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Marks v. L.c.j. Construction Co.





APPEAL from the Circuit Court of Cook County; the Hon. ROLAND DeMARCO, Judge, presiding.


This action is based upon a judgment obtained by plaintiff, First Bank & Trust Company of Palatine, Illinois (Bank), against defendants, L.C.J. Construction Company (L.C.J. Construction), Louis Capozzoli and John Minardi. Plaintiff, Allen Marks, purchased the judgment through an assignment from the judgment creditor and commenced citation proceedings against defendant Minardi. Minardi failed to appear at the citation proceedings and filed a motion to dismiss based upon the ground that the original judgment of the Bank had been satisfied by Marks' purchase of the judgment.

A hearing was held on the motion to dismiss. The court found the assignment was satisfaction of the judgment and an order was entered dismissing the citation proceedings. Plaintiff asserts in his appeal that the judgment of the trial court was not supported by the manifest weight of the evidence.

We affirm the judgment of the trial court.

In 1977, the Bank filed its complaint, based upon a promissory note, against L.C.J. Construction, Louis Capozzoli and John Minardi. The complaint was verified by Robert Smith, an attorney and agent for the Bank. Motions were filed to amend the complaint and to increase the balance due on the note and for summary judgment.

The motion for summary judgment was granted and a judgment for $16,861.61 plus costs was entered on January 30, 1978, against L.C.J. Construction, Louis Capozzoli and John Minardi.

On March 6, 1978, the Bank sold its judgment to Allen Marks and the judgment was transferred to him by assignment, executed by Robert Smith on behalf of the Bank.

Plaintiff commenced supplementary proceedings upon the judgment against Minardi by filing a citation to discover assets. Minardi filed a motion to set contrasted issues for trial and a motion to dismiss the proceedings. The motion to dismiss was based upon several grounds, including the allegation that the assignment by the Bank was a satisfaction of the judgment. It was supported by an affidavit alleging plaintiff was a personal friend of co-defendant Louis Capozzoli, and Louis' funds were used by Marks to satisfy the judgment.

Plaintiff filed a response to Minardi's motions alleging that the motions were dilatory and that Minardi was attempting to dispose of his assets.

At the hearing before the trial court, respondent admitted he had the burden of proving satisfaction of judgment as a defense. The parties stipulated that copies of all pertinent documents, including the assignment of judgment, be admitted into evidence. The court also heard the testimony of five witnesses.

Sidney Schiller testified he was an attorney practicing law in Illinois and that he had represented defendants L.C.J. Construction, Louis Capozzoli and Minardi before the judgment was entered. Schiller further testified he had personally received the assignment of judgment from Robert Smith, the attorney representing the Bank.

Vincent Barrett, assistant vice-president of the Bank, testified he was familiar with the judgment taken by the Bank against defendants. He stated he knew Smith to be one of the Bank's attorneys. Barrett testified Marks paid the Bank for the assignment of judgment.

Marks testified he was a shoe salesman. He said Louis Capozzoli and Joseph Capozzoli were brothers and partners in a retail shoe business. Marks had known both of them for 12 to 15 years. After judgment was obtained against Louis Capozzoli, Minardi and L.C.J. Construction, Joseph became concerned and expressed that concern to Marks. Marks agreed to purchase the judgment to protect the shoe business from receivership. Soon thereafter, plaintiff borrowed $16,960 from Joseph Capozzoli and his wife. The money was used to purchase the judgment. Marks testified he had no conversation with Louis Capozzoli nor did he receive any money from him for the purchase of the judgment.

Louis Capozzoli, in his testimony, confirmed that he and his brother were partners in the retail shoe business. He was aware that his brother had become upset after judgment was entered because he feared its impact on the shoe business. Included in Louis' testimony were statements that he and Minardi had been involved in a joint venture with L.C.J. Construction; the promissory note underlying the judgment represented money used ...

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