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Waukegan Port District v. Kyritsis

OPINION FILED NOVEMBER 9, 1984.

WAUKEGAN PORT DISTRICT, PLAINTIFF-APPELLANT,

v.

CHRISTINE KYRITSIS ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County; the Hon. Harry D. Strouse, Jr., Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

Plaintiff, Waukegan Port District (Waukegan), appeals from an order of the circuit court of Lake County entered in this eminent domain proceeding. This order, entered after trial and after judgment had been entered, provided that defendants Christine Kyritsis et al. were entitled to interest based on the rate for United States treasury bills on the $100,000 awarded them as just compensation for Waukegan's taking of their property.

The issue raised on appeal concerns whether the trial court properly allowed interest on the award in excess of the 6% figure set forth by statute (Ill. Rev. Stat. 1981, ch. 17, par. 6403).

After a trial the jury awarded defendants just compensation in the amount of $100,000 and damages to the remainder in the amount of $35,000. On November 16, 1981, the trial court ordered that Waukegan deposit this amount plus "interest pursuant to statute" with the county treasurer. Waukegan appealed from the judgment, arguing certain evidence had been improperly allowed into evidence by the trial court.

After this court affirmed the trial court in the prior appeal, Waukegan deposited $147,776.90 with the Lake County treasurer's office. This amount included $17 in costs and $12,759.90 in interest, computed at 6% per annum from the date of judgment to the date of payment. No interest has been awarded for damages to the remainder.

Defendants then moved to withdraw the funds on deposit and for a hearing on their motion for interest in excess of 6% per annum on the $100,000 compensation award for the taking. Defendants' motion argued that the 6% figure was unreasonably low and that a proper rate of interest was that used for corporate bonds and treasury bills during the period in question. The common law record shows that the trial court ordered the deposited sum to be paid out to defendants and that Waukegan pay an additional $7,822.37 in unpaid interest based on the rate of interest paid on 30-day United States treasury bills.

Waukegan moved to have the trial court vacate or reconsider this order, but for some reason the motion was not ruled on prior to Waukegan's filing the notice of appeal. Waukegan argued that once the notice of appeal had been filed the trial court lost jurisdiction. The trial court agreed, and an appeal ensued. This court then remanded the cause to the trial court with directions that it consider Waukegan's motion. The trial court then denied Waukegan's petition to vacate or reconsider, and this appeal followed.

On appeal, Waukegan contends that the 6% per annum rate was the proper interest rate and is required by section 3 of "An Act in relation to the rate of interest and other charges in connection with sales on credit and the lending of money," which provides in pertinent part:

"Judgments recovered before any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied or 6% per annum when the judgment debtor is a unit oflocal government, * * *." Ill. Rev. Stat. 1981, ch. 17, par. 6403.

The above-quoted statute, which will be referred to herein as section 3 of the Act, has been dealt with by the legislature a number of times. At one point it was found under the Interest Act (Ill. Rev. Stat. 1979, ch. 74, par. 3) and was later transferred to banking and finance (Ill. Rev. Stat. 1981, ch. 17, par. 6403). Pub. Act 82-280, effective July 1, 1982, for the enactment of the Code of Civil Procedure, repealed section 3 of the Act. (Ill. Rev. Stat. 1981, ch. 110, par. 19b-101.) The Act was also amended by Pub. Act 83-707, effective September 13, 1983, so as to strike the word "before" and replace it with the word "in." The first two sentences of the Act have been unchanged since the Interest Act was enacted in 1879. (Ill. Ann. Stat. ch. 74, par. 3, Historical Note, at 48 (Smith-Hurd 1966).) The statute is presently part of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1303) and is unchanged from the above-quoted provision.

In Department of Conservation v. Jones (1979), 75 Ill.2d 557, 389 N.E.2d 1197, our supreme court considered the question of whether section 3 of the Interest Act was applicable to eminent domain proceedings. The court noted that as early as 1897, section 3 of the Interest Act was held to be applicable to condemnation judgments in eminent domain proceedings. (Epling v. Dickson (1897), 170 Ill. 329, 48 N.E. 1001.) It found that it should be held applicable, and distinguished a 1972 decision that held to the contrary. City of Chicago v. Albert Schorsch Realty Co. (1972), 6 Ill. App.3d 1074, 1079, 287 N.E.2d 93, 96.

The court also described certain distinguishing features of "quick-take" condemnations and a provision of the Interest Act applicable to those situations. Section 2.6 of the Eminent Domain Act (Ill. Rev. Stat. 1957, ch. 47, par. 2.6) was intended, the court noted, to meet the new conditions created by the quick-take provisions of the law, so as to insure interest would accrue from the time when possession of the property was lost. (Department of Conservation v. Jones (1979), 75 Ill.2d 557, 564, 389 N.E.2d 1197, 1200.) Jones clearly stated that, except for quick-take condemnations, section 3 of the Interest Act was applicable to eminent domain proceedings.

In the present case, the order entered allowing interest based on United States treasury bills rates stated that the court had considered both Department of Conservation v. Jones (1979), 75 Ill.2d 557, 389 N.E.2d 1197, as well as Department of Transportation v. Rasmussen (1982), 108 Ill. App.3d 615, 439 N.E.2d 48, and found the 6% rate to be inadequate. As discussed above, the Jones case is supportive of Waukegan's position, and requires section 3 to apply to eminent domain judgments, except quick-take judgments. Defendants argue that Rasmussen stands for the proposition that the statutory 6% interest rate is a minimum only, and the proper rate is a question for the trier of fact. However, Rasmussen was a "quick-take" condemnation, unlike the condemnation case at bar.

In Department of Transportation v. Rasmussen (1982), 108 Ill. App.3d 615, 439 N.E.2d 48, the Department appealed from a judgment for damage to land not taken after a quick-take easement over part of defendant's property was granted for construction of a highway overpass. The Department claimed trial errors. The defendants cross-appealed from the judgment which awarded them interest at 6% per annum on ...


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