Bank of America v. WS Management, Inc.

2015 IL App (1st) 132551
No. 1-13-2551

FIRST DIVISION
May 18, 2015

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

BANK OF AMERICA, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellant and )
Cross-Appellee, )
)
v. ) 06 CH 10267
)
WS MANAGEMENT, INC., WILLIAM SPATZ, )
WENDY SPATZ, SPATZ CENTERS, INC., and )
ANDERSON ASSOCIATES, L.P., ) Honorable
) Richard J. Billik (Ret.) and
Defendants-Appellees and ) Rodolfo Garcia,
Cross-Appellants. ) Judges Presiding.

JUSTICE CONNORS delivered the judgment of the court, with opinion.
Presiding Justice Delort and Justice Cunningham concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Bank of America, appeals from orders of the circuit court that declined to find

that spouses William Spatz (William) and Wendy Spatz (Wendy) were alter egos of Spatz

Centers, Inc. (SCI), and WS Management, Inc. (WSM). Defendants, William, Wendy, SCI,

WSM, and Anderson Associates, L.P. (Anderson), cross-appeal, contending: (1) the trial court

should have found that certain facts and issues were precluded by collateral estoppel; (2) the trial

court erred in finding that defendants violated the Uniform Fraudulent Transfer Act (Fraudulent

Transfer Act) (740 ILCS 160/1 et seq. (West 2006)); and (3) the trial court improperly awarded
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attorney fees to plaintiff. We affirm the court's judgment on the collateral estoppel, Fraudulent

Transfer Act, and alter ego claims, and vacate and remand on the issue of plaintiff's attorney

fees.

¶2 As preliminary background, this case concerns plaintiff's efforts to collect a judgment

that was entered against SCI in Kansas in December 2005. At various times, William or Wendy

had been a shareholder or otherwise involved in SCI, which was incorporated in 1989 in Illinois

and had been the general partner or manager for a group of limited partnerships, which in turn

owned various shopping centers around the country. SCI's business of managing the shopping

center properties generated fees for SCI. In 1997, one of the limited partnerships for which SCI

was the general partner, Wichita Associates, L.P. (WALP), which did business in Kansas,

executed a note with an entity of which plaintiff is the successor. WALP eventually defaulted on

its obligations under the mortgage and other loan documents, and at the end of the resulting

foreclosure proceedings in Kansas, plaintiff received a judgment in December 2005 against

WALP and SCI jointly and severally for $1,490,708.32, which included attorney fees, costs, and

expenses. WSM was incorporated in Illinois on December 12, 2005, and soon after began

managing certain properties that SCI had previously managed. Anderson allegedly began

managing certain properties in 2007. Meanwhile, plaintiff registered the Kansas judgment in

Illinois in January 2006. Plaintiff subsequently filed a separate action alleging various claims

relating to William's and Wendy's supposed efforts to avoid paying the Kansas judgment.

¶3 I. BACKGROUND

¶4 A. Kansas Foreclosure Proceedings

¶5 We first provide a summary of William and SCI's involvement in the Kansas foreclosure

proceedings. WALP's note with the bank listed WALP as the maker and was signed by SCI as

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WALP's general partner, with Wendy signing as SCI's vice president. The note also indicated

that if it became necessary to employ counsel to collect or enforce the debt or protect or

foreclose the security for the debt, "Maker also shall pay on demand all costs of collection

incurred by [the bank], including attorneys' fees and costs reasonably incurred for the services of

counsel whether or not suit be brought." On November 30, 2004, William signed an affidavit in

support of a stipulated application for an appointment of a receiver for the property. SCI was

added as a defendant in the foreclosure case on February 22, 2005, when the bank filed a first

amended petition for declaratory judgment and other relief. A certificate of service indicated

that a copy of the first amended petition was sent to William. On May 6, 2005, SCI filed an

answer to the first amended petition. On June 28, 2005, a journal entry of judgment was entered

against WALP. Subsequently, the property was sold to the bank for $1.2 million, which was

applied to the judgment.

¶6 On October 28, 2005, the bank filed a motion for partial summary judgment against SCI.

In part, the bank sought payment of the unpaid principal balance on the note, which was

approximately $1.4 million. The bank asserted that SCI as the general partner of WALP was

jointly and severally liable for WALP's obligations. The bank also stated that WALP had failed

to maintain its status as a separate, single-purpose entity, and as a result, WALP's debt obligation

became fully recourse according to the language of the mortgage.

¶7 In response, SCI and WALP acknowledged that because of a failure to file an annual

report in July 1999, WALP had forfeited its good-standing status in Kansas. However, WALP

and SCI asserted that WALP had applied for and expected to be granted reinstatement of its

good-standing status in Kansas, and upon reinstatement, should be treated as if its good-standing

status had never lapsed.

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¶8 On December 1, 2005, the Kansas court issued its ruling, stating that WALP had failed to

maintain its status as a separate, single-purpose entity pursuant to the terms of the loan

documents and that SCI and WALP failed to preserve WALP's existence. The court further

stated that "[i]ssues concerning WALP's recent attempts to obtain reinstatement of its

authorization to conduct business in Kansas *** are immaterial." The court also found that as

WALP's general partner, SCI was jointly and severally liable for all of WALP's debts,

obligations, and judgments. Accordingly, a judgment was entered against SCI and WALP

jointly and severally for $1,490,708.32, which included $32,057.50 in attorney fees and expenses

and $1,325.86 in costs. The ruling indicated that the judgment amount would also include "other

expenses accrued and accruing, including reasonable attorneys' fees, insurance premiums, taxes,

and assessments" pursuant to the terms of the note and that the judgment would accrue interest at

the rate of $322.78 per day. The court also stated that plaintiffs had incurred and would continue

to incur substantial costs in attempting to collect from WALP, including the cost of instituting

the Kansas suit and "reasonable attorneys' fees related to [plaintiff's] collection efforts." A final

order was entered on December 30, 2005. SCI and WALP subsequently appealed the judgment,

but upon their motion, the appeal was dismissed on March 1, 2006.

¶9 B. Motion for Turnover Against Wendy

¶ 10 Plaintiff registered the Kansas judgment in Illinois in January 2006 under case number 06

M1 600238, and citation proceedings involving SCI, William, and Wendy began. On September

18, 2008, plaintiff filed a motion for a turnover order against Wendy on September 18, 2008,

seeking to order Wendy to pay plaintiff approximately $1.4 million that Wendy or an entity

known as Spatz Associates purportedly owed to SCI. The motion for turnover was also filed

under case number 06 M1 600238.

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¶ 11 Referenced in the turnover proceedings was a "Spatz Centers Inc[.] Purchase/Sale

Agreement" (purchase and sale agreement) that was undated and signed by William and Wendy.

According to the purchase and sale agreement, Wendy owned SCI and William "is and always

has been the President and a member of the Board of Directors." The purchase and sale

agreement also indicated that Wendy wanted to own SCI's 1% general partnership interest in a

number of limited partnerships. Further, as of January 1, 2005, Wendy, William, and SCI agreed

that: (1) Wendy agreed to transfer her interests to William "as of the date of this Agreement,"

SCI agreed to transfer all of its interest in the general partnership interests to Wendy, and SCI

would remain the general partner of the limited partnerships; (2) Wendy agreed to forgive any

debt that SCI owed her and agreed to "reasonably lend, or cause to be lent to SCI, reasonable

sums of money now and in the future to insure the operations of the various properties owned by

Wendy," and (3) no later than March 31, 2005, William would pay or cause to be paid

$310,667.60 to Wendy for her stock in SCI.

¶ 12 Following an evidentiary hearing that was held on March 20, 2009, and April 9, 2009,

before Judge Alexander White in case number 06 M1 600238, the court issued an order on

October 14, 2009, denying the motion for turnover. In its order, the court stated that "[t]he only

relevant inquiry *** is whether Wendy is holding assets of SCI or WALP or is otherwise

obligated to pay SCI or WALP for some debt." Another key question was how a certain account

in SCI's general ledger, known as the "SA Distribution account," was to be interpreted. The

court stated that the SA Distribution account could be an asset account that noted obligations

Wendy owed to SCI, or a clearing account containing "essentially worthless entries" that served

to correct otherwise erroneous entries made in the general ledger. Ultimately, the court found

that the SA Distribution account was a clearing account.

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¶ 13 Apparently, the dispute involved various account adjustments and reclassifications that

took place in 2005. One such reclassification was for $310,667.60. The court referenced the

purchase and sale agreement, wherein William was required to pay Wendy $310,667.60 for her

SCI stock, and stated that plaintiff's exhibits showed that SCI made a payment or deposit to the

Spatz family account in that amount in March 2005, which was payment for the purchase price

of the stock. The court further stated that the payment of the purchase price had been

misclassified in SCI's March general ledger, and the SA Distribution account had been used as a

clearing account to properly reclassify the payment.

¶ 14 Among other items, the court addressed two entities known as the Bell Street property

and an E-Trade account, both of which had been the subjects of adjustment entries. As to the

Bell Street property, the court stated that the unrebutted testimony indicated that the property

was owned exclusively by Wendy and her daughter. Although entries in SCI's general ledger

had erroneously indicated that SCI had an interest in the property, the SA Distribution account

was used as a clearing account to correctly show that the property was not an SCI asset. The

court stated that the adjustment entries did not create an interest in the realty for SCI and did not

transfer any interest in the realty to Wendy, as the property was never an SCI asset. Similarly,

the court found that the E-Trade account had always been Wendy's exclusive property and again

the SA Distribution account had been used as a clearing account to offset correcting entries made

in SCI's general ledger so that the value of the E-Trade account was not shown on SCI's general

ledger as an SCI asset. The court stated that the adjustment entries for the E-Trade account

"neither transferred assets to Wendy nor created any obligation on her part to SCI."

¶ 15 Overall, the court found that plaintiff did not have a factual basis for seeking a turnover

order against Wendy, as there was no evidence that she received anything from SCI in 2005 and

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"no evidence she [owed] SCI anything as a result of anything that was done in 2005." The court

also noted that although plaintiff claimed that the account known as SA or Spatz Associates

meant only Wendy, certain exhibits showed that this account could also mean William and the

Spatz family. Accordingly, the court disagreed that funds directed to SA or Spatz Associates

meant those funds were directed to Wendy.

