{ "id": 3601098, "name": "In re APPLICATION OF KANE COUNTY COLLECTOR (Virginia J. Tharp, Petitioner-Appellant, v. Robert Critton, Kane County Treasurer, et al., Respondent-Appellee)", "name_abbreviation": "Tharp v. Critton", "decision_date": "1985-08-13", "docket_number": "No. 84\u2014785", "first_page": "796", "last_page": "810", "citations": [ { "type": "official", "cite": "135 Ill. App. 3d 796" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "143 N.E.2d 235", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill. 2d 447", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2784280 ], "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/11/0447-01" ] }, { "cite": "127 Ill. App. 2d 185", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2473361 ], "pin_cites": [ { "page": "189-90" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/127/0185-01" ] }, { "cite": "43 Ill. App. 3d 512", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2724091 ], "weight": 5, "pin_cites": [ { "page": "515" }, { "page": "516" }, { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0512-01" ] }, { "cite": "84 S. Ct. 973", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "11 L. Ed. 2d 973", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "376 U.S. 954", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 379652, 379654, 379785, 379259, 379227 ], "opinion_index": 0, "case_paths": [ "/us/376/0954-02", "/us/376/0954-03", "/us/376/0954-01", "/us/376/0954-04", "/us/376/0954-05" ] }, { "cite": "321 F.2d 934", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 94320 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/f2d/321/0934-01" ] }, { "cite": "108 Ill. App. 2d 55", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1595900 ], "year": 1963, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/108/0055-01" ] }, { "cite": "120 Ill. App. 3d 787", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3593116 ], "pin_cites": [ { "page": "794" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0787-01" ] }, { "cite": "32 Ill. App. 3d 934", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2796865 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0934-01" ] }, { "cite": "59 Ill. App. 3d 494", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3358589 ], "weight": 5, "pin_cites": [ { "page": "499-500" }, { "page": "497" }, { "page": "499" }, { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0494-01" ] }, { "cite": "112 Ill. App. 3d 812", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5435027 ], "pin_cites": [ { "page": "817" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0812-01" ] }, { "cite": "120 Ill. App. 2d 185", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1583517 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/120/0185-01" ] }, { "cite": "132 Ill. App. 2d 234", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2536509 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-2d/132/0234-01" ] }, { "cite": "108 Ill. App. 3d 181", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3010320 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0181-01" ] }, { "cite": "86 Ill. 2d 291", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5468706 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-2d/86/0291-01" ] }, { "cite": "84 Ill. App. 3d 661", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3202428 ], "pin_cites": [ { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0661-01" ] }, { "cite": "83 Ill. App. 3d 1097", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5553768 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/1097-01" ] }, { "cite": "84 Ill. 2d 436", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045717 ], "pin_cites": [ { "page": "443-44" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0436-01" ] }, { "cite": "127 Ill. App. 3d 589", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3564230 ], "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0589-01" ] }, { "cite": "101 S. Ct. 2000", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "68 L. Ed. 2d 312", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "451 U.S. 921", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6240364, 6240701 ], "opinion_index": 0, "case_paths": [ "/us/451/0921-01", "/us/451/0921-02" ] }, { "cite": "82 Ill. 2d 373", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476077 ], "year": 1981, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0373-01" ] }, { "cite": "113 Ill. App. 3d 954", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3625986 ], "year": 1980, "pin_cites": [ { "page": "960" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0954-01" ] }, { "cite": "119 Ill. App. 3d 212", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3629704 ], "weight": 3, "pin_cites": [ { "page": "215" }, { "page": "214-15" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0212-01" ] }, { "cite": "102 Ill. App. 3d 43", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3076876 ], "weight": 6, "pin_cites": [ { "page": "45" }, { "page": "49" }, { "page": "46" }, { "page": "48" }, { "page": "45-46" }, { "page": "45-46" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0043-01" ] } ], "analysis": { "cardinality": 1293, "char_count": 33537, "ocr_confidence": 0.749, "pagerank": { "raw": 4.0927778354691597e-07, "percentile": 0.9093091913852892 }, "sha256": "825dd54300c1cedade02e94c7c805b1c23403ab0754375b24837cc821b9fc471", "simhash": "1:43bfd8a6635e2570", "word_count": 5755 }, "last_updated": "2023-07-14T21:44:15.524885+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re APPLICATION OF KANE COUNTY COLLECTOR (Virginia J. Tharp, Petitioner-Appellant, v. Robert Critton, Kane County Treasurer, et al., Respondent-Appellee)." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nPetitioner, Virginia J. Tharp, appeals for the second time the judgment of the circuit court of Kane County entered on her petition for indemnity filed pursuant to section 247a(4) of the Revenue Act of 1939 (the Act), which section is designed to ameliorate in some instances the harsh consequences of a tax foreclosure. Ill. Rev. Stat. 1979, ch. 120, par. 728a(4).\nPetitioner lost her home, located at 825 Royal Lane, Dundee, for nonpayment of real estate taxes for 1975. A tax deed was issued to Michael Lapat on December 21, 1979, after the redemption period expired. After a hearing on the petition, the trial court awarded her $1 as indemnity. On appeal, she asserted that the trial court erred in not awarding indemnity in the amount of the fair cash value of the subject property: $75,000. This court determined that section of the Act required the court to make a two-pronged determination: first, whether the petitioner is \u201cequitably entitled to just compensation\u201d and, second, the amount of such compensation. (In re Application of Kane County Collector (1981), 102 Ill. App. 3d 43, 45.) We determined that the amount of the compensation to be awarded is not discretionary with the court, but is delineated by the statute; i.e., fair cash value of the real estate as of the date that the tax deed issued, less any mortgages or liens thereon. (Ill. Rev. Stat. 1979, ch. 120, par. 728a(4).) Because it was clear that the trial court was concerned with the \u201cequities of the situation\u201d in awarding petitioner $1 as indemnity, we concluded the trial court applied the wrong standards in the case, and we reversed and remanded \u201cfor a new trial on the issues.\u201d (In re Application of Kane County Collector (1981), 102 Ill. App. 3d 43, 49.) Petitioner now appeals from the judgment of the circuit court entered upon retrial that she was not entitled to the equity relief sought.\nPetitioner contends that (1) the trial court\u2019s denial of indemnity was contrary to the law of the case as established by this court\u2019s first opinion; (2) the denial of indemnity was against the manifest weight of the evidence; and (3) the denial of indemnity frustrates the purpose of the statute and the legislative intent.\nLaw Of The Case\nPetitioner asserts she proved her entitlement to the indemnity to the first trial court and that this court agreed, thereby establishing the law of the case on point one of the two-pronged tests; i.e., \u201cthe trial court correctly ruled that the petitioner came within the protection of section 247a(4) of the Revenue Act of 1939.\u201d (In re Application of Kane County Collector (1981), 102 Ill. App. 3d 43, 46.) Consequently, having confined its consideration to the question whether the trial court erred in allowing only a token award which \u201cconfirms [her] right to indemnity but gives her no relief,\u201d petitioner contends this court\u2019s determination that the amount of the damages is not discretionary but must be for the loss or damage sustained amounts to a specific finding that the amount of the award to petitioner should have been $75,000, the value of the property as stipulated to by the parties. Petitioner asserts the trial court\u2019s refusal after remand to enter an order awarding her that amount was error. The trial court also refused to grant petitioner\u2019s motion after remand seeking the same relief by way of summary judgment; however, petitioner\u2019s brief contains no argument on that issue and it is not considered here.\nAs respondent points out, however, it is clear that the thrust of this court\u2019s first opinion was that the trial court had used the wrong approach when it determined that the \u201cequities of the situation\u201d warranted an award of only $1 to petitioner as indemnity. As noted above, we ruled that the trial court should have made a two-pronged determination rather than an award based on the \u201cequities of the situation.