Illinois State Toll Highway Authority v. Heritage Standard Bank and Trust Co.

• Decision Date: 20 February 1992
• Docket Number: No. 2-91-0165,2-91-0165
• Citation: 225 Ill.App.3d 567,588 N.E.2d 386,167 Ill.Dec. 745
• Parties: , 167 Ill.Dec. 745 The ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Plaintiff-Appellee, v. HERITAGE STANDARD BANK AND TRUST COMPANY, Trustee, Defendant-Appellant (Gallagher and Henry, Inc., Defendant).
• Court: United States Appellate Court of Illinois

Page 386

588 N.E.2d 386

225 Ill.App.3d 567, 167 Ill.Dec. 745

The ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Plaintiff-Appellee, v. HERITAGE STANDARD BANK AND TRUST COMPANY, Trustee Defendant-Appellant (Gallagher and Henry, Inc., Defendant).

No. 2-91-0165.

Appellate Court of Illinois Second District.

Feb. 20, 1992.

Rehearing Denied April 3, 1992.

Leo N. Cinquino, Sandra L. Hebenstreit, Righeimer, Martin & Cinquino, P.C., Chicago, S. Louis Rathje, Rathje, Woodward, Dyer & Burt, Wheaton, for Heritage Standard Bank & Trust and Gallagher & Henry, Inc.

Roland W. Burris, Atty. Gen., Chicago, Stephen D. Helm (argued) Helm & Day, Naperville, Malcolm E. Erickson, Spec. Asst. Atty. Gen., Chief Counsel, IL State Toll Highway Authority, Oak Brook, David W. Krula, Law Offices of Helm & Day, Naperville, for Illinois State Toll Highway.

Justice DUNN delivered the opinion of the court:

This action arises from an eminent domain proceeding. Plaintiff, the Illinois State Toll Highway Authority, acquired property owned by the defendant through a quick-take proceeding. The amount of preliminary compensation exceeded the amount of final compensation awarded to the defendant. Defendant, Heritage Standard Bank, now appeals from the trial court order requiring defendant to pay interest on the amount of preliminary compensation in excess of the amount of final compensation.

On August 18, 1987, the plaintiff filed an eminent domain action by which it sought to acquire a parcel of land owned by the defendant in Woodridge, Illinois. The plaintiff sought acquisition by quick-take. On August 19, 1987, the plaintiff filed a motion for immediate vesting of title. By agreement of the parties, an order was entered by the trial court awarding preliminary compensation in the amount of $1,164,000 on August 26, 1987. On that same date, an order vesting title after quick-take was entered in addition to an order allowing the defendant to withdraw the preliminary compensation.

On February 3, 1989, judgment was entered on the jury verdict for final just compensation in the amount of $805,000, which was $359,000 less than the award of preliminary compensation. On February 10, 1989, a final judgment order was entered by the trial court awarding final just compensation and ordering the defendant to refund the excess preliminary compensation by April 14, 1989. The defendant appealed. On June 29, 1989, during the course of the appeal, the plaintiff filed its motion for refund, requesting entry of an order requiring the immediate refund of the $359,000 excess plus interest at 9% from February 3, 1989. The court entered an order on September 7, 1989, nunc pro tunc to August 24, 1989, denying plaintiff's motion as premature pending defendant's appeal. This court affirmed the judgment of the trial court on appeal in Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co. (1990), 196 Ill.App.3d 5, 142 Ill.Dec. 410, 552 N.E.2d 1151, the first and prior appeal of this case. Our mandate was received by the trial court on November 26, 1990.

On December 21, 1990, the plaintiff filed an amended motion for refund of the excess preliminary compensation claiming it was entitled to interest on the excess from February 3, 1989. A hearing on the motion was held on January 9, 1990, during which plaintiff requested that the court order interest on the excess, not from February 3, 1989, as originally requested in plaintiff's motion, but from April 14, 1989, the date for refund fixed by the court's order entered February 10, 1989. On that same date, the court granted the plaintiff's amended motion for refund and ordered the defendant to pay the excess preliminary compensation to the plaintiff in the principal amount of $359,000, plus interest at 9% from April 14, 1989, on or before January 28, 1991.

The defendant deposited the principal sum of $359,000 with the clerk of the circuit court on February 12, 1991. The defendant timely appeals, contesting the plaintiff's right to receive interest.

