2021 IL App (4th) 200187-U NOTICE FILED This Order was filed under NO. 4-20-0187 September 13, 2021 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
MARIE PATTON, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Sangamon County CHRISTIAN BISWELL, ) No. 15L252 Defendant-Appellee. ) ) ) ) Honorable ) Adam Giganti, ) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court. Justices Harris and Holder White concurred in the judgment.
ORDER ¶1 Held: The appellate court affirmed in part and reversed in part, finding the trial court had jurisdiction to hear defendant’s motion for declaratory relief; the trial court did not err in denying plaintiff’s petition to substitute the judge for cause; but the trial court did err in declaring defendant fully satisfied the judgment without paying the accrued $808.76 in statutory postjudgment interest.
¶2 Days after a jury awarded plaintiff Marie Patton $820,000 in damages in her
personal injury suit against defendant Christian Biswell, defense counsel informed plaintiff’s
counsel that the insurance company authorized him to pay the judgment and costs. Plaintiff’s
counsel accepted the offer. Defense counsel transmitted a check for $820,243, but plaintiff
rejected the check because it contained the lienholder’s name. Plaintiff neither refused
defendant’s offer to pay nor rejected his check because it did not contain postjudgment interest.
Counsel meanwhile allowed the situation to devolve into threatened actions and accusations of pettiness, and each involved the trial court by filing various motions. As is relevant here,
defendant filed a “Motion for Declaratory Relief,” asking the trial court to find defendant
satisfied the judgment when he paid the offered judgment and costs. Following a hearing where
it took the matter under advisement, the trial court issued an order declaring “that the judgment
previously entered herein was and is satisfied in full effective on and after December 17, 2019.”
The trial court denied all other pending motions, except for plaintiff’s “Motion to
Dissolve/Vacate Injunction Nun [sic] Pro Tunc,” which the court granted.
¶3 On appeal, plaintiff presents three arguments challenging the trial court’s order:
(1) the trial court erred in denying her statutory right to postjudgment interest on the jury’s
verdict, (2) the trial court lacked jurisdiction to consider the “Motion for Declaratory Relief,” and
(3) the trial court erred in denying plaintiff’s “Petition to Substitute for Cause.” We affirm in
part, reverse in part, and remand with directions.
¶4 I. BACKGROUND
¶5 This case began nearly eight years ago, when Biswell rear-ended Patton, causing
her injuries and setting in motion the underlying litigation. The case eventually proceeded to
trial, where, on December 12, 2019, the jury returned a verdict in Patton’s favor, awarding her
$820,000 in damages. The trial court entered the judgment the same day. Five days later, on
December 17, 2019, defense counsel emailed plaintiff’s counsel to inform him that defendant’s
insurance carrier authorized him to pay “the judgment ($820,000.00) and costs ($243.00) to you
and your client in consideration of the jury’s verdict,” labeling the forthcoming check a
“settlement draft.” Plaintiff’s counsel accepted in an e-mail the next day, saying, “Mrs. Patton
accepts,” and asking defense counsel to make the draft payable to “Marie Patton and The Unsell
Law Firm, P.C.”
-2- ¶6 On December 26, 2019, defense counsel remitted a draft totaling “$820,243.00
paid in satisfaction of the jury’s verdict returned on December 12, 2019,” and made the check
payable to “The Unsell Law Firm PC & Wadena Insurance Company & Marie Patton & Trover
Solutions Inc.” Defense counsel’s letter requested a signed “Satisfaction” and cautioned against
plaintiff’s counsel negotiating the check until he returned the signed satisfaction form. The next
day, plaintiff’s counsel rejected the draft, saying, “that is not how I instructed you to draft the
check.” Besides charging defense counsel with “just being petty,” plaintiff’s counsel gave no
other reason for rejecting the check. Plaintiff’s counsel did not broach postjudgment interest and
had not mentioned it at all since the jury verdict. Plaintiff’s response prompted several
communications between the parties on December 27, 2019.
¶7 Defense counsel relayed his belief he had to include the lienholder on the draft
and could not take plaintiff’s counsel’s verbal assurance to indemnify the defendant or the
insurance company. A new plaintiff’s counsel entered the fray, reiterating plaintiff’s rejection of
the settlement draft and restating plaintiff’s willingness to indemnify defendant, defense counsel,
and the insurance company against all liens in the case. Plaintiff’s counsel threatened: “If you
would like to gamble with the 9% interest regarding your belief this does not qualify as a
settlement, then so be it.” This is the first time any of the attorneys representing plaintiff
mentioned postjudgment interest.
¶8 On January 3, 2020, plaintiff’s counsel sent another letter to defense counsel,
returning the check for $820,243. The letter read:
“Per our prior conversations, we are not accepting the
enclosed check as it is incorrectly made out. As per the enclosed
letter, please issue a corrected check only made payable to ‘The
-3- Unsell Law Firm, P.C. and Marie Patton’ as we have indemnified
you of all liens.”
On January 14, 2020, defendant filed a “Motion for Declaratory Relief,” asking the trial court for
a “declaration that the Defendant has fully and completely satisfied its obligation in respect to
the third-party’s right of recovery or subrogation interest in the judgment previously entered”
and “[t]his Defendant has therefore performed all acts and done all things required of it in order
to secure the satisfaction of the judgment as previously entered.” Plaintiff countered with a
“Motion for Enforcement of Settlement or Judgment,” noting that defendant owed her
“$820,000, $808.72 in interest, and the costs of the suit,” when she “accepted the offer to settle.”
