text:
      In re MARRIAGE OF KENNETH BUSSEY, Petitioner-Appellant, and JEANNE BUSSEY, a/k/a Jeanne Fincher, Respondent-Appellee.
    Fourth District
    No. 4—83—0829
    Opinion filed November 7, 1984.
    Arthur M. Lerner, of Greaves, Lerner & Kirchner, of Champaign, for appellant.
    Mel Sloan, of Mel Sloan Ltd., of Chicago, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

In this matrimonial case, we again confront the difficult problem which this court analyzed in detail in In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 443 N.E.2d 289. It concerns interpretation of article VI, section 9, of the Illinois Constitution of 1970 which states that, with exceptions immaterial here, “[circuit courts shall have original jurisdiction of all justiciable matters.” In Hears, this court held that the lack of compliance with certain statutory procedures did not deprive the trial court of subject-matter jurisdiction of a probate proceeding. Here, we hold that similar failures did not deprive the trial court of subject-matter jurisdiction of a proceeding under the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.). We also conclude that the trial court did not err in modifying child support provisions of an Indiana divorce decree and in awarding attorney fees to the spouse prevailing. We affirm.

On August 18, 1981, petitioner, Kenneth Bussey, filed a petition in the circuit court of Champaign County against respondent, Jeanne Bussey, a/k/a Jeanne Fincher. The petition alleged that the parties had been divorced pursuant to a decree, a copy of which was attached, entered on or about March 8, 1976, by the circuit court of Marion County, Indiana, and that the decree awarded custody of the two minor children of the marriage to respondent. Petitioner requested that he be granted the custody of the children. On March 3, 1983, respondent filed a cross-petition, amended May 31, 1983, requesting that the Indiana judgment be modified to award her increased support for the two children.

After an evidentiary hearing, the trial court entered orders on January 18, 1983, August 19, 1983, and November 30, 1983, the combined effect of which was (1) to deny the request for change of custody, (2) to increase the award of support payments for the two children from the total sum of $600 per month to the sum of $1,800 per month, and (3) to award respondent attorney fees in the sum of $10,092.33.

Petitioner has appealed the portions of the order increasing the amount of support payments and awarding attorney fees. His first contention raised on appeal is that the trial court lacked subject-matter jurisdiction of the proceedings in that court and, accordingly, was without power to enter the order. Petitioner concedes that the point is being raised for the first time on appeal, but correctly states that the question of subject-matter jurisdiction cannot be waived and may be raised at any time. (Rothert v. Rothert (1982), 109 Ill. App. 3d 911, 918, 441 N.E.2d 179, 183.) Petitioner also maintains that (1) the trial court abused its discretion in increasing the amount of the support payments and in ordering him to pay for certain expenses, and (2) the award of attorney fees was improper.

We consider the question of jurisdiction first. Although the pleadings made no reference to any particular statute under which the proceedings were being brought, the parties contend that they intended to invoke the provisions of section 511 of the IMDMA (Ill. Rev. Stat. 1981, ch. 40, par. 511), which concerns the procedure for modification of judgments of dissolution of marriages. Subsection (c) of that section states:

“In any post-judgment proceeding to enforce or modify the judgment of another state, the moving party shall commence the proceeding by filing a petition to enroll that judgment, attaching a copy thereof as a part of the petition and proceed as provided for in paragraph (b) hereof.” Ill. Rev. Stat. 1983, ch. 40, par. 511(c).

Two statutory provisions were applicable to proceedings to “enroll” foreign judgments at the time of the filing of the original petition on August 18, 1981. Section 3 of the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1981, ch. 77, par. 90, now ch. 110, par. 12 — 603) stated that a petition for “registration” of a foreign judgment should be verified and set forth “the date of its entry and any subsequent facts, circumstances or legal proceedings affecting it.” The section required the clerk of the court in which the petition was filed to notify the clerk of the court entering the judgment of the filing of the petition and request the clerk to file that information with that judgment. The section concluded by stating, “[t]he filing of the petition constitutes registration of the foreign judgment.” Section 511(b) of IMDMA, referred to in section 511(c) of that Act, provided that a proceeding to modify a judgment of another court of this State should be commenced by filing a petition to “establish” the judgment with the clerk giving notice of the filing by mail to the clerk of the court where the judgment was “entered and last modified in the same manner as notice is mailed when registering a foreign judgment.” Ill. Rev. Stat. 1981, ch. 40, par. 511(b).

The original petition here contained a copy of the Indiana decree sought to be modified, but it did not request that the decree be registered. The record contains no indication that the stated notice was sent by the clerk of the trial court to the clerk of the court entering the decree. As there was no request to register the decree, there would have been no reason for the clerk to send such a notice. No judgment registering the Indiana decree was ever entered, but no new judgment is necessary to merely register the foreign judgment. By the terms of section 3 of the Uniform Act, the filing of a proper petition would have constituted “registration.” (See Employers’ Lia bility Assurance Corp. v. Coronet Insurance Co. (1969), 106 Ill. App. 2d 24, 245 N.E.2d 629.) However, because of the lack of request for registration and the lack of notice between the clerks, petitioner maintains that the trial court lacked subject-matter jurisdiction.

Petitioner’s theory is based upon the argument that the trial court’s subject-matter jurisdiction arises from section 511 of the IM-DMA, and, absent conformity to that legislation, there was no such jurisdiction in that court. Petitioner refers to the case of Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785, where the Second District, in deciding that a trial court had subject-matter jurisdiction in a similar type case, held that enrollment of the foreign decree made the request for modification justiciable and thus vested the circuit court with subject-matter jurisdiction.

Following our decree in Mears, we make a somewhat different analysis of the question of subject-matter jurisdiction. There, we concluded that under recent supreme court decisions, a trial court’s jurisdiction arises from the constitution rather than from the statutes. We stated that “the inquiry must be whether there exists a justiciable controversy, and if so, are there any statutory conditions precedent to judicial intervention.” (In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 1138, 443 N.E.2d 289, 293.) The tenor of the Mears opinion was that the statutory conditions precedent would not be extensive nor require strict compliance. The doctrine of Selden v. Illinois Trust & Savings Bank (1909), 239 Ill. 67, 87 N.E. 860, that strict compliance with statutory requirements was necessary for a court to have subject-matter jurisdiction of a statutory proceeding, was stated to no longer be the law.

Counsel for petitioner has made a forceful, admirably straightforward argument distinguishing this case from many cited in support of the theory that the court had subject-matter jurisdiction. Counsel has also pointed out that under traditional concepts of subject-matter jurisdiction in a statutory proceeding, jurisdiction would have been held to be lacking. He also seeks to distinguish this case from Mears. However, we are convinced that, as in Mears, only minimal activity is necessary to comply with the condition precedent to enable the court to acquire jurisdiction, and that was met here with the filing of the original petition accompanied by a copy of the Indiana order. That petition set forth a “justiciable” matter. Any procedural failures were of a nature that could have been corrected if raised in the trial court, do not go to the question of jurisdiction, and cannot be raised for the first time on appeal. We hold that the trial court acquired subject-matter jurisdiction upon the filing of the petition.

We now turn to the merits. The essential circumstance justifying the trial court order imposing such a substantial burden upon petitioner is that when the divorce decree was entered he was a physician and surgeon in the armed forces with a commensurate income. He is now in a clinical practice with a net monthly income of $14,000 and has substantial accumulation of assets. The trial court was permitted to consider the lifestyle the children would have lived in had the divorce not taken place. (In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158, 408 N.E.2d 1021.) We recognize that respondent had an income, without working, of some $2,300 per month and some social security payments which were to be used for the benefit of the children. Petitioner accurately points out that respondent’s evidence of the needs of the children for support payments in the amount of $900 per month per child over and above the social security money which she had available for them was not well documented. We recognize that maintenance should not be given in the guise of support. However, considering that the support payments of $1,800 per month constitute less than one-seventh of petitioner’s net income, we find no breach of discretion in the trial court’s determination.

The modified decree also requires petitioner to pay substantial additional sums for private schooling and counseling for the children. The evidence indicated uncertainty as to whether either was necessary or will actually take place. We cannot say that a determination as to the desirability of either was beyond the proper discretion of the trial court. The order of modification wisely conditioned any requirement for payment in this respect upon the charges actually being imposed. No error resulted.

The court ordered petitioner to pay $10,092.33 to respondent’s attorney as petitioner’s 90% share of the fees and expense reimbursements to which the attorney was entitled. Although the case was tried in Champaign County, the respondent obtained counsel from Cook County. The fees were fixed at a rate somewhat higher than that which was customary in Champaign County. Respondent maintained that she needed counsel from outside the area because of petitioner’s prestige in Champaign County. The record gives no evidence of why that would be necessary. However, the proceedings were lengthy, and the relief obtained for respondent was very substantial. Much of the controversy concerned the custody of the children. A ruling was obtained which was not appealed by petitioner. While his decision not to appeal is likely because he does not wish to further subject the children to dispute, respondent’s success is a factor to consider in justifying the fees.

As there is no transcript of the custody hearing before us, we cannot know of the details of the services performed by respondent’s counsel in that dispute. Considering all the information before us, we cannot say that the fee award was excessive.

Because we determine that the trial court had jurisdiction of the case and did not abuse its discretion in the rulings it made, we affirm.

Affirmed.

TRAPP and WEBBER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE HAMMER, Defendant-Appellant.
    Second District
    No. 2—83—0864
    Opinion filed November 15, 1984.
    G. Joseph Weller, Josette Skelnik, and Kathleen J. Hamill, all of State Appellate Defender’s Office, of Elgin, for appellant.

      Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant-appellant, George Hammer, appeals from an order of the circuit court of Winnebago County denying his motion to suppress evidence obtained from court-approved use of an eavesdropping device to record defendant’s phone conversation. Defendant contends the trial court erred because reasonable cause did not exist to believe either that defendant had committed a felony or that relevant conversations would be overheard. Because we. find that the State’s eavesdropping application was sufficient to establish reasonable cause, we affirm.

Defendant was charged by indictment on January 11, 1983, with the offense of arson. While defendant was originally charged in two counts, the State later dismissed count I but proceeded to try defendant on count II, which alleged that defendant, Harley Robert Climer, Sr. (Climer, Sr.), Harley Robert Climer, Jr., (Climer, Jr.), and Clifford Eugene (Jack) Messenger (Messenger) knowingly, by means of fire, damaged real property located at 1122 Emerald Lane, Machesney Park, Winnebago County, with the intent to defraud an insurer.

Preceding the indictment on December 17, 1982, Steven D. Crow, a law-enforcement officer employed by the Illinois Division of Criminal Investigation, filed an application for an order for use of an eavesdropping device accompanied by two affidavits, one filed by Crow and the other by Ronda Jean Varble, an acquaintance of defendant. That same day, the trial court issued an order allowing law-enforcement personnel to use an eavesdropping device to overhear certain conversations between Varble and defendant. Based upon this order, certain conversations were overheard, and thereafter, defendant filed his motion to suppress evidence on March 17, 1983, contending that the State’s application was insufficient to establish reasonable cause (see Ill. Rev. Stat. 1981, ch. 38, par. 108A — 4) and contained only accusations based upon hearsay.

After hearing oral arguments, the trial court filed an order on April 27, 1983, denying defendant’s suppression motion and finding that the supporting affidavits set forth reasonable and probable cause for the issuance of the eavesdropping order. However, the trial court did suppress portions of the taped conversations, which it concluded were either irrelevant, inflammatory or prejudicial to defendant.

The cause then proceeded to trial commencing on May 17, 1983, which resulted in a mistrial after the jurors failed to arrive at a verdict. The second trial commenced on July 18, 1983. After numerous witnesses testified, including Crow and Varble, who had provided the affidavits for the eavesdropping application, the jury on July 20, 1983, returned a guilty verdict. Defendant thereupon was sentenced to three years’ imprisonment.

Defendant contends that the trial court erred in denying his request to suppress the substance of a phone conversation between himself and Varble which was recorded through use of a court-authorized eavesdropping device. Specifically, defendant argues that the court’s order authorizing use of the eavesdropping device violated sections 108A — 4(b) and (c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 108A — 4(b) and (c)) because the order was not predicated on reasonable cause to believe that defendant had committed a felony or that relevant conversations would be heard.

Eavesdropping with one party’s consent does not violate the fourth amendment to the United States Constitution. (United States v. White (1971), 401 U.S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122, People v. Swimley (1978), 57 Ill. App. 3d 116, 124, 372 N.E.2d 887, 894, cert. denied (1978), 439 U.S. 911, 58 L. Ed. 2d 257, 99 S. Ct. 281.) Consequently, any restrictions placed on such one-party eavesdropping are statutory and not constitutional. (People v. Sylvester (1980), 86 Ill. App. 3d 186, 190, 407 N.E.2d 1002, 1006.) The statutes governing such eavesdropping are contained in article 108A of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 108A — 1 et seq.). Section 108A — 4 permits approval of the eavesdropping where “there is reasonable cause for believing that an individual is committing, has committed, or is about to commit a felony under Illinois law; ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 108A — 4(b).) Section 108A — 4(c) authorizes approval if “there is reasonable cause for believing that particular conversations concerning that felony offense will be obtained through such use; ***.” Ill. Rev. Stat. 1981, ch. 38, par. 108A — 4(c).

Reasonable cause is present when the totality of facts and circumstances existing at the time are sufficient to warrant the belief by a man of reasonable conscience that an offense has been, is being, or will be committed. (People v. Woods (1984), 122 Ill. App. 3d 176, 181, 460 N.E.2d 880, 884; People v. Sylvester (1980), 86 Ill. App. 3d 186, 194-95, 407 N.E.2d 1002, 1009; see also People v. Robinson (1976), 62 Ill. 2d 273, 276.) In determining the existence of reasonable cause, unlike the situations involving search warrants, courts are not “unduly technical.” (People v. Sylvester (1980), 86 Ill. App. 3d 186, 196, 407 N.E.2d 1002, 1011.) An affidavit supporting an application for an eavesdropping order need not prove beyond a reasonable doubt that a crime has been committed or even establish a prima facie case. People v. Ellis (1984), 122 Ill. App. 3d 900, 461 N.E.2d 646; People v. O’Dell (1980), 84 Ill. App. 3d 359, 368, 405 N.E.2d 809, 817.

