Opinion
No. 2-12-0263 No.2-12-0489 cons.
04-24-2013
NOTICE: This order was filed under Supreme Court Rule 23(c) and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Du Page County.
No. 05-D-37
Honorable
Brian R. McKillip,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justices Zenoff and Jorgensen concurred in the judgment.
ORDER
¶ 1 Held: (1) Contemnors forfeited various arguments by not raising them in the trial court and by failing to present and support them sufficiently; (2) despite the filing of a notice of appeal, the trial court retained jurisdiction to enter an order enforcing its judgment. ¶ 2 Contemnors, C4SI, Inc. (C4SI), and Robert Peterson, appeal (1) an order requiring them to turn over assets and finding them in indirect civil contempt of court (appeal No. 2-12-0263); and (2) a subsequent order setting terms for purging the contempt (appeal No. 2-12-0489). We affirm. ¶ 3 On January 5, 2005, petitioner, Rosane Paim Huang, petitioned to dissolve her marriage to respondent, Dorge Huang. On March 1, 2005, petitioner filed a third-party action against C4SI and Peterson. Peterson was C4SI's majority shareholder and respondent was a shareholder, vice-president, director, and employee. The third-party complaint alleged as follows. Since 2000, petitioner, respondent, and their two children had resided at 629 South Ardmore in Addison (the property or the Ardmore property). C4SI held title to the property. On November 1, 2000, C4SI and respondent signed a contract under which he and his family would occupy the property full time and he had the option to purchase the property for $100 after April 1, 2003. On January 7, 2005, the trial court entered a plenary order of protection removing respondent from the Ardmore property; petitioner and the two children now lived there. Contemnors had denied that respondent had any interest in the property or any rights under the contract. Petitioner asked the court (1) to determine respondent's interest in the property; (2) to require respondent to exercise his option to buy the property for $100; and (3) to require C4SI to transfer to respondent legal title to the property. ¶ 4 On August 15, 2005, petitioner filed a petition against C4SI and Peterson to enforce an alleged settlement of the third-party action. On October 4, 2005, the trial court entered a judgment enforcing the settlement, providing as follows. Petitioner agreed to release her lis pendens on the Ardmore property so that C4SI could refinance it or sell it. In the event of a refinancing, C4SI would pay petitioner $10,000 at closing and $75,000 to a trust for the children's benefit, also at closing. Further, petitioner agreed to vacate the property within 30 days after the refinancing closed, and C4SI agreed to pay her $15,000 at that time. The parties released any further claims arising out of the facts on which the settlement was based. The order stated that respondent had no interest in the property. ¶ 5 C4SI appealed the settlement order. This court dismissed the appeal. In re Marriage of Huang, No. 2-05-1123 (2007) (unpublished order under Supreme Court Rule 23). ¶ 6 On March 7, 2008, petitioner petitioned for a rule to show cause, alleging that C4SI, by Peterson, had refinanced the property in May 2006 but had not paid the $100,000 it owed under the settlement. On March 18, 2008, she voluntarily withdrew the petition. On April 22, 2009, she again petitioned for a rule to show cause, based on the same allegations. In response, contemnors admitted that they closed on the refinancing on May 18, 2006, but they alleged that petitioner had never released her lis pendens. ¶ 7 On May 20, 2008, the trial court dismissed Peterson as a defendant in the third-party action. On November 16, 2009, the court entered a judgment requiring C4SI to pay $25,000 to petitioner personally and $75,000 to petitioner as trustee for her two children. The judgment also stated, "The Petition for Rule to Show Cause is hereby discharged." ¶ 8 In August 2010, several citations to discover assets were served on contemnors. On February 18, 2011, petitioner filed an amended turnover petition (see 735 ILCS 5/2-1402(c)(3) (West 2010)) against contemnors. Her petition alleged as follows, with documentation attached. The Ardmore property was refinanced on May 18, 2006. The borrower was Peterson individually. Peterson had previously testified under oath that the transaction realized $70,438.06, a figure corroborated by C4SI's records. On May 23, 2006, this amount was deposited into a personal checking account that Peterson and his wife had at Citibank. Thus, Peterson had converted $70,438.06 that, under the October 4, 2005, settlement order, belonged to petitioner and her children. Peterson had the sole