Plaintiff requested the trial court order defendant to fulfill the settlement by paying her the
judgment plus interest and costs.
¶9 Over the next several weeks, the parties filed various motions in the trial court.
Though defendant mailed a check to plaintiff’s counsel for the judgment and costs (there had
been no demand for postjudgment interest yet), plaintiff filed citations to discover defendant’s
assets and garnish his wages, even contacting defendant’s employer to warn him about plaintiff’s
collection efforts. On January 27, 2020, the trial court issued an injunction “restrain[ing] and
enjoin[ing] the Plaintiff from further pursuing the collection of the judgment previously entered
herein by way of citation to discover assets and/or wage garnishment or non-wage garnishment
or by any other means without further order of the court.”
¶ 10 On January 29, 2020, plaintiff’s counsel informed the defense and the trial court
that plaintiff satisfied the lienholder’s interest in this matter. Defense counsel then issued a new
check for $820,243, dated January 31, 2020, payable to only “The Unsell Law Firm PC & Marie
Patton.” Despite this apparent resolution, the parties kept filing motions in the trial court.
-4- ¶ 11 On February 7, 2020, plaintiff filed a “Petition to Substitute for Cause,” outlining
instances where Judge Giganti allegedly displayed bias toward plaintiff and her counsel. The
petition, however, did not contain claims where Judge Giganti’s alleged bias actually prejudiced
her case. Defendant responded by moving to strike plaintiff’s petition as “untimely and
improper, and is otherwise neither well-grounded in fact nor warranted by existing law *** and it
is interposed for any improper purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation.”
¶ 12 On February 10, 2020, the trial court held a scheduled hearing for the various
pending motions. After dispensing with a few ministerial matters, Judge Giganti stated: “So with
all that now taken care of, there are numerous motions and petitions and pleadings before the
court today. But the most recently filed, I believe, *** is a certain petition for substitution for
cause filed by the plaintiff and with that filing I am now going to refer this case to Judge
Madonia for either reassignment or he may keep it himself to review and make a decision
concerning that petition for substitution for cause.” Later that day, the parties appeared before
Judge John M. Madonia, presiding judge of Sangamon County, for consideration of plaintiff’s
petition to substitute Judge Giganti for cause. The trial court noted the parties “requested an
expeditious ruling on the petition[ ],” and so it took time to review the relevant materials and
case law. Plaintiff’s counsel argued the various incidents alleged in the petition “show[ed] a
pattern of bias.” Counsel devoted most of the argument to an instance when the court held an
emergency, ex parte hearing on defendant’s petition for injunctive relief. Judge Madonia
eventually denied plaintiff’s petition, finding plaintiff failed to prove that Judge Giganti showed
bias or actual prejudice. Branding the case “unique,” Judge Madonia concluded Judge Giganti
-5- rightly took control of the case when he scheduled the emergency hearing and issued defendant
injunctive relief. Judge Madonia returned the case to Judge Giganti.
¶ 13 On February 19, 2020, the parties reassembled before the trial court for a hearing
on defendant’s “Motion for Declaratory Relief” and all other pending motions. In support of the
motion, defense counsel argued that after the jury reached its verdict, “there was an agreement
between the parties at that time that the satisfaction was going to be sustained upon the payment
of the judgment and the cost. I tendered the judgment and the cost to him in proper form and they
refused it.” Defense counsel noted he and plaintiff’s counsel disagreed “about whether or not the
lien holder needed to be identified on the draft.”
¶ 14 Plaintiff’s counsel began the argument by noting, “It has always been the position
of the Plaintiff that the day after the verdict was entered on December 13th, interest began to run
at 9 percent on the judgment.” When the trial court confronted counsel with his own prior
objections and arguments about the settlement draft containing the lienholder, counsel
responded, “[t]hat is not the real issue, Judge.” Plaintiff’s counsel’s argument at that time
centered on postjudgment interest and not the lienholder issue. The trial court noted the argument
being presented to the court at the hearing was the first time postjudgment interest had been
mentioned as an issue, or mentioned at all. When the trial court pressed counsel to identify where
in the pleadings plaintiff raised the issue of postjudgment interest, counsel pointed to the
December 27, 2019, e-mail where he told defense counsel he was risking 9% interest by not
abiding by the terms of the settlement. In trying to clarify plaintiff’s argument and “get to the
point,” the following exchange occurred:
“THE COURT: *** The issue I’m trying to address here is
I don’t see anywhere that you mention anything about interest. The
-6- way that I’m reading this, the issue that you and your firm or
cocounsel raised have to do with how the draft is made payable to
and that’s all I’m asking.
And if I—if [defense counsel] was to from your
correspondence of the 27th somehow to infer that the real issue
had to do with interest, I’m just asking when was that specifically
brought up and when did [defense counsel] say, [‘]We’re not
paying interest for those days[’]?
MR. KUEHN: I don’t think he ever did.
THE COURT: Okay. All right. Go ahead.
