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Village of Arlington Heights v. Mark R. anderson

December 20, 2011

VILLAGE OF ARLINGTON HEIGHTS,
PLAINTIFF-APPELLEE,
v.
MARK R. ANDERSON, B. GREGORY TRAPANI, JORDAN KAISER, WALTER KAISER, AND VILLAGE GREEN, LLC,
DEFENDANTS- APPELLANTS,



Appeal from the an Illinois Municipal Corporation, Circuit Court of Cook County. No. 08 CH 16359 The Honorable Kathleen Pantle, Judge Presiding.

The opinion of the court was delivered by: Justice Harris

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Cunningham concurred in the judgment and opinion.

OPINION

¶ 1 Defendants-appellants Mark R. Anderson, B. Gregory Trapani, Jordan Kaiser, Walter Kaiser, and Village Green, LLC (collectively referred to as Village Green), appeal the order of the circuit court granting the motion of plaintiff-appellee Village of Arlington Heights' (Arlington Heights) for partial summary judgment on count I of Arlington Height's complaint for declaratory judgment and accounting. The trial court found that pursuant to a $350,000 note signed by the four named Village Green defendants, they jointly and severally owed Arlington Heights $290,375 plus interest. On appeal, Village Green contends the trial court erred in granting summary judgment in favor of Arlington Heights where: (1) it admitted as evidence the Cook County treasurer reports, equalized assessed value of the Village Green parcels, and sales tax receipts, all of which lacked a valid foundation; and (2) a genuine issue of material fact existed as to whether Village Green agreed to guarantee the net incremental taxes annually or through the life of the redevelopment project. We affirm.

¶ 2 JURISDICTION

¶ 3 The trial court entered partial summary judgment in favor of plaintiff on September 1, 2010. On February 15, 2011, it entered a final judgment in the case, and defendants filed a notice of appeal on March 10, 2011. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶ 4 BACKGROUND

¶ 5 Arlington Heights sought to redevelop an area of the village under the Illinois Tax Increment Allocation Redevelopment Act (TIF Act) (65 ILCS 5/11-74.4-1 et seq. (West 2006)). Arlington Heights selected Village Green as the exclusive developer of the project, and on November 3, 1997, the parties executed the redevelopment agreement (RDA). The second amendment to the RDA required the Village Green defendants to execute a note which provided that by delivering the $350,000 note attached to the amendment:

"Developer will cause [defendants] B. Gregory Trapani, Mark R. Anderson, Jordan Kaiser, and Walter Kaiser *** to personally guarantee to [Arlington Heights] *** through the life of the TIF, December 31, 2006, that the net incremental taxes actually received or to be received for the project are not less than the projected net incremental taxes, pursuant to the revised Analysis of Incremental Tax Revenues, attached hereto as the revised Exhibit C to the Original Agreement. Beginning on December 1, 2002, and each December 1 thereafter, to and including December 1, 2006, [Arlington Heights] will analyze the net incremental taxes attributable to the Project, *** and, if the net incremental taxes are less than the projected net incremental taxes, as calculated by the revised Analysis of Incremental Tax Revenues, [defendants] shall pay annually to [Arlington Heights], within thirty (30) days after notification by [Arlington Heights] (along with a schedule of computations) *** the deficiency amount."

The parties signed the note on August 17, 1998. The projected net incremental taxes, attached to the note as Exhibit C, were modified in the fourth amendment to the RDA.

¶ 6 Pursuant to the agreement and note, Arlington Heights advanced to Village Green $5,750,000 for TIF-eligible costs. The funds came from a bond issue for $4,500,000 and $1,250,000 borrowed from the general fund. In order to pay the principle and interest on the bonds, Arlington Heights needed to receive the projected amount of net incremental tax revenues on an annual basis. The parties amended the note four times to accommodate time extensions for completion, and the extensions resulted in a deficit of incremental taxes for tax years 2003 and 2004 compared to the projected amounts. Arlington Heights charged its community development director, William Enright, with calculating the net incremental taxes. His computations, based on data from the county treasurer's office and Illinois Department of Revenue, indicated the deficit was $111,694 for tax year 2003, and $119,787 for tax year 2004. In August, 2005, Arlington Heights notified Village Green of the deficits and the amounts due pursuant to the note.

¶ 7 On May 2, 2008, Arlington Heights filed a two-count complaint against Village Green for declaratory judgment and accounting. In deciding Arlington Heights' motion for partial summary judgment, the trial court limited the issue to "whether the annual calculation [Arlington Heights] was required to perform pertained to the life of the entire redevelopment project, or for the individual year in which the calculation occurred." In its amended order dated September 29, 2009, the trial court determined that the note contemplated that calculations would be made, and deficits thereby paid, annually. After the order, more discovery between the parties ensued and Arlington Heights provided an explanation of the deficits and a corresponding spreadsheet.

ΒΆ 8 Arlington Heights filed a second motion for partial summary judgment on June 10, 2010. Attached to the motion was the affidavit of Enright, explaining that he relied on the county treasurer's reports in making his calculations. Also attached were the treasurer's reports and a spreadsheet prepared by Enright showing the deficits in tax years 2003 and 2004. In its order of September 1, 2010, the trial court noted that it had previously ruled that calculations would be made, and deficits paid, annually. The court then determined that the treasurer's reports are public records admissible as an exception to the hearsay rule, and that the evidence supported Enright's calculations. It granted the motion for partial summary judgment, finding the Village Green defendants jointly and severally liable for $290,375 ...


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