Courts have interpreted the expression “reasonable cause” for purposes of the eavesdropping statute to be synonymous with probable cause. (People v. Wrestler (1984), 121 Ill. App. 3d 147, 154, 458 N.E.2d 1348, 1352; People v. Monoson (1979), 75 Ill. App. 3d 1, 9, 393 N.E.2d 1239, 1246.) Additionally, the “totality of the circumstances” test enunciated in Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, for determining the existence of probable cause for issuance of a search warrant similarly is applicable to determine if reasonable cause exists for issuance of an order authorizing use of an eavesdropping device. People v. Wrestler (1984), 121 Ill. App. 3d 147, 154-55, 458 N.E.2d 1348, 1352-53.

In the instant case, the application executed by Crow requested authorization to overhear and record conversations which might occur between Varble and various people including defendant. In the application, Crow stated his belief that certain felonies including arson had been committed, that Varble had consented to use of an eavesdropping device during the conversations, and that the Winnebago County State’s Attorney had authorized the application. Accompanying the application were two supporting affidavits by Crow and Varble. In his affidavit, Varble stated that he was in Climer, Sr.’s, bedroom in December 1981 when Climer, Sr., was on the phone. Varble stated Climer was talking to Hammer and asked him “when the woman was going to get her insurance check.” Varble stated that Climer, Sr., told Hammer that if he were not paid soon, Climer, Sr., was going to charge the woman a certain additional amount each week.

Varble further averred that approximately one week after the above discussion took place, Climer, Sr., told Varble that he would loan Varble $100 if Climer, Sr., first received his money from Hammer. In response to Varble’s questioning about what Climer, Sr., was “into,” Climer, Sr., stated, “It was an arson.” During this same conversation, Climer, Jr., entered the room and told his father that he also needed the money. Varble testified that subsequent to this conversation, he heard at Climer, Sr.’s, house on five or six occasions Climer, Sr., call Hammer “about the money that was owed him for the arsons.” Varble was certain that the conversation he overheard was between Climer, Sr., and Hammer because Climer, Sr., told him so.

Crow also filed a supporting affidavit wherein he stated he interviewed Shirley Varble (Shirley) on December 2, 1982, regarding the arson of the house on Emerald Lane in Machesney Park, Illinois. Shirley, who is the sister of Climer, Sr., said Climer, Sr., told her that he had set fire to the house with Messenger and Climer, Jr., and that Hammer had hired Climer, Sr., to commit the arson. The affidavit further explicated that Shirley stated she was told by Climer, Sr., that he was angry because he had not yet received the money for the arson, and Shirley overheard Climer, Sr., arguing on the telephone with Hammer about the money, threatening to “burn him [Hammer] out just as he did the others” if he wasn’t paid soon.

Crow also averred that Shirley told him that she heard Daisey Climer (Climer, Sr.’s, wife) shout to her husband, who was on the phone with Hammer, that she would burn Hammer out if he didn’t pay promptly. Crow also stated Shirley overheard an argument involving Robin Messenger, Climer, Jr.’s, daughter, and Climer, Sr., concerning the fact that Messenger had not received his money for the arson. Shirley also told Crow that Climer, Jr., was angry because he had not been paid the amount he was supposed to receive for setting the fire.

Crow further averred that on December 2, 1982, he interviewed Patsy J. Gregory, who told him that in late February 1982 she overheard Climer, Sr., talking on his telephone to Hammer and demanding “money for the torch he had done on Emerald Lane.” Gregory told Crow that Climer, Sr., threatened to burn Hammer’s house if he wasn’t paid and further stated she heard Climer, Sr.’s, wife also threaten to burn Hammer’s house if they weren’t paid.

Defendant asserts these affidavits are insufficient to establish reasonable cause because they contain only hearsay. Hearsay statements in an application for the use of an eavesdropping device are not prohibited by statute in Illinois and can support a reasonable-cause determination if a substantial basis exists for crediting the hearsay. (People v. Sylvester (1980), 86 Ill. App. 3d 186, 195, 407 N.E.2d 1002, 1010.) While acknowledging this general rule, defendant states the hearsay in the instant case lacks a substantial basis and cites exclusively People v. Wassell (1983), 119 Ill. App. 3d 15, 455 N.E.2d 1100, as support for his position. In Wassell, a petition for authorization to use an eavesdropping device was executed by a law-enforcement agent. In the petition the agent alleged that the defendant was known to be about to commit solicitation/murder because on two occasions he had contacted a confidential source and asked if the source could arrange to have his wife killed. The agent further alleged that the defendant had arranged to meet twice with an individual to discuss the details of the killing. On the basis of a petition, a form signed by another agent consenting to having his conversations with the defendant monitored, an authorization form executed by the State’s Attorney, and no other extrinsic evidence, the circuit court issued an order authorizing the use of the eavesdropping equipment. This order was subsequently extended, incriminating statements were thereafter overheard, and the trial court denied the defendant’s suppression motion. The appellate court reversed, characterizing the statements in the application as “unadulterated hearsay” and emphasizing that no evidence was introduced in support of the application.

Defendant argues that, like the application in Wassell, the application here also contains only unadulterated hearsay. We find Was-sell inapposite for several reasons. The application there only contained statements of one special agent; no affidavits accompanied the application. In contrast, in addition to the executed petition here, two sworn affidavits were filed concerning the events in question. These sworn affidavits constituted the additional evidence which was lacking in Wassell. Also, the affidavits in this case, although containing hearsay, corroborate each other, and therefore, a substantial basis exists for crediting the hearsay. For example, in both Crow’s and Varble’s affidavits, Climer, Sr., identified defendant as involved in the arson. In Varble’s affidavit and in Crow’s affidavit reiterating what he was told by Varble and Gregory, Climer, Sr., expressed his dissatisfaction concerning nonpayment and threatened to burn down defendant’s house. In addition, both Varble and Gregory in Crow’s affidavit stated that Climer, Sr.’s, wife verbally threatened to burn down defendant’s house if payment were not forthcoming. The fact that the affidavits corroborate each other supports a finding of reasonable cause and differentiates these facts from those in Wassell.

Defendant contends, however, that both Varble and his wife are not disinterested witnesses, but rather are persons who are motivated to incriminate defendant in order to better their personal positions. In return for his testimony, defendant notes Varble received favorable dispositions of other pending actions. Defendant also emphasizes Varble’s wife’s obvious interest in protecting her husband. While these alleged biases should affect the weight to be accorded the Varbles’ testimony, they do not render irrelevant the Varbles’ testimony concerning the determination of reasonable cause. Assessment of witness credibility is for the trial court in the first instance, and the conclusions of the issuing judge regarding reasonable cause are to be accorded great deference by subsequent judges. (People v. Ellis (1984), 122 Ill. App. 3d 900, 903, 461 N.E.2d 646, 650.) One court has concluded that if the declaration is sufficiently detailed, it can support a reasonable-cause determination even if the informant is in jail and may have a motive to lie. (See People v. Woods (1984), 122 Ill. App. 3d 176, 460 N.E.2d 880.) Also, while the Varbles are arguably biased, Gregory, whose statements confirm facts contained in Crow’s affidavit, did not have any disclosed bias which would affect the weight to be accorded her sworn statements. Therefore, we conclude the record contains sufficient evidence supporting the trial court’s ruling.

