                                     2013 IL App (1st) 121406

                                           No. 1-12-1406



                                                                              SIXTH DIVISION
                                                                              September 27, 2013



                          IN THE APPELLATE COURT OF ILLINOIS
                                FIRST JUDICIAL DISTRICT


MICHAEL A. DOWNS,                                             )       Appeal from the
                                                              )       Circuit Court of
       Plaintiff-Appellant,                                   )       Cook County.
                                                              )
v.                                                            )
                                                              )
LESLIE ROSENTHAL; J. ROBERT COLLINS;                          )
DREADNOUGHT PARTNERS, L.L.C.; and                             )       No. 04 CH 1129
KNOT, L.L.C.,                                                 )
                                                              )
       Defendants-Appellees                                   )
                                                              )
(Rosenthal Collins Group, L.L.C.,                             )       The Honorable
                                                              )       LeRoy K. Martin, Jr.,
       Defendant).                                            )       Judge Presiding.


       JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
       Presiding Justice Rochford and Justice Hall concurred in the judgment and opinion.

                                           OPINION

¶1     Plaintiff, Michael A. Downs, appeals the circuit court's order barring him from recovering

damages from the individual, nonappealing defendants, Leslie Rosenthal (Rosenthal), J. Robert

Collins (Collins), Dreadnought Partners, L.L.C. (Dreadnought), and Knot, L.L.C. (Knot) of the

underlying order. Plaintiff contends that this court's opinion reversing the circuit court's original
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order in favor of plaintiff was limited to the appealing defendant, Rosenthal Collins Group,

L.L.C. (RCG), and does not extend to the individual, nonappealing defendants. Instead, plaintiff

contends that, because the individual, nonappealing defendants chose not to file an appeal of the

circuit court's original final judgment, the order is res judicata and no court had jurisdiction to

overturn the order as to them. Based on the following, we affirm.

¶2                                             FACTS

¶3     This case appears before us a second time. See Downs v. Rosenthal Collins Group,

L.L.C., 2011 IL App (1st) 090970. RCG was a limited liability company (L.L.C.) that hired

plaintiff in August of 1997 and terminated plaintiff on January 5, 2004. Collins and Rosenthal

were the majority owners of RCG. According to plaintiff, Collins transferred his ownership

interest in RCG to Knot in 2003, and Collins owned the controlling interest in Knot. Similarly,

Rosenthal transferred his ownership interest in RCG to Dreadnought in 2003, and Rosenthal

owned the controlling interest in Dreadnought.

¶4     In his third amended complaint, plaintiff asserted five counts all essentially alleging that

he had an ownership interest in his former company and was entitled to the resulting profits of

the company. Specifically, in count I, plaintiff requested a declaratory judgment that he

maintained an ownership interest in RCG and an injunction for an accounting and to "partition

his interest from that of defendants Collins, Rosenthal, Knot, and Dreadnought; and/or [require]

defendants RCG, Collins, Rosenthal, Knot, and Dreadnought to accord Downs all rights

commensurate with his ownership interest including his share of profits." In count II, plaintiff

alleged the individual defendants, as majority owners, breached their fiduciary duty owed to


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plaintiff. In count III, plaintiff alleged RCG breached his employment agreement by failing to

make severance payments. In count IV, plaintiff alleged, in the alternative to counts I and II, that

RCG breached his employment agreement regarding his 2.5% equity interest. In count V,

plaintiff alleged, in the alternative to counts I and II, that RCG breached an oral contract under

which plaintiff was to receive an additional 4% equity interest.

¶5        On February 6, 2009, the circuit court found that plaintiff held a 2.5% ownership interest

in RCG despite not having paid the requisite "book value" for those shares as provided in his

employment contract and ordered that he be paid the resulting profit/loss distributions since his

termination from the company in 2004. Specifically, during its oral ruling, the circuit court

stated:

                 "I think Mr. Downs is owed two and a half percent of whatever

          distributions were made for Rosenthal and Collins from January of 2004 to the

          present. ***

                 *** [T]oday's order shall direct the defendants to convey to Mr. Downs,

          two and a half percent ownership in the company. They are to pay him *** two

          and a half percent of the distributions that were made between January '04 and

          today, minus the $125,000 that Mr. Downs owes to them for the acquisition of

          those shares.

