Sunseri v. Moen

• Decision Date: 15 May 2008
• Docket Number: No. 3-07-0468.,3-07-0468.
• Citation: 888 N.E.2d 713
• Parties: Jack A. SUNSERI and Consolidated Partners, Ltd., Plaintiffs-Appellants, v. Janet MOEN, Individually, as Partner of Macro Cellular Partners, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

888 N.E.2d 713

Jack A. SUNSERI and Consolidated Partners, Ltd., Plaintiffs-Appellants, v. Janet MOEN, Individually, as Partner of Macro Cellular Partners, Defendant-Appellee.

No. 3-07-0468.

Appellate Court of Illinois, Third District.

May 15, 2008.

Brendan A. Maher (argued), Kyle G. Carlock, Williams McCarthy, LLP, Rockford, for Jack A. Sunseri.

Stephen T. Fieweger (argued), Katz, Huntoon & Fieweger, Moline, for Janet Moen.

Justice WRIGHT delivered the opinion of the court:

Plaintiffs Jack A. Sunseri and Consolidated Partners, Ltd. (hereinafter, collectively, Sunseri), appeal from judgment of the circuit court of Rock Island County dismissing with prejudice an action to register a $5,984,686.01 foreign judgment against Macro Cellular Partners (Macro) alone, and then enforce the registered judgment against an individual partner unnamed in the original New York lawsuit. Sunseri requests this court to determine whether the Rock Island County circuit court erred in ruling that Sunseri could not reach Janet Moen's personal assets under the New York judgment because she was not made a party to the underlying suit in New York against Macro and by dismissing Sunseri's amended complaint to add Moen individually as a party. For reasons that follow, we affirm in part and vacate in part the trial court's decision.

BACKGROUND

In 1996, Sunseri filed suit in New York against Cellular Communications, Inc., and Macro, a general partnership. Sunseri sought damages from Macro for breach of contract, breach of fiduciary duty, and related conduct allegedly committed against Sunseri by Macro's general partners to deprive Sunseri of its share of partnership distributions. Following protracted litigation, the New York trial court awarded judgment on April 8, 2005, against Macro and in favor of Sunseri on the breach of contract and breach of fiduciary duty claims in the amount of $5,984,686.01.

On February 17, 2005, Judge Bernard J. Fried directed the clerk of the Supreme Court of the State of New York, New York County, to enter a judgment against Macro in a case encaptioned "Jack A. Sunseri and Consolidated Partners, Ltd., Plaintiffs, against Macro Cellular Partners and Cellular Communications, Inc., Defendant."

On November 4, 2005, attorney Shawn C. Fulbright, representing Sunseri in Illinois, filed an affidavit entitled "Jack A. Sunseri and Consolidated Partners, Ltd., Plaintiffs vs. Janet Moen, Individually as partner of Macro Cellular Partners, Defendant" with the circuit clerk in Rock Island County, Illinois. Based on the affidavit, counsel requested registration of the foreign judgment pursuant to the Uniform Enforcement of Foreign Judgments Act against only Moen as an individual partner (735 ILCS 5/12-650 et seq. (West 2006)).

Presumably adopting the case caption of Sunseri's affidavit, the circuit court clerk opened a file encaptioned "Jack A. Sunseri and Consolidated Partners, Ltd., Plaintiffs vs. Janet Moen, Individually as partner of Macro Cellular Partners, Defendant," assigned the cause the number 05-L-159, and filed Sunseri's affidavit with the attached decision signed by Judge Fried. On the same date, November 4, 2005, the Rock Island County circuit clerk issued a notice of registration of foreign judgment prepared by counsel for Sunseri with a case caption that named Moen individually. This notice stated that Sunseri filed a "Petition to Register Foreign Judgment," but a petition was not included in this filing.

On December 8, 2005, the clerk issued a memorandum of judgment against Moen, individually, stating as follows: "On November 4, 2005, a judgment was rendered herein in the amount of $6,274,365.73 and costs of suit in favor of Jack A. Sunseri and Consolidated Partners, Ltd. and against Janet Moen, Individually as partner of Macro Cellular Partners." However, no judicial action was taken in the Rock Island County circuit court based on the registration documents. The clerk issued a citation notice to Moen alone, contemporaneously with the memorandum of judgment, designating Moen as the "judgment debtor" and setting the cause for a January 9, 2006, hearing.

On January 9, the court entered an agreed order continuing the citation hearing to January 26. In the meantime, on January 12, Sunseri prepared and then filed a third-party citation notice on First Midwest Bank, N.A., of Moline, Illinois. This citation notice also showed "Janet Moen, Individually as partner of Macro Cellular Partners," as the "judgment debtor," and stated that "[t]he citation was issued on the basis of a judgment against the judgment debtor in favor of the judgment creditor" in the amount of "$6,274,365.73 + costs." A third-party citation to discover assets was issued by the circuit court clerk and served on First Midwest Bank by a Rock Island County sheriff's deputy on January 18, 2006.

