Bridceview Bank an Dtrust Company v. State of Illinois

This claim is before the Court on Claimant’s motion for summary judgment. Respondent concedes that the facts as stated in the complaint and motion are true and accurate and that, because there are no genuine issues of material fact, the claim should be adjudicated by summary judgment.

On February 6, 1978, final judgment was entered in favor of Respondent and against Claimant in the sum of $35,841.39 in a case in the circuit court of Cook County. Claimant was the depository bank of Bee Jay’s Truck Stop, Inc., a defaulted taxpayer, against whom a judgment had been entered for nonpayment of taxes. Claimant thereupon prosecuted an appeal to the Appellate Court, First District. During the pendency of the appeal Claimant paid the $35,841.39to Respondent, plus interest of $716.82. On June 18, 1980, the judgment appealed from was reversed and the mandate of the appellate court issued on November 13,1980. Thereafter, Claimant filed a petition for restitution of the funds paid to Respondent. Respondent filed a reply to that petition, alleging inter alia that although Claimant had paid the judgment, plus post-judgment interest, relief was unavailable because Claimant failed to post an appeal bond and the monies paid by Claimant were paid into the general revenue fund, thereby depriving the circuit court of jurisdiction. The circuit court by order dated February 6, 1981, denied Claimant’s petition for restitution, pre[*822]sumably on the above-stated grounds although the order does not state so specifically.

In its argument in support of the motion for summary judgment, Claimant cited several cases on point from various courts in the judicial branch of government of this State. Respondent conceded that if this claim were between two private parties Claimant would be entitled to judgment. While not explicitly contesting Claimant’s motion, Respondent did file a response stating that the fact that the money was paid over to the State and deposited into the general fund may place what would otherwise be a valid claim on a different footing. Although unable to cite any cases on point, Respondent did file a memorandum setting forth several points for our consideration. Claimant sought to distinguish the cases cited by Respondent in a reply memorandum.

In Cayman Associates, Ltd. v . State (1980), 33 Ill. Ct.

C1. 301, we granted summary judgment in favor of

Claimant on nearly identical facts. While that case did not involve a tax dispute, it did involve a claim for monies paid pursuant to a subsequently overturned

judgment. In Cayman, the Illinois State Scholarship Commission obtained a judgment against an individual based upon an alleged default on a guaranteed student loan. A wage deduction summons was served on Cayman Associates, Ltd., the individual’s former employer and final judgment was entered against Cayman. The Commission then filed a non-wage garnishment summons on a bank which resulted in money being removed from Cayman’s operating account and eventually ending up in the State’s general revenue fund. Later, the order entered against Cayman was vacated, the garnishment proceedings against Cayman were dismissed, and the monies previously removed from Cayman’s account were ordered [*823] to be returned. Cayman also had to come to this Court for relief. No response to Cayman’s motion for summary judgment was made by Respondent and on the issue of the motion we said:

“The record before us indicates that the State has in its possession funds obtained from Cayman pursuant to a void court order. Thus the State has no legitimate interest in the funds and they should be returned to the Claimant.” Cayman, supra, p. 303.

Respondent cited several cases relating to the voluntary payment of fines, taxes, and fees rather than voluntary payment of a judgment. In Potter 0.State (1948), 18 Ill. Ct. C1. 1, the Claimant paid fines to the State following a decision of a justice of the peace on complaints brought against him by the Department of Conservation for alleged game law violations. On appeal to the circuit court of Ogle County, the complaints were found to have been insufficient and the fines were ordered to be returned to the Claimant. Judge Bergstrom noted that since an appeal was taken, Claimant could have filed an appeal bond to stay the enforcement of the fine. In denying recovery the Court held:

“The law does not require a defendant who takes an appeal from a I justice of the peace to pay either the costs or the fine imposed by the justice of the peace, but if the said cost or fine is,paid, it cannot be recovered upon a subsequent acquittal (citing cases); and where a fee or tax is paid voluntarily, with knowledge of the facts, the same cannot be recovered back, in the absence of a statute authorizing recovery.” Potter, supra, p. 3.

A similar decision was reached in Smith v . State (1953), 21 Ill. Ct. C1. 459. There the Claimant voluntarily paid a traffic fine upon conviction which was later reversed. Relying on the Potter decision, supra, in denying recovery, the Court again held that a voluntary payment of a fine and costs cannot be recovered absent statutory authorization.

As was previously noted, both Potter and Stewart were cases involving fines and costs. The other cases [*824] cited by Respondent involved taxes and fees. They were all paid as a result of mistake, overpayment, statutory violations, or pursuant to unconstitutional statutes. The law appears to be well settled in the Court of Claims and constitutional courts that in the absence of an authoritative statute and a showing of compliance therewith by the plaintiff, voluntary though erroneous payments of fines, costs, fees, and taxes cannot be recovered.

