SECOND DIVISION FILED: June 22, 2010

No. 1-09-1054

ANDREW P. TOBIAS, ) APPEAL FROM THE ) CIRCUIT COURT OF Plaintiff-Appellant, ) COOK COUNTY ) v. ) ) LAKE FOREST PARTNERS, LLC, a Nevada ) limited liability company, MARK D. ) WEISSMAN, ALBERT J. MONTANO, and ) CHRISTOPHER T. FRENCH, ) ) Defendants-Appellees, ) ) No. 06 CH 18664 and ) ) MEA MANAGEMENT, LLC, ) ) Citation Respondent-Appellee, ) ) and ) ) GREYSTONE BUSINESS CREDIT II, LLC, ) HONORABLE ) ALEXANDER P. WHITE, Intervenor-Appellee. ) JUDGE PRESIDING.

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 P. Tobias, the sum of $86,845.12 heldby 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 ForestNo. 1-09-1054

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Partners, LLC, a Nevada limited l iabili ty company (Lake Forest); Weissman; Albert J. Montano ; and Christopher T. French (collectivelyreferredto as "the defendants"). The circuit court also ordered the balance of Weissman's funds being held by MEA, totaling $252,59 8.88 , to be paid as follows: $126,299.44 to Weissman andthe remaining $126,299.44 to the intervenor, Greystone Business Credit II, LLC (Greystone), the holder of a judgement renderedagainst Weissman, in the United States District Court for t he Southern District of Florida. Tobias now appeals contending that his claim for post-judgement att orn ey fees should have been adjudicated and satisfied before any of the remaining $252,598.88 of Weissman's funds held by MEA was ordered p aid to G reystone or Weissman. For the reasons which follow, we affirm the judgement 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 evidencedby 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; an d further promises, in case suit is instituted to collect the Loan or the Inter est, or any portion thereof, to pay such reasonable attorney's fees in such suit."No. 1-09-1054

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The defen dants fail ed 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 attorneyfees and costs incurred by Tobias as of that date. The order also provides t hat judgement was entered against the defendants for "any additional attorneys' fees, costs andinterest incurred after the date of this judgment." However, on motion of Tobias, the judgment was amend ed on April 5, 2007. The circuit court's order of that date entered judgment in favor of Tobias and agai nst the defendants, jointly and severally, in the sumo f $662,172.21 plus costs, but no provision was made in the order for any post-judgment attorney fees which Tobias might incur. On April 13, 2007, Greystone obtained a $4,293,401.30 ju dgement against Weissman and Lake Forest in the United S tate s District Court for the Southern District of Florida. Thereafter, Greyst one registered its judgment in the United States District Court for the Northern District of Illinois andbegan supplementary proceedings in that court to collect the judgment. In an effort to locate assets to satisfy his judgment, Tobias serveda citation to discover assets upon MEA in the instant case. Thereafter, on September 19, 20 07, an appearance was filed on behalf of MEA. Greystone served a ci tation to discover assets upon MEA on March 18, 2008, i n the supplementary proceeding which it hadNo. 1-09-1054

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institutedin the United States District Cou rt for the Northern District of Illinois. However, those proceedings have been stayed pending satisfaction of Tobias' judgment. On January 7, 2009, MEA filed a re sponse t o 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 turnover to him "an amount sufficient to satisfy the judgment andpost-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'] judgme nt is satisfiedin full, [it] *** h as 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' judgment. See 735 ILCS 5/1 2-803 (West 2008). On April 2, 2009, MEA filed an amende d response to the citation served upon it, stating that the $339,444 of Weissman's funds which it was holding consist of wages, salary, or commissions. On April 9, 2009, the circuit court granted Greystone'sNo. 1-09-1054

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petition to intervene. Thereafter, the proceedings were continued

on se veral oc casions 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 p etiti on for an award of post-judgment 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' judgment, exclusive of his unresolved claim for pos t -judgment 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 enteredan order directing MEA to pay Tobias $86,845.12 "as full

sa tisfaction" of his judgment and providing that the payme nt t o Tobias shall release the citation which he served upon MEA. Th e order directs MEA to pay the rema ini ng $252,598.88 of Weissman's funds , w hich it is holding, as follows: $126,299.44 to Weissman, and$126,299.44 t o Grey stone. Finally, the order provides that there is no just cause to delay e nf orcement or appeal and that Tobias' motion for the turn over of funds is moot. Tobias' petition for an award of post-judgment attorney fees and costs remains pending and undetermined. Tobias filed a timely notice of appeal from the April 23, 2 009, o rder, invoking our jurisdiction pursuant to Supreme CourtNo. 1-09-1054

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Rule 304(a) (210 Ill. 2d R. 304(a)). Although the circuit court’s order of April 23, 2009, contains the language of enforceability andappealability prescribed by Supreme C our t 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 p ost-judgment attorney fees. According to Tobias, his unresolved claim for post-judgment attorney fees should enjoy the same priority on the funds held by MEAas did the balance due him on the underlying judg ment. He argues that his petition for post-judgment attorney fees s houl d have been resolved and satisfied before any of Weissman's funds in the possession of MEA was ordered distributed to any other party, including Greystone. Greystone makes no argument that Tobias is not owed postjudgment attorney fees. Rather, in support of the circuit court's

o rder, it contends that the only predicate of the instant supplementary proceedings instituted by Tobias was the balance of the money judgment enteredagainst the defendants, which the trial court ordered satisfied from Weissman's funds in the possession of MEA. As for Tobias' petition for post-judgment attorney fees,No. 1-09-1054