¶ 16 The court additionally found that various November, December, and year-end entries in

the SA Distribution account did not represent actual assets and adjustment entries did not reflect

"any transfers of SCI's assets to Wendy of any sort" in 2005. The court explained that plaintiff

had not met its burden to show that the alleged transfers for which it sought a turnover order—

including the sale of SCI stock, the sale of the Bell Street property, the proceeds of certain

accounts, and other transactions—"created or preserved rights for SCI which Plaintiff, as a

judgment creditor, can assume and enforce against Wendy." The court further stated that Wendy

"does not own anything in which SCI has an interest" and that Wendy "does not own or control

any assets of *** [SCI] and/or WALP that could be made subject to a turnover order."

Additionally, the court found that plaintiff failed to show that "any assets were transferred by

SCI to Wendy in 2005," that "Wendy has any assets in her possession which belong to SCI," or

that "Wendy owes SCI anything as a result of anything that was done in 2005."

¶ 17 C. Fraudulent Transfer, Mere Continuation, and Alter Ego Claims

¶ 18 Plaintiff also filed a complaint in the chancery division under case number 06 CH 10267

on May 23, 2006. This chancery case was before Judge Richard J. Billik and involved three

amended complaints, the third of which was filed on September 28, 2010, and ultimately

proceeded to trial. Plaintiff's third amended complaint alleged that defendants violated the

Fraudulent Transfer Act (740 ILCS 160/1 et seq. (West 2006)) and asserted causes of action for

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mere continuation and alter ego. Previously, around March 2008, before the turnover

proceedings started, plaintiff had presented a listed of items that formed the basis of its

fraudulent transfer claims "discovered to date." The listed transfers were: (1) at some point in or

after 2005, SCI transferred all or nearly all of its partnership interests in each of 16 real estate

limited partnerships to Wendy for no consideration; (2) WSM, rather than SCI, began managing

and leasing for various limited partnerships and received all management and leasing revenue

accordingly; (3) William paid $310,667.60 to Wendy for the transfer of SCI stock out of SCI's

account rather than his personal funds; (4) SCI made distributions in the amount of $627,328 to

shareholders during 2005, after the Kansas claim was brought against SCI; (5) Wendy used SCI's

line of credit at South Central Bank for personal expenses and payments, including to pay off a

mortgage on the Spatz's home in the amount of $564,926.98 and invest $1 million in a hedge

fund; (6) SCI made over $275,000 in cash payments to Wendy in 2005; (7) SCI made a $100,000

loan to its shareholder, either William or Wendy, in 2005; (8) Wendy took management and

leasing fees due to SCI in December 2005; (9) Wendy failed to provide credit support to SCI as

required by the purchase and sale agreement; (10) Wendy hid debts owed to SCI and removed

them from her general ledger at year end 2005; (11) SCI's books showed that Wendy owed over

$1.4 million to SCI; (12) William transferred two E-Trade accounts that were carried on SCI's

books to Wendy/Spatz Associates; (13) SCI made $55,000 worth of deposits into Wendy's

Merrill Lynch account during 2005; (14) SCI made extraordinary payments to management at

the end of 2005; and (15) SCI loans to two limited partnerships were written off SCI's books and

picked up by SA's books in November 2005, but SCI received no consideration for this transfer

of assets to Wendy/Spatz Associates.

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¶ 19 As noted above, plaintiff's third amended complaint related to its claims under the

Fraudulent Transfer Act and its mere continuation and alter ego claims. Plaintiff alleged in part

that as a result of the Kansas judgment in December 2005, William caused SCI to stop actively

producing income and cease operating as the entity that managed shopping centers owned by

various limited partnerships. Plaintiff asserted that William incorporated WSM on December 12,

2005, to perform the same management and leasing functions that SCI had performed, and

directed that management and leasing fees previously paid to SCI be paid to WSM. Plaintiff also

alleged that around March 2007, Anderson, an entity that had been a limited partnership, started

managing the limited partnerships that had been managed by WSM.

¶ 20 In support of its claims under the Fraudulent Transfer Act, plaintiff listed the transfers

that were allegedly made with actual intent to hinder, delay, or defraud plaintiff, including: (1)

distributions paid by SCI to Wendy or William in 2005; (2) Wendy and William's conduct of

purporting to delete funds owed to SCI from Spatz Associates' books; (3) Wendy and William's

use of the SCI line of credit at South Central Bank to pay off a first home mortgage, transfer $1

million to Spatz Associates, "i.e., Wendy," which was later transferred to William's brother, and

make miscellaneous draws for Wendy and William's benefit and offset SCI's funds for payment

on the line of credit; (4) the transfer by SCI of all or the substantial part of its 1% general

partnership interest in the limited partnerships; (5) the indirect transfer of management and

leasing fees from SCI to the newly-formed and incorporated WSM; and (6) the indirect transfer

of management and leasing fees from WSM to Anderson. As part of its requested relief, plaintiff

sought punitive damages, including all attorney fees incurred after the Kansas judgment, and

asserted that section 8(a)(c) of the Fraudulent Transfer Act (740 ILCS 160/8(a)(c) (West 2006))

had been construed to warrant punitive damages where appropriate. In the alternative, plaintiff

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contended that the loan documents and Kansas judgment provided for attorney fees, and that

plaintiff was entitled to all fees incurred since the Kansas judgment.

¶ 21 Next, in addition to asserting mere continuation claims against WSM and Anderson,

plaintiff also alleged that William and Wendy were alter egos of SCI and WSM. In part, plaintiff

contended that SCI failed to observe corporate formalities in that Wendy was never paid the

$310,667.60 for her SCI stock and there were no SCI board minutes or resolutions authorizing

SCI to enter into the purchase and sale agreement. Plaintiff also contended that Wendy and/or

William commingled property titled in the name of Wendy and their daughter with SCI's assets,

and stated that the Bell Street property was listed on SCI's balance sheets until November 2005.

Plaintiff additionally alleged that SCI failed to maintain an arm's-length relationship with

Wendy, William, WSM, other family members, and/or other Spatz-related entities in part

because William directed the write-off of substantial obligations Spatz Associates owed to SCI

and other entities in December 2005. Plaintiff sought judgment against William and Wendy in

the full amount of the Illinois registered judgment, plus additional postjudgment interest and

attorney fees.

¶ 22 On November 10, 2010, Wendy filed a motion to dismiss the complaint, contending that

all matters against Wendy were barred by collateral estoppel. Wendy pointed to certain claims

and allegations in the fraudulent transfer list and complaint that were previously adjudicated in

her favor in the turnover proceedings. In response, plaintiff asserted in part that the complaint

involved claims of fraudulent transfer and alter ego liability, while the turnover proceedings

against Wendy only decided the narrow issue of whether Wendy owed money to SCI pursuant to

entries in SCI's general ledger. However, plaintiff admitted that two transactions involved in the

turnover proceedings were subject to collateral estoppel—the transfer of E-Trade accounts from

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SCI to Wendy and allegedly improper payments that SCI made to Wendy through a Merrill

Lynch account. In her reply, Wendy contended in part that because a husband and wife are

considered to be in privity, the finding in the turnover proceedings should also apply to William.

¶ 23 On April 7, 2011, the court denied Wendy's motion to dismiss and continued the matter

to "entertain further argument on the application (if any) of collateral estoppel [effect] of Judge

White's *** ruling as they pertain to the complaint against Wendy Spatz."

¶ 24 On May 20, 2011, the court entered an order stating that evidence about the E-Trade or

Merrill Lynch accounts, as more fully described in the fraudulent transfer list and referenced in

Wendy's motion, was precluded pursuant to collateral estoppel.

¶ 25 Subsequently, prior to trial on plaintiff's complaint, SCI, WSM, Wendy, and William

filed a motion in limine and asserted that pursuant to collateral estoppel, the ruling in the

turnover proceedings precluded relitigation on certain of plaintiff's claims and factual allegations

as to all defendants. Plaintiff responded in part that there was clearly no identity of parties with

respect to SCI, WSM, and William and that the turnover proceeding was only filed against

Wendy. Plaintiffs further contended that the turnover proceeding could not and did not address

whether Wendy or any of the other defendants owed any money to plaintiff.

¶ 26 In its ruling, the court distinguished between issues pertaining to Wendy and issues

pertaining to other defendants. The court denied without prejudice the motion in limine as to

defendants other than Wendy. The court stated that at trial, upon objection, defendants would

have the burden to convince the court that collateral estoppel applied to someone other than

Wendy. As to issues that involved Wendy, the court stated that, upon objection, plaintiff would

have the burden to show that collateral estoppel did not apply.

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¶ 27 The matter proceeded to trial, which took place on a number of dates between June 28,

2011, and November 7, 2012. The bulk of the trial's relevant testimony came from William, who

testified in both plaintiff's and defendants' cases. William testified that SCI, which still existed,

was incorporated in 1989 with three directors, William, Wendy, and a person named Barry

Herring. According to William, Herring was last affiliated with SCI in 1995, at which point

there was only one director. William was the sole director and principal of SCI before January

21, 2005. William further testified that SCI's main function had been to manage properties

across the country. Additionally, SCI acted as the general partner of limited partnerships that

owned shopping malls and performed a variety of management functions for the limited

partnerships, such as bookkeeping, filing and paying taxes, and maintaining and leasing the

properties. William stated that on formation, the limited partners mostly consisted of members

of his family and friends of his immediate family.

¶ 28 SCI received a certain percentage of the rental income from the tenants of the shopping

malls and William acknowledged that documents shown to him by plaintiff's counsel indicated

that SCI received $395,646 in management fees and $23,112 in leasing fees in 2002, about

$505,698 in management fees and $37,121 in leasing fees in 2003, $568,936 in management fees

and $86,332 in leasing fees in 2004, and $477,098 in management fees and $134,605 in leasing

fees in 2005. According to William, however, these documents were "notoriously inaccurate."

Additionally, SCI's 2005 tax return showed gross receipts or sales of $626,540. As of January 1,

2005, William and two other people were among SCI's employees.

¶ 29 William testified that he first became aware of the Kansas foreclosure suit sometime in

the middle to end of 2004. William stated that when SCI was named as a defendant, he was not

concerned at first because the loan was nonrecourse and SCI had no liability. William became

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concerned later, when his attorney informed him that the bank was "trying to pierce *** the non-

recourse aspect of it." William received papers relating to SCI's involvement in the case

sometime in March 2005. William acknowledged that SCI's answer to the bank's amended

petition, filed on May 6, 2005, reflected that he had instructed his attorney to actively defend

SCI. William, however, never thought that he would lose the Kansas case. William stated that

the loan required that WALP had to be registered in Kansas, and one year, William did not

renew or fill out the appropriate form to renew WALP's registration. Yet, according to William,

if the registration lapses and then is reinstated, it is as if the registration never lapsed.

