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Brazas v. The Property Tax Appeal Board

December 29, 1999

CHRISTOPHER J. BRAZAS, PLAINTIFF-APPELLANT,
V.
THE PROPERTY TAX APPEAL BOARD, HOMER HENKE, CHARLES CAIN, SHARON U. THOMPSON, MAX E. COFFEY; THE KANE COUNTY BOARD OF REVIEW, DUANE SUNDERLAGE, F. SPREIT, J. ORIN; AND BURLINGTON TOWNSHIP ASSESSOR, DIANE WECK, DEFENDANTS-APPELLEES
WESLEY J. BRAZAS, JR., PLAINTIFF-APPELLANT,
V.
THE PROPERTY TAX APPEAL BOARD, HOMER HENKE, CHARLES CAIN, SHARON THOMPSON, MAX E. COFFEY; THE KANE COUNTY BOARD OF REVIEW, TIMOTHY DWYER, FREDERICK SPREIT, SALLY HUBER, JOHN VORESIS, CHARLES DAY; AND HAMPSHIRE TOWNSHIP ASSESSOR, ROSE M. LETHEBY, DEFENDANTS-APPELLEES



Appeal from the Circuit Court of Kane County. No. 97-MR-439 & No. 98-MR-0142 Honorable Patrick J. Dixon, Judge, Presiding.

The opinion of the court was delivered by: Justice Inglis

The above-captioned appeals have been consolidated for decision. In appeal No. 2--98--1434 (97--MR--439), plaintiff, Christopher J. Brazas (Christopher), appeals from the circuit court's order granting the section 2--619 motion (735 ILCS 5/2--619 (West 1998)) of defendant, the Property Tax Appeal Board (PTAB or agency) to dismiss Christopher's verified petition for the judicial review of the PTAB's final administrative order regarding Christopher's property tax assessment.

The PTAB's unverified motion to dismiss alleged that the service of summons for administrative review was not effectuated upon the agency within 35 days of service of the final order in conformity with sections 3--103 and 3--105 of the Administrative Review Law (Review Law) (735 ILCS 5/3--103, 3--105 (West 1998).

Christopher contends that the trial court erred in dismissing the petition. Although the clerk's certificate was not in the court file, he claims there was evidence that the summons and complaint were served; furthermore, he asserts that the PTAB's written responses and its filing of the agency's record acknowledged the complaint and receipt of summons and amounted to a waiver of any (jurisdictional) defect in service. For the reasons that follow, we reverse the order dismissing the petition and remand the cause for further proceedings.

Similarly, in appeal No. 2--99--0702 (98--MR--0142), plaintiff, Wesley J. Brazas, Jr. (Wesley), appeals from the circuit court's order granting the PTAB's unverified motion to dismiss his petition for judicial review of the PTAB's final administrative order regarding the assessment of property taxes. The PTAB's motion in that case also alleged that the service of the summons and complaint were not effectuated in accordance with the provisions of the Review Law (735 ILCS 5/3--103, 3--105 (West 1998)). Wesley argues that the PTAB's actions and written responses in the record acknowledging the receipt of the summons and complaint constituted a general appearance and waived any defect or irregularities in the service; that the court had "jurisdiction" over defendants; and that it was error to dismiss the petition for review. Furthermore, Wesley argues for the first time in his appellate brief that Rule 137 sanctions are warranted against the Attorney General because of alleged misrepresentations or misleading conduct by that office. See 155 Ill. 2d R. 137. Because of the facts distinguishing this appeal from Christopher's appeal, we must deny any and all relief requested by Wesley and affirm the circuit court's order dismissing Wesley's petition for administrative review.

We note that Wesley has attempted to intertwine his arguments in his appellate brief with those of Christopher, presumably because the separate appeals were consolidated for decision. No motion to submit a combined appellate brief was made, and we have elected to treat each appeal and its designated appellant's respective arguments separately for purposes of our disposition.

Appeal No. 2--98--1434

On December 18, 1997, Christopher filed a petition for the judicial review of the final administrative order of the PTAB whose decision reviewed a certain residential property tax assessment for 1996 and was entered on November 14, 1997. Plaintiff's petition was filed within the 35-day time period for judicial review. Section 3--103 of the Review Law provides that an action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision was served upon the party affected by the decision. 735 ILCS 5/3--103 (West 1998).

The petition alleged that the PTAB erred in determining the fair market value of the residential property in Hampshire, Illinois, that Christopher described as an "incomplete" residence or a property improvement that was not "substantially completed" during the relevant tax period. The petition was signed by Christopher and notarized on December 18, 1997. Also filed was a notarized proof of service signed by Christopher and dated December 19, 1997. On that same page of the document is a circuit court clerk's file stamp, also dated December 18, 1997. The proof of service states, under oath, the last known addresses of the defendants for the clerk to serve them with the "Notice and Acknowledgment of Service of Docketing Statement." There are addresses listed for the PTAB, the Burlington Township Assessor, and the Kane County Board of Review. Appended to the proof of service are receipts for certified mail addressed to each defendant; each receipt is stamped "Received December 19, 1997." On the other side of each receipt is the name and address of the clerk of the circuit court. Also appended are dated return receipts presumably signed by an agent from each addressee and returned to the clerk of the court whose address appears on the receipt.

On January 8, 1998, the PTAB filed a limited and special appearance through Fernhan Hamid, an assistant Attorney General. On February 23, 1998, a letter addressed to the clerk of the circuit court on the letterhead of Max E. Coffey, chairman of the PTAB, was filed. It states that the transcripts of the proceedings had before the PTAB in the matter that is being judicially reviewed are enclosed for filing as the agency's answer to the complaint. The agency's record is appended and file stamped.

At the end of the agency's record is the certification of B. Joyce Planck, assistant to the legal counsel for the PTAB. The certification, dated February 19, 1998, and signed by Planck, states that she is certifying that the record is true, correct, and complete, and that it is "now filed in obedience and as a return to the Summons issued out of the Circuit Court of Kane County, Illinois, in the above-styled cause, as the Property Tax Appeal Board's Answer to the Complaint for review."

On March 23, 1998, Christopher filed a brief arguing the merits of his case. On April 1, 1998, the PTAB filed a motion to set the briefing schedule in the matter and set a hearing date. On April 21, the trial court ordered the PTAB to file its response brief within 30 days, ordered plaintiff to file any reply within 30 days of the response, and set the matter for hearing on June 29, 1998.

On May 15, the PTAB, through the Attorney General's office, filed its unverified motion to dismiss pursuant to section 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--619 (West 1998)). No supporting affidavit was filed. In its motion, the PTAB argued that Christopher had failed to serve the summons as required by section 3--105 of the Review Law. That section provides in pertinent part: "Service on the administrative agency shall be made by the clerk of the court by sending a copy of the summons to the agency at its main office in the State. *** The plaintiff shall, by affidavit filed with the complaint, designate the last known address of each defendant upon whom service shall be made. The certificate of the clerk of the court that he or she has served such summons in pursuance of this Section shall be evidence that he or she has done so." 735 ILCS 5/3--105 (West 1998).

In his response and objections to the PTAB's motion to dismiss, Christopher disputed that a summons was not properly served and argued essentially that, by its conduct, the PTAB had made a general appearance, had submitted to the jurisdiction of the court, and had waived any defect or irregularities in service. Along with a copy of the certification by Planck, Christopher also appended as a supporting exhibit a letter dated January 5, 1998, addressed to him and appearing to have been issued by James W. Chipman, the executive director of the PTAB. The letter began by noting, "Recently, you filed a ...


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