2013 I LApp (1st) 121406 No. 1-12-1406

SI XTH DIVI SI ON September 27, 2013

I N THE APPEL LATE COURT OF I L L I NOI S FI RST J UDI CI AL

DI STRI CT

MI CHAEL

A. DOWNS, ) Appea l from the ) Circuit Court of Plaintiff-Appellant, ) Cook County

. ) v. ) ) L ESL I E ROSENTHAL ; J . ROBERT COL L I NS; ) DREADNOU GHT PARTNERS, L .L .C.; and ) No. 04 CH 1129 KNOT, L .L .C., ) ) Def endants-A

ppellees ) ) (Rosenthal Collins Group, L .L .C., ) The Honor able ) L eRoy

K. Martin, Jr., Def endant)

. ) J udg e Presiding

. J USTI CE L AMPKI

N deliver ed the judg ment of the c ourt, with opinion. Presiding Justice Rochford a nd J ustice Ha ll concurr ed in the judg ment and opinion. O P I N I O N ¶ 1 Plaintiff, Michael A. D owns, appe als the circ uit court' s order barr ing him fr om rec overing damag es fr om the individual, nonappealingdefe ndants, L eslie Rosenthal (Rosenthal) , J . Robert Colli ns (Collins), Dreadnought Partners, L .L .C. (Dre adnoug ht), and Knot, L .L .C. (Knot) of the underlying or der. Plaintiff c ontends that this court' s opinion rever sing the circ uit court' s orig inal1-12-1406

order in favor of

plaintiff was limited to the appe alingdefe ndant, Rosenthal Collins Group, L .L .C. (RCG), and does not extend to the individual, nonappealingdefe ndants. Instead, plaintiff contends that, be cause the individual, nonappea ling de fenda nts chose not to file an a

ppeal of the circ uit court' s orig inal final judg ment, the orde r is res judicata and no cour t had jurisdiction to overturn the order

as to them. Ba sed on the following , we a ffirm. ¶ 2 FACTS ¶ 3 This case appea

rs bef ore us a second time. See Downs v. Rosenthal Collins Group, L.L.C

. , 2011 I LApp (1st) 090970. RCG was a limit ed liability

company (L .L .C.) that hired plaintiff in August of 1997 and ter minated plaintiff on January 5, 2004. Colli ns and Rosenthal

wer e the major ity

owner s of RCG. Accor ding to plaintiff, Collins transfe rre d his ownership interest in RCG to Knot in 2003, and Coll ins owned the c ontrolling intere st in Knot. S imilarly , Rosenthal transfe rre d his ownership intere st in RC G to Dre adnoug ht in 2003, and Rosenthal owned the c ontrolling intere st in Dreadnought. ¶ 4 In his third amended c omplaint, plaintiff asserte d five c ounts all essentially alleg ing that he had a n owner ship interest in his former c ompany and wa s entitled to the resultingprofits of the company . Specifica lly , in count I , plaintiff re quested a decla ratory judgme nt that he maintained an ownership intere st in RC G and a n injunction for an a ccounting and to " partition his interest from that of de fenda nts Coll ins, Rosenthal, Knot, and Dre adnoug ht; and/or [require] defe ndants RCG, Coll ins, Rosenthal, Knot, and Dre adnoug ht to accor d Downs all rig hts

commensurate with his ownership intere st including his share of prof its." In count I I , plaintiff alleg ed the individual def endants, a s majority

owner s, brea ched the ir fiduciar y duty owed to

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plaintiff. In count I I I , plaintiff alleg ed RCG brea ched his e mploy ment ag ree ment by

failingto make se vera

nce pa y ments. In count IV, plaintiff alleg ed, in the alter native to counts I

and I I , that RCG breac hed his employ ment ag ree ment reg ardinghis 2.5% equity interest. In count V, plaintiff alleg ed, in the alter native to counts I

and I I , that RCG breac hed an or al contra ct under which plaintiff wa s to rece ive an a dditional 4% equity interest. ¶ 5 On Fe bruar

y 6, 2009, the circ uit court found that plaintiff he ld a 2.5% owne rship interest in RCG despite not having pa id the requisite " book value" for those sha res a s provided in his employ ment contra ct and or dere d that he be pa id the resultingprofit/loss dist ributions since his termination from the c ompany in 2004. Specifica lly , duringits oral ruling , the circ uit court stated: "I

think Mr. Downs is owed two and a half pe rce nt of whate ver distributions wer e made for Rosenthal a nd Colli ns from January

of 2004 to the prese nt. *** *** [T] oday ' s order

shall direct the de fenda

nts to convey

to Mr. Downs, two and a ha lf perc ent owner ship in the company . They are to pay

him *** two and a ha lf perc ent of the distributions that were made be tween January ' 04 and today , minus the $125,000 that Mr. Downs owes to them for the ac quisiti on of those share s. * * * So Ithink [ plaintiff' s] damage s are whateve r Rosenthal and Collins owes him from distributions that wer e made betwee n J anuar y of 2004 and F ebrua

ry 6th,

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2009. Those ar e his damag es, and he ' s owed those sha res. So at this point, he owns them. Pursuant to my order , he owns those sha res. And your client is direc ted to execute whatever documents ar e nee ded or ne cessa ry so that a proof

of

owner ship is evidently

shown." On Marc h 20, 2009, the circ uit court enter ed a written order , finding :

"Plaintiff Micha el Downs owns a 2.5% equity

owner ship *** in defenda nt RCG (the Rosenthal Collins Group L L C). Downs shall be put in the same position reg ardinghis interest in RCG and distributi ons there f rom that he would have he ld had his 2.5% equity interest in RCG been r ecognized from J anuar y 1, 2004 throug h the pre sent; *** the defe ndants are order ed to pay the fore g oing amounts, minus $125,000 ***. R CG shall issue the appropr iate tax schedule(s) to Downs in conjunction with this pay ment, providingthe same tax treatment to Downs' distributions and alloca tions as was g iven to those of De fenda nts Rosenthal and Collins during the same time period." RCG and plaintiff both appea led the dec ision. ¶ 6 Whil e the a

ppeal wa s pending , plaintiff and RCG enter ed into an esc row a g ree ment under which RCG deposited $5 million i n an esc row a ccount to ser ve as a n appea l bond for the "mone tary

portion" of

the Marc h 20, 2009, order . On May 29, 2009, the circ uit court enter ed an order confirmingthe esc row a g ree ment and statingthat "[d]uring the pe ndency of the Appe al of this Court's Marc h 20, 2009 Orde r, neither Downs nor the D efe ndants shall encumbe r (outside the ordinar

y course of business), tra

nsfer or otherw ise dispose of the 2.5% equity interest in RCG

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which is the subject of

the Marc h 20, 2009 Orde r and RCG' s Appea l of that order on April 16, 2009." I n addition, the court' s May 29, 2009, order

stay ed the e nforc ement of the Marc h 20, 2009, order

pendingappea l. ¶ 7 On J uly

14, 2009, the circ uit court g rante d plaintiff' s motion allowing for prejudg ment interest on his withheld sever ance pay , his withheld distribut ions through 2007, a nd his profit distributions from January 1, 2008, through Marc h 20, 2009. ¶ 8 On May

21, 2010, plaintiff filed c itations to di scover the assets of the four nona ppealing defe ndants. In response , defe ndants filed motions to quash the citations. On J une 11, 2010, despite ac knowledg ing the "g ener al principa l [ sic ] t hat if a pa rty fails to take a

n appea l, once the appea l rig hts have pa ssed one ha s a rig ht to collect, pursue c ollections of the judg ment pursuant to citation proce eding s," the circ uit court enter ed an or der qua shing pla intiff' s citations to discover the assets of the individual def endants, findingthe May

29, 2009, stay

order stay ed enfor ceme nt of the Mar ch 20, 2009, orde r as to the individual def endants. In so ruling, the circ uit court relied on the conduct of plaintiff in terms of wa iting 14 months after entry of the Marc h 20, 2009, order

and 13 months after

the appe al rig hts would have lapse d to seek c itation proce eding s, and the languag e of the escr ow agree ment which provide d for the plur al form of "de fenda nts" ther eby

indicatingthat plaintiff and RCG did not anticipate a ny form of c ollection on the Marc h 20, 2009, order until the conclusion of the appe llate proc eeding s. ¶ 9 In response , on J une 18, 2010, plaintiff f iled a motion to modify

the May 29, 2009, stay order , arguing that the stay order should not have applied to the individual def endants be cause their fa ilure to appe al the Mar ch 20, 2009, orde r ca used them to be liable f

