Appeal from the Circuit Court of Cook County; the Hon. Albert
Green, Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Plaintiff commenced this action against the treasurer of Cook County seeking individual and class relief to recover the income earned by the treasurer on condemnation judgment awards from the date of deposit by the condemning authority to the date of distribution to the condemnees. The trial court entered judgment in favor of the individual plaintiff, determined that the suit met the prerequisites for maintenance as a class action and conducted an accounting to determine class recovery. Defendant appeals.
On March 4, 1982, plaintiff, O-Kay Shoes, Inc., filed a class action complaint for injunctive and other relief in the circuit court of Cook County against defendant, the treasurer of Cook County. Plaintiff had been a commercial tenant of a parcel of real estate which became part of the subject of a condemnation proceeding initiated by the city of Chicago. A judgment of condemnation of all interests in the subject property, including plaintiff's interest, was entered in the condemnation proceeding on December 3, 1981. As a result, plaintiff was to receive monetary compensation for its interest in the condemned property and the owner of the property, Central National Bank of Chicago, was to receive an additional, larger amount as compensation.
On January 29, 1982, an order was entered upon motion of Central National Bank to withdraw the proceeds. That order directed defendant to pay $15,000 to plaintiff and $160,421.74, less 1981 real estate taxes, to Central National Bank and provided that this payment constituted "a full acquittance to the Treasurer of Cook County, Illinois in and for said sums so paid over." On December 31, 1981, the city of Chicago had deposited the condemnation judgment amount with defendant, who invested it so as to earn income. The income earned by defendant on the amount of plaintiff's condemnation award was $145.83. On February 4, 1982, defendant paid the sum of $15,000 to plaintiff, but did not pay plaintiff any of the income earned on that amount while it was held by defendant.
Plaintiff's class action complaint is based upon its contention that the failure of defendant to pay plaintiff, and others similarly situated, all income earned from the investment of condemnation awards constitutes an unlawful deprivation of private property without due process of law in violation of the Federal and Illinois constitutions.
In two separate orders entered by the trial court on February 3, 1983, plaintiff's motions for class determination, class definition, summary judgment, and the striking of defendant's amended affirmative defense were each granted. Subsequently, following the completion of accounting procedures on certain of defendant's records, the trial court entered an order incorporating the findings of the February 3, 1983, orders and finding in favor of the plaintiff class and against defendant.
• 1 Defendant first contends that the doctrine of res judicata barred plaintiff from maintaining its cause of action because "the plaintiff, the defendant, and the underlying subject matter of the cause of action" had been incorporated into the December 3, 1981, condemnation judgment. This contention is not supported by the record, however, because defendant in the instant case was not a party to the condemnation action and because the instant case, seeking the recovery of income from the county treasurer, is not the same cause of action as the condemnation action. Because the case at bar is not between the same parties and does not involve the same cause of action as the prior condemnation action, the doctrine of res judicata cannot apply to bar plaintiff from maintaining the instant suit. See City of Elmhurst v. Kegerreis (1945), 392 Ill. 195, 203, 64 N.E.2d 450.
• 2 Defendant argues that the provisions of the condemnation judgment ordering the treasurer to pay the condemnation awards and providing that such payment "shall constitute a full acquittance to the Treasurer of Cook County, Illinois in and for said sums so paid over" estops plaintiff from claiming interest on the condemnation award in the instant action. However, because this language was not determinative of a material issue in the condemnation action, it does not bar the maintenance of the instant action. (See Hunter v. Troup (1924), 315 Ill. 293, 297-98, 146 N.E. 321.) We therefore find that the trial court did not err when it found the doctrine of res judicata inapplicable to the instant action.
• 3 Defendant next contends that the trial court erred in allowing plaintiff's action to be maintained as a class action. In order for an action to be maintained as a class action, the court must find that:
"(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy." (Ill. Rev. Stat. 1983, ch. 110, par. 2-801.)
A trial court has broad discretion in determining whether an action may be maintained as a class action, and its determination should be given great respect by a reviewing court. McCabe v. ...