Bank of America v. WS Management, Inc. ( 2015 )

Illinois Official Reports
Appellate Court
Bank of America v. WS Management, Inc., 2015 IL App (1st) 132551Appellate Court BANK OF AMERICA, Plaintiff-Appellant and Cross-Appellee, v.
Caption WS MANAGEMENT, INC., WILLIAM SPATZ, WENDY SPATZ,
SPATZ CENTERS, INC., and ANDERSON ASSOCIATES, L.P.,
Defendants-Appellees and Cross-Appellants.
District & No. First District, First Division
Docket No. 1-13-2551
Filed May 18, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 06-CH-10267; the
Review Hon. Richard J. Billik and the Hon. Rodolfo Garcia, Judges, presiding.
Judgment Affirmed in part; vacated and remanded in part.
Counsel on David T.B. Audley, Michael T. Benz, Bryan E. Jacobson, and Mark A.
Appeal Silverman, all of Chapman & Cutler LLP, of Chicago, for appellant.
Alisa M. Levin, of Levin Law, Ltd., of Chicago, for appellees.
Panel JUSTICE CONNORS delivered the judgment of the court, with
opinion.
Presiding Justice Delort and Justice Cunningham concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff, Bank of America, appeals from orders of the circuit court that declined to find
that spouses William Spatz (William) and Wendy Spatz (Wendy) were alter egos of Spatz
Centers, Inc. (SCI), and WS Management, Inc. (WSM). Defendants, William, Wendy, SCI,
WSM, and Anderson Associates, L.P. (Anderson), cross-appeal, contending: (1) the trial
court should have found that certain facts and issues were precluded by collateral estoppel;
(2) the trial court erred in finding that defendants violated the Uniform Fraudulent Transfer
Act (Fraudulent Transfer Act) (740 ILCS 160/1 et seq. (West 2006)); and (3) the trial court
improperly awarded attorney fees to plaintiff. We affirm the court’s judgment on the
collateral estoppel, Fraudulent Transfer Act, and alter ego claims, and vacate and remand on
the issue of plaintiff’s attorney fees.
¶2 As preliminary background, this case concerns plaintiff’s efforts to collect a judgment
that was entered against SCI in Kansas in December 2005. At various times, William or
Wendy had been a shareholder or otherwise involved in SCI, which was incorporated in 1989
in Illinois and had been the general partner or manager for a group of limited partnerships,
which in turn owned various shopping centers around the country. SCI’s business of
managing the shopping center properties generated fees for SCI. In 1997, one of the limited
partnerships for which SCI was the general partner, Wichita Associates, L.P. (WALP), which
did business in Kansas, executed a note with an entity of which plaintiff is the successor.
WALP eventually defaulted on its obligations under the mortgage and other loan documents,
and at the end of the resulting foreclosure proceedings in Kansas, plaintiff received a
judgment in December 2005 against WALP and SCI jointly and severally for $1,490,708.32,
which included attorney fees, costs, and expenses. WSM was incorporated in Illinois on
December 12, 2005, and soon after began managing certain properties that SCI had
previously managed. Anderson allegedly began managing certain properties in 2007.
Meanwhile, plaintiff registered the Kansas judgment in Illinois in January 2006. Plaintiff
subsequently filed a separate action alleging various claims relating to William’s and
Wendy’s supposed efforts to avoid paying the Kansas judgment.
¶3 I. BACKGROUND
¶4 A. Kansas Foreclosure Proceedings
¶5 We first provide a summary of William and SCI’s involvement in the Kansas foreclosure
proceedings. WALP’s note with the bank listed WALP as the maker and was signed by SCI
as WALP’s general partner, with Wendy signing as SCI’s vice president. The note also
indicated that if it became necessary to employ counsel to collect or enforce the debt or
protect or foreclose the security for the debt, “Maker also shall pay on demand all costs of
collection incurred by [the bank], including attorneys’ fees and costs reasonably incurred for
the services of counsel whether or not suit be brought.” On November 30, 2004, William
signed an affidavit in support of a stipulated application for an appointment of a receiver for
the property. SCI was added as a defendant in the foreclosure case on February 22, 2005,
when the bank filed a first amended petition for declaratory judgment and other relief. A
certificate of service indicated that a copy of the first amended petition was sent to William.
On May 6, 2005, SCI filed an answer to the first amended petition. On June 28, 2005, a
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journal entry of judgment was entered against WALP. Subsequently, the property was sold to
the bank for $1.2 million, which was applied to the judgment.
¶6 On October 28, 2005, the bank filed a motion for partial summary judgment against SCI.
In part, the bank sought payment of the unpaid principal balance on the note, which was
approximately $1.4 million. The bank asserted that SCI as the general partner of WALP was
jointly and severally liable for WALP’s obligations. The bank also stated that WALP had
failed to maintain its status as a separate, single-purpose entity, and as a result, WALP’s debt
obligation became fully recourse according to the language of the mortgage.
¶7 In response, SCI and WALP acknowledged that because of a failure to file an annual
report in July 1999, WALP had forfeited its good-standing status in Kansas. However,
WALP and SCI asserted that WALP had applied for and expected to be granted
reinstatement of its good-standing status in Kansas, and upon reinstatement, should be treated
as if its good-standing status had never lapsed.
¶8 On December 1, 2005, the Kansas court issued its ruling, stating that WALP had failed to
maintain its status as a separate, single-purpose entity pursuant to the terms of the loan
documents and that SCI and WALP failed to preserve WALP’s existence. The court further
stated that “[i]ssues concerning WALP’s recent attempts to obtain reinstatement of its
authorization to conduct business in Kansas *** are immaterial.” The court also found that as
WALP’s general partner, SCI was jointly and severally liable for all of WALP’s debts,
obligations, and judgments. Accordingly, a judgment was entered against SCI and WALP
jointly and severally for $1,490,708.32, which included $32,057.50 in attorney fees and
expenses and $1,325.86 in costs. The ruling indicated that the judgment amount would also
include “other expenses accrued and accruing, including reasonable attorneys’ fees,
insurance premiums, taxes, and assessments” pursuant to the terms of the note and that the
judgment would accrue interest at the rate of $322.78 per day. The court also stated that
plaintiffs had incurred and would continue to incur substantial costs in attempting to collect
from WALP, including the cost of instituting the Kansas suit and “reasonable attorneys’ fees
related to [plaintiff’s] collection efforts.” A final order was entered on December 30, 2005.
SCI and WALP subsequently appealed the judgment, but upon their motion, the appeal was
dismissed on March 1, 2006.
¶9 B. Motion for Turnover Against Wendy
¶ 10 Plaintiff registered the Kansas judgment in Illinois in January 2006 under case number 06
M1 600238, and citation proceedings involving SCI, William, and Wendy began. On
September 18, 2008, plaintiff filed a motion for a turnover order against Wendy on
September 18, 2008, seeking to order Wendy to pay plaintiff approximately $1.4 million that
Wendy or an entity known as Spatz Associates purportedly owed to SCI. The motion for
turnover was also filed under case number 06 M1 600238.
¶ 11 Referenced in the turnover proceedings was a “Spatz Centers Inc[.] Purchase/Sale
Agreement” (purchase and sale agreement) that was undated and signed by William and
Wendy. According to the purchase and sale agreement, Wendy owned SCI and William “is
and always has been the President and a member of the Board of Directors.” The purchase
and sale agreement also indicated that Wendy wanted to own SCI’s 1% general partnership
interest in a number of limited partnerships. Further, as of January 1, 2005, Wendy, William,
and SCI agreed that: (1) Wendy agreed to transfer her interests to William “as of the date of
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this Agreement,” SCI agreed to transfer all of its interest in the general partnership interests
to Wendy, and SCI would remain the general partner of the limited partnerships; (2) Wendy
agreed to forgive any debt that SCI owed her and agreed to “reasonably lend, or cause to be
lent to SCI, reasonable sums of money now and in the future to insure the operations of the
various properties owned by Wendy,” and (3) no later than March 31, 2005, William would
pay or cause to be paid $310,667.60 to Wendy for her stock in SCI.
¶ 12 Following an evidentiary hearing that was held on March 20, 2009, and April 9, 2009,
before Judge Alexander White in case number 06 M1 600238, the court issued an order on
October 14, 2009, denying the motion for turnover. In its order, the court stated that “[t]he
only relevant inquiry *** is whether Wendy is holding assets of SCI or WALP or is
otherwise obligated to pay SCI or WALP for some debt.” Another key question was how a
certain account in SCI’s general ledger, known as the “SA Distribution account,” was to be
interpreted. The court stated that the SA Distribution account could be an asset account that
noted obligations Wendy owed to SCI, or a clearing account containing “essentially
worthless entries” that served to correct otherwise erroneous entries made in the general
ledger. Ultimately, the court found that the SA Distribution account was a clearing account.
¶ 13 Apparently, the dispute involved various account adjustments and reclassifications that
took place in 2005. One such reclassification was for $310,667.60. The court referenced the
purchase and sale agreement, wherein William was required to pay Wendy $310,667.60 for
her SCI stock, and stated that plaintiff’s exhibits showed that SCI made a payment or deposit
to the Spatz family account in that amount in March 2005, which was payment for the
purchase price of the stock. The court further stated that the payment of the purchase price
had been misclassified in SCI’s March general ledger, and the SA Distribution account had
been used as a clearing account to properly reclassify the payment.
¶ 14 Among other items, the court addressed two entities known as the Bell Street property
and an E-Trade account, both of which had been the subjects of adjustment entries. As to the
Bell Street property, the court stated that the unrebutted testimony indicated that the property
was owned exclusively by Wendy and her daughter. Although entries in SCI’s general ledger
had erroneously indicated that SCI had an interest in the property, the SA Distribution
account was used as a clearing account to correctly show that the property was not an SCI
asset. The court stated that the adjustment entries did not create an interest in the realty for
SCI and did not transfer any interest in the realty to Wendy, as the property was never an SCI
asset. Similarly, the court found that the E-Trade account had always been Wendy’s
exclusive property and again the SA Distribution account had been used as a clearing account
to offset correcting entries made in SCI’s general ledger so that the value of the E-Trade
account was not shown on SCI’s general ledger as an SCI asset. The court stated that the
adjustment entries for the E-Trade account “neither transferred assets to Wendy nor created
any obligation on her part to SCI.”
¶ 15 Overall, the court found that plaintiff did not have a factual basis for seeking a turnover
order against Wendy, as there was no evidence that she received anything from SCI in 2005
and “no evidence she [owed] SCI anything as a result of anything that was done in 2005.”
The court also noted that although plaintiff claimed that the account known as SA or Spatz
Associates meant only Wendy, certain exhibits showed that this account could also mean
William and the Spatz family. Accordingly, the court disagreed that funds directed to SA or
Spatz Associates meant those funds were directed to Wendy.
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¶ 16 The court additionally found that various November, December, and year-end entries in
the SA Distribution account did not represent actual assets and adjustment entries did not
reflect “any transfers of SCI’s assets to Wendy of any sort” in 2005. The court explained that
plaintiff had not met its burden to show that the alleged transfers for which it sought a
turnover order–including the sale of SCI stock, the sale of the Bell Street property, the
proceeds of certain accounts, and other transactions–”created or preserved rights for SCI
which Plaintiff, as a judgment creditor, can assume and enforce against Wendy.” The court
further stated that Wendy “does not own anything in which SCI has an interest” and that
Wendy “does not own or control any assets of *** [SCI] and/or WALP that could be made
subject to a turnover order.” Additionally, the court found that plaintiff failed to show that
“any assets were transferred by SCI to Wendy in 2005,” that “Wendy has any assets in her
possession which belong to SCI,” or that “Wendy owes SCI anything as a result of anything
that was done in 2005.”
¶ 17 C. Fraudulent Transfer, Mere Continuation, and Alter Ego Claims
¶ 18 Plaintiff also filed a complaint in the chancery division under case number 06 CH 10267
on May 23, 2006. This chancery case was before Judge Richard J. Billik and involved three
amended complaints, the third of which was filed on September 28, 2010, and ultimately
proceeded to trial. Plaintiff’s third amended complaint alleged that defendants violated the
Fraudulent Transfer Act (740 ILCS 160/1 et seq. (West 2006)) and asserted causes of action
for mere continuation and alter ego. Previously, around March 2008, before the turnover
proceedings started, plaintiff had presented a list of items that formed the basis of its
fraudulent transfer claims “discovered to date.” The listed transfers were: (1) at some point in
or after 2005, SCI transferred all or nearly all of its partnership interests in each of 16 real
estate limited partnerships to Wendy for no consideration; (2) WSM, rather than SCI, began
managing and leasing for various limited partnerships and received all management and
leasing revenue accordingly; (3) William paid $310,667.60 to Wendy for the transfer of SCI
stock out of SCI’s account rather than his personal funds; (4) SCI made distributions in the
amount of $627,328 to shareholders during 2005, after the Kansas claim was brought against
SCI; (5) Wendy used SCI’s line of credit at South Central Bank for personal expenses and
payments, including to pay off a mortgage on the Spatz’s home in the amount of $564,926.98
and invest $1 million in a hedge fund; (6) SCI made over $275,000 in cash payments to
Wendy in 2005; (7) SCI made a $100,000 loan to its shareholder, either William or Wendy,
in 2005; (8) Wendy took management and leasing fees due to SCI in December 2005; (9)
Wendy failed to provide credit support to SCI as required by the purchase and sale
agreement; (10) Wendy hid debts owed to SCI and removed them from her general ledger at
year end 2005; (11) SCI’s books showed that Wendy owed over $1.4 million to SCI; (12)
William transferred two E-Trade accounts that were carried on SCI’s books to Wendy/Spatz
Associates; (13) SCI made $55,000 worth of deposits into Wendy’s Merrill Lynch account
during 2005; (14) SCI made extraordinary payments to management at the end of 2005; and
(15) SCI loans to two limited partnerships were written off SCI’s books and picked up by
SA’s books in November 2005, but SCI received no consideration for this transfer of assets
to Wendy/Spatz Associates.
