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12/05/95 BANK CHICAGO v. PARK NATIONAL BANK

December 5, 1995

BANK OF CHICAGO, AN ILLINOIS BANKING CORPORATION, PLAINTIFF-APPELLANT,
v.
PARK NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Thomas J. O'Brien, Judge Presiding.

The Honorable Justice Hartman delivered the opinion of the court: Scariano, P.j., and DiVITO, J., concur.

The opinion of the court was delivered by: Hartman

The Honorable Justice HARTMAN delivered the opinion of the court:

This is the third appeal involving these parties. (See Bank of Chicago - Garfield Ridge v. Park National Bank (1992), 237 Ill. App. 3d 1085, 606 N.E.2d 72, 179 Ill. Dec. 240; Bank of Chicago v. Park National Bank (1994), 266 Ill. App. 3d 890, 640 N.E.2d 1288, 203 Ill. Dec. 915.) In the instant appeal, plaintiff Bank of Chicago appeals from an order, entered following proceedings upon remandment, granting defendant Park National Bank (Park) both pre- and post-judgment interest.

The issues presented include, essentially, whether (1) the previously-entered judgment provided a basis for the interest awards; (2) the petition for statutory interest was timely presented; (3) the circuit court erred in awarding pre- and post-judgment interest; and (4) Park is entitled to attorney fees for this appeal.

Initially, we note that Bank of Chicago's statement of facts violates Supreme Court Rule 341(e)(6) (155 Ill. 2d R. 341(e)(6)) in that it is replete with argument and comment, and makes few references to the pages of the record on appeal. Any statement that is argumentative or made without reference to the record need not be considered by this court. (See City of Highwood v. Obenberger (1992), 238 Ill. App. 3d 1066, 1073, 605 N.E.2d 1079, 179 Ill. Dec. 65.) Nevertheless, we elect to consider the appeal fully on its merits, with the admonition that counsel familiarize themselves with the Supreme Court Rules and follow them.

On April 30, 1990, Bank of Chicago filed an eight-count complaint against Park and its senior vice-president, relating to certain loans made by Park to Evron Industries, Ltd. (Evron), in which Bank of Chicago purchased a $1,000,000 participation interest. Bank of Chicago filed its action after Evron sought bankruptcy protection on February 28, 1990. The bank endeavored to recover its entire $1,000,000 participation, plus interest.

In December 1987, Bank of Chicago loaned $1.9 million to Wright Industries, Inc. (Wright), in which loan it simultaneously sold Park a 100% participation interest. On January 29, 1991, when the principal balance due on the Wright note was $1,855,488, Bank of Chicago notified Park that it had repurchased Park's participation in the note and set off the proceeds from that repurchase against amounts in excess of $2 million that Park owed Bank of Chicago from Bank of Chicago's participation in Park's loans to Evron, which at the time was the subject of pending litigation. Bank of Chicago, 237 Ill. App. 3d at 1089.

In March 1991, Bank of Chicago filed an amended complaint, adding count IX, which sought a declaration that Bank of Chicago had properly set off the proceeds of the Wright participation. Park immediately moved for an expedited summary judgment on count IX alleging that, as a matter of law, Bank of Chicago was not entitled unilaterally to set off funds belonging to Park from the Wright participation against the unliquidated and disputed litigation claims.

On May 21, 1991, the circuit court granted summary judgment in favor of Park on count IX. On June 17, 1991, Park moved for a Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a) (Rule 304(a))) finding, which the circuit court granted. On September 22, 1992, this court affirmed the circuit court's decision that Bank of Chicago's attempted setoff was improper. Bank of Chicago, 237 Ill. App. 3d at 1097.

With regard to the litigation pending from the Evron participation, the circuit court entered judgment on April 2, 1993, in favor of Bank of Chicago in the amount of $1,118,357. This court affirmed that judgment, but reversed a $1,000 award of nominal damages in favor of Bank of Chicago. Bank of Chicago, 266 Ill. App. 3d at 900-01, 905.

On April 13, 1993, following the entry of judgment in favor of Bank of Chicago, counsel for Bank of Chicago sent a letter to Park's attorney enclosing a check in the amount of $763,134, which purported to represent the difference between the attempted setoff amount of the Wright participation ($1,881,490 (including accrued interest)) and the amount of Bank of Chicago's judgment on the Evron claims ($1,118,356).

On April 16, 1993, Park's counsel sent a letter to Bank of Chicago's counsel demanding, among other things, that Bank of Chicago pay pre- and post-judgment interest as set forth in the letter. On April 19, 1993, Bank of Chicago's attorney replied that Park was not entitled to post-judgment interest because the declaratory judgment did not enter a money judgment nor did it indicate a sum certain. On April 23, 1993, Bank of Chicago's attorney expressed disagreement as to Park's entitlement to pre-judgment interest from January 29, 1991, the day Bank of Chicago repurchased Park's participation and entered the setoff, to the date of the judgment.

On August 5, 1994, Park filed a petition for further relief pursuant to section 2-701(c) of the Code of Civil Procedure (Code) (735 ILCS 5/2-701(c) (West 1992) (section 2-701(c))), seeking entry of an order directing Bank of Chicago to pay interest pursuant to 815 ILCS 205/2 (West 1992) and 735 ILCS 5/2-1303 (West 1992), that had accrued on the court's judgment of May 21, 1994. On November 4, 1994, the circuit court entered judgment in Park's favor in the amount of $386,770, representing pre- and post-judgment interest through November 3, 1994. The judgment also provided that interest would accrue at the per diem rate of $83.65.

On November 30, 1994, Bank of Chicago timely filed its notice of appeal.

I

Bank of Chicago's first argument is that the circuit court's grant of summary judgment on May 21, 1991, provided no basis for awarding ...


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