                                                 ***

                 So I think [plaintiff's] damages are whatever Rosenthal and Collins owes

          him from distributions that were made between January of 2004 and February 6th,


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       2009. Those are his damages, and he's owed those shares. So at this point, he

       owns them. Pursuant to my order, he owns those shares. And your client is

       directed to execute whatever documents are needed or necessary so that a proof of

       ownership is evidently shown."

On March 20, 2009, the circuit court entered a written order, finding:

               "Plaintiff Michael Downs owns a 2.5% equity ownership *** in defendant

       RCG (the Rosenthal Collins Group LLC). Downs shall be put in the same

       position regarding his interest in RCG and distributions there from that he would

       have held had his 2.5% equity interest in RCG been recognized from January 1,

       2004 through the present; *** the defendants are ordered to pay the foregoing

       amounts, minus $125,000 ***. RCG shall issue the appropriate tax schedule(s) to

       Downs in conjunction with this payment, providing the same tax treatment to

       Downs' distributions and allocations as was given to those of Defendants

       Rosenthal and Collins during the same time period."

RCG and plaintiff both appealed the decision.

¶6     While the appeal was pending, plaintiff and RCG entered into an escrow agreement under

which RCG deposited $5 million in an escrow account to serve as an appeal bond for the

"monetary portion" of the March 20, 2009, order. On May 29, 2009, the circuit court entered an

order confirming the escrow agreement and stating that "[d]uring the pendency of the Appeal of

this Court's March 20, 2009 Order, neither Downs nor the Defendants shall encumber (outside

the ordinary course of business), transfer or otherwise dispose of the 2.5% equity interest in RCG


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which is the subject of the March 20, 2009 Order and RCG's Appeal of that order on April 16,

2009." In addition, the court's May 29, 2009, order stayed the enforcement of the March 20,

2009, order pending appeal.

¶7     On July 14, 2009, the circuit court granted plaintiff's motion allowing for prejudgment

interest on his withheld severance pay, his withheld distributions through 2007, and his profit

distributions from January 1, 2008, through March 20, 2009.

¶8     On May 21, 2010, plaintiff filed citations to discover the assets of the four nonappealing

defendants. In response, defendants filed motions to quash the citations. On June 11, 2010,

despite acknowledging the "general principal [sic] that if a party fails to take an appeal, once the

appeal rights have passed one has a right to collect, pursue collections of the judgment pursuant

to citation proceedings," the circuit court entered an order quashing plaintiff's citations to

discover the assets of the individual defendants, finding the May 29, 2009, stay order stayed

enforcement of the March 20, 2009, order as to the individual defendants. In so ruling, the

circuit court relied on the conduct of plaintiff in terms of waiting 14 months after entry of the

March 20, 2009, order and 13 months after the appeal rights would have lapsed to seek citation

proceedings, and the language of the escrow agreement which provided for the plural form of

"defendants" thereby indicating that plaintiff and RCG did not anticipate any form of collection

on the March 20, 2009, order until the conclusion of the appellate proceedings.

¶9     In response, on June 18, 2010, plaintiff filed a motion to modify the May 29, 2009, stay

order, arguing that the stay order should not have applied to the individual defendants because

their failure to appeal the March 20, 2009, order caused them to be liable for the declaration of


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money owed no matter the outcome of RCG's appeal. On July 19, 2010, following a hearing, the

circuit court denied plaintiff's motion to modify the stay order, but set the matter for "further

proceedings on this motion" for July 29, 2010. In so finding, the circuit court opined that,

because the individual defendants "did not take an appeal, that at the end of the day they're going

to be responsible for the judgment no matter what happens with RCG." However, according to

the language of the escrow agreement, it was the court's belief that any judgment would be

satisfied by the escrow account and, therefore, release of those funds was stayed until the

conclusion of the appeal. The matter was continued a number of times to allow the parties to

determine whether the escrow agreement stayed collection of the March 20, 2009, order as

related to the individual defendants.