¶ 19 As noted above, plaintiff’s third amended complaint related to its claims under the
Fraudulent Transfer Act and its mere continuation and alter ego claims. Plaintiff alleged in
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part that as a result of the Kansas judgment in December 2005, William caused SCI to stop
actively producing income and cease operating as the entity that managed shopping centers
owned by various limited partnerships. Plaintiff asserted that William incorporated WSM on
December 12, 2005, to perform the same management and leasing functions that SCI had
performed, and directed that management and leasing fees previously paid to SCI be paid to
WSM. Plaintiff also alleged that around March 2007, Anderson, an entity that had been a
limited partnership, started managing the limited partnerships that had been managed by
WSM.
¶ 20 In support of its claims under the Fraudulent Transfer Act, plaintiff listed the transfers
that were allegedly made with actual intent to hinder, delay, or defraud plaintiff, including:
(1) distributions paid by SCI to Wendy or William in 2005; (2) Wendy and William’s
conduct of purporting to delete funds owed to SCI from Spatz Associates’ books; (3) Wendy
and William’s use of the SCI line of credit at South Central Bank to pay off a first home
mortgage, transfer $1 million to Spatz Associates, “i.e., Wendy,” which was later transferred
to William’s brother, and make miscellaneous draws for Wendy and William’s benefit and
offset SCI’s funds for payment on the line of credit; (4) the transfer by SCI of all or the
substantial part of its 1% general partnership interest in the limited partnerships; (5) the
indirect transfer of management and leasing fees from SCI to the newly formed and
incorporated WSM; and (6) the indirect transfer of management and leasing fees from WSM
to Anderson. As part of its requested relief, plaintiff sought punitive damages, including all
attorney fees incurred after the Kansas judgment, and asserted that section 8(a)(c) of the
Fraudulent Transfer Act (740 ILCS 160/8(a)(c) (West 2006)) had been construed to warrant
punitive damages where appropriate. In the alternative, plaintiff contended that the loan
documents and Kansas judgment provided for attorney fees, and that plaintiff was entitled to
all fees incurred since the Kansas judgment.
¶ 21 Next, in addition to asserting mere continuation claims against WSM and Anderson,
plaintiff also alleged that William and Wendy were alter egos of SCI and WSM. In part,
plaintiff contended that SCI failed to observe corporate formalities in that Wendy was never
paid the $310,667.60 for her SCI stock and there were no SCI board minutes or resolutions
authorizing SCI to enter into the purchase and sale agreement. Plaintiff also contended that
Wendy and/or William commingled property titled in the name of Wendy and their daughter
with SCI’s assets, and stated that the Bell Street property was listed on SCI’s balance sheets
until November 2005. Plaintiff additionally alleged that SCI failed to maintain an
arm’s-length relationship with Wendy, William, WSM, other family members, and/or other
Spatz-related entities in part because William directed the write-off of substantial obligations
Spatz Associates owed to SCI and other entities in December 2005. Plaintiff sought judgment
against William and Wendy in the full amount of the Illinois registered judgment, plus
additional postjudgment interest and attorney fees.
¶ 22 On November 10, 2010, Wendy filed a motion to dismiss the complaint, contending that
all matters against Wendy were barred by collateral estoppel. Wendy pointed to certain
claims and allegations in the fraudulent transfer list and complaint that were previously
adjudicated in her favor in the turnover proceedings. In response, plaintiff asserted in part
that the complaint involved claims of fraudulent transfer and alter ego liability, while the
turnover proceedings against Wendy only decided the narrow issue of whether Wendy owed
money to SCI pursuant to entries in SCI’s general ledger. However, plaintiff admitted that
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two transactions involved in the turnover proceedings were subject to collateral estoppel–the
transfer of E-Trade accounts from SCI to Wendy and allegedly improper payments that SCI
made to Wendy through a Merrill Lynch account. In her reply, Wendy contended in part that
because a husband and wife are considered to be in privity, the finding in the turnover
proceedings should also apply to William.
¶ 23 On April 7, 2011, the court denied Wendy’s motion to dismiss and continued the matter
to “entertain further argument on the application (if any) of collateral estoppel [effect] of
Judge White’s *** ruling as they pertain to the complaint against Wendy Spatz.”
¶ 24 On May 20, 2011, the court entered an order stating that evidence about the E-Trade or
Merrill Lynch accounts, as more fully described in the fraudulent transfer list and referenced
in Wendy’s motion, was precluded pursuant to collateral estoppel.
¶ 25 Subsequently, prior to trial on plaintiff’s complaint, SCI, WSM, Wendy, and William
filed a motion in limine and asserted that pursuant to collateral estoppel, the ruling in the
turnover proceedings precluded relitigation on certain of plaintiff’s claims and factual
allegations as to all defendants. Plaintiff responded in part that there was clearly no identity
of parties with respect to SCI, WSM, and William and that the turnover proceeding was only
filed against Wendy. Plaintiffs further contended that the turnover proceeding could not and
did not address whether Wendy or any of the other defendants owed any money to plaintiff.
¶ 26 In its ruling, the court distinguished between issues pertaining to Wendy and issues
pertaining to other defendants. The court denied without prejudice the motion in limine as to
defendants other than Wendy. The court stated that at trial, upon objection, defendants would
have the burden to convince the court that collateral estoppel applied to someone other than
Wendy. As to issues that involved Wendy, the court stated that, upon objection, plaintiff
would have the burden to show that collateral estoppel did not apply.
¶ 27 The matter proceeded to trial, which took place on a number of dates between June 28,
2011, and November 7, 2012. The bulk of the trial’s relevant testimony came from William,
who testified in both plaintiff’s and defendants’ cases. William testified that SCI, which still
existed, was incorporated in 1989 with three directors, William, Wendy, and a person named
Barry Herring. According to William, Herring was last affiliated with SCI in 1995, at which
point there was only one director. William was the sole director and principal of SCI before
January 21, 2005. William further testified that SCI’s main function had been to manage
properties across the country. Additionally, SCI acted as the general partner of limited
partnerships that owned shopping malls and performed a variety of management functions
for the limited partnerships, such as bookkeeping, filing and paying taxes, and maintaining
and leasing the properties. William stated that on formation, the limited partners mostly
consisted of members of his family and friends of his immediate family.
¶ 28 SCI received a certain percentage of the rental income from the tenants of the shopping
malls and William acknowledged that documents shown to him by plaintiff’s counsel
indicated that SCI received $395,646 in management fees and $23,112 in leasing fees in
2002, about $505,698 in management fees and $37,121 in leasing fees in 2003, $568,936 in
management fees and $86,332 in leasing fees in 2004, and $477,098 in management fees and
$134,605 in leasing fees in 2005. According to William, however, these documents were
“notoriously inaccurate.” Additionally, SCI’s 2005 tax return showed gross receipts or sales
of $626,540. As of January 1, 2005, William and two other people were among SCI’s
employees.
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¶ 29 William testified that he first became aware of the Kansas foreclosure suit sometime in
the middle to end of 2004. William stated that when SCI was named as a defendant, he was
not concerned at first because the loan was nonrecourse and SCI had no liability. William
became concerned later, when his attorney informed him that the bank was “trying to pierce
*** the non-recourse aspect of it.” William received papers relating to SCI’s involvement in
the case sometime in March 2005. William acknowledged that SCI’s answer to the bank’s
amended petition, filed on May 6, 2005, reflected that he had instructed his attorney to
actively defend SCI. William, however, never thought that he would lose the Kansas case.
William stated that the loan required that WALP had to be registered in Kansas, and one
year, William did not renew or fill out the appropriate form to renew WALP’s registration.
Yet, according to William, if the registration lapses and then is reinstated, it is as if the
registration never lapsed. Nonetheless, the Kansas court found that because the registration
had lapsed, SCI had violated the terms of the loan and the loan became recourse. After the
judgment was entered, William agreed to appeal, but his attorney did not mention that
William would have to put up a bond not only for the judgment, but also for substantially
more than the judgment, which “sort of eliminated our desire to appeal.” As a result, the
attorney had the appeal dismissed. William stated that the Kansas proceedings “didn’t factor
into anything we did” until December 1, “when we lost.”
¶ 30 William acknowledged that plaintiff registered the Kansas judgment in Illinois and issued
a nonwage garnishment to SCI’s bank, and as a result, SCI’s bank account was frozen.
William also acknowledged that WSM’s articles of incorporation were filed on December
12, 2005, and stated that WSM had the same address as SCI. Per a corporate resolution,
William was identified as the president and secretary of WSM and Wendy was the sole
member of the board of directors and received 999 of WSM’s 1,000 shares, while William
owned the remaining share. According to various documents, WSM was formed to do real
estate management, and William testified that WSM began performing management
functions for certain limited partnerships on January 1, 2006, and around February 2006,
began managing a significant number of properties that SCI had previously managed. WSM
received a certain percentage of the limited partnerships’ rental income. William stated that
no consideration or anything of value was exchanged between SCI and WSM.
¶ 31 William also further discussed how WSM came to take over management functions from
SCI. In October 2005, William decided to start WSM for development occurring in
Louisiana, and by December 2005, WSM was formed. However, WSM never managed any
Louisiana properties “because of things that went on here.” William stated that the
garnishment of SCI’s account made it effectively impossible to pay employees, “we needed
someone to manage,” and WSM “was as good an entity as any.” William stated that he made
the decision that it was impractical for SCI to continue as manager for various properties,
with the lien on SCI’s account serving as the primary factor. William also testified that the
limited partnerships determined that SCI was not in a position to conduct business as needed
to function on behalf of the limited partnerships. According to William, the limited
partnerships “dictated who *** was going to manage and what was going to take place.”
¶ 32 More specifically, William differentiated between the limited partnerships that William
or SCI controlled and those that were independent. According to William, each partner,
entity, or person who controlled each limited partnership decided who it wanted to manage it
as of January 1, 2006. For most of the limited partnerships, SCI was the general partner or
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managing member and had the authority “to make whatever decisions regarding management
it wished to make.” There, William acted as the president of the general partner as well as on
behalf of the partnerships and directed the limited partnerships to pay WSM instead of SCI.
William testified that he directed those limited partnerships to “behave in a certain manner,
in their best interest, in which case they, you know, they did what they did.” William also
stated that it “[d]idn’t matter to me what happened” to plaintiff, as his obligation was to act in
the best interest of the limited partnerships. Of the limited partnerships that did not have SCI
as a general partner and made the decision to switch to WSM independently, William stated
that “those entities of which I had no control over was all done on a verbal basis.” William
testified that there would have been conversations and “some notification of our intent or
what was going on.” William further stated that “ultimately, I needed approval, but from a
practical point of view, I was basically saying *** we needed to move it over” because SCI’s
accounts were frozen. William also stated “it was their decision whether it was allowed ***
to happen.” By the time these conversations took place, WSM had already been created. In
total, two entities had management agreements with SCI and SCI subcontracted with WSM
to manage them, eight entities had SCI as their general partner, one entity was controlled by
William directly, and seven properties were neither owned nor controlled by William or
Wendy and independently decided to use WSM. Additionally, one property was never
managed by SCI and one entity, Anderson, managed its own property. In all, WSM managed
approximately 18 properties. William testified that there were no written agreements between
WSM and the limited partnerships, but there were oral agreements “in the sense that there
was an understanding between the parties in terms of how they were going to function
together.”
¶ 33 William acknowledged that a WSM working trial balance report for 2006 listed
$382,575.93 in management fees and $46,081 in leasing fees. A WSM working trial balance
for 2007 listed $251,075.48 in management fees. Additionally, William stated that he took
over the leasing function for SCI and directed those fees to be paid to himself or various
entities other than SCI, though he believed the majority of any leasing fees earned would
have been deposited into WSM’s account.
¶ 34 William distinguished between SCI’s and WSM’s different functions. William stated that
SCI never stopped doing business but hired someone else to do management. According to
William, SCI’s obligations were to manage the partnership as a whole, such as by doing tax
returns, filing annual reports, and completing corporate resolutions as required. Additionally,
as long as SCI was the general partner, it had whatever liabilities were associated with the
general partner and was required to perform the functions required under the limited
partnership agreements. Meanwhile, WSM was a property manager that collected rents,
swept the parking lots, and paid certain bills. In early 2006, William became the only SCI
employee. When WSM began operating, some of its employees were from SCI, but others
were not.
¶ 35 William also testified about how SCI’s finances were handled after the Kansas judgment.
