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02/17/89 Plaintiffs- v. the Village of Palatine Et

February 17, 1989

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION INLAND REAL ESTATE CORPORATION ET AL., PLAINTIFFS-APPELLANTS

v.

THE VILLAGE OF PALATINE ET AL., DEFENDANTS-APPELLEES



535 N.E.2d 42, 179 Ill. App. 3d 1001, 128 Ill. Dec. 828 1989.IL.197

Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MURRAY delivered the opinion of the court. PINCHAM and COCCIA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Plaintiffs-appellants are a class of residents who were residing outside the defendant Village of Palatine (Village) in 1981 when the Village bought the Ferndale Heights Utility Company (Ferndale), which had been providing water and sewer services to plaintiffs. Plaintiffs subsequently brought a class action challenging the increased rates charged to them by the Village for water, sewer, tap-ons, and meter services. Nonresidents were charged a combined water and sewer rate of $6.23 per 1,000 gallons of water while Village residents were charged considerably less.

Initially, the trial court found that jurisdiction as to the reasonableness of the rates was with the Illinois Commerce Commission, a finding later reversed by this court in Inland Real Estate Corp. v. Village of Palatine (1982), 107 Ill. App. 3d 279, 437 N.E.2d 883. On July 16, 1984, after an extensive trial with numerous witnesses and exhibits, Judge Albert Green entered an 80-page order finding, among other things, that the water rates charged by the Village were unreasonable and discriminatory as to the plaintiff class. The court set a reasonable rate of $3.45 per 1,000 gallons to be retroactively applied from October 19, 1981.

Cross-appeals were filed, and this court affirmed the trial court but remanded the matter, finding that the trial court did not resolve plaintiffs' contentions that specific rates should have been set for sewer, tap-ons, and meter services. (Inland Real Estate Corp. v. Village of Palatine (1986), 146 Ill. App. 3d 92, 496 N.E.2d 998 (Inland II).) Pending the appeal in Inland II, this court entered a stay of enforcement of the trial court's order.

On remand of Inland II to the trial court, the Village filed a motion for an order resolving its rates for sewers, tap-ons, and meter services. Plaintiffs responded and requested that an evidentiary hearing be held on the matter, and also requested post-judgment interest on the water rate refunds. Both sides submitted supporting memoranda. In July 1987, the trial court granted the Village's motion, and later in August, denied plaintiffs' petition for interest. No evidentiary hearings were held. Plaintiffs then brought this appeal alleging that the trial court erred in denying post-judgment interest and in granting the Village's motion regarding sewer rates, tap-ons, and meter charges without an evidentiary hearing.

We affirm the trial court for the following reasons.

First, with respect to the interest issue, there are several reasons for affirming the trial court's denial thereof. The allowance of interest in a chancery case is within the sound discretion of the trial court and is allowed where warranted by equitable considerations and is disallowed if such an award would not comport with Justice and equity. (Galler v. Galler (1975), 61 Ill. 2d 464, 336 N.E.2d 886.) And, a trial court's determination as to the awarding of interest will not be set aside absent an abuse of discretion. (Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12.) There is no such abuse shown in the present case.

In order to justify an award of interest, the amount of money to be paid must be certain and the judgment debtor must have enjoyed the improper use of the money for the period for which interest is claimed. (Lincolnland Properties, Inc. v. Butterworth Apartments, Inc. (1984), 128 Ill. App. 3d 673, 470 N.E.2d 639.) We find neither condition present here. Much of plaintiffs' argument in support of post-judgment interest concerns the Village's alleged inequitable conduct prior to Judge Green's 1984 order. However, prejudgment interest had already been denied and was affirmed by this court. In addition, we are concerned that the question of post-judgment interest was never mentioned until after remand of this cause in Inland II. If, as plaintiffs claim, the 1984 order was a money judgment with a sum certain, it appears that a request for interest should have been included in their post-trial motion instead of waiting until after the cause was remanded for resolution of sewer rates and tap-on and meter services.

As to the certainty of the sum, the record indicates that, at the time the present appeal was filed, the parties were still attempting to agree on a procedure whereby it could be determined to whom the Village owed money and who owed the Village, and the relevant sums involved. The trial court did state that if the parties could agree on sums owed and a disbursement procedure, it would order interest to be paid from the date of the refund order. Thus, if the procedure to determine the sum was not yet established, then we cannot say that there was yet a sum certain.

Also, there is no evidence that the Village has enjoyed improper use of the money owed. Shortly after the entry of the 1984 order, the Village tendered compliance by submitting a suggested refund and deficiency procedure and requested a judgment. Plaintiffs objected to the Village's petition. Admittedly, the subsequent appeal (Inland II) and stay would not have affected any interest granted, but the stay of enforcement entered by this court at the Village's request is otherwise relevant. In a complex rate case such as this with a voluminous record, it is certainly possible that the $3.45 per 1,000 gallon rate set by the trial court could have been modified after the appeal, resulting in further complications had the money been disbursed. A stay of enforcement was a logical procedure to forestall such problems. Therefore, it cannot be said that the Village, as a result of the granting of its motion to stay, had improper use of ...


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