¶ 10   Then, on August 26, 2010, the parties entered an agreed order, providing:

               "1. Defendant Rosenthal Collins Group, L.L.C. has deposited assets into

       an Escrow Account pursuant to an Escrow Agreement entered into by and among

       Plaintiff Michael A. Downs, Rosenthal Collins Group, L.L.C. and Fifth Third

       Bank in May of 2009. The Escrow Agreement, which remains in force, provides

       security for the appeal of Rosenthal Collins Group, L.L.C. of the monetary portion

       of the Judgment against Rosenthal Collins Group, L.L.C. in Downs v. RCG, et al.,

       Case No. 04 CH 11729 (the 'Appeal'). Those assets, together with any funds in

       the Escrow Account, shall also stand as security for all damages owed by Leslie

       Rosenthal, J. Robert Collins, Dreadnought Partners, L.L.C. and Knot, L.L.C.,

       pursuant to the final judgment against them entered in Downs v. RCG, et al., Case


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1-12-1406

      No. 04 CH 11729, by the Circuit Court of Cook County, on March 20, 2009,

      including post-judgment interest, and the order dated July 14, 2009 (collectively

      the 'Judgment').

             2. Rosenthal Collins Group, L.L.C., Leslie Rosenthal, J. Robert Collins,

      Dreadnought Partners, L.L.C. and Knot, L.L.C. shall have thirty (30) days

      following the occurrence of one of the events set forth below in paragraph 3 to

      satisfy the Judgment. If the Judgment, including post-judgment interest, is not

      paid in full within thirty (30) days after the occurrence of one of those events,

      absent an order from the Illinois Appellate Court or the Illinois Supreme Court to

      the contrary, the funds in the Escrow Account shall be used to satisfy the

      Judgment.

             3. The payment to Michael A. Downs detailed in paragraph 2 shall be

      made upon the occurrence of any one of the following events: (a) the date of an

      Order of the Illinois First District Appellate Court including the Appeal in favor

      of Rosenthal Collins Group, L.L.C.; (b) the last day by which Rosenthal Collins

      Group, L.L.C. may file a timely petition for leave to appeal to the Illinois Supreme

      Court of an order of the Illinois First District Appellate Court including the

      Appeal in favor of Michael A. Downs; (c) the date of an order of the Illinois

      Supreme Court denying petition for leave to appeal brought by Rosenthal Collins

      Group, L.L.C. seeking review of the Appeal; or (d) an order of the Illinois

      Supreme Court concluding its review of the Appeal.


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                 4. This Court will retain jurisdiction to enforce the Court's orders and to

       adjudicate any dispute related thereto."

The agreed order was signed by plaintiff's attorney, one of "defendants' attorneys," and the judge.

¶ 11   On December 16, 2011, we reversed the circuit court's decision, instead finding that

plaintiff was not a 2.5% owner of RCG. Downs, 2011 IL App (1st ) 090970, ¶¶ 24-44.

Specifically, our opinion provided that "[b]ecause we have found plaintiff was not a 2.5% owner

of RCG, we conclude plaintiff was not entitled to 2.5% profit/loss distributions since 2004 and,

consequently, was not entitled to prejudgment interest on that award."1 Id. ¶ 44. We

subsequently denied plaintiff's petition for rehearing.

¶ 12   On December 23, 2011, RCG filed a motion to cancel and release the appeal bond in the

circuit court. In the motion, RCG claimed that "[a]s the Court is also aware, after the posting of

the Appeal Bond, an issue arose relating to whether LESLIE ROSENTHAL, ROBERT

COLLINS, KNOT PARTNERS, L.L.C., AND DREADNOUGHT PARTNERS, L.L.C. were in

addition to RCG responsible for [the declaration of money owed in the circuit court's March 20,

2009, order]. That matter was resolved by the entry of an Agreed Order." Plaintiff filed a

response and RCG filed a reply. On January 4, 2012, the circuit court held a hearing on the

motion. During the hearing, the circuit court opined that "it was my determination that Mr.

Downs was entitled to 2.5 percent interest in Rosenthal Collins, and we all agreed that there were

the four nonappealing defendants; but I wondered***, in light of the appellate court's ruling, how


       1
           The Illinois Supreme Court denied plaintiff's request for a supervisory order directing

this court to remand the cause for entry of judgment.

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we'd be in a position to enforce that against the nonappealing defendants when the majority

clearly found that Mr. Downs is not entitled to the 2.5 percent." The matter, however, was

continued from time to time thereafter.

