{ "id": 887229, "name": "TONI L. DECKER, Special Adm'r of the Estate of Richard Decker, Deceased, Plaintiff-Appellee, v. ST. MARY'S HOSPITAL, Defendant-Appellant", "name_abbreviation": "Decker v. St. Mary's Hospital", "decision_date": "1994-09-09", "docket_number": "No. 5-93-0708", "first_page": "523", "last_page": "530", "citations": [ { "type": "official", "cite": "266 Ill. App. 3d 523" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "173 Ill. App. 3d 471", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3478846 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/173/0471-01" ] }, { "cite": "595 N.E.2d 593", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5211835 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0001-01" ] }, { "cite": "386 N.E.2d 1180", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "69 Ill. App. 3d 48", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3240781 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0048-01" ] }, { "cite": "619 N.E.2d 537", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "249 Ill. App. 3d 802", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5409705 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/249/0802-01" ] }, { "cite": "589 N.E.2d 1074", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "226 Ill. App. 3d 724", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5239272 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/226/0724-01" ] }, { "cite": "129 N.E.2d 673", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "6 Ill. 2d 577", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2708677 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-2d/6/0577-01" ] }, { "cite": "588 N.E.2d 1119", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1122" } ], "opinion_index": 0 }, { "cite": "147 Ill. 2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278337 ], "pin_cites": [ { "page": "48" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0040-01" ] }, { "cite": "610 N.E.2d 683", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "242 Ill. App. 3d 781", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5120609 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0781-01" ] }, { "cite": "328 N.E.2d 301", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. 2d 418", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5416375 ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0418-01" ] }, { "cite": "161 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783180 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-2d/161/0357-01" ] }, { "cite": "543 N.E.2d 1328", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "188 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2689735 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0193-01" ] }, { "cite": "529 N.E.2d 288", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "291" } ], "opinion_index": 0 }, { "cite": "174 Ill. App. 3d 966", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3515864 ], "pin_cites": [ { "page": "971" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0966-01" ] }, { "cite": "403 N.E.2d 1262", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1264" } ], "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 424", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5552233 ], "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0424-01" ] }, { "cite": "604 N.E.2d 536", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "237 Ill. App. 3d 606", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5162483 ], "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0606-01" ] }, { "cite": "565 N.E.2d 708", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 255", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2553048 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0255-01" ] }, { "cite": "526 N.E.2d 364", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 } ], "analysis": { "cardinality": 772, "char_count": 17400, "ocr_confidence": 0.782, "pagerank": { "raw": 9.684074271678918e-08, "percentile": 0.5292889662679175 }, "sha256": "fb29b50b9e84406b24af250c762007e9a7164708141e8eabcf210e8467636e4b", "simhash": "1:91d97665f28b5d74", "word_count": 3015 }, "last_updated": "2023-07-14T15:25:32.104609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TONI L. DECKER, Special Adm\u2019r of the Estate of Richard Decker, Deceased, Plaintiff-Appellee, v. ST. MARY\u2019S HOSPITAL, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE MAAG\ndelivered the opinion of the court:\nThis is a case with a tortured, and seemingly endless, history. Rather than restating this history in detail, we simply refer the parties to our earlier decision, Decker v. St. Mary\u2019s Hospital (1993), 249 Ill. App. 3d 802, 619 N.E.2d 537 (hereinafter Decker 7). We will only describe the facts pertinent to our present decision.\nOn May 29, 1990, a jury rendered a verdict in favor of the plaintiff, Decker, and against the defendant, St. Mary\u2019s Hospital, in the amount of $360,000. Post-trial motions were filed by both parties. The defendant\u2019s motion was denied. Plaintiff\u2019s motion for a new trial on damages only was allowed. Upon retrial, a different jury, on December 12, 1990, assessed the damages in the sum of $1 million. The defendant filed a post-trial motion, which was denied. The defendant then appealed. This court affirmed that judgment in Decker I.