or the de clar ation of

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money owed no matter

the outcome of

RCG's a ppeal. On July

19, 2010, followinga hea ring , the circ uit court denied pla intiff' s motion t o modify the stay order , but set the matter f or " further proce eding s on this mot ion" f or Jul y 29, 2010. In so finding, the circ uit court opined that, beca use the individual defe ndants " did not take an a ppeal, that at the end of the day they ' re g oing to be re sponsible for the judg ment no matter what happens with RCG." H oweve r, ac cordingto the languag e of the escr ow agree ment, it was the cour t's be lief that any

judgme nt would be satisfied by

the esc row a ccount a

nd, there fore , rele ase of

those funds wa s stayed until the conclusion of the a

ppeal. The matter wa s continued a numbe r of times to allow the pa rties to deter mine whether

the esc row a g ree ment stay ed collec tion of the Marc h 20, 2009, order as related to the individual defe ndants. ¶ 10 Then, on August 26, 2010, the parties e ntere d an agree d order , providing :

"1. D efe ndant Rosenthal Collins Group, L .L .C. has deposited asse ts into an Escr ow Acc ount pursuant to an Escr ow Ag ree ment enter ed into by and among Plaintiff Michael A. D owns, Rosenthal Collins Group, L .L .C. and Fifth Third Ba nk in May

of 2009. The E scrow A gree ment, which re mains in force , provides

secur ity for the a ppeal of Rosenthal Colli ns Group, L .L .C. of the monetar y portion of the Judgment ag ainst Rosenthal Colli ns Group, L .L .C. in Downs v. RCG, et al. , Case No. 04 CH 11729 (the ' Appea l') . Those asse ts, toge ther with any funds in the Escr ow Acc ount, shall also stand as sec urity for a ll damag es owe d by L eslie Rosenthal, J . Robert Collins, Dreadnought Partners, L .L .C. and Knot, L .L .C., pursuant to the fina l judgment a g ainst them entere d in Downs v. RCG, et al. , Case

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No. 04 CH 11729, by

the Circuit Court of Cook County , on Marc h 20, 2009, including post-judg ment interest, and the order dated July

14, 2009 (collec tively the ' J udg ment' ). 2. Rosenthal Colli ns Group, L .L .C., L eslie Rosenthal, J. R obert Collins, Dre adnoug ht Partners, L .L .C. and Knot, L .L .C. shall have thirty (30) da y s followingthe occ urre nce of one of the events set f

orth below in par ag raph 3 to satisfy the J udg ment. I f the Judgment, includingpost-judgme nt interest, is not paid in full within thi rty

(30) da y s after the occ urre nce of

one of those e vents, absent a n order from the I llinois Appellate Court or the I llinois Supreme Court to the contra ry , the funds in the Escr ow Acc ount shall be used to satisfy the J udg ment. 3. The pa y ment to Michael A. D owns detailed in pa ragraph 2 sha ll be made upon the oc curr ence of any one of the followingevents: (a ) the date of a n Orde r of the I llinois First District Appe llate Court including the Appea l in favor of Rosenthal Collins Group, L .L .C.; (b) the last day by which Rosenthal Collins Group, L .L .C. may

file a timely

petition for leave to appea l to the I llinois Supreme Court of an orde r of the I llinois First District Appe llate Court including the Appea l in favor of

Michae l A. Downs; (c) the date of an orde r of the I llinois Supreme Court deny

ing pe tition for leave to a ppeal br oug ht by

Rosenthal Colli ns Group, L .L .C. seekingrevie w of the A ppeal; or ( d) an or der of

the I llinois Supreme Court conc luding its revie w of the A ppeal.