Several appellate court decisions support affirmance of the trial court in the case at bar. In People v. Ellis (1984), 122 Ill. App. 3d 900, 461 N.E.2d 646, this court reversed a trial court order suppressing certain evidence obtained through use of an eavesdropping device. The application stated that the police officer had purchased drugs from a couple named Raymonds, and this court concluded that the application also contained reliable information “from which a person of reasonable caution could likely conclude that the defendant Sam Ellis was the Raymonds’ supplier of drugs ***.” (122 Ill. App. 3d 900, 903, 461 N.E.2d 646, 650.) In one portion of the opinion, unlike in the instant case, it appears the affiant had direct contact with the defendant, but the reasonable-cause determination there also was predicated on the application implicating the defendant as the Raymonds’ drug supplier. This implication of felonious activity conveyed through the Raymonds to the police officer is similar to the hearsay transmitted here, where Varble, the affiant, overheard Climer, Sr., say that Hammer had commissioned the arson. Since this court found the application in Ellis sufficient to support a reasonable-cause finding, the same result should obtain here.

Similarly, in People v. Wrestler (1984), 121 Ill. App. 3d 147, 458 N.E.2d 1348, the reviewing court upheld the trial court’s finding of reasonable cause based solely upon a three-page application of the sheriff which contained the statements made by a sexually abused child concerning her involvement with the defendant. The Wrestler court reviewed the application and concluded it demonstrated the child’s reliability and credibility. Since the application detailed specific instances of intercourse and where the acts took place, the court also concluded reasonable cause existed to believe the defendant had committed the felony. Wrestler is directly analogous to the facts here. Like the sheriff in Wrestler, Varble did not speak directly to defendant, but rather conveyed information told to him by Climer, Sr., about defendant’s involvement in the arson. Thus, in each case, multiple hearsay provided the basis for the application. The Wrestler court’s reliance on the hearsay as justification for its reasonable-cause finding supports the trial court’s order here. See also People v. Woods (1984), 122 Ill. App. 3d 176, 460 N.E.2d 880 (application for eavesdropping order based upon hearsay held sufficient where jailed informant provided a detailed declaration and had provided accurate information to the agent in the past); People v. Pitchford (1983), 115 Ill. App. 3d 164, 450 N.E.2d 349 (appellate court reverses trial court’s suppression of evidence even though application contained hearsay (i. e., what the informant told the officer concerning defendant’s incriminating statements)).

Finally, the appellate court in People v. Sylvester (1980), 86 Ill. App. 3d 186, 407 N.E.2d 1002, also reversed the trial court’s suppression of evidence even though the application was based upon hearsay. There, the written application which was filed by the agent stated that the informant had been solicited for a bribe by the defendant, a police officer. The statements in the application indicated that the agent had never spoken directly to the defendant. In reversing the suppression order, the Sylvester court rejected the defendant’s argument that the suppression was proper because the application did not establish the reliability of the informant who had transmitted the information to the agent. As the Sylvester court stated, “We reject this argument because we feel the statute does not mandate such a requirement.” (86 Ill. App. 3d 186, 195, 407 N.E.2d 1002, 1010.) In light of this disposition, the same result should obtain in the instant case, where the application was accompanied by two affidavits containing corroborating facts regarding defendant’s involvement in the arson.

Accordingly, we affirm the order of the circuit court of Winnebago County,.

Affirmed.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF WISCONSIN, Plaintiff-Appellant, v. FRED UBRIG, Defendant-Appellee.
    Second District
    No. 83—1057
    Opinion filed November 9, 1984.
    James D. McGonnagle, of Carmel, Baker & Marcus, Ltd., of Chicago, for appellant.
    Francis X. Riley, of Wheaton, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, the State of Wisconsin, appeals from the dismissal of its petition to register, in Illinois and pursuant to the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 601 et seq.), a tax judgment that had been entered against defendant, Fred Ubrig, the judgment debtor, in Wood County, Wisconsin.

The question on appeal is whether section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 217) authorizes the refiling within one year of a petition to register a foreign judgment that had previously been dismissed for want of prosecution. Since defendant has not filed an appellate brief, we will review this issue under the guidelines set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

On January 20, 1982, in the circuit court of Du Page County, Illinois, plaintiff filed a petition to register and domesticate a foreign judgment which had been entered against defendant, an Illinois resident, on October 6, 1980, by the circuit court of Wood County, Wisconsin, for $9,878.13 in unpaid income taxes and interest and penalties thereon. Following the denial of defendant’s motion to dismiss and the filing of his answer, plaintiff failed to appear at a status call on November 9, 1982, and the trial judge dismissed the case for want of prosecution. Plaintiff filed a motion to vacate the order of dismissal, but failed to appear for a hearing on the motion on December 1, 1982, and the trial court ordered the motion stricken. Plaintiff then filed a petition to vacate the dismissal for want of prosecution under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), recodified as section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), alleging in an attached affidavit that its attorney failed to appear on November 9, 1982, and December 1, 1982, because he was appearing in the United States District Court on other matters on those days. The trial court denied the petition to vacate on February 22, 1983.

On May 4, 1983, approximately six months after the dismissal for want of prosecution, plaintiff again filed a petition to register the Wisconsin tax judgment in Illinois. Defendant filed a motion to dismiss the petition pursuant to section 2 — 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619(a)(9)) and argued that the claim was barred by res judicata because under Supreme Court Rule 273 (87 Ill. 2d R. 273), the dismissal for want of prosecution was a final adjudication on the merits and that section 13 — 217 of the Code of Civil Procedure, which permits the refiling of actions that have been dismissed for want of prosecution, did not apply to foreign judgments. Following a hearing on defendant’s motion to dismiss, the trial court granted the motion and dismissed the petition to file a foreign judgment with prejudice.

On appeal, plaintiff contends that section 13 — 217 of the Code of Civil Procedure applies to an action for the registration and domestication of a foreign judgment, so that it had an absolute right to refile the petition within one year of the dismissal for want of prosecution.

Article TV", section 1, of the Federal Constitution requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” (U.S. Const., art. IV, sec. 1.) The intended purpose of this clause is “to alter the status of the several states as independent foreign sovereignities, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.” (Milwaukee County v. M.E. White Co. (1935), 296 U.S. 268, 277, 80 L. Ed. 220, 228, 56 S. Ct. 229, 234; Finley v. Kesling (1982), 105 Ill. App. 3d 1, 6, 433 N.E.2d 1112.) The purpose of the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 601 et seq.) is to implement the full faith and credit clause of the Federal Constitution and to facilitate the interstate enforcement of judgments in any jurisdiction where the judgment debtor is found. Ayers Asphalt Paving, Inc. v. Allen Rose Cement & Construction Co. (1982), 109 Ill. App. 3d 520, 522, 440 N.E.2d 907; Thompson v. Safeway Enterprises, Inc. (1978), 67 Ill. App. 3d 914, 916, 385 N.E.2d 702.