Because the account was frozen, and any money that had been put into SCI’s account would
have been taken out by plaintiff, “we bypassed that and created a general journal entry but
deposited the money directly into WSM.” William further stated that while SCI still had
money in its account, “any money that was put in there would simply be taken out. So it was
not wise to deposit money into the account.” William maintained that he did not divert any
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money, but “to the degree that there was any money to be deposited in this particular case,
money ceased being deposited.” William was presented with an SCI bank statement for July
2007 that indicated that $3,994.21 had been deposited in SCI’s account. The statement had a
note on it that said, “ ‘[m]ake sure nothing gets deposited into SCI ever without my
authorization.’ ” William explained that the note was a reaction to his being “tired of having
things deposited into SCI, such as this, that clearly didn’t belong there.” William
acknowledged that, after the Kansas judgment was entered, people at SCI were directed to
make sure no money flowed through SCI’s account without William’s authorization. William
also acknowledged that SCI’s account was zeroed out by transferring $32,056.36 to WSM,
which left SCI’s account with $12.40 in interest. William did not recall whether he instructed
that this transfer take place, but he stated that, logically, he would have been the person to do
so.
¶ 36 William acknowledged that SCI’s 2006 tax return reported gross receipts or sales of
$1,106 and SCI’s 2007 tax return showed a loss of $2,164. William estimated that the
running balance in the SCI bank account since 2005 had been around $1,000. William
admitted that after December 2005, SCI was not generating any business income that could
have satisfied the Kansas judgment. Additionally, William testified that after the
management fees were discontinued and SCI’s 1% general partnership interest was
transferred to Wendy through the purchase and sale agreement, SCI was left with a small
general partnership interest and it “owned some odds and ends things, like furniture, nothing
of great value.”
¶ 37 William testified that around March 2007, Anderson began performing management
functions for certain limited partnerships. Previously, Anderson had been a limited
partnership that managed itself and owned a shopping center in South Carolina. William also
testified that in June or July 2010, he decided to have an entity called B&A Trust provide
management and leasing services to various limited partnerships.
¶ 38 William also testified about other details of SCI’s and WSM’s operations. William
testified that the initial capital contribution to SCI was $1,000, and that it was his custom and
practice to select $1,000 as a starting point for corporations because “the forms are written in
a way that that’s the minimum.” William further stated that his business was essentially
service-oriented, there were no defined capital requirements, and in theory “we always
maintain enough capital to operate the business.” William also stated that he would put
money in and take money out of SCI. William acknowledged that tax returns for 2004 and
2005 showed additional paid-in capital of $73,027 and that a tax return for 2006 showed
additional paid-in capital of $83,128. Additionally, William stated that SCI’s capital was at
one time at least $400,000, but would go up and down according to accounting practices.
When asked whether SCI was undercapitalized in 2005 or as of the end of 2005, William
responded that for a service company, there was “not much of a requirement.” William also
stated that the test of adequate capitalization for SCI was “were we able to function, and the
answer is, yeah, we paid our bills,” at least until the Kansas judgment.
¶ 39 William testified that WSM was initially capitalized with $10, but it “certainly had
enough capital to operate” and its current capitalization was substantially higher. William
also stated that when WSM was formed, 1,000 shares were issued for $1 per share. As of
December 31, 2006, WSM’s balance sheet showed assets of about $58,000 in cash. William
stated that WSM currently had positive capital and still did business. Additionally, William
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testified that SCI and WSM had been able to operate, pay their bills, and do their business
with the capital they had in place, other than when the Kansas judgment came due.
¶ 40 William also testified about a $1.7 million line of credit for SCI that was established in
March 2005 and ended in March 2006. William stated that the line of credit was set up so
that if SCI overdrew its account, the money would automatically be transferred from the line
of credit to SCI. Additionally, the line of credit had a sweeping function, such that William
and Wendy’s joint checking account, known as the SA account, was connected to the line of
credit. William stated that the line of credit automatically funded any shortfalls in the SA
account and took any excess funds from the SA account to pay down the line of credit.
William characterized these transfers as distributions and equity contributions by William
since he used the SA account as his own. William also stated that when money was taken out
of the SA account, the money was effectively borrowed by SCI and lent to SA. However,
William stated that “every penny” that went back to the SA account was automatically given
back to SCI, effectively repaying a loan. William further stated that SA ultimately borrowed
and repaid money on an ongoing basis. According to William, what plaintiff claimed was
Wendy using the line of credit was actually the sweeping function at work. Moreover,
William stated that “[w]e never made any personal payments out of SCI.” William also
stated that SCI could lend money to other people, including Wendy, at its discretion. William
testified that he had no reason to talk to the bank about using the line of credit to pay the
Kansas judgment because he could use the money for whatever purpose SCI deemed
reasonable.
¶ 41 William testified about various other uses of the line of credit that plaintiff found suspect.
One such transaction was the use of the line of credit to pay off a mortgage on Wendy’s
condominium. William explained that the bank required that the funds were used to clear title
on the condominium because the condominium was used as collateral for the line of credit.
William stated that SCI lent Wendy the money to pay off the mortgage and that SCI had the
right to lend money to himself, Wendy, or anyone else.
¶ 42 William was also asked about a $1 million draw off the line of credit on March 24, 2005,
which William stated was used as a loan/investment in a hedge fund that his brother
controlled and whose funds belonged to William’s father. William testified that this
transaction was supposed to be a very short interim loan, was done to make money and was
converted into “some sort of equity position.” According to William, the funds were
ultimately repaid with some interest. William stated that the hedge fund transaction was not
documented because William tended not to document transactions with his father unless his
father requested otherwise. However, William also testified that “[t]here was written
evidence of the transaction and when it was supposed to be paid back and *** what the
interest rate was going to be.”
¶ 43 William also testified more generally about his practices around documenting
transactions. William stated that he would document a transaction if he felt it was required
and added that he had signed leases and notes with himself. Additionally, William stated that
long-term transactions would be documented, meaning “[a]nything that wasn’t being lent for
the purpose of a short-term shortfall of cash flow, something of that nature.” William also
stated that “we have a lot of contracts with a lot of people that aren’t necessarily written.” As
an example, William noted that “[e]very time we call up a landscaper and say I need you to
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cut the grass and I’m going to pay you $500 bucks, we have a contract, but we don’t
document it.”
¶ 44 William denied that the SCI and WSM checking accounts were used to pay for personal
matters. Plaintiff’s counsel presented documents from the SCI and WSM bank accounts that
counsel suggested showed payments to doctors, to a recipient in Costa Rica, and for
magazine subscriptions, to which William responded “[t]hey would be personal expenses.”
However, William testified that “we reimburse people for medical expenses as part of a
semi-medical plan to help people out,” the Costa Rica payments probably would have come
out of a security deposit account that was maintained for a variety of entities, and the
corporation admittedly received subscriptions. William further testified that his personal
finances and records were run through the offices “[o]n a very superficial level,” meaning
that “[t]hey were not there to be accurate.” Additionally, William stated that whenever
possible, “we made sure that personal bills were paid out of SA and business bills were paid
out of the appropriate locations.” William also testified that every entity, limited partnership,
and corporation had separate bank accounts, corporate filings, and annual reports. William
also stated that SCI never wrote a check for a personal expense for William, Wendy, or
anyone else and that any personal expenses would have been paid from the SA account.
¶ 45 William also testified that a property known as the Bell Street property ended up on
SCI’s books due to an accountant “who turned out to be a problem.” William stated that the
Bell Street property had been improperly listed as an SCI asset on SCI’s books and was
reclassified accordingly.
¶ 46 William also testified about invoices sent to various tenants in 2006 and 2007 that had
SCI letterhead and directed payments to be made to particular limited partnerships, care of
SCI. According to William, it was not unreasonable and was less confusing that SCI would
continue to have bills sent. William also explained that although various invoices were sent
to SCI, they were not SCI’s bills, and he had tried to explain that to a vendor. William stated
that the invoices were paid by WSM because the bills were the responsibility of the various
limited partnerships and WSM paid them on behalf of the partnership. William stated that for
years, he had tried to have the bills sent to the proper place, but he was never successful,
resulting in the bills being sent to SCI.
¶ 47 Additionally, William testified about SCI’s and WSM’s practices around corporate
formalities and records. William stated that SCI’s bylaws came from a book containing
various corporate documents. William recalled attending SCI director and shareholder
meetings, but he stated that SCI was not required to have written meeting minutes. William
also testified that he did not have documents that reflected meetings, resolutions, or actions
taken because those documents were not required and often not produced. William stated that
not every annual meeting was memorialized and could not recall whether a required
shareholder’s voting list was ever put together. William further stated that “we have waived
notices” and amended bylaws from time to time to reflect the need to have meetings and the
like. William also identified a series of corporate annual reports that were filed on SCI’s
behalf.
¶ 48 As for WSM, William testified that its bylaws were based off a standard form with some
minor modifications. William agreed that WSM’s first shareholders meeting took place on
December 12, 2005. William further testified that because WSM’s bylaws did not require an
annual meeting, there would not have been a continual waiver of the annual meeting.
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According to William, “[w]e’d meet *** quite frequently, all the time, shall we say?”
However, the meetings did not have to be recorded unless lenders required it. William also
testified that WSM had filed an annual report every year since 2006 and that annual reports
were filed for every corporation and every partnership “all in good standing and continue to
be in good standing.” William identified corporate annual reports for WSM and WSM’s
articles of organization.
¶ 49 William also testified that in a situation where there is one stockholder and one director,
taking notes is not required, and the bylaws do not require that meetings are documented,
then “technically every time we talked to each other about the property, we had a board of
directors and shareholders meeting.” William maintained that “we filed all the corporate
formalities in terms of what the bylaws required” and followed the requirements of the
Internal Revenue Service and Illinois law.
¶ 50 William’s testimony also discussed corporate resolutions. William stated that his entities
produced corporate resolutions only when the bank required them. Otherwise, according to
William, there was no law that required his entities to draft and adopt corporate resolutions,
and further, there was no requirement for corporate resolutions to write checks and distribute
money. According to William, the bylaws also did not require corporate resolutions and
corporate resolutions are not done in the business world for everyday activities. William
maintained that “[w]e follow the bylaws” and there was no requirement for corporate
resolutions to enter into or cancel management agreements, or distribute, borrow, or lend
money. William added that, “[t]he president generally has the authority to do that.” As for
specific transactions, William testified there was no written corporate resolution that
authorized the purchase and sale agreement, as it was not required, and no corporate
resolutions that authorized the $1 million loan to the hedge fund, as corporate resolutions
“are not required to do things in the normal course of business.” Additionally, William stated
there was no resolution for the line of credit because it was not required and the bank did not
require it either. William further testified that SCI made corporate resolutions “quite often,”
but at the insistence of lenders. William further stated that SCI would “get into corporate
resolutions or meetings” if there was a change in an elected officer.
¶ 51 William also discussed SCI’s relative solvency. According to William, SCI became
“arguably insolvent and reasonably insolvent” around March 2006, when the line of credit
was no longer available to draw against. Until then, “there was a reasonable opportunity for
SCI to pay the debt, although it decided not to.” William also testified that potentially until
the Kansas judgment was entered, it could not be argued that SCI had more liabilities than
assets.
¶ 52 William also testified about Wendy’s involvement in SCI and WSM. William stated that
Wendy had not been involved in the day-to-day management of SCI but had owned all of
SCI’s stock until December 31, 2004. William also noted that Wendy had allowed her
condominium to be used as collateral for a loan for SCI, which SCI used to lend money to
properties as they needed it. Further, Wendy had always owned the office locations for SCI
and WSM. According to William, Wendy would have also been involved in Spatz entities
where she signed loans as a guarantor or co-guarantor. For example, when WALP’s lender
wanted someone other than William to sign documents, William appointed Wendy vice
president and she subsequently signed documents in that capacity. William further testified
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that at various times, Wendy acted as vice president of design for SCI, but she was not an
elected official after 2000.
¶ 53 Wendy testified about her own involvement in SCI and WSM. Wendy stated that she had
no involvement in creating SCI, did not recall that she had been SCI’s sole shareholder when
SCI was incorporated, and did not recall serving as an officer or director of SCI. Wendy also
stated that she never performed any management and leasing functions for SCI and that she
did not have any involvement in SCI’s day-to-day business operations. Wendy further
testified that she “probably would not have paid attention” to the fact that SCI was the
general partner of various limited partnerships, or if she knew that at some point, she did not
remember it at trial. Additionally, Wendy did not know the amount of management fees that
were paid to SCI each year and did not know how the management fees were calculated and
paid by the limited partnerships. As to any agreements between SCI and the limited
partnerships, Wendy testified that she “wouldn’t know” and “wasn’t involved with anything
like that.” Wendy did not recall attending any SCI annual meetings of directors or
shareholders and did not believe that SCI still existed.
¶ 54 Additionally, Wendy did not recall the title of vice president being attributed to her when
she signed loan documents and stated that the title was “not something I associated with
myself. I wasn’t active in the business.” Wendy further stated, “You know, my husband ***
discussed various things with me. As I’m about to sign something, I ask questions. You
know, if I’m comfortable with it, I sign it.” Wendy noted that she had signed “a variety of
things and it’s been over many years,” and that she “[asks] the questions at the time, *** Bill
and I discuss it.” Wendy also testified that “when I’m going to sign something, I’m given a
sort of perfunctory explanation. You can tell from my involvement that this isn’t my area of
expertise.” Wendy stated that she trusted that William was running the business “and he runs
it well.” However, Wendy also stated that she “felt some ownership” in SCI.
