THIRD DIVISION August 31, 2022

No. 1-21-0803 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

4220 KILDARE, LLC, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) Nos. 10 L 010065 & ) 16 L 010618 ) REGENT INSURANCE COMPANY, ) Honorable ) Thomas R. Mulroy, Defendant-Appellee. ) Judge Presiding. ) _____________________________________________________________________________

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Burke concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, 4220 Kildare, LLC (Kildare), was the owner of a refrigerated warehouse building

in Chicago. Kildare made a claim on the all risk insurance policy provided by Kildare’s insurer,

defendant, Regent Insurance Company (Regent), after sustaining damage to the concrete floor of

the building. Regent denied the claim, asserting that the damage was excluded under the policy’s

“earth movement” exclusion. The case proceeded to a jury trial, at which evidence was presented

showing that a door to one of the freezer rooms was left open over a long weekend and, as a result,

several inches of frost and ice covered the ceiling and refrigeration coils. Kildare hired a

refrigeration contractor to remove the ice, and during the removal process, dripping water No. 21-0803

penetrated cracks in the floor, saturated the insulation underneath, and subsequently caused

heaving of the concrete floor. There was also evidence presented at trial that, even if the floor had

not heaved, it was necessary for the damaged and saturated insulation to be replaced, which could

not be accomplished without demolishing the floor.

¶2 The jury found that the earth movement exclusion did not apply and returned a verdict in

favor of Kildare for $544,366. The trial court entered judgment on the jury verdict the same day—

June 7, 2018—but subsequently granted Regent’s motions for judgment notwithstanding the

verdict and for a directed verdict and vacated the jury verdict, concluding that the exclusion barred

coverage. In a prior appeal, this court reversed the trial court’s judgment, concluding that the

evidence presented, when considered in the light most favorable to Kildare, supported a conclusion

that damage to the insulation was a separate and covered loss prior to the later floor heaving. 4220

Kildare, LLC v. Regent Insurance Co.,

. Because the damage to

Kildare’s floor was vested and compensable prior to any later loss that could have been excluded,

we remanded the matter with directions to reinstate the jury verdict and to consider Kildare’s

motion for prejudgment interest, which the parties agreed was denied by the circuit court in light

of its decision to grant a directed verdict in favor of Regent. Id. ¶¶ 48-51.

¶3 This appeal concerns the subsequent proceedings on remand. Specifically, the record

shows that following the prior appeal, Kildare filed a “Renewed Amended Motion for Pre-

Judgment Interest and Post-Judgment Interest.” Kildare explained that the Interest Act permits an

award of prejudgment interest at the rate of 5% per year “for all moneys after they become due on

*** [an] instrument of writing” (815 ILCS 205/2 (West 2018)), which it maintained included an

insurance policy. Kildare asserted that prejudgment interest should run from Regent’s denial of

coverage on August 14, 2009, until the June 7, 2018, jury verdict and contended that “the total

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balance due with pre-judgment interest as of the date of the judgment would be $837,907.80.”

Kildare additionally argued that, pursuant to section 2-1303 of the Code of Civil Procedure (735

ILCS 5/2-1303 (West 2020)), it was entitled to 9% postjudgment interest from the date of the jury

verdict, and that “[t]he base rate with prejudgment interest is $837,907.80 which at 9% would

accrue to $1,088,135.56 as of June 8, 2018.”

¶4 On June 3, 2021, Regent filed a “Brief in Opposition” to Kildare’s request for prejudgment

and postjudgment interest. Regarding prejudgment interest, Regent argued that Kildare “waived

any argument for pre-judgment interest” because Kildare did not give the trial court the

“opportunity to rule on [its] request for pre-judgment interest” prior to the earlier appeal. Regent

also alleged that prejudgment interest was not appropriate “because the sum due is not liquidated.”

