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No. 2--04--0013

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Plaintiff, Itasca Bank and Trust Company, appeals from an order denying its motion forturnover under section 2--1402 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1402 (West2002)) and from an order denying its motion to reconsider the previous denial. The motion forturnover asked the court to order defendant Mark Larsen (Mark) to resign his membership in theMedinah Country Club (Club) and turn over to plaintiff money that the Club would refund to Markupon its accepting a member to replace him. We hold that section 2--1402 does not give the trialcourt authority to order such a resignation. Therefore, we affirm the judgment of the trial court.

Plaintiff sued Thorleif Larsen and Son, Inc., for failure to make payments on a promissorynote, and sued Mark for failure to make payments as guarantor of the note. The court enteredjudgment against both for $917,565.67. In proceedings on a citation to discover assets, plaintifflearned that Mark had, among other possible assets, a membership in the Club. Plaintiff moved thecourt to order Mark to turn over the assets, but the court denied the motion as to Mark's membershipin the Club, presumably because the membership was not transferable by turnover. Plaintiff filed asecond motion for turnover, which asked the court to order Mark to sell his interest in the Club andturn over the resulting money to plaintiff. The court denied this motion as well.

Plaintiff then filed a third motion, asking the court to order Mark to resign his membershipin the Club. At the hearing on the motion, Mark admitted that resignation of the membership wouldyield about $17,000, less any amount he owed the Club. The court denied the motion, finding that"it would be expanding [section 2--1402] too far to order that this judgment debtor be compelled toresign his interest in the Medinah Country Club" and that "no law *** would support a Courtrequiring that a judgment debtor take such action."

Plaintiff moved for reconsideration, contending that the court had erred in its interpretationof section 2--1402. This motion was essentially identical to the third motion for turnover, except thatit cited Warburton v. Virginia Beach Federal Savings & Loan Ass'n, 899 P.2d 779, 783 (Utah App.1995), for the proposition that "a 'membership' is at most a contractual right and is not an interest inreal estate," a proposition with no clear relation to its overall argument. At the hearing on themotion, plaintiff stated that the issue was whether the Club membership was "an asset, or *** somesort of intangible that cannot be delivered up by this Court." It argued that the membership was aproperty right and that the court should be able to order the debtor to take the actions necessary togive the creditor the value of the asset. The court denied the motion "as to whether the membershipinterest at Medinah Country Club is exempt under 735 ILCS 5/2--1402" and found no just reason todelay enforcement or appeal of the order.

Plaintiff now appeals, contending that the trial court erred in concluding that section 2--1402did not give it the power to order Mark to do what was necessary to enable plaintiff to reach the Clubmembership. Mark responds that the court's interpretation was proper. He also contends thatplaintiff's motion to reconsider "failed to cite to any error made by the trial court in denying Plaintiff'smotion for turnover" and "failed to present any new evidence or case law that would justify *** areversal of the trial court's ruling" and therefore "failed to satisfy the threshold for the court'sconsideration of a Motion to Reconsider."

Preliminarily, we address Mark's contention that plaintiff's motion to reconsider was improper. The "purpose of a motion to reconsider is to bring to the court's attention newly discovered evidence,changes in the law, or errors in the court's previous application of existing law." (Emphasis added.) Farmers Automobile Insurance Ass'n v. Universal Underwriters Insurance Co., 348 Ill. App. 3d 418,422 (2004). Here, the court based its denial of the motion for turnover entirely on its legaldetermination that section 2--1402 does not allow a court to grant the relief plaintiff requested, sothe motion to reconsider was surely intended to convince the court that its legal conclusion was inerror. This is a proper purpose for a motion to reconsider. Mark implies that a court cannot granta motion to reconsider, even if the party has persuaded it that it erred in its interpretation of the law,if the motion to reconsider adds no new facts or case law to that presented in the original motion. We find no authority for this proposition, and we reject it.

We now turn to the primary issue in this appeal: whether section 2--1402 gives a courtauthority to order a judgment debtor to resign a country club membership. This is a question ofstatutory interpretation, and accordingly our review is de novo. See Eads v. Heritage Enterprises,Inc., 204 Ill. 2d 92, 96 (2003). Further, our review of a trial court's application of the law to the factspresented, whether in an original motion or a motion to reconsider, is always de novo. O'Shield v.Lakeside Bank, 335 Ill. App. 3d 834, 838 (2002).

Plaintiff contends that, because Mark's rights in the membership are not explicitly statutorilyexempt from the satisfaction of a judgment, section 2--1402 must provide a mechanism for it to reachthem. While the notion of a perfect interrelationship between the exemption provisions and section2--1402 is attractive, we find nothing in section 2--1402 that requires it. Section 2--1402 specifiesthe actions a court may take "[w]hen assets or income of the judgment debtor not exempt from thesatisfaction of a judgment, a deduction order or garnishment are discovered." 735 ILCS 5/2--1402(c)(West 2002). These include "[c]ompel[ling] the judgment debtor to deliver up *** [certain] money,choses in action, property or effects in his or her possession or control *** [and] capable of delivery"(735 ILCS 5/2--1402(c)(1) (West 2002)) and "[c]ompel[ling] any person cited to execute anassignment of any chose in action or a conveyance of title to real or personal property" (735 ILCS5/2--1402(c)(5) (West 2002)). Plaintiff does not point to any provision in the section as explicitlyauthorizing an order requiring Mark to resign his membership, nor do we find one. This may meanthat the membership, despite not being in the category of assets explicitly exempted from thesatisfaction of judgments, is nevertheless beyond plaintiff's reach; section 2--1402 does not bar sucha result.