MR. KUEHN: I don’t think interest has ever been brought
up, but that’s what this is all about.
THE COURT: This is what everything’s about is the
interest?
MR. KUEHN: It’[s] all about the interest.
THE COURT: Oh, okay. Go ahead.”
Although plaintiff’s counsel went on to argue that had plaintiff accepted defendant’s check for
$820,243, defendant still would have owed approximately $808 in interest, he admitted he would
have negotiated defendant’s check if it did not have the lienholder’s name on it. Once the parties
finished arguing defendant’s “Motion for Declaratory Relief,” the trial court went through each
of the remaining motions individually. Notably, plaintiff withdrew her “Motion to Enforce
Judgment.”
-7- ¶ 15 When the trial court came to “Plaintiff’s Response to the Defendant’s Request for
Equitable Relief and Counter-Request for Relief,” the arguments again returned to the
postjudgment interest issue. Defense counsel argued the parties agreed to settle this matter
without postjudgment interest. Explaining his e-mail offering to pay the judgment and costs only,
counsel said: “[T]here was an offer and there was an acceptance. There was an agreement and
we fulfilled the terms of our agreement.” Defense counsel noted his communications with
plaintiff’s counsel centered on the lienholder, not postjudgment interest. One of plaintiff’s
attorneys responded, giving his account of the parties’ agreement:
“Yes, Your Honor. I think it comes down to this, you
know, the initial context saying I have authority to pay the 820,000
and cost. The answer, send the check. Okay. Send it. We’ll take it.
All right.
[Defense counsel] is saying that unless we said, [‘]well,
wait a minute; no, you got to pay us the interest,[’] we couldn’t
take that check without waiving the interest and that just simply
isn’t the case. We can take whatever payments he’s authorized to
pay, but the first $808 of that payment goes to the interest that had
run up to that point. We don’t need to talk about interest.”
As before, the trial court pressed plaintiff’s counsel on whether any of the attorneys representing
plaintiff demanded postjudgment interest that accrued before the parties came to an agreement
on paying the judgment and costs. Plaintiff’s counsel answered no, though he claimed defense
counsel privately said he would “fight the interest until the end.” The court redirected counsel
again, asking: “Let’s take the other side of the coin. When did you tell him, [‘]We want that $808
-8- added?[’]” Plaintiff’s counsel responded, “I did not tell him we wanted anything,” but on
December 27 his partner and co-counsel informed defense counsel: “Fix the check issues or
we’re going to—you’re risking 9 percent interest from the date of the judgment.” As plaintiff’s
counsel continued to argue the parties’ agreement qualified as a settlement, was governed by the
settlement statute, and interest accrued from the date of the agreement (December 17th) and was
still accruing, the trial court again tried to pin down when plaintiff demanded interest. The trial
court asked: “At any time between the 12th and then the 17th of December, 2019, did you
indicate to [defense counsel] in any way, shape, or form, phone call, e-mail, speaking to him,
whatever the case may be, [‘]hey, you didn’t add in the $808 of interest[’]?” Plaintiff’s counsel
answered, “No.”
¶ 16 After going through still more pending motions, the trial court sought one last
clarification on the postjudgment issue. This colloquy ensued:
“THE COURT: Okay. So couple questions and one was
actually already answered and that is if—and I’m focusing now on
the interest. Mr.—I think it was Mr. Evans indicated that if the
check had been written the way that you believe it should have
been, the interest would have been for four days totaling $808.
MR. EVANS: And some change.
THE COURT: What change?
MR. EVANS: I’ll tell you, $808.76.
THE COURT: And that is at how much per day? Is that
202 and what?
MR. EVANS: $202.19.
-9- THE COURT: Per day. And on that issue alone, Mr.
Graham, do you agree with the calculations?
MR. GRAHAM: The calculation is correct.
THE COURT: *** I now know that the interest—the
parties agree that interest accrues at $202.19 per day. Does that
make sense?
MR. GRAHAM: If it accrues, yeah.
THE COURT: If it accrues. And you don’t believe it
should accrue for even the four days?
MR. GRAHAM: Not even for the four days.
THE COURT: Do you agree with my $202.19, which is the
number you gave me?
MR. EVANS: Yes, Your Honor.”
The trial court gave the parties one week to submit proposed orders.
¶ 17 The trial court issued its order regarding defendant’s “Motion for Declaratory
Relief” on March 12, 2020. The court’s order recounted what occurred after the jury’s verdict
and entry of the judgment on December 12, 2019, noting in three different paragraphs plaintiff
did not claim or refer to collection of statutory postjudgment interest. The trial court ultimately
“declare[d] that the judgment previously entered herein was and is satisfied in full effective on
and after December 17, 2019.” The trial court found the following:
“Defendant offered to pay the Plaintiff, the Plaintiff’s attorneys,
and the known lienholder the full amount of the judgment and
costs on December 17, 2019 in the specific sum of $820,243.00.
- 10 - The Plaintiff, by accepting the Defendant’s offer as stated, entered
into agreement whereby this Court’s judgment would be satisfied
by payment of that specific sum. Neither the offer nor the
acceptance anticipated the payment of statutory post-judgment
interest. In fact, the Plaintiff only first demanded such relief of the
Defendant and from this Court as part of her Response to
Defendant’s Request for Equitable Relief and Counter-Request for
Relief filed herein February 3, 2020, after the offer, acceptance,
and payment of the agreed sum was made and received.”