Regent argued that “even [Kildare] was not certain of the amount” of damages, noting that Kildare

claimed different amounts in its two “Proof of Loss” statements and, then later, at trial. Regent

also pointed to the ”disparity in the amounts sought by [Kildare] and the amount actually granted

to [Kildare] by the jury,” which showed that the “ ‘sum due’ was not certain and, thus, pre-

judgment interest [wa]s inappropriate.” Finally, Regent argued that the terms of the parties’

contract—the insurance policy—stated that Regent’s obligation to pay accrued only after an

agreement by the parties or an award.

¶5 As to postjudgment interest, Regent asserted that the trial court vacated the jury verdict and

entered judgment in favor of Regent. Although that judgment was reversed on appeal, Regent

asserted that postjudgment interest could not begin to accrue until the judgment was entered in

favor of Kildare following the appeal, which had not yet occurred. Accordingly, Regent argued

that postjudgment interest was “inappropriate.”

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¶6 The parties appeared before the trial court on June 21, 2014. The trial court expressed some

confusion about the status of the case, noting that it was unaware that the judgment had been

reversed. Counsel for the parties confirmed that the judgment was reversed and the case was

remanded for reinstatement of the jury verdict and for consideration of Kildare’s prejudgment

interest motion. Counsel for Kildare also explained that the parties disputed when postjudgment

interest began to accrue. Kildare’s position was that interest “start[ed] running from the date of the

original jury verdict,” while Regent contended that no postjudgment interest applied where the

jury verdict had been set aside. The court explained that it “agree[d]” with Regent that no

postjudgment interest accrued until the trial court reinstated the jury verdict following the appeal

and denied Kildare’s request for postjudgment interest.

¶7 Turning to the question of prejudgment interest, Regent argued that the damages were not

liquidated and, accordingly, no prejudgment interest applied. Counsel for Kildare acknowledged

that “the question of damages was hotly contested,” but argued, nonetheless, that the sum was

“easily computable.” The court questioned counsel for Kildare, asking “[a]nd you computed it one

way and the jury computed it another, right?” Counsel for Kildare responded that the “jury verdict

was reduced by the amount of damages attributable to the earth movement” but that Regent “did

not put on any testimony or evidence to contradict what [Kildare] set forth were the damages.”

Counsel for Regent argued the fact that the jury’s award was different than what Kildare requested

was a strong indication that the sum due was not easily determined. Counsel for Regent further

noted that Kildare never alleged “bad faith, vexatious delay, or anything like that” and that, based

on the “entirety of the case, prejudgment interest is not appropriate here.”

¶8 After hearing the above arguments of the parties, the court denied the motion for

prejudgment interest. That same day, June 24, 2021, the court entered a written order reinstating

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the jury verdict of June 7, 2018, “as of today’s date,” and denying Kildare’s motions for

prejudgment and postjudgment interest.

¶9 Kildare filed a timely notice of appeal on July 9, 2021. In this court, Kildare contends that

the trial court erred in determining that it was not entitled to prejudgment and postjudgment

interest. We will first consider the trial court’s denial of prejudgment interest.

¶ 10 Kildare contends that pursuant to section 2 of the Interest Act (815 ILCS 205/2 (West

2020)), Regent owes prejudgment interest at the rate of 5% per year since the date of Regent’s

denial of Kildare’s claim on August 14, 2009, and that the court erroneously denied prejudgment

interest based on an incorrect understanding that “prejudgment interest should be denied because

the jury came back with an award different than the highest sum demanded.” Regent responds that

the trial court’s denial of prejudgment interest was correct because the amount due was not clear

and easily computable as of 2009. 1

¶ 11 An award of prejudgment interest is appropriate where it is “authorized by statute,

agreement of the parties[,] or warranted by equitable considerations.” Tully v. McLean,

(2011). Here, Kildare requested prejudgment interest pursuant to section 2 of

the Interest Act (815 ILCS 205/2 (West 2020)). That section provides, in relevant part, that,

