ILLINOIS OFFICIAL REPORTS
Appellate Court
Poliszczuk v. Winkler, 2011 IL App (1st) 101847
Appellate Court JOSEPH POLISZCZUK and CHARLES C. POLISZCZUK, Father and
Caption Next Friend of Marie Poliszczuk, Plaintiffs-Appellants, v. KATHRYN
A. WINKLER, Defendant-Appellee.
District & No. First District, Sixth Division
Docket No. 1-10-1847
Filed December 9, 2011
Held In a personal injury action where a judgment was entered for plaintiffs
(Note: This syllabus and plaintiffs then moved for postjudgment interest and costs, the trial
constitutes no part of court erred in entering an order granting plaintiffs interest to the date of
the opinion of the court a letter to plaintiffs from defendants offering to pay the judgment plus
but has been prepared court costs based on the trial court’s determination that defendants made
by the Reporter of a “satisfactory tender at that date,” since the letter did not make a “legally
Decisions for the sufficient tender,” it did not include interest, provide date for payment or
convenience of the indicate interest would be paid to date of payment, and plaintiffs’ failure
reader.)
to respond to the letter did not waive their rights to accrual of interest on
the judgment pending their appeal; therefore, the order was reversed and
the cause was remanded for recalculation of interest.
Decision Under Appeal from the Circuit Court of Cook County, No. 02-M2-0733; the
Review Hon. Roger G. Fein, Judge, presiding.
Judgment Reversed and remanded, with instructions.
Counsel on Deidre Baumann and Jeremy P. Hogan, both of Baumann & Shuldine, of
Appeal Chicago, for appellant.
Jonathan T. Koehler, of Ripes, Nelson, Baggot & Kalobratsos, P.C., of
Chicago, for appellee.
Panel PRESIDING JUSTICE R. GORDON delivered the judgment of the court,
with opinion.
Justices Garcia and Lampkin concurred in the judgment and opinion.
OPINION
¶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 (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
¶3 BACKGROUND
¶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
1
The trial court used the words “satisfactory tender” instead of “sufficient tender.”
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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
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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, “we stand ready to prepare the drafts, not only for the verdicts but also your costs.
Please advise accordingly.” 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 (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 (stating that the decision to allow statutory interest lies
within the sound discretion of the circuit court and will not be disturbed absent an abuse of
discretion). 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.
¶ 11 ANALYSIS
¶ 12 Standard of Review
¶ 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.
2
The trial court’s order stated “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.”
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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.
¶ 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 (2001):
“Courts have held that the legislature did not vest the trial court with discretion in
assessing interest under section 2-1303 of the Code. [Citation.] Rather, imposition of
statutory interest at the rate of 9% from the date the final judgment was entered is
mandatory.” Longo, 318 Ill. App. 3d at 1039.
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 (2007). After examining
the facts and considering the credibility of the witnesses, the trial court may determine when
a sufficient tender or offer to tender was made, which has a secondary effect on the accrual
of postjudgment interest. For the foregoing reasons, the standard of review in this matter is
whether the circuit court abused its discretion by awarding postjudgment interest from
September 16, 2006, to February 6, 2007. See Niemeyer, 336 Ill. App. 3d at 116 (“The circuit
court abused its discretion by holding that accrual of interest was limited ***.”); see also
Bank of Chicago v. Park National Bank, 277 Ill. App. 3d 167, 174 (1995) (“[t]he circuit
court did not abuse its discretion in awarding postjudgment interest” to lender). Thus, we
must determine whether the circuit court’s ruling was “arbitrary, fanciful, unreasonable,” or
if “no reasonable person would take the view adopted by the trial court.” People v. Caffey,
205 Ill. 2d 52, 89 (2001).
¶ 15 Analysis
¶ 16 The statute involved in this dispute is section 2-1303 of the Code, titled “Interest on
Judgment.” The pertinent portion of the statute states:
“Judgments recovered in any court shall draw interest at the rate of 9% per annum from
the date of the judgment until satisfied ***. When judgment is entered upon any award,
report or verdict, interest shall be computed at the above rate, from the time when made
or rendered to the time of entering judgment upon the same, and included in the
judgment. Interest shall be computed and charged only on the unsatisfied portion of the
judgment as it exists from time to time. The judgment debtor may by tender of payment
of judgment, costs and interest accrued to the date of tender, stop the further accrual of
interest on such judgment notwithstanding the prosecution of an appeal, or other steps
to reverse, vacate or modify the judgment.” 735 ILCS 5/2-1303 (West 2010).
