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Kramer v. Mt. Carmel Shelter Care Facility, Inc.
State: Illinois
Court: 5th District Appellate
Docket No: 5-99-0152 Rel
Case Date: 05/30/2001
                         NOTICE
Decision filed 05/30/01.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-99-0152

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


RON KRAMER and JAMES REICHERT, as
Shareholders of Mt. Carmel Shelter Care
facility, Inc., on Behalf of All Other Similarly
situated Shareholders of Mt. Carmel Shelter
Care Facility, Inc.,

          Plaintiffs-Appellees,
v.

MT. CARMEL SHELTER CARE FACILITY,
INC., KIRBY MADDEN, and MADDEN
FINANCIAL SERVICES, INC., and JAMES
MORRIS,

          Defendants,
and

JERRY A. ROSS and DOROTHY W. ROSS,

          Defendants-Appellants.

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Appeal from the
Circuit Court of
Williamson County.




No. 90-CH-68









Honorable
Ronald R. Eckiss,
Judge, presiding.

JUSTICE GOLDENHERSH delivered the opinion of the court:

This is the second time this cause has been before us. The instant case started as adispute between minority and majority shareholders in a nursing home. Don Kramer andJames Reichert (plaintiffs) are minority shareholders in Mt. Carmel Shelter Care Facility,Inc. (Mt. Carmel), a nursing home incorporated under the laws of Delaware. Jerry A. Rossand Dorothy W. Ross (defendants) are majority shareholders in Mt. Carmel. Kirby Maddenand Madden Financial Services, Inc., who manage Mt. Carmel, were also defendants, butthey take no part in this appeal.

Originally, plaintiffs brought suit on behalf of the shareholders of Mt. Carmel and forthe benefit of Mt. Carmel, alleging a breach of fiduciary duty and a conspiracy to breachfiduciary duty through mismanagement of the corporation. Plaintiffs claimed that Jerry Rosspaid both himself and his wife excessive officers' salaries and directors' fees with respect toMt. Carmel from March 1979 through the date the original complaint was filed. Plaintiffsalso claimed that Kirby Madden accepted a position as a director of Mt. Carmel and enteredinto a management contract in order to personally enrich not only himself but also JerryRoss.

The facts adduced at the first trial need not be set out again in this appeal. It isenough to say that after a bench trial, the trial court found that defendants had drawnexcessive salaries and directors' fees, and the court ordered defendants to repay thecorporation all salaries and directors' fees paid to them from May 24, 1985, to March 26,1996, totaling $477,361.66, in addition to prejudgment interest calculated at $190,298.73. The original judgment order was entered on March 26, 1996. A supplemental judgmentorder was entered by the trial court on August 28, 1996, in which defendants were orderedto pay plaintiffs' attorney fees totaling $149,880, punitive damages in the amount of$335,000, and costs in the amount of $313, for a total judgment of $1,152,853.39. Defendants appealed, and plaintiffs cross-appealed.

In the first appeal, defendants argued, inter alia, that the trial court erred in orderingJerry Ross to forfeit his entire salary. We agreed, and in an unpublished order pursuant toSupreme Court Rule 23 (166 Ill. 2d R. 23), we reversed that part of the judgment orderinga forfeiture of Jerry Ross's salary paid since May 24, 1985. Kramer v. Mt. Carmel ShelterCare Facility, Inc., No. 5-96-0665 (May 12, 1998). We found that Jerry Ross's salary wasreasonable compensation in light of his experience and the work he performed. We alsoreversed the amount of prejudgment interest awarded, and we remanded for the trial courtto recalculate the amount of prejudgment interest owed, taking into account the fact thatJerry Ross's salary was not to be considered in the calculation. The remainder of the trialcourt's judgment was affirmed.

On remand, defendants argued that postjudgment interest ran from the date of thenew judgment on remand, while plaintiffs argued that postjudgment interest ran from thedates of the original judgment, March 26, 1996, and August 28, 1996. The trial court agreedwith plaintiffs and ruled that postjudgment interest on the affirmed portions of the judgmentwas unaffected by our Rule 23 order and that interest continued to accrue from the dates ofthe original judgment. On January 27, 1999, the trial court entered a supplemental judgmentorder that recalculated plaintiffs' award of prejudgment interest at $62,161.09. Defendantsnow appeal.

