Superior Structures Co. v. City of Sesser
State: Illinois
Court: 5th District Appellate
Docket No: 5-96-0800
Case Date: 10/27/1997
Rule 23 Order filed
October 6, 1997;
Motion to publish granted
October 24, 1997. NO. 5-96-0800
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
SUPERIOR STRUCTURES COMPANY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Williamson County.
)
v. ) No. 92-L-18
)
THE CITY OF SESSER, a Municipal )
CORPORATION, ) Honorable
) William H. Wilson,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________
JUSTICE WELCH delivered the opinion of the court:
In September 1991, Superior Structures Company entered into a
contract with the City of Sesser (City) to resurface certain
streets within the City in accordance with specifications set forth
in the contract. After the completion of the project, a dispute
arose between the parties as to the acceptability of the work and
the payment of a sum remaining due under the contract. After
Superior Structures Company (Superior) submitted a request for
payment to the City, the mayor ordered compaction studies, which
revealed that certain locations tested did not meet contract
specifications. Accordingly, the City never paid Superior the
balance owed on the contract. The facts relating to this dispute
and other aspects of this case are reported in more detail in a
previous appeal of this cause in Superior Structures Co. v. City of
Sesser, 277 Ill. App. 3d 653 (1996).
On January 1, 1992, Superior filed suit against the City,
seeking the sum of money owed under the contract (count I) and
interest pursuant to the Local Government Prompt Payment Act (Act)
(count II). 50 ILCS 505/1 et seq. (West 1992). The trial court
found in Superior's favor on count I and entered judgment for sums
due minus a setoff, and the court found in favor of the City on
count II, denying Superior's claim for interest pursuant to the
Act. The trial court also awarded Superior prejudgment interest at
the rate of 5% per annum, finding that Superior had substantially
performed the contract. Both parties appealed to this court.
In our decision in that appeal, this court reversed the award
of prejudgment interest, reversed the allowance of a setoff, and
reversed the trial court's denial of interest pursuant to the Act.
We found that notice of the City's disapproval of Superior's bill
was not timely made under the Act and that the interest penalty was
therefore applicable, and we remanded with directions to compute
interest under the Act using November 6, 1991, as the date on which
the City received Superior's bill. Superior Structures Co., 277
Ill. App. 3d 653.
On remand, the parties disputed the method of computing
interest under the Act. The parties agreed that interest should
begin to run as of January 5, 1992, and that it should be computed
on the principal balance of $181,376.87. However, the parties
disagreed about when the interest penalty should stop accruing.
Superior argued that the interest penalty should stop accruing on
the date final payment is made in accordance with section 4 of the
Act (50 ILCS 505/4 (West 1992)).
The City argued that such an interpretation of the Act was
unreasonable and not in accordance with the intent of the
legislature. The City argued that the legislature could not have
intended that the interest penalty continue to accrue where there
was a bona fide dispute over the acceptability of the products or
services rendered which must be resolved by litigation. The City
argued that the interest penalty should stop accruing either when
the local government files suit against the vendor or contractor or
when the local government files its initial pleading in a suit
brought against it by the vendor or contractor. In the instant
case, the City argues that that date was March 4, 1992.
On November 12, 1996, the circuit court of Williamson County
entered its final judgment order, finding that the interest penalty
under the Act was $98,938.25, representing 54 months and 17 days of
simple interest at 1% of $181,376.87 for the period of January 5,
1992, through July 22, 1996, the date of final payment. The City
of Sesser appeals.
The only issue presented in this appeal is the question of
when the interest penalty under the Act stops accruing where the
local government fails to timely disapprove a bill for services
over which there is a dispute which must be resolved by litigation.
This issue is one of statutory construction, a question of law
which we review de novo. Branson v. Department of Revenue, 168
Ill. 2d 247, 254 (1995). The issue is also one of first
impression, having never before been presented to an appellate
court in this State. Indeed, the only reported case under the Act
is our opinion in the prior appeal of this cause. Superior
Structures Co. v. City of Sesser, 277 Ill. App. 3d 653 (1996).
In interpreting a statute, a court's role is to ascertain and
give effect to the intent of the legislature. Gabriel Builders,
Inc. v. Westchester Condominium Ass'n, 268 Ill. App. 3d 1065, 1068
(1994). To determine that intent, a court must first examine the
language of the statute; this language is the best indication of
the legislature's intent. Gabriel Builders, Inc., 268 Ill. App. 3d
at 1068. If this language is clear and unambiguous, a court must
enforce it as written and may not resort to other aids for
construction. Gabriel Builders, Inc., 268 Ill. App. 3d at 1068.