¶ 55 Wendy also testified that she did not assist William or otherwise take the lead in creating
the documents necessary to form WSM. Wendy did not recall why WSM was created or
when it was formed. Wendy also did not recall being elected as WSM’s sole director and
stated that William ran WSM on a day-to-day basis. Wendy assumed that WSM was
managing properties, but she did not “know any specifics around it.” Wendy did not
remember attending any WSM shareholder or board meetings after December 2005.
¶ 56 Elisheva Kalutsky, who was an accountant and had prepared SCI’s tax returns, also
testified. She agreed that there were periods of time when an E-Trade account was shown as
being owned by SCI and acknowledged that as of the 2005 tax return, the E-Trade account
that was previously carried on SCI’s books was put on Wendy’s individual tax return.
Kalutsky was also familiar with the Bell Street property, which was owned by Wendy and
her daughter. The property’s revenue, expenses, and business operations were carried
through SCI, which went to Wendy and Bill’s tax return.
¶ 57 James Rudnicki, a business turnaround consultant, testified for plaintiff about the transfer
of management and leasing contracts to WSM, commingling, and SCI’s relative solvency.
According to Rudnicki, SCI did not receive any reasonably equivalent value or consideration
for transferring the management and leasing contracts to WSM. Rudnicki also testified that
he saw evidence of commingling between SCI’s and William and Wendy’s assets, including
$1 million that was distributed to Wendy and then paid to an entity controlled by William’s
brother and the use of the line of credit to pay off a mortgage on a condominium owned by
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Wendy. However, Rudnicki admitted that he did not know why the line of credit was opened
or why the line of credit was used to pay off the mortgage on the condominium. Rudnicki
also stated that there were “constant payments” to third parties that appeared to have little, if
anything, to do with managing a real estate entity. Rudnicki also testified that SCI could lend
money to William or Wendy.
¶ 58 Rudnicki further stated that SCI was insolvent throughout 2005. According to Rudnicki,
at any point during that year, the liabilities exceeded the assets because the liability for the
Kansas judgment had existed since the beginning of 2005 and on every date that year it was
probable that the Kansas lawsuit would be a liability. Rudnicki further stated that when the
Kansas judgment and line of credit were taken into account, SCI’s liabilities were
considerably in excess of its assets in 2005. However, Rudnicki admitted that he did not
perform a precise valuation of SCI’s assets and liabilities. Rudnicki testified that once it
became clear that the value of SCI’s assets was less than the $1.4 million judgment, there
was no reason to perform a more precise calculation. Additionally, Rudnicki stated that
according to SCI’s 2005 tax return, SCI only had $100,000 in capital and a $100,000
shareholder loan, leaving the company with no capital at that point.
¶ 59 After plaintiff presented its case, defendants moved for a directed finding pursuant to
section 2-1110 of the Code of Civil Procedure (735 ILCS 5/2-1110 (West 2012)), contending
that plaintiff failed to establish a prima facie case for its claims. The court issued an oral
ruling on October 15, 2012, and a written order on October 23, 2012. In part, the court found
that plaintiff made a sufficient showing of its alter ego claims against William, but did not
make a prima facie case that Wendy was an alter ego of SCI or WSM. The court recounted
plaintiff’s and defendants’ arguments and noted that defendants “maintain that none of the
alter ego factors that have been discussed in the cases were proven as to Wendy in such a
way as to provide a solid foundation for piercing the corporate veil against her.” The court
stated that “[b]ased on the showing that is made thus far, *** there has not been a unity of
interest in ownership, that the separate personalities of the corporation in the individual
Wendy no longer existed during the relevant period.” The court further stated that “[b]ased
on the record it has been shown that it was William who operated SCI and WSM.”
¶ 60 As part of their case, defendants called Ralph Picker, an accountant and managing
principal of a certified public accounting firm. Picker testified that he did not see anything
unusual in SCI’s business and accounting practices, though he did see a lot of mistakes. For
example, Picker saw property and accounts on the books that were not in the corporate name.
Picker also stated that correction entries were made for assets that were not assets of the
corporation and adjustments were made for liabilities that were not company liabilities.
According to Picker, it was very common to see smaller S corporations remove assets and
liabilities that should not be on their books and for entities to have unsophisticated
accounting records. From his review, Picker also did not see SCI or WSM commingling
funds, which Picker defined as mixing funds that do not belong to a particular entity.
Additionally, Picker stated that for a line of credit, a lender would generally require a payoff
of an existing mortgage. Picker further stated that it was not improper for a business entity to
make a loan to an unrelated third party.
¶ 61 Picker also testified that SCI’s tax return showed that it was solvent, as there was an
excess of assets over liabilities. According to Picker, there was no indication in 2005 that
SCI’s liabilities exceeded its assets and further, there were positive retained earnings and no
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deficit. Picker also stated that, among other considerations, the question of solvency must be
based on a fair valuation, which plaintiff’s expert, Rudnicki, did not perform. However,
Picker acknowledged that he also did not perform any valuations in terms of certified
valuations. Additionally, as to capitalization, Picker stated that a company does not need a
certain minimum amount of capital unless it has significant loan payments to make,
significant investments in capital equipment, or significant recurring obligations, but “in this
case you didn’t have that.”
¶ 62 The court issued an oral ruling on November 19, 2012, and a written judgment on
November 28, 2012. Overall, the court found that two transfers violated the Fraudulent
Transfer Act: the transfer of assets under the purchase and sale agreement and, through
William, SCI’s arranging for the transfer of management fees, income, and compensation
from the limited partnerships to WSM and Anderson, both of which were done to hinder,
delay, or defraud plaintiff from pursuing the Kansas judgment. As to the latter transfer, the
court stated in its ruling that the transfers occurred for no or inadequate consideration and
were made to insiders for purposes of the Fraudulent Transfer Act. The court found that
WSM was created in December 2005 “for purposes of arranging for fees, compensation and
income that would have been received by SCI to be transferred to WSM.” According to the
court, there was an inference that William was aware of the Kansas litigation at least toward
the end of 2004 and that William became concerned about SCI being a party after SCI was
named in the suit. Additionally, the court found that there was no credible inference
presented for why SCI could not have continued to manage the limited partnerships’
properties after December 2005, “except for the considerations testified about arising from
the Kansas judgment and the post-judgment collection efforts by [p]laintiff.” The court stated
that William, as the principal and person in control of SCI, decided on behalf of SCI and the
limited partnerships to arrange for fees, compensation, and income to be diverted from SCI to
WSM and arranged for SCI to refrain from doing business because of the garnishment and
postjudgment supplemental proceedings that plaintiff initiated, which arose out of the Kansas
judgment.
¶ 63 Moreover, the court found that William, who controlled SCI, remained in control of the
assets transferred to WSM and Anderson and controlled those entities as well. Indeed, the
court stated that William was “really the only principal in all those three concerns.”
Additionally, the court stated that Wendy and even William at various times “held not
insignificant interests” in the limited partnerships that SCI managed or for which it served as
general partner. According to the court, the transfers allowed WSM and Anderson to receive
management fees, compensation, and other income that would have otherwise gone to SCI,
and further, William and Wendy were “owners, officers and/or controlling persons of WSM
and Anderson.” At the same time, the court noted that, per her testimony, Wendy had not
been involved in any way with the management or operation of SCI, WSM, and Anderson,
and that her testimony conveyed the impression that she deferred to William entirely to
manage, operate, and run the three entities.
¶ 64 The court further stated that the transfers of the management fees, compensation, and
income, and the right to receive those funds from the limited partnerships, involved all or
substantially all of SCI’s assets and at least a major portion of its business before 2006. The
court also stated that by arranging for the transfers of the right to receive management fees,
compensation, and income, SCI through William caused SCI to become insolvent because of
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the transfers or shortly after the transfers occurred. Additionally, the court took issue with
William characterizing WSM and Anderson as entities that SCI simply hired on behalf of the
limited partnerships because WSM and Anderson were not contractors, but entities that
William controlled.
¶ 65 As to the alter ego claims against William, the court found that while there was some
evidence that would support piercing SCI’s corporate veil, “the fact of the matter is this
Court has reviewed all of the evidence” and was not convinced that plaintiff proved its alter
ego claim against William. The court stated that SCI had been in business for “not an
insignificant period of time,” had assets, and maintained a separate identity. The court
acknowledged its findings that SCI was controlled by William and that William arranged for
a significant part of its assets to be parted with and transferred to WSM and later Anderson,
both of which William also controlled. Nonetheless, the court did not believe that plaintiff
had proven that William was an alter ego of SCI or WSM. Additionally, the court found that
WSM was a mere continuation of SCI, stating in its written judgment that “all liabilities,
debts, and obligations of SCI, including but not limited to liability for the fraudulent transfers
determined herein, the Kansas Judgment, and pre and post-judgment interest accruing on the
Kansas Judgment, are the direct liabilities of WSM.” The court denied plaintiff’s mere
continuation claim against Anderson.
¶ 66 In its written judgment, the court voided the following transfers: (1) the transfers of SCI’s
general partnership interests from SCI to Wendy in certain limited partnerships; and (2) the
transfer of management and leasing duties/fees from SCI to WSM around December 2005 or
early 2006, and thereafter, Anderson in 2006 and B&A Trust in 2010. The court also entered
money judgments against WSM and Anderson in the amount of $885,720.66 and
$1,021,059.47, respectively, representing the amount of management and leasing fees
received by each entity. The court permitted plaintiff leave to file a petition for attorney fees,
costs, and prejudgment interest.
¶ 67 Subsequently, plaintiff apparently filed a fee petition, which was not found in the record
despite a careful search. Nonetheless, it appears a fee petition was filed because a motion by
defendants references a 15-page fee petition. However, the record does contain an appendix
of exhibits for plaintiff’s fee petition, which spans over 400 pages and includes affidavits
from various attorneys who worked on this matter, as well as tables that show corresponding
billing entries. Some of the entries have been partially redacted.
¶ 68 In their response to the fee petition, defendants contended in part that there was no
statutory authority for fee awards under the Fraudulent Transfer Act and that the claim for
mere continuation also did not authorize a fee award. Additionally, defendants asserted that
there was no written contract providing for fees between plaintiff and WSM or Anderson.
Defendants also stated that the court could consider reducing the amount sought because
plaintiff was not successful on all of its claims. Further, defendants contended that plaintiff’s
appendix revealed numerous improper charges. Defendants asserted that the court should
examine certain requested costs “in the context of an evidentiary hearing to ascertain whether
these fees are reasonable.”
¶ 69 A subsequent order indicated that a hearing on the fee petition was scheduled for June 25,
2013. On that date, the court entered an order that stated:
“This matter coming before the Court on Plaintiff’s petition for attorney’s fees,
costs, and prejudgment interest, the Court having heard arguments from the parties,
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the petition is granted and the matter is continued for formal entry of an order with
respect to the specific amounts ***. The Court notes Defendants WSM and Anderson
Associates objections.”
¶ 70 On July 10, 2013, the court entered a second order related to fees, stating that the court
had considered the arguments of the parties on June 25, 2013, and had granted plaintiff’s
petition “in its entirety in open Court on that day.” The court then awarded attorney fees,
costs, and prejudgment interest in favor of plaintiff and against SCI, WSM, and Anderson
jointly and severally. The court awarded a total of $2,242,507.28 to plaintiff, which consisted
of $1,125,238.60 in attorney fees, $158,020.49 in costs, and $959,248.19 in prejudgment
interest. The record does not contain a report of proceedings for June 25, 2013, or July 10,
2013. We note that it is the appellant’s burden to present a sufficiently complete record of
proceedings at trial to support a claim of error. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92
(1984).
¶ 71 II. ANALYSIS
¶ 72 A. Parties’ Statements of Facts
¶ 73 On appeal, we first consider defendants’ contention that plaintiff’s statement of facts
contains improper argument and should be stricken. In response, plaintiff withdraws any
statements that we view as argumentative and asserts that defendants’ statement of facts also
contains argumentative comments, as well as ad hominem attacks against plaintiff’s counsel
and antagonistic comments toward the trial court judges. Neither party specifically identifies
the statements each finds improper. Nonetheless, in our view, both parties’ statements of
facts contain statements that could be considered argumentative. See Ill. S. Ct. R. 341(h)(6)
(eff. Feb. 6, 2013) (briefs should contain a statement of facts, “which shall contain the facts
necessary to an understanding of the case, stated accurately and fairly without argument or
comment”). However, we decline to strike either party’s statement of facts and instead
disregard any offending portions. See Hamilton v. Conley, 356 Ill. App. 3d 1048, 1052-53
(2005). We also admonish both counsel to be mindful in the future of the requirement to
avoid argument in the statement of facts. See Friends of the Parks v. Chicago Park District,
203 Ill. 2d 312, 319 (2003).
¶ 74 B. Collateral Estoppel
¶ 75 We next consider defendants’ contention on cross-appeal that the court improperly
applied collateral estoppel because the turnover proceeding against Wendy controlled much
of the case related to plaintiff’s fraudulent transfer and alter ego claims. Defendants argue
that in both cases, the singular point of plaintiff’s claims was the source and availability of
money and assets to satisfy the Kansas judgment. Defendants assert that the turnover
proceedings fully examined the Kansas litigation, the use of SCI’s credit line, SCI’s income,
assets, and financial activity in 2005, the existence, creation, and point of the SCI purchase
and sale agreement, and the purported depletion of SCI assets through reclass and accounting
adjustments in 2005, among other issues. Defendants further argue that there were significant
overlaps among the allegations in plaintiff’s complaint, plaintiff’s 2008 fraudulent transfer
list, and the order denying the motion for turnover. Defendants also assert that the court’s
order in the turnover proceeding was a final order disposing of the proceedings against
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Wendy and that the parties were identical in that William and Wendy litigated against
plaintiff in both matters.
