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In re Application of the County Treasurer of Cook County

August 29, 2003

IN RE APPLICATION OF THE COUNTY TREASURER OF COOK COUNTY, ILLINOIS, FOR JUDGMENT AND ORDER OF SALE AGAINST LANDS AND LOTS UPON WHICH ALL OR A PART OF THE GENERAL TAXES FOR TWO OR MORE YEARS ARE DELINQUENT, PURSUANT TO TO THE PROPERTY TAX CODE (ANDRES SCHOLNIK, PETITIONER).
IN RE APPLICATION OF THE COUNTY TREASURER OF COOK COUNTY, ILLINOIS, FOR JUDGMENT AND ORDER OF SALE AGAINST LANDS AND LOTS UPON WHICH ALL OR A PART OF THE GENERAL TAXES FOR TWO OR MORE YEARS ARE DELINQUENT, PURSUANT TO THE PROPERTY TAX CODE (CAPITAL TAX CORPORATION, PETITIONER).



Appeal from the Circuit Court of Cook County. Honorable Marsha D. Hayes, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice O'brien

UNPUBLISHED

This appeal arises from orders of the circuit court: (1) directing the county clerk to issue the petitioner, Andres Scholnik, a tax deed to certain property located in the Town of Cicero; and (2) declaring that Scholnik does not have to reimburse the Town of Cicero for the costs of demolishing a building partially located on that property. We reverse both orders and remand for further proceedings.

In 1996, Cicero filed a demolition suit against American National Bank, as trustee under trust number 9016, to demolish a building located on two adjoining tax parcels on Laramie Avenue. One of these two parcels is the subject property of this case. On January 9, 1998, the court ordered the demolition of the building. On June 19, 1998, the court entered an order granting a judgment to Cicero against American National Bank and other unnamed defendants in the amount of $324,900.00 for its demolition expenses. Cicero recorded the judgment as a lien against the subject property pursuant to section 12-101 of the Code of Civil Procedure. 735 ILCS 5/12-101 (West 1998).

On December 1, 1999, the Cook County treasurer offered the subject property for sale at the 1999 tax scavenger sale, since no real estate taxes had been paid on the property for the 10 years from 1988 to 1997. Scholnik was the successful bidder at the sale, and on June 23, 2000, he filed a petition for issuance of a tax deed.

On April 2, 2001, Scholnik filed a "motion for declaratory judgment" in the tax deed proceeding, seeking a declaration that he was not required to reimburse Cicero for its expenses in demolishing the building located partially on his subject property. The motion also sought, as alternative relief, that Scholnik should only be required to pay the pro rata share of the demolition expenses relating to the portion of the building located on the subject property.

On December 5, 2001, the court entered an order declaring that Scholnik was not required to reimburse Cicero for any of its costs of demolition. On April 15, 2002, the court entered an order directing the county clerk to issue the tax deed conveying the subject property to Scholnik. Cicero filed this timely appeal.

First, Cicero contends that the 1996 demolition suit operates as a res judicata bar to Scholnik's 2001 declaratory judgment action.

The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars any later actions between the same parties or their privies on the same claim, demand, or cause of action. Saxon Mortgage, Inc. v. United Financial Mortgage Corp., 312 Ill. App. 3d 1098, 1104 (2000). For res judicata to apply, the following requirements must be met: (1) there was a final judgment on the merits rendered by a court of competent jurisdiction; (2) there was an identity of cause of action; and (3) there was an identity of parties or their privies. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 335 (1996).

To determine whether res judicata applies, we must compare the 1996 and 2001 actions. The record on appeal contains no complaint, answer, or transcripts from the 1996 demolition suit. The record does contain a one-sentence, pro-se motion from Scholnik, filed December 12, 1997, in which he asks the court to "stay the demolition order on a portion of the property." The record also contains an order staying the demolition until January 9, 1998, and another order on January 9, 1998, lifting the stay. Finally, the record contains the June 19, 1998, order, granting a judgment to Cicero against American National Bank and other unidentified defendants in the amount of $324,900 for its demolition expenses; however, there is no language in the June 19, 1998, order identifying Scholnik as a defendant or otherwise imposing any requirement that Scholnik must reimburse Cicero for its demolition expenses prior to the issuance of a tax deed to the subject property. Thus, on the record before us, it appears that the 1996 demolition action did not involve a final judgment on the issue raised in the 2001 declaratory judgment action, i.e., whether Scholnik must reimburse Cicero for its demolition expenses, and, as such, the 1996 and 2001 actions were not the same for res judicata purposes. Further, to the extent that the record on appeal is incomplete (in that it lacks pleadings and transcripts from the 1996 demolition action), any doubts arising from the incompleteness of the record are to be resolved against Cicero as the appellant. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984).

Next, Cicero argues that the trial court erred in declaring that Scholnik is not required under section 22-35 of the Property Tax Code (35 ILCS 200/22-35 (West 2002)) to reimburse Cicero for the costs of demolishing the building located partially on the subject property. The resolution of this issue requires us to construe section 22-35. Because the construction of a statute is a question of law, our review is de novo. O'Loughlin v. Village of River Forest, 338 Ill. App. 3d 189, 191 (2003).

The primary rule of statutory construction is to ascertain and give effect to the true intent of the legislature. Augustus v. Estate of Somers, 278 Ill. App. 3d 90, 97 (1996). In determining legislative intent, a court should consider the statutory language first, giving the terms of the statute their ordinary meaning. MQ Construction Co. v. Intercargo Insurance Co., 318 Ill. App. 3d 673, 681 (2000). A dictionary may be used as a resource to determine the ordinary and commonly accepted meaning of words. Melliere v. Luhr Bros., Inc., 302 Ill. App. 3d 794, 797 (1999) Where the language of the statute is clear, it will be given effect without resort to other aids for construction. Augustus, 278 Ill. App. 3d at 97.

Section 22-35 states in relevant part:

"An order for the issuance of a tax deed under this Code shall not be entered affecting the title to or interest in any property in which a city, village or incorporated town has an interest under the police and welfare power by advancements made from public funds, until the purchaser or assignee makes reimbursement to the city, village or incorporated town of the money so advanced or the city, village, or town waives its lien on the property for the money so advanced. However, in lieu of reimbursement or waiver, the purchaser or his or her ...


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