Xcel Supply LLC v. Horowitz

Decision Date08 February 2018
Docket NumberNo. 1–16–2986,1–16–2986
Citation2018 IL App (1st) 162986,100 N.E.3d 557
Parties XCEL SUPPLY LLC, Plaintiff–Appellee, v. Victor HOROWITZ, Defendant (Hydra Properties, LLC ; Ahuva Horowitz; and Sundance Methadone Treatment Center, LLC, Third–Party Citation Respondents, Hydra Properties, LLC, Third–Party Citation Respondent–Appellant).
CourtUnited States Appellate Court of Illinois

2018 IL App (1st) 162986
100 N.E.3d 557

XCEL SUPPLY LLC, Plaintiff–Appellee,
v.
Victor HOROWITZ, Defendant

(Hydra Properties, LLC ; Ahuva Horowitz; and Sundance Methadone Treatment Center, LLC, Third–Party Citation Respondents,

Hydra Properties, LLC, Third–Party Citation Respondent–Appellant).

No. 1–16–2986

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion filed February 8, 2018
Rehearing denied March 9, 2018


Alan J. Mandel and Antonio D. Flores, of Alan J. Mandel, Ltd., of Skokie, for appellant.

Carey M. Stein, of Ashman & Stein, of Skokie, for appellee.

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

¶ 1 This is an appeal by a third-party citation respondent from a postjudgment proceeding.

¶ 2 In the underlying case, plaintiff Xcel Supply, LLC, obtained a judgment against defendant Victor Horowitz in the amount of $468,021.87. Plaintiff then served a citation on Hydra Properties, LLC (Hydra), the only appellant in this appeal, informing Hydra that it was prohibited from transferring any property to defendant. On September 16, 2015, the trial court entered "a conditional judgment" in favor of plaintiff. On the very next day, Hydra, which is fully owned by defendant's wife, wrote the first of the checks in question to defendant.1 Between September 17, 2015, and December 17, 2015, Hydra wrote six checks to defendant, totaling $5220, which he admittedly cashed. On October 13, 2016, the trial court ordered Hydra to turnover $5220 to

100 N.E.3d 559

plaintiff within 30 days. On November 14, 2016, Hydra filed a notice appealing this order, as well as an earlier order.

¶ 3 On this appeal, Hydra makes several claims. First, Hydra claims that the trial court failed to hold an evidentiary hearing prior to issuing a turnover order, although (1) the trial court stated repeatedly in written orders that it was going to hold a hearing and did, in fact, hold a hearing, (2) Hydra failed to include in the appellate record a transcript or bystander's report for the hearing date or any other court date, and (3) Hydra stated a week before the scheduled hearing that, in its opinion, it was not limited "in any way" in what it could present at the hearing. Second, Hydra claims that the trial court had no evidentiary basis to find that the six checks were defendant's property, although defendant averred in an affidavit that the checks were made out to "A. Horowitz," that he cashed them and that he spent the money on his family's expenses. Both an order2 of the trial court and defendant's deposition transcript indicate that he uses the first name "Avigdor," as well as the first name "Victor," and Hydra concedes on this appeal that it issued the checks to defendant. Third, Hydra claims that the trial court abused its discretion by failing to consider his late response to plaintiff's turnover motion. However, we have fully considered it, and we fail to see how this response, which included defendant's affidavit that he received and cashed the checks in question, could have undermined the conclusion that the checks were his property.

¶ 4 For the reasons more fully explained below, we do not find Hydra's claims persuasive and affirm the trial court's turnover order directing Hydra to pay plaintiff $5220. Plaintiff has not asked this court for interest, so we did not consider that issue.

¶ 5 BACKGROUND

¶ 6 On April 22, 2009,3 plaintiff Xcel Supply, LLC, filed a one-count complaint for breach of contract against defendant Victor Horowitz. Xcel Supply, LLC v. Horowitz , 2017 IL App (1st) 152277-U, ¶ 5, 2017 WL 2855821. After six years of discovery and motion practice, the suit proceeded to a bench trial in 2015. Xcel Supply , 2017 IL App (1st) 152277-U, ¶¶ 15, 22. After trial, the trial court found in favor of plaintiff and awarded it $468,021.87 in damages on July 17, 2015, and $3312.75 in costs and $153,746.25 in attorney fees on October 21, 2015. Xcel Supply , 2017 IL App (1st) 152277-U, ¶¶ 30, 32. On June 30, 2017, this court affirmed. Xcel Supply , 2017 IL App (1st) 152277-U, ¶ 112.

¶ 7 On August 27, 2015, after the bench trial and the damages award, plaintiff served a citation to discover assets on Hydra. The citation stated, in relevant part:

"You are PROHIBITED from making or allowing any transfer or other disposition of, or interfering with, any property not exempt from the enforcement of a judgment, a deduction order or garnishment, property belonging to the judgment debtor or to which s/he may be entitled or which may thereafter be acquired by or become due to him or her, and from paying over or otherwise disposing of any monies not so exempt,
100 N.E.3d 560
which are due to the judgment debtor. This prohibition shall remain in effect until further order of court or termination of the proceeding. You are not required to withhold the payment of any monies beyond double the amount of the total sum due the judgment creditor."

¶ 8 After Hydra failed to appear and answer the citation,4 the trial court entered an order on September 16, 2015, stating "that a conditional judgment in the amount of $468,021.87, is entered in favor of Xcel Supply, LLC and against Hydra Properties, LLC as Third Party Citation Respondent in this proceeding." The order further directed the clerk of the court to "issue a summons to confirm the conditional judgment against Hydra Properties, LLC, commanding Hydra Properties, LLC to show cause why the conditional judgment should not be made final." On October 14, 2015, an attorney filed an appearance on behalf of Hydra.