-7-1-12-1406 4. This Court will retain jurisdiction to enforce the Court' s order s and to

adjudicate any

dispute relate d there to." The a g ree d order

was sig ned by

plaintiff' s attorney , one of " defe ndants' attorney s," a nd the judg e. ¶ 11 On Dec ember

16, 2011, we r ever sed the c ircuit court' s decision, instead findingthat plaintiff was not a

2.5% owne r of RCG. Downs , 2011 I LApp (1st ) 090970, ¶¶ 24-44. Specifica lly , our opinion provided that " [b] eca use we have f

ound plaintiff was not a

2.5% owne r of RCG, we c onclude plaintiff w as not entitled to 2.5% profit/loss distributi ons since 2004 and, conseque ntly , was not entitled to prejudg ment interest on that aw ard." Id . ¶ 44. We 1 subsequently

denied plaintiff' s petition for rehe aring

. ¶ 12 On Dec ember

23, 2011, RCG filed a motion to cance l and re lease the appe al bond in the circ uit court. In the motion, RC G claimed that "[a]s the Court is also aware , afte r the postingof the Appea l Bond, a

n issue arose relating to whe ther L ESL I E ROSENTHAL , ROBERT COL L I NS, KNOT PARTNERS, L .L .C., AND DREADN OUGHT PARTNERS, L .L .C. were in addition to RC G re sponsible for [the decla ration of money

owed in the c ircuit court' s Marc h 20, 2009, order ]. That matter was r esolved by the entry of an A g ree d Orde r." Plaintiff filed a response and RCG filed a r eply . On J anuar y 4, 2012, the circ uit court held a he aringon the motion. During the hear ing, the circ uit court opined that " it was my deter mination that Mr. Downs wa s entitled to 2.5 perce nt interest in Rosenthal Colli ns, and we all agree d that there wer e the four nona

ppealingdefe ndants; but Iwonder ed***, in light of the appe llate cour

t's r uling, how

The I llinois Supreme Court denie d plaintiff' s reque st for a supe rvisory order direc ting 1 this court to remand the cause for e ntry of judg ment. -8-1-12-1406

we' d be in a position to enforc e that ag ainst the nonappe alingdefe ndants when the majority clea rly found that Mr. Downs is not entitl ed to the 2.5 per cent." The matter , howeve r, wa s continued fr om time to ti me there afte r. ¶ 13 Then, on F ebrua

ry 10, 2012, plaintiff filed a motion for rele ase of

the esc row funds. O n Fe bruar y 29, 2012, the individual defe ndants filed a r esponse in opposition to plainti ff' s motion and in support of RCG' s motion t o canc el and r elea se the a ppeal bond. ¶ 14 On April 12, 2012, this court issued its final mandate

. On April 24, 2012, plaintiff filed 2 a motion to stay

pendingappea l pursuant to I llinois Supreme Court Rule 305(b) ( eff . J uly 1, 2004). On Apr il 25, 2012, the circuit cour t entere d an orde r g rantingRCG's motion to canc el and rele ase the appea l bond and deny ing pla intiff' s motion t o rele ase the escr ow funds. The order , howeve r, stayed the r elea se of the a ppeal bond/esc row until a sche duled hea ringon May

4, 2012. Duringthe hea

ringon that date, the c ircuit court state d: "Clea rly , my deter mination was that Mr. Downs wa s to pay $125,000 for a

n interest in RCG. The Appe llate Court' s deter mination that Mr. Downs did not own or was not e ntitled to an intere st in RC G, I

think, really

settled the issue. Bec ause it wasn't the individuals who ow ed Mr. Downs the intere st in RCG. RCG owed itself, owed a perc entag e of itself. And the Appellate Court has deter

mined that, no, it didn't. It found that that deter mination on my

part wa s err or, wa s ag ainst the manifest

This court' s orig inal mandate issued on Ma rch 30, 2012, w as re called. 2 -9-1-12-1406 weig ht. And Idon' t think now that a deter mination by

me–I know that the plaintiff had a

rgued ea rlier that they

would have be en entitled to collect a judg ment ag ainst the individuals. And Idon' t know that that' s nece ssarily true. I think that's a

position and an argument, but the judgme nt itself, for example, that I enter ed bac k in March of

' 09, at par ag raph 2, f

or example, say s the defe ndants

are order ed to execute a ll documents nece ssary to evidence Downs' 2 and-a -half pe rce nt ownership intere st in RC G. Well, clearly , for me to or der the individual defenda nts to execute docume nts to evidence Mr. Downs' owner ship interest in RCG after the Appellate Court ha s determined that Mr. Downs doesn' t own a 2-a

nd-a- half [perc ent] int ere st in RC G is to go ag ainst the mandate of the Appe llate Court. * * * So there's simply nothing there to be enforce d against these individual defendants. And, quite fra nkly , looking at the judgme nt order , that judgme nt order, a g ain, re ally in my opinion, it really g ear s itself towards for cingthe individual defe ndants to execute documents and to do whatever is nece ssary

in order to a ssure that Mr. Downs g ot his 2-and-a -half pe rce nt interest in Rosenthal Colli ns, into RC G.

