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Dep't of Trans. v. New Century Eng. Corp.

OPINION FILED SEPTEMBER 23, 1983.

THE DEPARTMENT OF TRANSPORTATION, APPELLANT,

v.

NEW CENTURY ENGINEERING AND DEVELOPMENT CORPORATION ET AL., APPELLEES.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Will County, the Hon. John Verklan, Judge, presiding.

CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

In this condemnation proceeding, the Department of Transportation of this State, in July 1973, initiated "quick-take" proceedings (Ill. Rev. Stat. 1971, ch. 47, par. 2.1) in the circuit court of Will County to immediately acquire title to a 7.55-acre tract of land to be used for road improvements. The tract was owned by the defendant, New Century Engineering and Development Corporation. James Talcott, Inc., was joined as a defendant as a mortgagee of the property. Following a hearing, the court fixed the sum of $325,000 as preliminary just compensation. (Ill. Rev. Stat. 1971, ch. 47, par. 2.2.) Under the then requirements of section 2.3 of the Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, par. 2.3), the Department deposited 125% of the preliminary compensation award with the county treasurer of Will County. Following the deposit, pursuant to the provisions of section 2.3 of the Act, the court, on September 18, 1973, entered an order vesting title to the tract in the petitioner.

On the same day, the defendants filed a joint petition requesting that an order be entered authorizing defendant New Century (owner) to withdraw $137,500 of the amount deposited and Talcott (mortgagee) to withdraw $187,500. The court entered an order authorizing the withdrawals by the defendants as prayed.

The unduly long delay in having a final determination of just compensation is not explained in the record. It was not until nearly eight years later that a jury fixed the just compensation for the tract taken at $171,535. This amount was $153,465 less than the amount fixed as preliminary just compensation by the court and withdrawn by the defendants. On June 25, 1981, the Department filed a petition in the circuit court of Will County asking the court to hold the two defendants jointly and severally liable for the refund of $137,500 (the amount withdrawn by New Century) and Talcott separately liable for $15,965 (the amount by which Talcott's withdrawal exceeded the total award of the jury). The Department also prayed for interest on the amount that the withdrawals exceeded the award. The circuit court held the defendants jointly and severally liable for the amount of $137,500; it held Talcott individually liable for $15,965, but denied the prayer for interest.

The appellate court reversed that part of the circuit court's judgment holding New Century and Talcott jointly and severally liable for $137,500. It affirmed the several liability of Talcott for $15,965. It also affirmed the denial of interest. (106 Ill. App.3d 1098.) We allowed the Department's petition for leave to appeal. 87 Ill.2d R. 315.

Since this action was commenced, the Eminent Domain Act has been incorporated in the new Code of Civil Procedure. References herein to sections of the Act will refer to the current statutory citations in the Code of Civil Procedure.

The basic contention of the Department in the trial court, and in the appellate court, was that, under the various sections of the Act, joint and several liability is imposed upon the parties who participate in the withdrawal of the money deposited for the repayment of the amount that the withdrawals exceed the final award. This is also the basic contention in this court. However, the Department now argues several issues not raised in the trial court or in the appellate court, to which we will refer later. In a sense, these issues are ancillary to the Department's basic contention.

The relevant sections of the Code of Civil Procedure are sections 7-106, 7-109 and 7-123(b) (Ill. Rev. Stat. 1981, ch. 110, pars. 7-106, 7-109, 7-123(b)). Section 7-106 is captioned "Withdrawal by persons having an interest." The relevant part of this section is as follows:

"Withdrawal by persons having an interest. At any time after the plaintiff has taken possession of the property pursuant to the order of taking, * * * any party interested in the property may apply to the court for authority to withdraw for his or her own use his or her share (or any part thereof) of the amount preliminarily found by the court to be just compensation * * *. After the hearing, the court may authorize the withdrawal requested, or such part thereof as is proper, but upon the condition that the party making such withdrawal shall refund to the clerk of the court, upon the entry of a proper court order, any portion of the amount so withdrawn which exceeds the amount finally ascertained in the proceeding to be just compensation * * * owing to such party." (Ill. Rev. Stat. 1981, ch. 110, par. 7-106.)

Section 7-109 is captioned "Refund of excess of deposit." The relevant part of that section provides:

"Refund of excess of deposit. If the amount withdrawn from deposit by any interested party under the provision of Section 7-106 of this Act exceeds the amount finally adjudged to be just compensation * * * 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. 1981, ch. 110, par. 7-109.)

The appellate court construed these two sections as creating individual or several liability for the refund upon the party making the withdrawal. The court held that, under these sections, Talcott was not liable for the amount withdrawn by New Century, but was responsible for the refund of the amount by which Talcott's withdrawal ($187,500) exceeded the final award ($171,535), which is $15,965. We find that this construction of these sections of the statute is correct. Section 7-106 speaks of an interested party withdrawing "his or her share" and provides that the withdrawal shall be upon the condition that the party making such withdrawal shall refund to the clerk any portion of the amount so withdrawn which exceeds the amount finally ascertained to be just compensation owing such party. Again, section 7-109 states that if the amount withdrawn by any interested party exceeds the amount finally adjudged to be just compensation due to such party the court shall order such party to refund such excess to the clerk. That section further provides for the entry of judgment for such excess against such party.

These sections, although recognizing that multiple parties may be interested in the award and may make withdrawals, clearly speak in terms of individual responsibility for refunds and tie the liability for the refund to the amount by which the individual party's withdrawal exceeds his or her share of the final award of compensation. It would be a strained construction to hold that these sections make all parties who participate in a withdrawal liable for the total amount by which the total withdrawals exceed the final amount of compensation.

The Department contends that the appellate court did not consider the provisions of section 7-123(b) of the Act. The ...


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