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FOURTH DIVISION

DECEMBER 5, 2002

1-00-3357

JUSTICE HARTMAN delivered the opinion of the court:

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

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

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

On November 30, 1995, defendant issued a check payable toplaintiff in the sum of $130,250, which included neither interestnor costs. Defendant had typed on the check "in full and finalsatisfaction of Case # 91 L 6170." The check was sent fromdefendant's attorney to plaintiff's attorney with a letter datedDecember 6, 1995, which stated:

"Pursuant to the verdict of the jury withrespect to the above-referenced matter and thejudgment entered *** on November 22, 1995,enclosed please find my client's check in theamount of One Hundred Thirty Thousand TwoHundred Fifty Dollars ($130,250) payable toPlaintiff, Phillip Niemeyer [sic] and your lawfirm in full and final satisfaction thereof."

Plaintiff did not accept defendant's payment and the check wasreturned.

On December 17, 1999, this court affirmed the judgment ondirect 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 Niemeyer v. Wendy's International, Inc., No. 1-98-0689 (1999) (unpublished order under Supreme Court Rule 23).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, includinginterest and costs, pursuant to section 2-1303 of the Code.⁽¹⁾ OnJuly 5, 2000, defendant issued a second check to plaintiff in theamount of the jury verdict, which was delivered to plaintiff onJuly 10, 2000. The record does not show whether plaintiff returnedthis check to defendant.

Plaintiff argued in his brief supporting the motion thatdefendant wrongfully attempted to force him to accept a check "infull and final satisfaction" of the judgment in the amount of theverdict, with no offer to pay interest or costs. Plaintiffinsisted that defendant never offered him a legally sufficienttender because the payment did not include interest and costs.Because defendant failed to offer a valid tender, plaintiffcontended that section 2-1303 entitled him to interest and costsaccrued from the date judgment was entered, through the pendency ofhis appeal and thereafter, until defendant submits payment incompliance with the statute.

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

The circuit court heard argument on the motion and ordereddefendant to pay plaintiff interest on the judgment from November22, 1995 to December 6, 1995.⁽²⁾ In addition, the court ordereddefendant to pay plaintiff costs totaling $17,684.01. Plaintiffappeals the court's order solely with respect to payment ofinterest.

Plaintiff asserts that the circuit court erred by not orderingdefendant to pay interest accrued from the date of judgment,through pendency of his appeal and thereafter, until the submissionof valid tender. According to plaintiff, defendant tried to"connive" him into accepting payment without interest and costs inviolation of section 2-1303 of the Code. Plaintiff contends thatdefendant's checks did not constitute a legally valid tender andthat 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 notin contravention of section 2-1303 because it ordered payment ofinterest until December 6, 1995. Defendant argues that itsDecember 6, 1995 delivery of the $130,250 check constituted a legaltender for the full amount of the money owed on the judgment, andthat plaintiff's failure to object timely to the tender waived hisright to further accrual of interest, citing Shuster.

The decision to allow statutory interest lies within the sounddiscretion of the circuit court and will not be disturbed absent anabuse 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 todraw interest on the judgment during the pendency of an appeal. 735 ILCS 5/2-1303 (West 2000); Yassin v. Certified Grocers ofIllinois, Inc., 133 Ill. 2d 458, 462, 551 N.E.2d 1319 (1990)(Yassin). Under section 2-1303, "[j]udgments recovered in anycourt shall draw interest at the rate of 9% per annum from the dateof the judgment until satisfied ***." 735 ILCS 5/2-1303 (West2000). The language of section 2-1303 is mandatory, "positive andself-executing." Department of Public Aid ex rel. McGinnis v.McGinnis, 268 Ill. App. 3d 123, 132, 643 N.E.2d 281 (1994);Robinson v. Robinson, 140 Ill. App. 3d 610, 612, 488 N.E.2d 1349(1986).

A judgment creditor's right to draw interest on the judgmentduring pendency of the appeal stops, however, if the judgmentdebtor tenders payment of the judgment, costs and interest accruedon the judgment to the date of tender. Yassin, 133 Ill. 2d at 462. Likewise, accrual of interest during pendency of an appeal stops ifthe judgment creditor rejects the judgment debtor's offer to tenderpayment of the judgment, costs and interest. Yassin, 133 Ill. 2dat 462-63; Casciola v. Gardner, 101 Ill. App. 3d 852, 855-56, 428N.E.2d 921 (1981).

Because only a valid tender can stop the accrual of interest(Pinkstaff v. Pennsylvania Railroad Co., 31 Ill. 2d 518, 525, 202N.E.2d 512 (1964) (Pinkstaff)), the action of the judgment debtorin making the tender controls, not the judgment creditor'sacceptance or rejection. Thomas v. Missouri-Illinois Railroad Co.,30 Ill. App. 3d 40, 43, 332 N.E.2d 139 (1975) (Thomas). Therefore,the issue of whether plaintiff waived his right to further accrualof interest on the judgment is contingent upon whether defendant'soffers of payment constituted a legally sufficient tender.

Tender is defined as "[a]n unconditional offer of money orperformance to satisfy a debt or obligation ***." Black's LawDictionary 1479-80 (7th ed. 1999). "Generally, a tender mustinclude everything to which the creditor is entitled, and a tenderof any less sum is nugatory and ineffective as a tender. It mustinclude interest due, costs then due or accrued, and attorneys'fees to which the creditor has become entitled by force of theagreement of the parties, as by commencement of suit or otherwise." 74 Am. Jur. 2d Tender