THIRD DIVISION
April 25, 2001
(NUNC PRO TUNC February 14, 2001)

JUSTICE BURKE delivered the opinion of the court:

Respondent, First Union Bank of North Carolina, now known asFirst Union Mortgage Corporation, appeals from the denial of itsmotion to vacate an order of the circuit court issuing a tax deedto petitioner, Ex Sites, L.L.C., for property located at 9609 SouthWentworth Avenue in Chicago. Respondent contends on appeal thatthe tax deed was invalid because an occupant of the property, TanyaHaley, was not served with notice of the expiration of the periodof redemption. We find that Tanya was not an occupant of theproperty for the purpose of service under the Property Tax Code(Code) (35 ILCS 200/1--1 et seq. (West 1998)) and, therefore,affirm the circuit court's order.

William Haley, Tanya's father, purchased the property in 1990with his wife Mavis, now deceased, and entered into a mortgage thatwas assigned to respondent in 1996. In April 1996, Mutual Fidelityreceived a certificate of purchase for the 1994 taxes on theproperty and subsequently assigned its interest to NationalIndemnity Corporation, which paid taxes for the years 1995 throughthe first installment of 1998 and petitioned for a tax deed. Respondent was served by certified mail on October 23, 1998. William Haley was personally served with notice on November 19,1998. The period of redemption expired on February 23, 1999. ExSites, L.L.C., was subsequently substituted as petitioner. OnSeptember 1, 1999, the circuit court issued a tax deed conveyingthe property to petitioner.

On September 30, 1999, respondent filed a motion to vacate thetax deed (735 ILCS 5/2--1203 (West 1998)), alleging that petitionerdid not comply with mandatory provisions of the Code requiring thatoccupants be given notice of the sale and the date of theexpiration of the period of redemption (35 ILCS 200/22--5, 22--10(West 1998)). Respondent attached Tanya's affidavit stating shehad permanently resided at 9609 South Wentworth since 1991 and hadnot been served with any notices of the tax sale proceedings.

A hearing was held on February 25, 2000, on the motion tovacate. Tanya testified that she was 30 years old and had residedat 9609 South Wentworth since January 1991. She currently livedthere with her father and brother. She was not obligated on themortgage, but she said she helped her father with bills, shereceived mail at the address, and her name was posted at the door.

On cross-examination, Tanya testified that she saw the notice,which her father received on November 19, 1998, stating the taxeshad been sold and showing the date of the expiration of the periodof redemption. The notice directed William to go to the office ofthe Cook County Clerk for further information. Tanya asked herfather what they had to do about it, and he answered "we would haveto take care of it." Her father went to the county clerk's officeand obtained the estimate of redemption (approximately $6,000). William showed Tanya the estimate of redemption, which also statedthe date by which it must be paid. On September 19 and October 8,1998, when petitioner inspected the property, Tanya was away atwork from 6 a.m. to 2 p.m.

Howard Berland, an attorney for National IndemnityCorporation, who supervised paralegals to ensure due diligence inlocating owners and occupants of property and reviewed documentsfor tax deed proceedings, testified as follows. The HainesDirectory for the years 1997, 1998, and 1999 disclosed no listedtelephone number at 9609 South Wentworth Avenue. In addition,Tanya Haley was not listed in the Chicago telephone directory. Avoters registration list showed William Haley as the onlyregistered voter at 9609 South Wentworth Avenue. A title searchfrom Chicago Title & Trust Company disclosed a warranty deed,recorded September 1, 1990, vesting title in William and MavisHaley. Only William and Mavis Haley's names were disclosed througha judgment search. Documents supporting Berland's testimony wereadmitted into evidence.

Roderick Williams testified that he personally inspected theproperty (permanent index No. 25--09--212--004) for NationalIndemnity Corporation on September 19, 1998. On that date,Williams prepared a report stating that the property consisted ofa two-story brick and frame building in good condition and a one-story frame garage in the rear. Williams assumed the property wasunoccupied at the time because no one answered the door and therewas a realtor's "For Sale" sign on the property. There were nonames on the mailbox. Williams left a copy of the certificate ofpurchase and his supervisor's card in an envelope taped to thefront door. He also went to the neighboring property at 9607 SouthWentworth, but found no one home.