Plaintiff contends that, under the rule that section 2--1402 should be construed liberally togive courts broad powers to compel the application of discovered assets to the satisfaction ofjudgments (see Kennedy v. Four Boys Labor Service, Inc., 279 Ill. App. 3d 361, 367 (1996)), wemust find that any power needed to reach a nonexempt asset is implicit in the section. Such aninterpretation comports with neither the rules of statutory construction nor the historicalinterpretation of the provisions. Rules regarding liberal or strict construction are a means to decidein whose favor a court should resolve uncertainties, not a means to restrict or expand a statutebeyond what it clearly says. See Brady v. Board of Education of Palatine Community ConsolidatedSchool District 15, 284 Ill. App. 3d 803, 807 (1996). A court overreaches if it goes beyondconstruing the statute as it is written and, under the guise of construction, reads new provisions intoit to remedy omissions the court may perceive. See DeWig v. Landshire, Inc., 281 Ill. App. 3d 138,143 (1996). The few interpretations of section 2--1402 relevant to this issue have been consistentwith these principles, interpreting the powers listed in section 2--1402 expansively, but withoutallowing trial courts to take on powers not listed.⁽¹⁾ Thus, this court in Kennedy approved a turnoverorder based on a broad interpretation of which assets in the hands of a third party could be construedto be the debtor's assets, whereas this court in In re Marriage of Pick, 167 Ill. App. 3d 294 (1988),and a Fourth District panel in Business Service Bureau, Inc. v. Martin, 306 Ill. App. 3d 907, 910(1999), disapproved of trial courts' uses of powers not specified by section 2--1402.

In Kennedy, a debtor corporation entered into a series of transactions that, effectively, soldthe assets of the corporation to a corporation owned by relatives of a corporate officer and placedthe proceeds of the sale in the hands of the officer. Kennedy, 279 Ill. App. 3d at 364-65. Thecreditor sought to recover the proceeds of the sale from the officer, who contended that section 2--1402 was inapplicable because she was not in possession of the debtor's assets as such. Kennedy, 279Ill. App. 3d at 367. This court held that "where a third party has transferred the assets of thecorporate debtor for consideration, with full knowledge of the existence of an outstanding claimagainst the corporation, then the judgment creditor may properly treat the proceeds from the sale ofthe assets as property of the corporate debtor, which is recoverable pursuant to section 2--1402." Kennedy, 279 Ill. App. 3d at 367. Thus, the court gave the term "assets" an interpretation broadenough to facilitate the creditor's recovery.

In contrast, in Pick this court found that, because section 2--1402 does not authorize the saleof a debtor's assets by persons other than the sheriff, it does not provide for the equitable remedy ofsequestration. Under common law, a judgment creditor had no means at law to reach the intangibleproperty of a debtor. See W.G. Press & Co. v. Fahy, 313 Ill. 262, 266-67 (1924). Such propertyhad to be reached through actions of equitable origin, such as a creditor's bill. See King v. Goodwin,130 Ill. 102, 108 (1889). One possible action was sequestration, in which the court appointed asequestrator, whose duties typically were "to seize and manage or sell the assets held by anoncomplying party in order to enforce a judgment." Pick, 167 Ill. App. 3d at 299. Sequestrationwas available under the Civil Practice Act of 1933, which the Code, including section 2--1402,replaced in 1982. See Pick, 167 Ill. App. 3d at 299. This court noted that the plain language ofsection 2--1402 provided that "property ordered to be delivered up [by the judgment debtor] shall*** be delivered to the sheriff to be collected by the sheriff or sold at public sale." Ill. Rev. Stat.1985, ch. 110, par. 2--1402(c). We read this as making the sheriff the only person authorized toconduct a sale of the debtor's property. Pick, 167 Ill. App. 3d at 302. As a result, sequestration,because it allowed the sequestrator, not the sheriff, to sell the debtor's property, ceased to be withinthe authority of the court unless provided for by another applicable statute. Pick, 167 Ill. App. 3dat 302.

A Fourth District panel reached a related conclusion in Business Service Bureau, holding thatthe list of the actions a court can order in section 2--1402 is exclusive. A trial court had ordered anunemployed judgment debtor to search for a job and keep a record of his efforts. Business ServiceBureau, 306 Ill. App. 3d at 907. Concluding that under the "clear and unambiguous language ofsection 2-1402(a), no provision for creating or ordering the creation of assets exists," the reviewingcourt held the order to be unauthorized. Business Service Bureau, 306 Ill. App. 3d at 910. Althoughit agreed with the creditor that it should construe liberally the language of the provisions creating thesupplementary proceedings, it disagreed that the failure to allow such orders would frustrate section2--1402's scheme for assisting creditors in satisfying their judgments or that such orders wereessential to the statute's purpose. Business Service Bureau, 306 Ill. App. 3d at 910.

Our conclusion here is supported by the resolution of the most similar case we have locatedin any jurisdiction. In Safeco Insurance Co. of America v. Skeen, 47 Wash. App. 196, 198, 734 P.2d41, 42 (1987), the debtor, a Boeing executive, had received stock appreciation rights--nontransferable rights to have Boeing pay him the difference between the value of Boeing stock onthe day of issue and the value on the day of exercise, subject to certain rules modifiable by Boeing. The creditor sought to have the court order the debtor to exercise the rights and turn over the fundsreceived to the sheriff. Safeco, 47 Wash. App. at 199, 734 P.2d at 42. The court's principal holdingwas that the stock appreciation right did not fall within the definition of "property liable to execution"under Washington law. Safeco, 47 Wash. App. at 200, 734 P.2d at 43. However, it also held thatWashington execution law, despite providing for " 'commanding the enforcement of or obedience toany special order of the court' " (Safeco, 47 Wash. App. at 200, 734 P.2d at 43, quoting Wash. Rev.Code