authority to compel C4SI to turn the proceeds of the refinancing over to petitioner, but he had willfully refused to do so. Petitioner asked the trial court to find Peterson in contempt and to order him to turn over the $70,438.06 and pay petitioner's attorney fees and costs. ¶ 9 On March 18, 2011, contemnors filed a response, denying that petitioner was entitled to the turnover. They set out several "affirmative defenses": (1) petitioner's petition was untimely under the Uniform Fraudulent Transfer Act (the Fraudulent Transfer Act) (740 ILCS 160/10 (West 2010)), having been filed more than four years after the refinancing; (2) laches and (3) waiver, both based on petitioner's delay in filing the petition; (4) unclean hands, because petitioner had failed to release her lis pendens; (5) unjust enrichment and (6) setoff, based on petitioner's long residence at the property rent-free; and (7) lack of willfulness, as Peterson had used the refinancing proceeds for "legitimate corporate purposes of C4SI," such as maintaining the property. ¶ 10 In her reply, petitioner admitted that she had never released the lis pendens, but she denied that her inaction had affected the property's marketability or prospects for refinancing. She also contended that the Fraudulent Transfer Act did not apply to her petition. ¶ 11 On November 1, 2011, after a hearing for which we have no transcript or substitute, the trial court held contemnors in indirect civil contempt. The court found that the $70,438.06 in refinancing proceeds had been deposited into the Petersons' account and spent for purposes other than compliance with the settlement order. The court ordered contemnors to pay the proper recipients their proportional shares of the refinancing proceeds by January 20, 2012. The court's written order stated that, at the hearing, contemnors had stated their objections and offered to put on testimony. ¶ 12 On December 1, 2011, contemnors moved to reconsider the contempt order. On February 7, 2012, the court denied the motion and set February 29, 2012, for a "purge hearing." On March 5, 2012, Peterson moved to stay enforcement of the contempt order pending appeal (see Ill. S. Ct. R. 305(b) (eff. July 1, 2004)). That day, C4SI and Peterson filed a notice of appeal from the orders of November 1, 2011, and February 7, 2012 (appeal No. 2-12-0263). ¶ 13 On April 4, 2012, the trial court entered an order stating in part, "Purge on the previous order of contempt entered *** against Robert Peterson and C4SI, Inc. is set at $70,438.01 [sic]" and "Contemnors shall pay [petitioner] [$]70,438.01 [sic] within 30 days." On May 4, 2012, C4SI and Peterson filed a notice of appeal from this order (appeal No. 2-12-0489). ¶ 14 On appeal, contemnors raise six arguments against the November 1, 2011, contempt finding: (1) it is barred by res judicata; (2) petitioner's contempt petition was barred by laches; (3) the petition was barred by waiver; (4) the petition was untimely; (5) petitioner's failure to release her lis pendens barred recovery under the settlement; and (6) the October 4, 2005, order did not create any specific obligations for contemnors. Contemnors also contend that the April 4, 2012, order is void because the notice of appeal filed March 5, 2012, divested the trial court of jurisdiction. Petitioner has not filed an appellee's brief, but we may resolve the issues on their merits. See In re Marriage of Smith, 2012 IL App (2d) 110522, ¶ 56. ¶ 15 Initially, we note that contemnors have moved to "expedite" this appeal. As the appeal has been promptly assigned to a panel for disposition, we deny the motion as moot. ¶ 16 We turn to contemnors' arguments in appeal No. 2-12-0263. Contemnors assert first that the turnover order is barred by res judicata because the turnover petition "merged" into the order of November 16, 2009, that required the payment of $100,000 to petitioner (personally or as her children's trustee) and stated, "Petition for Rule to Show Cause is Hereby Discharged." ¶ 17 Contemnors' argument is forfeited. At the trial level, they never raised the defense of res judicata. At the appellate level, they may not obtain a reversal based on a theory not raised in the trial court. See Campbell v. White, 187 Ill. App. 3d 492, 505 (1989); Faculty Ass'n of District 205, IEA-NEA v. Illinois Educational Labor Relations Board, 175 Ill. App. 3d 880, 891 (1988). ¶ 18 Substantively, contemnors' argument lacks merit. Res judicata means that a final judgment on the merits rendered by a court of competent jurisdiction bars a subsequent suit between the parties involving the same cause of action. River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 302 (1998). Contemnors assert that the November 16, 2009, order and