On October 8, 1998, Williams returned to 9609 South Wentworth. There was no real estate sign. The building was occupied but noone answered the door. There were no names on the mailbox. Williams' report stated that the improvements consisted of a one-story brick building in good condition and a one-story frame garagein the rear, but he testified that "one-story" was an error. Williams again left a copy of the certificate of purchase and hissupervisor's card in an envelope taped to the front door. He alsotried to contact the owner or occupant of an adjacent property at9611 South Wentworth, but no one answered the door.

The record also shows that notice was published in the ChicagoDaily Law Bulletin on November 18, 19, and 20, 1998, to respondent,William and Mavis Haley, and "Parties in occupancy or actualpossession of said property; Unknown owners or persons interestedin said land or lot."

The trial court, finding that Tanya was an occupant of theproperty and that petitioner had used due diligence to serve herwith notice, denied the motion to vacate.

Respondent contends on appeal that the trial court erred ininterpreting the Code to require personal service on occupants onlyif they can be found by diligent inquiry and, alternatively, thateven if a diligence standard applies, the court manifestly erred infinding that petitioner used due diligence in locating Tanya.

Petitioner responds, in part, that, contrary to the trialcourt's finding, Tanya was not an "occupant" entitled to servicewithin the meaning of the Code. In the alternative, petitionercontends that the trial court's finding that petitioner exerciseddue diligence was not against the manifest weight of the evidence,and the trial court correctly interpreted the Code as not placingmore of a burden in serving the occupants of property than inserving the owners.

Respondent maintains that petitioner is precluded from arguingthat Tanya was not an occupant because it failed to present thisargument at the trial court level. However, the trial court'sjudgment may be affirmed on any grounds supported by the record. In re Application of the County Collector for Judgment and Order ofSale Against the Lands and Lots Returned Delinquent for Nonpaymentof General Taxes for the Year 1987 and Prior Years, 278 Ill. App.3d 168, 174, 662 N.E.2d 535 (1996). It is only the appellant whois precluded from raising on appeal a theory not presented to thetrial court. Jackson v. Chicago Board of Education, 192 Ill. App.3d 1093, 1099, 549 N.E.2d 829 (1989); Kolivera v. Hartford FireInsurance Co., 8 Ill. App. 3d 356, 361, 290 N.E.2d 356 (1972).

Strict compliance with statutory notice requirements is acondition precedent to the issuance of a tax deed. 35 ILCS 200/22--40 (West 1998); In re Application of the County Collector, forJudgment and Order of Sale Against Lands and Lots ReturnedDelinquent for Nonpayment of General Taxes and/or SpecialAssessments for the Year 1991 and Prior Years, 295 Ill. App. 3d703, 704, 629 N.E.2d 1211 (1998). In order to be entitled to a taxdeed, the purchaser or his assignee shall, within five months aftera sale, deliver to the county clerk a notice to be given to theparty in whose name the taxes are last assessed. 35 ILCS 200/22--5(West 1998). In addition, a purchaser or assignee shall not beentitled to a tax deed, unless not less than three months nor morethan five months prior to the expiration of the period ofredemption, he gives notice of the sale and the expiration date ofthe redemption period to the owners, occupants and partiesinterested in the property. 35 ILCS 200/22--10 (West 1998).

Notice, as required by section 22--15 of the Code, shall bepublished in a newspaper and also served by a sheriff upon ownerswho reside on the property by leaving a copy of the notice withthem personally. Section 22--15 further provides:

The same form of notice shall also beserved upon all other owners and partiesinterested in the property, if upon diligentinquiry they can be found in the county, andupon the occupants of the property in thefollowing manner:

(a) as to individuals, by (1) leaving acopy of the notice with the person personallyor (2) by leaving a copy at his or her usualplace of residence with a person of thefamily, of the age of 13 years or more, andinforming that person of its contents. Theperson making the service shall cause a copyof the notice to be sent by registered orcertified mail, return receipt requested, tothat party at his or her usual place ofresidence.