¶ 13   Then, on February 10, 2012, plaintiff filed a motion for release of the escrow funds. On

February 29, 2012, the individual defendants filed a response in opposition to plaintiff's motion

and in support of RCG's motion to cancel and release the appeal bond.

¶ 14   On April 12, 2012, this court issued its final mandate.2 On April 24, 2012, plaintiff filed

a motion to stay pending appeal pursuant to Illinois Supreme Court Rule 305(b) (eff. July 1,

2004). On April 25, 2012, the circuit court entered an order granting RCG's motion to cancel and

release the appeal bond and denying plaintiff's motion to release the escrow funds. The order,

however, stayed the release of the appeal bond/escrow until a scheduled hearing on May 4, 2012.

During the hearing on that date, the circuit court stated:

                         "Clearly, my determination was that Mr. Downs was to pay

                 $125,000 for an interest in RCG. The Appellate Court's

                 determination that Mr. Downs did not own or was not entitled to

                 an interest in RCG, I think, really settled the issue. Because it

                 wasn't the individuals who owed Mr. Downs the interest in RCG.

                 RCG owed itself, owed a percentage of itself. And the Appellate

                 Court has determined that, no, it didn't. It found that that

                 determination on my part was error, was against the manifest


       2
           This court's original mandate issued on March 30, 2012, was recalled.

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            weight. And I don't think now that a determination by me–I know

            that the plaintiff had argued earlier that they would have been

            entitled to collect a judgment against the individuals. And I don't

            know that that's necessarily true. I think that's a position and an

            argument, but the judgment itself, for example, that I entered back

            in March of '09, at paragraph 2, for example, says the defendants

            are ordered to execute all documents necessary to evidence Downs'

            2 and-a-half percent ownership interest in RCG.

                   Well, clearly, for me to order the individual defendants to

            execute documents to evidence Mr. Downs' ownership interest in

            RCG after the Appellate Court has determined that Mr. Downs

            doesn't own a 2-and-a-half [percent] interest in RCG is to go

            against the mandate of the Appellate Court.

                                           ***

                   So there's simply nothing there to be enforced against these

            individual defendants. And, quite frankly, looking at the judgment

            order, that judgment order, again, really in my opinion, it really

            gears itself towards forcing the individual defendants to execute

            documents and to do whatever is necessary in order to assure that

            Mr. Downs got his 2-and-a-half percent interest in Rosenthal

            Collins, into RCG.


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                                               ***

                       The declaratory portion of the judgment was that Mr.

               Downs was owed a 2-and-a-half percent interest in the company.

               The Appellate Court reversed that. And so the 2-and-a-half

               percent that he was owed was against RCG. It wasn't against the

               individual defendants. That he's owed the 2-and-a-half percent, he

               was owed 2-and-a-half percent of RCG. And the Appellate Court

               determined, no, he wasn't. So that's the end of the declaratory

               portion." (Emphases added.)

¶ 15   On May 3, 2012, plaintiff filed citations to discover defendants' assets, seeking

approximately $1.5 million against each defendant, which represented the lost profits connected

to the 2.5% declaration of money owed. Defendants filed a motion to quash the citations in

response. On May 4, 2012, the circuit court granted defendants' motion to quash the citations to

discover assets, denied plaintiff's Rule 305(b) motion to stay pending appeal, and granted RCG's

motion to cancel and release the appeal bond. However, the circuit court stayed the release of the

appeal bond based on plaintiff's oral motion seeking a stay of the order.

¶ 16   Then, on May 18, 2012, plaintiff filed a notice of appeal of the circuit court's April 25,

2012, and May 4, 2012, orders. Specifically, plaintiff sought reversal of:

       "the trial court's determination in its order on April 25, 2012, that the Defendants

       who did not appeal the final judgment entered against them are to be given the

       benefit of the successful appeal by co-Defendant Rosenthal Collins Group, L.L.C.,


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       such that the trial court would not enforce the previously-entered agreed order

       providing that Appellant could collect his final judgment against the non-

       appealing Defendants if the appealing Defendant prevailed on appeal. Appellant

       also seeks the reversal of the trial court's decision in its order of May 4, 2012, to

       quash Appellant's Citations to Discover Assets whereby Appellant sought to

       collect his final judgment against the non-appealing Defendants."