¶ 76 Collateral estoppel was raised twice before trial: in Wendy’s motion to dismiss and in the
subsequent motion in limine as to SCI, WSM, William, and Wendy. When properly applied,
collateral estoppel promotes fairness and judicial economy by preventing the relitigation of
issues that have already been resolved in earlier actions. Du Page Forklift Service, Inc. v.
Material Handling Services, Inc., 195 Ill. 2d 71, 77 (2001). Collateral estoppel “applies
when[:] [(1)] the issue decided in the prior adjudication is identical with the one presented in
the current action, [(2)] there was a final judgment on the merits in the prior adjudication, and
[(3)] the party against whom estoppel is asserted was a party to, or in privity with a party to,
the prior adjudication.” (Internal quotation marks omitted.) United Automobile Insurance Co.
v. Buckley, 2011 IL App (1st) 103666, ¶ 39. Collateral estoppel applies to determinations of
law as well as fact. Du Page Forklift Service, Inc., 195 Ill. 2d at 79. Moreover, the party
claiming collateral estoppel has the burden of establishing it by clear, concise, and
unequivocal evidence. Pedersen v. Village of Hoffman Estates, 2014 IL App (1st) 123402,
¶ 42. Whether the doctrine of collateral estoppel applies to a particular case is a question of
law that this court reviews de novo. Id. Further, although normally we review a trial court’s
decision on a motion in limine for an abuse of discretion, where, as here, the issue involves a
question of law, the standard of review is de novo. Schandelmeier-Bartels v. Chicago Park
District, 2015 IL App (1st) 133356, ¶ 25.
¶ 77 Here, the primary question is whether the issues decided in the turnover proceeding
against Wendy were identical with plaintiff’s fraudulent transfer and alter ego claims. In the
turnover proceeding, plaintiff sought to force Wendy to pay certain debts she or Spatz
Associates purportedly owed to SCI that could then be used to satisfy the outstanding Kansas
judgment. The court noted there were two central questions: whether a certain account,
identified as the SA Distribution account, was an asset or clearing account, and whether
Wendy was holding assets of SCI or WALP or was otherwise obligated to pay SCI or WALP
for a debt. The court determined that the SA Distribution account was a clearing account and
that various adjustments and transfers did not create an asset for SCI or obligations of Wendy
to SCI. The court further found that Wendy did not own anything in which SCI had an
interest, Wendy did not own or control any SCI or WALP assets that could be subject to a
turnover order, and plaintiff failed to show that any assets were transferred by SCI to Wendy
in 2005.
¶ 78 Meanwhile, in its complaint, plaintiff listed six transfers that were allegedly at issue,
including distributions paid by SCI to William or Wendy in 2005, William and Wendy’s
conduct of deleting money owed to SCI from Spatz Associates’ books, the use of SCI’s line
of credit to pay off William and Wendy’s mortgage, and the transfer of management and
leasing fees from SCI to WSM. Plaintiff also alleged in its complaint that Wendy was never
paid $310,667.60 for her SCI stock and that William directed the write-off of the books of
Spatz Associates of substantial obligations Spatz Associates owed to SCI and other entities in
December 2005. Plaintiff’s fraudulent transfer list, which was created in 2008 before the
turnover proceedings, listed 15 allegedly fraudulent transfers, including the transfer of SCI’s
partnership interests in various limited partnerships to Wendy for no consideration, cash
payments to Wendy in 2005, an allegation that Wendy hid debts owed to SCI and removed
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them from her general ledger, and that SCI’s books showed that Wendy owed over $1.4
million to SCI.
¶ 79 To be sure, there are superficial overlaps between some facts and issues decided in the
turnover proceedings and the allegedly fraudulent transfers at issue at trial. However, the
facts and issues decided in the turnover proceedings were different than those presented at
trial. In the turnover order, the transfers were discussed in the narrow context of whether they
showed that Wendy owed money to SCI or WALP. In contrast, a primary consideration
under the Fraudulent Transfer Act is whether a debtor made a transfer with “actual intent to
hinder, delay, or defraud” a creditor. 740 ILCS 160/5(a)(1) (West 2006). A claim under the
Fraudulent Transfer Act considers not just whether the transfer occurred, but whether the
circumstances show that the transfer was done to avoid a creditor. Numerous considerations
are involved, such as whether the transfer or obligation was to an insider, when the transfer
was made, whether the transfer was of substantially all of the debtor’s assets, and whether the
debtor became insolvent shortly before or after a substantial debt was incurred, among
others. 740 ILCS 160/5(b) (West 2006). Meanwhile, the turnover order was only concerned
with the result of the transfers at issue–whether Wendy had assets that belonged to SCI or
WALP. Further, a claim that seeks to pierce the corporate veil based on an alter ego theory
examines whether a person or entity “uses a corporation merely as an instrumentality to
conduct that person’s or entity’s business.” Peetoom v. Swanson, 334 Ill. App. 3d 523, 527
(2002). This inquiry considers numerous operating practices and the relative involvement of
the allegedly dominant individuals–here, William and Wendy. See Fiumetto v. Garrett
Enterprises, Inc., 321 Ill. App. 3d 946, 958-59 (2001) (factors at issue include inadequate
capitalization, failure to issue stock, failure to observe corporate formalities, insolvency of
the debtor corporation, nonfunctioning of officers or directors, and the absence of corporate
records, among others). Again, the turnover proceeding only answered the question of
whether Wendy owed SCI or WALP money. In this vein, in addition to correctly denying
Wendy’s motion to dismiss, the court also properly denied the motion in limine that sought to
bar certain testimony and evidence as to multiple defendants, as the turnover order focused
on Wendy and did not conclusively decide anything with regard to other defendants.
¶ 80 Moreover, application of collateral estoppel must be narrowly tailored to fit the precise
facts and issues that were clearly determined in the prior judgment. Nowak v. St. Rita High
School, 197 Ill. 2d 381, 390-91 (2001). “[I]t is absolutely necessary that there [was] a finding
of a specific fact in the former judgment or record that is material and controlling in that case
and also material and controlling in the pending case.” (Internal quotation marks omitted.)
Kessinger v. Grefco, Inc., 173 Ill. 2d 447, 462 (1996). The court’s discussion in the turnover
proceeding of the mechanics of various transfers and how they affected Wendy’s obligations
are not truly material and controlling in the current case, where the issues are much broader
than whether transfers show that Wendy owed money to SCI and WALP.
¶ 81 Nonetheless, to the degree that the court was unsure about whether collateral estoppel
should apply, it acted prudently. Where “there is any uncertainty on the point that more than
one distinct issue of fact is presented to the court, [collateral] estoppel will not be applied.”
(Internal quotation marks omitted.) Id. The court, perhaps uncertain whether certain facts and
issues were truly identical, selected a proper course of action that allowed objections at trial
based on collateral estoppel and shifted the burden depending on which defendant was at
issue. Overall, we find that the court correctly denied the application of collateral estoppel
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before trial.
¶ 82 C. Fraudulent Transfer Act
¶ 83 We next consider defendants’ contention that the court erred in finding that defendants
violated the Fraudulent Transfer Act (740 ILCS 160/1 et seq. (West 2006)). Defendants argue
that the limited partnerships had previously hired SCI to manage the properties and were
under no obligation to work with SCI for any reason. Defendants further contend that no
transfer occurred because the limited partnerships merely delegated management to another
entity that could handle the responsibilities, which was their right to do. Moreover, according
to defendants, William did not have any reason in 2005 to believe that SCI would be liable in
the Kansas litigation and all decisions were made in the normal course of business.
Defendants also assert that William acted in good faith and note William’s testimony that he
was obligated on behalf of the limited partnerships to find management that could perform.
Additionally, defendants argue that plaintiff never proved there was a “lack of reasonably
equivalent value” under the Fraudulent Transfer Act because neither expert actually valued
the management agreements and SCI’s assets.
¶ 84 The standard of review of a trial court’s judgment after a bench trial is whether that
judgment is against the manifest weight of the evidence. Northwestern Memorial Hospital v.
Sharif, 2014 IL App (1st) 133008, ¶ 25. “A finding is against the manifest weight of the
evidence only when an opposite conclusion is apparent or when the findings appear to be
unreasonable, arbitrary, or not based on the evidence.” (Internal quotation marks omitted.)
Munson v. Rinke, 395 Ill. App. 3d 789, 795 (2009). “In a bench trial, it is the function of the
trial judge to weigh the evidence and make findings of fact” and we may “not substitute [our]
judgment for that of the trier of fact.” (Internal quotation marks omitted.) Falcon v. Thomas,
258 Ill. App. 3d 900, 909 (1994). Further, we will not disturb a trial court’s judgment as long
as there is evidence to support it. Sharif, 2014 IL App (1st) 133008, ¶ 25. We also note that
“[w]e may affirm the judgment of the trial court on any basis in the record, regardless of
whether the trial court relied upon that basis or whether the trial court’s reasoning was
correct.” (Internal quotation marks omitted.) Id.¶ 85 “The purpose of the [Fraudulent Transfer] Act is to invalidate otherwise sanctioned
transactions made with a fraudulent intent.” (Internal quotation marks omitted.) Id. ¶ 16. The
test to determine the validity of a transfer is “whether or not it directly tended to or did impair
the rights of creditors.” (Internal quotation marks omitted.) Apollo Real Estate Investment
Fund, IV, L.P. v. Gelber, 403 Ill. App. 3d 179, 193 (2010).
¶ 86 Under the Fraudulent Transfer Act, a transfer made by a debtor is fraudulent as to a
creditor if the debtor made the transfer:
“(1) with actual intent to hinder, delay, or defraud any creditor of the debtor; or
(2) without receiving a reasonably equivalent value in exchange for the transfer or
obligation, and the debtor:
(A) was engaged or was about to engage in a business or a transaction for which
the remaining assets of the debtor were unreasonably small in relation to the business
or transaction; or
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(B) intended to incur, or believed or reasonably should have believed that he
would incur, debts beyond his ability to pay as they became due.” 740 ILCS 160/5
(West 2006).
¶ 87 Two causes of action for fraud are permitted under the Fraudulent Transfer Act: “fraud in
law” and “fraud in fact.” Apollo Real Estate Investment Fund, IV, L.P., 403 Ill. App. 3d at
193. Under a “fraud in law” transfer, which is set forth in section 5(a)(2) of the Fraudulent
Transfer Act (740 ILCS 160/5(a)(2) (West 2006)), the “transfer is made for no or inadequate
consideration, [and] the fraud is presumed.” (Internal quotation marks omitted.) Sharif, 2014
IL App (1st) 133008, ¶ 18. Under a “fraud in fact” transfer, which is a cause of action under
section 5(a)(1) of the Fraudulent Transfer Act, a party must prove that the transfer was made
with actual intent to hinder, delay, or defraud the creditors. Apollo Real Estate Investment
Fund, IV, L.P., 403 Ill. App. 3d at 193. Defendants seem to suggest that plaintiff needed to
prove both types, which is incorrect. We find that a conclusion that defendants violated the
Fraudulent Transfer Act under a “fraud in fact” analysis was not against the manifest weight
of the evidence.
¶ 88 A creditor can prove “fraud in fact,” or actual fraud, based on the existence of certain
factors or “badges of fraud.” 740 ILCS 160/5(b) (West 2006); Steel Co. v. Morgan Marshall
Industries, Inc., 278 Ill. App. 3d 241, 251 (1996). Section 5(b) provides that “consideration
may be given, among other factors, to whether:
“(1) the transfer or obligation was to an insider;
(2) the debtor retained possession or control of the property transferred after the
transfer;
(3) the transfer or obligation was disclosed or concealed;
(4) before the transfer was made or obligation was incurred, the debtor had been
sued or threatened with suit;
(5) the transfer was of substantially all the debtor’s assets;
(6) the debtor absconded;
(7) the debtor removed or concealed assets;
(8) the value of the consideration received by the debtor was reasonably
equivalent to the value of the asset transferred or the amount of the obligation
incurred;
(9) the debtor was insolvent or became insolvent shortly after the transfer
was made or the obligation was incurred;
(10) the transfer occurred shortly before or shortly after a substantial debt
was incurred; and
(11) the debtor transferred the essential assets of the business to a lienor who
transferred the assets to an insider of the debtor.” 740 ILCS 160/5(b) (West 2006).
¶ 89 These factors are merely considerations (Steel Co., 278 Ill. App. 3d at 251) and a court
need not consider all 11 factors (Sharif, 2014 IL App (1st) 133008, ¶ 23). When the factors
are present in sufficient number, “it may give rise to an inference or presumption of fraud.”
