Tobias v. Lake Forest Partners, LLC

931 N.E.2d 757, 402 Ill. App. 3d 484
CourtAppellate Court of Illinois
DecidedJune 22, 2010
Docket1-09-1054 Rel
StatusPublished
Cited by4 cases

This text of 931 N.E.2d 757 (Tobias v. Lake Forest Partners, LLC) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tobias v. Lake Forest Partners, LLC, 931 N.E.2d 757, 402 Ill. App. 3d 484 (Ill. Ct. App. 2010).

Opinion

JUSTICE HOFFMAN

delivered the opinion of the court:

The circuit court entered an order in these supplemental proceedings directing the citation-respondent, MEA Management, LLC (MEA), to turnover to the plaintiff, Andrew E Tobias, the sum of $86,845.12 held by it and belonging to one of the defendants, Mark D. Weissman, in satisfaction of the balance owed on a certain judgment entered in favor of Tobias and against Lake Forest Partners, LLC, a Nevada limited liability company (Lake Forest); Weissman; Albert J. Montano; and Christopher T. French (collectively referred to as “the defendants”). The circuit court also ordered the balance of Weissman’s funds being held by MEA, totaling $252,598.88, to be paid as follows: $126,299.44 to Weissman and the remaining $126,299.44 to the intervenor, Greystone Business Credit II, LLC (Greystone), the holder of a judgment rendered against Weissman, in the United States District Court for the Southern District of Florida. Tobias now appeals, contending that his claim for postjudgment attorney fees should have been adjudicated and satisfied before any of the remaining $252,598.88 of Weissman’s funds held by MEA was ordered paid to Greystone or Weissman. For the reasons that follow, we affirm the judgment of the circuit court.

The facts leading up to this appeal are not in dispute. Tobias loaned Lake Forest the sum of $500,000, which was personally guaranteed by Weissman, Montano, and French. The transaction was evidenced by a loan agreement dated December 5, 2005, that was executed by each of the defendants. In addition to providing for repayment of the loan with interest at the rate of 10% per annum, the loan agreement provided, inter alia, that Lake Forest “promises to pay all costs of collection in case payment shall not be made at maturity; and further promises, in case suit is instituted to collect the Loan or the Interest, or any portion thereof, to pay such reasonable attorney’s fees in such suit.”

The defendants failed to pay the loan when due, and as a consequence, a judgment was entered in favor of Tobias and against the defendants on February 27, 2007, in the sum of $656,181.61, which included outstanding principal and interest, and $12,610.61 in attorney fees and costs incurred by Tobias as of that date. The order also provides that judgment was entered against the defendants for “any additional attorneys’ fees, costs and interest incurred after the date of this judgment.” However, on motion of Tobias, the judgment was amended on April 5, 2007. The circuit court’s order of that date entered judgment in favor of Tobias and against the defendants, jointly and severally, in the sum of $662,172.21 plus costs, but no provision was made in the order for any postjudgment attorney fees which To-bias might incur.

On April 13, 2007, Greystone obtained a $4,293,401.30 judgment against Weissman and Lake Forest in the United States District Court for the Southern District of Florida. Thereafter, Greystone registered its judgment in the United States District Court for the Northern District of Illinois and began supplementary proceedings in that court to collect the judgment.

In an effort to locate assets to satisfy his judgment, Tobias served a citation to discover assets upon MEA in the instant case. Thereafter, on September 19, 2007, an appearance was filed on behalf of MEA.

Greystone served a citation to discover assets upon MEA on March 18, 2008, in the supplementary proceeding which it had instituted in the United States District Court for the Northern District of Illinois. However, those proceedings have been stayed pending satisfaction of Tobias’s judgment.

On January 7, 2009, MEA filed a response to the citation to discover assets served upon it by Tobias in the instant case, stating that it was in possession of $339,444 belonging to Weissman. As a consequence, Tobias filed a motion on February 4, 2009, seeking an order directing MEA to turn over to him “an amount sufficient to satisfy the judgment and post-judgment attorney fees, said amount to be determined by [the] *** court after hearing.”

On February 9, 2009, Greystone filed a petition to intervene in the instant proceedings. Greystone pled the existence of its April 13, 2007, judgment against Weissman and asserted that, as a judgment creditor “with priority after *** [Tobias’s] judgment is satisfied in full, [it] *** has a direct legal interest in the funds currently held by MEA.”

On March 17, 2009, Weissman filed a motion seeking the release of all sums held by MEA in excess of 15% thereof, alleging that the funds so held consist of wages and, therefore, any funds in excess of 15% may not be used to satisfy Tobias’s judgment. See 735 ILCS 5/12— 803 (West 2008). On April 2, 2009, MEA filed an amended response to the citation served upon it, stating that the $339,444 of Weissman’s funds which it was holding consists of wages, salary, or commissions.

On April 9, 2009, the circuit court granted Greystone’s petition to intervene. Thereafter, the proceedings were continued on several occasions to allow the parties to attempt to reach an agreement as to the distribution of Weissman’s funds being held by MEA.

On April 23, 2009, Tobias filed a petition for an award of postjudgment attorney fees and costs. On that same day, a hearing was held on Weissman’s motion for the release of his funds in MEA’s possession. Greystone asserts that the parties agreed that, as of that date, a balance of $86,845.12 was still owed on Tobias’s judgment, exclusive of his unresolved claim for postjudgment attorney fees. At oral argument, counsel for Tobias acknowledged that Greystone’s assertion in this regard is correct.

Following the April 23, 2009, hearing, the circuit court entered an order directing MEA to pay Tobias $86,845.12 “as full satisfaction” of his judgment and providing that the payment to Tobias shall release the citation which he served upon MEA. The order directs MEA to pay the remaining $252,598.88 of Weissman’s funds, which it is holding, as follows: $126,299.44 to Weissman, and $126,299.44 to Greystone. Finally, the order provides that there is no just cause to delay enforcement or appeal and that Tobias’s motion for the turnover of funds is moot. Tobias’s petition for an award of postjudgment attorney fees and costs remains pending and undetermined.

Tobias filed a timely notice of appeal from the April 23, 2009, order, invoking our jurisdiction pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)). Although the circuit court’s order of April 23, 2009, contains the language of enforceability and appeal-ability prescribed by Supreme Court Rule 304(a), it is also a final order in a supplementary proceeding brought under section 2 — 1402 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 1402 (West 2008)) and is, therefore, appealable under Supreme Court Rule 304(b)(4) (210 Ill. 2d R. 304(b)(4)).

In urging reversal, Tobias argues that the circuit court erred in providing that MEA’s payment to him of $86,845.12 would act as “full satisfaction” of the balance owed on his judgment against the defendants, as he is still owed sums for postjudgment attorney fees.

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Bluebook (online)
931 N.E.2d 757, 402 Ill. App. 3d 484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tobias-v-lake-forest-partners-llc-illappct-2010.