Nonetheless, the Kansas court found that because the registration had lapsed, SCI had violated

the terms of the loan and the loan became recourse. After the judgment was entered, William

agreed to appeal, but his attorney did not mention that William would have to put up a bond not

only for the judgment, but also for substantially more than the judgment, which "sort of

eliminated our desire to appeal." As a result, the attorney had the appeal dismissed. William

stated that the Kansas proceedings "didn't factor into anything we did" until December 1, "when

we lost."

¶ 30 William acknowledged that plaintiff registered the Kansas judgment in Illinois and issued

a nonwage garnishment to SCI's bank, and as a result, SCI's bank account was frozen. William

also acknowledged that WSM's articles of incorporation were filed on December 12, 2005, and

stated that WSM had the same address as SCI. Per a corporate resolution, William was

identified as the president and secretary of WSM and Wendy was the sole member of the board

of directors and received 999 of WSM's 1,000 shares, while William owned the remaining share.

According to various documents, WSM was formed to do real estate management, and William

testified that WSM began performing management functions for certain limited partnerships on

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January 1, 2006, and around February 2006, began managing a significant number of properties

that SCI had previously managed. WSM received a certain percentage of the limited

partnerships' rental income. William stated that no consideration or anything of value was

exchanged between SCI and WSM.

¶ 31 William also further discussed how WSM came to take over management functions from

SCI. In October 2005, William decided to start WSM for development occurring in Louisiana,

and by December 2005, WSM was formed. However, WSM never managed any Louisiana

properties "because of things that went on here." William stated that the garnishment of SCI's

account made it effectively impossible to pay employees, "we needed someone to manage," and

WSM "was as good an entity as any." William stated that he made the decision that it was

impractical for SCI to continue as manager for various properties, with the lien on SCI's account

serving as the primary factor. William also testified that the limited partnerships determined that

SCI was not in a position to conduct business as needed to function on behalf of the limited

partnerships. According to William, the limited partnerships "dictated who *** was going to

manage and what was going to take place."

¶ 32 More specifically, William differentiated between the limited partnerships that William

or SCI controlled and those that were independent. According to William, each partner, entity,

or person who controlled each limited partnership decided who it wanted to manage it as of

January 1, 2006. For most of the limited partnerships, SCI was the general partner or managing

member and had the authority "to make whatever decisions regarding management it wished to

make." There, William acted as the president of the general partner as well as on behalf of the

partnerships and directed the limited partnerships to pay WSM instead of SCI. William testified

that he directed those limited partnerships to "behave in a certain manner, in their best interest, in

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which case they, you know, they did what they did." William also stated that it "[d]idn't matter

to me what happened" to plaintiff, as his obligation was to act in the best interest of the limited

partnerships. Of the limited partnerships that did not have SCI as a general partner and made the

decision to switch to WSM independently, William stated that "those entities of which I had no

control over was all done on a verbal basis." William testified that there would have been

conversations and "some notification of our intent or what was going on." William further stated

that "ultimately, I needed approval, but from a practical point of view, I was basically saying ***

we needed to move it over" because SCI's accounts were frozen. William also stated "it was

their decision whether it was allowed *** to happen." By the time these conversations took

place, WSM had already been created. In total, two entities had management agreements with

SCI and SCI subcontracted with WSM to manage them, eight entities had SCI as their general

partner, one entity was controlled by William directly, and seven properties were neither owned

nor controlled by William or Wendy and independently decided to use WSM. Additionally, one

property was never managed by SCI and one entity, Anderson, managed its own property. In all,

WSM managed approximately 18 properties. William testified that there were no written

agreements between WSM and the limited partnerships, but there were oral agreements "in the

sense that there was an understanding between the parties in terms of how they were going to

function together."

¶ 33 William acknowledged that a WSM working trial balance report for 2006 listed

$382,575.93 in management fees and $46,081 in leasing fees. A WSM working trial balance for

2007 listed $251,075.48 in management fees. Additionally, William stated that he took over the

leasing function for SCI and directed those fees to be paid to himself or various entities other

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than SCI, though he believed the majority of any leasing fees earned would have been deposited

into WSM's account.

¶ 34 William distinguished between SCI's and WSM's different functions. William stated that

SCI never stopped doing business but hired someone else to do management. According to

William, SCI's obligations were to manage the partnership as a whole, such as by doing tax

returns, filing annual reports, and completing corporate resolutions as required. Additionally, as

long as SCI was the general partner, it had whatever liabilities were associated with the general

partner and was required to perform the functions required under the limited partnership

agreements. Meanwhile, WSM was a property manager that collected rents, swept the parking

lots, and paid certain bills. In early 2006, William became the only SCI employee. When WSM

began operating, some of its employees were from SCI, but others were not.

¶ 35 William also testified about how SCI's finances were handled after the Kansas judgment.

Because the account was frozen, and any money that had been put into SCI's account would have

been taken out by plaintiff, "we bypassed that and created a general journal entry but deposited

the money directly into WSM." William further stated that while SCI still had money in its

account, "any money that was put in there would simply be taken out. So it was not wise to

deposit money into the account." William maintained that he did not divert any money, but "to

the degree that there was any money to be deposited in this particular case, money ceased being

deposited." William was presented with an SCI bank statement for July 2007 that indicated that

$3,994.21 had been deposited in SCI's account. The statement had a note on it that said,

" '[m]ake sure nothing gets deposited into SCI ever without my authorization.' " William

explained that the note was a reaction to his being "tired of having things deposited into SCI,

such as this, that clearly didn't belong there." William acknowledged that, after the Kansas

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judgment was entered, people at SCI were directed to make sure no money flowed through SCI's

account without William's authorization. William also acknowledged that SCI's account was

zeroed out by transferring $32,056.36 to WSM, which left SCI's account with $12.40 in interest.

William did not recall whether he instructed that this transfer take place, but he stated that,

logically, he would have been the person to do so.

¶ 36 William acknowledged that SCI's 2006 tax return reported gross receipts or sales of

$1,106 and SCI's 2007 tax return showed a loss of $2,164. William estimated that the running

balance in the SCI bank account since 2005 had been around $1,000. William admitted that after

December 2005, SCI was not generating any business income that could have satisfied the

Kansas judgment. Additionally, William testified that after the management fees were

discontinued and SCI's 1% general partnership interest was transferred to Wendy through the

purchase and sale agreement, SCI was left with a small general partnership interest and it

"owned some odds and ends things, like furniture, nothing of great value."

¶ 37 William testified that around March 2007, Anderson began performing management

functions for certain limited partnerships. Previously, Anderson had been a limited partnership

that managed itself and owned a shopping center in South Carolina. William also testified that in

June or July 2010, he decided to have an entity called B&A Trust provide management and

leasing services to various limited partnerships.

¶ 38 William also testified about other details of SCI's and WSM's operations. William

testified that the initial capital contribution to SCI was $1,000, and that it was his custom and

practice to select $1,000 as a starting point for corporations because "the forms are written in a

way that that's the minimum." William further stated that his business was essentially service-

oriented, there were no defined capital requirements, and in theory "we always maintain enough

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capital to operate the business." William also stated that he would put money in and take money

out of SCI. William acknowledged that tax returns for 2004 and 2005 showed additional paid-in

capital of $73,027 and that a tax return for 2006 showed additional paid-in capital of $83,128.

Additionally, William stated that SCI's capital was at one time at least $400,000, but would go

up and down according to accounting practices. When asked whether SCI was undercapitalized

in 2005 or as of the end of 2005, William responded that for a service company, there was "not

much of a requirement." William also stated that the test of adequate capitalization for SCI was

"were we able to function, and the answer is, yeah, we paid our bills," at least until the Kansas

judgment.

¶ 39 William testified that WSM was initially capitalized with $10, but it "certainly had

enough capital to operate" and its current capitalization was substantially higher. William also

stated that when WSM was formed, 1,000 shares were issued for $1 per share. As of December

31, 2006, WSM's balance sheet showed assets of about $58,000 in cash. William stated that

WSM currently had positive capital and still did business. Additionally, William testified that

SCI and WSM had been able to operate, pay their bills, and do their business with the capital

they had in place, other than when the Kansas judgment came due.

¶ 40 William also testified about a $1.7 million line of credit for SCI that was established in

March 2005 and ended in March 2006. William stated that the line of credit was set up so that if

SCI overdrew its account, the money would automatically be transferred from the line of credit

to SCI. Additionally, the line of credit had a sweeping function, such that William and Wendy's

joint checking account, known as the SA account, was connected to the line of credit. William

stated that the line of credit automatically funded any shortfalls in the SA account and took any

excess funds from the SA account to pay down the line of credit. William characterized these

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No. 1-13-2551

transfers as distributions and equity contributions by William since he used the SA account as his

own. William also stated that when money was taken out of the SA account, the money was

effectively borrowed by SCI and lent to SA. However, William stated that "every penny" that

went back to the SA account was automatically given back to SCI, effectively repaying a loan.

William further stated that SA ultimately borrowed and repaid money on an ongoing basis.

According to William, what plaintiff claimed was Wendy using the line of credit was actually the

sweeping function at work. Moreover, William stated that "[w]e never made any personal

payments out of SCI." William also stated that SCI could lend money to other people, including

Wendy, at its discretion. William testified that he had no reason to talk to the bank about using

the line of credit to pay the Kansas judgment because he could use the money for whatever

purpose SCI deemed reasonable.

¶ 41 William testified about various other uses of the line of credit that plaintiff found suspect.

One such transaction was the use of the line of credit to pay off a mortgage on Wendy's

condominium. William explained that the bank required that the funds were used to clear title on

the condominium because the condominium was used as collateral for the line of credit. William

stated that SCI lent Wendy the money to pay off the mortgage and that SCI had the right to lend

money to himself, Wendy, or anyone else.

¶ 42 William was also asked about a $1 million draw off the line of credit on March 24, 2005,

which William stated was used as a loan/investment in a hedge fund that his brother controlled

and whose funds belonged to William's father. William testified that this transaction was

supposed to be a very short interim loan, was done to make money and was converted into "some

sort of equity position." According to William, the funds were ultimately repaid with some

interest. William stated that the hedge fund transaction was not documented because William

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No. 1-13-2551

tended not to document transactions with his father unless his father requested otherwise.