In arriving at this conclusion, the trial court determined, “[p]laintiff’s offers to indemnify the
Defendant against outstanding liens were inappropriate and unacceptable,” and defendant rightly
included the lienholders on the initial check. The court determined:
“Defendant has therefore, by the tender of the specific sum of
$820,243.00, on December 17, 2019 payable to the Plaintiff, her
attorneys, and the known lienholder, and the transmission of that
amount on December 26, 2019, performed all acts and done all
things required of it in order to secure the satisfaction of the
judgment as previously entered herein.”
The trial court denied all other pending motions and petitions, except for “Plaintiff’s Motion to
Dissolve/Vacate Injunction Nun [sic] Pro Tunc,” which it granted.
¶ 18 This appeal followed. Plaintiff’s brief indicates she negotiated the check dated
January 31, 2020, and “deposited the funds on March 18, 2020.”
¶ 19 II. ANALYSIS
- 11 - ¶ 20 Plaintiff challenges the trial court’s order on three grounds. We reorder and
restate them accordingly: (1) the trial court lacked jurisdiction to consider defendant’s motion for
declaratory relief, (2) the trial court erred in denying plaintiff’s petition to substitute the judge for
cause, and (3) the trial court erred in finding defendant satisfied the judgment without paying
accrued postjudgment interest. We disagree on the first two points and agree with the third.
Accordingly, we affirm in part, reverse in part, and remand with instructions for defendant to pay
the $808.76 interest that accrued on the judgment before the parties agreed to payment terms plus
the interest that has accrued on that sum during the pendency of this appeal.
¶ 21 A. Jurisdiction
¶ 22 Illinois’s Code of Civil Procedure (Code), specifically section 2-1202, sets
parameters for posttrial motions in jury cases. 735 ILCS 5/2-1202 (West 2018). The Code
references reserved motions for a directed verdict, motions for judgment notwithstanding the
verdict, motions in arrest of judgment, and motions for a new trial (735 ILCS 5/2-1202(b) (West
2018)) and provides these “[p]ost-trial motions must be filed within 30 days after the entry of
judgment or the discharge of the jury.” 735 ILCS 5/2-1202(c) (West 2018). This court has
interpreted section 2-1202(c) to mean that “ ‘after the 30-day period has expired, *** the trial
court loses jurisdiction over the case.’ ” Manning v. City of Chicago, 407 Ill. App. 3d 849, 852,
944 N.E.2d 876, 879 (2011) (quoting Trentman v. Kappel, 333 Ill. App. 3d 440, 442, 775 N.E.2d
1041, 1043 (2002)); see also Kwak v. St. Anthony DePadua Hospital, 54 Ill. App. 3d 719, 724,
369 N.E.2d 1346, 1349 (1977) (“The failure to timely file a post-trial motion deprives the trial
court of jurisdiction to entertain that motion.”). A trial court’s jurisdiction is a legal question we
review de novo. Enbridge Pipeline (Illinois), LLC v. Hoke, 2019 IL App (4th) 150544-B, ¶ 26,
123 N.E.3d 1271.
- 12 - ¶ 23 Defendant filed his “Motion for Declaratory Relief” on January 14, 2020, after the
statutory 30-day deadline for posttrial motions. Plaintiff argues this deprived the trial court
jurisdiction to entertain the motion. We disagree.
¶ 24 The posttrial motions considered in section 2-1202 of the Code are those that seek
to challenge the jury verdict in some way, i.e., those requesting to alter, modify, or vacate the
judgment. And plaintiff is right that “a court has no power to modify, set aside or vacate a final
decree thirty days after its rendition.” Comet Casualty Co. v. Schneider, 98 Ill. App. 3d 786, 790,
424 N.E.2d 911, 915 (1981). Had defendant filed one of the posttrial motions listed in section
2-1202, or had his motion sought to alter the judgment in some way, plaintiff’s argument that the
trial court lacked jurisdiction would be persuasive. But he did not and, therefore, plaintiff’s
argument fails to persuade. Defendant’s motion did not attack the jury verdict or the trial court’s
judgment. It merely asked the trial court to declare whether defendant satisfied the judgment
when his counsel transmitted a settlement draft for judgment and costs, per the parties’
agreement. This court previously explained that even though a trial court lacks jurisdiction to
modify or vacate a judgment after thirty days, “it does retain jurisdiction until it has disposed of
all matters before it.” Comet Casualty, 98 Ill. App. 3d at 790. Considering the type of motion
defendant filed—one for declaratory relief that did not challenge the judgment—we conclude
section 2-1202 does not apply and hold the trial court retained jurisdiction to entertain and rule
on the motion.
¶ 25 B. Petition to Substitute for Cause
¶ 26 Plaintiff next argues the trial court erred in denying her petition to substitute
Judge Giganti for cause. We disagree.