The issue we are asked to address is whether the trial court erred in allowing plaintiffsto recover postjudgment interest from the dates of the original judgment. Defendantscontend that a judgment is indivisible and that when it is necessary to enter a new or amodified judgment on remand, postjudgment interest runs from the date of the judgment onremand. In their brief, defendants also alleged that postjudgment interest should not haveaccrued during the pendency of the first appeal since plaintiffs cross-appealed and soughtto increase the amount of the judgment; however, in their reply brief, defendantsacknowledge that plaintiffs' cross-appeal does not bar the accrual of postjudgment interestduring the appeal (see Pinkstaff v. Pennsylvania R.R. Co., 31 Ill. 2d 518, 202 N.E.2d 512(1964)), and they withdraw that argument. However, defendants insist that the rule is thatif a judgment is modified or reversed in part on appeal and the cause is remanded for arecalculation of the judgment, postjudgment interest on the amount does not begin to rununtil the date of the entry of the final judgment on remand. We disagree.

Section 2-1303 of the Code of Civil Procedure (the Code) provides in pertinent partas follows:

"Interest on judgment. Judgments recovered in any court shall draw interestat the rate of 9% per annum from the date of the judgment until satisfied ***. Whenjudgment is entered upon any award, report[,] or verdict, interest shall be computedat the above rate, from the time when made or rendered to the time of enteringjudgment upon the same, and included in the judgment. Interest shall be computedand charged only on the unsatisfied portion of the judgment as it exists from time totime. The judgment debtor may[,] by tender of payment of the judgment, costs[,] andinterest accrued to the date of tender, stop the further accrual of interest on suchjudgment notwithstanding the prosecution of an appeal[] or other steps to reverse,vacate[,] or modify the judgment." 735 ILCS 5/2-1303 (West 1996).

It is well-accepted that filing an appeal does not toll the accrual of statutory interest. Pinkstaff v. Pennsylvania R.R. Co., 31 Ill. 2d 518, 202 N.E.2d 512 (1964). However, thequestion in the instant case is whether our determination in the first case to reverse thatportion of the trial court's judgment which ordered a forfeiture of Jerry Ross's salary and toremand for a recalculation of prejudgment interest prohibits the accrual of statutory interest. Because all judgment amounts upon which postjudgment interest accrued remained definiteand certain upon remand, we find that interest continued to accrue.

As litigation becomes more complex and prolonged, delineating the specific datefrom which to measure the accrual of interest on a judgment that has been partially or totallyset aside or modified on appeal becomes more problematic. Each case must be determinedon its own unique facts. In order to arrive at a specific date from which to measure theaccrual of interest, it is necessary to scrutinize the events leading up to the appeal. SeeThatch v. Missouri Pacific R.R. Co., 69 Ill. App. 3d 48, 51-52, 386 N.E.2d 1180, 1181-82(1979). An award of interest on a money judgment requires that the amount of money owedis certain and that the judgment debtor enjoyed the improper use of the money during theperiod for which interest is to be awarded. Robinson v. Robinson, 140 Ill. App. 3d 610, 611,488 N.E.2d 1349, 1351 (1986).

Here, it is important to note that the first appeal culminated in most of the judgmentbeing affirmed. The forfeiture of Dorothy Ross's salary, the forfeiture of directors' fees paidto Dorothy and Jerry Ross since May 24, 1985, the award of attorney fees and costs, and theaward of punitive damages were all affirmed. Only that portion of the judgment orderingthe forfeiture of Jerry Ross's salary paid since May 24, 1985, was reversed, along with acorresponding recalculation of prejudgment interest. Despite this court's reversal andremand, we believe that the judgment amounts upon which postjudgment interest accruedremained definite and certain. Defendants' argument that they did not know the specificamount to tender to stop the accrual of postjudgment interest until after the supplementaljudgment order upon remand is unconvincing. Defendants could have tendered full paymentof the judgment, interests, and costs to stop the further accrual of interest following thiscourt's prior decision. The calculations were relatively easy to make. The judgment wasmerely reduced by the amount of Jerry Ross's salary, which we found to be reasonable, anda corresponding amount of prejudgment interest.

