Johnson v. St. Therese Medical Center

May 11, 1998

Nos. 2--97--0577, 2--97--0632, 2--97--0733, cons.
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

ERIC JOHNSON and LORI JOHNSON, ) Appeal from the Circuit Court
) of Lake County. )
Plaintiffs-Appellees, )
) No. 91--L--944
v. )
)
ST. THERESE MEDICAL CENTER, )
et al., )
)
Defendants, )
) Honorable
(Thomas Braniff, Jr., Citation ) John T. Phillips and
Respondent and Contemnor- ) Wallace B. Dunn,
Appellant). ) Judges, Presiding.
_________________________________________________________________

ERIC JOHNSON and LORI JOHNSON, ) Appeal from the Circuit Court
) of Lake County. )
Plaintiffs-Appellees, )
) No. 91--L--944
v. )
)
ST. THERESE MEDICAL CENTER, )
et al., )
)
Defendants, )
) Honorable
(Michael Oster and Richard ) George Bridges and
Keller, Citation Respondents ) Wallace B. Dunn,
and Contemnors-Appellants). ) Judges, Presiding.
_________________________________________________________________

ERIC JOHNSON and LORI JOHNSON, ) Appeal from the Circuit Court
) of Lake County. )
Plaintiffs-Appellees, )
) No. 91--L--944
v. )
)
ST. THERESE MEDICAL CENTER, )
et al., )
)
Defendants, )
)
(Thomas Braniff, Jr; Richard )
Keller; Michael Oster; and ) Honorable
Rodney Haenschen, Citation ) George Bridges,
Respondents-Appellants). ) Judge, Presiding.
_________________________________________________________________
JUSTICE McLAREN delivered the opinion of the court:
The citation respondents, Drs. Richard Keller, Michael Oster,
Thomas Braniff, and Rodney Haenschen, appeal a turnover order that
required the assets of the citation respondents to be turned over
to the plaintiffs, Eric and Lori Johnson, as special administrators
of the estate of their deceased daughter, Erica. The citation
respondents Drs. Richard Keller, Michael Oster, and Thomas Braniff
also appeal findings of civil contempt against them after they
refused to appear, answer questions, and produce documents
regarding their personal assets at a citation hearing. We reverse.
In November 1990, the plaintiffs brought their 22-month-old
daughter, Erica, to St. Therese Medical Center (St. Therese), where
she was examined, treated, and released by Dr. Bruce Sands. Erica
died the next day. On the day Sands treated Erica, he was a
partner of Northern Illinois Emergency Physicians, Ltd. (the
Partnership). The other partners of the Partnership included the
citation respondents, Drs. Richard Keller, Michael Oster, Rodney
Haenschen, and Thomas Braniff (collectively known as the Partners),
and Phillip Gillespie, M.D.
The plaintiffs' first complaint named as defendants Sands and
the Partnership, among others. The complaint alleged, inter alia,
that Sands negligently caused the death of Erica, and at the time
of the incident Sands acted on behalf of the Partnership and that
the Partnership was negligent. The Partnership filed an answer to
the plaintiffs first amended complaint, in which the Partnership
admitted that Sands was a partner in the Partnership at the time of
the alleged incident.
After a jury trial on March 22, 1996, the trial court entered
judgment on the verdict of $4 million in favor of the plaintiffs
and against the defendants Sands, St. Therese, and the Partnership.
On April 10, 1996, the plaintiffs filed a second amended complaint
to conform with their proofs at trial, naming as defendants Sands,
St. Therese, and the Partnership. The Partnership did not file an
answer to the second amended complaint.
After the commencement of the action, Sands filed for
bankruptcy in federal court. Thus, when the plaintiffs began
postjudgment collection proceedings against Sands, Sands claimed he
had been discharged of this debt. The matter was deferred pending
a ruling from the bankruptcy court.
The plaintiffs also filed a postjudgment collection action
against the Partners as individuals. All the Partners except
Gillespie were served with notice of the supplemental action and
were issued citations to discover assets. At the citation hearings
all the Partners except Gillespie admitted they were Partners of
the Partnership at the time of the incident giving rise to
liability. Keller, Oster, and Haenschen appeared at the
supplemental actions, answered questions, and provided documents
regarding the Partnership. However, during their citation hearings
on February 3, 1997, Keller and Oster refused to answer questions
or produce documents regarding their personal assets. On February
10, 1997, Keller, Oster, and Haenschen filed a motion to quash,
modify, and dismiss, alleging that the citations were improper.