- 13 - ¶ 27 Section 2-1001 of the Code provides for substitution of the judge in civil actions,
including substituting a judge for cause. 735 ILCS 5/2-1001(a)(3) (West 2018). “Although the
statute does not define ‘cause,’ Illinois courts have held that in such circumstances, actual
prejudice has been required to force removal of a judge from a case, that is, either prejudicial
trial conduct or personal bias.” In re Marriage of O’Brien, 2011 IL 109039, ¶ 30, 958 N.E.2d
647. Because we presume a judge’s impartiality, the party seeking removal must rebut the
presumption by proving the judge’s prejudice or personal bias. O’Brien, 2011 IL 109039, ¶ 31.
We have defined “prejudice” as “ ‘animosity, hostility, ill will, or distrust towards [a party].’ ”
People v. Haywood, 2016 IL App (1st) 133201, ¶ 29, 50 N.E.3d 1237 (quoting People v.
Patterson, 192 Ill. 2d 93, 131, 735 N.E.2d 616, 638 (2000)). Citing the United States Supreme
Court, our supreme court determined bias sufficient to remove a judge for cause must be “a
deep-seated favoritism or antagonism that would make fair judgment impossible.” (Internal
quotation marks omitted.) O’Brien, 2011 IL 109039, ¶ 31 (quoting Eychaner v. Gross, 202 Ill. 2d
228, 280, 779 N.E.2d 1115, 1147, (2002), quoting Liteky v. United States, 510 U.S. 540, 555
(1994)). We review a trial court’s decision on a motion for substitution of judge for cause
deferentially, reversing only if the decision goes against the manifest weight of the evidence.
Haywood, 2016 IL App (1st) 133201, ¶ 29. This means we will reverse the decision only if the
trial court’s decision was “clearly erroneous or the record support[ed] an opposite conclusion.”
Haywood, 2016 IL App (1st) 133201, ¶ 29.
¶ 28 Plaintiff’s “Petition to Substitute for Cause” alleged several instances and rulings
where plaintiff believe Judge Giganti demonstrated bias toward her and her attorneys. The
petition also outlined the events leading up to the trial court issuing a temporary restraining order
enjoining “plaintiff from further pursuing the collection of the judgment *** by way of citation
- 14 - to discover assets and/or wage garnishment.” Plaintiff argued the court demonstrated prejudice
and personal bias against her by holding the hearing without plaintiff or her counsel present and
by going off the record for a brief time during said hearing.
¶ 29 Judge Madonia reviewed plaintiff’s petition and presided over the hearing to
consider its merits. Plaintiff’s counsel essentially rested on the petition, saying he believed it
“shows a pattern of bias.” Though counsel did devote some argument to what he believed to be
“the last and most serious” instance of bias, namely holding a hearing on and then granting
defendant’s petition for injunctive relief so quickly it precluded participation from plaintiff’s
counsel. Counsel specifically highlighted the court going off the record during the hearing,
saying, “[t]hat in and of itself I believe, Your Honor, shows bias.”
¶ 30 Judge Madonia denied plaintiff’s petition. Calling this litigation unique,
particularly plaintiff’s efforts at collecting a judgment through discovering assets and wage
garnishment even after defendant already submitted payment, Judge Madonia saw Judge Giganti
issuing the temporary restraining order as “tak[ing] control on an emergency basis,” believing
“there had at least been some notice provided.” Judge Madonia noted plaintiff’s petition was
“certainly relying on a bunch of things *** that were brought out in trial and pretrial rulings ***
[yet] there wasn’t even a post-trial motion filed to object to any of this conduct [which] doesn’t
give the court much concern about the total impact these issues had on [plaintiff] throughout
these proceedings.” Ultimately, Judge Madonia found plaintiff failed to show bias or actual
prejudice on the part of Judge Giganti.
¶ 31 We defer to Judge Madonia’s determination here. Given these facts, we cannot
conclude the decision to deny plaintiff’s petition stands against the manifest weight of the
evidence. Our review of the record does not lead us to the opposite conclusion from the trial
- 15 - court. See Haywood, 2016 IL App (1st) 133201, ¶ 29. We do not see where Judge Giganti
demonstrated actual prejudice or personal bias toward plaintiff or her counsel—the record did
not show animosity, or ill will, or deep-seated favoritism, hostility, or antagonism. See O’Brien,
2011 IL 109039, ¶ 31; Haywood, 2016 IL App (1st) 133201, ¶ 29. Nor does plaintiff direct our
attention to analogous cases where a judge was substituted for cause based on similar allegations.
Like the trial court, we find plaintiff failed to demonstrate actual prejudice.
¶ 32 C. Statutory Postjudgment Interest
¶ 33 Plaintiff argues the trial court erred in declaring defendant satisfied the judgment
without paying statutory postjudgment interest. We agree.
¶ 34 Plaintiff appeals from the trial court’s order granting defendant declaratory relief.
We review such orders for abuse of discretion. State Farm Fire & Casualty Co. v. Leverton, 314
Ill. App. 3d 1080, 1083, 732 N.E.2d 1094, 1096 (2000). “ ‘Abuse of discretion’ means clearly
against logic; the question is not whether the appellate court agrees with the circuit court, but
whether the circuit court acted arbitrarily, without employing conscientious judgment, or
whether, in view of all the circumstances, the court exceeded the bounds of reason and ignored
recognized principles of law so that substantial prejudice resulted.” Leverton, 314 Ill. App. 3d at
1083.