-10-1-12-1406 * * * The declaratory portion of the judgment was that Mr. Downs was ow ed a 2-and- a-half perce nt interest in the company. The Appellate Court reverse d that. And so the 2-and-a-half perce nt that he was ow ed was against RCG. It wasn't against the individual defendants. That he' s owed the 2- and-a -half pe rce nt, he

was owe d 2-and- a-ha lf perc ent of RCG. And the Appe llate Court deter mined, no, he wa sn' t. So that's the e nd of the de clar atory portion." ( Emphases a dded.) ¶ 15 On May

3, 2012, plaintiff filed c itations to di scover defe ndants' assets, see king approximately

$1.5 milli on ag ainst eac h defe ndant, which r epre sented the lost profits conne cted to the 2.5% dec laration of money owed. De fenda

nts filed a motion to quash the citations in response . On May

4, 2012, the circ uit court g rante d defe ndants' motion to quash the citations to discover a ssets, denied plaintiff' s Rule 305(b) motion to stay pendingappea l, and g rante d RCG's motion to cancel a

nd rele ase the appea l bond. Howeve r, the c ircuit court stayed the r elea se of the appea l bond based on plaintiff' s oral motion seekinga stay of the orde r. ¶ 16 Then, on May

18, 2012, plaintiff filed a notice of a

ppeal of the circ uit court' s April 25, 2012, and May

4, 2012, order s. Specifica lly , plaintiff soug ht reve rsal of: "the trial court' s determination in its order on A pril 25, 2012, that the Def endants who did not appea l the final judg ment enter ed ag ainst them are to be g iven the benef it of the succe ssful appea l by co-D efe ndant Rosenthal Collins Group, L .L .C.,

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such that the trial c ourt would not enfor ce the previously -ente red a g ree d order providingthat Appellant could c ollect his final judg ment ag ainst the nonappea ling De fenda

nts if the appea ling De fenda nt preva iled on appea l. Appellant also seeks the reve rsal of the trial court' s decision in its order of Ma y 4, 2012, to quash Appe llant's Citations to Discover A ssets whereby Appellant soug ht to collect his final judg ment ag ainst the non-appe alingDef endants." We turn now to the arguments prese nted by the par ties. ¶ 17 DECI SI ON ¶ 18 The ultimate issue in this case is whe ther the c ircuit court' s Marc h 20, 2009, order should be enf orce d ag ainst the individual defenda nts, thereby

requiringthe individual defe ndants to pay the 2.5% prof

it/los s distributi ons of RCG to plaintiff despite the fa ct that this court over turned the circ uit court' s prior orde r, findingthat plaintiff was not an owne r and not entitled to the reque sted distributions. P laintiff contends the circ uit court' s Marc h 20, 2009, order findingin his favor was a final judg ment as to the individual defe ndants, which the individual def endants did not appea l, thereby

makingthe orde r res judicata . As a re sult, plainti ff c ontends the circ uit court

err ed in re fusingto permit him to collect the money he is owed f

rom the individual defe ndants by quashinghis citations to dis cover the assets of the individual defenda nts and by

denying the rele ase of the esc row funds to him. ¶ 19 Whether the c ircuit court pr operly quashed pla intiff' s citations to discover asse ts is a question of law, whic h we r eview de novo

. Thorson v. La Sall e National Bank , 303 I ll. App. 3d 711, 714 (1999). Similarly , whether the circ uit court err ed in re fusingto relea se the e scrow

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funds to plaintiff was ba sed on a que stion of law, which we revie w de novo . See, e.g. , id