On February 18, 1997, the trial court, Judge Wallace B. Dunn
presiding, denied Keller s, Oster s, and Haenschen s motion. The
trial court held that the determinations dealing with partnership
liability can be made during citation proceedings. The court also
held that, if Keller, Oster, and Haenschen were general partners on
the date of the incident, the plaintiffs may proceed against them
individually.
Subsequently, the plaintiffs issued wage deduction notices and
affidavits for wage deduction orders to withhold the wages of all
the Partners. On March 17, 1997, the Partners filed a motion to
reconsider the denial of their motion to quash and dismiss the
citations to discover assets. The Partners also filed a motion to
quash and dismiss all of the citations and garnishments. On April
1, 1997, Judge Dunn denied their motions and, citing sections 2--
411(b) and 2--102 of the Code of Civil Procedure (735 ILCS 5/2--
411(b), 2--102 (West 1996)), stated that judgment could be enforced
against the Partners personally if it were determined that they
were partners with Sands at the time of the incident. The trial
court also held that this determination could be made during
supplemental proceedings. Judge Dunn reasoned that, since the
Partners had previously admitted that they were partners in the
Partnership at the time of the incident, the Partners were jointly
and severally liable for the judgment against the Partnership.
On April 4, 1997, Oster and Braniff filed answers stating that
they refused to answer questions regarding their personal assets
because judgment was not entered against them personally and they
had already answered questions and provided documents regarding the
assets of the Partnership and Sands.
On April 22, 1997, the trial court, Judge George Bridges
presiding, cited Keller, Oster, Haenschen, and Braniff to appear
and respond to questions regarding their personal assets. They
failed to appear. The Partners argued that they did not have to
appear because they were not judgment debtors. The trial court
determined that the Partners were subject to discovery of assets
and ordered them to show cause and appear on May 22, 1997.
On May 22, 1997, Braniff appeared and testified but refused to
answer questions regarding his personal assets. Keller, Oster, and
Haenschen failed to appear. The trial court, Judge John Philips
presiding, held Keller, Oster, and Haenschen in indirect civil
contempt of court and set bond at $10,000 each. The trial court
also held Braniff in direct civil contempt of court and sentenced
him to 24 hours' incarceration, or until he answered questions
regarding his personal assets. Braniff appealed this order.
On June 3, 1997, Keller, Oster, and Haenschen appeared before
the court. Haenschen answered questions regarding his personal
assets. However, Keller and Oster refused to answer questions
regarding their personal assets. Thus, the trial court held Keller
and Oster in direct civil contempt of court and remanded them to
the county jail until such time as they answered questions and
produced documents regarding their personal assets. Keller and
Oster appealed this order. The trial court dismissed Haenschen's
citation to discover assets and purged his contempt order.
In addition, on June 30, 1997, the trial court entered a
turnover order requiring the assets of Keller, Haenschen, and
Braniff to be turned over to the plaintiffs. The trial court noted
that all the Partners were subject to the supplemental proceedings
because they admitted that they were partners at the time of the
incident giving rise to liability. The court explained that, since
Gillespie did not admit that he was a partner, the trial court
could not rule that he was subject to the supplemental action.
Keller, Haenschen, Braniff, and Oster filed a notice of appeal on
July 11, 1997. These appeals have been consolidated.
Initially, we note that although the Partners claim that
Gillespie is an appellant in this case, there is nothing in the
record to indicate that he was subject to any of the orders on
appeal or that he filed a notice of appeal relating to these
orders. Therefore, he is not before this court as an appellant in
this appeal. See Supreme Court Rule 301. 155 Ill. 2d R. 301.
In this appeal, the Partners argue that the trial court
erroneously held them in contempt of court and ordered their
property turned over to the plaintiffs. The Partners claim that
the trial courts did not have jurisdiction over them because the
plaintiffs did not name them individually as defendants and no
trial court entered judgment against them individually. The
plaintiffs argue that, since it is undisputed that the Partners
were partners in the Partnership at the time of the incident giving
rise to liability, the Partners are liable for judgment against the
Partnership. The plaintiffs further argue that the trial courts
properly allowed the plaintiffs to proceed against the Partners in
the postjudgment proceedings. We disagree with the plaintiffs.