We find that the cases cited by Respondent are inapplicable. The case at bar involved the payment of a civil judgment by a third party. The relationship between Claimant and Respondent was not that of taxpayersovereign. Under the facts in this case the relationship between the parties was simply that of judgment debtorcreditor. We feel that under such circumstances the State is not in the same position as it would be in a situation involving taxes, fees, costs, and fines. The fact that the funds have been redeposited in the ordinary course of procedure into the State’s general revenue fund, while operating as a bar to an enforceable order of refund by a constitutional court, is of course no bar to judgment in this Court. In the ordinary case, a judgment creditor may voluntarily pay a judgment and still prosecute an appeal without waiving rights for relief, and upon reversal of a judgment by appeal, an appellant who has paid the judgment is entitled to receive the monies previously paid back. That is the situation in the case at bar.

Failure to exercise the option under Supreme Court Rule 305 (Ill. Rev. Stat. 1977, ch. llOA, par. 305) to post an appeal bond is not a bar to recovery. That rule is permissive and not mandatory. Although Claimant might have avoided the present litigation by doing so, it was its prerogative.

It is hereby ordered that Claimant’s motion for [*825] summary judgment be, and hereby is granted, and Claimant is hereby awarded the sum of $36,558.21.

( No . 81-CC-2356-Claimant awarded $1,250.00.)

Claimant, 0. THE STATE OF I LLINOIS,

CLARENCE DAVIDSON,

Department of Corrections, Respondent.

Opinion filed M u y 2, 1983.

CLARENCE D AVIDSON, pro se, for Claimant.

N EIL F. HARTIGAN, Attorney General (SUE MUELLER, Assistant Attorney General, of counsel), for Respondent.

PHISONERS

A N D INhiATEs-dentul cure-negligence-cluim ullowed. Inmate ot corrrction;il facility was granted award for pain, suffering and permanent c1amagc.s suffered when State, through dental department at facility, neyligtwtly filled wrong tooth of Clainiant and neglected to care for bad tooth, as St;itt, aclniittetl negligence and failed to sribmit any briefs as to the qiiestion of d:llllages.

HOLDERMAN, J.

Claimant seeks to recover for the alleged neglect and failure of Respondent’s agents in treating Claimant’s dental disorders while he was incarcerated at Stateville Correctional Center.

The evidence in this case shows that while Claimant was a prisoner at Stateville, he experienced a toothache, and on February 10, 1981, in response to his request for dental attention, Claimant was called to the dentist’s office. The dentist proceeded to fill one of Claimant’s teeth. Later the same day, the toothache recurred and it was called to the attention of the dental department.

The following day, Claimant returned to the dentist [*826] where the dentist who had filled the tooth on the previous day admitted he had filled the wrong tooth. Nothing was done for a few days, and in the meantime the tooth became infected, causing Claimant considerable pain and discomfort. This condition continued for a number of days until the tooth was finally extracted.

Claimant appeared pro se at the hearing in this cause and Respondent did not appear. Respondent subsequently stipulated to its own liability and submits this case on the question of Claimant’s damages.

The record is clear and uncontradicted that Claimant suffered a toothache and that the tooth subsequently became infected. Claimant first went to the dentist on February 10, 1981, and he proceeded to receive treatment for a period of several weeks. During all this period of time, Claimant stated he was in constant pain and was given very little medication and finally resorted to taking aspirin and putting it on the infected tooth to get some relief.

The Respondent’s records show Claimant did call the dental and medical department’s attention to his situation.

Claimant alleges he suffered damage to his nerves as a result of the constant pain, that he is still nervous, and that he has never quite recovered from the ordeal he suffered.

The only evidence in the record is that introduced by Claimant which consists primarily of his testimony and the records from the dental department at Stateville.

The question now becomes a matter of how much damages should be awarded to Claimant for pain and suffering and permanent damages, if any.

First National’ Bank v. Standard Paving C o . (1973), [*827] 15 Ill. App. 3d 7, 303 N.E.2d 29, lays down the rule that where right of recovery exists, defendant cannot escape liability because damages are difficult of exact ascertainment, and that absolute certitude as to amount of damages is not required as long as damages have been proven within reasonable certainty.

Witte 0. State, 21 1II.Ct.CI.’ 173, lays down the rule that “where evidence showed that an inmate, after being injured, did not receive medical attention from a qualified physician for ten days, the State was negligent, and an award will be made for permanent injury and deformity resulting therefrom.”

The evidence is clear in the present case that Claimant did suffer as a result of the negligence of Respondent and that Respondent (1) filled the wrong tooth of Claimant; and (2) neglected to take care of the bad tooth, causing the infection of the tooth, which required treatment for a period of one month.

As stated above, Respondent has admitted negligence and did not submit any briefs as to the question of damages.

It is the opinion of this Court that the negligence of Respondent caused the damages complained of and that I Claimant did suffer some damages.

Award is hereby entered in favor of Claimant in the amount of $1,250.00 for pain, suffering, and permanent damages.