Goddard v. Children's Hosp. Med. Ctr, 141 Ohio App.3d 467, 470 (1st Dist.2000); see also Moore v. Jock, 90 Ohio App.3d 413, 415-416 (10th Dist.1993); Motok v. Motorists Mut. Ins. Co., 11th Dist. Trumbull No. 91-T-4583, 1992 Ohio App. LEXIS 5040, *6 (Sept. 30, 1992). {¶ 20}
Appellants have clearly presented this claim and urge this court to adopt the reasoning in Fowler v. Wilford (May 8, 1987), Erie App. No. E-86-50, unreported, 1987 WL 11106, where the court determined that a judgment creditor who appeals and thereby causes delay in payment is not entitled to post-judgment interest. Appellee urges that this court follow Moore v. Jock (1993), 90 Ohio App.3d 413, 416, 629 N.E.2d 508, 510-511, where the court stated that the prevailing party was entitled to an award of post-judgment interest during the pending of appeal absent waiver, or estoppel by the creditor, or tender by the debtor. We begin our analysis by examining R.C. 1343.03, which provides for interest on judgments:
{¶ 43} Even if the trial court had concluded that appellee had conducted herself in a manner "estopping [her] from claiming interest, such as bad faith or want of diligence in prosecution of the appeal," such a finding would not obviate the award of post-judgment interest "in the absence of a tender by the judgment debtor." Moore v. Jock (1993), 90 Ohio App.3d 413, 416 (citation omitted). {¶ 44} In other words, regardless of the merits of appellee's subsequent appeals, appellants could have tolled the accumulation of interest charges by unconditionally tendering the amount of the judgment as rendered.
Absent proof of waiver or conduct estopping the party from claiming interest, interest continues to accrue during the pendency of an appeal, regardless of which party appealed. Id.; Moore v. Jock (1993), 90 Ohio App.3d 413. Post-judgment interest has been applied to obligations arising out of a divorce decree if those obligations are due and payable. Woloch v. Foster (1994), 98 Ohio App.3d 806 (stating that an order distributing marital assets has the force of a money judgment, and the recipient is entitled to interest on any amounts due and owing, but unpaid, under the order); Farley v. Farley (Aug. 31, 2000), Franklin App. No. 99AP-1103 (noting that R.C. 1343.03 mandates interest on amounts due and payable under a divorce decree to the extent the amounts are calculable, due and payable).
Weber v. Weber, 1998 Ohio App. LEXIS 549 (Feb. 11, 1998), Summit App. No. CA18355, unreported, citing Braun v. Pikus (1995), 108 Ohio App.3d 29. Post-judgment interest continues to accrue during the pendency of an appeal, absent proof of waiver or conduct on the part of the prevailing party estopping it from claiming interest, such as bad faith or want of diligence in prosecution of the appeal. Moore v. Jock (1993), 90 Ohio App. 3d 413, 416; Viock, supra, at 5; Warren/Sherer Div. v. Store Equip. Co., Inc., 1984 Ohio App. LEXIS 10931 (Sept. 27, 1984), Franklin App. No. 84AP-41, unreported.
The judgment debtor may stop the accumulation of post-judgment by tendering unconditional payment in full of the judgment rendered against it. Braun v. Pikus (1995), 108 Ohio App.3d 29, 32-33; Moore v. Jock (1993), 90 Ohio App.3d 413, 416; Viock v. Stowe-Woodward Co. (1989), 59 Ohio App.3d 3, 5. Tender of payment by the judgment debtor must consist of the "actual production of the sum then due" on the judgment. Braun, supra.
Id. See, also, Moore v. Jock (1993), 90 Ohio App.3d 413, 416 (post-judgment interest permissible in the absence of evidence of plaintiff's waiver or conduct estopping him from claiming interest). {¶ 13} In Cohara v. Consol. Rail Corp. (2002), 148 Ohio App.3d 153, the parties settled a case in May of 1999, and defendant prepared a release and submitted it to plaintiff in furtherance of the settlement.
{¶ 44} While payment of the original judgment is pertinent to the calculation of postjudgment interest, it does not however totally eliminate an award of postjudgment interest. See Moore v. Jock (1993), 90 Ohio App.3d 413, 417, 629 N.E.2d 508. Where partial payments are made on a judgment plus accumulated postjudgment interest, payments arefirst applied to payment of interest and second to payment of principal. Viock v. Stowe-Woodward Co. (1989), 59 Ohio App.3d 3, 569 N.E.2d 1070.
{¶ 65} Appellant is correct to the extent that in applying R.C. 1343.03(A) to the event of an appeal, Ohio courts generally hold that, "absent proof of waiver or bad faith on the part of the prevailing party estopping it from claiming interest, interest continues to accrue during the pendency of an appeal, regardless of which party has appealed." Goddard v. Children's Hosp. Med. Ctr. (2000), 141 Ohio App.3d 467, 470; Moore v. Jock (1993), 90 Ohio App.3d 413, 416. And, in such a case, the judgment debtor may only stop the interest from running by tendering unconditional payment of the judgment rendered against him.
The determinative issue common to all cases, then, is which party has the use of the money during the pendency of an appeal.Sargent v. Owen (June 22, 1998), Stark App. No. 98CA00028, unreported; Weber v. Weber (Feb. 11, 1998), Summit App. No. 18355, unreported; Braun v. Pikus (1995), 108 Ohio App.3d 29, 32, 669 N.E.2d 880, 882; Moore v. Jock (1993), 90 Ohio App.3d 413, 415-416, 629 N.E.2d 508, 510; Viock v. Stowe-Woodward Co. (1989), 59 Ohio App.3d 3, 569 N.E.2d 1070.Sargent v. Owen, supra; Braun v. Pikus, supra; Moore v. Jock, supra; Viock v. Stowe-Woodward Co., supra.