ILLINOIS POLLUTION CONTROL BOARD
April 20, 2000
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
DAYNE ROGERS, an individual, BLACK
GOLD INTERNATIONAL, a dissolved
corporation, and CROSBY & ASSOCIATES,
P.C., an Illinois professional corporation,
Respondents.
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PCB 00-127
(Enforcement - Land)
ORDER OF THE BOARD (by S.T. Lawton, Jr.):
This matter is before the Board on a February 17, 2000 motion to dismiss filed by one
of the respondents, Crosby & Associates, P.C., (Crosby). Because of the parties’ submissions
of evidentiary materials, including an affidavit and quitclaim deed, the Board construes Crosby’s
motion as one for summary judgment rather than to dismiss. For the reasons set forth below,
summary judgment is granted in favor of Crosby.
PROCEDURAL BACKGROUND
On January 31, 2000, a complaint was filed by the People of the State of Illinois (State)
filed a complaint seeking reimbursement for costs incurred in the clean up of accumulated used
and waste tires at a site in Winnebago County pursuant to Section 55.3 of the Environmental
Protection Act (Act) (415 ILCS 5/55.3 (1998)) based on Crosby’s alleged ownership of the
land. On February 17, 2000, Crosby filed a motion to be dismissed (Motion) from the action
asserting that it was not the owner of the site or the accumulated tires. The State filed its
response (Resp.) on February 24, 2000, arguing that Crosby should not be dismissed because it
is the owner of the site. In support of its position, the State attached a copy of a quitclaim deed
that, in form, conveyed the subject property to Crosby. On March 7, 2000, Crosby filed a
motion for leave to file a reply accompanied by its proposed reply to the State’s response
(Reply) contending that for reasons hereinafter set forth, Crosby was not the owner of the site.
On March 10, 2000, the State filed a response to Crosby’s motion for leave to file a reply. On
March 20, 2000, Crosby filed a reply to the State’s response to Crosby’s motion for leave to
file its reply.
On March 21, 2000, Hearing Officer John Knittle granted Crosby leave to file a reply
and the State 14 days to file its surreply. Pursuant to Hearing Officer’s John Knittle’s March
21, 2000 order, the State filed its surreply to Crosby’s reply on April 4, 2000. In the surreply,
the State contends that Crosby’s and respondent Rogers’ agreement to obtain a broker for sale
of the property is inconsistent with Crosby’s stated intention to hold title to the property to
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protect its security interest, and that the length of time during which Crosby has held title to the
property (three and a half years), is inconsistent with the characterization of the transaction of a
mortgage. (Surreply at 2).
DISCUSSION
Summary judgment is appropriate when the pleadings, together with other items in the
record, show that there is no genuine issue of material fact and that the moving party is entitled
to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 693 N.E.2d
358 (1998). In ruling on a motion for summary judgment, the Board must consider the
pleadings and other evidence “strictly against the movant and in favor of the opposing party.”
Id.
Summary judgment “is a drastic means of disposing of litigation,” and therefore it should
be granted only when the movant’s right to the relief is “clear and free from doubt.”
Id.
However, a party opposing a motion for summary judgment must “present a factual basis which
would arguably entitle [it] to a judgment.” Gauthier v. Westfall, 266 Ill. App. 3d 213, 219,
639 N.E.2d 994, 999 (2d Dist. 1994). The Board may grant Crosby’s motion only if, after
construing the documents supporting the motion in the most favorable light to the nonmovant, it
finds no disputed issues of fact. Draper v. Frontier Insurance Co., 265 Ill. App. 3d 739, 638
N.E.2d 1176 (2d Dist. 1994).
In this matter there are no issues of material fact. Crosby has provided the Board with an
affidavit which states that Crosby took a quit claim deed to the site as security for an unpaid
debt, and that it was not the parties’ intention to convey ownership. The State has not provided
any contradictory evidence, such as counteraffidavits, of the parties’ underlying intention. The
statements in Crosby’s affidavit are therefore accepted as true. See People v. Continental Can
Company, Inc., 28 Ill. App. 3d 1004, 329 N.E.2d 362 (4th Dist. 1975); Zedella v. Gibson,
165 Ill. 2d 181, 650 N.E.2d 1000 (1995) (Supporting affidavits unchallenged by
counteraffidavits or by other appropriate means deemed admitted and taken as true.) The State
predicates Crosby’s liability on its site ownership. Complaint at 5, paragraph 22. As explained
below, the Board finds, as a matter of law, that Crosby is not an owner, and therefore grants
summary judgment in Crosby’s favor.
The State’s Complaint
By the complaint, the State seeks reimbursement for costs incurred cleaning up an
accumulation of used and waste tires, pursuant to Section 55.3 of the Environmental Protection
Act (Act), 415 ILCS 5/55.3 (1998). In its Motion, Crosby asserts a number of facts which it
argues insulate it from liability for the State’s costs. While paragraph four of the complaint
alleges that Crosby owned the site at all times relevant to this complaint and accordingly
ownership of the accumulation of tires, Crosby asserts that: (1) it was not an owner or
operator of the accumulation of the used or waste tires removed from the site; and (2) its taking
a quitclaim deed to the site does not make it an owner or operator of the site as required by
Section 55.3 of the Act.
