Shales v. T. Manning Concrete, Inc.

847 F. Supp. 2d 1102, 2012 WL 851546, 2012 U.S. Dist. LEXIS 33244
CourtDistrict Court, N.D. Illinois
DecidedMarch 13, 2012
DocketCase No. 11 C 1094
StatusPublished
Cited by17 cases

This text of 847 F. Supp. 2d 1102 (Shales v. T. Manning Concrete, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shales v. T. Manning Concrete, Inc., 847 F. Supp. 2d 1102, 2012 WL 851546, 2012 U.S. Dist. LEXIS 33244 (N.D. Ill. 2012).

Opinion

MEMORANDUM OPINION AND ORDER

MORTON DENLOW, United States Magistrate Judge.

Plaintiffs Mike Shales, John Bryan, Sr., A1 Orosz, Dan Brejc, Toby Koth, and Vern Bauman, as Trustees of The Fox Valley Laborers’ Health and Welfare Fund, and Mike Shales, John Bryan, Sr., A1 Orosz, Toby Koth, Vern Bauman, and Dan Brejc, as Trustees of The Fox Valley Laborers’ Pension Fund (collectively “the Funds” or “Plaintiffs”), bring this action seeking an Order of Contempt directed personally at Thomas Manning (“Manning” or “Respondent”), President and sole shareholder of T. Manning Concrete, Inc., (“the Company” or “Defendant”) for his failure to abide by a citation to discover assets served on the Company and for personally causing and allowing the transfer and disposition of T. Manning Concrete, Inc.’s assets in violation of the citation.

The Funds ask that a judgment be entered against Manning individually in the amount of $199,010.28.1 This represents: $139,000 of Respondent’s personal funds that he put into a client trust account and used to pay the Company’s payroll after the Company’s bank account at Golden Eagle Community Bank was frozen; $41,700.78 in funds that were paid out of the Company’s Golden Eagle Community Bank account after the citation was served on the Company, but before that account was frozen by a separate citation served on the bank; and $18,309.50 in attorney fees and costs. Tr. 10; Dkt. 95 ¶ 42.

The Court held an evidentiary hearing on February 8, 2012. Dkt. 92. At the hearing two witnesses testified: 1) Thomas Manning, President of T. Manning Concrete, Inc.; and 2) Dennis Ward, registered agent and accountant for T. Manning Concrete, Inc. Counsel presented closing arguments on February 10, 2012. Dkt. 94. The Court has carefully considered the parties’ briefs, the testimony of the two witnesses, the parties’ trial exhibits, the parties’ joint stipulation of facts, and the opening and closing arguments of counsel. The following represent the Courts’s findings of facts and conclusions of law. To the extent certain findings of fact may be deemed conclusions of law, they shall also be considered conclusions. Similarly, to the extent matters contained in the conclusions of law may be deemed findings of fact, they shall also be considered findings.

I. FINDINGS OF FACT

A. ISSUANCE OF THE CITATION TO DISCOVER ASSETS.

1. Tom Manning is and was the President and sole shareholder of T. Manning Concrete, Inc., for all relevant periods of time. Stip. 103; Tr. 23.

[1107]*11072. On August 3, 2011, this Court entered an agreed judgment in favor of Plaintiffs and against T. Manning Concrete, Inc., in the amount of $5,941,720.15. Dkts. 39, 40.

3. In an attempt to collect the judgment, Plaintiffs instituted supplementary proceedings in the form of citations to discover assets directed to PNC Bank, The National Bank, Mid America Bank, T. Manning Concrete, Inc., Harris Bank, and American Community Bank & Trust seeking to prevent the transfer or disposition of Defendant’s assets. Dkt. 43.

4. This contempt proceeding arises out of the citation to discover assets served upon defendant T. Manning Concrete, Inc. On August 17, 2011,4 this Court issued a citation to discover assets against T. Manning Concrete, Inc., (the “Citation”) for the $5,941,720.15 judgment. Stip. Ex. A.