\u201d (102 Ill. App. 3d 43, 48.) Because the trial court used the wrong approach in making its decision, its $1 indemnity award was an anomaly, since if the trial court was of the opinion that the petitioner was entitled to indemnity, its award should have reflected the amount of the loss sustained by her. If the trial court did not believe petitioner was entitled to indemnity, no award of any kind would have been warranted. Our determination that petitioner \u201ccame within the protection of section 247a(4)\u201d is not synonymous with a finding that petitioner was entitled to indemnity. Our determination in that regard was made in passing favorably on petitioner\u2019s motion to strike respondent\u2019s argument on appeal on the applicability of the amendatory provisions of Public Act 81 \u2014 512 to the cause at bar because respondent failed to file a cross-appeal. Effective January 1, 1980, the amendment in question added to the statute words which \u201csimply add[ed] an additional remedy to another class of persons\u201d (In re Application of the Cook County Treasurer & Ex-Officio Collector (1983), 119 Ill. App. 3d 212, 215), to which class this court determined petitioner belonged. (In re Application of Kane County Collector (1981), 102 Ill. App. 3d 43, 45-46.) Section 247a(4) of the Act, with the added words shown in italics, provides:\n\u201c(4) Any owner of real estate sold pursuant to any provision of this Act at a sale held subsequent to September 1, 1970, who without fault or negligence of his own sustains loss or damage by reason of the issuance of a tax deed pursuant to Sections 266 or 266a, and who is barred or in any way precluded from bringing an action for the recovery of such real estate or any owner or [sic] property containing four or less dwelling units who resided thereon the last day of the period of redemption who, in the opinion of the Court which issued the tax deed order, is equitably entitled to just compensation, has the right to indemnity for the loss or damage sustained. Indemnity shall be limited to the fair cash value of the real estate as of the date that the tax deed was issued, less any mortgages or liens thereon.\u201d Ill. Rev. Stat., 1984 Supp., ch. 120, par. 728a(4).\nThe respondent had argued before the first trial court that the statute as amended by this language did not govern the case since the tax sale was held and the tax deed issued prior to the effective date of the amendatory provision. It is clear, however, that where an amendment is remedial in nature, all rights of action thereunder will be enforceable under the new procedure, without regard to whether they accrued before or after such change of law or whether suit had been instituted or not, unless there is a savings clause as to existing litigation. (Sostak v. Sostak (1983), 113 Ill. App. 3d 954, 960; Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390, cert. denied (1981), 451 U.S. 921, 68 L. Ed. 2d 312, 101 S. Ct. 2000.) Consequently, this court determined that the petitioner \u201ccame within\u201d its protection.\nAs petitioner argues, it is true that the \u201claw of the case\u201d as decided on a previous appeal is binding on both the trial court and the appellate court in subsequent appeals (Gord Industrial Plastics, Inc. v. Aubrey Manufacturing, Inc. (1984), 127 Ill. App. 3d 589, 591), save, for instance, where in the interim the supreme court decides the precise question contrary to the rule announced in the appellate court. (Relph v. Board of Education (1981), 84 Ill. 2d 436, 443-44 (reversing Hagopian v. Board of Education (1980), 83 Ill. App. 3d 1097.)\n\u201c[T]he rule that a trial court is bound by the law of the case, as found by a court on appeal, is not applicable to issues of fact [citations], and matters concerning the merits of the controversy between the parties which were presented to but not decided by the appellate court can be relitigated on remand [citations].\u201d Zokoych v. Spalding (1980), 84 Ill. App. 3d 661, 667.\nFurther, it has been established that the correctness of a trial court\u2019s action on remand is to be determined from the appellate court\u2019s mandate, as opposed to the appellate court\u2019s opinion unless, of course, the mandate directs the trial court to proceed in conformity with the opinion. (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291; Perrin v. Pioneer National Title Insurance Co. (1982), 108 Ill. App. 3d 181.) Although the common law record provided this court by petitioner failed to include a copy of the mandate in violation of Supreme Court Rule 321 (87 Ill. 2d R. 321), this court may take judicial notice of its own records in the same case before it. (State Farm Mutual Automobile Insurance co. v. Grebner (1971), 132 Ill. App. 2d 234; Brantley v. Delnor Hospital, Inc. (1970), 120 Ill. App. 2d 185.) The mandate issued at bar directed only that \u201cthe judgment of the trial court is reversed and the cause remanded for a new trial.