## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

United Transfer, Inc. v. Lorence , 2011 IL App (2d) 110041

Appellate Court Caption UNI TED TRANSFER, I NC., Petitioner and Respondent-Appellant, v. MI CHAEL L ORENCE, Respondent (Unique Gre en Service s, L L C, Claimant; Tammy

Aar on, Respondent-Appe llee).

District & N o. Second District Docke t No. 2-11-0041

Filed November 15, 2011

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court proper ly dismiss ed a petition for an adjudi cation of indirect criminal contempt based on alleg ations that responde nt direc ted the operation of cer

tain vehicles in violation of a sheriff ’s l ev y an d an order rec og nizi ng the levy
, since there was no levy order in the rec ord, the vehicles wer e not phy sically s eiz ed, no signs wer e posted, no stickers

wer e place d on the vehicles announcing that they could not be driven, and the petition failed to sufficie ntly plead the exis tence of an order that responde nt willfully

and contumac iously

violated.

Dec ision Under
Review Appea l from the Circuit Court of Du Pag e County
, No. 09-MR-1636; the Hon. B onnie M. Wheaton, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l J ohn N. Dore and J ames M. Dore
, both of J ohn N. Dore & Associates, of Chicag o, for a

ppellant.

No brief filed for appellee

.

Panel PRES I DI NG J USTI CE J ORGENSEN delivere d the judgme nt of the court, with opinion.
J ustices Schostok and Hudson conc urre d in the judgme nt and opinion.

OP INION

¶ 1 On Dec ember 1 3
, 2 0 1 0
, af t er a h ea ring
, the trial court g rante d responde nt Tammy Aar on’s motion to dismiss petitioner United Transf er, I nc.’s (United’s) amende d petition for

an adjudication of indirect criminal contempt ag ainst Aar on. The amende d petition alleg ed that Aar on had direc ted the operation of cer tain vehicles in violation of a sheriff ’s levy and

a prior court order rec og nizi ng the levy

. United appea ls. For the fol l o wi n g reasons, we aff irm. 1

¶ 2 I . BA CKGROUND ¶ 3 On October 30, 2009, United filed this proce eding to reg ister a judgme nt enter ed in Cook County on its behalf ag ainst Mich ae l L o re n ce and to avail itself of collection reme dies
ag ainst L orenc e in Du Pag e County

. Acc ording to United, on Fe bruar y 24, 2010, the Du Pag e County sheriff levied four vehicles. There is no copy of a levy order in the rec ord. There is 2

no copy of an order issued by the trial court allowing a levy

. There is, howeve r, a document from the Du Pag e County sheriff ’s office entitled “I nventory of Seized Property ” (the word “seized” is crosse d out on the orig inal) ref lecting that, by virtue of “Or der No. 09MR1636- 001” (the Du P ag e C o u n t y ca s e number), four y ellow t rucks described by y ear , make, and vehicle identi fi cation number and parke d in a lot with “Unique Recy cling Service s” l og os

Alt hough Aar on did not fi le a re spo nse bri ef
, we m ay dec ide the m er it s of thi s app eal unde r 1 the pr inc ipl es set for th in Fir st Capi tol M ort gage Corp . v. Tal andi s Con st ruc ti on Co rp. , 63 I ll . 2d 128, 133 (19 76) (whe re the re cor d is si m ple and the cl ai m ed er ror s ar e suc h tha t the re viewin g cou rt

can dec ide the m wit hout the ass is ta nce of an app el le e’ s bri ef
, the cou rt sho uld add re ss the m er it s of the app eal ).

A le vy is the pro ces s wher eby a she ri ff or oth er st at e off ic ia l empowere d b y a j udi ci al 2 dir ect ive sei zes or bri ngs wit hin his or her con tr ol a j udgm ent deb tor ’s pro per ty for the pur pos es of
sat is fying a j udgm ent . Bla ck’s La w Dic ti ona ry 907 ( 6th ed. 199 0).