. ¶ 20 We rec og nize the ge nera l leg al pre mise that a nonappe alingdefe ndant may not benef

it from the e ffor

ts of an appe alingdefe ndant. Otta v. Otta , 58 I ll. App. 2d 63, 72 (1965) (c iting Griffin v. Griffi n , 29 I ll. 2d 354, 362 (1963)); see Nickel Plate Clove rleaf Federal Credit Union v. W hite , 120 I ll. App. 2d 91, 94 (1970). " [W ]hen a judg ment or dec ree ag ainst two or more defe ndants is vacated as to one of them, it need not for that rea son alone be vacated as to any of the others, a

nd should not be vacated as to any of the other s unless it appear s that beca use of a n interdepe ndence of the rights of the def endants or be cause of other spe cial fa ctors it would be prejudicia l and inequitable to leave the judg ment standingag ainst them." Chmielewski v. Marich , 2 I ll. 2d 568, 576 (1954). Ther efor e, Chmielewski does not requir e enf

orce ment of a judgme nt ag ainst the nonappe alingdefe ndants if the cir cumstance s demonstrate that it would be prejudicia l and inequitable to impose the judg ment wher e ther e is an interde pendenc e of the defe ndants' substantive rig hts. Id

. ¶ 21 In the ca se bef

ore us, plaintiff' s rig ht to the profits of RCG was complete ly depende nt on his ownership intere st in RC G. Specific ally , the circ uit court found:

“1. Plaintiff Michae l Downs owns a 2.5% equity owner ship (two point five per cent) in defe ndant RCG (the Rosenthal Collins Group L .L .C.). Downs shall be put in the same position reg arding his interest in RCG and distributi ons there f rom that he would have held had his 2.5% e quity

interest in RCG been r ecognized from J anuar y 1, 2004 through the pre sent;

-13-1-12-1406 2. Def endants a re or dere d to execute all documents

nece ssary to evidence Downs’ 2.5% owner ship interest in RCG; 3. Downs is entitled to a 2.5% owne rship profit/loss distribution of RC G from January 2004 throug h the pre sent and on a g oing f orwa rd basis. RCG is to provide Downs with all documents suffic ient to show RCG’s distribut ions and profitability from January

1, 2008 to date, and in c onnection with any and all future distributions; 4. Fr om J anuar

y 1, 2004 throug h Dec ember 31, 2007 Downs is owed $1,181,092.60 a s his profit/loss di stributions for his 2.5% equity

owner ship interest. Downs is also owed 2.5% of RCG’s profit/loss dis tributions from J anuar y 2008 to date. 5. The de fenda

nts are or dere d to pay

the fore g oing amounts, minus $125,000 (one hundred a nd twenty five thousand dollars). RCG shall issue the appr opriate tax schedule (s) to Downs in conjunction with this pay ment, providingthe same tax treatment to Downs’ distributions and allocations as wa s g iven to those of Def endants Rosenthal a

nd Colli ns duringthe same time pe riod; 6. The $125,000 re prese nts Downs’ pay ment for his 2.5% equity interest in RCG. The cour t finds that the book value of

owner ship interest of L es Rosenthal and Rober t Coll ins in 1997

-14-1-12-1406 was $5 million; and 7. The c ourt holds that Mr. Downs does not have an additional 4% equity

owner ship interest in RCG because Mr. Downs and Mr . Rosenthal had diffe rent unde rstanding s of their ag ree ment and did not have a meetingof the minds. This decision is a final a

nd appea lable orde r and the re is no just reason for

delay .” Although not e x pressly

stated in the Mar ch 20, 2009, orde r, we assume fr om the context of the circ uit court' s ruling a

nd the subsequent he aring s that the court' s ruling w as ente red on c ount Iof plaintiff' s third amended c omplaint, namely , the dec lara tion of rig hts and dec laration of resulting profits. Per the Ma

rch 20, 2009, or der, the individual defenda nts were require d to effe ctuate plaintiff' s interest by

executing the requisite pape rwork. H oweve r, plaintiff' s ownership intere st and rights to profits were invalidated by this court in the initial appeal whe n we f ound that plaintiff was not a

n owner of RCG and, there fore , was not entitled to any profits there from. Downs , 2011 I L

App (1st ) 090970, ¶ 44. ¶ 22 Notwithstanding, pla intiff argues that, bec ause the circ uit court' s Marc h 20, 2009, order stated " the defendants are order ed to pay the fore g oing a

mounts, mi nus $125,000," the court intended to enter

a money judgme nt ag ainst the individual defenda nts. (Emphasis added.) Contrary to plaintiff' s assertion that the c ircuit court spe cifica lly provided " that the nonappe aling defe ndants wer e liable to Downs f or distributions they

rec eived," no such languag e appe ars in the circ uit court' s order . After thoroug hly