\u201d Had it been this court\u2019s intention to have judgment entered in petitioner\u2019s favor for the full cash value of the loss sustained by her as shown by the evidence in the first trial, it was within this court\u2019s power to specifically order such relief in our mandate to the trial court. (87 Ill. 2d R. 366.) That action was not taken; rather, we remanded the cause so that the trial court could reconsider the petition using the \u201ccorrect\u201d two-pronged approach as determined in our opinion. Our opinion specifically noted that the cause was being reversed and remanded for a new trial on the issues because the trial court had applied the wrong standard in the case. The clear implication is that a de novo hearing was being mandated. A new trial is a trial de novo, and the subsequent trial judge is not bound by the findings of his predecessor. Travelers Insurance Co. v. Robert R. Anderson Co. (1983), 112 Ill. App. 3d 812, 817.\nAccordingly, the court below did not err in refusing to simply enter judgment in petitioner\u2019s favor.\nAbuse Of Discretion\nPetitioner next contends the trial court\u2019s judgment was against the manifest weight of the evidence. Specifically, petitioner asserts the trial court erred in its reasoning that her ability to continue to work as a nurse bore any relationship to her ability to manage business and financial affairs such as the payment of real estate taxes. She characterizes the record as being \u201creplete with evidence\u201d indicating she was unable to manage her business affairs subsequent to the death of her husband and, later, her attorney.\nRespondent argues the evidence presented does not show petitioner was so depressed as to have rendered her helpless to cope with her financial affairs; rather, that sometimes she simply chose not to handle them.\nThe evidence presented at the second trial consisted of the testimony of three witnesses. Petitioner, Virginia Tharp, testified that her husband, Harry Tharp, died in October of 1968. In 1969 she moved into the residence located at 825 Royal Lane in Dundee. Her daughter, Mary Tharp, lived with her at all relevant times. Her other daughter, Susan, resided with her until 1971 or 1972. Petitioner\u2019s education included grade school, high school, and three years of nurses\u2019 training. For the previous eight years, she was employed as a registered nurse at the Americana Nursing Home in Elgin. While he was alive, her husband managed all the household business affairs, and she never had occasion to pay any of the bills or write a check. After her husband died, A. Gordon Humphrey, her attorney, gave her a great deal of assistance in the management of her financial affairs, including showing her how to pay bills and write checks. Humphrey had a stroke in December of 1972, and died in June of 1973.\nPetitioner testified that her electricity was turned off on one occasion because she forgot to pay the bill; that her telephone was disconnected on one occasion because she did not pay the bill; that her insurance policy was cancelled about five times for failure to pay the bills, but she was reinstated each time; that her Field\u2019s charge card was cancelled for failure to pay the bills; and, finally, that her daughter, Mary, did not receive social security checks for a period of about two years because petitioner had not done anything with the social security information which was sent to her. Petitioner testified that during the period 1975 to 1979 when she would receive bills, she would think to herself: \u201cOh, no, now I\u2019ve got to write these out,\u201d and she would just lay them on the desk. She stated that sometimes she would not even open them. Petitioner testified that from 1976 to 1979 she was \u201creally depressed\u201d and that she \u201cmentally wasn\u2019t feeling too good but [she] was able to go to work every day.\u201d She testified that she had a lot of headaches, sinus trouble and her neck hurt a lot, but that she was not seeing a doctor. She thought about getting some kind of counseling, but did not because of the location of the office; she thought that she would probably get lost. Petitioner testified that her daughter, Mary, then in high school, was ill and had to be taken to several doctors.\nPetitioner paid her 1972 property tax bill which was due in 1973, and paid her 1973 property tax bill due in 1974. She failed to pay her 1974 property tax bill which was due in 1975, but subsequently redeemed those taxes in 1978 upon the advice of James Humphrey, the son of A. Gordon Humphrey, who is also an attorney. Petitioner failed to pay her property tax bill for the year 1975, due in 1976. She received two notices regarding redemption of those taxes. The first, respondent\u2019s exhibit A, stated in bold print that: \u201cTHIS PROPERTY HAS BEEN SOLD FOR DELINQUENT TAXES,\u201d identifying the property as being located at 825 Royal Lane and indicating that the period for redemption from the sale would expire on June 13, 1979. Petitioner recalled a person in uniform delivering something she had to sign for, but she did not recall if it was the notice marked exhibit A. The second notice, respondent\u2019s exhibit B, read in part:\n\u201cThis notice is to advise you that the above property has been sold for delinquent taxes and that the period of redemption from the sale will expire on December 13,1979.