Arguing that liability is predicated upon ownership of the accumulation and not
ownership of the site, Crosby cites specifically to Section 55.3(g):
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the owner or operator of any accumulation of used or waste tires at
which the [Illinois Environmental Protection] Agency has undertaken
corrective or preventive action under this Section shall be liable for all
costs thereof incurred by the State of Illinois. 415 ILCS 5/53.3(g)(1998).
In response to Crosby’s Motion, the State argues that Crosby’s ownership of the site is
sufficient to establish liability for the corrective action. The State asserts that Crosby acquired
title to this property on September 5, 1997, from Dayne Rogers and Black Gold International,
and it attaches a copy of a quitclaim deed, recorded on September 17, 1997, in Winnebago
County, to support such assertions. (Resp., Exh. A) The State further argues that, on August
4, 1998, the Illinois Environmental Protection Agency (Agency) gave notice to Crosby as
required by Section 55.3(d) of the Act. The relevant subsection of Section 55.3 provides:
d.
The Agency shall have authority to provide notice to the owner or
operator, or both, of a site where used or waste tires are located,
whenever the [Illinois Environmental Protection] Agency finds that the
used or waste tires pose a threat to public health or the environment, or
that the owner or operator, or both, is not proceeding in accordance with
a tire removal agreement under Section 55.4.
Crosby’s Affidavit
The Board notes the following statements from the affidavit of Michael S. Crosby,
Attachment A to Crosby’s Reply, which the Board accepts as evidence in support of Crosby’s
requested relief.
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2.
A Law Office of Crosby and Associates, P.C. represented and provided
legal services to Mr. Dayne Rogers and/or Black Gold International in
several matters.
3.
Mr. Rogers was not able to pay for these services, and therefore, Crosby
and Associates P.C. took a deed absolute as security for Mr. Rogers’
debt. * * *
4.
It is the law firm’s intention to merely release its security interest in the
property back to Black Gold International when Mr. Rogers’ debt is
repaid.
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A court will take as true those facts in a defendant’s affidavit supporting his motion to dismiss
if the plaintiff fails to refute those facts in a counteraffidavit, notwithstanding contrary
unsupported allegations in the plaintiff’s pleadings. Griffin v. Universal Casualty Co., 274 Ill.
App. 3d 1056, 654 N.E.2d 694 (1st Dist. 1995).
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5.
Neither I nor Crosby & Associates, P.C. had any involvement in the
operation of Mr. Rogers’ business on the property at any time.
In the affidavit, Crosby asserts that the act of taking a quitclaim deed to the property was
not intended to convey an ownership interest in the site. Rather, Crosby merely took a security
interest in the property for an unpaid debt. Crosby cites several appellate opinions to support
its position that the quitclaim deed executed by Rogers in its favor did not convey ownership.
In one of these cases, Metcalf v. Altenritter, 53 Ill. App. 3d 904, 369 N.E.2d 498 (5th
Dist. 1977), the court cited Section 5 of the Mortgage Act (765 ILCS 905/5), and stated:
In equity, the substance of a transaction controls, not its form. Accordingly, a
conveyance of land, seemingly absolute, will be treated as a mortgage if it were
intended as security for the payment of money. The one asserting that a deed
absolute in form is a mortgage has the burden of proving that fact in a clear,
satisfactory and convincing manner. The question whether a deed which is
absolute in form is to be taken as a mortgage depends upon the intentions of the
parties at the time of its execution. 369 N.E.2d at 502 (citations omitted).
Section 5 of the Mortgage Act (765 ILCS 905/5) provides:
Every deed conveying real estate, which shall appear to have been intended only
as a security in the nature of a mortgage, though it be an absolute conveyance in
terms, shall be considered as a mortgage. (emphasis added).
Crosby has provided the Board with an affidavit, accompanied by a letter agreement between
Crosby and Rogers, which supports the fact that Crosby holds indicia of ownership primarily to
protect a security interest for unpaid legal services. Pursuant to the Section 5 of the Mortgage
Act,
Rogers did not convey ownership of the site to Crosby. Accordingly, since the State’s
complaint predicates liability for the cost of removal action on ownership of the land, Crosby is
not liable to the State for its costs.
The Board disagrees with the State’s assertions in its surreply respecting the parties’
intent here. Their agreement to list the property and obtain a broker is not inconsistent with a
mortgage relationship. Nor is the continuation of Crosby’s mortgage for three and one-half
years inconsistent therewith provided the debt remains unpaid.
The Board recognizes that while the Act provides exemptions to liability under Section
55.3(i), based on certain circumstances, these sections in no way limit the applicability of the
Mortgage Act, nor does the absence of reference to the Mortgage Act in Section 55.3(i) negate
its applicability. Any limitation on the protection afforded Crosby under the Mortgage Act in
the context of the instant proceeding must be accomplished by the legislature and not by the
Board.
Finally, the Board recognizes that Section 55.3(i) provides defenses to liability to various
categories of persons and that mortgagees are not among the listed exemptions. Section 55.3(i)
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however, applies only to a “person otherwise liable”. The Board concludes today that in
accordance with Section 5 of the Mortgage Act, Crosby is not an “owner” and therefore not a
“person otherwise liable” for the purposes of Section 55.3(i).
In conclusion, the Board finds that Crosby’s affidavit establishes that Crosby did not take
an ownership interest in the site and therefore is not liable as an owner under Section 55.3(g) of
the Act. For the foregoing reasons, summary judgment is granted and Crosby is dismissed
from this action.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 20th day of April 2000 by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