-2-on them wer e seized on Fe bruar y 24, 2010. The document ref lects that L orenc e was prese nt 3 at the time of inventory . I t is undisput ed that, althoug h alleg edly seized, the sheriff

did not

remove the vehicle s from the pa rking lot in which they

wer e loca

ted. ¶ 4 On Fe bruar

y 26, 2010, Aar on appea

red at a status hear ing and claimed that her c ompany , Unique Gr een Ser

vices, L L C (Unique Gr een) , not L orenc e, owne d the four vehicles. I n an order pre p ar ed by United’s counsel, the court order ed Aar on to prese nt all documentation rela ted to the “owne rship of the proper ty the Sheriff has levied.” On Marc h 4, 2010, attorney Thomas Bouslog enter ed an appea ranc e on Unique Gre en’s behalf

. T h e co u rt , in an order
prepa red b y Un i t ed ’s counsel, order ed that discovery reg arding the vehicles’ history and

owner ship be ini tiated and that “the Sheriff’s levy shall rema in in forc e un t i l fu rther order of cour t.” ¶ 5 On April 26, 2010, Unique Gre en moved to dismiss the sheriff ’s levy ag ainst the trucks owned by it. The mot ion asserte d that Aar on is the sole member of Unique Gr een, tha t the judgme nt debtor, L orenc e, is not a member , and that the a ssets ag ainst which the levy was

asser ted belong ed t o Un i q ue Gre en and, there fore
, that the levy was wrong ful. United responde d th at L orenc e and Aar on wer e involved in a persona l rela tionship and that it believed that L orenc e, to avoid cre d i tors, transfe rre d the vehicles from his prior business, Unique Recy cling Service
, I nc., to Uniqu e Gr een. I t further noted that, acc ording to the descr iption provided in t h e s h er i ff’ s levy (pre sumably the inventory ), Unique Recy cling logos r emain on the ve hicles that Aa ron cla ims are owne d by

Unique Gr een. ¶ 6 On J une 1, 2010, United petitioned for leave to issue rules to show cause ag ainst Aar on and Uni q u e Gr ee n on the basis that, on May 28, 2010, two trucks subj ect to the l evy wer e opera ted out side the gates where the s heriff seized them. The petiti on noted t hat, although the sheriff levied the vehicles, they wer e not phy sically remove d and rema ined parke d in the lot where they

wer e levied ( appar ently , Unique Gr een’ s parking lot). Acc ording to United, the use of the vehicles seized by the sheriff and subject to the court’s jurisdiction, as ref lected in the Marc h 4, 2010, order , constituted indirect cr iminal contempt. ¶ 7 On J une 21, 2010, Aar on responde d to the petition and admitted that the vehicles wer e listed on the sheriff

’s inventory of proper

ty , but denied that those vehicles wer e levied upon and/or seized. Fur

ther, Aar on offe red as an aff irmative defe nse that someone crosse d out the word “seized” on the sheriff ’s inventory of proper

ty and that no one from Unique Gre en was

serve d with or re ce i v ed a co p y of the inventory prior to J une 1, 2010, when a copy was attache d to the petition for rule to show cause

. Acc ording ly
, Aar on reque sted that the petition for r ule to show ca

use be dismissed. ¶ 8 On J uly 1, 2010, United was gra n t ed l ea v e t o file an amende d petition for indire ct criminal contempt. At a hear ing, Bouslog and Aar on wer e prese nt, and Bouslog repr esente d
t hat he was prese nt on behalf of Unique Gre en and Aar on. Bouslog stated that “we ar e willing to stipulate to those two trucks being used on May 2 8
, 2010, as alleg ed in the petition.” Bouslog reiter ated that he and Aar on wer e unawa re of the levy until J une 1, 2010.