Defendant argued below that the dismissal of the petition to register a foreign judgment for want of prosecution operated as an adjudication on the merits according to Supreme Court Rule 273 and thus any attempt to refile was barred by the doctrine of res judicata. Rule 273 provides that:

“Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” (87 Ill. 2d R. 273.)

However, our supreme court has held that Rule 273 does not apply to dismissals for want of prosecution because section 24 of the Limitations Act (recodified as section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 217), which gives an absolute right to refile within one year following a dismissal for want of prosecution, falls within the “otherwise specifies” provision of Rule 273. Flores v. Dugan (1982), 91 Ill. 2d 108, 113, 435 N.E.2d 480; Kutnick v. Grant (1976), 65 Ill. 2d 177, 180-81, 357 N.E.2d 480; see also Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110, 111-12, 449 N.E.2d 112.

Defendant sought to avoid the effect of section 13 — 217 by arguing that it did not apply since the proceeding was not an Illinois cause of action and not an action specified in the Code of Civil Procedure. The trial court apparently relied on this argument in dismissing the petition, because it stated that “ft]he crux is whether or not this is, in fact, an Illinois action ***.” We disagree that section 13 — 217 of the Code of Civil Procedure is inapplicable to proceedings involving petitions to register foreign judgments.

Section 13 — 217 of the Code of Civil Procedure provides, in pertinent part:

“In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if *** the action is dismissed for want of prosecution *** then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater, after *** the action is dismissed for want of prosecution ***.” (Ill. Rev. Stat. 1983, ch. 110, par. 13-217.)

Nothing in the statutory language indicates that section 13 — 217 applies only to actions for which the judgment originates in Illinois. The filing of a petition to register a foreign judgment in an Illinois circuit court clearly is the commencement of an action in Illinois to which the Code of Civil Procedure applies.

Moreover, there is other authority supporting our conclusion that proceedings for the registrations of foreign judgments fall within the purview of section 13 — 217. Section 13 — 217 applies to “actions specified in *** any other act *** where the time for commencing an action is limited ***.” Actions for the registration of foreign judgments are provided for under the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 601 et seq.). The time for commencing an action to register a foreign judgment has long been held to be limited by section 13 — 205 of the Code of Civil Procedure, which imposes a five-year period of limitations on all civil actions not otherwise provided for. (Ill. Rev. Stat. 1983, ch. 110, par. 13-205; Light v. Light (1957), 12 Ill. 2d 502, 506, 147 N.E.2d 34; Schemmel v. Cooksley (1912), 256 Ill. 412, 413, 100 N.E. 141; Davis v. Munie (1908), 235 Ill. 620, 621, 85 N.E. 943; Bemis v. Stanley (1879), 93 Ill. 230, 231-33; see also Haughton v. Haughton (1979), 76 Ill. 2d 439, 446-47, 394 N.E.2d 385.) Based on our reading of the statutory language and relevant case law, we hold that section 13 — 217 applies to petitions to register foreign judgments that have been dismissed for want of prosecution. Plaintiff had one year, or the remaining time under the applicable period of limitation, whichever was greater, from the date the petition was dismissed to refile the petition. The record indicates that plaintiff sought to refile its petition six months after the dismissal, which is within the one year provided for and well within the remaining period of limitation for registration of foreign judgments. Thus, the trial court erred in denying plaintiff the right to refile its petition.

For the foregoing reasons, the judgment of the circuit court of Du Page County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

NASH and HOPF, JJ., concur.


author: JUSTICE GREEN

text:
    ST. MARY’S HOSPITAL et al., Plaintiffs, v. GARY L. AUBURN et al., Defendants and Third-Party Plaintiffs-Appellants, (Charles Ekiss et al., Ex’rs of the Estate of Florence Ekiss, Deceased, Third-Party Defendants-Appellees).
    Fourth District
    No. 4—84—0243
    Opinion filed November 13, 1984.

      Robert D. Owen and Darrel F. Parish, both of Owen, Roberts, Susler, Ltd., of Decatur, for appellants.
    Robert A. Hoffman, of Ryan, Grabb, Cini & Bennett, of Mattoon, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

This appeal arises from a third-party complaint filed on February 27, 1976, in a pending suit in the circuit court of Macon County by Gary L. Auburn and his then wife, Karen McKinney, who were defendants in that case, against Florence M. Ekiss and others. The third-party complaint sought recovery for personal injuries and property damage resulting from a fire and explosion which occurred on the night of October 11, 1974, on premises in Bethany rented by third-party plaintiffs from their landlord, third-party defendant Ekiss. A trial by jury was held solely concerning the responsibility of the landlord. Third-party plaintiffs appeal from a judgment entered on a verdict in favor of the landlord. During the course of litigation, Mrs. Ekiss died, and her executors, Charles Ekiss and Alberta Rogers, have been substituted in her stead. Third-party plaintiffs have appealed. They maintain the trial court erred in permitting the jury to consider a portion of the lease between the parties which purported to set forth an exculpatory provision. We affirm.

The third-party complaint alleged that the fire and explosion were proximately caused by a defect in the furnace in the house on the premises or a defect in the gas line from that furnace to a propane tank outside the house. The theory upon which third-party plaintiffs sought recovery is that the landlord assumed certain responsibilities in regard to the maintenance of the furnace, and that the defect causing the fire and explosion would have been corrected had she or her agents not been negligent in discharge of the responsibilities assumed. We conclude that the evidence would not have supported a determination by the jury that Mrs. Ekiss or her agents had negligently failed to discharge any assumed obligation, and no verdict for third-party plaintiffs could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Accordingly, any error that might have occurred in permitting consideration of the lease provision was immaterial.

The lease was entered into on October 6, 1973. It had been prepared by an attorney for Mrs. Ekiss, Jacques Scott, who, apparently, also acted as her agent in managing her affairs. An express provision of the lease required the tenants to make necessary repairs to the premises. The lease did authorize the landlord to enter the premises to make repairs, but such a provision does not require a landlord to do so. Hurt v. Pershing Mobile Home Sales, Inc. (1980), 83 Ill. App. 3d 724, 404 N.E.2d 842.

In support of third-party plaintiffs’ contention that Mrs. Ekiss became liable by assuming obligations to make repairs to the furnace, they cite Jones v. Chicago Housing Authority (1978), 59 Ill. App. 3d 138, 376 N.E.2d 26. There, the evidence showed that the housing authority had the practice of making repairs to premises of tenants upon the tenant’s request. A tenant had made requests to the authority to repair a window latch, but the authority had failed to do so. Recovery against the authority was permitted in favor of the tenant’s small child, who had been leaning against the window and fell through when the defective latch gave way. The court noted that when a practice of making repairs on behalf of tenants at their request has been followed, a landlord “may establish a duty to properly maintain the premises in which plaintiff resided.” 59 Ill. App. 3d 138, 140, 376 N.E.2d 26, 28.

The Jones court cited Jordan v. Savage (1967), 88 Ill. App. 2d 251, 232 N.E.2d 580. There, a tenant had requested a landlord to repair a bannister on a stairway used only for her apartment. The landlord had come to the apartment and attempted to repair the bannister. The court upheld a judgment on a verdict based on the landlord’s negligent failure to repair the bannister and subsequent injuries to the tenant resulting from a fall when the bannister gave way. A similar result was reached in Roesler v. Liberty National Bank of Chicago (1954), 2 Ill. App. 2d 54, 118 N.E.2d 621, under substantially similar circumstances except that the negligence was committed by a carpenter sent by the landlord rather than by the landlord himself.

Jacques Scott testified that he had made arrangements with a firm named Shelby Sheetmetal to “service” the furnace in the rental house, and that he asked the firm to make annual inspections of the furnace. According to his records, the firm made an inspection of the furnace on October 23, 1973, but had made no more inspections prior to the fire. Gary Auburn testified that during the winter of 1974 he had difficulty with the furnace. He stated that as the firm suggested by Scott was unavailable, another firm was obtained, repairs were made, and the bill was sent to Scott.

The facts in the instant case differ from those in the cited cases. In Jordan and Roesler, the landlord or his agent undertook to make repairs and did so negligently. The holding in those cases was merely an application of the general rule that liability can arise from negligence in performance of a voluntary undertaking. (See Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74, 199 N.E.2d 769, 773.) In Jones, the landlord had failed to perform a service that it had been performing on request. Here, the only request from the third-party plaintiffs was for repairs. There was no evidence to tie the cause of the fire to negligence in the making of the repairs apparently paid for by the landlord.

Third-party plaintiffs seek to place liability upon the landlord because no inspection was made in the fall of 1974 prior to the explosion. They contend that, because of the obligation undertaken by the landlord, due care required that she have the furnace inspected that fall before the heating season started, and that season had started before the fire. The evidence did not show that third-party plaintiffs had been advised of Scott’s plan to have the furnaces inspected annually. No request for an inspection was made by the third-party plaintiffs. The only conduct establishing a practice of annual inspections of the furnace was the evidence that one inspection was made in the fall of 1973. This was, of itself, not sufficient to establish a practice of making yearly inspections. The evidence did not show that third-party plaintiffs knew of Scott’s plans to have annual inspections made. However, even if they had known, this was not a plan to have them made before the heating season each year. There had been no breach of the proposal for annual inspections, as the period of one year had not elapsed from the first inspection.

Thus, here there was no evidence of negligent performance by the landlord or anyone on her behalf as to any work on the furnace. There was no evidence of nonperformance of anything requested by the third-party plaintiffs, and there was no evidence of nonperformance of any functions that had been performed by or on behalf of the landlord. Thus, regardless of whether it would have been desirable to have an inspection of the furnace before its first use in the fall of 1974, the evidence does not support a finding of any duty on the landlord to have such an inspection made by that time.

Some evidence was presented that the explosion resulted from propane gas leaking from the furnace or its feed line. Perhaps a jury could properly have concluded that the leak would have been discovered by a careful inspection.. However, we need not pass upon the sufficiency of this evidence.

Because of the lack of showing of a breach of duty by Florence M. Ekiss or anyone acting on her behalf, we affirm.

Affirmed.

MILLS, P.J., and TRAPP, J., concur.


author: JUSTICE HOPF

text:
    WAUKEGAN PORT DISTRICT, Plaintiff-Appellant, v. CHRISTINE KYRITSIS et al., Defendants-Appellees.
    Second District
    No. 2—83—0998
    Opinion filed November 9, 1984.
    Kathleen R. Schwappach, of Donald T. Morrison & Associates, of Waukegan, for appellant.
    Dennis P. Daly and Frank M. Daly, both of Daly & Daly, of Waukegan, for appellees.
   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 of local 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 the excess of final over preliminary just compensation, which they claim denied them fair compensation.

Defendants in Department of Transportation v. Rasmussen (1982), 108 Ill. App. 3d 615, 439 N.E.2d 48, argued that the 6% paid them was grossly inadequate in light of the nation’s prime rate having been at least twice that amount since the date of the taking. The court found the 6% figure to be inadequate, relying on recent Federal and out-of-State cases. One such case was United States v. Blankinship (9th Cir. 1976), 543 F.2d 1272, where the 6% interest set forth by Federal law (40 U.S.C. sec. 258a (1970)) was considered to operate “as a floor, but not a ceiling.” A similar conclusion was reached in Miller v. United States (U.S. Ct. Cl. 1980), 620 F.2d 812. Both Blankinship and Miller involved a form of quick-take whereby title would pass upon the filing of a declaration. Further, in Rasmussen this court did not find section 2.6 of the Eminent Domain Act to be unconstitutional, as it determined it could be reasonably construed so as to preserve its constitutionality. After noting that the 6% figure was the statutory minimum, the court held that the proper rate of interest was “a question for the trier of fact (as is just compensation in general).” (Department of Transportation v. Rasmussen (1982), 108 Ill. App. 3d 615, 629, 439 N.E.2d 48, 59.) The court did not, however, hold that the statutory rate of 6% was subject to constitutional challenge as applied to the damages to the land not taken.

Department of Transportation v. Rasmussen (1982), 108 Ill. App. 3d 615, 439 N.E.2d 48, held, for the first time in Illinois, that the statutory rate of 6% set forth in section 2.6 of the Eminent Domain statute was a statutory minimum only. (Ill. Rev. Stat. 1979, ch. 47, par. 2.6.) However, unlike the case at bar, Rasmussen involved a proceeding under the “quick-take” provisions of the Eminent Domain Act. Thus, the State could take possession of the property before paying the owners full compensation for the taking or damages to the remainder. Waukegan argues that the instant case does not involve a taking before judgment and title to the property did not vest until damages were paid. Thus, it urges, the rules applying to quick-takes cannot apply. We agree.

Under the rules for a “non-quick-take” condemnation, the condemnor is under no legal obligation to pay the judgment for damages unless it takes possession of the land. (Leitch v. New York Central R.R. Co. (1944), 388 Ill. 236, 242, 58 N.E.2d 16, 20.) The Leitch court noted that the money for the land becomes due upon taking possession and it is improper to have both the use of the land and the money at the same time. It further noted that condemnation suits may go on for years and even then may be abandoned by the condemnor. Even after litigation, the party instituting condemnation need not take the property unless it chooses to do so. Chicago Housing Authority v. Lamar (1961), 21 Ill. 2d 362, 172 N.E.2d 790.

Waukegan argues that, in the instant case, there was no taking of defendants’ property until June 2, 1983, the date when the award was deposited with the county. At that time title vested in the condemnor. Waukegan urges that the only interest should be that which compensates the property owner for delay after judgment in payment of the award. That interest payment, it is urged, is not part of the just compensation but is provided for by statute at a mandatory rate of 6%.

On the other hand, defendants urge that although their property was encumbered at the time the petition was filed, they are only asking for interest (in excess of 6%) from the date of judgment. Defendants contend that fair and reasonable interest on a judgment is part of the constitutional requirement of just compensation.