5. The Citation stated in relevant part: T. MANNING CONCRETE, INC., IS PROHIBITED from making or allowing any transfer or other disposition of, or interfering with, any property not exempt from execution or garnishment belonging to T. MANNING CONCRETE, INC., that it may be entitled to or that may be acquired by or become due to it and from paying over or otherwise disposing of any money not so exempt, that is due or becomes due to T. MANNING CONCRETE, INC., until further order of court or termination of the proceedings.

Id. (emphasis in original).

6. The Citation return date was September 13, 2011, and in addition to the prohibition regarding the transfer or disposition of assets, it directed Tom Manning, as President of T. Manning Concrete, Inc., to appear at the office of Plaintiffs’ attorney to be examined under oath and to bring certain books, records and documents reflecting T. Manning Concrete, Inc.’s assets and financial status. Id.

B. SERVICE OF THE CITATION TO DISCOVER ASSETS UPON DEFENDANT.

1. Dennis Ward, Registered Agent

7. On August 18, 2011, counsel for The Funds caused a copy of the Citation to be mailed by Certified Mail to Dennis Ward, the Defendant’s registered agent addressed as follows:

T. Manning Concrete
Dennis Ward, Reg Agent
1250 Larkin Avenue
Suite 200
Elgin, IL 60123.

Stip. ¶ 3.

8. Dennis Ward (“Ward”) was the registered agent for Defendant at the time of service. Ward is a partner in the accounting firm of Ward, Lane & Associates, with its office located at 1250 Larkin Avenue, Suite 200, Elgin, IL 60123. Stip. ¶ 4. On August 19, 2011, Jackie Schroeder, an accountant employed by Ward, Lane & Associates, accepted and signed for the certified letter addressed to Dennis Ward, Registered Agent. Stip. ¶ 5, ¶ 6; Stip. Ex. B. On August 19, 2011, Ward received and reviewed the envelope’s contents and determined that it was a Citation to Discover Assets for T. Manning Concrete, Inc. Tr. 88-89; Pis.’ Ex. B; Stip. ¶ 8.

9. On August 19, 2011, Ward participated in two telephone conversations with attorneys from Laner, Muchin, Dombrow, [1108]*1108Becker, Levin and Tominberg, Ltd. (“Laner Muchin”), the Company’s counsel. Pis.’ Ex. B., p. 3. The first telephone conversation was about “seizure of assets” and included: Ward; Michelle Reynolds, counsel for the Funds; and Will Daniels (“Daniels”) 5 and Scott Gore (“Gore”) of Laner Muchin. Id.; Tr. 30. The second telephone conversation was between only Ward and Daniels and addressed “the Fund’s recent action to freeze the assets of T. Manning Concrete and the Company’s inability to pay payroll.” Pis.’ Ex. B, p. 3.

10. Later in the day on August 19, Ward sent a facsimile to Gore and Daniels at Laner Muchin. Tr. 88-89; Pis.’ Ex. B, p. 6. In the cover letter, Ward wrote: “Copies of what I Received [and] what Bank Received, As Discussed” and signed his initials. Pis.’ Ex. B, p. 6; Tr. 109. Three documents were attached to the facsimile. The first document was a copy of the third party citation to discover assets issued to National Bank. Id. at p. 7-10. The second document was a copy of the original complaint in the case. Id. at p. 17-20. The third document was the Citation directed to T. Manning Concrete, Inc. which he received as registered agent. Id. at p. 21-27. As of August 19, 2011, Ward clearly understood that the assets of the Company were frozen and payroll could not be paid from Company assets. The Court rejects any testimony to the contrary offered by Ward.

11. On either August 22 or 23, 2011, Ward placed a phone call to Manning. Tr. 91. Ward was upset that the Citation required the production of twelve categories of documents. Tr.

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847 F. Supp. 2d 1102, 2012 WL 851546, 2012 U.S. Dist. LEXIS 33244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shales-v-t-manning-concrete-inc-ilnd-2012.