However, William also testified that "[t]here was written evidence of the transaction and when it

was supposed to be paid back and *** what the interest rate was going to be."

¶ 43 William also testified more generally about his practices around documenting

transactions. William stated that he would document a transaction if he felt it was required and

added that he had signed leases and notes with himself. Additionally, William stated that long-

term transactions would be documented, meaning "[a]nything that wasn't being lent for the

purpose of a short-term shortfall of cash flow, something of that nature." William also stated

that "we have a lot of contracts with a lot of people that aren't necessarily written." As an

example, William noted that "[e]very time we call up a landscaper and say I need you to cut the

grass and I'm going to pay you $500 bucks, we have a contract, but we don't document it."

¶ 44 William denied that the SCI and WSM checking accounts were used to pay for personal

matters. Plaintiff's counsel presented documents from the SCI and WSM bank accounts that

counsel suggested showed payments to doctors, to a recipient in Costa Rica, and for magazine

subscriptions, to which William responded "[t]hey would be personal expenses." However,

William testified that "we reimburse people for medical expenses as part of a semi-medical plan

to help people out," the Costa Rica payments probably would have come out a security deposit

account that was maintained for a variety of entities, and the corporation admittedly received

subscriptions. William further testified that his personal finances and records were run through

the offices "[o]n a very superficial level," meaning that "[t]hey were not there to be accurate."

Additionally, William stated that whenever possible, "we made sure that personal bills were paid

out of SA and business bills were paid out of the appropriate locations." William also testified

that every entity, limited partnership, and corporation had separate bank accounts, corporate

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No. 1-13-2551

filings, and annual reports. William also stated that SCI never wrote a check for a personal

expense for William, Wendy, or anyone else and that any personal expenses would have been

paid from the SA account.

¶ 45 William also testified that a property known as the Bell Street property ended up on SCI's

books due to an accountant "who turned out to be a problem." William stated that the Bell Street

property had been improperly listed as an SCI asset on SCI's books and was reclassified

accordingly.

¶ 46 William also testified about invoices sent to various tenants in 2006 and 2007 that had

SCI letterhead and directed payments to be made to particular limited partnerships, care of SCI.

According to William, it was not unreasonable and was less confusing that SCI would continue

to have bills sent. William also explained that although various invoices were sent to SCI, they

were not SCI's bills, and he had tried to explain that to a vendor. William stated that the invoices

were paid by WSM because the bills were the responsibility of the various limited partnerships

and WSM paid them on behalf of the partnership. William stated that for years, he had tried to

have the bills sent to the proper place, but he was never successful, resulting in the bills being

sent to SCI.

¶ 47 Additionally, William testified about SCI's and WSM's practices around corporate

formalities and records. William stated that SCI's bylaws came from a book containing various

corporate documents. William recalled attending SCI director and shareholder meetings, but he

stated that SCI was not required to have written meeting minutes. William also testified that he

did not have documents that reflected meetings, resolutions, or actions taken because those

documents were not required and often not produced. William stated that not every annual

meeting was memorialized and could not recall whether a required shareholder's voting list was

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No. 1-13-2551

ever put together. William further stated that "we have waived notices" and amended bylaws

from time to time to reflect the need to have meetings and the like. William also identified a

series of corporate annual reports that were filed on SCI's behalf.

¶ 48 As for WSM, William testified that its bylaws were based off a standard form with some

minor modifications. William agreed that WSM's first shareholders meeting took place on

December 12, 2005. William further testified that because WSM's bylaws did not require an

annual meeting, there would not have been a continual waiver of the annual meeting. According

to William, "[w]e'd meet *** quite frequently, all the time, shall we say?" However, the

meetings did not have to be recorded unless lenders required it. William also testified that WSM

had filed an annual report every year since 2006 and that annual reports were filed for every

corporation and every partnership "all in good standing and continue to be in good standing."

William identified corporate annual reports for WSM and WSM's articles of organization.

¶ 49 William also testified that in a situation where there is one stockholder and one director,

taking notes is not required, and the bylaws do not require that meetings are documented, then

"technically every time we talked to each other about the property, we had a board of directors

and shareholders meeting." William maintained that "we filed all the corporate formalities in

terms of what the bylaws required" and followed the requirements of the Internal Revenue

Service and Illinois law.

¶ 50 William's testimony also discussed corporate resolutions. William stated that his entities

produced corporate resolutions only when the bank required them. Otherwise, according to

William, there was no law that required his entities to draft and adopt corporate resolutions, and

further, there was no requirement for corporate resolutions to write checks and distribute money.

According to William, the bylaws also did not require corporate resolutions and corporate

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No. 1-13-2551

resolutions are not done in the business world for everyday activities. William maintained that

"[w]e follow the bylaws" and there was no requirement for corporate resolutions to enter into or

cancel management agreements, or distribute, borrow, or lend money. William added that, "[t]he

president generally has the authority to do that." As for specific transactions, William testified

there was no written corporate resolution that authorized the purchase and sale agreement, as it

was not required, and no corporate resolutions that authorized the $1 million loan to the hedge

fund, as corporate resolutions "are not required to do things in the normal course of business."

Additionally, William stated there was no resolution for the line of credit because it was not

required and the bank did not require it either. William further testified that SCI made corporate

resolutions "quite often," but at the insistence of lenders. William further stated that SCI would

"get into corporate resolutions or meetings" if there was a change in an elected officer.

¶ 51 William also discussed SCI's relative solvency. According to William, SCI became

"arguably insolvent and reasonably insolvent" around March 2006, when the line of credit was

no longer available to draw against. Until then, "there was a reasonable opportunity for SCI to

pay the debt, although it decided not to." William also testified that potentially until the Kansas

judgment was entered, it could not be argued that SCI had more liabilities than assets.

¶ 52 William also testified about Wendy's involvement in SCI and WSM. William stated that

Wendy had not been involved in the day-to-day management of SCI, but had owned all of SCI’s

stock until December 31, 2004. William also noted that Wendy had allowed her condominium

to be used as collateral for a loan for SCI, which SCI used to lend money to properties as they

needed it. Further, Wendy had always owned the office locations for SCI and WSM. According

to William, Wendy would have also been involved in Spatz entities where she signed loans as a

guarantor or co-guarantor. For example, when WALP’s lender wanted someone other than

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No. 1-13-2551

William to sign documents, William appointed Wendy vice president and she subsequently

signed documents in that capacity. William further testified that at various times, Wendy acted

as vice president of design for SCI, but she was not an elected official after 2000.

¶ 53 Wendy testified about her own involvement in SCI and WSM. Wendy stated that she had

no involvement in creating SCI, did not recall that she had been SCI’s sole shareholder when

SCI was incorporated, and did not recall serving as an officer or director of SCI. Wendy also

stated that she never performed any management and leasing functions for SCI and that she did

not have any involvement in SCI’s day-to-day business operations. Wendy further testified that

she “probably would not have paid attention” to the fact that SCI was the general partner of

various limited partnerships, or if she knew that at some point, she did not remember it at trial.

Additionally, Wendy did not know the amount of management fees that were paid to SCI each

year and did not know how the management fees were calculated and paid by the limited

partnerships. As to any agreements between SCI and the limited partnerships, Wendy testified

that she “wouldn’t know” and “wasn’t involved with anything like that.” Wendy did not recall

attending any SCI annual meetings of directors or shareholders and did not believe that SCI still

existed.

¶ 54 Additionally, Wendy did not recall the title of vice president being attributed to her when

she signed loan documents and stated that the title was “not something I associated with myself.

I wasn’t active in the business.” Wendy further stated, “You know, my husband *** discussed

various things with me. As I’m about to sign something, I ask questions. You know, if I’m

comfortable with it, I sign it.” Wendy noted that she had signed “a variety of things and it’s been

over many years,” and that she “[asks] the questions at the time, *** Bill and I discuss it.”

Wendy also testified that “when I’m going to sign something, I’m given a sort of perfunctory

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No. 1-13-2551

explanation. You can tell from my involvement that this isn’t my area of expertise.” Wendy

stated that she trusted that William was running the business “and he runs it well.” However,

Wendy also stated that she "felt some ownership" in SCI.

¶ 55 Wendy also testified that she did not assist William or otherwise take the lead in creating

the documents necessary to form WSM. Wendy did not recall why WSM was created or when it

was formed. Wendy also did not recall being elected as WSM’s sole director and stated that

William ran WSM on a day-to-day basis. Wendy assumed that WSM was managing properties,

but she did not “know any specifics around it.” Wendy did not remember attending any WSM

shareholder or board meetings after December 2005.

¶ 56 Elisheva Kalutsky, who was an accountant and had prepared SCI’s tax returns, also

testified. She agreed that there were periods of time when an E-Trade account was shown as

being owned by SCI and acknowledged that as of the 2005 tax return, the E-Trade account that

was previously carried on SCI's books was put on Wendy's individual tax return. Kalutsky was

also familiar with the Bell Street property, which was owned by Wendy and her daughter. The

property's revenue, expenses, and business operations were carried through SCI, which went to

Wendy and Bill's tax return.

¶ 57 James Rudnicki, a business turnaround consultant, testified for plaintiff about the transfer

of management and leasing contracts to WSM, commingling, and SCI’s relative solvency.

According to Rudnicki, SCI did not receive any reasonably equivalent value or consideration for

transferring the management and leasing contracts to WSM. Rudnicki also testified that he saw

evidence of commingling between SCI’s and William and Wendy’s assets, including $1 million

that was distributed to Wendy and then paid to an entity controlled by William’s brother and the

use of the line of credit to pay off a mortgage on a condominium owned by Wendy. However,

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No. 1-13-2551

Rudnicki admitted that he did not know why the line of credit was opened or why the line of

credit was used to pay off the mortgage on the condominium. Rudnicki also stated that there

were “constant payments” to third parties that appeared to have little, if anything, to do with

managing a real estate entity. Rudnicki also testified that SCI could lend money to William or

Wendy.

¶ 58 Rudnicki further stated that SCI was insolvent throughout 2005. According to Rudnicki,

at any point during that year, the liabilities exceeded the assets because the liability for the

Kansas judgment had existed since the beginning of 2005 and on every date that year it was

probable that the Kansas lawsuit would be a liability. Rudnicki further stated that when the

Kansas judgment and line of credit were taken into account, SCI’s liabilities were considerably

in excess of its assets in 2005. However, Rudnicki admitted that he did not perform a precise

valuation of SCI’s assets and liabilities. Rudnicki testified that once it became clear that the

value of SCI’s assets was less than the $1.4 million judgment, there was no reason to perform a

more precise calculation. Additionally, Rudnicki stated that according to SCI’s 2005 tax return,

SCI only had $100,000 in capital and a $100,000 shareholder loan, leaving the company with no

capital at that point.