\u201d\nIn bold print the notice also stated: \u201cYOU ARE URGED TO REDEEM IMMEDIATELY TO PREVENT LOSS OF PROPERTY.\u201d\nPetitioner testified that she probably received the notices that taxes were due, but that \u201cthey just maybe laid on my desk.\u201d She later testified that she ignored the notices telling her that if she did not pay the taxes, she would lose her house. When asked why she failed to pay her 1975 tax bill, petitioner replied:\n\u201cWell, I was just \u2014 I was so depressed and overwhelmed just by everything. I mean it was just one thing after another.\u201d\nOn cross-examination, counsel asked petitioner if she recalled responding to that same question in the original hearing in August of 1980, in the following way:\n\u201cOh, that was about the time my attorney died. I was just completely lost. I felt like I was on my own.\u201d\nShe responded: \u201cThat\u2019s the way I felt ***.\u201d As the record reflects, A. Gordon Humphrey died in June of 1973. As petitioner testified, after that time she did pay her 1972 and 1973 taxes, and redeemed her unpaid 1974 taxes in 1978. According to petitioner\u2019s testimony, the depression which caused her to fail to pay her 1975 taxes or to redeem them by December of 1979, ended in November of 1979, when her sister, Mary Theis, took her to a meeting of a group of women called Women Aglow where petitioner testified she received Jesus Christ as her savior.\nPetitioner testified that she was a good nurse, that she could read and follow doctors\u2019 orders regarding care of patients and could deal with emergencies that arose. She also testified that she hired an individual to do her income tax for her, that she was able to hire doctors for her daughter during her illness and to follow up on the treatment and medication prescribed by those doctors, and that she went to attorney James Humphrey in 1978 with regard to one overdue tax bill.\nMary Tharp testified that she lived with her mother, petitioner, at the Royal Lane address until September 1983. She testified that her father died in October 1968, and that until he died he managed the business affairs for the family. After her father passed away, her mother would call Mr. Humphrey frequently to ask him questions about bills, writing checks, and anything that came in the mail that she did not know what to do with. She also recalled one occasion when their electricity was shut off and when their telephone service was disconnected. She testified that there were several instances when her mother failed to pay the insurance bill on time and would have to go to an office to have the insurance reinstated. Mary testified her mother also failed to give her information regarding social security benefits. Mary testified that she was ill from 1976 until about 1978, and that her mother took her to several doctors and did whatever the doctors told her had to be done to care for her.\nWhen asked to describe the petitioner\u2019s health during the years 1976 through 1979, Mary Tharp replied that:\n\u201cWell, I knew she had a lot of headaches. I knew she was unhappy, but I kind of had my own life and I didn\u2019t keep in touch with her as much. And so I didn\u2019t know a lot of how she felt. She\u2019d mention a headache or she was so tired, but that\u2019s about all I ever knew.\u201d\nMary Theis, the petitioner\u2019s sister, testified that she saw her sister about once a month, or perhaps occasionally less than once a month, from 1974 until 1979, and that she would talk with her on the telephone. She testified that when Harry Tharp died in 1968, her sister was emotionally devastated and that she would \u201cjust go off into weepings and this went on from 1968 until about 1980.\u201d Mrs. Theis testified that, in her opinion, the petitioner had been depressed. She observed that her sister did not keep her house as clean as she had in the past, and that frequently, when she visited her, the drapes were drawn. Mrs. Theis also stated that her sister was often tired, and would complain of headaches and a backache.\nThe following petitioner\u2019s exhibits were offered into evidence by stipulation: (1) exhibit A, a warranty deed to the subject property running to Virginia Tharp, dated August 20, 1969; (2) exhibit B, an appraisal of petitioner\u2019s property located at 825 Royal Lane, Dundee, prepared by Lawrence J. Starkman, M.A.I.; the parties stipulated that the fair market value of the subject property was $65,000; (3) exhibit C, a release in satisfaction of mortgage for the subject property. It was also stipulated that Mrs. Tharp was residing at 825 Royal Lane, Dundee, at the time the property was sold.