The case law in Illinois has consistently held that the interest paid on a condemnation judgment (non-quick-take) is payable at the statutory rate. People ex rel. Weiboldt Stores, Inc. v. City of Chicago (1937), 289 Ill. App. 276, 278, 7 N.E.2d 82, rev’d on other grounds (1938), 368 Ill. 421, 14 N.E.2d 473; University of Chicago v. City of Chicago (1930), 258 Ill. App. 189, 209; Lake County Forest Preserve District v. Vernon Hills Development Corp. (1982), 92 Ill. 2d 72, 440 N.E.2d 848.

As discussed above, the recent case of Department of Transportation v. Rasmussen (1982), 108 Ill. App. 3d 615, 439 N.E.2d 48, opened the door to the possibility of finding an interest rate, greater than 6%, on the basis of it being a part of just compensation. But the present case was not a quick-take proceeding. Therefore, the interest being awarded would be for a judgment entered prior to the actual taking of defendants’ property. Thus, we do not believe that Rasmussen should be expanded to apply to non-quick-take proceedings. In the instant case, unlike Rasmussen, defendants apparently had the use of their land until the time Waukegan deposited the award with the county. Thus, despite the fact that title to the land was somewhat encumbered from the time of filing of the petition to condemn, defendants were entitled to the use of the property and any income that may have been earned therefrom. To allow them interest at the market rate would allow, in effect, more benefit or return to the condemnee than if the property had never been taken.

It has consistently been held that section 3 of the Interest Act (Ill. Rev. Stat. 1981, ch. 17, par. 6403) applies to condemnation judgments in eminent domain proceedings, except when the land is taken by the “quick-take” provisions of the Eminent Domain Act (Ill. Rev. Stat. 1977, ch. 47, pars. 2.1 through 2.10). (See Lake County Forest Preserve District v. Vernon Hills Development Corp. (1982), 92 Ill. 2d 72, 77, 440 N.E.2d 848, 851, and cases collected therein.) Therefore, the trial court’s granting of defendant’s motion for interest in excess of 6% is inconsistent with precedent cases, and we must reverse the trial court on that point.

Waukegan also argues that defendants’ motion for interest in excess of the 6% rate was not timely filed. It urges that defendants should have raised the issue by cross-appeal to Waukegan’s initial appeal of this cause. However, because the interest was not computed until after that appeal and after Waukegan deposited the money, the motion was timely made.

While the policy behind charging a 6% rate is not an obvious one, the weight of authority in Illinois supports a continued application of that rate in eminent domain cases. We found the following language, from a discussion on the constitutionality of this provision, to be instructive:

“The statute in the instant case imposes a lower rate of judgment interest on governmental bodies than on other entities. The legislature may well have enacted the disparate interest rates in order to somewhat lessen the burden on the taxpayers who ultimately pay for judgments rendered against governmental entities. One may question whether the legislature struck a proper balance between the tax saving resulting from a lesser rate of judgment interest and the burden imposed on the individual judgment creditor who is obliged to collect less on his judgment simply because he was injured by a governmental entity, but such is not the court’s task.” Harrington v. City of Chicago (1983), 116 Ill. App. 3d 137, 139, 452 N.E.2d 26, 28.

For the reasons stated, the determination that an interest rate in excess of the statutory rate be awarded defendants is reversed, and this cause is remanded for application of the rate specified by statute. Ill. Rev. Stat. 1981, ch. 17, par. 6403.

Therefore, the circuit court of Lake County is reversed and this case is remanded for proceedings consistent with this opinion.

Reversed and remanded.

SCHNAKE and REINHARD, JJ., concur.


author: JUSTICE SCHNAKE

text:
    ROBERT FLEISCHER, Plaintiff-Appellee, v. BOARD OF COMMUNITY COLLEGE DISTRICT NO. 519, Defendant-Appellant.
    Second District
    No. 83—1126
    Opinion filed November 9, 1984.

      Thomas J. Piskorksi and R. Theodore Clark, Jr., both of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant.
    Gilbert Feldman, of Cornfield & Feldman, of Chicago, for appellee.
   JUSTICE SCHNAKE

delivered the opinion of the court:

Plaintiff, Robert Fleischer, was first employed by defendant board of trustees as a teacher for the 1967-68 school year. At some time prior to November 1, 1978, the board became concerned with plaintiff’s teaching performance. Rather than dismiss the plaintiff, however, the board, in December of 1978, agreed .to adopt a plan suggested by Terry Fortman, the president of the Highland Community College Faculty Senate (the faculty’s union). The plan called for the creation of a faculty peer committee that would work with the plaintiff for one year to improve his performance in the areas the board felt he was weak. At the end of one year the plaintiff’s supervisor would evaluate what, if any, improvement had been made and would make a recommendation as to plaintiff’s future employment.

The following year, on December 7, 1979, the plaintiff received a letter notifying him that he would no longer be employed as of May 24, 1980, when his present employment contract expired. The letter stated his performance had been evaluated and no improvement had been found. This decision was voted on and adopted by a majority vote of the board of trustees on December 18, 1979. It is undisputed that this action was based on alleged cause and not as a result of a decision to reduce the number of faculty members or to discontinue any particular type of teaching service or program.

At all times material to this case, there was a collective bargaining agreement in effect between the board and the Highland Community College Faculty Senate. On January 14, 1980, the plaintiff filed a grievance protesting his dismissal. On February 12, 1980, the college president, Howard Simms, denied plaintiff’s grievance. On February 22, 1980, plaintiff appealed that decision to the board, and on March 31, 1980, the board denied plaintiff’s appeal. On April 14, 1980, plaintiff further appealed the grievance to arbitration. On April 25, 1980, the board refused to submit the grievance to arbitration.

On May 6, 1981, the plaintiff filed a two-count complaint in the circuit court of Stephenson County. Count I alleged that plaintiff had become tenured on January 1, 1980, under article IIIB of the Public Community College Act (Ill. Rev. Stat. 1981, ch. 122, par. 103B — 1 et seq.), and, therefore, his dismissal was unlawful. Count I requested reinstatement with back pay. Count II alleged that there was a collective bargaining agreement between the board of trustees and the faculty senate which contained a grievance-in-arbitration clause requiring the board of trustees to arbitrate plaintiff’s dismissal. Count II requested an order compelling arbitration of plaintiff’s dismissal grievance.

The board of trustees then filed a motion to dismiss on June 11, 1981, which was denied as to count I, but granted as to count II. The parties then stipulated to the facts and cross-motioned for summary judgment. On February 3, 1983, the trial court denied defendant’s motion for summary judgment and granted plaintiff’s motion for summary judgment. The defendant appeals from the denial of its motion for summary judgment and the plaintiff cross-appeals from the order dismissing count II of its complaint.

The defendant’s appeal of this case presents a matter of statutory construction. Article IIIB of the Public Community College Act became effective on January 1, 1980. The plaintiff was notified in December of 1979 that his teaching contract would not be renewed, but continued to teach until May of 1980, when his current contract ran out. Section 3B — 2 of the Act states:

“Any faculty member who has been employed in any district for a period of 3 consecutive school years shall enter upon tenure unless dismissed as hereinafter provided.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 122, par. 103B-2.

The issue, therefore, is whether the plaintiff was “employed” on January 1,1980, for purposes of acquiring tenure under the Act.