¶ 59 After plaintiff presented its case, defendants moved for a directed finding pursuant to

section 2-1110 of the Code of Civil Procedure (735 ILCS 5/2-1110 (West 2012)), contending

that plaintiff failed to establish a prima facie case for its claims. The court issued an oral ruling

on October 15, 2012, and a written order on October 23, 2012. In part, the court found that

plaintiff made a sufficient showing of its alter ego claims against William, but did not make a

prima facie case that Wendy was an alter ego of SCI or WSM. The court recounted plaintiff's

and defendants' arguments and noted that defendants "maintain that none of the alter ego factors

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No. 1-13-2551

that have been discussed in the cases were proven as to Wendy in such a way as to provide a

solid foundation for piercing the corporate veil against her." The court stated that "[b]ased on the

showing that is made thus far, *** there has not been a unity of interest in ownership, that the

separate personalities of the corporation in the individual Wendy no longer existed during the

relevant period." The court further stated that "[b]ased on the record it has been shown that it

was William who operated SCI and WSM."

¶ 60 As part of their case, defendants called Ralph Picker, an accountant and managing

principal of a certified public accounting firm. Picker testified that he did not see anything

unusual in SCI’s business and accounting practices, though he did see a lot of mistakes. For

example, Picker saw property and accounts on the books that were not in the corporate name.

Picker also stated that correction entries were made for assets that were not assets of the

corporation and adjustments were made for liabilities that were not company liabilities.

According to Picker, it was very common to see smaller S corporations remove assets and

liabilities that should not be on their books and for entities to have unsophisticated accounting

records. From his review, Picker also did not see SCI or WSM commingling funds, which

Picker defined as mixing funds that do not belong to a particular entity. Additionally, Picker

stated that for a line of credit, a lender would generally require a payoff of an existing mortgage.

Picker further stated that it was not improper for a business entity to make a loan to an unrelated

third party.

¶ 61 Picker also testified that SCI’s tax return showed that it was solvent, as there was an

excess of assets over liabilities. According to Picker, there was no indication in 2005 that SCI's

liabilities exceeded its assets and further, there were positive retained earnings and no deficit.

Picker also stated that, among other considerations, the question of solvency must be based on a

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No. 1-13-2551

fair valuation, which plaintiff’s expert, Rudnicki, did not perform. However, Picker

acknowledged that he also did not perform any valuations in terms of certified valuations.

Additionally, as to capitalization, Picker stated that a company does not need a certain minimum

amount of capital unless it has significant loan payments to make, significant investments in

capital equipment, or significant recurring obligations, but “in this case you didn’t have that.”

¶ 62 The court issued an oral ruling on November 19, 2012, and a written judgment on

November 28, 2012. Overall, the court found that two transfers violated the Fraudulent Transfer

Act: the transfer of assets under the purchase and sale agreement and, through William, SCI's

arranging for the transfer of management fees, income, and compensation from the limited

partnerships to WSM and Anderson, both of which were done to hinder, delay, or defraud

plaintiff from pursing the Kansas judgment. As to the latter transfer, the court stated in its ruling

that the transfers occurred for no or inadequate consideration and were made to insiders for

purposes of the Fraudulent Transfer Act. The court found that WSM was created in December

2005 "for purposes of arranging for fees, compensation and income that would have been

received by SCI to be transferred to WSM." According to the court, there was an inference that

William was aware of the Kansas litigation at least toward the end of 2004 and that William

became concerned about SCI being a party after SCI was named in the suit. Additionally, the

court found that there was no credible inference presented for why SCI could not have continued

to manage the limited partnerships' properties after December 2005, "except for the

considerations testified about arising from the Kansas judgment and the post-judgment collection

efforts by [p]laintiff." The court stated that William, as the principal and person in control of

SCI, decided on behalf of SCI and the limited partnerships to arrange for fees, compensation, and

income to be diverted from SCI to WSM and arranged for SCI to refrain from doing business

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No. 1-13-2551

because of the garnishment and postjudgment supplemental proceedings that plaintiff initiated,

which arose out of the Kansas judgment.

¶ 63 Moreover, the court found that William, who controlled SCI, remained in control of the

assets transferred to WSM and Anderson and controlled those entities as well. Indeed, the court

stated that William was "really the only principal in all those three concerns." Additionally, the

court stated that Wendy and even William at various times "held not insignificant interests" in

the limited partnerships that SCI managed or for which it served as general partner. According

to the court, the transfers allowed WSM and Anderson to receive management fees,

compensation, and other income that would have otherwise gone to SCI, and further, William

and Wendy were "owners, officers and/or controlling persons of WSM and Anderson." At the

same time, the court noted that, per her testimony, Wendy had not been involved in any way with

the management or operation of SCI, WSM, and Anderson, and that her testimony conveyed the

impression that she deferred to William entirely to manage, operate, and run the three entities.

¶ 64 The court further stated that the transfers of the management fees, compensation, and

income, and the right to receive those funds from the limited partnerships, involved all or

substantially all of SCI's assets and at least a major portion of its business before 2006. The

court also stated that by arranging for the transfers of the right to receive management fees,

compensation, and income, SCI through William caused SCI to become insolvent because of the

transfers or shortly after the transfers occurred. Additionally, the court took issue with William

characterizing WSM and Anderson as entities that SCI simply hired on behalf of the limited

partnerships because WSM and Anderson were not contractors, but entities that William

controlled.

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No. 1-13-2551

¶ 65 As to the alter ego claims against William, the court found that while there was some

evidence that would support piercing SCI's corporate veil, "the fact of the matter is this Court has

reviewed all of the evidence" and was not convinced that plaintiff proved its alter ego claim

against William. The court stated that SCI had been in business for "not an insignificant period

of time," had assets, and maintained a separate identity. The court acknowledged its findings

that SCI was controlled by William and that William arranged for a significant part of its assets

to be parted with and transferred to WSM and later Anderson, both of which William also

controlled. Nonetheless, the court did not believe that plaintiff had proven that William was an

alter ego of SCI or WSM. Additionally, the court found that WSM was a mere continuation of

SCI, stating in its written judgment that "all liabilities, debts, and obligations of SCI, including

but not limited to liability for the fraudulent transfers determined herein, the Kansas Judgment,

and pre and post-judgment interest accruing on the Kansas Judgment, are the direct liabilities of

WSM." The court denied plaintiff's mere continuation claim against Anderson.

¶ 66 In its written judgment, the court voided the following transfers: (1) the transfers of SCI's

general partnership interests from SCI to Wendy in certain limited partnerships; and (2) the

transfer of management and leasing duties/fees from SCI to WSM around December 2005 or

early 2006, and thereafter, Anderson in 2006 and B&A Trust in 2010. The court also entered

money judgments against WSM and Anderson in the amount of $885,720.66 and $1,021,059.47,

respectively, representing the amount of management and leasing fees received by each entity.

The court permitted plaintiff leave to file a petition for attorney fees, costs, and prejudgment

interest.

¶ 67 Subsequently, plaintiff apparently filed a fee petition, which was not found in the record

despite a careful search. Nonetheless, it appears a fee petition was filed because a motion by

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No. 1-13-2551

defendants references a 15-page fee petition. However, the record does contain an appendix of

exhibits for plaintiff's fee petition, which spans over 400 pages and includes affidavits from

various attorneys who worked on this matter, as well as tables that show corresponding billing

entries. Some of the entries have been partially redacted.

¶ 68 In their response to the fee petition, defendants contended in part that there was no

statutory authority for fee awards under the Fraudulent Transfer Act and that the claim for mere

continuation also did not authorize a fee award. Additionally, defendants asserted that there was

no written contract providing for fees between plaintiff and WSM or Anderson. Defendants also

stated that the court could consider reducing the amount sought because plaintiff was not

successful on all of its claims. Further, defendants contended that plaintiff's appendix revealed

numerous improper charges. Defendants asserted that the court should examine certain

requested costs "in the context of an evidentiary hearing to ascertain whether these fees are

reasonable."

¶ 69 A subsequent order indicated that a hearing on the fee petition was scheduled for June 25,

2013. On that date, the court entered an order that stated:

"This matter coming before the Court on Plaintiff's petition for attorney's

fees, costs, and prejudgment interest, the Court having heard arguments from the

parties, the petition is granted and the matter is continued for formal entry of an

order with respect to the specific amounts ***. The Court notes Defendants

WSM and Anderson Associates objections."

¶ 70 On July 10, 2013, the court entered a second order related to fees, stating that the court

had considered the arguments of the parties on June 25, 2013, and had granted plaintiff's petition

"in its entirety in open Court on that day." The court then awarded attorney fees, costs, and

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No. 1-13-2551

prejudgment interest in favor of plaintiff and against SCI, WSM, and Anderson jointly and

severally. The court awarded a total of $2,242,507.28 to plaintiff, which consisted of

$1,125,238.60 in attorney fees, $158,020.49 in costs, and $959,248.19 in prejudgment interest.

The record does not contain a report of proceedings for June 25, 2013, or July 10, 2013. We

note that it is the appellant's burden to present a sufficiently complete record of proceedings at

trial to support a claim of error. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984).

¶ 71 II. ANALYSIS

¶ 72 A. Parties' Statements of Facts

¶ 73 On appeal, we first consider defendants' contention that plaintiff's statement of facts

contains improper argument and should be stricken. In response, plaintiff withdraws any

statements that we view as argumentative and asserts that defendants' statement of facts also

contains argumentative comments, as well as ad hominem attacks against plaintiff's counsel and

antagonistic comments toward the trial court judges. Neither party specifically identifies the

statements each finds improper. Nonetheless, in our view, both parties' statements of facts

contain statements that could be considered argumentative. See Ill. S. Ct. R. 341(h)(6) (eff. Feb.

6, 2013) (briefs should contain a statement of facts, "which shall contain the facts necessary to an

understanding of the case, stated accurately and fairly without argument or comment").

However, we decline to strike either party's statement of facts and instead disregard any

offending portions. See Hamilton v. Conley, 356 Ill. App. 3d 1048, 1052-53 (2005). We also

admonish both counsel to be mindful in the future of the requirement to avoid argument in the

statement of facts. See Friends of the Parks v. Chicago Park District, 203 Ill. 2d 312, 319

(2003).