\nThe respondent offered no witnesses, but submitted several agreed stipulations. First, the parties stipulated to the date of Mr. Humphrey\u2019s death in June of 1973. Second, the parties stipulated that on June 21, 1973, and September 4, 1973, Virginia Tharp or her agent paid her 1972 taxes for the property that is in issue in this case, and that in September of 1974, the 1973 property taxes were also paid in Virginia Tharp\u2019s name either by herself or by her agent. Third, the parties stipulated that petitioner failed to pay her 1974 property taxes, but that she redeemed those taxes on May 9, 1978, after paying $954.33 in the amount of taxes plus $458.08 and $38.08 in penalties and $112.50 in costs to the buyer of those taxes.\nAlthough petitioner acknowledges that section 247a(4) grants the trial court \u201cbroad discretion\u201d in determining equitable entitlement to compensation, she nonetheless argues her position under the \u201cmanifest weight of the evidence\u201d standard of review, without refutation by the respondent. As authority for the standard, she cites In re Application of County Collector (1978), 59 Ill. App. 3d 494, 499-500. That case, however, was decided before the statute was amended by Public Act 81 \u2014 512 to include relief to the class of persons to which petitioner here belongs; i.e., \u201cor any owner or [sic] property containing four or less dwelling units who resided thereon the last day of the period of redemption who, in the opinion of the Court which issued the tax deed order, is equitably entitled to just compensation, ***.\u201d (Ill. Rev. Stat., 1984 Supp., ch. 120, par. 728a(4).) The sole issue addressed in In re Application of County Collector was whether the specific finding of the trial court that petitioner there was \u201cwithout fault or negligence\u201d in the loss of her property was against the manifest weight of the evidence. (In re Application of County Collector (1978), 59 Ill. App. 3d 494, 497.) The issue at bar is whether the trial court\u2019s judgment that the petitioner was not \u201cequitably entitled to just compensation\u201d was born of an abuse of its judicial discretion. As noted, whether petitioner was so entitled is a matter determined \u201cin the opinion of the Court which issued the tax deed order.\u201d Ill. Rev. Stat., 1984 Supp., ch. 120, par. 728a(4).\nAs petitioner notes, the \u201cmanifest weight of the evidence\u201d has been defined as that which is \u201c \u2018the clearly evident, plain and indisputable weight of the evidence.\u2019 \u201d (In re Application of County Collector (1978), 59 Ill. App. 3d 494, 499; Valasquez v. Yellow Cab Co. (1975), 32 Ill. App. 3d 934.) For a judgment to be against the manifest weight of the evidence, it must appear that a conclusion opposite to that reached by the trier of fact is clearly evidence. (First Security Bank v. Bawoll (1983), 120 Ill. App. 3d 787, 794.) Discretionary judicial action has been described as abused \u201c \u2018when the judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.\u2019 \u201d Keen v. Davis (1969), 108 Ill. App. 2d 55, 63, citing Peek v. United States (9th Cir. 1963), 321 F.2d 934, cert. denied (1964), 376 U.S. 954, 11 L. Ed. 2d 973, 84 S. Ct. 973.\nAlthough the respondent argued in the second trial that the court should apply the statute as it was in effect at the time the petition was filed (meaning before the amendment by Public Act 81 \u2014 512, effective January 1, 1980, hence requiring a showing that petitioner\u2019s loss was sustained \u201cwithout fault or negligence of her own\u201d), respondent does not repeat his argument here. In this court\u2019s first opinion, it was noted that the court in the original trial of the matter had concluded that the case fell within the purview of the amended statute and that negligence on the part of the petitioner would not bar her from recovery. Since the respondent did not cross-appeal that specific finding, we struck his argument that the \u201cwithout fault or negligence standard\u201d should be applied, indicating in dicta that we believed the trial court correctly ruled that the petitioner came within the protection of section 247a(4) of the Act as amended. (In re Application of Kane County Collector (1981), 102 Ill. App. 3d 43, 45-46.) The question subsequently was decided in In re Application of Cook County Treasurer & Ex-Officio Collector (1983), 119 Ill. App. 3d 212, 214-15, where the court gave the statute as amended retroactive effect due to its remedial nature. Accordingly, petitioner\u2019s fault or negligence would not per se be a bar to her right to indemnity, and the court below properly focused on whether the petitioner was entitled to the equity relief sought.\nRelevant to our consideration here, in the written opinion of the trial court below, which was incorporated by reference in its judgment, the court stated:\n\u201cThe intent of the legislature as I read the statute was to assist really deserving individuals. It is my reaction that the [petitioner] suffered this loss through her own neglect and failure to pay attention to her affairs. During the time involved, she was able to carry on her professional work responsibly and capably, and her status does not qualify her for relief. There is no element of poverty or of disabling illness or injury involved, and I shall therefore enter an Order denying the relief sought.