¶ 35 The trial court found defendant satisfied the judgment when he offered to pay the
judgment and costs, $820,243, plaintiff accepted said offer, and defendant transmitted payment
of that amount in a draft payable to plaintiff, her attorneys, and the known lienholder.
Specifically, the trial court determined that when defendant remitted the check on December 26,
2019, he had “performed all acts and done all things required of it in order to secure the
satisfaction of the judgment.” In so doing, the trial court necessarily found defendant rightly
- 16 - included the lienholder on the initial check and could not rely on plaintiff’s verbal assurances to
indemnify him against outstanding liens. Plaintiff does not challenge this latter finding in her
appellant’s brief. We, therefore, will not review it as plaintiff has forfeited any argument on this
issue. See Cooke v. Illinois State Board of Elections, 2019 IL App (4th) 180502, ¶ 83, 146
N.E.3d 31 (citing Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018)).
¶ 36 Plaintiff, instead, focuses her argument on the postjudgment interest. She frames
the issue accordingly: “This Court must determine what effect, if any, a supposed agreement has
on the accrual of interest on the judgment.” Framing the issue this way requires us first to
determine if the parties in fact entered into an agreement before we determine if the agreement
affected postjudgment interest.
¶ 37 We agree with, and defer to, the trial court’s determination that the parties entered
into an agreement whereby defendant could satisfy the judgment. We do not find the trial court’s
conclusion to be arbitrary or “without *** conscientious judgment, or whether, in view of all the
circumstances, [it] exceeded the bounds of reason.” Leverton, 314 Ill. App. 3d at 1083.
Defendant offered the judgment plus costs and plaintiff accepted. Both parties provided
consideration, and each bargained away the option of filing a postjudgment motion challenging
an alleged pretrial or trial error or attacking the verdict. See generally Halloran v. Dickerson, 287
Ill. App. 3d 857, 867-68, 679 N.E.2d 774, 782 (1997) (“A contract, to be valid, must contain
offer, acceptance, and consideration; to be enforceable, the agreement must also be sufficiently
definite so that its terms are reasonably certain and able to be determined.”). We further agree
with the trial court that the parties’ bargain did not contemplate postjudgment interest—neither
party mentioned it and plaintiff did not demand it until her February 3, 2020, “Response to
Defendant’s Request for Equitable Relief and Counter-Request for Relief.” We do not consider
- 17 - plaintiff’s counsel’s reference to defense counsel taking a “gamble with the 9% interest” a
demand; it is more akin to an oblique threat.
¶ 38 Having found the parties entered into an agreement and plaintiff forfeited any
appellate argument on whether defendant rightly included the lienholders on the initial settlement
draft, the question becomes, how does the parties’ agreement affect the accrual of postjudgment
interest? In other words, did plaintiff waive postjudgment interest? Defendant argued a plaintiff
can (and this plaintiff did) waive the right to postjudgment interest. The trial court apparently
agreed. Although the trial court’s order does not use any variation of the word “waiver,” it noted
four times plaintiff did not reference collecting postjudgment interest in the parties’
communications. Moreover, the trial court’s order found, “[n]either [defendant’s] offer nor
[plaintiff’s] acceptance anticipated the payment of statutory post-judgment interest.” But neither
defendant’s brief nor the trial court’s order cite authority stating a plaintiff can waive collection
of postjudgment interest. Likewise, plaintiff does not cite authority decisively holding that a
plaintiff cannot waive collection of postjudgment interest. To answer this waiver question, we
examine the postjudgment interest statute and the case law interpreting or applying it.
¶ 39 Section 2-1303(a) of the Code provides:
“[J]udgments recovered in any court shall draw interest at the rate
of 9% per annum from the date of the judgment until satisfied ***.
When judgment is entered upon any award, report or verdict,
interest shall be computed at the above rate, from the time when
made or rendered to the time of entering judgment upon the same,
and included in the judgment. Interest shall be computed and
- 18 - charged only on the unsatisfied portion of the judgment as it exists
from time to time.” 735 ILCS 5/2-1303(a) (West 2018).
The statute speaks in mandatory terms. Indeed, this court has said, “[t]he language of the statute
is positive and self-executing,” meaning “[t]he trial court is without authority or discretion to
limit the interest which thereby accrues upon a judgment.” (Internal quotation marks omitted.)
In re Estate of Marks, 51 Ill. App. 3d 535, 539, 366 N.E.2d 1077, 1080 (1977); see also
Halloran, 287 Ill. App. 3d at 862 (“Illinois law provides for a statutorily mandated accrual of
interest on judgments.”). Pursuant to section 2-1303(a), as a matter of law, interest accrues from
the time of the verdict until the court enters judgment, meaning the judgment includes any
accrued postjudgment interest. See Halloran, 287 Ill. App. 3d at 863 (“The ‘judgment’ when
entered is therefore made up of the verdict amount, plus costs, plus accrued interest from the date
of verdict to the date judgment is entered.”). The statute further mandates that postjudgment
interest continues accruing until the debtor fully satisfies the judgment. 735 ILCS 5/2-1303(a)
(West 2018); see also Halloran, 287 Ill. App. 3d at 864 (“In the usual case, the debtor’s liability
to pay interest would continue until all interest and the total judgment were paid in full.”). Yet
the statute does not preclude a debtor from making partial payments toward the judgment.
