specially concurring in part and dissenting in part:
I concur in the majority’s conclusion as to the (1) jury instruction and (2) attorney fees and costs.
However, I respectfully dissent from the portion of the majority’s opinion in which it holds that, under the facts of this case, demand alone was sufficient to cut off the accrual of storage fees.
In my view, the pertinent question in this case is whether Body Shop’s damages for storage — which was the nature of the parties’ original agreement — should have been tolled when Country made demand for possession, even though Body Shop had filed a separate counterclaim for those fees, simply because Body Shop also asserted lien defenses. I would hold that Body Shop’s damages for such storage fees — under its counterclaim — should not have been tolled until the date Country proffered legal tender of uncontested fees or, absent tender, on the date that Country served Body Shop with notice of its complaint in replevin.
Prior to trial, the trial court granted Country’s motion for partial summary judgment. The court found, in part, that Body Shop could not maintain any claim for storage charges for any vehicle after the dates that Country “tendered” payment by (1) letter in which it made demand and offered to pay the uncontested charges on 21 of the vehicles, (2) submitting the check for the Jordan vehicle, and (3) verbally offering to pay the uncontested amounts due on what the parties referred to as the Rock and Kaeding vehicles. Further, the court determined that even though Country had never offered to pay any of the charges for the Miller and Landau vehicles, Country “tendered” payment when it unilaterally decided that making such an offer would have been futile. The trial court decided that the appropriate date of tender for the Miller and Landau vehicles would be 13 days from the date each vehicle had been towed — which was the average number of days between the date the other 24 vehicles were towed and the date Country supposedly tendered payment for those 24 vehicles.
Body Shop contends that the trial court erred by finding that Country had tendered payment for all 26 vehicles. Specifically, Body Shop posits that Country’s mere offers were insufficient to rise to the level of tender. The majority concludes that under Johnson, Wieland, and Navistar an offer and demand amount to tender when, as here, the storage fees were incurred for the benefit of the lienholder. The majority is correct insofar as those cases apply to situations in which only a complaint to enforce a lien is filed or a lien is asserted as an affirmative defense and offer and demand are made when the storage of the vehicle was not the nature of the parties’ original agreement. However, when, as here, a separate claim for civil damages is filed to recover storage fees for such agreed-upon storage, proper legal tender must be proffered in order to stop the fees from accruing. See Board of Education, Springfield Public Schools, District No. 186, Sangamon County v. McCoy, 123 Ill. App. 3d 1065, 1074, 463 N.E.2d 1308, 1314 (1984), quoting Pinkstaff v. Pennsylvania R.R. Co., 31 Ill. 2d 518, 525, 202 N.E.2d 512, 515 (1964) (“ ‘A tender, within the legal meaning of the word, once made, stops the accrual of interest instanter’ ”). Thus, under the facts of this case, the trial court erred by limiting Body Shop’s damages as to 25 of the vehicles because Body Shop filed a counterclaim to recover its storage fees and Country failed to proffer legal tender on those 25 vehicles.
Similar to the Johnson, Weiland, and Navistar cases, Body Shop here asserted its liens in response to Country’s complaint in replevin. However, Body Shop also filed a counterclaim, in which it asserted separate claims for recovery not based on its lien, seeking to recover civil damages for storage fees Country accrued before it properly tendered payment, given the storage was the nature of the parties’ original bailment. Thus, Body Shop should have been entitled to argue that it could recover storage fees from the time each vehicle was towed until the date Country tendered payment (or until the accrual of its fees were otherwise tolled). Nonetheless, had the nature of the parties’ bailment been other than storage, such as traditional repair, Johnson, Weiland, and Navistar would likely preclude recovery for the storage fees after the date on which Country made an offer and demand for each of its vehicles (less the vehicles for which Country never made an offer) because such storage fees would not have caused Body Shop any inconvenience or additional expense under such a scenario. Accordingly, the appropriate analysis in this case would be to first determine, when, if ever, Country tendered payment on each of the vehicles.
“Tender” is an unconditional offer of payment that must include the actual production of the full amount due on a particular obligation. Arriola v. Time Insurance Co., 323 Ill. App. 3d 138, 146, 751 N.E.2d 221, 227 (2001). More specifically, tender is “ ‘[t]he actual proffer of money, as distinguished from mere proposal or proposition to proffer it. Hence[,] mere written proposal to pay money, without offer of cash, is not “tender.” ’ ” McLean v. Yost, 273 Ill. App. 3d 178, 180, 652 N.E.2d 426, 427 (1995), quoting Black’s Law Dictionary 1315 (5th ed. 1979). Even an offer to pay by check is not “legal tender” when an objection to such tender is made. Margulus v. Mathes, 339 Ill. App. 497, 500, 90 N.E.2d 254, 256 (1950) (actual currency is the sole medium of payment absent an agreement to the contrary).
Country offered to settle its account with Body Shop as to the Jordan vehicle by producing a check for $412.50. Body Shop accepted this check on February 4, 2000, and later cashed it. This check became “legal tender” at the time (1) Country presented it to Body Shop as payment and (2) Body Shop received it as a medium of payment it was willing to accept based on the parties’ prior dealings. Accordingly, Country tendered payment on the Jordan vehicle on February 4, 2000.
Country offered to settle its accounts with Body Shop as to the vehicles upon which it purported to have tendered payment by letter on various dates between March 2000 and January 2002. Country’s offers were presented via separate letters for each vehicle, each discussing Country’s willingness to pay certain otherwise agreed-upon charges less Body Shop’s $50 processing fee. Body Shop refused to accept each of Country’s offers on these vehicles.
