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Joseph Poliszczuk and Charles C. Poliszczuk, Father v. Kathryn A. Winkler

December 9, 2011

JOSEPH POLISZCZUK AND CHARLES C. POLISZCZUK, FATHER AND NEXT FRIEND OF MARIE POLISZCZUK,
PLAINTIFFS-APPELLANTS,
v.
KATHRYN A. WINKLER,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 02 M2 0733 Honorable Roger G. Fein, Judge President.

The opinion of the court was delivered by: Presiding Justice Robert E. Gordon

PRESIDING JUSTICE ROBERT E. 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.*fn1

¶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 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 ...


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