Alt hough the invent ory is dat ed Febr uar y 2 4
, 2 0 1 0
, it doe s not app ear in the re cor d unt il 3 J une 1, 2 010, as an at ta chment t o Uni te d’s pet it ion fo r a ru le to sho w cau se agains t Aa ron

.
-3-¶ 9 On J uly 12, 2010, United filed an amende d petition for adjudication of indirect criminal

contempt ag ainst Aar on, which was substa n ti a ll y s im il a

r to its orig inal petition. The amende d petition added, howeve r, that Aar on had appea red at the Fe bruar

y 26, 2010, court hear ing and had rec eived the court’s order that day

. Fur ther, it noted that Unique Gre en and Aar on had,

on multipl e occa sions, acknow ledg ed the exi s t en ce of the sheriff ’s levy on the vehicles. Finally
, it noted that, as sole member of Unique Gre en, Aar on had the exclusive authority to deter mine whether

and how the ve hicles subject to the levy would be utiliz ed and to direc t

or authorize employ ees or ag ents of Unique Gre en to ope rate those vehicles. I t alleg ed that Aar on in fac t direc ted and authorized operation o f t h e v ehicles subject to the levy
, with knowledg e that thos e vehicles wer e subjec t to the court’s a uthority as a r esult of its March 4, 2010, order
, and that her conduct in direc ting and allowing vehicles subject to the levy to be operated in Unique Gre en’s business was willful and contumacious. United reque sted that the court find that Aar on willfully and contumaciously violated the Fe bruar y 24, 2010, levy and the Marc h 4, 2010, court order
, and that it order Aar on incar cer ated for a period not exceeding six months. ¶ 10 Aar on answe red the petition by denying most of the alleg ations, including the alleg ation that the vehicles wer e levied. Fur ther, Aar on moved for a bill of particula rs on the basis that, “eve n presuming violating a Sheriff’ s L evy could constitute contempt of court, said amende d petition does not alleg e what, if any thing, the levy [and Marc h 4, 2010, court order ] direc ted

or commanded the responde nt to do, or not do.” Thus, Aar on reque sted that United set forth the exact lang uag e of the sheriff ’s levy and cour t order tha

t she alleg edly

violated. ¶ 11 On November 22, 2010, Aar on moved in limine to bar cer tain evidenc e on the basis that Bouslog
, who had filed an appea ranc e on behalf of Unique Gre en, did not proper ly repr esent to the court that he repr esente d Aar on persona lly and that no appe ara

nce ha d been f

iled on Aar on’s behalf

. The court g rante d the motion, as well as Aa ro n ’s motion for a bill of particula rs. ¶ 12 On De ce m b er 7, 2010, Aar on moved to dismiss the amende d petition fo r i n d i re ct criminal contempt pursuant to s e c tion 114-1(a )(8) of the Code of Criminal Procedur e of 1963 (725 I L CS 5/114-1(a )(8) (West 2008) ), on the basis that, despite the court’s November 22, 2010, order
, United did not respond to Aar on’s bill of particula rs. There fore
, she arg ued, the petition for indirect criminal conte mpt, by failing to alleg e what, if any thing, the sheriff

’s levy or court order direc ted her to do, failed to state an offe nse. Fur ther, Aar on moved to quash subpoenas order ing that she and Bouslog testify and produce documents on United’s behalf in the criminal matter. ¶ 13 On Dec ember 13, 2010, the court held a h ea ri n g o n Aa ro n ’s motion to dismiss the criminal contempt petition. Aar on arg ued that the pet it io n f o r c o n te mpt failed beca

use United failed to identify a court order that proscr ibed conduct that, even if Aar on acte d knowing ly and will fully
, would place her in contempt of court. Aa ro n ’s new counsel arg ued, “[ H]ow is the court g oing to rule on this to find out whether [Aaron] is in contempt o r n o t if y ou don’t know what actions she was supposed to do or wasn’t supposed to do? I t ha s not be en set forth.” ¶ 14 United responde d that no p ar t i cu l ar s b ey o nd the exis tence of a levy wer e nec essar y

