Poliszczuk v. Winkler
| Decision Date | 09 December 2011 |
| Docket Number | No. 1–10–1847.,1–10–1847. |
| Citation | 356 Ill.Dec. 925,962 N.E.2d 610,2011 IL App (1st) 101847 |
| Parties | Joseph POLISZCZUK and Charles C. Poliszczuk, Father and Next Friend of Marie Poliszczuk, Plaintiffs–Appellants, v. Kathryn A. WINKLER, Defendant–Appellee. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Deidre Baumann, Jeremy P. Hogan, Baumann & Shuldine, Chicago, for Appellant.
Jonathan T. Koehler, Ripes, Nelson, Baggot & Kalobratsos, P.C., Chicago, for Appellee.
[356 Ill.Dec. 927] ¶ 1 Following a jury trial, plaintiffs were awarded damages totaling $39,100 in a personal injury action against defendant, with $30,100 awarded to Marie and $9,000 to Joseph. The trial court entered judgment on the verdict plus costs on September 12, 2006. Plaintiffs appealed the denial of their motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. This court affirmed the trial court in an opinion dated December 1, 2008. Poliszczuk v. Winkler, 387 Ill.App.3d 474, 326 Ill.Dec. 464, 899 N.E.2d 1115 (2008). After the mandate was issued, plaintiffs presented a motion for postjudgment interest and costs. The circuit court entered an order stating: “Plaintiffs' motion for interest is granted in part; Defendant to pay interest from September 16, 2006 to February 6, 2007 (137 days at .38/year) because of a satisfactory tender at that date.”
¶ 2 Plaintiffs appeal the trial court's order for partial payment of interest arguing (1) that the trial court erred when it determined that a sufficient offer of tender was made by defendant on February 6, 2007, and (2) that the trial court erred when it determined that plaintiff rejected a sufficient offer of tender.1
¶ 4 After a judgment was entered on the verdict on September 12, 2006, in a telephone conversation between the parties on January 22, 2007, defendant expressed an interest in “cutting” drafts to the plaintiffs for the amount of the verdict. A letter dated February 5, 2007, written and delivered by defendant allegedly memorialized that telephone conversation. The letter states that plaintiffs' counsel indicated during the conversation that the defendant “should hold off on having the drafts prepared” until the period to file a notice of appeal expired. The letter also states that plaintiffs would not seek any fees or interest for failure to pay at that time. The letter concludes by stating, “In the meantime, should you have any questions or comments, or if any of the above is mistaken or misunderstood, please do not hesitate to contact our office.” Defendant never heard from the plaintiffs regarding this letter but plaintiffs' counsel states in an affidavit that fees and interests were never discussed during the January 22, 2007, telephone conversation.
¶ 5 A follow-up letter, dated February 6, 2007, sent from defendant to plaintiffs states that defendant was prepared to pay the judgment plus court costs, requested direction concerning two liens and asked for plaintiffs' tax identification number. The content of the letter is as follows:
“Dear Ms. Baumann:
Please be advised that Allstate Insurance Company is prepared to pay the jury awards. To that end, please advise us of your court costs so that we may include them on the draft for the same. Your anticipated cooperation is greatly appreciated.
Please forward to us your tax identification number.
Finally, please be advised that we have two liens in our file; specifically, liens for Blue Cross/Blue Shield as well as State Farm Mutual Insurance Company. Please advise if you had negotiated the liens in connection with the same, please forward them to our office. Otherwise, we will include both of the lien holders on the drafts.
Please respond to our correspondence no later than February 1, 2007 so that we may issue the drafts in a timely fashion in resolution of this case.
In the meantime, should you have any questions or comments, please do not hesitate to contact our office.
Very truly yours,
RIPES, NELSON, BAGGOT & KALOBRATSOS, P.C.”
There was no response to this letter other than plaintiffs' notice of appeal filed on February 20, 2007.
¶ 6 Two years later, in a letter dated February 6, 2009, sent from defendant to plaintiffs, defendant again expresses a willingness to pay the judgment and costs. The letter reads as follows:
“Dear Counsel:
As you are aware, the Appellate Court recently denied your Petition for Rehearing. To that end, please be advised that my client and her carrier are still prepared to pay the original verdicts entered on September 12, 2007 as well as any allowable costs you incurred in this case. Please advise me of your costs so that we may cut those drafts immediately.
Should you have any further questions or comments, please do not hesitate to contact our office.