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No. 1-13-2551

¶ 74 B. Collateral Estoppel

¶ 75 We next consider defendants' contention on cross-appeal that the court improperly

applied collateral estoppel because the turnover proceeding against Wendy controlled much of

the case related to plaintiff's fraudulent transfer and alter ego claims. Defendants argue that in

both cases, the singular point of plaintiff's claims was the source and availability of money and

assets to satisfy the Kansas judgment. Defendants assert that the turnover proceedings fully

examined the Kansas litigation, the use of SCI's credit line, SCI's income, assets, and financial

activity in 2005, the existence, creation, and point of the SCI purchase and sale agreement, and

the purported depletion of SCI assets through reclass and accounting adjustments in 2005, among

other issues. Defendants further argue that there were significant overlaps among the allegations

in plaintiff's complaint, plaintiff's 2008 fraudulent transfer list, and the order denying the motion

for turnover. Defendants also assert that the court's order in the turnover proceeding was a final

order disposing of the proceedings against Wendy and that the parties were identical in that

William and Wendy litigated against plaintiff in both matters.

¶ 76 Collateral estoppel was raised twice before trial: in Wendy's motion to dismiss and in the

subsequent motion in limine as to SCI, WSM, William, and Wendy. When properly applied,

collateral estoppel promotes fairness and judicial economy by preventing the relitigation of

issues that have already been resolved in earlier actions. Du Page Forklift Service, Inc. v.

Material Handling Services, Inc., 195 Ill. 2d 71, 77 (2001). Collateral estoppel "applies when[:]

[(1)] the issue decided in the prior adjudication is identical with the one presented in the current

action, [(2)] there was a final judgment on the merits in the prior adjudication, and [(3)] the party

against whom estoppel is asserted was a party to, or in privity with a party to, the prior

adjudication." (Internal quotation marks omitted.) United Automobile Insurance Co. v. Buckley,

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No. 1-13-2551

2011 IL App (1st) 103666, ¶ 39. Collateral estoppel applies to determinations of law as well as

fact. Du Page Forklift Service, Inc., 195 Ill. 2d at 79. Moreover, the party claiming collateral

estoppel has the burden of establishing it by clear, concise, and unequivocal evidence. Pedersen

v. Village of Hoffman Estates, 2014 IL App (1st) 123402, ¶ 42. Whether the doctrine of

collateral estoppel applies to a particular case is a question of law that this court reviews de novo.

Id. Further, although normally we review a trial court's decision on a motion in limine for an

abuse of discretion, where, as here, the issue involves a question of law, the standard of review is

de novo. Schandelmeier-Bartels v. Chicago Park District, 2015 IL App (1st) 133356, ¶ 25.

¶ 77 Here, the primary question is whether the issues decided in the turnover proceeding

against Wendy were identical with plaintiff's fraudulent transfer and alter ego claims. In the

turnover proceeding, plaintiff sought to force Wendy to pay certain debts she or Spatz Associates

purportedly owed to SCI that could then be used to satisfy the outstanding Kansas judgment.

The court noted there were two central questions: whether a certain account, identified as the SA

Distribution account, was an asset or clearing account, and whether Wendy was holding assets of

SCI or WALP or was otherwise obligated to pay SCI or WALP for a debt. The court determined

that the SA Distribution account was a clearing account and that various adjustments and

transfers did not create an asset for SCI or obligations of Wendy to SCI. The court further found

that Wendy did not own anything in which SCI had an interest, Wendy did not own or control

any SCI or WALP assets that could be subject to a turnover order, and plaintiff failed to show

that any assets were transferred by SCI to Wendy in 2005.

¶ 78 Meanwhile, in its complaint, plaintiff listed six transfers that were allegedly at issue,

including distributions paid by SCI to William or Wendy in 2005, William and Wendy's conduct

of deleting money owed to SCI from Spatz Associates' books, the use of SCI's line of credit to

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No. 1-13-2551

pay off William and Wendy's mortgage, and the transfer of management and leasing fees from

SCI to WSM. Plaintiff also alleged in its complaint that Wendy was never paid $310,667.60 for

her SCI stock and that William directed the write-off of the books of Spatz Associates of

substantial obligations Spatz Associates owed to SCI and other entities in December 2005.

Plaintiff's fraudulent transfer list, which was created in 2008 before the turnover proceedings,

listed 15 allegedly fraudulent transfers, including the transfer of SCI's partnership interests in

various limited partnerships to Wendy for no consideration, cash payments to Wendy in 2005, an

allegation that Wendy hid debts owed to SCI and removed them from her general ledger, and

that SCI's books showed that Wendy owed over $1.4 million to SCI.

¶ 79 To be sure, there are superficial overlaps between some facts and issues decided in the

turnover proceedings and the allegedly fraudulent transfers at issue at trial. However, the facts

and issues decided in the turnover proceedings were different than those presented at trial. In the

turnover order, the transfers were discussed in the narrow context of whether they showed that

Wendy owed money to SCI or WALP. In contrast, a primary consideration under the Fraudulent

Transfer Act is whether a debtor made a transfer with "actual intent to hinder, delay, or defraud"

a creditor. 740 ILCS 160/5(a)(1) (West 2006). A claim under the Fraudulent Transfer Act

considers not just whether the transfer occurred, but whether the circumstances show that the

transfer was done to avoid a creditor. Numerous considerations are involved, such as whether

the transfer or obligation was to an insider, when the transfer was made, whether the transfer was

of substantially all of the debtor's assets, and whether the debtor became insolvent shortly before

or after a substantial debt was incurred, among others. 740 ILCS 160/5(b) (West 2006).

Meanwhile, the turnover order was only concerned with the result of the transfers at issue—

whether Wendy had assets that belonged to SCI or WALP. Further, a claim that seeks to pierce

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the corporate veil based on an alter ego theory examines whether a person or entity "uses a

corporation merely as an instrumentality to conduct that person's or entity's business." Peetoom

v. Swanson, 334 Ill. App. 3d 523, 527 (2002). This inquiry considers numerous operating

practices and the relative involvement of the allegedly dominant individuals—here, William and

Wendy. See Fiumetto v. Garrett Enterprises, Inc., 321 Ill. App. 3d 946, 958-59 (2001) (factors

at issue include inadequate capitalization, failure to issue stock, failure to observe corporate

formalities, insolvency of the debtor corporation, nonfunctioning of officers or directors, and the

absence of corporate records, among others). Again, the turnover proceeding only answered the

question of whether Wendy owed SCI or WALP money. In this vein, in addition to correctly

denying Wendy’s motion to dismiss, the court also properly denied the motion in limine that

sought to bar certain testimony and evidence as to multiple defendants, as the turnover order

focused on Wendy and did not conclusively decide anything with regard to other defendants.

¶ 80 Moreover, application of collateral estoppel must be narrowly tailored to fit the precise

facts and issues that were clearly determined in the prior judgment. Nowak v. St. Rita High

School, 197 Ill. 2d 381, 390-91 (2001). "[I]t is absolutely necessary that there [was] a finding of

a specific fact in the former judgment or record that is material and controlling in that case and

also material and controlling in the pending case." (Internal quotation marks omitted.)

Kessinger v. Grefco, Inc., 173 Ill. 2d 447, 462 (1996). The court's discussion in the turnover

proceeding of the mechanics of various transfers and how they affected Wendy's obligations are

not truly material and controlling in the current case, where the issues are much broader than

whether transfers show that Wendy owed money to SCI and WALP.

¶ 81 Nonetheless, to the degree that the court was unsure about whether collateral estoppel

should apply, it acted prudently. Where "there is any uncertainty on the point that more than one

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distinct issue of fact is presented to the court, [collateral] estoppel will not be applied." (Internal

quotation marks omitted.) Id. The court, perhaps uncertain whether certain facts and issues were

truly identical, selected a proper course of action that allowed objections at trial based on

collateral estoppel and shifted the burden depending on which defendant was at issue. Overall,

we find that the court correctly denied the application of collateral estoppel before trial.

¶ 82 C. Fraudulent Transfer Act

¶ 83 We next consider defendants' contention that the court erred in finding that defendants

violated the Fraudulent Transfer Act (740 ILCS 160/1 et seq. (West 2006)). Defendants argue

that the limited partnerships had previously hired SCI to manage the properties and were under

no obligation to work with SCI for any reason. Defendants further contend that no transfer

occurred because the limited partnerships merely delegated management to another entity that

could handle the responsibilities, which was their right to do. Moreover, according to

defendants, William did not have any reason in 2005 to believe that SCI would be liable in the

Kansas litigation and all decisions were made in the normal course of business. Defendants also

assert that William acted in good faith and note William's testimony that he was obligated on

behalf of the limited partnerships to find management that could perform. Additionally,

defendants argue that plaintiff never proved there was a "lack of reasonably equivalent value"

under the Fraudulent Transfer Act because neither expert actually valued the management

agreements and SCI's assets.

¶ 84 The standard of review of a trial court's judgment after a bench trial is whether that

judgment is against the manifest weight of the evidence. Northwestern Memorial Hospital v.

Sharif, 2014 IL App (1st) 133008, ¶ 25. "A finding is against the manifest weight of the

evidence only when an opposite conclusion is apparent or when the findings appear to be

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unreasonable, arbitrary, or not based on the evidence." (Internal quotation marks omitted.)

Munson v. Rinke, 395 Ill. App. 3d 789, 795 (2009). "In a bench trial, it is the function of the trial

judge to weigh the evidence and make findings of fact" and we may "not substitute [our]

judgment for that of the trier of fact." (Internal quotation marks omitted.) Falcon v. Thomas,

258 Ill. App. 3d 900, 909 (1994). Further, we will not disturb a trial court's judgment as long as

there is evidence to support it. Sharif, 2014 IL App (1st) 133008, ¶ 25. We also note that "[w]e

may affirm the judgment of the trial court on any basis in the record, regardless of whether the

trial court relied upon that basis or whether the trial court's reasoning was correct." (Internal

quotation marks omitted.) Id.

¶ 85 "The purpose of the [Fraudulent Transfer] Act is to invalidate otherwise sanctioned

transactions made with a fraudulent intent." (Internal quotation marks omitted.) Id. ¶ 16. The

test to determine the validity of a transfer is "whether or not it directly tended to or did impair the

rights of creditors." (Internal quotation marks omitted.) Apollo Real Estate Investment Fund, IV,

L.P. v. Gelber, 403 Ill. App. 3d 179, 193 (2010).