¶ 9 On November 24, 2015, Hydra filed a response, in which Ahuva Horowitz certified that, on the date of the service of the citation, Hydra did not have in its possession "any personal property or monies belonging to" defendant. Ahuva Horowitz is defendant's wife and the owner of Hydra. At her deposition, Ahuva testified that she was an owner of Hydra, although she did not know how or when it was first organized, who organized it, or whether it did anything or owned anything. She further testified that she had never done anything for Hydra. In his affidavit, defendant averred that Ahuva Horowitz was the sole owner.

¶ 10 On May 12, 2016, plaintiff filed a motion for rule to show cause and for turnover. Attached to its motion was an exhibit containing copies of six cancelled checks. Plaintiff stated in its motion that it had received these copies in an e-mail from Hydra's attorney on January 19, 2016, and plaintiff claimed that they established that defendant was "an authorized signer on Hydra's checking account" and "had signed numerous checks payable to himself."

¶ 11 The copies of the six checks show that they were all payable to "A. Horowitz"; were dated between September 17, 2015, and December 17, 2015; and totaled $5220. As noted above, an order of the court and defendant's deposition transcript indicate that he uses the first name "Avigdor," as well as the first name "Victor." Specifically, the checks were: (1) No. 2014, dated September 17, 2015, for $250; (2) No. 2019, dated October 19, 2015, for $300; (3) No. 2020, dated October 19, 2015, for $1820; (4) No. 2160, dated October 29, 2015, for $570; (5) No. 2162, dated November 13, 2015, for $1780; and (6) No. 2165, dated December 17, 2015, for $500. The copies indicate that the checks were all cashed on the same day that they were written and the signature, which is a series of illegible loops, appears to be the same signature on both the front and back of the checks. In its motion, plaintiff asked the court to order Hydra "to immediately turn over an amount which is not less than $5,220.000 [sic ]" to plaintiff.

¶ 12 In an order dated June 2, 2016, the trial court ordered defendant to file its response by June 30, 2016. Instead, defendant filed its response on July 1, 2016, one day late. The trial court subsequently denied defendant's motion to file its late response.

¶ 13 Although the trial court denied defendant's motion to file its late response,

100 N.E.3d 561

the response is in the appellate record, and one of the issues that Hydra raises on appeal is whether the trial court abused its discretion by not considering it. In its response, Hydra emphasized that "the checks at issue were all made payable to ‘A. Horowitz,’ " without specifying whether "A."—or the payee—was "Avigdor," defendant, or "Ahuva," his wife.5 Hydra did concede that the checks were all "negotiated" by defendant, and that it had produced the copies attached to plaintiff's motion. Hydra argued that these checks were "loans or gifts" to defendant, rather than his assets or income.

¶ 14 In its response, Hydra stated that Hydra's manager is Ahuva Horowitz, defendant's wife, and that she owns 100% of the membership interests of Hydra a limited liability corporation.

¶ 15 Similarly, in defendant's affidavit, attached to Hydra's response, defendant averred that Ahuva Horowitz is his wife, that she owns 100% of the membership interests of Hydra, and that he "negotiated" the six checks in question, which "were used to pay expenses related to the health and welfare of our children." Defendant's affidavit used the passive voice, stating that the monies "were used," and thus did not expressly state that he was the one who used the monies to pay the expenses....

To continue reading

Request your trial
7 cases
  • People v. Jones
    • United States
    • United States Appellate Court of Illinois
    • 3 Mayo 2018
    ...very nature de novo . De novo review means that we will perform the same analysis that a trial court would perform. Xcel Supply LLC v. Horowitz , 2018 IL App (1st) 162986, ¶ 38, 421 Ill.Dec. 540, 100 N.E.3d 557. "A statute is presumed constitutional, and the party challenging the statute be......
  • LB Steel, LLC v. Carlo Steel Corp.
    • United States
    • United States Appellate Court of Illinois
    • 28 Septiembre 2018
    ...25, 358 Ill.Dec. 758, 965 N.E.2d 1237 ), and a reviewing court must "dismiss an appeal if jurisdiction is lacking" ( Xcel Supply LLC v. Horowitz , 2018 IL App (1st) 162986, ¶ 26, 421 Ill.Dec. 540, 100 N.E.3d 557 ). As the record does not show that the bankruptcy court lifted the automatic s......
  • McGinley Partners, LLC v. Royalty Props., LLC
    • United States
    • United States Appellate Court of Illinois
    • 31 Marzo 2021
    ...proceedings de novo. Kauffman v. Wrenn , 2015 IL App (2d) 150285, ¶ 15, 399 Ill.Dec. 486, 46 N.E.3d 805 ; see also Xcel Supply, LLC v. Horowitz , 2018 IL App (1st) 162986, ¶ 57, 421 Ill.Dec. 540, 100 N.E.3d 557 ("Where a trial court relies solely on the parties’ oral argument and the record......
  • Kelley v. Stevanovich
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 21 Julio 2022
    ...the parties stipulate to the facts. 364 Ill.Dec. 778, 977 N.E.2d at 275–77. Yet four years later, in Xcel Supply LLC v. Horowitz , 421 Ill.Dec. 540, 100 N.E.3d 557 (Ill. App. Ct. 2018), another intermediate court questioned the reasoning in Workforce Solutions. 421 Ill.Dec. 540, 100 N.E.3d ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT