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Merisant Co. v. Kankakee County Board of Review

September 01, 2004

MERISANT COMPANY, PETITIONER-APPELLANT,
v.
THE KANKAKEE COUNTY BOARD OF REVIEW AND PROPERTY TAX APPEAL BOARD, RESPONDENTS-APPELLEES.



Direct Review of the Property Tax Appeal Board. Docket No. 01-01243.001-I-3.

The opinion of the court was delivered by: Justice McDADE

PUBLISHED

Petitioner, Merisant Company (Merisant), through its attorney, filed an industrial appeal with the Property Tax Appeal Board (PTAB) from a final decision of the Kankakee County Board of Review (Board of Review or Board) regarding its property located at 1551 Boudreau Road in Manteno, Illinois, for assessment year 2001. PTAB dismissed Merisant's appeal for lack of jurisdiction. We affirm.

BACKGROUND

On August 16, 2002, Merisant received notice from PTAB that the Board of Review had filed a motion to dismiss its appeal for lack of jurisdiction by PTAB. The motion asserted Merisant filed a complaint with the Board of Review on November 6, 2001; on November 16, 2001, the Board of Review notified Merisant a hearing was scheduled for December 20, 2001; that neither petitioner nor its representative appeared at the hearing; and no continuance was granted. The Board of Review cited section 16-160 of the Property Tax Code (35 ILCS 200/16-160 (West 2000)) which states, in pertinent part, as follows:

"In any appeal where the board of review *** has given written notice of the hearing to the taxpayer 30 days before the hearing, failure to appear at the board of review *** shall be grounds for dismissal of the appeal unless a continuance is granted to the taxpayer. If an appeal is dismissed for failure to appear at a board of review *** hearing, [PTAB] shall have no jurisdiction to hear any subsequent appeal on that taxpayer's complaint."

Manteno Community Unit School District No. 5 (Manteno) filed a request to intervene in Merisant's appeal proceedings as a taxing district with a revenue interest in the subject property. The school district subsequently moved to dismiss the appeal on the same grounds.

Merisant filed responses to those motions from which the following facts are taken. Merisant filed a complaint regarding the subject property and the Board of Review scheduled a hearing on the complaint for December 20, 2001, at 10:30 a.m. Merisant, through its attorney in Springfield, Illinois, retained local counsel in Kankakee County to represent it at the hearing. Local counsel failed to appear due to a mistake by his secretary. Upon learning of the mistake, local counsel filed a document titled "Request to Reset Hearing" with the Board of Review and supported his request with an affidavit. According to Merisant, local counsel was informed the request would be presented to the Board of Review the following week. In response to local counsel's letter following up on his unanswered request, the Board of Review, by letter dated March 7, 2002, sent local counsel a copy of the original notice of hearing. The Board of Review never ruled on Merisant's request to reset the hearing. Also in its response, Merisant states the Board of Review never issued a notice of final decision on assessed value (Notice of Final Decision) regarding the subject property. Merisant claims it was waiting for that notice before filing an appeal with PTAB "as an exhaustion of remedies requirement," but "[a]fter it became clear that the Board of Review was not going to issue such a Notice of Final Decision," Merisant filed its appeal to PTAB.

PTAB, by letter to the Board of Review, asked whether the Board had issued a written notice to Merisant of the dismissal of its complaint for failure to appear at the scheduled hearing. If no such notice was sent, the Board of Review was to submit a brief explaining why the failure to give notice does not preclude dismissal of Merisant's appeal to PTAB. The Board of Review had not sent such written notice to Merisant. In its brief, the Board of Review asserted "[t]he basis of the Motion to Dismiss is [Merisant's] failure to comply with state statutory exhaustion of remedies as required [by section 16-160 of the Property Tax Code (35 ILCS 200/16-160 (West 2000))]." The Board of Review argued that "[s]section 16-160 does not require that written notice of dismissal be issued. The [notice of hearing] from the Board of Review very plainly stated the consequences of failure to appear for the hearing." That notice read as follows:

"Failure to appear at the time and place indicated will forfeit your right to such a hearing before the Board of Review on this property for the year(s) indicated and the tentative calculation shown above will be fixed as the final valuation. Due to time constraints no continuance will be granted; however, if contacted soon after receipt of notice an earlier hearing MAY be scheduled upon request, by calling (815) 937-2995." (Emphasis in original.)

The Board of Review distinguished earlier PTAB decisions that found an exhaustion of remedies had occurred when the Board of Review issued a written notice of dismissal. The brief concluded that "[f]ailure to appear before the board of review for hearing after having been given thirty days notice of said hearing *** is fatal for establishing jurisdiction before [PTAB]."

PTAB dismissed Merisant's appeal, concluding it did not have jurisdiction. PTAB stated, in pertinent part, as follows:

"The record is clear that [Merisant] *** was given more than thirty days notice of the scheduled board of review hearing[,] *** counsel did not attend the scheduled hearing[,] and no continuance was granted. Additionally, the hearing notice *** was unambiguous in stating that the failure to appear *** [would] forfeit the *** right to a hearing *** and that the tentative valuation would be the final assessment of the subject property[,] *** for all practical purposes a dismissal of the appellant's board of review complaint. Based on ...


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