-4-beca use the law is c lear that one may not inter fer e with seized proper ty

. “I t’s a known fac t. S o y ou don’t have to have other and specia l disclosures. I t’s like say ing do no t s t ea l something. That is a known fac t. There is a law.” United noted that, two day s afte r the levy

was eff ecte d, Aar on appea

red befor e the court and claimed owner ship of the vehicles that

we re subject to the levy

. Acc ording ly
, it arg ued, it was clea r that Aar on had specific an d direc t personal knowle dg e that those ve hicles we re subjec t to a levy

. ¶ 15 The court g rante d Aar on’s motion to dismiss

. I t noted that it did not have a copy of a levy order and that, despite counsel’s repr esenta tion that there exis ted in the rec ord a court order allowing a levy
, the rec ord ref lected only an initial complaint and, on Fe bruar y 26, 2010, afte r the levy purportedly issued, an order continuing the matter for status. T he court noted that the sheriff

’s inventory is not a levy

. Acc ording ly
, as to the exis tence of the order that was allege d ly the basis for the criminal contempt petition, the court stated, “I have nothing.” United arg ued to the court that the levy is the Cook County judgme nt that was reg istered and issued for the sheriff to eff ectua te a levy
, but the court reiter ated that United was alleg ing that Aar on violated a Du Pag e County order and noted that United ha d not cure d
“the basic infirmity of [i ts] petition. A petition for order of indirect criminal contempt require s that the defe ndant be alleg ed to have violated a n order of this court. You ha ve not g iven me any

thing, any order that I signe d or any levy
, that direc ts Ms. Aar on to do
any thi n g or direc ts any one to do any thing with reg ard to these vehicles. Your case is totally lacking in the basics of due proce ss. You have not prese nted me with any thing that shows Ms. Aar on was directed to do o r re frain from doing any thing, taking any action or refra ining from taking any action. *** There is nothing, I repe at not hing on which I could find Ms. Aar on g uilty of criminal co n tempt of court for violation of an order

. I f
y ou are relying on the ancie nt case that say s interfe renc e with the S h er i ff constitutes contempt of court, I believe it is t he Sheriff ’s duty to bring that to my

attention. I don’t believe y ou or y our client have any standing to bring an action for i n d i rect criminal contempt base d on these fa cts and c ircumstance s. [Even if the petition may be broug ht by an individual other than a prosec utory authority ], that does not cure the basic infirmity that y ou have not direc ted me to any order of court or any thing that would put Ms. Aar on

on actua l notice that moving these vehicles would be an act of crimi n al co n tempt of court.” The contempt petition was dismiss ed and the rela ted subpoenas discharg ed. United appea ls.

¶ 16 I I . ANAL YSI S ¶ 17 United’s two overa rching arg u m en t s on appea l are that the trial court: (1) imprope rly dismiss ed the petition for indirec t criminal contempt; and (2) err ed in quashing subpoenas and eff ectively barr ing from evi d e n c e in th e c r im in al prosec ution admissions and stipulations made by Bouslog . For

the following rea sons, we conc lude that the trial c ourt did not err in dismiss ing the criminal contempt petition. Acc ording ly
, we need not rea ch the second issue

conce rning evidenc e to be use d in the criminal prose cution. ¶ 18 The purpose of contempt proce eding s i s t o m ai n t ai n t h e d ignity of the court and to enfor ce its order s by punishing contemnors for disobedience

. People v. Lindsey
, 199 I ll. 2d

-5-460, 468 (2002). Criminal contempt sanctions punish a contemnor for past acts that cannot

be undone; in d irec t criminal contempt is a subcate g ory of criminal contempt for those situations wher e the contemptuous conduct occur s outside of the court’s prese nce. Id. at 468-69. Two elements must be proved to sustain an indirect criminal contempt finding : (1) the exis tence of a court order ; and (2) a willful violation of that order

. People v. Totten
, 118 I ll. 2d 124, 138 (1987). A pe rson cha rg ed with indirec t c riminal contempt is e ntitled to the constitutional p ro t ec t i o ns aff orded criminal defe ndants and to be proved g uilty bey ond a

rea sonable do u b t

. P eo

p l e v. Covington
, 395 I ll. App. 3d 996, 1007 (2009). We revie w de

novo a trial c ourt’s dismiss al of a criminal complaint for failure to sta te an off ense. People

v. Terry
, 342 I ll

. Ap p

. 3 d 863, 867-68 (2003). We conclude that the trial court proper ly dismiss ed the pe tition for indirect cr iminal contempt. ¶ 19 Her e, as noted by the t rial court, t h e p et i t i o n for contempt presumes the exis tence of a l evy order

. There is no such order in the rec ord. There is no court order in the rec ord th at order s a levy

. The rec ord contains only a sheriff ’s inventory
, with the word “seized” crosse d
out and ref

lecting that L orenc e was prese nt for the inventory

. The court’s order of Marc h 4, 2010, did not order a levy ; it, too, presumed the exis tence of a levy

. We ag ree with the trial
court that a petition for indirect criminal contempt, which require s proof bey ond a rea sonable doubt of the ex istence of an order ( Totten
, 118 I ll. 2d at 138), fails where the pe tition fails to demonstrate, in fa ct, the existence of the order that forms the ba sis of the petition. ¶ 20 Fur

ther, even if, as United alleg es, Aar on conce ded the exis tence of the levy in va rious pleading s and by her appea ranc e at the hear ing to dispute owner ship of the levied vehicles, there is nothing in United’s petition alleg ing what, specific ally
, the levy ’s order s wer e with
respe ct to Aar on. Assuming Aar on knew of the alleg ed levy
, the petition does not alleg e the mandates of the order such that a finding of a willful violation of the order could possibly be sustained. United arg

ues that such alleg ations are unnece ssary b ec au s e a levy
, by its very nature , vests in the office r enfor cing it owner ship interests in the seized g oods and, there fore
, a person cannot interfe re with the office r’s interests absent a court order

. Pearl v. W ellman
, 8 I ll. 311, 321 (1846). United arg ues that disclosures of the levy ’s mandates are unnece ssary beca use “it is a known fac t” that one cannot “interf ere with the possession of seized proper ty in the possession of the sheri ff

. ” I t fu rt h er notes that it is not essential for the sheriff to

remove the proper

ty to eff ect a levy

. Gaines v. Bec ker
, 7 I l l

. Ap p

. 3 1 5
, 318 (1880). Neve rtheless, United misses the critica l point that the exis tence of a levy and what it require s must be communic at ed i n o rd er for one to willfully violate it. I n Gaines
, for example, the
court noted that, while an actua l seizure or “manua l caption” is not e ssential to e ffe ctuate a levy
, “the acts of t he officer must be open and unequivocal,” and “[t] here can be no doubt that wher e the levy is soug ht to be sustained as ag ainst third parties acquir ing an interest in the proper

ty , th e l ev y m u s t b e proven with g reater strictness than when the rig hts of the defe ndant only

are involved, and that in the former case a mer e ‘pe n and ink’ levy will not avail.” ( I nterna l quotation marks omitted.) Id. at 317-18. ¶ 21 Her e, Aa ro n i s n o t the judgme nt debtor and the vehicles wer e not phy sically seized; there fore
, acc ording to Gaines
, the levy must be proved with g reat strictness and the seizure actions m ust be open and unequivocal. However, the petition here does not alleg e that the seizure was open and unequivoca l such that Aar on would know what she could or could not

-6-d o

. For example, the petition does not alleg e that there wer e signs posted throug h o u t t h e

parking lot, or stickers posted on eac h v eh i cl e, an n o uncing that they wer e seized by the sheriff and that they could not be driven by Aar on or anyone in her employ

. I n contra st, the

o nly document presented by United i n support of t he allege d levy is an inventory wi t h t h e word “seized” crosse d out. The alleg edly seized vehicles rema ined parke d in the parking lot of Aa ron’s plac e of business. The petition does not alleg e how the exis tence of the a lleg ed levy and its mandates wer e communicated to Aar on, a third person, who claims an

owner ship interest in the proper ty . Thus, there is nothing in the petition alleg ing the “open and unequivoca l” actions that Gaines contemplates for levies that do not phy sically seize the
proper ty

. ¶ 22 Neve rtheless, United claims, any failure on Aar on’s behalf to know that “interf

ere nce” constitutes contempt is inexcusable ignor ance of the law. Howeve r, t h e q u es t ions that the petition fails to addre ss are what, here
, constitutes c ontemptuous inter fer ence and how that

was communicated to Aar on. United cites Anderson v. Mace k
, 350 I ll. 135, 137 (1932), for the broa d proposition that “any interfe renc e” with a court office r’s possession of prope rty , without court permission, constitutes contempt. Howeve r, in Anderson
, the court off icer padlocke d the doors, locked all windows, and posted notices on the seized proper ty stating that, by court order
, any one interfe ring with the court’s posse ssion would be ruled to show

cause why he or she should not be cited for contempt. Fur ther, the fac ts established that, in addition to those measure s announcing the s eizure, the de fenda nt had personal knowledg e that the proper

ty had been seized. Neve rtheless, and without court permission, the defe ndant used a scre wdriver and pliers to brea k throug h the padlocke d doors, enter ed the premises, and

remove d proper

ty

. Id. at 136-37. Her e, wher e there are no alleg ations that the seizure was

announce d in such a way as to make clea r that driving the vehicles (as opposed to selling the

v e h icles, moving the vehicles, opening the vehicles’ doors to retrie ve owner ship in f o r ma ti o n , clea ning off the vehicles’ windows, etc.) constitutes interfe renc e with a levy o rder and contempt of court, the petition fails to establish that Aar on’s conduct ref lected a violation of the mandate s of that orde r, let alone a willful violation. ¶ 23 Simi larly
, we reje ct United’s relia n ce on authority ref lecting that contempt may arise from attempting to take prope rty from an of

fice r’s possession ( Gates v. People , 6 I ll. App. 383, 386 (1880) (sheriff did not remove seized jewelr y from st ore, but left i t in custody of debtor’s employ ee; t h i rd party enter ed the store and remove d the g oods levied))
, or from

conce aling or ref

using to deliver proper

ty so that i t ca n not be taken (735 I L CS 5/12-301 (West 2008)), wher e none of the petition’s alleg ations asser t that Aar on tried to conce al the
proper ty or take it from the sheriff

. I nstead, Aa ro n i s acc used of violating the order by direc ting and/or allowing vehic l es t o b e u sed. I n our view, wher e the vehicles wer e not

remove d from Unique Gre en’s parking lot, and there are no alleg ations that Aaron had direc t

n otice of the levy and its dictates or that such dictates wer e obvious on t h e v eh i cl es themselves or in the parking l o t , we ag ree that the petition for criminal contempt fails to sufficie ntly plead the exis tence of an order that Aar on willfully and contumaciously violated. ¶ 24 Acc ording ly
, we do not rea ch United’s arg ument on appea l reg arding whether Bouslog ’s alleg ed admissions on Aar on’s behalf should be admissible at the criminal contempt hear ing. W e n o te, howeve r, that none of the alleg ed admissions ( i.e.
, that Aar on had a personal

-7-rela tionship with L orenc e, th at Un i q u e Gre en operated the vehicles on May 28, 2010, and

that one of those vehicles was listed on the sheriff ’s inventory

of prope rty

) would alter

our fore g oing analy sis beca

use, at best, they conce rn Aar on’s alleg ed knowledg e of the exis tence of a levy
, a fac t we presume for purposes of our analy sis
, b u t t hey do not conce rn any knowledg e by her or communication to her reg arding the levy ’s scope of prohibited conduct such that a w illful viol ation could be f ound.

¶ 25 I I I . CONCL USI ON ¶ 26 For the forego i n g re as o n s , t h e j u d gm en t of the circ uit court of Du Pag e County is aff irmed.

¶ 27 Affir

med.

-8-