Country’s mere offers to settle its disputed charges with Body Shop were insufficient to rise to the level of legal tender. See Brown & Kerr, Inc. v. American Stores Properties, Inc., 306 Ill. App. 3d 1023, 1032, 715 N.E.2d 804, 812 (1999) (“Tender of an amount less than the creditor claims is due is ineffective when acceptance is conditioned on an admission that no greater amount is due”). Indeed, Country’s letters were merely an offer to pay the uncontested amount of its bill at some future date in the event that Body Shop agreed to accept the amount offered in each letter. Country did not present cash or an equivalent that Body Shop was willing to accept in exchange for release of its vehicles. (However, a check may have been the equivalent based upon the parties’ previous dealings with the Jordan vehicle.) Accordingly, I respectfully conclude that Country did not tender payment on these vehicles.
Country offered to settle its accounts with Body Shop as to certain other vehicles by verbally expressing its willingness to pay the uncontested charges less the $50 processing fee. As verbal promises to pay cannot be “legal tender” (see McLean, 273 Ill. App. 3d at 180, 652 N.E.2d at 427 (tender is the actual proffer of money, as opposed to the proposal to offer it)), Country did not tender payment on these vehicles.
Country argued to the trial court that it somehow tendered payment to settle its accounts with Body Shop as to other vehicles even though it never formally offered to pay the bills for those vehicles. That is, Country contended that it tendered payment when it unilaterally determined that Body Shop would not be willing to accept any offer that did not include the processing fee. In response to the court’s inquiry into how to determine a tender date for these vehicles, Country asserted that the court should average the number of days the other 24 vehicles were held until “tender” was made. As the majority notes, the court agreed and found that tender was made on these vehicles 13 days after the date each of those vehicles were towed back to Body Shop for storage.
Because, at a minimum, tender requires that an actual offer have been made, and because Country failed to make any offer as to these vehicles, Country did not tender payment on these vehicles either.
Body Shop further contends that the trial court erred by limiting its storage fees to the date that Country offered to pay its bill on each individual vehicle. I would agree with Body Shop as to 25 of the vehicles because, as previously discussed, tender was not made on those vehicles. However, because Country did not tender payment, I conclude the appropriate analysis would be to next determine when, if ever, the $20-per-day storage fee was tolled.
In this type of case, similar to the situation in which postjudgment interest is tolled pending appeal by statute when a judgment debtor tenders payment to the court under the Code of Civil Procedure (735 ILCS 5/2 — 1303 (West 2000)), tender of uncontested charges should likewise stop storage fees from accruing. See Kramer v. Mt. Carmel Shelter Care Facility, Inc., 322 Ill. App. 3d 389, 392, 750 N.E.2d 757, 760 (2001) (citing section 2 — 1303 of the Code of Civil Procedure). For instance, had Country presented Body Shop with a check (a medium of exchange Body Shop had recently accepted for payment of the Jordan vehicle) for the amount of the uncontested charges on each vehicle — as opposed to a letter indicating its intent to tender payment — Body Shop’s recovery for storage fees would be limited to the date that such payment was tendered. Given the record in this case, the trial court erred by limiting Body Shop’s storage fees to the date Country offered to pay its bill on all the vehicles (with the exception of the Jordan vehicle). (As previously stated, Country tendered payment for the Jordan vehicle on February 4, 2000.)
Nevertheless, the question remains, at what point, if ever, does the “meter” stop running on a per-day storage fee when a party’s offer to recover its vehicles falls short of tender. This appears to be an issue of first impression in Illinois. Considering the interests of both parties, I would conclude that absent tender, the storage fees stop accruing on the date that the vehicle’s owner serves the party withholding its vehicle with its complaint in replevin. While I recognize that selecting this point may seem somewhat arbitrary, in a case such as this the fees must stop accruing at some point. Absent legal tender — which, as previously explained, would stop the storage fees from accruing— service of the complaint in replevin is the most appropriate point. Otherwise, the party storing the vehicles would have the perverse incentive to prolong the litigation to continue accruing fees. For example, if Body Shop had demanded excessive fees (say, $4,000 for each vehicle) from Country, it would be intolerable to require Country to either pay the exorbitant fees or to simply watch as litigation proceeded as the meter kept on ticking. However, Country also had the ability, and, according to the majority, the resources, to stop the fees from accruing at its discretion by simply paying the uncontested charges — that is, by proffering legal tender — at the time the disagreement over the additional $50 fee arose.
The majority claims that, while Body Shop’s decision to retain the vehicles after Country made demand for them was “legally legitimate,” its decision “was not a practical one considering (1) Body Shop did not need to worry about Country being ‘judgment proof and (2) the small amount of money (both disputed and undisputed) at issue when Country demanded the return of its vehicles.” 396 Ill. App. 3d at 250. I do not believe either point is relevant to the analysis. However, even if these points were relevant, Body Shop had no way of knowing the type of financial condition Country was in at that time. Indeed, the fact that it was unwilling to pay what the majority describes as a “small amount of money” would more likely indicate to a small business owner that Country was not in the best financial condition.
Accordingly, as to each of the 25 vehicles that Country did not tender payment, I would hold that Body Shop’s storage fees were tolled on the date Country served Body Shop with its complaint in replevin.