Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County. No. 2009 L 004771, The
Honorable Ann Collins-Dole, Judge, presiding.
JUSTICE delivered the judgment of the court, with opinion.
Presiding Justice Burke and Justice Ellis concurred in the
judgment and opinion.
1 This is an appeal by a third-party citation respondent from
a postjudgment proceeding.
2 In the underlying case, plaintiff Xcel Supply, LLC,
obtained a judgment against defendant Victor Horowitz in the
amount of $468, 021.87. Plaintiff then served a citation on
Hydra Properties, LLC (Hydra), the only appellant in this
appeal, informing Hydra that it was prohibited from
transferring any property to defendant. On September 16,
2015, the trial court entered "a conditional
judgment" in favor of plaintiff. On the very next day,
Hydra, which is fully owned by defendant's wife, wrote
the first of the checks in question to
defendant. Between September 17, 2015, and December
17, 2015, Hydra wrote six checks to defendant, totaling
$5220, which he admittedly cashed. On October 13, 2016, the
trial court ordered Hydra to turnover $5220 to plaintiff
within 30 days. On November 14, 2016, Hydra filed a notice
appealing this order, as well as an earlier order.
3 On this appeal, Hydra makes several claims. First, Hydra
claims that the trial court failed to hold an evidentiary
hearing prior to issuing a turnover order, although (1) the
trial court stated repeatedly in written orders that it was
going to hold a hearing and did, in fact, hold a hearing, (2)
Hydra failed to include in the appellate record a transcript
or bystander's report for the hearing date or any other
court date, and (3) Hydra stated a week before the scheduled
hearing that, in its opinion, it was not limited "in any
way" in what it could present at the hearing. Second,
Hydra claims that the trial court had no evidentiary basis to
find that the six checks were defendant's property,
although defendant averred in an affidavit that the checks
were made out to "A. Horowitz, " that he cashed
them and that he spent the money on his family's
expenses. Both an order of the trial court and defendant's
deposition transcript indicate that he uses the first name
"Avigdor, " as well as the first name "Victor,
" and Hydra concedes on this appeal that it issued the
checks to defendant. Third, Hydra claims that the trial court
abused its discretion by failing to consider his late
response to plaintiff's turnover motion. However, we have
fully considered it, and we fail to see how this response,
which included defendant's affidavit that he received and
cashed the checks in question, could have undermined the
conclusion that the checks were his property.
4 For the reasons more fully explained below, we do not find
Hydra's claims persuasive and affirm the trial
court's turnover order directing Hydra to pay plaintiff
$5220. Plaintiff has not asked this court for interest, so we
did not consider that issue.
6 On April 22, 2009,  plaintiff Xcel Supply, LLC, filed a
one-count complaint for breach of contract against defendant
Victor Horowitz. Xcel Supply, LLC v. Horowitz, 2017
IL App (1st) 152277-U, ¶ 5. After six years of discovery
and motion practice, the suit proceeded to a bench trial in
2015. Xcel Supply, 2017 IL App (1st) 152277-U,
¶¶ 15, 22. After trial, the trial court found in
favor of plaintiff and awarded it $468, 021.87 in damages on
July 17, 2015, and $3312.75 in costs and $153, 746.25 in
attorney fees on October 21, 2015. Xcel Supply, 2017
IL App (1st) 152277-U, ¶¶ 30, 32. On June 30, 2017,
this court affirmed. Xcel Supply, 2017 IL App (1st)
152277-U, ¶ 112.
7 On August 27, 2015, after the bench trial and the damages
award, plaintiff served a citation to discover assets on
Hydra. The citation stated, in relevant part:
"You are PROHIBITED from making or allowing any transfer
or other disposition of, or interfering with, any property
not exempt from the enforcement of a judgment, a deduction
order or garnishment, property belonging to the judgment
debtor or to which s/he may be entitled or which may
thereafter be acquired by or become due to him or her, and
from paying over or otherwise disposing of any monies not so
exempt, which are due to the judgment debtor. This
prohibition shall remain in effect until further order of
court or termination of the proceeding. You are not required
to withhold the payment of any monies beyond double the
amount of the total sum due the judgment creditor."
8 After Hydra failed to appear and answer the citation,
trial court entered an order on September 16, 2015, stating
"that a conditional judgment in the amount of $468,
021.87, is entered in favor of Xcel Supply, LLC and against
Hydra Properties, LLC as Third Party Citation Respondent in
this proceeding." The order further directed the clerk
of the court to "issue a summons to confirm the
conditional judgment against Hydra Properties, LLC,
commanding Hydra Properties, LLC to show cause why the
conditional judgment should not be made final." On
October 14, 2015, an attorney filed an appearance on behalf
9 On November 24, 2015, Hydra filed a response, in which
Ahuva Horowitz certified that, on the date of the service of
the citation, Hydra did not have in its possession "any
personal property or monies belonging to" defendant.
Ahuva Horowitz is defendant's wife and the owner of
Hydra. At her deposition, Ahuva testified that she was an
owner of Hydra, although she did not know how or when it was
first organized, who organized it, or whether it did anything
or owned anything. She further testified that she had never
done anything for Hydra. In his affidavit, defendant averred
that Ahuva Horowitz was the sole owner.