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys

1 We note that a substantial portion of Regent’s response brief is devoted to arguing the merits of the prior appeal and why this court erred in our prior decision regarding the viability of Kildare’s “separate loss” theory based on initial damage to the insulation. Essentially, Regent appears to be arguing that prejudgment and postjudgment interest were properly denied because the judgment for Regent should not have been reversed in the first place. We considered and rejected Regent’s arguments in the prior appeal, and Regent’s petition for leave to appeal to the supreme court was denied. We decline Regent’s invitation to revisit those issues in this appeal. See Turner v. Commonwealth Edison Co.,

(1978) (“Courts will not permit parties to relitigate the merits of an issue once decided by an appellate court[;] the proper remedy for a dissatisfied party is by petition for rehearing or by petition for leave to appeal to the Illinois Supreme Court.”); Kazubowski v. Kazubowski,

(1970) (“A second appeal brings up nothing except proceedings subsequent to the remandment ***.” “[A]ny errors sought to be assigned *** in connection with any proceedings prior to the filing of the mandate after appeal will not be considered by this court.”).

5 No. 21-0803

after they become due on any *** instrument of writing; *** and on money withheld by an

unreasonable and vexatious delay of payment.”

¶ 12 Initially, the parties dispute the proper standard of review. Regent contends that we should

review the circuit court’s decision to award prejudgment interest for an abuse of discretion. See

United States Fidelity & Guaranty Co. v. Alliance Syndicate, Inc.,

(1997)

(“The decision whether to award prejudgment interest is within the circuit court’s sound discretion,

subject to reversal only upon abuse of discretion.”). Kildare acknowledges that the abuse of

discretion standard is “typical[ly]” used to review awards or denials of prejudgment interest, but

contends that a de novo standard should apply here because the appeal concerns the application of

law to undisputed facts. See Chandra v. Chandra,

(when the facts

show that there is no dispute about the existence of a fixed debt on a written instrument, reviewing

courts apply de novo review because only issues of law are involved). Whether the abuse of

discretion or de novo standard of review should be applied here is a question we need not answer,

as we conclude that the trial court did not err, regardless of the standard of review applied.

¶ 13 An insurance policy is an instrument of writing covered by the Interest Act. New

Hampshire Insurance Co. v. Hanover Insurance Co.,

(1998); Couch v.

State Farm Insurance Co.,

(1996). However, for a party to recover

prejudgment interest, the amount due must be liquidated or subject to an easy determination.

Couch,

; Certain Underwriters at Lloyd’s, London v. Abbott Laboratories,

, ¶ 71; New Hampshire Insurance Co.,

(“[I]f the

amount [due] is determinable, interest can be awarded on money payable even when the claimed

right and the amount due require legal ascertainment.”); Spagat v. Schak,

(1985) (“the amount due [must] be a fixed or easily ascertainable amount”); Cushman & Wakefield

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of Illinois, Inc. v. Northbrook 500 Limited Partnership,

(1983) (amount

due must be a “fixed amount or easily computed”). A claim is unliquidated “[i]f judgment,

discretion, or opinion, as distinguished from calculation or computation is required to determine

the amount of the claim.” (Internal quotation marks omitted.) Certain Underwriters at Lloyd’s,

London,

, ¶ 71.

¶ 14 Although Kildare conclusively argues that the jury award could be easily computed, it does

not provide any explanation of what that calculation would be. Kildare simply argues that Kildare’s

decision not to contest the damage amount in the initial appeal means that the award is “law of the

case,” which Regent “cannot deny.” The question, however, is not whether the amount due was

easily ascertainable at the time of the jury verdict but rather whether it was liquidated at the time

it became due. 815 ILCS 205/2 (West 2020)); Couch,

.