Very truly yours,
RIPES, NELSON, BAGGOT & KALOBRATSOS, P.C.”
Plaintiffs also did not respond to this letter.
¶ 7 Defendant sent a final letter dated February 24, 2009, to plaintiffs, which enclosed and referenced the letter dated February 6, 2009, that is reproduced above. The February 24, 2009, letter reiterates that defendant offered to send drafts for the amount of the verdict and costs. It also states that plaintiffs indicated they would not be seeking interest. The letter states, Again, there was no response to defendant from plaintiffs.
¶ 8 On September 11, 2009, plaintiffs received payment of $39,100 from defendant covering the judgment and the court-filing fee. The plaintiffs filed a motion on December 14, 2009, requesting postjudgment interest and costs. On February 23, 2010, the trial court granted plaintiffs' motion for costs and interest in part, awarding interest to the plaintiffs from the date the judgment was entered, September 16, 2006, to February 6, 2007, finding that the letter dated February 6, 2007, was a sufficient offer of tender.2 The court ordered defendant to pay $1,338 in interest; $1,030 in interest was awarded to Marie and $308 to Joseph.
¶ 9 Plaintiffs filed an appeal on March 24, 2010, requesting this court to reverse the circuit court's order for partial payment of interest. On appeal, plaintiffs argue that nothing less than full, formal tender in compliance with the Illinois Code of Civil Procedure (735 ILCS 5/2–1303 (West 2010)) will stop the accrual of interest on a judgment, and that for a tender to be sufficient, it must cover all the creditor has a right to recover, including debt, interest, or costs. Niemeyer v. Wendy's International, Inc., 336 Ill.App.3d 112, 115–16, 270 Ill.Dec. 215, 782 N.E.2d 774 (2002). Since the February 6, 2007, letter made no reference to the interest owed on judgment, the plaintiffs claim that the circuit court erred as a matter of law when it determined that the letter was a sufficient offer of tender.
¶ 10 Defendant argues that the only issue for review is whether the trial court abused its discretion by awarding plaintiffs interest from September 16, 2006, to February 6, 2007. See Niemeyer, 336 Ill.App.3d at 115, 270 Ill.Dec. 215, 782 N.E.2d 774 (). Defendant maintains that the trial court did not abuse its discretion and correctly found that plaintiff was only entitled to interest from September 16, 2006, to February 6, 2007, because the letter dated February 6, 2007, offered to make a sufficient tender or, alternatively, that plaintiffs' rejection of the offer excused tender.
¶ 13 Before reaching the merits of this case, we must first determine our standard of review. Plaintiffs argue that because section 2–1303 of the Illinois Code of Civil Procedure (Code) states that “[j]udgments recovered in any court shall draw interest at the rate of 9% per annum from the date of judgment until satisfied,” postjudgment interest is mandatory and self-executing. (Emphasis added.) 735 ILCS 5/2–1303 (West 2010). Therefore, plaintiffs argue, there is no room for judicial discretion in awarding postjudgment interest. Accordingly, the plaintiffs contend that this court must determine whether the circuit court erred as a matter of law by awarding postjudgment interest from September 16, 2006, to February 6, 2007. Defendant, on the other hand, argues that the decision to award statutory interest lies within the discretion of the circuit court, and therefore, this court must evaluate whether the trial court abused its discretion by awarding postjudgment interest from September 16, 2006, to February 6, 2007. Niemeyer, 336 Ill.App.3d at 115, 270 Ill.Dec. 215, 782 N.E.2d 774.
¶ 14 Plaintiffs are correct that section 2–1303 of the Code is mandatory. As this court stated in Longo v. Globe Auto Recycling, Inc., 318 Ill.App.3d 1028, 252 Ill.Dec. 799, 743 N.E.2d 667 (2001):
Longo, 318 Ill.App.3d at 1039, 252 Ill.Dec. 799, 743 N.E.2d 667.
However, plaintiffs' conclusion, that just because postjudgment interest is statutorily mandated a trial court cannot exercise its discretion when determining the date upon which a sufficient tender or offer to tender was made, is incorrect. Determining when tender or a sufficient offer to tender is made is a finding of fact and thus entitled to great deference. See Cyclonaire Corp. v. ISG Riverdale, Inc., 378 Ill.App.3d 554, 559, 317 Ill.Dec. 804, 882 N.E.2d 684 (2007). After examining the facts and considering the credibility of the witnesses, the trial...
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