We turn now to the arguments presented by the parties.

¶ 17                                         DECISION

¶ 18   The ultimate issue in this case is whether the circuit court's March 20, 2009, order should

be enforced against the individual defendants, thereby requiring the individual defendants to pay

the 2.5% profit/loss distributions of RCG to plaintiff despite the fact that this court overturned

the circuit court's prior order, finding that plaintiff was not an owner and not entitled to the

requested distributions. Plaintiff contends the circuit court's March 20, 2009, order finding in his

favor was a final judgment as to the individual defendants, which the individual defendants did

not appeal, thereby making the order res judicata. As a result, plaintiff contends the circuit court

erred in refusing to permit him to collect the money he is owed from the individual defendants by

quashing his citations to discover the assets of the individual defendants and by denying the

release of the escrow funds to him.

¶ 19   Whether the circuit court properly quashed plaintiff's citations to discover assets is a

question of law, which we review de novo. Thorson v. La Salle National Bank, 303 Ill. App. 3d

711, 714 (1999). Similarly, whether the circuit court erred in refusing to release the escrow


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funds to plaintiff was based on a question of law, which we review de novo. See, e.g., id.

¶ 20   We recognize the general legal premise that a nonappealing defendant may not benefit

from the efforts of an appealing defendant. Otta v. Otta, 58 Ill. App. 2d 63, 72 (1965) (citing

Griffin v. Griffin, 29 Ill. 2d 354, 362 (1963)); see Nickel Plate Cloverleaf Federal Credit Union

v. White, 120 Ill. App. 2d 91, 94 (1970). "[W]hen a judgment or decree against two or more

defendants is vacated as to one of them, it need not for that reason alone be vacated as to any of

the others, and should not be vacated as to any of the others unless it appears that because of an

interdependence of the rights of the defendants or because of other special factors it would be

prejudicial and inequitable to leave the judgment standing against them." Chmielewski v.

Marich, 2 Ill. 2d 568, 576 (1954). Therefore, Chmielewski does not require enforcement of a

judgment against the nonappealing defendants if the circumstances demonstrate that it would be

prejudicial and inequitable to impose the judgment where there is an interdependence of the

defendants' substantive rights. Id.

¶ 21   In the case before us, plaintiff's right to the profits of RCG was completely dependent on

his ownership interest in RCG. Specifically, the circuit court found:

                       “1. Plaintiff Michael Downs owns a 2.5% equity ownership

               (two point five percent) in defendant RCG (the Rosenthal Collins

               Group L.L.C.). Downs shall be put in the same position regarding

               his interest in RCG and distributions there from that he would have

               held had his 2.5% equity interest in RCG been recognized from

               January 1, 2004 through the present;


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                   2. Defendants are ordered to execute all documents

            necessary to evidence Downs’ 2.5% ownership interest in RCG;

                   3. Downs is entitled to a 2.5% ownership profit/loss

            distribution of RCG from January 2004 through the present and on

            a going forward basis. RCG is to provide Downs with all

            documents sufficient to show RCG’s distributions and profitability

            from January 1, 2008 to date, and in connection with any and all

            future distributions;

                   4. From January 1, 2004 through December 31, 2007

            Downs is owed $1,181,092.60 as his profit/loss distributions for

            his 2.5% equity ownership interest. Downs is also owed 2.5% of

            RCG’s profit/loss distributions from January 2008 to date.

                   5. The defendants are ordered to pay the foregoing

            amounts, minus $125,000 (one hundred and twenty five thousand

            dollars). RCG shall issue the appropriate tax schedule(s) to Downs

            in conjunction with this payment, providing the same tax treatment

            to Downs’ distributions and allocations as was given to those of

            Defendants Rosenthal and Collins during the same time period;

                   6. The $125,000 represents Downs’ payment for his 2.5%

            equity interest in RCG. The court finds that the book value of

            ownership interest of Les Rosenthal and Robert Collins in 1997


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               was $5 million; and

                       7. The court holds that Mr. Downs does not have an

               additional 4% equity ownership interest in RCG because Mr.

