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Excalibur Energy Co. v. Rochman

Court of Appeals of Illinois, Fifth District

August 18, 2014

EXCALIBUR ENERGY COMPANY, Plaintiff-Appellee,
v.
MARILYN ROCHMAN, Defendant-Appellant

As Corrected.

Appeal from the Circuit Court of Franklin County. No. 09-MR-32. Honorable Thomas J. Dinn III, Honorable E. Kyle Vantrease, Judges, presiding.

SYLLABUS

Although plaintiff's ejectment complaint was supported by case law to the extent that it alleged that the tax deed giving rise to defendant's claimed interest in the property was obtained as the result of tax deed proceedings in which plaintiff was not provided with the required notice, the trial court erred in entering summary judgment for plaintiff, since a petition under section 2-1401 of the Code of Civil Procedure provided the only means for plaintiff to vacate the tax deed, in view of the passage of more than 30 days since the entry of the judgment issuing the tax deed; therefore, the order entering summary judgment for plaintiff was reversed and the cause was remanded with directions to dismiss plaintiff's complaint.

For Appellant: Mindy S. Salyer, Amanda L. Moressi, Brittney B. Rykovich, Salyer Law Offices, LLC, Chicago, IL; William L. Broom III, Patricia A. Small, Barrett, Twomey, Broom, Hughes & Hoke, LLP, Carbondale, IL.

For Appellee: Jana Yocom, Jana Yocom, P.C., Mt. Vernon, IL.

JUSTICE SCHWARM delivered the judgment of the court, with opinion. Justices Goldenhersh and Cates concurred in the judgment and opinion.

OPINION

SCHWARM, JUSTICE.

Page 323

[¶1] The plaintiff, Excalibur Energy Company (Excalibur Energy), filed a second-amended complaint in ejectment claiming ownership to property in Franklin County and alleging that a tax deed, from which the defendant, Marilyn Rochman, claimed ownership of the same property, was void for lack of notice to Excalibur Energy's predecessor in title. Rochman appeals the circuit court's order granting summary judgment in Excalibur Energy's favor. For the reasons that follow, we reverse the circuit court's judgment and remand the cause with directions to dismiss the plaintiff's second-amended complaint.

[¶2] BACKGROUND

[¶3] On July 2, 2009, Excalibur Energy filed its complaint against Rochman, alleging that a tax deed, issued to Rochman's predecessor in title, Franklin County, as trustee, was void for lack of notice to Excalibur Energy's predecessor in title, the Joseph B. Gould Trust (Gould Trust). Specifically, in its " [s]econd [a]mended [c]omplaint [i]n [e]jectment" filed on July 16, 2012, Excalibur Energy alleged that in the 1980s Riverside American Farms, Inc. (Riverside), acquired in fee the surface and mineral rights underlying the disputed property in Franklin County. Excalibur Energy alleged that in 1991, Riverside deeded to Gould Trust a mineral interest in fee in the property, subject to a conditional reversionary interest, which reserved in Riverside a one-half interest in the mineral rights if Riverside paid in full a note due Gould Trust before May 1, 1996. Excalibur Energy alleged that the note was not paid and, therefore, Gould Trust's mineral interest in fee vested by operation of law on May 1, 1996.

[¶4] Pursuant to Excalibur Energy's allegations, the record reveals that in 2003, Clyde E. Tritt and Carolyn Dirks executed

Page 324

an assignment and quitclaim deed to the Gould Foundation. Although named in the deed " as co-trustees" of the Gould Trust, Dirks and Tritt signed this deed as " co-executor[s]" of the estate of Joseph B. Gould. On May 16, 2006, the Gould Foundation transferred its mineral interest in fee in the disputed ...


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