We turn then to the plain language of the statute itself.
Section 3 of the Act (50 ILCS 505/3 (West 1992)) sets forth time
limits within which bills must either be approved or disapproved by
the local government. It provides in pertinent part as follows:
"When safety or quality assurance testing of goods by the
local governmental agency is necessary before the approval or
disapproval of a bill and such testing cannot be completed
within 30 days after receipt of the goods, approval or
disapproval of the bill must be made immediately upon
completion of the testing or within 60 days after receipt of
the goods, whichever occurs first. Written notice shall be
mailed to the vendor or contractor immediately if a bill is
disapproved." 50 ILCS 505/3 (West 1992).
Section 4 of the Act provides a penalty for the late payment of an
approved bill. It provides as follows:
"Any bill approved for payment pursuant to section 3
shall be paid within 30 days after the date of approval. If
payment is not made within such 30 day period, an interest
penalty of 1% of any amount approved and unpaid shall be added
for each month or fraction thereof after the expiration of
such 30 day period, until final payment is made." (Emphasis
added.) 50 ILCS 505/4 (West 1992).
Section 5 of the Act addresses the failure to approve or disapprove
of a bill and provides a penalty for late payment. It provides as
follows:
"If the local governmental official or agency whose
approval is required for any bill fails to approve or
disapprove that bill within the period provided for approval
by Section 3, the penalty for late payment of that bill shall
be computed from the date 60 days after the receipt of that
bill or the date 60 days after the goods or services are
received, whichever is later." 50 ILCS 505/5 (West 1992).
In the instant case, the City failed to approve or disapprove the
bill within the period provided by section 3 of the Act, and
therefore, section 5 applies.
No mention is made in section 5 as to when the interest
penalty shall stop accruing. The section mentions only when it
shall commence. The only mention in the Act of when the interest
penalty shall stop accruing is in section 4, where it states that
the interest penalty shall accrue "until final payment is made."
50 ILCS 505/4 (West 1992). The Act does not mention the
possibility of a dispute or litigation between the parties or the
effect such a dispute or litigation might have on the accrual of
the interest penalty. The Act certainly does not explicitly state
that the accrual of the interest penalty shall abate upon the
involvement of the local government in litigation over a disputed
bill.
Nevertheless, the City of Sesser argues on appeal that when
the legislature enacted the Act, it did not intend to impose the
penalty of 1% per month in cases where the government had a
legitimate reason to dispute the bill submitted by the vendor or
contractor. The City argues that when a dispute cannot be resolved
without litigation, imposing the interest penalty during the
pendency of litigation does not advance the purpose of the statute,
which is to encourage local governments to promptly process and pay
bills. Instead, the City argues, imposing interest during the
pendency of litigation will only deter the local government from
exercising its right of access to the judicial system. Thus, the
City concludes, it could not have been the intent of the
legislature to impose the interest penalty during the pendency of
litigation.
The City proposes a "statutory scheme" whereby the accrual of
the interest penalty would abate upon the government's involvement
in litigation and upon the conclusion of the litigation the trial
court would make a determination whether the dispute between the
parties was "legitimate". If so, the interest penalty would stop
accruing as of the date of the government's involvement in the
litigation. If not, the interest penalty would continue to accrue
until final payment is made.
This scheme does not appear in the statute. If this had been
the legislature's intent, as the City argues, we cannot comprehend
why it did not set forth this scheme in the statute. We thus
conclude that this was not the intent of the legislature.
Where a statute is clear and unambiguous, a court is not at
liberty to depart from the plain language and meaning of the
statute by reading into it exceptions, limitations, or conditions
that the legislature did not express. Gabriel Builders, Inc. v.
Westchester Condominium Ass'n, 268 Ill. App. 3d 1065, 1068 (1994).
When a statue is clear and unambiguous, a court may not engraft new
or different provisions onto the statute. Haist v. Wu, 235 Ill.