Steel Co., 278 Ill. App. 3d at 251. At the same time, “the symptoms are not additive” and it is
possible that the presence of only one factor could entitle a party to relief. Brandon v.
Anesthesia & Pain Management Associates, Ltd., 419 F.3d 594, 600 (7th Cir. 2005).
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Additionally, the debtor and donee of the transfer have the burden of dispelling an
implication of fraud. Sharif, 2014 IL App (1st) 133008, ¶ 31.
¶ 90 Defendants only challenge the trial court’s finding that the transfer of management fees,
income, and compensation from SCI to WSM violated the Fraudulent Transfer Act. We first
address defendants’ contention that no transfer occurred because the limited partnerships
merely delegated management to another entity and there was no testimony that “the right to
do a job” is an asset. We disagree. By arranging for WSM to receive an income stream, SCI
transferred an asset. Under the Fraudulent Transfer Act, an “asset” is generally defined as the
property of the debtor. 740 ILCS 160/2(b) (West 2006). “Transfer” is defined as “every
mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or
parting with an asset or an interest in an asset, and includes payment of money, release, lease,
and creation of a lien or other encumbrance.” 740 ILCS 160/2(l) (West 2006). SCI generated
significant management and leasing fees before 2006 and received a certain percentage of the
rental income from shopping malls. Notwithstanding William’s testimony that a set of
limited partnerships independently decided to use WSM, there was ample evidence that, to
the contrary, SCI through William directed nearly all of the limited partnerships at issue to
work with WSM instead of SCI. William testified that for most of the limited partnerships,
SCI–of which William was the principal–was the general partner or managing member and
directed the limited partnerships to “behave in a certain manner, in their best interest.”
William also testified that as to the so-called independent limited partnerships, there were
conversations and “some notification of our intent or what was going on,” and despite
needing approval, “I was saying *** we needed to move it over” because SCI’s accounts
were frozen. William’s testimony strongly suggested that he directed the limited
partnerships, whether independent or not, to use WSM instead of SCI. After SCI arranged for
WSM to receive the management fees, WSM received over $382,000 in management fees in
2006 and over $250,000 in management fees in 2007. Sources of income have been found to
be assets. See Chicago Truck Drivers, Helpers & Warehouse Workers Union (Independent)
Pension Fund v. Louis Zahn Drug Co., 890 F.2d 1405, 1412 (7th Cir. 1989) (vehicle leases
had value in light of object of transaction, which was to sell to the purchaser what it needed
to undertake transportation responsibilities previously performed by the seller); Blaguss
Travel International v. Musical Heritage International, 833 F. Supp. 708, 712-13 (N.D. Ill.
1993) (whether executory contract was an “asset” with “value” was a question of fact where
“it is not difficult to imagine executory contracts that could provide the debtor with a steady
cash flow with limited expenditure of effort and resources”). Through William, SCI “part[ed]
with an asset” (740 ILCS 160/2(l) (West 2006)) by directing that management fees it
previously received be paid to WSM.
¶ 91 Turning to the factors in section 5(b) of the Fraudulent Transfer Act, the evidence
showed that the transfer of the management agreements from SCI to WSM was made to an
insider. In addition to being the principal of SCI, William was the president and secretary of
WSM and effectively controlled WSM. See 740 ILCS 160/2(g)(2)(C) (West 2006) (insiders
of a debtor corporation include a person in control of the debtor). As the trial court found,
William remained in control of the management fees and income in the new arrangement
with WSM.
¶ 92 Additionally, before WSM began receiving the management fees, SCI had been sued in
the Kansas foreclosure case. SCI was named as a defendant in the Kansas litigation on
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February 22, 2005, a ruling against SCI was made on December 1, 2005, and the final order
was entered on December 30, 2005. William testified that WSM began managing properties
for certain limited partnerships on January 1, 2006, and a significant number of SCI’s former
properties around February 2006. On a related note, this evidence also shows that the transfer
of the management fees to WSM occurred shortly after a substantial debt was
incurred–namely, the approximately $1.4 million judgment entered in the Kansas litigation.
¶ 93 In addition, the transfer of the management fees constituted substantially all of SCI’s
assets. Whereas SCI’s 2005 tax return showed gross receipts or sales of $626,540, its 2006
tax return, which would have been completed after WSM started managing the properties,
reported gross receipts or sales of $1,106, and its 2007 tax return showed a loss of $2,164.
Further, William acknowledged that a transfer of $32,056.36 out of SCI’s account, which
went to WSM, left SCI with a zero balance other than $12.40 in interest. William also
admitted that after December 2005, SCI did not generate any business income that could
have satisfied the Kansas judgment and estimated that the balance in SCI’s account since
2005 had been around $1,000. Based on the evidence presented, the arrangement with WSM
left SCI with very little assets.
¶ 94 Additionally, we note William’s testimony about the impact of the Kansas judgment and
its consequences on his decision to steer management fees to WSM. William testified that the
Kansas proceedings did not factor into SCI’s actions until December 1, 2005, “when we
lost.” William also admitted that the garnishment of SCI’s account–a result of the Kansas
judgment–was a primary reason for bringing in new management. William also stated that
while SCI’s bank account had money in it, it was not wise to deposit money into that account
and that “money ceased being deposited” into SCI’s account. There was also evidence that
William directed that no money should be deposited into SCI’s account without his
authorization. William’s testimony strongly suggests that the transfer of the management
income to WSM was a calculated move to escape the Kansas judgment, which had
manifested in the form of a garnishment on SCI’s account. Though William provided some
innocent explanations for the arrangement with WSM, we also note there was evidence that
he acted to hinder plaintiff’s ability to collect its judgment, and we will not substitute our
judgment for that of the trier of fact on matters of the credibility of a witness, the weight of
the evidence, and the inferences drawn from the evidence unless the opposite conclusion is
evident from the record. Sharif, 2014 IL App (1st) 133008, ¶ 26. Here, the conclusion that
the transfer of management fees to WSM was fraudulent was not against the manifest weight
of the evidence.
¶ 95 D. Wendy as Alter Ego of SCI and WSM
¶ 96 Next, we address plaintiff’s contention that it presented sufficient evidence to support its
claims that Wendy was an alter ego of SCI and WSM, such that these claims should have at
least survived defendants’ motion for a directed finding. Plaintiff asserts that Wendy used
SCI’s line of credit for personal expenses and payments, failed to act in her capacity as
officer and sole shareholder of SCI and as sole director and 99% shareholder of WSM, and
allowed her E-Trade account and the Bell Street property to be carried on the books and
records of SCI, but then claimed these as her own assets at trial.
¶ 97 In a bench trial, section 2-1110 of the Code of Civil Procedure (735 ILCS 5/2-1110 (West
2012)) allows a defendant, at the close of the plaintiff’s case, to move for a finding or
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judgment in his favor. In ruling on this motion, a court engages in a two-step analysis. 527 S.
Clinton, LLC v. Westloop Equities, LLC, 403 Ill. App. 3d 42, 52 (2010). First, the court must
determine as a matter of law whether the plaintiff has presented a prima facie case, meaning
the court must ask whether the plaintiff presented some evidence on every element essential
to the cause of action. Id. Second, if the plaintiff presented some evidence on each element,
the court must then consider and weigh the totality of the evidence presented, including
evidence favorable to the defendant, to determine whether the prima facie case survives.
Hatchett v. W2X, Inc., 2013 IL App (1st) 121758, ¶ 35. If the trial court finds that the plaintiff
has failed to present a prima facie case as a matter of law, the appellate standard of review is
de novo. Minch v. George, 395 Ill. App. 3d 390, 398 (2009). However, if the trial court
moves on to consider the weight and quality of the evidence and finds that no prima facie
case remains, the appellate standard of review is the “manifest weight of the evidence”
standard. Id.¶ 98 Here, we review whether the court’s finding at the directed finding stage was against the
manifest weight of the evidence because the court engaged in the second part of the analysis.
In its ruling, the court recounted each side’s position and noted the specific evidence that
each side had presented, including defendants’ evidence. For example, the court noted that
defendants “maintain that none of the alter ego factors that have been discussed were proven
as to Wendy in such a way as to provide a solid foundation for piercing the corporate veil
against her,” and the court stated that, based on the record, William operated SCI and WSM.
Accordingly, the court considered the weight and quality of the evidence and we will
determine whether the court’s ruling was against the manifest weight of the evidence.
¶ 99 A corporation is a legal entity that exists separate and apart from its shareholders,
directors, and officers, who are not as a general rule liable for the corporation’s debts and
obligations. Ted Harrison Oil Co. v. Dokka, 247 Ill. App. 3d 791, 794 (1993). One of the
primary purposes of doing business as a corporation is to insulate stockholders from
unlimited liability for corporate activity. Peetoom v. Swanson, 334 Ill. App. 3d 523, 526
(2002). However, in certain situations a court will find shareholders, directors, or officers
personally responsible for corporate obligations through a remedy known as piercing the
corporate veil. Ted Harrison Oil Co., 247 Ill. App. 3d at 795. A corporate entity will be
disregarded where it would otherwise present an obstacle to the protection of private rights or
where the corporation is merely the alter ego or business conduit of the governing or
dominant personality. Id. To pierce the corporate veil, a plaintiff must demonstrate that: (1)
there is such unity of interest and ownership that the separate personalities of the corporation
and individual no longer exist, and (2) the circumstances are such that adhering to the fiction
of a separate corporate existence would promote injustice or inequitable consequences.
Fiumetto, 321 Ill. App. 3d at 958.
¶ 100 In determining whether the first prong is met, a court generally will not rest its decision
on a single factor, but will examine many factors, including: (1) inadequate capitalization; (2)
failure to issue stock; (3) failure to observe corporate formalities; (4) nonpayment of
dividends; (5) insolvency of the debtor corporation; (6) nonfunctioning of the other officers
or directors; (7) absence of corporate records; (8) commingling of funds; (9) diversion of
assets from the corporation by or to a stockholder or other person or entity to the detriment of
creditors; (10) failure to maintain arm’s-length relationships among related entities; and (11)
whether the corporation is a mere façade for the operation of the dominant stockholders.
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Fontana v. TLD Builders, Inc., 362 Ill. App. 3d 491, 503 (2005). At trial, the party seeking to
have the corporate entity disregarded must come forward with a substantial showing that the
corporation is really a dummy or sham for a dominating personality. Ted Harrison Oil Co.,
247 Ill. App. 3d at 796.
¶ 101 We agree with the trial court that plaintiff failed to establish that Wendy was an alter ego
for SCI or WSM. Wendy’s involvement in SCI and WSM was marginal at best. Wendy’s
testimony suggested she knew very little about SCI and WSM and was barely involved in
either entity. According to William, although Wendy owned the location where SCI and
WSM had their offices, served as vice president of design at one point, and signed loan
documents, Wendy was not involved in the day-to-day management of SCI or WSM. She
recalled that she felt some ownership of SCI, but stated that her title of vice president was not
something she associated with herself and did not recall one of SCI’s main functions, which
was to act as a general partner for various limited partnerships. Additionally, Wendy did not
know the amount of management fees SCI received and did not know about any agreements
between SCI and the limited partnerships. Wendy trusted that William was running the
business and though she asked questions of William when asked to sign something, she also
stated she was given perfunctory explanations of what she was signing. Wendy testified
similarly about her lack of involvement in WSM. She stated that she did not know when
WSM was formed or why WSM was created. She also did not remember being elected as
WSM’s sole director. Based on the evidence presented, William was in charge of SCI and
WSM and Wendy played an extremely limited role. Overall, Wendy was far from being the
governing or dominant personality associated with individuals who are alter egos for
corporations. See id. at 795. Plaintiff’s case-in-chief failed to establish that SCI or WSM was
a sham for Wendy such that the separate personalities of Wendy, SCI, and WSM failed to
exist. As such, the court properly dismissed the alter ego claims against Wendy at the
directed finding stage.
¶ 102 E. William as Alter Ego of SCI and WSM
¶ 103 We next consider plaintiff’s contention that William was an alter ego of SCI and WSM.
Plaintiff argues that both entities were inadequately capitalized, failed to observe corporate
formalities, lacked corporate records, commingled funds and failed to maintain arm’s-length
relationships, were insolvent, diverted assets to the detriment of a creditor, had
nonfunctioning officers and directors, and were mere façades for William to shield himself
from personal liability.
¶ 104 We will not reverse a finding of the trial court about piercing the corporate veil unless it
is against the manifest weight of the evidence. Jacobson v. Buffalo Rock Shooters Supply,
Inc., 278 Ill. App. 3d 1084, 1088 (1996). Further, as noted above, “[a] finding is against the
manifest weight of the evidence only when an opposite conclusion is apparent or when the
findings appear to be unreasonable, arbitrary, or not based on the evidence.” (Internal
quotation marks omitted.) Munson, 395 Ill. App. 3d at 795. Further, piercing the corporate
veil is a task that courts should undertake reluctantly. Ted Harrison Oil Co., 247 Ill. App. 3d
at 795.