\u201d\nAccording to Black\u2019s Law Dictionary: \u201cIn its broadest and most general signification, [\u2018equity\u2019] denotes the spirit and the habit of fairness, justness, and right dealing which would regulate the intercourse of men with men, \u2014 the rule of doing to all others as we desire them to do to us; or, as it is expressed by Justinian, \u2018to live honestly, to harm nobody, to render to every man his due.\u2019 [Citation.] It is therefore the synonym of natural right or justice. *** \u2018Equity,\u2019 in its technical sense, contradistinguished from natural and universal equity or justice, may well be described as a \u2018portion of justice\u2019 or natural equity, not embodied in legislative enactments, or in the rules of common law, yet modified by a due regard thereto and to the complex relations and conveniences of an artificial state of society, and administered in regard to cases where the particular rights, in respect of which relief is sought come within some general class of rights enforced at law, or may be enforced without detriment or inconvenience to the community; but where, as to such particular rights, the ordinary courts of law cannot, or originally did not, clearly afford relief. [Citation.]\u201d Black\u2019s Law Dictionary 634 (4th ed. 1951).\nAfter reviewing the record, and even accepting as true petitioner\u2019s uncontradicted testimony at trial, we find no error in the trial court\u2019s conclusion that she was not equitably entitled to just compensation. Notwithstanding the fact we agree petitioner would not be barred from seeking relief under section 247a(4) even if the loss was caused by her negligence, we note that under evidence remarkably similar to that presented in this case, the court in In re Application of County Collector (1978), 59 Ill. App. 3d 494, reversed the trial court, and found that the petitioner\u2019s loss of title there was caused by her own indifference and wilful failure to act. That case was adjudicated under the provisions of the statute prior to its amendment by Public Act 81 \u2014 512, and the petitioner\u2019s fault or' negligence was a bar to her receiving indemnification. Apropos the case at bar, however, the court there found that although the death of the petitioner\u2019s husband two days before the due date of the 1969 taxes may have been an excuse for her failure to pay the bill, it could not be an excuse for her failure to redeem her property almost three years later. The court rejected petitioner\u2019s contention there that she was \u201cnot equipped to handle\u201d her tax situation, despite evidence that her husband took care of all of the financial affairs, in light of the fact she was not an uneducated person and had taken courses in real estate and real estate law. The court there further observed that although petitioner was aware of her problem, she failed to seek advice from either an attorney who was a friend of the family, or a real estate lawyer who lived next door because she \u201cdid not want to bother people or impose on friends.\u201d 59 Ill. App. 3d 494, 496.\nIn the case at bar, petitioner\u2019s husband died in 1968; she did not fail to pay her taxes until some 6V2 years later when the 1974 taxes became due in 1975, and, although she later redeemed those taxes in 1978, she failed to pay in 1976 or to redeem in 1979 her 1975 taxes. Despite the evidence here that petitioner was \u201coverwhelmed\u201d and depressed following her husband\u2019s death, the evidence also shows she was able to move to a new residence in 1969, support and care for two daughters, and work steadily as a registered nurse. Petitioner testified that her education included grade school, high school, and three years of nurses\u2019 training. She held a responsible position, and at times was in charge of other nurses on weekends. She testified she \u201cjust couldn\u2019t warm up\u201d to her former attorney\u2019s son, James Humphrey, and that she never asked her friends for advice. It is clear from the evidence that petitioner had no lack of funds with which to pay her bills, that she was aware that the bills that she received had to be paid and \u2014 for the most part \u2014 she paid them. She was able to seek assistance for her daughter\u2019s health problems, and for help in preparing her income tax. Nonetheless, she failed to obtain counseling for herself, even though she knew she was suffering from depression, and she admittedly ignored the notices telling her she would lose her house if she did not pay the taxes due.\nOur view of this evidence \u2014 which also was apparently the view of the trial court \u2014 is that petitioner was not subject to any mental, physical, or financial inability to pay her taxes or to redeem her property, nor was she the victim of any administrative foul-up, which was the case in In re Application of Cook County Treasurer & Ex-Officio Collector (1983), 119 Ill. App. 3d 212, nor was she the victim of any fraud or deception, as was the case in Garcia v. Rosewell (1976), 43 Ill. App. 3d 512. In our view, such evidence not only meets, but exceeds, the test that \u201creasonable men could differ as to the propriety of the action taken by the trial court\u201d; that is, given the evidence presented, we believe that most reasonable men would agree with the action taken by the court.