On January 25, 2006, the day before the date set for the hearing on Sunseri's citation against Moen individually, Moen filed a motion to vacate enforcement of the New York judgment against her individually and to stay the citation to discover assets. In an attached affidavit, Moen averred that she was not named as an individual defendant in the New York suit, and she had not been served with the summons and complaint in that case. She also sought a stay of enforcement on the ground that the New York County court's decision was pending review in the New York appellate division.

The parties submitted briefs and argued their positions before Judge Lori R. Lefstein. On March 20, 2006, Judge Lefstein ruled that Sunseri had an enforceable Illinois judgment against Macro Cellular Partners pursuant to the Illinois Uniform Partnership Act (1997) (805 ILCS 206/100 et seq. (West 2006)), but not against Moen individually, and entered two separate orders. One order was captioned "Jack Sunseri, et al., Plaintiff, vs. Janet Moen and Macro Cellular Partners, Defendant" (emphasis added) and denied Moen's motion to vacate or stay enforcement and continued the citation lien against Moen's assets held by First Midwest Bank. A separate order captioned "Jack A. Sunseri, Plaintiff, vs. Macro Cellular Partners, Defendant," directed First Midwest Bank to turn over funds held by the Bank pursuant to the third-party citation to discover assets. The original affidavit in the action to register the foreign judgment was not directed toward the partnership and requested the registration of judgment in Moen's name, individually. The third-party citation was not directed to partnership assets in any form.

On March 21, 2006, Moen filed a motion to vacate and stay enforcement of the New York judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2006)) based on lack of subject matter and personal jurisdiction. On March 30, 2006, Judge Alan G. Blackwood considered that motion and ruled that subject matter jurisdiction was not the issue. However, Judge Blackwood questioned whether the court had personal jurisdiction over Moen and invited the parties to brief that issue.

On May 1, 2006, Moen filed another motion to vacate the March 20 orders entered by Judge Lefstein. This motion included Moen's affidavit and related documents, which established that the Macro general partners met in November 1996 and passed a resolution agreeing to be governed by the Florida Revised Uniform Partnership Act of 1995, effective January 1, 1996 (Fla. Stat. § 620.81001 et seq. (1995)). The documents showed the Macro partnership agreement was amended pursuant to the resolution. In a "Summary of Facts and Law in Support of Plaintiff's Opposition to Vacate Judge Lefstein's Orders of March 20, 2006," Sunseri argued the laws of Florida, New York and Illinois all permitted him, as a judgment creditor, to enforce the New York judgment against the general partners of Macro, because Macro, the judgment debtor, was insolvent. Sunseri attached a September 6, 2005, affidavit of Patrick Martin, Sunseri's attorney in a related collection suit pending in Escambia County, Florida, in which Martin averred Macro was insolvent.

After reviewing the parties' arguments, on June 26, 2006, Judge Blackwood ruled that Sunseri could proceed with a citation to discover the partnership assets. However, citing Johnson v. St. Therese Medical Center, 296 Ill.App.3d 341, 345, 230 Ill.Dec 810, 694 N.E.2d 1088 (1998), the court ruled that the citation proceeding against Moen's personal assets "must fail" because a judgment against a partnership could not be satisfied by the individual partner's personal assets unless the original action included the partner named in an individual capacity.

Responding to Judge Blackwood's jurisdictional concerns, Sunseri next filed a motion for leave to file "amendment to complaint" and an "amendment to complaint" to "add" Moen individually, as a general partner of Macro. This pleading was captioned "Jack A. Sunseri and Consolidated Partners, Ltd., Plaintiffs, vs. Janet Moen, Individually as partner of Macro Cellular Partners, Defendants." The body of the pleading alleged that Sunseri obtained a judgment in New York against Macro which was duly registered in the Rock Island County circuit court; Moen was a general partner of Macro; and Macro was insolvent, leaving a deficiency which Sunseri sought to recover from Moen's personal assets. On August 7, 2006, Judge Blackwood allowed Sunseri's motion to amend and ordered summons to issue. Moen then filed a motion to dismiss the "amended complaint" with prejudice based on Illinois's statute of limitations (735 ILCS 5/2-619(a)(9) (West 2006)).

After considering the parties' arguments, the court entered an order on April 2, 2007, granting Moen's motion to dismiss the procedure to register the foreign judgment against Moen individually with prejudice. Specifically, the court ruled that section 2-411(b) of the Code of Civil Procedure (735 ILCS 5/2-411(b) (West 2006)) does not permit Sunseri to enforce the New York judgment...