revie wingthe re cord, how ever , the circ uit court' s Marc h

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20, 2009, order

is ambiguous. As pr ovided in our fa ct sec tion of this opini on, the circ uit court made c ontradictingstatements on the re cord r eg ardingwhether the individual defe ndants would be held liable f

or the de clar ation of money owed. How ever , we ne ed not make a deter mination as to the circ uit court' s ambig uity wher e our inter

pretation of the circ uit court' s order is not dispositi ve to this case. ¶ 23 Rather, e ven assuming , arguendo , there was a money judgme nt entere d ag ainst the individual defenda

nts, it would be directly

contra ry to our findingin the initial appeal to impose that judgme nt upon the individual defenda nts and, thus, prejudicial a nd inequitable to leave the Marc h 20, 2009, order

standing . See Chmielewski , 2 I ll. 2d at 576; MeldocProperties v. Pre zell , 158 I ll. App. 3d 212, 217 (1987) (judg ment vacated as to the a ppealing defe ndant and the nonappea ling de fenda

nt where the appe llate cour t concluded it would be ine quitable to impose an ag ree d order

ag ainst the nonappe alingdefe ndant when the order was e ntere d with the understandingthat both defe ndants would be bound ther eby ). Where the decla

ration of money owed pur suant to the Marc h 20, 2009, order was a direc t ext ension and interde pendent upon the decla ration of owne rship rig hts, which we inva lidated, it would be pre judicial and inequitable to impose the Marc h 20, 2009, order ag ainst the individual defenda nts when their only

clea r responsibility , based on the languag e of the order , was to ef fec tuate plaintiff' s interest in RCG. Plainly stated, in the initial appea l, we found that plaintiff owns nothing a nd was not entitled to any distributions ; theref

ore, to e nforc e the c ircuit court' s Marc h 20, 2009, order ag ainst the individual defenda

nts would produce a

windfall for

plaintiff. Downs , 2011 I LApp (1st ) 090970, ¶ 44.

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¶ 24 Plaintiff is seekingto enforc e a mone y judgme nt on individual defenda nts, members of a

n L .L .C., based on purpor

ted obligations of RCG, the L .L .C. Due to the cor porate structure of RCG, namely , as an L .L .C., the individual defenda nts could not be persona lly liable for the obligations of RCG. 805 I L CS 180/ 10-10(a ) (West 2010) (" Ex cept a s otherwise pr ovided ***, the debts, oblig ations, and liabilities of a limited liabili ty company , whether

arisingin contrac t, tort, or otherw ise, are solely the debts, oblig ations, and liabilities of the company . A member or manag er is not per sonally liable for a

debt, obligation, or liabilit y of the c ompany

solely by

rea son of beingor ac ting a s a member or mana g er." ). Ther efor e, it would be pre judicial and inequitable to impose the money judgme nt on the individual defenda nts due to the interdepe ndence of rig hts betwee n RCG and the individual defe ndants as member s of RCG simil ar to the r esult in National Bank of Austin v. First W isconsin Nati onal Bank of Milwaukee , 53 I ll. App. 3d 482 (1977). In National Bank of Austin , a mortg ag e for eclosure proce eding , the appellate court found it would be pr ejudicial and ine quitable to impose a def iciency judgme nt ag ainst a par

tnership due to the inter depende nce of the rights of the individual partner s for whom the judg ment had bee n vacated. Id . at 492. In other wor ds, the National Bank of Austin court found it would be improper to allow the obliga

tion of the partne rship to stand as to the money defic iency

judgme nt where it would cause the individual partners to be liable despite having be en deeme d not liable. Id . There fore , the National Bank of Austin court, to ac hieve a n "e quitable result," vacated the def

iciency judgme nt as to all parties. Id . In this case, be cause we have found there was no oblig ation of RCG as an L .L .C. to plainti ff, it would be inequitable and pre judicial to impose any

obligation on the individual defenda nts in their capa city

as member s of the L .L .C.

