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Schmahl v. A.v.c. Enterprises





Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.


The circuit court granted plaintiff-appellee, John Schmahl, summary judgment in his action to collect on an overdue promissory note executed by defendant-appellant Anthony Caccomo and his company, A.V.C. Enterprises, Inc. The court did so after appellant had admitted liability on that debt, and after appellee had dropped his initial demand for compound interest rather than simple interest on the debt. In ruling, the court rejected appellant's claim that summary disposition was premature because of questions as to the adequacy of appellant's tender of payment and the related question of whether that tender tolled the accrual of interest. Those issues are raised anew in this forum. We affirm.

On February 15, 1980, appellant and his company executed the promissory note at issue herein with appellee, in the face amount of $25,000. Under the terms of that note, the interest rate was fixed at 48% until the maturity date of the note (December 1, 1980), and at 60% thereafter, both rates per annum. Appellant did not make any payment in satisfaction of the debt upon maturity of the note, however.

According to appellant, no demand for payment was made until mid-1983, at which time appellee made such a request of appellant. Prior to that date, appellee had merely inquired as to the "status" of the deal. In mid-1983 appellant proposed a settlement of the outstanding obligation, asking that appellee accept "cash and/or property" in satisfaction of the debt. In return, appellant expected that the note be tendered back to him marked "paid in full." Appellant, at the time of this proposal, acknowledged that he did not have sufficient funds available to retire the debt completely in cash. Rather, according to appellant's deposition, he had only about half the necessary funds available in liquid assets. The remainder would be, in appellant's words, in "illiquid assets, real estate * * * or sums due us by certain subsequent dates."

Appellant asserted that this negotiation never came to fruition owing to a dispute between the parties as to the total amount due on the note. The essence of that dispute was the method of interest calculation. Appellant was claiming that interest on the debt was to be determined on a simple-interest basis, while appellee was of the view that the note contemplated the compounding of interest. At the time of the settlement proposal, appellant's calculations would have resulted in a total indebtedness of between $80,000 and $85,000. Appellee's figures placed the accrued interest alone in that range. As a result of this dispute, appellant never paid appellee any money on the debt, feeling:

"[B]ecause we were so far apart in the amounts that were due at that point, [appellant did not make any payment. Appellee] would have taken the funds and applied it to the amount that was due without giving us proper credit in the amount that I felt was due.

[And] that's just prudent business on my part and I know that to be true to the extent that if I don't have an agreed-upon settlement, I will not tender a payment for any part unless there is an acknowledged agreed amount between both parties as to how much that is due."

Appellee refused to accept any payment in cash and/or property, and no money changed hands in satisfaction of the outstanding debt or any part thereof.

On October 4, 1984, appellee filed suit to collect on the note. As previously indicated, appellant admitted liability in his answer. The circuit court, in its order of March 22, 1985, stated that the only issue remaining unresolved in the case was the question of the calculation of the amount of damages.

Appellee thereafter moved for summary judgment. In his motion, appellee noted appellant's admission of liability. While not retreating from his claim for compound interest, appellee stated that, based on appellant's concession of liability, he was owed simple-interest damages at a minimum, and requested summary judgment in that amount.

Appellant, in his answer to the summary judgment motion, asserted that there were still genuine issues of material fact extant sufficient to preclude summary judgment, namely, the question of whether appellant made, or was excused from making, a tender of payment in mid-1983 and, further, whether the mid-1983 negotiations tolled the accrual of interest on the debt. The circuit court rejected those claims, and in its order of August 19, 1985, granted appellee summary judgment in the amount of $132,186 plus costs, an amount representing the principle sum plus simple interest through the date of judgment. Appellee thereafter dropped his demand for compound interest on the debt.

On September 12, 1985, appellant filed a motion requesting reconsideration of the earlier summary judgment order, which motion was supplemented by two exhibits. The first was a document that appellant claimed was "recently found." The second was appellant's affidavit, in which he asserted that the document had triggered a recollection of a second mid-1983 proposal to settle the debt, this time for an all-cash payment of $85,000. The circuit court denied reconsideration of its ruling, and this appeal followed.

• 1 The office of summary judgment is well recognized. It is a "drastic remedy" (Lesser v. Village of Mundelein (1975), 36 Ill. App.3d 433, 437, 344 N.E.2d 29) which should be sparingly employed (Ruby v. Wayman (1968), 99 Ill. App.2d 146, 240 N.E.2d 699). It is not a remedy designed to decide cases presenting factual issues, but rather is intended to sift out those cases which involve strictly legal matters ripe for summary disposition by the circuit court. (See Glen Ellyn Savings & Loan Association v. State Bank of Geneva (1978), 65 Ill. App.3d 916, 382 N.E.2d 1267.) The burden is placed squarely on the party seeking the benefit of a summary judgment order to demonstrate that his entitlement to that remedy is free from doubt. (Bultman v. Bishop (1983), 120 Ill. App.3d 138, 457 N.E.2d 994.) In deciding whether a factual question precluding summary judgment exists, courts are admonished to construe the evidence strictly against the party moving for summary judgment and liberally in favor of the motion's opponent. (Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App.3d 89, 392 N.E.2d 675.) Applying these standards, we cannot agree with appellant's assertion that summary judgment was premature.

• 2 Appellant challenges the summary judgment order on two bases: first, appellant asserts that there was a genuine issue of material fact unresolved as to whether appellant made a valid tender of payment, or was excused from making such tender by appellee's actions, in mid-1983; second, appellant asserts that its "tender" tolled the accrual of ...

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