¶ 105 We address each of the alter ego factors that plaintiff raises: inadequate capitalization,
failure to observe corporate formalities, absence of corporate records, commingling of funds
and failure to maintain arm’s-length relationships, insolvency of the debtor corporation,
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diversion of assets from the corporation to the detriment of creditors, nonfunctioning of other
corporate officers or directors, and the corporation is a mere façade for the operation of the
dominant stockholders. As we detail below, based on our analysis of the first prong of the
alter ego analysis, the trial court’s finding that William was not an alter ego of SCI or WSM
was not against the manifest weight of the evidence.
¶ 106 The question of whether an entity is adequately capitalized is based on the policy that
shareholders should in good faith put at the risk of the business unencumbered capital
reasonably adequate for the corporation’s prospective liabilities, and moreover, that it is
inequitable to allow shareholders to set up a flimsy organization just to escape personal
liability. Fontana, 362 Ill. App. 3d at 504. A corporation’s capitalization is a major
consideration in deciding whether a legitimate separate corporate entity was maintained.
Amsted Industries, Inc. v. Pollak Industries, Inc., 65 Ill. App. 3d 545, 552 (1978). “An
obvious inadequacy of capital, measured by the nature and magnitude of the corporate
undertaking, has frequently been an important factor in cases denying stockholders their
defense of limited liability.” (Internal quotation marks omitted.) Jacobson, 278 Ill. App. 3d at
1089.
¶ 107 Here, the evidence shows that neither SCI nor WSM were inadequately capitalized.
According to William, SCI was initially capitalized with $1000. William further stated that
his business was essentially service-oriented and that in theory, enough capital was always
maintained to operate the business. William’s testimony also suggested that SCI’s capital
fluctuated and at one time was at least $400,000. According to William, SCI was able to
function and pay its bills until the Kansas judgment was entered. Defendants’ expert, Picker,
testified that there is no required minimum for capital unless a company has significant loan
payments to make, significant investments in capital equipment, or significant recurring
obligations, none of which were at issue here. Plaintiff points to SCI’s line of credit as
demonstrating that SCI was lacking in capital. However, SCI did not appear to rely on the
line of credit to function. A large portion was used to loan and invest money in a hedge fund,
for which SCI was eventually repaid, and another portion was used to pay off a condominium
that served as collateral for the line of credit. Further, the line of credit was paid off in March
2006. There was no evidence that SCI did not have sufficient capital to run its basic business
of acting as general partner and manager for the limited partnerships. As for WSM, William
testified that it was initially capitalized with $10, but William also stated that when WSM
was formed, 1,000 shares were issued for $1 per share. As of December 31, 2006, WSM’s
balance sheet showed assets of about $58,000 in cash. Like SCI, WSM principally performed
management functions, and there was no evidence that WSM was unable to meet its
obligations or carry out its duties. See In re Estate of Wallen, 262 Ill. App. 3d 61, 71 (1994)
(unclear that corporation undercapitalized given nature of the business, where corporation
acted merely as facilitator between buyers and sellers and did not maintain an inventory).
Under these circumstances, SCI and WSM were adequately capitalized.
¶ 108 As for observing corporate formalities and maintaining corporate records, the evidence
suggests that SCI and WSM were far from perfect, but not so flawed as to factor in favor of
piercing the corporate veil. William testified that his entities produced corporate resolutions
only when the bank required it, and moreover, corporate resolutions were not required for
activities in the normal course of business. Because they were not required, there were no
written corporate resolutions authorizing the purchase and sale agreement, the line of credit,
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or the loan to the hedge fund. William could not recall whether a required shareholder’s
voting list was ever put together. Additionally, William recalled attending SCI director and
shareholder meetings and stated that meetings for his entities were frequent, but that meeting
minutes did not have to be recorded unless a lender required it. In addition, William testified
that there were contracts that were not necessarily written, and he described an oral
agreement with a landscaper. At the same time, William testified that long-term transactions
were documented and that he would generally document transactions if he felt it was
required. SCI and WSM had articles of incorporation and bylaws, and William stated that
every entity had separate bank accounts, corporate filings, and annual reports. A number of
these documents were produced at trial. William maintained that annual reports were filed for
every corporation and that corporate formalities were followed when required by the bylaws,
IRS, or Illinois law. Overall, though their practices resulted in fewer documents than might
be desired, SCI and WSM appear to have observed basic corporate formalities and
maintained various records, especially when it was required by a third party. Contra
Fontana, 362 Ill. App. 3d at 506 (determination that corporation failed to keep and maintain
corporate records not against manifest weight of evidence where there were no corporate
resolutions whatsoever for certain loans, no notes or other evidence of claimed indebtedness,
no corporate records of amounts borrowed for transactions, and defendant admitted he never
had a written contract with a subcontractor, never took bids from subcontractors, and kept no
financial records for any payments except for draw schedules filed with title companies).
¶ 109 The next factor, whether SCI, WSM, and William commingled funds and failed to
maintain arm’s-length relationships, also does not warrant piercing the corporate veil. What
plaintiff contends is the use of the SCI line of credit for personal expenses was shown to be
the line of credit’s sweeping function at work. According to William, the SA account, which
was William and Wendy’s joint checking account, was linked to the SCI line of credit.
William stated that if the SA account was overdrawn, money would automatically be lent to
it, and ultimately SA borrowed and paid back money on an ongoing basis. William further
stated that SCI could lend money to other people at its discretion, a proposition that
plaintiff’s expert, Rudnicki, agreed with. As to the other claims about SCI and WSM
accounts being used for personal expenses, William explained that certain medical payments
were part of a semi-medical plan and admitted that one of the corporations received
subscriptions. Further, a payment to a recipient in Costa Rica was explained as likely coming
from another account. William insisted that personal and business bills were paid out of their
corresponding accounts and denied that SCI made personal payments. Moreover, while an
E-Trade account and other assets were carried on SCI’s books for a period of time, they were
eventually removed–an occurrence that defendants’ expert, Picker, testified was the subject
of correction entries that were common for smaller corporations. Picker further stated that
SCI’s records had mistakes, but he did not see evidence of commingling.
¶ 110 Plaintiff also asserts that SCI and WSM operated from the same location, used the same
employees, and performed the same management operations. Additionally, plaintiff notes
that in 2006 and 2007, after WSM had taken over management functions, invoices were sent
to SCI instead of WSM, but were paid by WSM. However, the trial court was entitled to
accept William’s explanations for these circumstances (see Falcon v. Thomas, 258 Ill. App.
3d 900, 909 (1994) (in a bench trial, the trial judge weighs the evidence and makes findings
of fact)), and according to those explanations, SCI and WSM were separate. William testified
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that because SCI remained the general partner, it was less confusing to have bills sent to it.
William also mentioned the difficulties he had in explaining to whom bills should be sent,
maintained that WSM paid the bills, and stated that each entity had separate bank accounts.
We also note that evidence that the affairs of two corporations were interwoven relates to the
liability between the two corporations, rather than the personal liability of an individual.
Amsted Industries, Inc., 65 Ill. App. 3d at 550.
¶ 111 Additionally, the use of the line of credit to pay off Wendy’s mortgage and to loan $1
million to a hedge fund was also explained. According to William, the bank required that the
mortgage on the condominium be paid off because the condominium was being used as
collateral for the loan. Picker stated this was generally required by lenders. William further
testified that the $1 million payment to the hedge fund was supposed to be a short interim
loan and an investment. Again, there was testimony that SCI could lend money to third
parties. Overall, although there was evidence that commingling occurred, such as testimony
from plaintiff’s expert, Rudnicki, we reiterate that in a bench trial, the trial judge weighs the
evidence and makes findings of fact. Falcon, 258 Ill. App. 3d at 909. Further, we note that
we will not disturb a trial court’s judgment as long as there is evidence to support it. Sharif,
2014 IL App (1st) 133008, ¶ 25. A finding that SCI, WSM, and William did not commingle
funds and maintained arm’s length relationships was not against the manifest weight of the
evidence.
¶ 112 Moving to the next consideration, there was conflicting evidence about whether SCI was
insolvent and limited evidence that WSM was insolvent. According to plaintiff’s expert,
Rudnicki, SCI was insolvent throughout 2005 because the liability for the Kansas judgment
had existed since the beginning of 2005 and when the Kansas judgment and line of credit
were accounted for, SCI’s liabilities exceeded its assets in 2005. Meanwhile, defendants’
expert, Picker, stated that there was no indication in 2005 that SCI’s liabilities exceeded its
assets and that there were positive retained earnings and no deficit. For his part, William
testified that SCI paid its bills and functioned until the Kansas judgment. According to
William, SCI became insolvent around March 2006, when the line of credit was no longer
available and the appeal process for the Kansas judgment ended. William also testified that
WSM had been able to operate and pay its bills. As of December 31, 2006, WSM’s balance
sheet showed assets of about $58,000 in cash. In light of the conflicting opinions on the
subject of solvency, the court was entitled to lend more weight to Picker’s and William’s
views, in which SCI was not insolvent before the Kansas judgment. See West Shore
Associates, Ltd. v. American Wilbert Vault Corp., 269 Ill. App. 3d 175, 180 (1994) (it is
function of trial judge to weigh conflicting evidence, consider the evidence in view of all the
evidence in the case, and to make findings based on that evidence). Further, the evidence
does not suggest that either entity was purposely kept insolvent while it operated. SCI and
WSM were both able to do business, though during different times. Contra People v. V&M
Industries, Inc., 298 Ill. App. 3d 733, 741 (1998) (corporation insolvent where was insolvent
at time of trial and was never adequately funded). That SCI was eventually drained of its
assets speaks to another factor that is discussed below–whether SCI drained diverted assets to
the detriment of creditors. Overall, a finding that SCI and WSM were solvent was not against
the manifest weight of the evidence.
¶ 113 As we mention above, the evidence shows that SCI diverted assets to WSM to the
detriment of a creditor, plaintiff. William, acting through SCI, made a deliberate effort after
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the Kansas judgment to divert funds to avoid paying plaintiff. As a result of the Kansas
judgment, a garnishment was served on SCI’s bank account. William stated that,
subsequently, money stopped being deposited in the account and that he directed that no
money should flow through the account without his authorization. Further, shortly after the
Kansas judgment, WSM began managing a significant number of properties that SCI had
previously managed, which generated management fees for WSM–fees that SCI previously
received. Meanwhile, SCI’s account was zeroed out, with approximately $32,000 going to
WSM. William also testified that after December 2005, SCI did not generate any business
income that could have satisfied the Kansas judgment and that the running balance in SCI’s
account since 2005 had been around $1,000. Further, it was William who arranged for the
transfer of SCI’s income stream to WSM. Where SCI was the general or managing partner,
he directed the limited partnerships to behave in a certain manner. As to the so-called
independent limited partnerships, William’s testimony described conversations and “some
notification of our intent or what was going on,” as well as his communicating that “from a
practical point of view, I was saying *** we needed to move it over” due to the garnishment,
a direct consequence of the Kansas judgment. The timing and method of using WSM to take
over SCI’s management functions and receive the corresponding income stream, while
keeping SCI’s assets low, strongly suggest that William, through SCI, diverted assets to
avoid paying the Kansas judgment.
¶ 114 The evidence also suggests that SCI’s and WSM’s only other officer or director, Wendy,
was nonfunctioning. Although Wendy testified that she felt some ownership in SCI, her other
statements suggested that she deferred to William on all matters and was only superficially
involved in SCI and WSM. Wendy testified that she did not recall the title of vice president
being attributed to her when she signed loan documents for SCI and that she was not active
in the business. When Wendy was asked to sign something, she would ask William questions
and then sign the document if she was comfortable, though she also stated that she was given
perfunctory explanations. Additionally, Wendy was unfamiliar with numerous aspects of SCI
and WSM. Wendy testified that she “probably would not have paid attention” or did not
remember that SCI was the general partner of various limited partnerships, which was a key
feature of SCI. She did not know the amount of management fees that SCI received and
stated that she would not know about any agreements between SCI and the limited
partnerships. As to WSM, Wendy did not know when or why it was formed and did not
recall being elected WSM’s sole director. Wendy also did not recall attending meetings for
SCI or WSM, though William testified to the existence of these meetings. Wendy’s almost
complete disengagement from SCI and WSM, except on paper, suggests that she was
nonfunctioning.
¶ 115 Finally, we consider whether SCI and WSM were mere façades for the dominant
stockholders. As to this factor, we agree with the trial court that SCI and WSM had a
separate corporate existence from William. SCI and WSM had employees, filed tax returns,
and functioned in their business of real estate management. SCI had existed since 1989 and
records presented at trial showed that it had a track record of generating revenue. WSM, once
it took over the management business, also generated positive revenue and appeared to
actually manage properties, even though its origins were suspect. Though William controlled
both entities, and at one point used WSM to avoid a judgment against SCI, it was not against
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the manifest weight of the evidence to find that they were functioning businesses that had a
history of performing specific functions, rather than mere shields for personal liability.
¶ 116 Overall, there was not such a unity of interest and ownership such that the separate
personalities of SCI and William, and WSM and William, did not exist. See Fiumetto, 321
Ill. App. 3d at 958. Though SCI and WSM had a nonfunctioning director or officer and SCI
diverted assets to WSM, the two entities still maintained separate identities from William. It
was not unreasonable or arbitrary to find that the entities kept records and observed corporate
formalities, albeit imperfectly, were adequately capitalized to serve their purposes, kept funds
separate from William and Wendy’s personal expenses, and were solvent while operating.