App. 3d 799, 813 (1992). When the legislature is silent, a court
may not fill a void through judicial interpretation. Gabriel
Builders, Inc., 268 Ill. App. 3d at 1068. The court must construe
the statute as it is and may not, under the guise of construction,
supply omissions, remedy defects, annex new provisions, substitute
different provisions, add exceptions, limitations, or conditions,
or otherwise change the law so as to depart from the plain meaning
of the language employed in the statute. Toys "R" Us, Inc. v.
Adelman, 215 Ill. App. 3d 561, 568 (1991). It is not the province
of the courts to inject provisions not found in a statute. In re
Cook, 122 Ill. App. 3d 1068, 1072 (1984).
We find no ambiguity in the Act with respect to when the
interest penalty stops accruing. A statute is ambiguous when it is
capable of reasonably being understood in two or more different
senses. People v. Jameson, 162 Ill. 2d 282, 288 (1994). With
respect to the question before us, the Act is susceptible to only
one interpretation: the interest penalty stops accruing upon final
payment. 50 ILCS 505/4 (West 1992). We will not engraft the
City's statutory scheme onto that promulgated by the legislature.
The City also argues that the imposition of the interest
penalty during litigation is in direct conflict with the law of
this State prohibiting prejudgment interest against governmental
units. Relying on Kozak v. Retirement Board of Firemen's Annuity
& Benefit Fund of Chicago, 128 Ill. App. 3d 678 (1984), the City
argues that prejudgment interest may not be assessed against a
municipality unless there has been a showing that the money owed by
the municipality was wrongfully obtained or wrongfully withheld.
The City is correct that prejudgment interest on money due and
owing may not be assessed against a municipality, but this is only
because the Interest Act (815 ILCS 205/0.01 et seq. (West 1992))
does not authorize it. It is well settled that interest is not
recoverable absent a statute or agreement providing for it. City
of Springfield v. Allphin, 82 Ill. 2d 571, 576 (1980). Because the
general interest statute does not authorize the imposition of
interest against a municipality, interest cannot be imposed except
in the limited circumstance where a municipality has wrongfully
exacted money and holds it without just right or claim. Allphin,
82 Ill. 2d at 577-78. In the instant case, the Local Government
Prompt Payment Act expressly provides for an interest penalty
against a unit of local government. The City points to no law
which prohibits the imposition of interest against a municipality
where the legislature authorizes it, and we are aware of none.
There is no conflict between the Interest Act and the Local
Government Prompt Payment Act with respect to the imposition of
prejudgment interest.
Finally, the City argues that the imposition of an interest
penalty under the Act for any period of time following the entry of
the original judgment constitutes double assessment of postjudgment
interest against a local government at a rate far greater than that
allowed by statute. Section 2-1303 of the Code of Civil Procedure
limits postjudgment interest against a unit of local government to
6% per annum from the date of judgment until the judgment is
satisfied. 735 ILCS 5/2-1303 (West 1992). The City argues that
imposing the interest penalty under the Local Government Prompt
Payment Act during the time after judgment, while the case is
appealed, in addition to postjudgment interest under the Code of
Civil Procedure, raises the postjudgment interest rate far above
that intended by the legislature. We agree.
The original judgment was entered June 9, 1994, but
erroneously did not include an award of interest under the Local
Government Prompt Payment Act. Had the judgment included an award
of interest under the Act as it should have, we believe that, just
as in the case of an action on a contract, the right to interest
under the Act would have ceased to exist and the rate of interest
would have been controlled by the postjudgment interest statute
(735 ILCS 5/2-1303 (West 1992)). See Bank of Pawnee v. Joslin, 166
Ill. App. 3d 927, 941 (1988). Interest began accruing on the
original judgment pursuant to the postjudgment interest statute at
the rate of 6% per annum at the time of the entry of that judgment.
735 ILCS 5/2-1303 (West 1992). Therefore, interest under the Local
Government Prompt Payment Act stopped accruing at that time.
Accordingly, we modify the trial court's judgment of November
12, 1996, to reflect interest under the Act in the amount of
$52,837.82, for the period of January 5, 1992, through June 9,
1994, the date of the entry of the original judgment, being 29
months and 4 days, at the rate of 1% per month on a principal
balance of $181,376.87. The parties have agreed that allowable
costs are $3,030.95. Accordingly, we hereby enter judgment for
plaintiff Superior Structures Company in the amount of $52,837.82
plus costs.
For the foregoing reasons, the judgment of the circuit court
of Williamson County is affirmed as modified.
Affirmed as modified.
GOLDENHERSH and RARICK, JJ., concur.
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