Indeed, it requires “comput[ing] and charg[ing]” postjudgment interest “only on the unsatisfied
portion of the judgment as it exists from time to time.” 735 ILCS 5/2-1303 (West 2018).
¶ 40 Though the statute does not address tolling the accrual of postjudgment interest,
we find case law instructive on that point. This court previously instructed, “formal tender is
necessary with any debt to stop the accrual of interest.” Thomas v. Missouri-Illinois R.R. Co., 30
Ill. App. 3d 40, 43, 332 N.E.2d 139, 141 (1975). Our supreme court further instructed a debtor
can toll accruing interest by, “pursuant to section 2-1303 of the Code, *** tender[ing] payment
- 19 - of the judgment, costs and interest accrued on the judgment to the date of tender.” Yassin v.
Certified Grocers of Illinois, Inc., 133 Ill. 2d 458, 462, 551 N.E.2d 1319, 1321 (1990).
¶ 41 Since postjudgment “[i]nterest is purely a statutory creation” (Noe v. City of
Chicago, 56 Ill. 2d 346, 350, 307 N.E.2d 376, 379 (1974)), the statute speaks in mandatory
terms, and there is no authority to the contrary, we conclude a judgment creditor cannot waive
the right to have postjudgment interest begin accruing when the verdict is read and when the
judgment is entered. By operation of the statute, postjudgment interest automatically begins
accruing at the verdict, it is included in the judgment, and it continues accruing until the
judgment is fully satisfied.
¶ 42 Illinois law certainly favors the freedom of contract and allows “[p]arties [to]
contract away rights, even those of a constitutional or statutory nature.” City of Springfield v.
Ameren Illinois Co., 2018 IL App (4th) 170755, ¶ 38, 127 N.E.3d 703. But when a contract
requires a party to forgo a statutory right, the agreement should be clear that party is intentionally
relinquishing a known right. Though not on all fours with the instant case, we find instructive
this court’s opinion in Northwestern Yeast Co. v. City of Chicago, 301 Ill. App. 303, 22 N.E.2d
781 (1939). There, in the context of condemnation litigation, the defendant paid the plaintiff the
total judgment amount ($231,737) by a check; however, the subject of statutory interest was not
broached until the plaintiff instituted proceedings to collect the interest. Northwestern Yeast, 301
Ill. App. at 304. Reviewing precedent from our supreme court, this court noted the prior
“ ‘ingenious argument of counsel, repeated here, that when [a party] accepted payment of the
principal of the judgment they abandoned whatever claim they might have had to interest.’ ”
Northwestern Yeast, 301 Ill. App. at 306-07 (quoting Feldman v. City of Chicago, 363 Ill. 247,
254, 2 N.E.2d 102, 105 (1936)). But, like here, the court noted that “ ‘argument *** finds no
- 20 - support *** in the provisions of the statutes, or in the decisions of this court. It ignores the
essential fact that here the interest is purely statutory, and arises neither from an agreement,
express or implied, nor by way of damages or penalty for delay in payment of the principal.’ ”
Northwestern Yeast, 301 Ill. App. at 307 (quoting Feldman, 363 Ill. at 254). The Northwestern
Yeast court relied upon Feldman when evaluating the defendant’s “suggestion that by failing to
protest” interest “plaintiff waived its claim” to the statutory interest owed. Northwestern Yeast,
301 Ill. App. at 309. The Northwestern Yeast court held, “the mere failure of plaintiff to protest
that interest was not included at the time of the judgment was paid did not amount to a waiver.”
Northwestern Yeast, 301 Ill. App. at 309.
¶ 43 Even though the Northwestern Yeast court did not consider the same type of
litigation nor the same statute governing interest, we follow its lead to the same conclusion.
Because the postjudgment interest in this case arose automatically by statute and not by
agreement of the parties, we cannot endorse defendant’s argument, nor the trial court’s implicit
conclusion, that plaintiff waived her right to collect postjudgment interest when she accepted
defendant’s offer to pay the judgment and costs. Here, the jury reached the verdict and the trial
court entered judgment on the same day, December 12, 2019, meaning postjudgment interest
began accruing automatically on December 13, 2019. So by the time the parties reached their
agreement, postjudgment interest had been accruing for a few days, totaling $808.76, and by
operation of the statute, that sum became part of the amount defendant owed to satisfy the
judgment. The trial court abused its discretion in declaring the judgment fully satisfied when
defendant failed to pay the accrued postjudgment interest because it seemingly “ignored
recognized principles of law.” Leverton, 314 Ill. App. 3d at 1083.
- 21 - ¶ 44 We can endorse and affirm the trial court’s order to the extent that we conclude
defendant partially satisfied the judgment when he otherwise remitted payment on December 26,
2019. Plaintiff contends that defendant’s failure to tender the full amount of the judgment means
postjudgment interest continued accruing on the whole judgment, $820,000, until plaintiff
negotiated the check for $820,243 on March 18, 2020. Thereafter, according to plaintiff, interest
kept accruing on the unsatisfied portion of the judgment. We disagree.