the turnover order involve the same cause of action because both relate to the judgment of October 4, 2005. This is incorrect. The turnover petition initiated a supplemental proceeding that sought to enforce the judgment by reaching funds that Peterson had converted after the Ardmore property was refinanced. The November 16, 2009, order did not involve the converted funds and was not based on the wrongful actions that were uncovered by the proceedings on the citations to discover assets. ¶ 19 Contemnors next argue that the turnover order must be reversed because petitioner's petition was barred by laches and waiver. Contemnors' entire argument on each point consists of the bald statement that petitioner "abandoned" her claims by withdrawing her March 7, 2008, petition for a rule to show cause and accepting a money judgment against contemnors. Contemnors do not support their statements with any citations to the record or pertinent authority. ¶ 20 Contemnors' arguments are forfeited. Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008) requires that the argument in an appellant's brief include "citation of the authorities and the pages of the record relied on." Ill-defined and insufficiently presented arguments that do not satisfy the rule are forfeited. Gandy v. Kimbrough, 406 Ill. App. 3d 867, 875 (2010). This court is not a repository into which an appellant may dump the burden of argument and research. U.S. Bank v. Lindsey, 397 Ill. App. 3d 437, 459 (2009) (citing Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993)). We decline to consider the laches and waiver arguments. ¶ 21 We reject contemnors' fourth argument that the turnover judgment was erroneous because petitioner did not file her petition timely under the Fraudulent Transfer Act. Contemnors do not explain why that statute is pertinent. Petitioner's petition initiated a supplemental proceeding under section 2-1402(c)(3) of the Code of Civil Procedure (735 ILCS 5/2-1402(c)(3) (West 2010)), and contemnors do not contend that the petition was untimely under that provision. ¶ 22 Contemnors argue fifth that the trial court erred by refusing to treat petitioner's release of her lis pendens as a condition precedent to C4SI's performance of its obligations under the settlement order. Contemnors fail to cite to the record or pertinent legal authority; thus, the argument is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008); Gandy, 406 Ill. App. 3d at 875. Further, the trial court held a hearing at which contemnors had a full opportunity to raise this contention, which the trial court did not accept. Lacking any transcript of the hearing, even were we to consider contemnors' argument, we would have to resolve the incompleteness of the record in favor of the trial court's ruling. See Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984). ¶ 23 Contemnors argue sixth that they did not violate any specific obligation under the October 4, 2005, order. Contemnors' argument appears to depend on their contention that petitioner's release of the lis pendens was a condition precedent to the performance of C4SI's obligations, a contention that we have rejected. Again, contemnors fail to cite to the record or to pertinent authority of any kind, and thus their argument is forfeited. Further, we note that the October 4, 2005, judgment explicitly required C4SI to pay petitioner certain specified amounts upon the refinancing; that the trial court found that contemnors (as Peterson controlled C4SI) had failed to do so; and that the trial court then ordered contemnors to pay part of C4SI's obligation out of the refinancing proceeds, which Peterson had wrongfully converted. Contemnors do not provide any reason why C4SI's obligation should not be met in part out of the funds obtained from the refinancing of the property that it owned. We reject contemnors' sixth claim of error in appeal No. 2-12-0263, and we affirm the trial court's judgment. ¶ 24 We turn to appeal No. 2-12-0489. Contemnors argue that the April 4, 2012, order is void because their previously filed notice of appeal from the contempt judgment divested the trial court of jurisdiction. Contemnors overlook that, regardless of the notice of appeal, the trial court implicitly retained jurisdiction to enforce its orders. See Blazyk v. Daman Express, Inc., 406 Ill. App. 3d 203, 206 n.1 (2010); Djikas v. Grafft, 344 Ill. App. 3d 1, 11 (2003). (Contemnors themselves recognized this when Peterson moved to stay the enforcement of the order pending appeal.) The April 4, 2012, order served to enforce the contempt judgment and was thus within the trial court's jurisdiction. ¶ 25 For the foregoing reasons, we affirm the judgments of the circuit court of Du Page County. ¶ 26 Affirmed.