¶ 17 The predecessor of this statute was interpreted and explained by the Illinois Supreme
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Court in Pinkstaff v. Pennsylvania R.R. Co., 31 Ill. 2d 518 (1964). In Pinkstaff, the court
explained that due to delays in the payment of final judgments, the legislature provided a
statutory remedy in the Interest Act (Ill. Rev. Stat. 1963, ch. 74, ¶ 3) by way of awarding
interest on judgments to compensate those waiting for payment. Pinkstaff, 31 Ill. 2d at 522
(citing Blakeslee’s Storage Warehouses v. City of Chicago, 369 Ill. 480, 483 (1938)). The
court found that the purpose of the legislature must have also been to provide a way for a
judgment debtor to stop the accrual of interest under the statute when the judgment creditor
pursued an appeal. Pinkstaff, 31 Ill. 2d at 524. Our supreme court stated that the purpose and
effect of the amendment was to express the intent that the plaintiff should be entitled to
interest upon his judgment, even though by appeal he sought to correct errors. Pinkstaff, 31
Ill. 2d at 524. At the same time, the amendment afforded the defendant a means, if he chose
to use it, of terminating the accrual of interest pending determination of the plaintiff’s appeal.
Pinkstaff, 31 Ill. 2d at 524.
¶ 18 Given that the statute interpreted by the supreme court in Pinkstaff is nearly identical to
the one in the current Code, the purpose and meaning of our current statute would be the
same. A judgment debtor may, by tendering payment or by making a sufficient offer to tender
payment to the judgment creditor, or by payment to the clerk of the court, stop the accrual
of interest even when the judgment creditor has appealed. Pinkstaff, 31 Ill. 2d at 524.
However, a judgment debtor may only stop the creditor’s right to draw interest on the
judgment during the pendency of an appeal when the judgment debtor makes a sufficient
tender of payment to the judgment creditor which would include a sufficient offer of tender.
Niemeyer, 336 Ill. App. 3d at 115. Accrual of interest during the pendency of an appeal may
also be terminated if the judgment creditor rejects the judgment debtor’s offer to make a
sufficient tender. Casciola v. Gardner, 101 Ill. App. 3d 852, 855-56 (1981). Whether the
judgment creditor’s rejection constitutes a waiver of his right to further accrual of interest
on the judgment is contingent upon whether the judgment debtor’s offer constitutes a
sufficient offer of a tender. Niemeyer, 336 Ill. App. 3d at 115.
¶ 19 Our Illinois Supreme Court provided instruction on postjudgment interest in Yassin v.
Certified Grocers of Illinois, Inc., 133 Ill. 2d 458 (1990). In Yassin, plaintiff’s personal injury
action proceeded to trial and the jury returned a monetary verdict against the defendant on
October 29, 1983. Yassin, 133 Ill. 2d at 460. Thereafter, plaintiff proceeded to obtain
payment of the judgment plus 9% interest per annum from the date of judgment pursuant to
section 2-1303 of the Illinois Code of Civil Procedure via a garnishment action in the circuit
court. Yassin, 133 Ill. 2d at 460. The First District, Second Division, affirmed the circuit
court’s decision to award plaintiff interest and the Illinois Supreme Court accepted the case
for review. Yassin, 133 Ill. 2d at 461. The defendant argued that he offered to tender payment
of the policy limits in satisfaction of the judgment on November 28, 1983, January 31, 1984,
and December 15, 1986; that plaintiff rejected each of the offers; and, as a result, that
plaintiff’s right to draw interest on the judgment during the pendency of her appeal ceased
when she rejected the offers. Yassin, 133 Ill. 2d at 462. The supreme court disagreed and
found that although the defendant offered to tender payment of the policy limits and costs,
he never offered to tender, or intended to tender, payment of interest accrued on the
judgment. Yassin, 133 Ill. 2d at 464. The court held that the offers to tender payment of the
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policy limits and costs were not legally sufficient offers because they failed to offer interest
on the judgment. Yassin, 133 Ill. 2d at 464. Since the offers to tender were not sufficient,
plaintiff did not waive her statutory right to draw interest on the judgment during the
pendency of her appeal. Yassin, 133 Ill. 2d at 464. The supreme court’s decision in Yassin
essentially holds that a judgment debtor’s offer to tender payment must include the requisite
interest due and owing for the tender to be considered sufficient, thus stopping the further
accrual of postjudgment interest. Yassin, 133 Ill. 2d at 464.