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Greystone argues that, as the claim has neve r bee n reduced to a judgment, it cannot be enforced in a supplementary proceeding brought pursuant to section 2-1402 of the Code and never became a lien upon Weissman's funds in MEA's possession. We agree with Greystone's contentions in this regard. Section 2-1402 of the Code provides a mechanism by which a judgment creditor may initiate supplementary proceedings to discover assets of a judgment debtor in the possession of a third partyand apply those ass ets t o satisfy the judgment. 735 ILCS 5/2-1402 (West 2008). When a citation to discover assets is served in accordance with section 2-1402(a) of the Code, the judgment "or the balance due" thereon becomes a lien upon the nonexempt personal propertyof the judgment debtor in the possession of the third partyupon whom a citation to discover assets has been served. 735 ILCS 5/2-1402(m) (West 2008); Bloink v. Olson , 265 Ill. App. 3d 711, 716-17, 638 N.E.2d 406 (1994). Supreme Court Rule 277 (134 Ill. 2d R. 277) prescribes the procedure for the implementation of the supplementary proceedings providedfor in section 2-1402. Bank of Aspen v. Fox Car ta ge, Inc. , 126 Ill. 2d307, 313, 533 N.E.2d 1080 (1989). Paragraph (a) of Supreme Court Rule 277 states that "[a] supplementary proceeding authorizedby section 2-1402 of the Code of Civil Procedure maybe commenced at any time with respect to a judgment which is subject to enforcement." 134 Ill. 2d R. 277(a). Consequently, section 2- 1402 supplementary proceedings are no t available to a creditorNo. 1-09-1054

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until after an enforceable judgment has been entered. Bank of Matteson v. Brown , 283 Ill. App. 3d 599, 602 , 669 N.E. 2d 1351 (1996). Nevertheless, Tobias argues that his claim for post-judgment attorneyfees, although unresolved, is entitled t o t he same lien priorityon Weissman's funds in MEA's possession as the lien for the balance due on his underlying money judgment, no matter when those post-judgment fees are awarded. He makes the argument based upon the assertion that his claim for post-judgment attorney fees, arising from the terms of the Loan Agreement, is ancillary to the claimwhich formed the basis of his money judgment against the defendants. We reject the argument. As statedearlier, the means by which a lien is perfected upon the personal property of a judgment debtor in possession of a third partyis the service of a citation to discover assets in accordance with section 2-1402(a) of the Cod e. 735 ILCS 5/2-1402(m). However, since the supplementary proceedings authorized by section 2-140 2 may on ly be commenced with respect to a judgment which is subject to enforcement (134 Ill. 2d R. 277(a); Ericksen v. RushPresbyterian St. Luke’s Medical Center , 289 Ill. App. 3d 159, 166, 682 N.E.2d 79 (1997)), it follows that no claim c an achie ve lien status by reason of t he servi ce of a citation to discover assets until that claim has first been reduced to an enforceable judgment. Commencing with service of a citation to discover assets upon M EA and thereafter throughout the remainder of the supplementaryNo. 1-09-1054

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proceedings which are the subject of this appeal, the only judgment held by Tobias against Weissman which was subject to enforcement

was the judgment against the defendants entered on Febr uary 2 7, 2007, as amended by the order of April 5, 2007. Tobias never had

an enforceable judgment for attorney fees incurred in the collection of his underlying judgment. As a consequence, the only lien upon Weissman's nonexempt funds in the possession of MEA which was created by the service of the citation to discover assets was

a lien for the "balance due" on that underlying judgment. 735 ILCS 5/2- 1402(m) (West 2008); 134 Ill. 2d R. 277(a). No lien right s

were created for the enforcement of any unresolved claim for postjudgment attorney fees. Anyclaim which Tobias may have for post-judgment attorney fees incurred in the collection of his underlying judgment can only b ecome a lien upon the personal property of any of the jud gmen t debtors in the possession of a t hird party after that claim has been reduced to an enforceable judgment and a citation to discover assets has been served in accordance with section 2-1402 of the Code. Further, if such a claim is ever reduced to an enforceable judgment which later becomes a lien upon the property of a judgment debtor in the possession of a third party, the priority of such a lien in relation to other liens against the property of the judgment debtor in the possession of the same third party will be determinedby the ord er in which the liens were perfected. Pontikes v. Perazic , 295 Ill. App. 3d 478, 484-85, 692 N.E.2d 712No. 1-09-1054

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(1998). Finally, To bia s argues that the circuit court erred when it proceed to hearing on Weissman's motion to release the funds held byMEA before it addressed hi s peti tion for post-judgment fees. Again, we disagree. Our reading of the record reflects that the hearing on Weissman's motion on April 23, 2009, took place on the trial court's 11:15 a.m. set call. The clerk's filing stamp on Tobias' petition for post-judgment attorney fees reflects that it was filed at 1:35 p.m. on April 23, 2009. Furt her, t he record contains no evidence that Tobias' petition was noticed for hearing before the circuit court had heard and disposed of Weissman's motion. The parties are in agreement that the balance due on Tobias' underlying judgment against the defendants as of Apri l 2 3, 2009, was $86,845.12. Therefore, based upon the foregoing analysis, we conclude that the circuit court properly ordered MEA to pay Tobias $86,845.12 "in full settlement" of his underlying judgment and did not err in providing that MEA's payment to Tobias shall release the citation served upon it. Further, we find no basis for reversal by reason of the trial court having ordered the balance of the funds being held by MEA be distributed to Weissman and Greystone as Tobias had no lien rights in those funds. Affirmed. THEIS and KARNEZIS, JJ., concur.