¶ 15 Here, the trial court denied prejudgment interest, and the record supports the conclusion

that the amount due was not liquidated or easily computable. At trial, Kildare requested damages

in the amount of $739,106. Ultimately, the jury awarded $544,366 in damages. Given the disparity

between the amount claimed by Kildare and the amount determined to be due by the jury, the court

correctly determined that the amount due was not liquidated or easily computed as of Regent’s

August 2009 denial of coverage. See Couch,

(finding that the fact that the

plaintiff claimed $270,670 in his proof of loss but the jury awarded $35,000 “serves as a strong

indication that the amount of damages was not readily ascertainable”); Lyon Metal Products,

L.L.C. v. Protection Mutual Insurance Co.,

(2001) (“The large difference

between what [the plaintiff] claimed in business interruption loss, what [the defendant] calculated

that loss to be, and what the jury ultimately awarded is a strong indication that the sum due ***

was not easily determined.”).

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¶ 16 Kildare next contends that prejudgment interest is appropriate because Regent acted in a

“vexatious and unreasonable” manner by “refusing to agree with no reasonable basis to contest the

damages.” As set out above, in addition to providing prejudgment interest on an instrument of

writing as detailed above, the Interest Act also permits an award of prejudgment interest on money

“withheld by an unreasonable and vexatious delay of payment.” 815 ILCS 205/2 (West 2020).

¶ 17 Kildare, however, never alleged that Regent’s conduct was “vexatious and unreasonable”

in the trial court. Because Kildare did not raise this argument below, Kildare cannot raise it for the

first time on appeal. See Susman v. North Star Trust Co.,

(issues

not raised in the circuit court may not be raised for the first time on appeal); U.S. Bank National

Ass’n v. Prabhakaran,

(“Arguments not raised before the circuit

court are forfeited and cannot be raised for the first time on appeal”).

¶ 18 Because we conclude that the trial court properly denied prejudgment interest based on the

amount not being liquidated or easily computable, we need not consider Regent’s alternative

argument, that the terms of the insurance policy preclude prejudgment interest.

¶ 19 We next consider the trial court’s denial of postjudgment interest. Section 2-1303 of the

Code of Civil Procedure (Code) provides that interest at the rate of 9% per annum commences to

run on a judgment entered upon any award, report, or verdict from the date when the award, report,

or verdict is made or rendered. 735 ILCS 5/2-1303 (West 2020). 2 “The purpose of awarding

interest on a judgment until it is paid is to make the successful plaintiff whole because prior to

2 This court is aware that this section recently was found unconstitutional by the Circuit Court of Cook County. Hyland v. Advocate Health & Hospitals Corp., No. 2017-L-003541 (Cir. Cr. Cook County, May 27, 2022). That case, however, is not precedential to this court (see Delgado v. Board of Election Commissioners of the City of Chicago,

(2007) (“Under Illinois law, the decisions of circuit courts have no precedential value.”)) and is not relevant in any event. Unlike here, the Hyland case concerns an amendment to section 2-1303 that allows prejudgment interest to accrue beginning at the time of the initiation of all actions seeking damages for personal injury or wrongful death caused by negligence, willful and wanton misconduct, intentional conduct, or strict liability.

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payment he was denied access to the funds defendant owed him.” Overlin v. Windmere Cove

Partners, Inc.,

(2001); see also Illinois State Toll Highway Authority v.

Heritage Standard Bank & Trust Co.,

(1993) (“[I]nterest is neither a penalty

nor a bonus, but instead a preservation of the economic value of an award from diminution caused

by delay.”). “The trial court has no discretion to deny postjudgment interest, as the imposition of

statutory interest from the date the final judgment was entered is mandatory.” Certain

Underwriters at Lloyd’s, London,

, ¶ 62.

¶ 20 Regent initially responds that Kildare has “forfeited the issue” relating to postjudgment

interest because Kildare requested postjudgment interest “for the first time” on May 10, 2021, and

because Kildare “failed to make any arguments or cite to any cases to support” its claim that

postjudgment interest accrued from the jury verdict.

¶ 21 Postjudgment interest, however, arises automatically by statute and is not subject to waiver

or forfeiture. See Patton v. Biswell,

(“Since postjudgment

interest is purely a statutory creation [citation], 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.”