¶ 86 Under the Fraudulent Transfer Act, a transfer made by a debtor is fraudulent as to a

creditor if the debtor made the transfer:

"(1) with actual intent to hinder, delay, or defraud any creditor of the debtor; or

(2) without receiving a reasonably equivalent value in exchange for the transfer

or obligation, and the debtor:

(A) was engaged or was about to engage in a business or a transaction for which

the remaining assets of the debtor were unreasonably small in relation to the business or

transaction; or

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(B) intended to incur, or believed or reasonably should have believed that he

would incur, debts beyond his ability to pay as they became due." 740 ILCS 160/5 (West

2006).

¶ 87 Two causes of action for fraud are permitted under the Fraudulent Transfer Act: "fraud in

law" and "fraud in fact." Apollo Real Estate Investment Fund, IV, L.P., 403 Ill. App. 3d at 193.

Under a "fraud in law" transfer, which is set forth in section 5(a)(2) of the Fraudulent Transfer

Act (740 ILCS 160/5(a)(2) (West 2006)), the "transfer is made for no or inadequate

consideration, [and] the fraud is presumed." (Internal quotation marks omitted.) Sharif, 2014 IL

App (1st) 133008, ¶ 18. Under a "fraud in fact" transfer, which is a cause of action under section

5(a)(1) of the Fraudulent Transfer Act, a party must prove that the transfer was made with actual

intent to hinder, delay, or defraud the creditors. Apollo Real Estate Investment Fund, IV, L.P.,

403 Ill. App. 3d at 193. Defendants seem to suggest that plaintiff needed to prove both types,

which is incorrect. We find that a conclusion that defendants violated the Fraudulent Transfer

Act under a "fraud in fact" analysis was not against the manifest weight of the evidence.

¶ 88 A creditor can prove "fraud in fact," or actual fraud, based on the existence of certain

factors or "badges of fraud." 740 ILCS 160/5(b) (West 2006); Steel Co. v. Morgan Marshall

Industries, Inc., 278 Ill. App. 3d 241, 251 (1996). Section 5(b) provides that "consideration may

be given, among other factors, to whether:

"(1) the transfer or obligation was to an insider;

(2) the debtor retained possession or control of the property transferred

after the transfer;

(3) the transfer or obligation was disclosed or concealed;

(4) before the transfer was made or obligation was incurred, the debtor

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had been sued or threatened with suit;

(5) the transfer was of substantially all the debtor's assets;

(6) the debtor absconded;

(7) the debtor removed or concealed assets;

(8) the value of the consideration received by the debtor was reasonably

equivalent to the value of the asset transferred or the amount of the obligation incurred;

(9) the debtor was insolvent or became insolvent shortly after the transfer

was made or the obligation was incurred;

(10) the transfer occurred shortly before or shortly after a substantial debt

was incurred; and

(11) the debtor transferred the essential assets of the business to a lienor

who transferred the assets to an insider of the debtor." 740 ILCS 160/5(b) (West 2006).

¶ 89 These factors are merely considerations (Steel Co., 278 Ill. App. 3d at 251) and a court

need not consider all 11 factors (Sharif, 2014 IL App (1st) 133008, ¶ 23). When the factors are

present in sufficient number, "it may give rise to an inference or presumption of fraud." Steel

Co., 278 Ill. App. 3d at 251. At the same time, "the symptoms are not additive" and it is possible

that the presence of only one factor could entitle a party to relief. Brandon v. Anesthesia & Pain

Management Associates, Ltd., 419 F.3d 594, 600 (7th Cir. 2005). Additionally, the debtor and

donee of the transfer have the burden of dispelling an implication of fraud. Sharif, 2014 IL App

(1st) 133008, ¶ 31.

¶ 90 Defendants only challenge the trial court's finding that the transfer of management fees,

income, and compensation from SCI to WSM violated the Fraudulent Transfer Act. We first

address defendants' contention that no transfer occurred because the limited partnerships merely

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delegated management to another entity and there was no testimony that "the right to do a job" is

an asset. We disagree. By arranging for WSM to receive an income stream, SCI transferred an

asset. Under the Fraudulent Transfer Act, an "asset" is generally defined as the property of the

debtor. 740 ILCS 160/2(b) (West 2006). "Transfer" is defined as "every mode, direct or

indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an

asset or an interest in an asset, and includes payment of money, release, lease, and creation of a

lien or other encumbrance." 740 ILCS 160/2(l) (West 2006). SCI generated significant

management and leasing fees before 2006 and received a certain percentage of the rental income

from shopping malls. Notwithstanding William's testimony that a set of limited partnerships

independently decided to use WSM, there was ample evidence that, to the contrary, SCI through

William directed nearly all of the limited partnerships at issue to work with WSM instead of SCI.

William testified that for most of the limited partnerships, SCI—of which William was the

principal—was the general partner or managing member and directed the limited partnerships to

"behave in a certain manner, in their best interest." William also testified that as to the so-called

independent limited partnerships, there were conversations and "some notification of our intent

or what was going on," and despite needing approval, "I was saying *** we needed to move it

over" because SCI's accounts were frozen. William's testimony strongly suggested that he

directed the limited partnerships, whether independent or not, to use WSM instead of SCI. After

SCI arranged for WSM to receive the management fees, WSM received over $382,000 in

management fees in 2006 and over $250,000 in management fees in 2007. Sources of income

have been found to be assets. See Chicago Truck Drivers, Helpers & Warehouse Workers Union

(Independent) Pension Fund v. Louis Zahn Drug Co., 890 F.2d 1405, 1412 (7th Cir. 1989)

(vehicle leases had value in light of object of transaction, which was to sell to the purchaser what

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it needed to undertake transportation responsibilities previously performed by the seller);

Blaguss Travel International v. Musical Heritage International, 833 F. Supp. 708, 712-13 (N.D.

Ill. 1993) (whether executory contract was an "asset" with "value" was a question of fact where

"it is not difficult to imagine executory contracts that could provide the debtor with a steady cash

flow with limited expenditure of effort and resources"). Through William, SCI "part[ed] with an

asset" (740 ILCS 160/2(l) (West 2006)) by directing that management fees it previously received

be paid to WSM.

¶ 91 Turning to the factors in section 5(b) of the Fraudulent Transfer Act, the evidence

showed that the transfer of the management agreements from SCI to WSM was made to an

insider. In addition to being the principal of SCI, William was the president and secretary of

WSM and effectively controlled WSM. See 740 ILCS 160/2(g)(2)(C) (West 2006) (insiders of a

debtor corporation include a person in control of the debtor). As the trial court found, William

remained in control of the management fees and income in the new arrangement with WSM.

¶ 92 Additionally, before WSM began receiving the management fees, SCI had been sued in

the Kansas foreclosure case. SCI was named as a defendant in the Kansas litigation on February

22, 2005, a ruling against SCI was made on December 1, 2005, and the final order was entered

on December 30, 2005. William testified that WSM began managing properties for certain

limited partnerships on January 1, 2006, and a significant number of SCI's former properties

around February 2006. On a related note, this evidence also shows that the transfer of the

management fees to WSM occurred shortly after a substantial debt was incurred—namely, the

approximately $1.4 million judgment entered in the Kansas litigation.

¶ 93 In addition, the transfer of the management fees constituted substantially all of SCI's

assets. Whereas SCI's 2005 tax return showed gross receipts or sales of $626,540, its 2006 tax

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return, which would have been completed after WSM started managing the properties, reported

gross receipts or sales of $1,106, and its 2007 tax return showed a loss of $2,164. Further,

William acknowledged that a transfer of $32,056.36 out of SCI's account, which went to WSM,

left SCI with a zero balance other than $12.40 in interest. William also admitted that after

December 2005, SCI did not generate any business income that could have satisfied the Kansas

judgment and estimated that the balance in SCI’s account since 2005 had been around $1,000.

Based on the evidence presented, the arrangement with WSM left SCI with very little assets.

¶ 94 Additionally, we note William's testimony about the impact of the Kansas judgment and

its consequences on his decision to steer management fees to WSM. William testified that the

Kansas proceedings did not factor into SCI's actions until December 1, 2005, "when we lost."

William also admitted that the garnishment of SCI's account—a result of the Kansas judgment—

was a primary reason for bringing in new management. William also stated that while SCI's

bank account had money in it, it was not wise to deposit money into that account and that

"money ceased being deposited" into SCI's account. There was also evidence that William

directed that no money should be deposited into SCI's account without his authorization.

William's testimony strongly suggests that the transfer of the management income to WSM was

a calculated move to escape the Kansas judgment, which had manifested in the form of a

garnishment on SCI's account. Though William provided some innocent explanations for the

arrangement with WSM, we also note there was evidence that he acted to hinder plaintiff's

ability to collect its judgment, and we will not substitute our judgment for that of the trier of fact

on matters of the credibility of a witness, the weight of the evidence, and the inferences drawn

from the evidence unless the opposite conclusion is evident from the record. Sharif, 2014 IL

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App (1st) 133008, ¶ 26. Here, the conclusion that the transfer of management fees to WSM was

fraudulent was not against the manifest weight of the evidence.

¶ 95 D. Wendy as Alter Ego of SCI and WSM

¶ 96 Next, we address plaintiff's contention that it presented sufficient evidence to support its

claims that Wendy was an alter ego of SCI and WSM, such that these claims should have at least

survived defendants' motion for a directed finding. Plaintiff asserts that Wendy used SCI's line

of credit for personal expenses and payments, failed to act in her capacity as officer and sole

shareholder of SCI and as sole director and 99% shareholder of WSM, and allowed her E-Trade

account and the Bell Street property to be carried on the books and records of SCI, but then

claimed these as her own assets at trial.

¶ 97 In a bench trial, section 2-1110 of the Code of Civil Procedure (735 ILCS 5/2-1110 (West

2012)) allows a defendant, at the close of the plaintiff's case, to move for a finding or judgment

in his favor. In ruling on this motion, a court engages in a two-step analysis. 527 S. Clinton,

LLC v. Westloop Equities, LLC, 403 Ill. App. 3d 42, 52 (2010). First, the court must determine

as a matter of law whether the plaintiff has presented a prima facie case, meaning the court must

ask whether the plaintiff presented some evidence on every element essential to the cause of

action. Id. Second, if the plaintiff presented some evidence on each element, the court must then

consider and weigh the totality of the evidence presented, including evidence favorable to the

defendant, to determine whether the prima facie case survives. Hatchett v. W2X, Inc., 2013 IL

App (1st) 121758, ¶ 35. If the trial court finds that the plaintiff has failed to present a prima

facie case as a matter of law, the appellate standard of review is de novo. Minch v. George, 395

Ill. App. 3d 390, 398 (2009). However, if the trial court moves on to consider the weight and

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quality of the evidence and finds that no prima facie case remains, the appellate standard of

review is the "manifest weight of the evidence" standard. Id.