We acknowledge that all partners are jointly and severally
liable for everything chargeable to the partnership for the loss or
injury of a third person due to any wrongful act or omission of any
partner acting in the ordinary course of the business of the
partnership. 805 ILCS 205/13, 15 (West 1996). Further, "[a]n
unsatisfied judgment against a partnership in its firm name does
not bar an action to enforce the individual liability of any
partner." 735 ILCS 5/2--411(b)(West 1996). However, "[a] judgment
entered against a partnership in its firm name is enforceable only
against property of the partnership and does not constitute a lien
upon real estate other than that held in the firm name." (Emphasis
added.) 735 ILCS 5/12--102 (West 1996). Therefore, where judgment
is entered against a partnership, but not against the individual
partners, the judgment may not be satisfied by the personal assets
of the individual partners. 735 ILCS 5/12--102 (West 1996); see
Cook v. Department of Revenue, 281 Ill. App. 3d 171, 177-78 (1996).
For example, in Cook, the Department of Revenue issued a
notice of tax liability to a partnership. Cook, 281 Ill. App. 3d
at 173. The Department of Revenue was unable to enforce the tax
liability against the partnership because the partnership had
previously filed for bankruptcy. Cook, 281 Ill. App. 3d at 173.
Therefore, the Department of Revenue attempted to enforce the
partnership's tax liability against the plaintiff, a general
partner. Cook, 281 Ill. App. 3d at 173. The partner received a
copy and was aware of the contents of the notice of tax liability
issued to the partnership. Cook, 281 Ill. App. 3d at 173.
However, the Department of Revenue did not issue a notice of tax
liability or a final assessment to the partner in his individual
capacity. Cook, 281 Ill. App. 3d at 173. Thus, the trial court
granted the partner's motion for summary judgment. Cook, 281 Ill.
App. 3d at 174.
This court affirmed, stating that, because a partnership can
own property, it is a separate entity from its partners. Cook, 281
Ill. App. 3d at 176. Because the Department of Revenue issued
notice of tax liability and the final assessment to the
partnership, and not to the partner individually, and, because the
Department of Revenue did not join the partner, the partner did not
have notice that he could be liable personally for the
partnership's tax debt. Cook, 281 Ill. App. 3d at 177. Thus, this
court reasoned that the partner was denied due process. Cook, 281
Ill. App. 3d at 177.
The case at bar is closely analogous to Cook. The plaintiffs
in the instant case named the Partnership, but not the individual
Partners, in their complaint. The plaintiffs served the
Partnership, but not the individual Partners. In addition, the
Partners in this case, just like the partner in Cook, were aware of
the contents of the plaintiffs' complaint against the Partnership.
However, because the Partners were not named defendants and were
not served in their individual capacities, they were not put on
notice that their personal assets were at risk. Further, the
plaintiffs in this case are unable to collect from Sands because he
has filed for bankruptcy protection. Finally, judgment was entered
against the Partnership, but not the individual Partners. Thus,
the Partners were not judgment debtors and were not subject to
citations proceedings to the extent that the plaintiffs had any
claim upon the Partners' individual assets. Accordingly, the trial
court erred when it attempted to enforce the judgment against the
Partners by ordering the turnover of the Partners' assets and
holding the Partners in contempt. Cook, 281 Ill. App. 3d at 177;
735 ILCS 5/12--102 (West 1996).
The plaintiffs argue that the Partners are judgment debtors
because the Partnership name is on the judgment order. However,
the plaintiffs fail to recognize that "[a] judgment entered against
a partnership in its firm name is enforceable only against property
of the partnership ***." 735 ILCS 5/12--102 (West 1996). Because
nothing in the record indicates that the Partners held assets which
belonged to the Partnership, their argument fails.
Next, the plaintiffs argue that the Partners are judgment
debtors because they are jointly and severally liable for the debts
of the Partnership. We do not dispute this statement. However,
the plaintiffs ignore the fact that judgment was entered against
the Partnership, and not the Partners as individuals. Thus, until
a judgment is entered against the Partners individually, the
plaintiffs cannot recover from the Partners personal assets. See
735 ILCS 5/12--102 (West 1996); Cook, 281 Ill. App. 3d at 177-78.
In addition, citing Pyshos v. Heart-Land Development Co., 258
Ill. App. 3d 618 (1994); Lange v. Misch, 232 Ill. App. 3d 1077
(1992) and O'Connell v. Pharmaco, Inc., 143 Ill. App. 3d 1061
(1986), the plaintiffs assert that a trial court may enter judgment
against a third party at a supplementary proceeding. However, the
courts in these cases explain that, before a court may enter
judgment against a third party in a supplementary proceeding, the
record must contain some evidence that the third party possesses
assets of the judgment debtor. Pyshos, 258 Ill. App. 3d at 623;
Lange, 232 Ill. App. 3d at 1081; O'Connell, 143 Ill. App. 3d at
1067. Because the record is devoid of any evidence that the
Partners possessed assets belonging to the Partnership, this
argument fails.