\nOn September 29, 1993, plaintiff filed a motion to execute on the appeal bond. The motion sought the $1 million judgment amount, one year\u2019s prejudgment interest as a sanction, and interest on the $1 million judgment amount from May 29, 1990, the date of the first verdict.\nThe defendant objected to the payment of prejudgment interest. It also objected to paying interest on the judgment from May 29, 1990. Defendant further claimed that it was entitled to a setoff of $180,000. The requested setoff was based upon the fact that prior to trial plaintiff had settled with another defendant. Dr. Gandhy, for $180,000.\nAfter hearing, the defendant\u2019s request for setoff was denied, and defendant was ordered to pay interest on the $1 million judgment amount from May 29, 1990, the date of the first verdict. The request for one year of prejudgment interest was denied. It is from that order that defendant appeals.\nTwo issues are raised by the defendant on appeal.\n(1) Did the trial court err in computing interest from May 29, 1990, the date of the first verdict?\n(2) Did the trial court err in refusing to reduce the $1 million judgment amount by $180,000 to reflect the settlement with Dr. Gandhy?\nI\nThe defendant claims that it was improper to compute interest from the date of the first trial. According to defendant, when a new trial on damages only was ordered, there was no judgment in effect against which interest could accrue. Defendant further argues that no sum certain was due until the verdict was rendered in the second trial and thus it was impossible to stop the accrual of interest by paying the judgment amount.\nPlaintiff counters that the award of interest running from the first trial was made as a sanction to punish the defendant for misconduct in the first trial.\nThere is no question that in granting plaintiff\u2019s motion for a new trial on damages only, after the May 29,1990, verdict, the trial court was attempting to remedy conduct on defendant\u2019s part that contributed to a lower verdict amount than was ultimately awarded upon retrial. However, contrary to plaintiff\u2019s assertion, the trial court\u2019s order that is the subject of this appeal, i.e,. the order awarding interest from May 29, 1990, expressly denied plaintiff\u2019s request for sanctions. While we express no opinion on whether the trial court could have ordered interest to run from the date of the first verdict as a sanction, it is clear that, in any event, that was not done.\nThis leaves us with a simple question of law to decide. That question is: \"When a judgment on liability and damages is entered, and the damage award is then set aside by the trial court and a new trial on damages only is ordered, does interest run from the date of the first verdict or the date of the verdict rendered upon retrial? For the reasons which follow, we conclude that interest runs from the date of the verdict rendered upon retrial, not the date of the original verdict and judgment.\nOur starting point is the Civil Practice Law. Section 2 \u2014 1303 of the Civil Practice Law (735 ILCS 5/2 \u2014 1303 (West 1992)) provides:\n\"Judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied or 6% per annum when the judgment debtor is a unit of local government, as defined in Section 1 of Article VII of the Constitution, a school district, a community college district, or any other governmental entity. 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 charged only on the unsatisfied portion of the judgment as it exists from time to time. The judgment debtor may by tender of payment of judgment, costs and interest accrued to the date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of an appeal, or other steps to reverse, vacate or modify the judgment.\u201d\nWe believe that the \"judgment\u201d referred to in this section is the judgment entered which disposes of both the liability issue and the damage issue. This is clear from the face of the statute, because in the final sentence of the statute a judgment debtor is permitted to stop the further accrual of interest on the judgment by tendering payment of the judgment, costs, and interest accrued up to the time of tender. Until such time as the damage amount is finally determined, there is no way to know how much money must be paid to stop the further accrual of interest. See Thatch v. Missouri Pacific R.R. Co. (1979), 69 Ill. App. 3d 48, 386 N.E.2d 1180; Poe v. Industrial Comm\u2019n (1992), 230 Ill. App. 3d 1, 595 N.E.2d 593.\nWhile we understand the plaintiff's frustration with having to retry the damage aspect of the case because of trial conduct of the defendant which led to a lowered verdict in the first trial, then receiving interest on the ultimate award only from the date of the verdict rendered upon retrial, we can do nothing to remedy the situation. It is true that the defendant profited from its own trial misconduct and delayed the imposition of a damage award and the accrual of interest for more than six months. This is an injustice. The remedy must be sought from the legislature, not this court. Accordingly, we conclude that the trial court erred in awarding interest from May 29, 1990. Due to the terms of the statute, interest may only be allowed from the date of the verdict in the second trial, December 12, 1990.\nII\nThe second issue which confronts us deals with whether the $1 million judgment amount should have been reduced to reflect the settlement with Dr. Gandhy. Before answering this question, we must trace the procedural posture and history of this case.