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United Transfer, Inc v. Michael Lorence

November 15, 2011

UNITED TRANSFER, INC.,
PETITIONER AND RESPONDENT-APPELLANT,
v.
MICHAEL LORENCE, RESPONDENT (UNIQUE GREEN SERVICES, LLC, CLAIMANT; ) WHEATON, TAMMY AARON,
RESPONDENT-APPELLEE



Appeal from the Circuit Court of Du Page County. No. 09-MR-1636 HonorableBonnie M. Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Jorgensen

Unpublished opinion

PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Schostok and Hudson concurred in the judgment and opinion.

OPINION

¶ 1 On December 13, 2010, after a hearing, the trial court granted respondent Tammy Aaron's motion to dismiss petitioner United Transfer Inc.'s (United's) amended petition for an adjudication of indirect criminal contempt against Aaron. The amended petition alleged that Aaron had directed the operation of certain vehicles in violation of a sheriff's levy and a prior court order recognizing the levy. United appeals. For the following reasons, we affirm.*fn1

¶ 2 I. BACKGROUND

¶ 3 On October 30, 2009, United filed this proceeding to register a judgment entered in Cook County on its behalf against Michael Lorence and to avail itself of collection remedies against Lorence in Du Page County. According to United, on February 24, 2010, the Du Page County sheriff levied four vehicles.*fn2 There is no copy of a levy order in the record. There is no copy of an order issued by the trial court allowing a levy. There is, however, a document from the Du Page County sheriff's office entitled "Inventory of Seized Property" (the word "seized" is crossed out on the original) reflecting that, by virtue of "Order No. 09MR1636-001" (the Du Page County case number), four yellow trucks described by year, make, and vehicle identification number and parked in a lot with "Unique Recycling Services" logos on them were seized on February 24, 2010.*fn3 The document reflects that Lorence was present at the time of inventory. It is undisputed that, although allegedly seized, the sheriff did not remove the vehicles from the parking lot in which they were located.

¶ 4 On February 26, 2010, Aaron appeared at a status hearing and claimed that her company, Unique Green Services, LLC (Unique Green), not Lorence, owned the four vehicles. In an order prepared by United's counsel, the court ordered Aaron to present all documentation related to the "ownership of the property the Sheriff has levied." On March 4, 2010, attorney Thomas Bouslog entered an appearance on Unique Green's behalf. The court, in an order prepared by United's counsel, ordered that discovery regarding the vehicles' history and ownership be initiated and that "the Sheriff's levy shall remain in force until further order of court."

¶ 5 On April 26, 2010, Unique Green moved to dismiss the sheriff's levy against the trucks owned by it. The motion asserted that Aaron is the sole member of Unique Green, that the judgment debtor, Lorence, is not a member, and that the assets against which the levy was asserted belonged to Unique Green and, therefore, that the levy was wrongful. United responded that Lorence and Aaron were involved in a personal relationship and that it believed that Lorence, to avoid creditors, transferred the vehicles from his prior business, Unique Recycling Service, Inc., to Unique Green. It further noted that, according to the description provided in the sheriff's levy (presumably the inventory), Unique Recycling logos remain on the vehicles that Aaron claims are owned by Unique Green.

¶ 6 On June 1, 2010, United petitioned for leave to issue rules to show cause against Aaron and Unique Green on the basis that, on May 28, 2010, two trucks subject to the levy were operated outside the gates where the sheriff seized them. The petition noted that, although the sheriff levied the vehicles, they were not physically removed and remained parked in the lot where they were levied (apparently, Unique Green's parking lot). According to United, the use of the vehicles seized by the sheriff and subject to the court's jurisdiction, as reflected in the March 4, 2010, order, constituted indirect criminal contempt.

¶ 7 On June 21, 2010, Aaron responded to the petition and admitted that the vehicles were listed on the sheriff's inventory of property, but denied that those vehicles were levied upon and/or seized. Further, Aaron offered as an affirmative defense that someone crossed out the word "seized" on the sheriff's inventory of property and that no one from Unique Green was served with or received a copy of the inventory prior to June 1, 2010, when a copy was attached to the petition for rule to show cause. Accordingly, Aaron requested that the petition for rule to show cause be dismissed.

¶ 8 On July 1, 2010, United was granted leave to file an amended petition for indirect criminal contempt. At a hearing, Bouslog and Aaron were present, and Bouslog represented that he was present on behalf of Unique Green and Aaron. Bouslog stated that "we are willing to stipulate to those two trucks being used on May 28, 2010, as alleged in the petition." Bouslog reiterated that he and Aaron were unaware of the levy until June 1, 2010.

¶ 9 On July 12, 2010, United filed an amended petition for adjudication of indirect criminal contempt against Aaron, which was substantially similar to its original petition. The amended petition added, however, that Aaron had appeared at the February 26, 2010, court hearing and had received the court's order that day. Further, it noted that Unique Green and Aaron had, on multiple occasions, acknowledged the existence of the sheriff's levy on the vehicles. Finally, it noted that, as sole member of Unique Green, Aaron had the exclusive authority to determine whether and how the vehicles subject to the levy would be utilized and to direct or authorize employees or agents of Unique Green to operate those vehicles. It alleged that Aaron in fact directed and authorized operation of the vehicles subject to the levy, with knowledge that those vehicles were subject to the court's authority as a result of its March 4, 2010, order, and that her conduct in directing and allowing vehicles subject to the levy to be operated in Unique Green's business was willful and contumacious. United requested that the court find that Aaron willfully and contumaciously violated the February 24, 2010, levy and the March 4, 2010, court order, and that it order Aaron incarcerated for a period not exceeding six months.

ΒΆ 10 Aaron answered the petition by denying most of the allegations, including the allegation that the vehicles were levied. Further, Aaron moved for a bill of particulars on the basis that, "even presuming violating a Sheriff's Levy could constitute contempt of court, said amended petition does not allege what, if anything, the levy [and March 4, 2010, court order] directed or commanded the respondent to do, or not do." Thus, Aaron ...


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