Policy considerations underlying the accrual of postjudgment interest support ourconclusion. The rationale behind section 2-1303 of the Code is to make the judgmentcreditor whole by requiring the judgment debtor to give up the use of the money, therebyallowing the judgment creditor to use the funds to earn interest if he chooses to do so whilethe matter is pending. Halloran v. Dickerson, 287 Ill. App. 3d 857, 865, 679 N.E.2d 774,780 (1997). It is simply not fair to allow the judgment debtor to continue to use the moneythat is rightfully the plaintiffs'. In the instant case, defendants had wrongfully taken nearly$500,000 in salaries and fees and had the use and the benefit of the misappropriated fundsfor nearly 10 years. Jerry Ross's conduct was found to be malicious and vindictive. Theextent of defendants' liability was settled, and our remand was nothing more than a simplerecalculation. Under these circumstances, we find that the trial court did not err in allowingplaintiffs to recover postjudgment interest from the dates of the original judgment.

Defendants cite several cases in support of their proposition that interest failed toaccrue until after the judgment on remand, including, inter alia, Rosenbaum v. Rosenbaum,94 Ill. App. 3d 352, 418 N.E.2d 939 (1981), Presbyterian Distribution Service v. ChicagoNational Bank, 36 Ill. App. 2d 1, 183 N.E.2d 525 (1962), and Thatch v. Missouri PacificR.R. Co., 69 Ill. App. 3d 48, 386 N.E.2d 1180 (1979). However, none of these cases iscontrolling here.

For example, in Rosenbaum, the original judgment was entered on September 6,1977, and directed Mrs. Rosenbaum to pay one-half of her husband's attorney fees in thepartition action. 94 Ill. App. 3d at 356, 418 N.E.2d at 942. On appeal, the order wasreversed and the cause was remanded. On remand, the trial court ordered Mr. Rosenbaumto pay Mrs. Rosenbaum. Mrs. Rosenbaum argued that she was entitled to interest fromSeptember 6, 1977, rather than December 26, 1979, the date when the trial court directed therepayment of her recalculated share of the partition proceeds. Rosenbaum, 94 Ill. App. 3dat 356, 418 N.E.2d at 942. The Rosenbaum court disagreed with Mrs. Rosenbaum, due tothe fact that the exact amount owed was not calculated until the disposition of the casefollowing the remand, and held that interest on the judgment should run from the date of thesecond decree, December 26, 1979. 94 Ill. App. 3d at 356, 418 N.E.2d at 943. A contraryholding would have been unreasonable in light of the fact that Mr. Rosenbaum was initiallythe judgment creditor. Mr. Rosenbaum could not tender the amount of the judgment untilhe became the judgment debtor after the first appeal. However, in the instant case,defendants remained the judgment debtors throughout the litigation.

Likewise, Presbyterian Distribution Service is distinguishable from the case at bar. That case was before the appellate court for the third time and involved the right of a tenantto terminate a lease with his landlord pursuant to an untenantability clause. PresbyterianDistribution Service, 36 Ill. App. 2d at 2, 183 N.E.2d at 525-26. The reviewing courtremanded the cause with directions to the trial court to enter damages in accordance with itsdirections. At the time the cause was remanded, damages were undetermined. ThePresbyterian Distribution Service court held that since the exact amount of damages wasundetermined until the trial court disposed of the case on remand, statutory interest did notrun until the date of the amended decree. 36 Ill. App. 2d at 6, 183 N.E.2d at 525. In theinstant case, liability was clearly established, most of the judgment was affirmed, and thecause was remanded for a simple recalculation that defendants could have made on theirown.