At issue in this case is whether section 7-109 of the Eminent Domain Act (Act) (Ill.Rev.Stat.1989, ch. 110, par. 7-109) requires a judgment to be entered by the trial court for any excess preliminary compensation, in addition to the order entered for refund, before interest may be awarded on that amount. We conclude that it does. Interest is not recoverable in the State of Illinois unless contracted for or authorized by statute. (See Department of Transportation v. New Century Engineering & Development Corp. (1983), 97 Ill.2d 343, 73 Ill.Dec. 538, 454 N.E.2d 635; Lakefront Realty Corp. v. Lorenz (1960), 19 Ill.2d 415, 167 N.E.2d 236.) The only portion of the Eminent Domain Act providing for the payment of interest is found in section 7-108 requiring the plaintiff to pay interest on any excess compensation finally adjudged over the amount of preliminary compensation found by the court to be just. (Ill.Rev.Stat.1989, ch. 110, par. 7-108.) The portion of the Act concerning the refund of excess compensation does not provide for interest on any amount by which the preliminary compensation exceeds the final compensation. It states:

"If the amount withdrawn from deposit by any interested party * * * exceeds the amount finally adjudged to be just compensation (or damages, costs, expenses, and attorney fees) due to such party, the court shall order such party to refund such excess to the clerk of the court, and if refund is not made within a reasonable time fixed by the court, shall enter judgment for such excess in favor of the plaintiff and against such party." Ill.Rev.Stat.1989, ch. 110, par. 7-109.

However, in Department of Transportation v. New Century Engineering Corp., 97 Ill.2d 343, 73 Ill.Dec. 538, 454 N.E.2d 635, our supreme court held that interest could be awarded on the amount by which the preliminary compensation exceeds final compensation under section 3 of the Interest Act (now codified under Ill.Rev.Stat.1989, ch. 110, par. 2-1303), which provides that "[j]udgments recovered in any court shall draw interest * * * from the date of the judgment until satisfied."

In New Century, the Department of Transportation acquired by quick-take a tract of land owned by New Century Engineering and Development Corporation. James Talcott, Inc., was joined as a defendant as mortgagee of the property. (97 Ill.2d at 344, 73 Ill.Dec. 538, 454 N.E.2d 635.) The court awarded $325,000 as preliminary just compensation. The court entered an order on May 8, 1981, adjudging final compensation for the taking of that property to be $171,535, which was $153,000 less than the amount fixed as preliminary just compensation. New Century had withdrawn $137,500 and Talcott had withdrawn $187,500. 97 Ill.2d at 345, 73 Ill.Dec. 538, 454 N.E.2d 635.

The orders entered by the trial court in New Century have been made a part of the supplemental record on appeal. They disclose that on June 17, 1981, the court found the defendants jointly and severally liable for the payment of the $153,465 excess and ordered the refund of that amount within seven days. In addition, the court stated that if that amount was not refunded within seven days, judgment would be entered in favor of the plaintiff and against the defendants. On June 25, 1981, after the defendants failed to refund the excess compensation within seven days, the court entered a judgment against the defendants jointly and severally in the amount of $137,500 and against James Talcott, Inc., in the amount of $15,965. The trial court denied the plaintiff's request for interest on the excess, and the appellate court affirmed that denial. (97 Ill.2d at 346, 73 Ill.Dec. 538, 454 N.E.2d 635.) The supreme court reversed the denial of interest, finding:

"Although the eminent domain law does not specifically provide for interest in this situation, section 3 of the Interest Act [citation] provided that '[j]udgments recovered before any court shall draw interest * * * from the date of the judgment until satisfied * * *.' We therefore hold the Department is entitled to interest at the legal rate provided by statute * * * from June 25, 1981, the date of judgment, until the date of payment." 97 Ill.2d at 353, 73 Ill.Dec. 538, 454 N.E.2d 635.

Plaintiff in this case argues that interest should be awarded from April 14, 1989, until the judgment was paid. However, to award interest in this manner would require this court to ignore the express terms of section 7-109 of the eminent domain law. (Ill.Rev.Stat.1989, ch. 110 par. 7-109.) That section provides that the court shall order the defendant to refund the excess compensation to the clerk, and if the refund is not made within a reasonable time fixed by the court, the court shall enter judgment for the excess in favor of the plaintiff. (Ill.Rev.Stat.1989, ch. 110, par. 7-109.) No judgment was entered in this cause until January 9, 1990.

A primary rule of statutory construction requires that the intention of the legislature should be ascertained and given effect. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill.2d 143, 151, 92 Ill.Dec. 833, 485 N.E.2d 1076; City of Springfield v. Board of Election Commissioners (1985), 105 Ill.2d 336, 340-41, 85 Ill.Dec. 508, 473 N.E.2d 1313.) Courts should look first to the statutory language as the best indication of the intent of the drafters. (County of Du Page, 109 Ill.2d at 151, 92 Ill.Dec. 833, 485 N.E.2d 1076; People v. Boykin (1983), 94 Ill.2d 138, 141, 68 Ill.Dec. 321, 445 N.E.2d 1174.) Where that language is unambiguous, a court must enforce the law as enacted without considering other aids. County of Du Page, 109 Ill.2d at 151, 92 Ill.Dec. 833, 485 N.E.2d 1076; People v. Singleton (1984), 103 Ill.2d 339, 341, 82 Ill.Dec. 666, 469 N.E.2d 200.

The language of section 7-109 is clear. The court must first order the defendant to refund the excess compensation. If that refund is not made within the reasonable time fixed by the...