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Niemeyer v. Wendy's International

December 05, 2002

PHILIP NIEMEYER, PLAINTIFF-APPELLANT,
v.
WENDY'S INTERNATIONAL, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 91 L 6170 Honorable Leonard L. Levin, Judge Presiding.

The opinion of the court was delivered by: Justice Hartman

This appeal arises out of a dispute between the parties as to the amount of interest owed by defendant, Wendy's International, Inc., on a judgment entered on behalf of plaintiff, Philip Niemeyer. Plaintiff sought payment of interest from the date of judgment to the date of tender in accordance with Code of Civil Procedure (Code) section 2-1303 (735 ILCS 5/2-1303 (West 2000) (section 2-1303)), including interest accrued throughout the pendency of his direct appeal. Following a hearing on plaintiff's motion to enforce judgment, including interest and costs, the circuit court ordered defendant to pay interest from November 22, 1995, the date judgment was entered, to December 6, 1995, the date defendant offered plaintiff payment in the amount of the jury verdict. The court also ordered defendant to pay plaintiff $17,684.01 in costs. Plaintiff appeals.

Plaintiff questions for review whether the circuit court abused its discretion in holding that plaintiff was entitled to interest from November 22, 1995 to December 6, 1995.

On July 24, 1990, plaintiff was struck and injured by a light fixture which detached from the ceiling at a Wendy's restaurant. Following plaintiff's personal injury trial, the jury returned a verdict in his favor totaling $130,250. The circuit court entered judgment on the verdict on November 22, 1995.

On November 30, 1995, defendant issued a check payable to plaintiff in the sum of $130,250, which included neither interest nor costs. Defendant had typed on the check "in full and final satisfaction of Case # 91 L 6170." The check was sent from defendant's attorney to plaintiff's attorney with a letter dated December 6, 1995, which stated: "Pursuant to the verdict of the jury with respect to the above-referenced matter and the judgment entered *** on November 22, 1995, enclosed please find my client's check in the amount of One Hundred Thirty Thousand Two Hundred Fifty Dollars ($130,250) payable to Plaintiff, Phillip Niemeyer [sic] and your law firm in full and final satisfaction thereof." Plaintiff did not accept defendant's payment and the check was returned.

On December 17, 1999, this court affirmed the judgment on direct appeal. Niemeyer v. Wendy's International, Inc., No. 1-98-0689 (1999) (unpublished order under Supreme Court Rule 23).

Thereafter, plaintiff moved to enforce judgment, including interest and costs, pursuant to section 2-1303 of the Code. *fn1 On July 5, 2000, defendant issued a second check to plaintiff in the amount of the jury verdict, which was delivered to plaintiff on July 10, 2000. The record does not show whether plaintiff returned this check to defendant.

Plaintiff argued in his brief supporting the motion that defendant wrongfully attempted to force him to accept a check "in full and final satisfaction" of the judgment in the amount of the verdict, with no offer to pay interest or costs. Plaintiff insisted that defendant never offered him a legally sufficient tender because the payment did not include interest and costs. Because defendant failed to offer a valid tender, plaintiff contended that section 2-1303 entitled him to interest and costs accrued from the date judgment was entered, through the pendency of his appeal and thereafter, until defendant submits payment in compliance with the statute.

Defendant responded that plaintiff failed to object timely to the amount and form of the check and, therefore, waived argument of the issue, relying on Shuster v. Brantley, 238 Ill. App. 3d 770, 606 N.E.2d 612 (1992) (Shuster). Defendant argued that interest stopped accruing on December 6, 1995, the date its first check was delivered to plaintiff.

The circuit court heard argument on the motion and ordered defendant to pay plaintiff interest on the judgment from November 22, 1995 to December 6, 1995. *fn2 In addition, the court ordered defendant to pay plaintiff costs totaling $17,684.01. Plaintiff appeals the court's order solely with respect to payment of interest.

Plaintiff asserts 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 valid tender. According to plaintiff, defendant tried to "connive" him into accepting payment without interest and costs in violation of section 2-1303 of the Code. Plaintiff contends that defendant's checks did not constitute a legally valid tender and that defendant never intended to pay interest, as evidenced by the "full and final satisfaction" language previously noted.

Defendant responds that the circuit court's findings were not in contravention of section 2-1303 because it ordered payment of interest until December 6, 1995. Defendant argues that its December 6, 1995 delivery of the $130,250 check constituted a legal tender for the full amount of the money owed on the judgment, and that plaintiff's failure to object timely to the tender waived his right to further accrual of interest, citing Shuster.

The decision to allow statutory interest lies within the sound discretion of the circuit court and will not be disturbed absent an abuse of that discretion. Bank of Chicago v. Park National Bank, 277 Ill. App. 3d 167, 173, 660 N.E.2d 19 (1995).

Section 2-1303 of the Code entitles a judgment creditor to draw interest on the judgment during the pendency of an appeal. 735 ILCS 5/2-1303 (West 2000); Yassin v. Certified Grocers of Illinois, Inc., 133 Ill. 2d 458, 462, 551 N.E.2d 1319 (1990) (Yassin). Under section 2-1303, "[j]udgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied ***." 735 ILCS 5/2-1303 (West 2000). The language of section 2-1303 is mandatory, "positive and self-executing." Department of Public Aid ex rel. ...


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