Thatch, a Fifth District case, is also distinguishable from the instant case. In that case,the jury awarded the plaintiff $249,200, and the trial court entered a judgment thereon. Onappeal, the reviewing court ruled that the jury should have been allowed to consider theplaintiff's contributory negligence. Therefore, a new trial was held on the issue of damages,and a verdict was returned awarding the plaintiff $236,740. Thatch, 69 Ill. App. 3d at 50,386 N.E.2d at 1181. The trial court granted the plaintiff interest on this sum from the timeof the original verdict. The Thatch court disagreed, stating that since the exact amount ofdamages was not known at the time of the original verdict, it would be inequitable to compelthe defendant to pay interest from that time. "The exact amount of damages was not knownuntil the trial court submitted the issue of contributory negligence to the jury." Thatch, 69Ill. App. 3d at 52, 386 N.E.2d at 1182. The Thatch court further noted that it would havebeen unwise for the defendant to tender payment of the original award, knowing that suchpayment would probably be in excess of the final award, that the plaintiff would have hadthe use of money rightfully belonging to the defendant, and that the defendant would thenhave had to collect the excess payment from the plaintiff. Thatch, 69 Ill. App. 3d at 52, 386N.E.2d at 1182.

The instant case is distinguishable from Thatch because here there was no possibilityfor increased liability on remand. The exact amount of damages was easily calculated. Nouncertainty was created by this court's reversal of that portion of the trial court's orderforfeiting Jerry Ross's salary, nor was any uncertainty created by remanding the cause for arecalculation of prejudgment interest. We find that the instant case is more akin to Phelpsv. O'Malley, 187 Ill. App. 3d 150, 543 N.E.2d 311 (1989).

In Phelps, the defendant first appealed from a judgment against him in a breach-of-contract action in the amount of $387,500. On appeal, the reviewing court affirmed thedefendant's liability but instructed the trial court to reduce the judgment to $379,000,reflecting the evidence at the trial of the actual sales prices. The trial court followed thereviewing court's mandate and entered a judgment for the plaintiff for $379,000, effectivefrom the date of the original judgment, with postjudgment interest to accrue from the dateof the original judgment. Phelps, 187 Ill. App. 3d at 151-52, 543 N.E.2d at 312. Thedefendant appealed the award of interest measured from the date of the original judgment,relying on the same cases-Phelps, Rosenbaum, Presbyterian Distribution Service, andThatch-relied on by defendants herein. Phelps, 187 Ill. App. 3d at 156-57, 543 N.E.2d at315-16. The Phelps court found those cases distinguishable because the mandate by thePhelps court in the first appeal specifically provided the amount the plaintiff should recoveras $379,000, thus giving the defendant the opportunity to halt statutory interest by tenderingthat amount. Phelps, 187 Ill. App. 3d at 157, 543 N.E.2d at 316. The Phelps court went onto differentiate between those cases in which an appeal results in an increase in the awardand those cases in which an appeal results in a decrease in the award. Specifically, thePhelps court noted that when an award is increased, a defendant cannot halt the accrual ofinterest until after remand because by tendering the lower amount, the defendant would notpay the judgment in full. Nothing less than a full, formal tender in compliance with thestatute operates to stop the accrual of interest on a judgment. However, where a judgmentdebtor realizes a reduction of liability after an appeal, the judgment debtor can halt the totalaccrual of interest by initially paying the greater amount of the original judgment. Phelps,187 Ill. App. 3d at 158, 543 N.E.2d at 316-17.

Likewise in the instant case, defendants were not facing the possibility of anincreased judgment amount on remand. Most of the judgment was affirmed, but a remandwas necessary in order to reduce the judgment amount in a specific manner. This courtfound that Jerry Ross's salary over a 10-year period was reasonable, and we ordered thejudgment reduced by that amount, as well as a corresponding reduction in prejudgmentinterest. Defendants, therefore, could have halted the accrual of interest by paying thegreater amount of the original judgment. In the alternative, a simple recalculation wouldhave determined the lower amount actually owed. Defendants needed only to reduce theoriginal judgment amount by Jerry Ross's salary, recalculate interest, and tender such amountin order to stop the accrual of interest and avoid further litigation. To hold otherwise wouldbe to allow defendants, the judgment debtors, to enjoy the improper use of the money duringthe period of time interest was accruing.

We have reviewed all the arguments and cases cited by defendants, but we areunconvinced that postjudgment interest should run from the date of the judgment on remand. Each case must be decided on its own unique facts, and the facts here support the trial court'sdetermination. We agree with the trial court that plaintiffs are entitled to interest from thedate of the original judgment.

For the foregoing reasons, the judgment of the circuit court of Williamson Countyis hereby affirmed.

Affirmed.

HOPKINS and KUEHN, JJ., concur.

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