The trial court held that the term “employed” must be given its common and usual meaning of an employee-employer relationship. Based on this definition, the plaintiff was employed on January 1, 1980, and acquired tenure under the Act, making his dismissal unlawful. The defendant argues, however, that the critical act under the statute is the notification of dismissal, which occurred before the statute became effective, so that the plaintiff could not have acquired tenure under the statute.

The defendant cites Delaware State College v. Ricks (1980), 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498, to support its argument. Ricks held that under the 180-day limitation period for filing a title VII claim under the E.E.O.C. and the three-year limitation period for filing a private section 1981 action, the “alleged unlawful employment practice” was the denial of tenure which occurred when the board of trustees made its official decision known to Ricks. The Supreme Court specifically rejected Ricks’ claim that the unlawful practice occurred a year later when his teaching contract ran out, and held that was simply an inevitable consequence of the denial of tenure. While Ricks is factually dissimilar, its reasoning seems applicable here. This plaintiff claims he was terminated in violation of a statute. The wrongful act the plaintiff complains of was the board’s decision not to renew his contract, which occurred in December of 1979. The fact that his contract actually ended after January 1, 1980, was simply an inevitable consequence of the earlier decision not to renew his contract. Since the decision not to renew his contract occurred before the effective date of the Public Community College Act, it was not a violation of the Act.

The trial court reasoned, however, that giving the term “employed” its ordinary and common meaning, the plaintiff acquired tenure on January 1, 1980, regardless of the earlier nonrenewal notice. While it is true that words used in a statute should be given their plain, ordinary and commonly accepted meaning (34 Ill. L. & Prac. Statutes sec. 111 (1958)), a plain word may be given a restrictive meaning if such is indicated by the act as a whole or by persuasive gloss of legislative history. (United States v. Witkovich (1957), 353 U.S. 194, 1 L. Ed. 2d 765, 77 S. Ct. 779.) Looking at the Act as a whole, we do not believe the term “employed” can be given its literal meaning as the trial court did, if the Act is to operate as the legislature intended it to.

Under section 3B — 3, a third-year nontenured teacher must be notified of the board’s decision not to renew his contract at least 60 days before the end of that year, or his contract is deemed renewed and he receives tenure. Under the trial court’s interpretation, this third-year nontenured teacher would be “employed” until his contract expired at the end of his third year and would thereby enter tenure under section 3B — 2’s three-year requirement, regardless of whether the teacher received his nonrenewal notice. This is not the way the legislature intended the statutory scheme to work. Section 3B — 3 clearly implies that if a third-year nontenured teacher is given a notice of nonrenewal, that teacher will not obtain tenure. Therefore, the legislature intended that a teacher would no longer be “employed” for purposes of acquiring tenure after he has been notified that his contract will not be renewed.

Further support for this interpretation of the Public Community College Act is given by Senator Berman’s (the Senate sponsor of the bill) statement during the debate on June 27,1979:

“The Amendment No. 1 tightened up the language of the bill so as to indicate what teachers would be covered when the bill becomes effective. Under that amendment, January 1, 1980, would be the effective date of the bill. Any teacher that is not satisfactorily pursuing its *** his duties could be dismissed without complying with the provisions of the bill. After January 1, 1980, any teacher that has three or four years of continued service would be under the provisions of this.” (Emphasis added.)

This language implies that it was the sponsor’s understanding that unsatisfactory teachers could be dismissed before January 1, 1980, without their acquiring tenure.

Since we find the plaintiff was not “employed” for purposes of acquiring tenure under the Public Community College Act, we do not reach the question of whether the Act allows teaching prior to January 1, 1980, to count towards meeting section 3B — 2’s three-year requirement.

Having decided the plaintiff was not wrongfully discharged under the Public Community College Act, we come to the second issue of this case, whether the trial court erred in dismissing count II of the plaintiff’s complaint which requested an order compelling the board of trustees to arbitrate the plaintiff’s dismissal under the collective bargaining agreement.

Illinois law is clear that when the legislature gives a community college board of trustees discretionary powers, such as whether to rehire or dismiss a nontenured teacher (Ill. Rev. Stat. 1979, ch. 122, pars. 103 — 30, 103 — 42), the power may not be delegated. (Board of Trustees v. Cook County College Teachers Union, Local 1600 (1976), 62 Ill. 2d 470; Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127.) Therefore, the courts will refuse to compel arbitration when the arbitrator would be required to perform one of the board’s discretionary duties. (Board of Trustees v. Cook County College Teachers Union, Local 1600 (1980), 87 Ill. App. 3d 246; Lockport Area Special Education Cooperative v. Lockport Area Special Education Cooperative Association (1975), 33 Ill. App. 3d 789.) Plaintiff argues, however, that the Public Community College Act has overturned the law in this area by taking away the board’s discretion in deciding whether to dismiss or rehire a nontenured teacher. Plaintiff points specifically to the language of section 3B — 3 of the Act, which states:

“Every Board shall provide by rule or contract for a procedure to evaluate the performance and qualifications of non-tenured faculty members.” Ill. Rev. Stat. 1981, ch. 122, par. 103B — 3.

This language, while requiring the board to set up some type of evaluation process to use in its decision to renew or not to renew a nontenured teacher’s contract, does not allow the board to delegate its final decision-making power. This was made clear in Board of Trustees v. Krizek (1983), 113 Ill. App. 3d 222. In this case, the contract of a nontenured community college teacher was not renewed, and she objected on the basis that not all of the evaluation procedures had been complied with and that the prevailing tenor of the evaluations was favorable. The court upheld her dismissal, stating:

“[T]he Supreme Court has made unmistakably clear that when a governing board is vested with the power to grant tenure, or to not renew, then the governing board cannot delegate, modify or condition its final authority to make such decisions. *** There can be no dilution of the board’s authority whether the evaluation of teachers is mandated by contract or by statute. It follows then that the power to grant tenure cannot be conditioned upon the decision of an administrator to make a recommendation or hold a consultation, nor can the power be limited by the preponderance of opinion of evaluators, even though their evaluations may be conducted at the behest of the board. So long as procedure for evaluation has been implemented, and the results of those evaluations are available to the board, we believe that compliance with the statute has been achieved, and any subsequent decisions to terminate ordered by the board are statutorily sound.
We are mindful that the tenure laws represent an elaborate balance between the need to maintain the quality of schools and the opposing interest in job security. [Citation.] In striking that balance, the legislature has crafted a system where there appears to be unlimited power in boards to dismiss probationary teachers at the board’s discretion while the power to dismiss tenured teachers is considerably restricted. [Citation.] We perceive Krizek’s position as an attempt to erode the area of the board’s discretion by injecting elements of cause into the board’s decision to terminate. Inasmuch as this is repugnant to the policy embodied in the statute, we decline to adopt the statutory construction proffered by Krizek.” Board of Trustees v. Krizek (1983), 113 Ill. App. 3d 222, 227.

Therefore, for the reasons stated above, we reverse the trial court’s granting of summary judgment for the plaintiff and remand with directions to enter summary judgment for the defendant on count I of plaintiff’s complaint.

We affirm the trial court’s dismissal of count II of the plaintiff’s complaint.

Affirmed in part, reversed in part and remanded with directions.

REINHARD and HOPE, JJ., concur.