Although we found that SCI violated the Fraudulent Transfer Act, here we considered the
different question of whether William used SCI and WSM merely as an instrumentality to
conduct his own business. See Peetoom, 334 Ill. App. 3d at 527. We acknowledge that SCI
and WSM were not perfect, but plaintiff had to make a substantial showing that they were a
dummy or sham for William (see Jacobson, 278 Ill. App. 3d at 1088), which it failed to do.
Based on the consideration of the factors discussed above, the trial court’s finding that
William was not an alter ego for SCI and WSM was not against the manifest weight of the
evidence.
¶ 117 F. Attorney Fees
¶ 118 Lastly, defendants assert that the trial court should not have awarded attorney fees against
SCI, WSM, and Anderson because there was no statutory authority for doing so and none of
those entities had a contract with the bank that provided for attorney fees. Defendants argue
that the Fraudulent Transfer Act (740 ILCS 160/1 et seq. (West 2006)) does not authorize fee
awards. Additionally, defendants contend that WALP was the obligated party responsible for
fees in the Kansas case and no other defendants agreed to fee-shifting. Defendants further
argue that the fee petition was required to differentiate between the hours spent on
fee-shifting claims and fees sought pursuant to a statute. Additionally, defendants assert that
the court should have reduced the fees because plaintiff did not prevail on all claims, the fee
petition contained vague and ill-defined tasks, and the fee petition contained improper
overhead, such as travel expenses, long distance charges, computerized legal research,
paralegal and secretarial work, and copying expenses. Defendants also assert that the court
did not entertain their request for an evidentiary hearing.
¶ 119 Generally, Illinois courts follow the “American Rule,” which provides that each party
must bear its own attorney fees and costs, absent statutory authority or a contractual
agreement. Country Mutual Insurance Co. v. Styck’s Body Shop, Inc., 396 Ill. App. 3d 241,
251 (2009). Additionally, a trial court has broad discretion in awarding attorney fees, and we
will not reverse a decision about attorney fees absent an abuse of that discretion. Timan v.
Ourada, 2012 IL App (2d) 100834, ¶ 29.
¶ 120 There are two grounds that plaintiff relies on to justify its attorney fees: the Fraudulent
Transfer Act (740 ILCS 160/1 et seq. (West 2006)) and the Kansas judgment and underlying
loan documents. Initially, we note that a statute or contract must allow for attorney fees by
specific language, such that the provision at issue must specifically state that “attorney fees”
are recoverable. Negro Nest, LLC v. Mid-Northern Management, Inc., 362 Ill. App. 3d 640,
642 (2005).
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¶ 121 We disagree with plaintiff’s contention that attorney fees are recoverable as punitive
damages under the Fraudulent Transfer Act. Plaintiff cites section 8 of the Fraudulent
Transfer Act, which states that a creditor may obtain “any other relief the circumstances may
require” (740 ILCS 160/8(a)(3)(C) (West 2006)), and asserts that Illinois permits trial courts
to award punitive damages. However, plaintiff has failed to provide an Illinois case where
attorney fees were granted under the Fraudulent Transfer Act. In fact, two cases have
specifically rejected such claims, though we acknowledge that those two cases predate the
current version of the Fraudulent Transfer Act. See Kardynalski v. Fisher, 135 Ill. App. 3d
643, 649 (1985) (denying plaintiff’s claim for attorney fees “for want of statutory authority”);
Anderson v. Ferris, 128 Ill. App. 3d 149, 156 (1984) (plaintiff not entitled to attorney fees
where complaint neither specifically sought punitive damages nor did plaintiff cite any
Illinois authority that would authorize such damages for this type of action). Although here,
plaintiff sought punitive damages in its complaint, the circumstance remains that the current
version of the Fraudulent Transfer Act does not specify that attorney fees are recoverable and
Illinois courts generally refuse to allow recovery for attorney fees unless the statute
specifically states that “attorney fees” are recoverable. See Negro Nest, LLC, 362 Ill. App. 3d
at 649. We decline to follow plaintiff’s cited cases from other states that provide for attorney
fees or punitive damages for a fraudulent transfer claim. Though out-of-state cases should be
examined when relevant, decisions of the reviewing courts of foreign jurisdictions are not
binding on Illinois courts. See Skipper Marine Electronics, Inc. v. United Parcel Service, Inc.,
210 Ill. App. 3d 231, 239 (1991).
¶ 122 Plaintiff also contends that the Kansas judgment and underlying loan documents permit
attorney fees. This argument has some merit. The mortgage note stated that if it became
necessary to employ counsel to collect or enforce the debt or protect or foreclose the security
for the debt, the “Maker also shall pay on demand all costs of collection ***, including
attorneys’ fees and costs reasonably incurred for the services of counsel.” SCI signed the
note as WALP’s general partner. The Kansas court subsequently found SCI jointly and
severally liable for all of WALP’s debts, obligations, and judgments, which included attorney
fees. The judgment also provided for “other expenses accrued and accruing, including
reasonable attorneys’ fees” and stated that plaintiff had incurred and would continue to incur
substantial costs in attempting to collect the judgment, including the “reasonable attorneys’
fees related to Plaintiff’s collection efforts.” As plaintiff asserts, this language could justify
an award of attorney fees both for the Kansas judgment and the proceedings in Cook County
to enforce that judgment. See Poilevey v. Spivack, 368 Ill. App. 3d 412, 416 (2006)
(judgment supported award of postjudgment attorney fees where one clause specifically
awarded specific amount of fees and costs and other clause provided for “ ‘reimbursement
for reasonable attorney fees and costs of collection’ ”). Additionally, it could be argued that
because WSM was found to be a mere continuation of SCI, it could also be held responsible
for attorney fees. A corporation that went “through a mere change in form without a
significant change in substance *** should not be allowed to escape liability.” (Internal
quotation marks omitted.) Vernon v. Schuster, 179 Ill. 2d 338, 346 (1997).
¶ 123 At the same time, the Kansas judgment provided for “reasonable attorneys’ fees related to
[plaintiff’s] collection efforts,” and the trial court’s ruling did not explain whether the
entirety of the proceedings in Cook County fell into that category. This matter involved years
of litigation over a number of issues, and yet the court’s orders on fees were sparse and did
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not indicate on what basis plaintiff was awarded fees against SCI, WSM, and Anderson. It
would have been particularly helpful to have the court’s reasoning where Anderson was not
found to be a mere continuation of another Spatz-related entity. Where, as here, we review
the court’s fee order for an abuse of discretion (Timan, 2012 IL App (2d) 100834, ¶ 29), we
decline to speculate how broad the reach of the Kansas judgment and loan documents are
without some explanation from the trial court.
¶ 124 Further, the court’s order does not contain any indication of whether the requested fees
were reasonable, an inquiry that involves multiple considerations. Only those fees that are
reasonable are allowed, the determination of which is left to the trial court’s sound discretion.
Kaiser v. MEPC American Properties, Inc., 164 Ill. App. 3d 978, 983 (1987). Further, the
party seeking the fees always bears the burden of presenting sufficient evidence from which
the trial court can render a decision as to their reasonableness. Id. Rather than presenting a
mere compilation of hours multiplied by a fixed hourly rate or bills issued to the client, the
petition for fees must specify the services performed, by whom they were performed, the
time expended, and the hourly rate charged. Id. at 984. The trial court should also consider a
variety of additional factors, such as the skill and standing of the attorneys, the nature of the
case, the novelty and/or difficulty of the issues and work involved, the matter’s importance,
the degree of responsibility required, the usual and customary charges for comparable
services, and the benefit to the client. Id. Additionally, the trial court “should also consider
whether there is a reasonable connection between the fees and the amount involved in the
litigation.” (Internal quotation marks omitted.) Heller Financial, Inc. v. Johns-Byrne Co., 264
Ill. App. 3d 681, 691 (1994).
¶ 125 Additionally, where a case involves some claims filed pursuant to statutes that allow for
attorney fees and others not, the fee petition must distinguish between the hours spent on the
statutory fee-shifting claims and the other claims. Country Mutual Insurance Co., 396 Ill.
App. 3d at 252. Moreover, one factor that may shift an award of fees upward or downward is
the result that the plaintiff obtained, which is an important consideration when the plaintiff
only prevailed on some of its claims. Id. at 253. There, the court must decide whether the
unsuccessful claims were related to the successful claims and whether based on the level of
success achieved, the hours reasonably expended were a satisfactory basis for making a fee
award. Id.
¶ 126 As to overhead expenses, which defendants also challenge as appearing in plaintiff’s fee
petition, we note that expenses that an attorney regularly incurs regardless of specific
litigation, including telephone charges, in-house delivery charges, in-house photocopying,
check processing, newspaper subscriptions, and in-house paralegal and secretarial assistance,
are not recoverable as costs of litigation. Johnson v. Thomas, 342 Ill. App. 3d 382, 401
(2003). These overhead expenses refer mainly to fixed expenses that are already reflected in
an attorney’s hourly rate and should not be apportioned to any single cause of action so as to
constitute an additional charge. Id. at 402. However, this definition of overhead does not
include charges for expenses specially incurred to third parties specifically in furtherance of a
particular cause of action. Id. As an aside, the fee for computerized legal research does not
fall neatly within the categories of overhead versus outside expenditures and some courts
have made a distinction based on the billing method for each individual case. Id. at 403.
¶ 127 Here, the record does not indicate whether the trial court considered any of the above
factors when it ruled on plaintiff’s fee petition. As noted above, plaintiff’s actual fee petition
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was not in the record, which makes it unclear on what specific bases plaintiff sought fees.
Moreover, plaintiff did not respond in its reply brief to defendants’ arguments regarding the
reasonableness of the requested fees. Also troubling is that defendants were apparently
denied an evidentiary hearing that they requested in their response to plaintiff’s fee petition.
The purpose of an evidentiary hearing is to provide sufficient information to allow the court
to assess intelligently the reasonableness of the fees charged (Heller Financial, Inc., 264 Ill.
App. 3d at 691), which would have been quite helpful here. Although a previous order stated
that a hearing was scheduled, the court’s orders of June 25, 2013, and July 10, 2013, both
indicate that the court heard “arguments” from the parties and do not mention a hearing or
state that the fees were found to be reasonable. Generally, in protracted litigation involving
multiple complex issues, an evidentiary hearing should be conducted on the request of the
losing party, especially if the prevailing party was represented by multiple attorneys, which
may have resulted in duplicative charges, and where the prevailing party was entitled to fees
and costs with respect to some claims, but not others. Trossman v. Philipsborn, 373 Ill. App.
3d 1020, 1058 (2007). Both of those circumstances were at play in this matter. See also Bank
of America National Trust & Savings Ass’n v. Schulson, 305 Ill. App. 3d 941, 952 (1999)
(when a party who must pay attorney fees asks for an evidentiary hearing, he is entitled to
one). Moreover, the reasonableness of fees is a matter of proof, and a party ordered to pay
attorney fees has the right to conduct meaningful cross-examination on the issue (id.), which
apparently did not occur here.
¶ 128 The trial court’s order leaves many unanswered questions. The appendix to the fee
petition was voluminous, it contained charges that appear to qualify as overhead expenses,
and many of the entries are redacted. The record does not contain reports of proceedings for
June 25, 2013, and July 10, 2013, when the orders related to the fee petition were entered.
The trial court’s orders gave no indication of the basis for awarding fees or whether it
considered the many factors at work in deciding whether the attorney fee award was
reasonable, and yet plaintiff was awarded all of its requested fees. We recognize that it is the
appellant’s burden to present a sufficiently complete record of the proceedings at trial to
support a claim of error, and that in the absence of such a record on appeal, it will be
presumed that the order entered by the trial court was in conformity with the law and had a
sufficient factual basis. Foutch, 99 Ill. 2d at 391-92. At the same time, trial judges must also
justify the substance of their decisions, either orally or in writing, and explaining a ruling
instills confidence in the impartiality and fairness of the judge and enhances respect for the
courts. Turczak v. First American Bank, 2013 IL App (1st) 121964, ¶ 19. Here, because the
court’s orders give no indication of the basis for its decision, contained no finding of whether
the fees were reasonable, and at the very least, a number of entries in the fee petition
appendix appear suspect, we simply cannot determine whether the trial court abused its
discretion. But cf. Chicago Title & Trust Co. v. Chicago Title & Trust Co., 248 Ill. App. 3d
1065, 1072-73 (1993) (although defendants did not provide transcript of the hearing or of the
trial judge’s comments when fees were awarded, the court made an independent assessment
of the propriety of fees where it appeared that the court carefully examined the affidavits and
time records submitted, the order specified that the award represented a reasonable fee, and
there were no affidavits or testimony that contradicted the trial court’s finding). Accordingly,
we vacate the fee award and remand the matter to the trial court to explain the basis for
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awarding fees and for an evidentiary hearing on attorney fees.
¶ 129 III. CONCLUSION
¶ 130 For the foregoing reasons, we affirm the circuit court’s judgment on the issues of
collateral estoppel, the Fraudulent Transfer Act, and alter ego. We vacate the fee award and
remand on the issue of attorney fees.
¶ 131 Affirmed in part; vacated and remanded in part.
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