¶ 20 The Fourth Division of the First District also provides instruction as to what constitutes
a sufficient tender in order to stop the accrual of postjudgment interest in Niemeyer, 336 Ill.
App. 3d at 112. In Niemeyer, the jury returned a monetary verdict in plaintiff’s favor and the
trial court entered judgment on the verdict on November 22, 1995. Niemeyer, 336 Ill. App.
3d at 113. On November 30, 1995, defendant issued a check payable to plaintiff in the
amount of the jury verdict with “in full and final satisfaction” typed on it. Niemeyer, 336 Ill.
App. 3d at 113. The check was sent to the plaintiff with a letter dated December 6, 1995,
stating that the payment was to be in “full and final satisfaction” of the judgment entered.
Niemeyer, 336 Ill. App. 3d at 113. The plaintiff did not accept defendant’s tender of payment
because it did not include interest and the check was returned. Niemeyer, 336 Ill. App. 3d at
113.
¶ 21 After the judgment was affirmed on appeal, plaintiff moved to enforce the judgment,
including interest and costs pursuant to section 2-1303 of the Code. Niemeyer, 336 Ill. App.
3d at 113-14. The circuit court ordered the defendant to pay interest from November 22,
1995, to December 6, 1995. Niemeyer, 336 Ill. App. 3d at 114. The plaintiff appealed
asserting that the circuit court erred by not ordering defendant to pay interest accrued from
the date of judgment, through pendency of his appeal and thereafter, until the submission of
a valid tender. Niemeyer, 336 Ill. App. 3d at 114. The court found that the defendant did not
offer plaintiff a sufficient tender on December 6, 1995, when it sent the plaintiff a check in
the amount of the jury verdict because the check did not include the amount of interest
accrued from the date of judgment entered on November 22, 1995. Niemeyer, 336 Ill. App.
3d at 116. Moreover, the language indicating that the check was intended to be full and final
payment was evidence of the defendant’s intention not to pay interest on the judgment.
Niemeyer, 336 Ill. App. 3d at 116. The court held that plaintiff’s statutory right to accrued
interest on the judgment during the pendency of his appeal did not stop on December 6,
1995, and that he was entitled to 9% interest per annum from the date of the judgment,
through his appeal, and until the defendant made a legally sufficient tender. Niemeyer, 336
Ill. App. 3d at 116.
¶ 22 It is apparent from the Niemeyer decision, just as it was in Yassin, that for tender or an
offer to tender to be considered sufficient for the purpose of stopping the accrual of
postjudgment interest, it must, at the very least, include interest on the judgment plus
applicable costs. Niemeyer, 336 Ill. App. 3d at 116; see also River Valley Cartage Co. v.
Hawkeye-Security Insurance Co., 17 Ill. 2d 242, 246 (1959) (quoting Sweetland v. Tuthill,
54 Ill. 215, 216 (1870) (holding that a valid tender by a judgment debtor must be “ ‘sufficient
to cover all that the creditor then has a right to recover, whether of debt, interest or costs. If
he tenders less, then the tender is not good ***.’ ”)).
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¶ 23 Sufficient Tender
¶ 24 The first issue this court must review is the circuit court’s determination that the February
6, 2007, letter constituted a sufficient tender.
¶ 25 It is clear from the letter dated February 6, 2007, that the letter only states a willingness
to pay the jury award and court costs while making no mention of interest. The defendant
claims that had the plaintiffs advised defendant as to the amount of interest that had accrued
since the judgment was entered, the insurance company was ready to issue a draft for that
amount also. Defendant also argues that its conduct shows a clear intention to work with the
plaintiffs and pay the full amount owed. All of defendant’s actions may have been in good
faith; however, the burden is on the judgment debtor to offer a sufficient tender to halt the
further accrual of interest on the judgment. Niemeyer, 336 Ill. App. 3d at 115; see also Smith
v. Gen Co. Corp., 11 Ill. App. 3d 106 (1973) (explaining that it is the duty of the debtor to
make sure that his tender is sufficient). This was not done in the correspondence between the
parties.