\nAt no time on or after February 15, 1989 (the date of Dr. Gandhy\u2019s settlement), through and including the denial of its petition for leave to appeal filed with the supreme court, did the defendant ever request that the judgment be reduced to reflect Dr. Gandhy\u2019s settlement. It was only after the $1 million judgment in plaintiff\u2019s favor was affirmed and became final and only after plaintiff proceeded to execute on that judgment that the defendant ever sought a reduction. It is true that the defendant filed an affirmative defense alleging that the release executed in favor of Dr. Gandhy also released it from all liability. It is also true that defendant raised this claim in each of its post-trial motions. But that affirmative defense was stricken by the trial court, the post-trial motion was denied, and defendant did not raise the matter as an issue on appeal in Decker I.\nIn any event, the issue before us is completely distinct from the issue raised by the defendant. What defendant claimed was that it was no longer liable at all by virtue of a release. It did not claim that any judgment against it should be reduced by virtue of a settlement. Now at this late date the defendant wants thi 3 court to delve into the merits of a final judgment that has been affirmed on appeal and that our supreme court has refused to hear.\nPlaintiff argues that defendant has waived this issue because it failed to plead setoff as an affirmative defense under section 2 \u2014 608 of the Civil Practice Law (735 ILCS 5/2 \u2014 608 (West 1992)). Vieweg v. Friedman (1988), 173 Ill. App. 3d 471, 526 N.E.2d 364, is relied upon to support this contention. Defendant responds that the type of setoff discussed in Vieweg is different from the setoff involved in the case at bar. Defendant cites Barkei v. Delnor Hospital (1990), 207 Ill. App. 3d 255, 565 N.E.2d 708, to illustrate the distinction. Barkei essentially holds that the type of setoff involved when a joint tortfeasor settles and pays a sum of money to be released is akin to the concept of satisfaction of judgment, rather than being in the nature of a counterclaim. Accordingly, the Barkei court held that the issue of setoff could be raised postjudgment if premised on a settlement with a joint tortfeasor.\nWe disagree. We conclude that while a claimed setoff need not be pleaded as an affirmative defense, neither should the issue be one that can be raised at the execution stage.\nThis court explained in Hentze v. Unverfehrt (1992), 237 Ill. App. 3d 606, 612, 604 N.E.2d 536, 541:\n\"[The] [s]etoff [addressed in section 2 \u2014 608] refers to the situation when a defendant has a distinct cause of action against the same plaintiff who has filed suit against him. [Citation.] The procedural concept of setoff is now subsumed under the term \u2019counterclaim.\u2019 \u201d\nThe type of setoff defendant seeks in this case is not in the nature of a counterclaim. Rather, what is being sought is a mere reduction in damages. Therefore, while it would be appropriate to plead this request for setoff as an affirmative defense, we do not believe it is mandatory. It must, however, be raised at some point before the judgment becomes final.\nIn construing section 2 \u2014 608, the court in Miller v. Bank of Pecatonica (1980), 83 Ill. App. 3d 424, 427, 403 N.E.2d 1262, 1264, stated:\n\"[W]hile this section is designed to simplify the litigation between parties by providing that all issues can be tried in one forum at the same time, it does not require a defendant to immediately assert his rights by way of counterclaim if it would be inconvenient or strategically inadvisable for him to do so. The word 'may\u2019 in the quoted words of the statute indicate^] an election is available to the defendant and the cases have so interpreted this section.\u201d\nLater in YMCA v. Midland Architects, Inc. (1988), 174 Ill. App. 3d 966, 971, 529 N.E.2d 288, 291, the court stated: \"In the case of a pretrial settlement with some but not all of the defendants, assertion of defendant\u2019s right to setoff in a motion following the trial is appropriate and 'strategically advisable.\u2019 \u201d To this we must add that it is not only \"appropriate\u201d and \"advisable,\u201d it is mandatory if the defendant desires to gain the benefit of the prior settlement.\nWe explained in Wheeler v. Roselawn Memory Gardens (1989), 188 Ill. App. 3d 193, 543 N.E.2d 1328, that a motion requesting a reduction of the judgment due to a codefendant\u2019s pretrial settlement is not a true post-trial motion. The typical post-trial motion seeks to correct errors of law made during trial. In contrast, raising the defense of setoff or moving the court to modify the judgment to reflect the pretrial settlement seeks to modify the judgment.\nThe issue of whether to allow a setoff due to a pretrial settlement with a codefendant is not a matter of simple arithmetic. Our supreme court recently explained in Patton v. Carbondale Clinic, S.C. (1994), 161 Ill. 2d 357, that a setoff or reduction in the judgment by virtue of a joint tortfeasor\u2019s pretrial settlement is not automatic. Similarly, in Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 328 N.E.2d 301, the court held that to determine whether a setoff is appropriate the court must consider whether the plaintiff has distinct causes of action against each defendant and whether one single indivisible injury is present or whether separate injuries can be identified.\nWe believe that the best time to make this determination is at the time of the good-faith hearing on the settlement, but in no case should the issue be raised later than the post-trial motion stage.