\nAccordingly, we conclude the trial court did not abuse its discretion in denying petitioner indemnity.\nLegislative Intent\nPetitioner\u2019s final argument is that the trial court\u2019s denial of indemnity frustrates the purpose and legislative intent of the statute as discussed in Garcia v. Rosewell (1976), 43 Ill. App. 3d 512, and as the statute was further amended, since \u201cit was clear that she was incapable of managing her business affairs during the years in question.\u201d Respondent answers, and we agree, that the purpose of the statute is not frustrated where the trial court\u2019s denial of relief is supported by the record.\nIn construing the statute, the Garcia court considered the reasons and necessity for the enactment, the contemporaneous conditions, existing circumstances and the object sought to be obtained by the statute. The court noted that:\n\u201c[T]he legislature acted at a time when there was a public outcry as the result of tax buyers taking advantage of unsophisticated property owners who had fallen behind on their taxes and then had fallen prey to the complexities of the tax buying procedures despite their willingness and ability to redeem their property.\u201d 43 Ill. App. 3d 512, 515.\nCiting to City of Chicago v. City Realty Exchange, Inc. (1970), 127 Ill. App. 2d 185, 189-90, the court in Garcia referred to the policy of the Revenue Act which strongly favors placing property in the hands of those who are both willing and able to pay their taxes:\n\u201c \u2018Sections of the Revenue Act which provide for certificates of purchase and for issuance of tax deeds are legislative means to encourage buyers at tax sales, increase collection of tax revenue by taxing authorities and free land to once again enter the stream of commerce and bear its aliquot share of the tax burden. Cherin v. The R. & C. Co., 11 Ill. 2d 447, 452, 143 N.E.2d 235. It is said that tax sales have as their purpose coercion of negligent and unwilling citizens to pay their taxes. 85 CJS, Taxation, sec. 744.\u2019 \u201d 43 Ill. App. 3d 512, 516.\nThe Garcia court concluded the statute \u201cwas apparently enacted to provide a remedy for the harsh results caused by the legislative policy which favors the collection of taxes and the merchantability of tax deeds,\u201d and that its purpose is \u201cto do equity.\u201d 43 Ill. App. 3d 512, 517.\nOur review of the record of proceedings of the House and Senate at the time those bodies considered and passed Public Act 81 \u2014 512 adding petitioner\u2019s class to those entitled to indemnity under section 247a(4) provides no additional illumination concerning the intent of the amendment itself. (Record of Proceedings of the 81st General Assembly, Regular Session, Third Reading in the House of Senate Bill 1089, at 61 (June 14, 1979); Third Reading in the Senate of Senate Bill 1089, at 8, 10.) Thus, we concur in the expression of the intent and purpose set forth in Garcia, and find that the denial of relief to petitioner under the previously discussed circumstances of this case does not frustrate the purpose or legislative intent of the statute. We do not believe petitioner was the type of \u201cunsophisticated\u201d property owner the legislature had in mind when it passed the statute. Petitioner had the knowledge and the resources necessary to enable her to avoid the loss of her property. We believe a judgment affording petitioner relief under the circumstances presented in her case would itself frustrate the purpose and intent of the statute, because it would amount to tacit approval of conduct which at the least could be described as insidiously naive and, at the most, fiscally irresponsible.\nThe judgment of the circuit court of Kane county is affirmed.\nAffirmed.\nNASH and LINDBERG, JJ., concur.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ "Steven A. Salzman, of Firsel & Salzman, Ltd., of Chicago, for appellant.", "Robert J. Morrow, State\u2019s Attorney, of Geneva (Patricia Johnson Lord and David R. Akemanri, Assistant State\u2019s Attorneys, of counsel), for appellee." ], "corrections": "", "head_matter": "In re APPLICATION OF KANE COUNTY COLLECTOR (Virginia J. Tharp, Petitioner-Appellant, v. Robert Critton, Kane County Treasurer, et al., Respondent-Appellee).\nSecond District\nNo. 84\u2014785\nOpinion filed August 13, 1985.\nSteven A. Salzman, of Firsel & Salzman, Ltd., of Chicago, for appellant.\nRobert J. Morrow, State\u2019s Attorney, of Geneva (Patricia Johnson Lord and David R. Akemanri, Assistant State\u2019s Attorneys, of counsel), for appellee." }, "file_name": "0796-01", "first_page_order": 818, "last_page_order": 832 }