax deed to C&W. The order stated that the property had not been redeemed; directed the clerk to return the redemption money to Bluegreen; and required C&W to mail a copy of the order to Bluegreen.

On August 6, 1996, Bluegreen filed a motion to vacate the order for the issuance of a tax deed pursuant to section 2--1203 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1203 (West 1996)). The motion asserted that Bluegreen had properly redeemed the property prior to the expiration of the redemption period and that the trial court therefore erred in finding that the property had not been redeemed.

On September 9, 1996, the trial court conducted a hearing on Bluegreen's motion to vacate. Bluegreen argued that Galmon was factually distinguishable from this case and therefore was not controlling. However, the trial court determined that Galmon was directly on point and was controlling. Based on that ...


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