(Internal quotation marks omitted.)). “The 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,

(1977); see also Halloran v. Dickerson,

(1997) (“Illinois

law provides for a statutorily mandated accrual of interest on judgments.”). Because whatever

postjudgment interest to which Kildare is entitled arises automatically by statute, we reject

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Regent’s argument that Kildare waived its claim to postjudgment interest for filing an allegedly

“untimely” request or for failing to submit case authority to the trial court along with its request.

¶ 22 Regent next contends that postjudgment interest is not warranted because the trial court

vacated the jury verdict and judgment for Kildare, and accordingly, “the final verdict in this claim

did not occur until after this [c]ourt’s opinion and the entry of judgment in favor of Kildare on

June 24, 2021.” Kildare, however, contends that postjudgment interest runs from June 7, 2018, the

date of the original jury verdict and judgment. Kildare notes that it was “deprived [of] the right to

access any of its well-deserved funds” from the date of the original jury verdict, throughout the

appellate proceedings, and until Regent eventually paid the judgment amount. Kildare contends

that it “will only be made whole” if postjudgment interest is awarded from the date of “the original

reinstated June 7, 2018 judgment.”

¶ 23 Both the Illinois appellate court and the Illinois supreme court have considered the “date

of judgment” on which postjudgment interest begins to accrue in analogous cases involving

appellate reversals of orders for judgment notwithstanding the verdict.

¶ 24 In Gnat v. Richardson,

(1942), the plaintiff sued for injuries sustained in a

collision between a street car operated by the defendants and an automobile in which the plaintiff

was riding.

. The jury returned a verdict in the plaintiff’s favor in the amount of $5000,

and judgment was entered upon the verdict. The trial court thereafter granted the defendants’

motion for judgment notwithstanding the verdict.

The plaintiff appealed, and the appellate court

reversed the judgment notwithstanding the verdict and entered judgment for the plaintiff in the

amount of $5000, plus interest from the date of the jury verdict. See Gnat v. Richardson,

,

(1941) (abstract of opinion) (“Judgment for the defendants

notwithstanding the verdict is reversed; judgment on the verdict in favor of plaintiff entered here

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for $5,000, together with interest *** from date of verdict.” (Emphasis added.)). Thereafter, on

appeal to the supreme court, the supreme court affirmed the appellate court’s decision to “reverse[ ]

the judgment of the circuit court *** and enter[ ] a judgment for the amount of the verdict, with

interest from the date thereon.” Gnat,

.

¶ 25 Similarly, in Duffek v. Vanderhei,

(1982), the plaintiff

obtained a $25,000 personal injury verdict against the defendant, and judgment was entered on the

verdict. The trial court subsequently granted the defendant’s posttrial motion for judgment

notwithstanding the verdict. Thereafter, the appellate court reversed the judgment notwithstanding

the verdict and remanded the cause with directions to enter judgment for the plaintiff.

.

On remand, the plaintiff filed a petition for postjudgment interest, claiming interest was due during

the pendency of the appeal. The circuit court denied the plaintiff’s petition. On appeal from that

denial, the appellate court noted that the question on appeal was “when a judgment notwithstanding

the verdict is reversed and remanded with directions to enter judgment on the jury’s verdict, does

interest on that judgment accrue from the date of the jury’s verdict?”

. The court answered

that question in the affirmative, further noting that it was “mandatory” for the trial court to

“ascertain the interest accruing upon a verdict and include it in the judgment even though there

may be a lengthy delay between the return of the verdict and entry of judgment thereon.”

The

court explained that the result was

“compatible with the legislative philosophy *** which is intended to make the

plaintiff whole. [Citations.] A party in whose favor a verdict for damages has been

awarded should not be deprived of the use of his money during the pendency of an

appeal necessitated by the trial court’s erroneous granting of judgment

notwithstanding the verdict.” (Internal quotation marks omitted.)

.