               Downs and Mr. Rosenthal had different understandings of their

               agreement and did not have a meeting of the minds.

                       This decision is a final and appealable order and there is no

               just reason for delay.”

Although not expressly stated in the March 20, 2009, order, we assume from the context of the

circuit court's ruling and the subsequent hearings that the court's ruling was entered on count I of

plaintiff's third amended complaint, namely, the declaration of rights and declaration of resulting

profits. Per the March 20, 2009, order, the individual defendants were required to effectuate

plaintiff's interest by executing the requisite paperwork. However, plaintiff's ownership interest

and rights to profits were invalidated by this court in the initial appeal when we found that

plaintiff was not an owner of RCG and, therefore, was not entitled to any profits therefrom.

Downs, 2011 IL App (1st ) 090970, ¶ 44.

¶ 22   Notwithstanding, plaintiff argues that, because the circuit court's March 20, 2009, order

stated "the defendants are ordered to pay the foregoing amounts, minus $125,000," the court

intended to enter a money judgment against the individual defendants. (Emphasis added.)

Contrary to plaintiff's assertion that the circuit court specifically provided "that the nonappealing

defendants were liable to Downs for distributions they received," no such language appears in the

circuit court's order. After thoroughly reviewing the record, however, the circuit court's March


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20, 2009, order is ambiguous. As provided in our fact section of this opinion, the circuit court

made contradicting statements on the record regarding whether the individual defendants would

be held liable for the declaration of money owed. However, we need not make a determination

as to the circuit court's ambiguity where our interpretation of the circuit court's order is not

dispositive to this case.

¶ 23    Rather, even assuming, arguendo, there was a money judgment entered against the

individual defendants, it would be directly contrary to our finding in the initial appeal to impose

that judgment upon the individual defendants and, thus, prejudicial and inequitable to leave the

March 20, 2009, order standing. See Chmielewski, 2 Ill. 2d at 576; Meldoc Properties v. Prezell,

158 Ill. App. 3d 212, 217 (1987) (judgment vacated as to the appealing defendant and the

nonappealing defendant where the appellate court concluded it would be inequitable to impose an

agreed order against the nonappealing defendant when the order was entered with the

understanding that both defendants would be bound thereby). Where the declaration of money

owed pursuant to the March 20, 2009, order was a direct extension and interdependent upon the

declaration of ownership rights, which we invalidated, it would be prejudicial and inequitable to

impose the March 20, 2009, order against the individual defendants when their only clear

responsibility, based on the language of the order, was to effectuate plaintiff's interest in RCG.

Plainly stated, in the initial appeal, we found that plaintiff owns nothing and was not entitled to

any distributions; therefore, to enforce the circuit court's March 20, 2009, order against the

individual defendants would produce a windfall for plaintiff. Downs, 2011 IL App (1st ) 090970,

¶ 44.


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¶ 24   Plaintiff is seeking to enforce a money judgment on individual defendants, members of an

L.L.C., based on purported obligations of RCG, the L.L.C. Due to the corporate structure of

RCG, namely, as an L.L.C., the individual defendants could not be personally liable for the

obligations of RCG. 805 ILCS 180/10-10(a) (West 2010) ("Except as otherwise provided ***,

the debts, obligations, and liabilities of a limited liability company, whether arising in contract,

tort, or otherwise, are solely the debts, obligations, and liabilities of the company. A member or

manager is not personally liable for a debt, obligation, or liability of the company solely by

reason of being or acting as a member or manager."). Therefore, it would be prejudicial and

inequitable to impose the money judgment on the individual defendants due to the

interdependence of rights between RCG and the individual defendants as members of RCG

similar to the result in National Bank of Austin v. First Wisconsin National Bank of Milwaukee,

53 Ill. App. 3d 482 (1977). In National Bank of Austin, a mortgage foreclosure proceeding, the

appellate court found it would be prejudicial and inequitable to impose a deficiency judgment

against a partnership due to the interdependence of the rights of the individual partners for whom

the judgment had been vacated. Id. at 492. In other words, the National Bank of Austin court

found it would be improper to allow the obligation of the partnership to stand as to the money

deficiency judgment where it would cause the individual partners to be liable despite having been

deemed not liable. Id. Therefore, the National Bank of Austin court, to achieve an "equitable

result," vacated the deficiency judgment as to all parties. Id. In this case, because we have found

there was no obligation of RCG as an L.L.C. to plaintiff, it would be inequitable and prejudicial

to impose any obligation on the individual defendants in their capacity as members of the L.L.C.