¶ 45 Plaintiff unequivocally accepted defendant’s offer to pay “the judgment
($820,000.00) and costs ($243.00) *** in consideration of the jury’s verdict returned December
12, 2019,” and defendant paid that sum pursuant to the agreement. That is partial satisfaction,
which section 2-1303 contemplates. See 735 ILCS 5/2-1303 (West 2018); see also Illini FS, Inc.
v. Myerscough, 137 Ill. App. 3d 861, 869-70, 484 N.E.2d 1385, 1390 (1985) (“[T]o the extent
that the creditor accepts in partial satisfaction installment payments toward the debt he is no
longer being denied the use of such sums and is no longer entitled to interest thereon.”).
Although defendant’s payment did not amount to the formal tender necessary to toll the accruing
interest, defendant fulfilled the agreement. Indeed, plaintiff said she would have cashed the
check had it not included the lienholder. Recall, plaintiff forfeited any argument challenging the
trial court’s determinations as to defendant including the lienholder on the first settlement draft.
Plaintiff, therefore, erroneously rejected the first settlement draft. Contrary to her current
argument, she could have accepted the check without waiving her right to collect postjudgment
interest.
¶ 46 At the February 19, 2020, hearing, plaintiff’s counsel pivoted from their prior
arguments about the propriety of including the lienholder on the December 26, 2019, settlement
draft to arguments solely relating to postjudgment interest. To the trial court’s surprise,
- 22 - plaintiff’s counsel acknowledged: “I don’t think interest has ever been brought up, but that’s
what this is all about.” Though plaintiff’s two attorneys present at the hearing sometimes
disagreed on what legal theory their client was actually arguing or relying upon, both attorneys
argued defendant owed their client $808.76 when the parties entered their agreement and,
furthermore, both said they would have negotiated the check had it not included the lienholder.
We hold plaintiff to those arguments and concessions. She is estopped from arguing otherwise
now. See generally First Bank of Highland Park v. Sklarov, 2019 IL App (2d) 190210, ¶ 14, 137
N.E.3d 218 (explaining equitable principles prevent parties from giving a reason for their
conduct and decision and then changing that reason and putting their conduct and decisions upon
other and different considerations) (quoting 1002 E. 87th Street, LLC v. Midway Broadcasting
Corp., 2018 IL App (1st) 171691, ¶ 20, 107 N.E.3d 868).
¶ 47 By plaintiff’s own admission, defendant paid all but $808.76 of the judgment
when he transmitted the settlement draft on December 26, 2019. But since the self-executing
nature of the postjudgment interest statute prevented plaintiff from waiving the accrued $808.76
in interest, defendant did not fully satisfy the judgment. Defendant, therefore, partially satisfied
the judgment when he remitted payment on December 26, 2019, according to the agreement. As
plaintiff’s counsel argued at the hearing, the first settlement draft (which plaintiff erroneously
rejected) should have been applied first to the accrued interest ($808.76) and then applied to the
judgment. Consequently, defendant paid all but $808.76 of the judgment. Per the statute, interest
has been accruing on that sum at a rate of 9% per annum ever since. 735 ILCS 5/2-1303 (West
2018) (“Interest shall be computed and charged only on the unsatisfied portion of the judgment
as it exists from time to time.”).
- 23 - ¶ 48 We pause to remind plaintiff’s counsel of their duty to remain civil during all
phases of litigation, including the appellate process, no matter how contentious counsel believes
the litigation to be. Though counsel might “verily believe” they were zealously advocating for
their client, their comments labeling the trial court’s order “a paraphrase” of defendant’s motion
that was not “bas[ed] on sound judicial analysis or scholarship” exceed the bounds of civil
advocacy. The trial court informed the parties he did not have a secretary and asked for proposed
orders in Microsoft Word format to aid in writing this order. Attacking the order as “merely a
paraphrase” is at the very least poor form and at the most, outright disingenuous considering
those circumstances. Likewise, the appellate briefing is no place for counsel’s suggestion the
trial judge is not qualified to sit on the bench by sarcastically bemoaning how they should expect
trial errors “when the selection of our judiciary is largely political as opposed to merit based.”
Although an appeal requires the parties to point out alleged errors, counsel need not resort to
hyperbole and maintain this case differs from all others because of “the egregious nature of how
the Court managed this litigation.” (Emphasis added.) Finally, we note counsel’s accusations that
the trial court participated in a “pure sham” when scheduling a hearing or aided “defense
counsel’s effort to rob the plaintiff of her post-judgment interest” even further exceed the
boundaries of civil advocacy—they are inappropriate, uncivil comments unbecoming of
attorneys practicing before this court. (Emphases added.) The appellant’s brief is not a license to
malign the trial court. We echo our supreme court’s admonition: “Briefs should not contain
language which is disrespectful to the court or its officials,” and “it [is] the duty of every lawyer
to maintain a respectful attitude to the court for the maintenance of its dignity and its supreme
importance.” Ambrosius v. Katz, 2 Ill. 2d 173, 179, 117 N.E.2d 69, 73 (1954).
¶ 49 III. CONCLUSION
- 24 - ¶ 50 For the reasons stated, we affirm in part and reverse in part. We remand to the
trial court with instructions for defendant to pay the unsatisfied portion of the judgment
($808.76) plus the accrued interest on that amount.
¶ 51 Affirmed in part and reversed in part; cause remanded with directions.
- 25 -