Hartney v. Bevis

• Decision Date: 23 February 2018
• Docket Number: No. 2–17–0165,2–17–0165
• Parties: Jeffrey HARTNEY, Plaintiff–Appellee, v. Robert BEVIS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (2d) 170165
102 N.E.3d 680

Jeffrey HARTNEY, Plaintiff–Appellee,
v.
Robert BEVIS, Defendant–Appellant.

No. 2–17–0165

Appellate Court of Illinois, Second District.

Opinion filed February 23, 2018

Timothy P. Whelan, of Timothy Whelan Law Associates, Ltd., of Glen Ellyn, for appellant.

Patrick J. Williams and Vincent C. Mancini, of Ekl, Williams & Provenzale, LLC, of Lisle, for appellee.

JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Jeffrey Hartney, initiated a supplementary proceeding to enforce a judgment against defendant, Robert Bevis. Defendant appeals the denial of his motion to apply his personal-property exemption (see 735 ILCS 5/12–1001(b) (West 2016) ) to certain stock he owns. We affirm, holding that the involuntary dismissal of defendant's prior appeal raising the same issue bars his current challenge.

102 N.E.3d 681

¶ 2 I. BACKGROUND

¶ 3 Plaintiff obtained a judgment against defendant in an action for fraudulent misrepresentation. See Hartney v. Bevis , 2015 IL App (2d) 150005-U, 2015 WL 8968886. In a supplementary enforcement proceeding, defendant disclosed the existence of stock he owns in a company called Law Weapons. Plaintiff filed a motion for the turnover of the stock to the sheriff for sale, with the proceeds to be applied in partial satisfaction of the judgment. Defendant opposed the turnover, claiming the stock as part of his personal-property "wildcard" exemption under section 12–1001(b) of the Code of Civil Procedure ( 735 ILCS 5/12–1001(b) (West 2016) ). Defendant asked in the alternative that the turnover be stayed pending this court's decision in defendant's appeal of the underlying judgment. Defendant attached to his response an affidavit from a certified public accountant who averred, based on his review of the finances of Law Weapons, that the stock had a "negative tax book value."

¶ 4 At a hearing on August 27, 2015, the court ordered that the stock be relinquished to the sheriff and sold. The court explained:

"[W]ith respect to the personal property, wildcard exemption, I don't know that it's necessary for the CPA to submit an affidavit as to book value or that we have a hearing to determine the value. The value could be determined at the Sheriff's sale and the wildcard exemption applied to whatever the proceeds are. I mean, that will determine—I know through experience that book value is not necessarily market value. And the wildcard exemption should apply to market value, not book value.

So the sale of a stock is the way to best determine what the true market value is and to what extent the personal property exemption can be applied."

The court also denied defendant's alternative request for a stay of the turnover.

¶ 5 On September 15, 2015, defendant filed a notice of appeal from the August 27 order. In the notice, defendant characterized the order as "requiring the turnover and sale of the defendant['s] shares of stock, before allowing the defendant to utilize his personal property exemption for the stock." (Emphasis in original.) The case was docketed as No. 2–15–0929. In his docketing statement, filed September 24, 2015, defendant identified one of the issues on appeal as "whether the trial court improperly denied defendant['s] stay and immediate use of his personal exemption, for his shares of stock in his family business."

¶ 6 In December 2015, this court affirmed the underlying judgment. See Hartney , 2015 IL App (2d) 150005-U. In January 2016, the trial court stayed the sale of the stock, pending further order. Meanwhile, in July 2016, this court dismissed defendant's appeal in case No. 2–15–0929 for his failure to file an appellate brief. In August 2016, the trial court lifted the stay on the sale of the stock. In October 2016, the sheriff sold the stock to plaintiff at auction for $1.

¶ 7 In November 2016, defendant filed his "second motion for exercise of his statutory wildcard exemption." Defendant asked that the exemption be applied against the stock itself and not the proceeds of the sale. At a hearing in January 2017, the trial court declined to void the sale of the stock and reaffirmed that the exemption applied only to the proceeds of the sale.

¶ 8 Defendant filed this timely appeal of the January 2017 order.

102 N.E.3d 682

¶ 9 II. ANALYSIS

¶ 10 Defendant contends on appeal that the personal-property exemption applies to the stock itself. Plaintiff's lead argument in response is that defendant is estopped from challenging the January 2017 order, because he abandoned his appeal in case No. 2–15–0929. Plaintiff notes that, according to the notice of appeal and docketing statement in that prior appeal, defendant intended to raise the same issue that he presents here, namely, whether the personal-property exemption entitles him to retain the stock. We agree with plaintiff...