If any owner or party interested, upondiligent inquiry and effort, cannot be foundor served with notice in the county asprovided in this Section, and the person inactual occupancy and possession is tenant to,or in possession under the owners or theparties interested in the property, thenservice of notice upon the tenant, occupant orperson in possession shall be deemed serviceupon the owners or parties interested.

If any owner or party interested, upondiligent inquiry and effort cannot be found orserved with notice in the county, then theperson making the service shall send a copy ofthe notice by registered or certified mail,return receipt requested, to that party at hisor her residence, if ascertainable." 35 ILCS200/22--15 (West 1998).

This section has been interpreted to require a tax buyer to"make a diligent inquiry to find and personally serve theoccupant." Gacki v. LaSalle National Bank, 282 Ill. App. 3d 961,964-65, 669 N.E.2d 936 (1996) (affirming the trial court's findingof lack of diligence).

Two Illinois Supreme Court decisions are dispositive of theissue in the instant appeal of whether Tanya, William's adultdaughter who resided in William's home, was an "occupant" of theproperty for the purpose of service under the Code. In First LienCo. v. Marquette National Bank, 56 Ill. 2d 132, 136-37, 306 N.E.2d23 (1973), the supreme court held that a petitioner had noconstitutional or statutory obligation to serve notice on an adultwoman who lived with her father and contributed toward the rent. InApplication of County Collector (Elmwood Properties), 63 Ill. 2d242, 243-46, 347 N.E.2d 159 (1976), the supreme court held that acousin of the owner/occupant with whom he "lived together as onefamily" and with whom he shared household expenses and the cost ofadding a room to the house was not an occupant as contemplated bythe Code.

In the present case, Tanya testified only that she helped herfather with the bills. She was not obligated on the mortgage. There was no evidence Tanya had a right to control what happened onthe property or that she had any possessory rights to the property. We therefore conclude that Tanya was not an occupant requiringnotice under the Code. Elmwood Properties, 63 Ill. 2d at 245-46;First Lien, 56 Ill. 2d at 137.

We briefly note that In re Application for Tax Deed (S.I.Securities), 285 Ill. App. 3d 930, 675 N.E.2d 285 (1997), uponwhich respondent relies in support of its argument, isdistinguishable from the case at bar. In S.I. Securities, thetrial court denied a petition for a tax deed because although thepetitioner had served notice on Tim Weatherly, the sole owner ofthe property, it had failed to serve notice on Weatherly's wifewith whom he resided on the property. S.I. Securities, 285 Ill.App. 3d at 931. On appeal, the S.I. Securities court held that theplain and ordinary meaning of the term "occupant" included a spousewho permanently resided on the property with an owner/spouse andexercised some control over the property. S.I. Properties, 285Ill. App. 3d at 933. Here, there was no evidence that Tanya, whowas merely an adult daughter living with her father, had anypossessory rights or a right to control what happened on theproperty. Cf. S.I. Securities, 285 Ill. App. 3d at 934(distinguishing Elmwood Properties and First Lien on that basis).

Lastly, we note that William Haley, the owner/occupant, waspersonally served with notice on November 19, 1998. Respondent wasnotified by certified mail on October 23, 1998, well before theissuance of the tax deed. Respondent, therefore, was notmaterially prejudiced by petitioner's failure to discover Tanya. See People v. Orth, 21 Ill. 2d 205, 210-11, 171 N.E.2d 626 (1961);People v. O'Keefe, 18 Ill. 2d 386, 392-93, 164 N.E.2d 5 (1960).

For the reasons stated, we affirm the circuit court's ordergranting petitioner's petition for a tax deed.

Affirmed.

HALL, P.J., and CERDA, J., concur.