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¶ 26 Accordingly, the court reversed the order of the trial court denying the plaintiff’s petition

for interest from the date of the original judgment on the verdict, and remanded the matter to the

trial court with directions to award the plaintiff all interest accruing on the jury’s verdict from the

date of that verdict to the date the defendant tendered payment of the judgment. Id.; see also

Proctor Community Hospital v. Industrial Comm’n,

(1971) (“[I]nterest accrues

from the date of the award, notwithstanding that at an intermediate level of review the award was

overturned and on further review reinstated.”); Wirth v. Industrial Comm’n,

(1976).

¶ 27 In this case, the jury reached a verdict for Kildare for $544,366 on June 7, 2018, and the

trial court entered judgment on the same day. Accordingly, and by operation of the statute,

postjudgment interest began accruing automatically on June 7, 2018. Like in Duffek, Kildare

“should not be deprived of the use of [its] money during the pendency of an appeal necessitated

by the trial court’s erroneous granting of judgment notwithstanding the verdict.” Duffek,

.

¶ 28 Kildare next requests that this court “exercise [our] discretion” pursuant to Illinois Supreme

Court Rule 366 (eff. Feb. 1, 1994) and independently calculate and award interest as part of this

appeal. See Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994) (“reviewing court may, in its discretion, and

on such terms as it deems just, *** enter any judgment, and make any order that ought to have

been given or made”). Kildare presents tables that it contends set out the proper calculation of

interest. Regent contends that the calculations submitted by Kildare are “wrong” and improperly

based on “compound interest.”

¶ 29 We do not find entering such an order to be an appropriate exercise of our discretion here,

as the appellate record does not contain sufficient information for this court to independently

calculate postjudgment interest. In particular, the record is unclear regarding the date that Regent

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tendered payment to Kildare. Kildare calculates postjudgment interest through January 6, 2022,

but does not provide any explanation for its use of that date. Regent asserts that it paid Kildare on

July 2, 2021, attaching to the appendix of its appellate brief alleged correspondence between the

parties regarding payment of the judgment. Those documents, however, are not in the appellate

record and are not properly before this court. Scepurek v. Board of Trustees of the Northbrook

Firefighters’ Pension Fund,

(“[T]he record on appeal cannot be

supplemented by attaching documents to a brief or including them in an appendix.” (Internal

quotation marks omitted.)). Accordingly, we remand for additional proceedings regarding the

calculation of postjudgment interest due.

¶ 30 Finally, Kildare requests that if this court chooses to remand the matter, we order that the

matter be “reassign[ed] *** to a different judge for the purposes of judicial economy,” asserting

that the trial judge is “unwilling or unable to follow the law.” However, since the initiation of this

appeal, the trial judge has retired, a fact of which we may take judicial notice. See In re Estate of

Bohn,

(taking judicial notice of the trial judge’s retirement after

the initiation of the appeal); People v. Smith,

(2001) (“We take judicial

notice that the trial judge has retired from the bench, therefore, a different judge will consider this

petition on remand.”). Accordingly, on remand, the case will necessarily be reassigned, and

Kildare’s request in this court is moot.

¶ 31 For the foregoing reasons, we affirm the trial court’s denial of prejudgment interest and

reverse the trial court’s denial of postjudgment interest. We remand the matter with directions to

calculate and award Kildare postjudgment interest accruing from the date of the jury’s verdict

(June 7, 2018) to the date Regent tendered payment of the judgment.

¶ 32 Affirmed in part and reversed in part; cause remanded with directions.

13 No. 21-0803

4220 Kildare, LLC v. Regent Insurance Co.,

Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 10-L- 010065, 16-L-010618; the Hon. Thomas R. Mulroy, Judge, presiding.

Attorneys Ronald A. Stearney Jr., of Law Offices of Ronald A. Stearney, for LLC, of Chicago, for appellant. Appellant:

Attorneys Robert Ostojic, of Leahy, Eisenberg & Fraenkel, Ltd., of Chicago, for for appellee. Appellee:

14