\nWe have been lenient in the past and, despite claims of waiver, have agreed to consider a request for setoff in the initial appeal even though not raised at the post-trial motion stage. (Kochan v. Owens-Coming Fiberglass Corp. (1993), 242 Ill. App. 3d 781, 610 N.E.2d 683.) But even in that case we remanded the matter to the trial court to determine if a setoff was appropriate. We note that the defendant in Rochan at least raised the issue in the initial appeal. Further, the waiver doctrine is a limitation on the parties, not this court, and while a matter may have been waived by failure to raise it, we may in the interest of justice consider the point. (Welch v. Johnson (1992), 147 Ill. 2d 40, 48, 588 N.E.2d 1119, 1122.) We may not, however, reopen a final judgment to consider points not raised before the judgment became final. Moreover, we will look with disfavor in the future on tardy requests for setoff like those entertained in Rochan.\nIn the case at bar, the defendant failed at the time of the hearing on Dr. Gandhy\u2019s settlement to request a setoff; failed to plead setoff as an affirmative defense; failed to request a setoff in its post-trial motion; and failed to request a setoff in its initial appeal on the merits of the case.\nTo now request a setoff at the execution stage would require the trial court or this court to inquire again into the merits of the cause of action against Dr. Gandhy, the terms of her settlement, and the merits of the cause of action against the defendant, St. Mary\u2019s Hospital. We have no authority to reopen the judgment as requested. It is final.\nAll cases must have an end and a point where the only matter left to be done is execution on the judgment. The judgment order entered against the defendant recited that $1 million was owed. If the defendant believed that the amount stated was erroneous, it should have made the claim within the 30 days allowed for filing its post-trial motions. 735 ILCS 5/2 \u2014 1202(c) (West 1992).\nIt is easy to argue that no harm is done by taking up the issue at this time, particularly since the same circuit court that heard the case was the one that defendant ultimately requested a setoff from. What would happen, however, if the defendant was a Texas corporation and all of its assets were in Texas? If the plaintiff went to Texas to enforce his judgment in the Texas courts, would the Texas judge be called upon to investigate the merits of the underlying case, apply the rules announced in Patton, and weigh the factors that must be considered, all in a case about which he knows nothing? We think not! The Texas court would only have before it a judgment order reciting that $1 million is owed. We believe that the judgment order is the final word on what is owed. If the defendant believed it should be modified or reduced, the time to say so was before the judgment became final.\nThis is consistent with other statutorily provided methods for reduction in the amount stated in a judgment order. For example, sections 2 \u2014 1205 and 2 \u2014 1205.1 of the Civil Practice Law (735 ILCS 5/2 \u2014 1205, 2 \u2014 1205.1 (West 1992)) deal with certain types of collateral payments received by the plaintiff. When these statutes apply under the facts of a given case, the defendant is entitled to request a reduction in the judgment. However, the request must be made within 30 days after the judgment is entered. Obviously, the legislature did not want the courts to be faced with the same situation the defendant is now trying to thrust upon us.\nIt may well be that the defendant was entitled to a setoff. It may be that the judgment order stated a greater amount than was really owed. It may also be that no setoff was appropriate. But when a judgment becomes final, even if it is wrong, that judgment is just as binding as any other. (Allendorf v. Daily (1955), 6 Ill. 2d 577, 129 N.E.2d 673.) A judgment is final when it terminates the litigation so that the only remaining issue is proceeding with execution. Elliott v. LRSL Enterprises, Inc. (1992), 226 Ill. App. 3d 724, 589 N.E.2d 1074.\nWe are at the execution stage. The judgment was affirmed. The circuit court did not err in denying the requested setoff.\nCONCLUSION\nAccordingly, we conclude that the circuit court erred in computing interest from May 29, 1990. The date from which interest must be computed is December 12, 1990. Therefore, the computation of interest is reversed, and this cause is remanded for the recomputation of interest in accordance with this opinion. Further, we find no error in the circuit court\u2019s refusal to grant the setoff requested.\nAffirmed in part; reversed in part and remanded.\nLEWIS, P.J., and RARICK, J., concur.", "type": "majority", "author": "JUSTICE MAAG" } ], "attorneys": [ "Carl W. Lee and Thomas R. Peters, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellant.", "Amiel Cueto, of Cueto, Cueto & Cueto, Ltd., of Belleville, for appellee." ], "corrections": "", "head_matter": "TONI L. DECKER, Special Adm\u2019r of the Estate of Richard Decker, Deceased, Plaintiff-Appellee, v. ST. MARY\u2019S HOSPITAL, Defendant-Appellant.\nFifth District\nNo. 5 \u2014 93\u20140708\nOpinion filed September 9, 1994.\nCarl W. Lee and Thomas R. Peters, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellant.\nAmiel Cueto, of Cueto, Cueto & Cueto, Ltd., of Belleville, for appellee." }, "file_name": "0523-01", "first_page_order": 541, "last_page_order": 548 }