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In sum, based on the circumstances, we conclude that the circuit court's March 20, 2009, order is

not enforceable against the individual defendants.

¶ 25   Further, we find the doctrine of res judicata does not apply to the instant case. " 'The

doctrine of res judicata provides that a final judgment on the merits rendered by a court of

competent jurisdiction bars any subsequent actions between the same parties or their privies on

the same cause of action.' " (Emphasis added.) Hudson v. City of Chicago, 228 Ill. 2d 462, 467

(2008) (quoting Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996)). The three

requirements for the application of res judicata are: (1) a final judgment on the merits having

been rendered by a court of competent jurisdiction; (2) an identity of causes of action; and (3)

identical parties or privies in both actions. Id. The doctrine of res judicata bars not only what

was decided in the first action, but also whatever could have been decided. Id.

¶ 26   Again, even assuming, arguendo, that there was a judgment entered against the individual

defendants, the key fact preventing the application of the doctrine of res judicata to the instant

matter is the lack of a subsequent cause of action. Pursuant to section 2-1402 of the Code of

Civil Procedure (Code) (735 ILCS 5/2-1402 (West 2010)), "[a] judgment creditor *** is entitled

to prosecute supplementary proceedings for the purposes of examining the judgment debtor or

any other person to discover assets or income of the debtor not exempt from the enforcement of

the judgment, a deduction order or garnishment, and of compelling the application of non-

exempt assets or income discovered toward the payment of the amount due under the judgment.

A supplementary proceeding shall be commenced by the service of a citation issued by the clerk.

The procedure for conducting supplementary proceedings shall be prescribed by the rules." 735


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ILCS 5/2-1402(a) (West 2010). Accordingly, when plaintiff initiated citation proceedings

against the individual defendants while the underlying appeal was being considered by this court,

those proceedings were supplementary to the circuit court's March 20, 2009, order. In fact, the

circuit court quashed the citations on June 11, 2010, and May 4, 2012, because the citation

proceedings were stayed until resolution of this court's appeal in the initial instance and our

findings invalidated the circuit court's judgment in the second instance.

¶ 27   Plaintiff argues, within a footnote absent citation to relevant authority in violation of

Illinois Supreme Court Rule 341(h)(7) (eff. September 1, 2006), that a citation proceeding is a

"collateral attack" barred by res judicata. The legislature, however, expressly stated that a

citation proceeding is a "supplementary proceeding" without defining the term. 735 ILCS 5/2-

1402(a) (West 2010). According to Black's Law Dictionary, a collateral proceeding is "[a]

proceeding brought to address an issue incidental to the principal proceeding" while a

supplementary proceeding is "1. A proceeding held in connection with the enforcement of a

judgment, for the purpose of identifying and locating the debtor's assets available to satisfy the

judgment. 2. A proceeding that in some way supplements another." Black's Law Dictionary,

1324 (9th ed. 2009). As defined, a citation proceeding is not the equivalent of a collateral

proceeding. Rather, " '[s]upplementary proceedings to collect, of whatever nature, must derive

their support from the main judgment, and if the main judgment fails the right to collect in such

proceedings must also fail.' " People ex rel. Scott v. Police Hall of Fame, Inc., 69 Ill. App. 3d

501, 503 (1979) (quoting Alsen v. Stoner, 114 Ill. App. 3d 216, 224-25 (1969)). Here, the

citations to discover the individual defendants' assets necessarily failed because we invalidated


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1-12-1406

the underlying order. We, therefore, conclude that the circuit court did not err in quashing

plaintiff's citation proceedings aimed at fulfilling the court's March 20, 2009, order against

defendants based on the doctrine of res judicata.

¶ 28                                      CONCLUSION

¶ 29   We affirm the judgment of the circuit court in finding that the individual defendants were

not responsible for providing distributions to plaintiff in conjunction with the March 20, 2009,

order where our December 16, 2011, opinion invalidated plaintiff's ability to collect any profits.

¶ 30   Affirmed.




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