The plaintiffs also argue that section 2--411(b) of the Code
of Civil Procedure permits the enforcement of liability in
supplementary proceedings against an individual partner. Section
2--411(b) provides, "An unsatisfied judgment against a partnership
in its firm name does not bar an action to enforce the individual
liability of any partner." (Emphasis added.) 735 ILCS 5/2--411(b)
(West 1996). Although "action" is not defined, the plaintiffs
assert that a supplementary proceeding to collect a judgment is an
"action" within the meaning of section 5/2--411(b). We disagree.
It is well established that "[w]ords used in a statute are to
be given their plain and commonly understood meaning." Honda of
Lisle v. Industrial Comm n, 269 Ill. App. 3d 412, 415 (1995). Both
parties cite the following definition for "action" to support their
interpretation:
"The legal and formal demand of one's right from another
person or party made and insisted on in a court of justice.
An ordinary proceeding in a court of justice by which one
party prosecutes another for the enforcement or protection of
a right, the redress or prevention of a wrong, or the
punishment of a public offense. It includes all the formal
proceedings in a court of justice attendant upon the demand of
a right made by one person of another in such court, including
an adjudication upon the right and its enforcement or denial
by the court." (Emphasis added.) Black's Law Dictionary 28
(6th ed. 1990).
The definition cited by the parties clearly states that an
"action" is "an ordinary proceeding." A supplemental proceeding
seeking the enforcement of a judgment is not an "ordinary
proceeding." Thus, the plaintiff's argument fails.
Assuming, arguendo, that the word "action" is ambiguous as
used in section 2--411(b), the plaintiffs interpretation is
incorrect. Where the language of a statute is ambiguous, courts
may resort to other rules of statutory construction, such as the
doctrine of in pari materia. People v. 1946 Buick, VIN 34423520,
127 Ill. 2d 374, 377 (1989). This doctrine provides that, where
two statutory provisions address the same subject matter, an
interpretation which gives effect to both provisions must be
adopted. Anderson v. Chicago Board of Election Commissioners, 284
Ill. App. 3d 832, 835-36 (1996), citing In re Application for
Judgment & Sale of Delinquent Properties for the Tax Year 1989, 167 Ill. 2d 161, 168-69 (1995).
Section 12--102 of the Code of Civil Procedure provides that
"[a] judgment entered against a partnership in its firm name is
enforceable only against property of the partnership and does not
constitute a lien upon real estate other than that held in the firm
name." 735 ILCS 5/12--102 (West 1996). Under the plaintiffs'
interpretation of section 2--411(b), this section has no meaning.
Under the plaintiffs interpretation, a judgment against only a
partnership is enforceable against the partners individually
without a judgment being entered against the partners individually.
Because the plaintiffs interpretation of section 2--411(b) renders
section 12--102 ineffective, it cannot be adopted by this court.
See Anderson, 284 Ill. App. 3d at 835-36.
Next, the plaintiffs assert that "a judgment against a
partnership, by definition, is a judgment against each partner."
However, this court s decision in Cook clearly contradicts the
plaintiffs position. In Cook, we held that, although partners are
liable for the debts of the partnership, to be able to collect from
the partners the plaintiff must provide the partners with notice
that they will be individually liable for the partnership s debt.
Cook, 281 Ill. App. 3d at 177. Since the plaintiffs failed to
provide such notice, their argument fails.
The plaintiffs also argue that Keller and Oster waived any
objections regarding the supplementary action because they
submitted to and answered questions during the supplementary action
and did not object at the citation hearings. However, the record
reveals that, although Keller and Oster answered questions
regarding the assets of the Partnership and Sands, they refused to
answer questions regarding their personal assets and were held in
direct civil contempt of court and remanded to the county jail.
Thus, they did not acquiesce to the validity of the supplementary
proceedings regarding individual liability. The plaintiffs'
citation to First State Bank v. Leffelman, 160 Ill. App. 3d 394
(1987), is misplaced. Unlike the Partners in this case, the
defendant in Leffelman did not file a motion to quash the initial
citation to discover assets. 160 Ill. App. 3d at 395. Thus,
Leffelman is inapplicable to the case at bar.
The judgment of the circuit court of Lake County is reversed.
Reversed.
GEIGER, P.J., and RATHJE, J., concur.