Cosmopolitan National Bank v. Oak Park Bank

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE O’CONNOR

delivered the opinion of the court:

A petition for rehearing was filed by intervenor-appellant Cosmopolitan National Bank of Chicago and appellees Oak Park Bank and Joseph Sadacca responded. After reviewing the record as well as the petition and response, we deny the petition for rehearing for the reasons that follow.

Cosmopolitan’s primary argument, made for the first time in the petition for rehearing, is that it will be financially injured if Sadacca is allowed to redeem his property. Cosmopolitan contends that this court mistakenly found in our December 21, 1987, opinion that Cosmopolitan had paid $3,200.04 to purchase the tax deeds from petitioners Partipilo and Cribare, when, in fact, that figure was the amount paid by petitioners to obtain their certificates of purchase. Cosmopolitan now raises the issue that it paid $18,000 to petitioners for the tax deeds, in support of which it has submitted copies of the tax deeds showing city and county transfer taxes which indicate a total purchase price of $18,000. On this basis, Cosmopolitan asks us to find that the $9,927.09 plus interest which Sadacca was ordered to pay to redeem his property is insufficient to make Cosmopolitan whole. Although there is nothing in the record to support this claim, Cosmopolitan now asks this court to reverse our prior ruling and deny the section 2 — 1401 petition of Oak Park Bank and Sadacca on the basis of Cosmopolitan’s newly asserted economic harm.

In the trial court, Cosmopolitan’s sole argument was that absent fraud on the part of the tax purchasers, Sadacca was not entitled to section 2 — 1401 relief. Cosmopolitan stipulated to all facts in the section 2 — 1401 petitions and that there were no issues of material fact that would preclude the trial court from entertaining the parties’ motions as cross-motions for summary judgment. Having done so, Cosmopolitan may not now advance a new theory and new evidence for the first time in its petition for rehearing. Hux v. Raben (1967), 38 Ill. 2d 223, 225, 230 N.E.2d 831.

Illinois Supreme Court Rules 341(eX7) and 367(b) require factual assertions to be supported by references to the record. (113 Ill. 2d Rules 341(e)(7), 367(b).) Supreme Court Rule 367(b) expressly limits a petition for rehearing to “points claimed to have been overlooked or misapprehended by the court.” (Schlenz v. Castle (1985), 132 Ill. App. 3d 993, 1018, 477 N.E.2d 697, aff’d (1986), 115 Ill. 2d 135, 503 N.E.2d 241.) Matters not of record are waived and cannot be considered on appellate review. Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 364, 456 N.E.2d 98.

While Supreme Court Rule 366(a)(3) (107 Ill. 2d R. 366(a)(3)) permits a reviewing court to amend the record by correcting errors or adding matters that should have been included, the rule cannot be used to interject a new theory and new evidence into the record on rehearing when the evidence was available to the appellant both at the hearing in the trial court and at the time of the initial appeal. (Catalano v. Pechous (1978), 69 Ill. App. 3d 797, 813-15, 387 N.E.2d 714, aff'd (1980), 83 Ill. 2d 146, cert. denied (1981), 451 U.S. 911, 68 L. Ed. 2d 300, 101 S. Ct. 1981.) Here the alleged economic harm to Cosmopolitan was not overlooked or misapprehended by the court; it was an issue Cosmopolitan chose not to raise either in the trial court or on appeal. Cosmopolitan also stipulated that it purchased the interest in the parcels from the tax purchaser subsequent to and with prior knowledge of the pending section 2 — 1401 petitions as well as the fact that it was not a purchaser without notice subject to section 2 — 1401(e), thus it was aware of the possibility that the trial court might allow redemption for equitable reasons. Any facts showing that Cosmopolitan would be injured by granting the section 2 — 1401 petition should have been presented in an evidentiary hearing at the trial court level. Having failed to raise the issue before the trial court, Cosmopolitan is foreclosed from belatedly supplementing the record in a petition for rehearing. Wilmette Park District v. Village of Wilmette (1986), 112 Ill. 2d 6, 19, 490 N.E.2d 1282.

Cosmopolitan raises in addition two issues that were fully briefed and argued in the initial appeal to this court. Those issues were addressed in our original opinion and they may not be reargued here. 113 Ill. 2d R. 367(b); Anundson v. City of Chicago (1968), 97 Ill. App. 2d 212, 221, 240 N.E.2d 407, aff’d (1970), 44 Ill. 2d 491, 256 N.E.2d 1.

The petition for rehearing is denied.

BUCKLEY and QUINLAN, JJ., concur.