10 On May 12, 2016, plaintiff filed a motion for rule to show
cause and for turnover. Attached to its motion was an exhibit
containing copies of six cancelled checks. Plaintiff stated
in its motion that it had received these copies in an e-mail
from Hydra's attorney on January 19, 2016, and plaintiff
claimed that they established that defendant was "an
authorized signer on Hydra's checking account" and
"had signed numerous checks payable to himself."
11 The copies of the six checks show that they were all
payable to "A. Horowitz"; were dated between
September 17, 2015, and December 17, 2015; and totaled $5220.
As noted above, an order of the court and defendant's
deposition transcript indicate that he uses the first name
"Avigdor, " as well as the first name
"Victor." Specifically, the checks were: (1) No.
2014, dated September 17, 2015, for $250; (2) No. 2019, dated
October 19, 2015, for $300; (3) No. 2020, dated October 19,
2015, for $1820; (4) No. 2160, dated October 29, 2015, for
$570; (5) No. 2162, dated November 13, 2015, for $1780; and
(6) No. 2165, dated December 17, 2015, for $500. The copies
indicate that the checks were all cashed on the same day that
they were written and the signature, which is a series of
illegible loops, appears to be the same signature on both the
front and back of the checks. In its motion, plaintiff asked
the court to order Hydra "to immediately turn over an
amount which is not less than $5, 220.000
[sic]" to plaintiff.
12 In an order dated June 2, 2016, the trial court ordered
defendant to file its response by June 30, 2016. Instead,
defendant filed its response on July 1, 2016, one day late.
The trial court subsequently denied defendant's motion to
file its late response.
13 Although the trial court denied defendant's motion to
file its late response, the response is in the appellate
record, and one of the issues that Hydra raises on appeal is
whether the trial court abused its discretion by not
considering it. In its response, Hydra emphasized that
"the checks at issue were all made payable to 'A.
Horowitz, ' " without specifying whether
"A."-or the payee-was "Avigdor, "
defendant, or "Ahuva, " his wife.Hydra did concede
that the checks were all "negotiated" by defendant,
and that it had produced the copies attached to
plaintiff's motion. Hydra argued that these checks were
"loans or gifts" to defendant, rather than his
assets or income.
14 In its response, Hydra stated that Hydra's manager is
Ahuva Horowitz, defendant's wife, and that she owns 100%
of the membership interests of Hydra a limited liability
15 Similarly, in defendant's affidavit, attached to
Hydra's response, defendant averred that Ahuva Horowitz
is his wife, that she owns 100% of the membership interests
of Hydra, and that he "negotiated" the six checks
in question, which "were used to pay expenses related to
the health and welfare of our children." Defendant's
affidavit used the passive voice, stating that the monies
"were used, " and thus did not expressly state that
he was the one who used the monies to pay the expenses.
However, that fact is a reasonable inference, since he admits
to being the one who cashed them to use for "our
children." Defendant averred that, "[a]t no time
between September 17 and December 17, 2015[, ] did Hydra
owe" him any money.
16 In his affidavit, defendant argued that, "if the
Court rules that such payments were subject to Citation
proceedings, then [he] assert[ed] the $4, 000 exemption
available to [him] pursuant to 735 [ILCS] 5/12-1001(b)."
Section 5/12-1001(b) of the Code of Civil Procedure (Code)
provides in relevant part that:
"The following personal property, owned by the debtor,
is exempt from judgment, attachment, or distress for rent:
(b) The debtor's equity interest, not to exceed $4, 000
in value, in any other property[.]" 735 ILCS
5/12-1001(b) (West 2016).
17 In addition, defendant averred that "Ashman Law
Offices" had filed a prior lien against his assets on
June 23, 2015. "Ashman & Stein" was the firm
that represented plaintiff in the court below. As noted
above, after trial in the underlying matter, the trial court
had awarded plaintiff $153, 746.25 in attorney fees. Xcel
Supply, 2017 IL App (1st) 152277-U, ¶
18 On August 2, 2016, the trial court entered an order
stating that it had held a "hearing on Motion for
Turnover, " heard arguments, and would shortly issue a
ruling. The appellate record does not contain a transcript or
bystander's report for either August 2, 2016, or August
22, 2016, the date when a ruling issued.
19 On August 22, 2016, the trial court entered an order,
"This matter is before the Court on [plaintiffs] Motion
for Rule to Show Cause and for Turnover against Third Party
Citation Respondent Hydra Properties, LLC. Hydra allegedly
repeatedly violated the Citation served upon it on August 28,
2015. [Plaintiff] requests turnover of $5, 220.00, an amount
paid to Judgment Debtor Avigdor Horowitz after service of the
Citation to Hydra Properties. Hydra failed to respond to
[plaintiffs] Motion within the time set by this Court for
doing so. It is hereby ordered that:
A. [Plaintiffs] Motion for a Rule to Show Cause is granted.
B. The matter is set for hearing on Thursday, September 29
*** regarding Hydra Properties, LLC's alleged ...