¶ 26 The defendant never offered to pay interest to a date in the future, nor did it indicate
when payment would be made. Further, the letter dated February 24, 2009, expressed a
willingness to pay the jury verdict of $39,100 three years after the judgment was entered and
was silent on any willingness to pay interest. Before a letter can be considered as an offer for
a sufficient tender, the letter must clearly offer to pay, within a set time period, all that the
judgment creditor is entitled to, which includes the amount of the judgment, interest to the
date of payment, and all applicable costs. Defendant’s February 6, 2007, letter merely
expressed a willingness to pay the judgment plus court costs. As a result, we find that the
circuit court abused its discretion by holding that defendant’s letter was a sufficient tender.
¶ 27 Tender Excused
¶ 28 The second issue we address is whether tender was excused due to plaintiffs’ lack of
response to defendant’s various letters and offers to tender payment. Both parties are correct
in pointing out that under certain circumstances a creditor may, by his conduct, excuse
tender. See Casciola v. Gardner, 101 Ill. App. 3d 852 (1981); see also Needy v. Sparks, 74
Ill. App. 3d 914, 918 (1979). In Gorham v. Farson, 119 Ill. 425 (1887), the Illinois Supreme
Court stated:
“Where a creditor, in advance of an offer to pay, or in response to such offer, informs the
party under obligation to pay that he will not accept the amount actually due, in discharge
of the indebtedness, the party under obligation to pay is relieved of the duty of tendering
the amount actually due.” Gorham, 119 Ill. at 442.
As a result, where it is reasonably clear that the debtor’s offer would be a vain, idle or useless
act because the creditor will not accept payment, the debtor is excused of his obligation to
tender the amount due. Casciola, 101 Ill. App. 3d at 855 (quoting Needy, 74 Ill. App. 3d at
918); see also Ford Motor Credit Co. v. Manzo, 254 Ill. App. 3d 645, 649 (1993).
¶ 29 The facts of Casciola and Needy are nearly identical. In both cases the defendant verbally
offered to tender payment of the judgment, plus applicable costs and interest, in full or partial
satisfaction of the judgment; the defendant sent a written letter confirming the oral offer; and
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the plaintiff clearly rejected the offer. Casciola, 101 Ill. App. 3d at 855. In Casciola, the
plaintiff refused acceptance of the defendant’s offer and immediately instituted garnishment
proceedings to collect the judgment. Casciola, 101 Ill. App. 3d at 855. In Needy, the plaintiff
told the defendant that “under no circumstances” would he accept a check for partial payment
in satisfaction of the judgment. Needy, 74 Ill. App. 3d at 916. Both courts found that because
the judgment creditor clearly rejected the judgment debtor’s offer to pay the judgment,
interest, and costs, whether in full or partial satisfaction of the judgment, actual tender would
have been a useless act. Casciola, 101 Ill. App. 3d at 856; Needy, 74 Ill. App. 3d at 918.
¶ 30 Defendant argues that these “excuse” cases are on point because plaintiffs clearly rejected
defendant’s offer to tender payment on February 6, 2007, by failing to respond to the letters.
We do not find defendant’s argument persuasive. Both Casciola and Needy are
distinguishable from the case at bar. In each of those cases, tender was excused when the
plaintiff rejected a sufficient offer to tender payment–that is, an offer to make a partial or full
payment of the judgment, interest and costs. In Needy, the defendant offered to make a partial
payment of the judgment in addition to the interest and costs, and in Casciola the defendant
offered to pay the policy limit, interest and costs. Needy, 74 Ill. App. 3d at 916; Casciola,
101 Ill. App. 3d at 855. As we stated supra, the issue of whether a judgment creditor’s
rejection of a tender constitutes a waiver of his right to further accrual of interest on the
judgment is contingent upon whether the judgment debtor’s offer constitutes a legally
sufficient offer to tender. Niemeyer, 336 Ill. App. 3d at 115. In the case at bar, the
defendant’s offers, unlike the offers in Casicola and Needy, did not include interest, did not
provide a date for payment or an indication that interest would be paid to the date of
payment, and thus did not constitute a legally sufficient offer of tender.
¶ 31 The February 6, 2007, letter did not offer to make a legally sufficient tender, and
plaintiffs’ failure to respond did not waive their rights to accrual of interest on the judgment
pending their appeal.
¶ 32 Reversed and remanded with instructions to recalculate interest in accordance with this
opinion.
¶ 33 Reversed and remanded, with instructions.
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