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In sum, based on the c ircumstance s, we c onclude that the c ircuit court' s Marc h 20, 2009, order is not enforc eable ag ainst the individual defenda nts. ¶ 25 Fur

ther, we find the doctrine of res judicata does not apply to the instant case. " ' The doctrine of res judicata provides that a f inal judgme nt on the merits rende red by a cour t of competent jurisdiction bar s any subsequent actions betwee n the same pa rties or their pr ivies on the same c ause of

action.' " ( Emphasis added.) Hudson v. City of Chicago , 228 I ll. 2d 462, 467 (2008) ( quoting Rein v. D avid A. Noyes &Co. , 172 I ll. 2d 325, 334 (1996)). The three require ments for the a

pplication of res judicata are : (1) a f inal judgme nt on the merits having been r ender ed by

a cour t of compete nt jurisdiction; (2) an identity of causes of ac tion; and (3) identical par

ties or privies in both actions

. Id . The doc trine of res judicata bars not only what was de cided in the first action , but also whateve r could have bee n decide d. Id

. ¶ 26 Ag ain, eve n assuming, arguendo, that there was a judgme nt entere d ag ainst the individual defe ndants, the key

fac t preve nting the a

pplication of the doc trine of res judicata to the instant matter is the lac k of a subse quent ca use of a ction. Pursuant to section 2-1402 of the Code of Civil Procedur e (Code) (735 I L CS 5/ 2-1402 (West 2010)), " [a] judgme nt cre ditor *** is entitled to prosecute supplementary proce eding s for the pur

poses of e x amining the judgme nt debtor or any other pe rson to discover a ssets or income of the debtor not e x empt from the e nforc ement of the judg ment, a deduc tion order or g arnishment, and of

compellingthe application of nonexempt assets or income discove red towa rd the pa y ment of the amount due under the judgme nt. A supplementar

y proce edingshall be commenc ed by the servic e of a

citation issued by

the cler k. The proc edure for c onductingsupplementary proce eding s shall be pre scribed by the rules." 735

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I L CS 5/ 2-1402(a ) (West 2010). Ac cording ly , when plaintiff initiated c itation procee dings ag ainst the individual defenda nts while the underly

ing a ppeal wa s beingconsidere d by this court, those proce eding s were supplementary to the circ uit court' s Marc h 20, 2009, order . In fac t, the circ uit court quashed the citations on J une 11, 2010, and Ma y 4, 2012, beca

use the c itation proce eding s were stay ed until resolution of this court' s appea l in the initi al instance and our finding s invalidated the c ircuit court' s judgme nt in the second instance

. ¶ 27 Plaintiff argues, within a footnote a bsent citation to releva

nt authority

in violation of I llinois Supreme Court Rule 341(h)( 7) (e ff. Septembe r 1, 2006), that a citation proce edingis a "c ollatera l attack" barr ed by res judicata . The leg islature, howe ver, e x pressly stated that a citation proce edingis a " supplementary proce eding " w ithout defining the term. 735 I L CS 5/ 2- 1402(a) (West 2010). Acc ordingto Blac k' s L aw Dic tionary , a collate ral proc eedingis "[a] proce edingbroug ht to address a n issue incidental to the princ ipal proce eding " while a supplementary

proce edingis "1. A pr ocee ding he ld in connection with the enf orce ment of a judgme nt, for the pur

pose of identify

ing a nd locatingthe debtor' s assets ava ilable to satisfy the judgme nt. 2. A proce edingthat in some way supplements another ." B lack' s L aw Dic tionary , 1324 (9th ed. 2009). A s defined, a citation proce edingis not the equivale nt of a c ollatera l proce eding . Rather, " ' [s] upplementar y proce eding s to collect, of whatever nature , must derive their support fr om the main judgme nt, and if the main judg ment fails the right to collect in such proce eding s must also fail.' " People e x rel. Sc ott v. Police Hall of Fame, I nc. , 69 I ll. App. 3d 501, 503 (1979) ( quoting Alsen v. Stoner , 114 I ll. App. 3d 216, 224-25 (1969)) . Her e, the citations to discover the individual def endants' assets nec essar ily failed be cause we invalidate d

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the under lying or der. We, ther efor e, conc lude that the cir cuit court did not err in quashing plaintiff' s citation proce eding s aimed at fulf illing the cour

t's Ma rch 20, 2009, or der a g ainst defe ndants based on the doctrine of res judicata

. ¶ 28 CONCLUSI ON ¶ 29 We affir

m the judgme nt of the circ uit court in finding that the individual defenda nts were not responsible for

providingdistributions to plaintiff in conjunction with the Marc h 20, 2009, order wher e our D ece mber 16, 2011, opinion invalidated plaintiff' s ability to collect any

profits. ¶ 30 Affir

med.

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