¶ 98 Here, we review whether the court's finding at the directed finding stage was against the

manifest weight of the evidence because the court engaged in the second part of the analysis. In

its ruling, the court recounted each side's position and noted the specific evidence that each side

had presented, including defendants' evidence. For example, the court noted that defendants

"maintain that none of the alter ego factors that have been discussed were proven as to Wendy in

such a way as to provide a solid foundation for piercing the corporate veil against her," and the

court stated that, based on the record, William operated SCI and WSM. Accordingly, the court

considered the weight and quality of the evidence and we will determine whether the court's

ruling was against the manifest weight of the evidence.

¶ 99 A corporation is a legal entity that exists separate and apart from its shareholders,

directors, and officers, who are not as a general rule liable for the corporation's debts and

obligations. Ted Harrison Oil Co. v. Dokka, 247 Ill. App. 3d 791, 794 (1993). One of the

primary purposes of doing business as a corporation is to insulate stockholders from unlimited

liability for corporate activity. Peetoom v. Swanson, 334 Ill. App. 3d 523, 526 (2002). However,

in certain situations a court will find shareholders, directors, or officers personally responsible

for corporate obligations through a remedy known as piercing the corporate veil. Ted Harrison

Oil Co., 247 Ill. App. 3d at 795. A corporate entity will be disregarded where it would otherwise

present an obstacle to the protection of private rights or where the corporation is merely the alter

ego or business conduit of the governing or dominant personality. Id. To pierce the corporate

veil, a plaintiff must demonstrate that: (1) there is such unity of interest and ownership that the

separate personalities of the corporation and individual no longer exist, and (2) the circumstances

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are such that adhering to the fiction of a separate corporate existence would promote injustice or

inequitable consequences. Fiumetto, 321 Ill. App. 3d at 958.

¶ 100 In determining whether the first prong is met, a court generally will not rest its decision

on a single factor, but will examine many factors, including: (1) inadequate capitalization; (2)

failure to issue stock; (3) failure to observe corporate formalities; (4) nonpayment of dividends;

(5) insolvency of the debtor corporation; (6) nonfunctioning of the other officers or directors; (7)

absence of corporate records; (8) commingling of funds; (9) diversion of assets from the

corporation by or to a stockholder or other person or entity to the detriment of creditors; (10)

failure to maintain arm's-length relationships among related entities; and (11) whether the

corporation is a mere façade for the operation of the dominant stockholders. Fontana v. TLD

Builders, Inc., 362 Ill. App. 3d 491, 503 (2005). At trial, the party seeking to have the corporate

entity disregarded must come forward with a substantial showing that the corporation is really a

dummy or sham for a dominating personality. Ted Harrison Oil Co., 247 Ill. App. 3d at 796.

¶ 101 We agree with the trial court that plaintiff failed to establish that Wendy was an alter ego

for SCI or WSM. Wendy's involvement in SCI and WSM was marginal at best. Wendy's

testimony suggested she knew very little about SCI and WSM and was barely involved in either

entity. According to William, although Wendy owned the location where SCI and WSM had

their offices, served as vice president of design at one point, and signed loan documents, Wendy

was not involved in the day-to-day management of SCI or WSM. She recalled that she felt some

ownership of SCI, but stated that her title of vice president was not something she associated

with herself and did not recall one of SCI's main functions, which was to act as a general partner

for various limited partnerships. Additionally, Wendy did not know the amount of management

fees SCI received and did not know about any agreements between SCI and the limited

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partnerships. Wendy trusted that William was running the business and though she asked

questions of William when asked to sign something, she also stated she was given perfunctory

explanations of what she was signing. Wendy testified similarly about her lack of involvement

in WSM. She stated that she did not know when WSM was formed or why WSM was created.

She also did not remember being elected as WSM's sole director. Based on the evidence

presented, William was in charge of SCI and WSM and Wendy played an extremely limited role.

Overall, Wendy was far from being the governing or dominant personality associated with

individuals who are alter egos for corporations. See id. at 795. Plaintiff's case-in-chief failed to

establish that SCI or WSM was a sham for Wendy such that the separate personalities of Wendy,

SCI, and WSM failed to exist. As such, the court properly dismissed the alter ego claims against

Wendy at the directed finding stage.

¶ 102 E. William as Alter Ego of SCI and WSM

¶ 103 We next consider plaintiff's contention that William was an alter ego of SCI and WSM.

Plaintiff argues that both entities were inadequately capitalized, failed to observe corporate

formalities, lacked corporate records, commingled funds and failed to maintain arm's-length

relationships, were insolvent, diverted assets to the detriment of a creditor, had nonfunctioning

officers and directors, and were mere façades for William to shield himself from personal

liability.

¶ 104 We will not reverse a finding of the trial court about piercing the corporate veil unless it

is against the manifest weight of the evidence. Jacobson v. Buffalo Rock Shooters Supply, Inc.,

278 Ill. App. 3d 1084, 1088 (1996). Further, as noted above, "[a] finding is against the manifest

weight of the evidence only when an opposite conclusion is apparent or when the findings appear

to be unreasonable, arbitrary, or not based on the evidence." (Internal quotation marks omitted.)

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Munson, 395 Ill. App. 3d at 795. Further, piercing the corporate veil is a task that courts should

undertake reluctantly. Ted Harrison Oil Co., 247 Ill. App. 3d at 795.

¶ 105 We address each of the alter ego factors that plaintiff raises: inadequate capitalization,

failure to observe corporate formalities, absence of corporate records, commingling of funds and

failure to maintain arm's-length relationships, insolvency of the debtor corporation, diversion of

assets from the corporation to the detriment of creditors, nonfunctioning of other corporate

officers or directors, and the corporation is a mere façade for the operation of the dominant

stockholders. As we detail below, based on our analysis of the first prong of the alter ego

analysis, the trial court's finding that William was not an alter ego of SCI or WSM was not

against the manifest weight of the evidence.

¶ 106 The question of whether an entity is adequately capitalized is based on the policy that

shareholders should in good faith put at the risk of the business unencumbered capital reasonably

adequate for the corporation's prospective liabilities, and moreover, that it is inequitable to allow

shareholders to set up a flimsy organization just to escape personal liability. Fontana, 362 Ill.

App. 3d at 504. A corporation's capitalization is a major consideration in deciding whether a

legitimate separate corporate entity was maintained. Amsted Industries, Inc. v. Pollak Industries,

Inc., 65 Ill. App. 3d 545, 552 (1978). "An obvious inadequacy of capital, measured by the nature

and magnitude of the corporate undertaking, has frequently been an important factor in cases

denying stockholders their defense of limited liability." (Internal quotation marks omitted.)

Jacobson, 278 Ill. App. 3d at 1089.

¶ 107 Here, the evidence shows that neither SCI nor WSM were inadequately capitalized.

According to William, SCI was initially capitalized with $1000. William further stated that his

business was essentially service-oriented and that in theory, enough capital was always

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maintained to operate the business. William's testimony also suggested that SCI's capital

fluctuated and at one time was at least $400,000. According to William, SCI was able to

function and pay its bills until the Kansas judgment was entered. Defendants' expert, Picker,

testified that there is no required minimum for capital unless a company has significant loan

payments to make, significant investments in capital equipment, or significant recurring

obligations, none of which were at issue here. Plaintiff points to SCI's line of credit as

demonstrating that SCI was lacking in capital. However, SCI did not appear to rely on the line

of credit to function. A large portion was used to loan and invest money in a hedge fund, for

which SCI was eventually repaid, and another portion was used to pay off a condominium that

served as collateral for the line of credit. Further, the line of credit was paid off in March 2006.

There was no evidence that SCI did not have sufficient capital to run its basic business of acting

as general partner and manager for the limited partnerships. As for WSM, William testified that

it was initially capitalized with $10, but William also stated that when WSM was formed, 1,000

shares were issued for $1 per share. As of December 31, 2006, WSM's balance sheet showed

assets of about $58,000 in cash. Like SCI, WSM principally performed management functions,

and there was no evidence that WSM was unable to meet its obligations or carry out its duties.

See In re Estate of Wallen, 262 Ill. App. 3d 61, 71 (1994) (unclear that corporation

undercapitalized given nature of the business, where corporation acted merely as facilitator

between buyers and sellers and did not maintain an inventory). Under these circumstances, SCI

and WSM were adequately capitalized.

¶ 108 As for observing corporate formalities and maintaining corporate records, the evidence

suggests that SCI and WSM were far from perfect, but not so flawed as to factor in favor of

piercing the corporate veil. William testified that his entities produced corporate resolutions only

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when the bank required it, and moreover, corporate resolutions were not required for activities in

the normal course of business. Because they were not required, there were no written corporate

resolutions authorizing the purchase and sale agreement, the line of credit, or the loan to the

hedge fund. William could not recall whether a required shareholder's voting list was ever put

together. Additionally, William recalled attending SCI director and shareholder meetings and

stated that meetings for his entities were frequent, but that meeting minutes did not have to be

recorded unless a lender required it. In addition, William testified that there were contracts that

were not necessarily written, and he described an oral agreement with a landscaper. At the same

time, William testified that long-term transactions were documented and that he would generally

document transactions if he felt it was required. SCI and WSM had articles of incorporation and

bylaws, and William stated that every entity had separate bank accounts, corporate filings, and

annual reports. A number of these documents were produced at trial. William maintained that

annual reports were filed for every corporation and that corporate formalities were followed

when required by the bylaws, IRS, or Illinois law. Overall, though their practices resulted in

fewer documents than might be desired, SCI and WSM appear to have observed basic corporate

formalities and maintained various records, especially when it was required by a third party.

Contra Fontana, 362 Ill. App. 3d at 506 (determination that corporation failed to keep and

maintain corporate records not against manifest weight of evidence where there were no

corporate resolutions whatsoever for certain loans, no notes or other evidence of claimed

indebtedness, no corporate records of amounts borrowed for transactions, and defendant

admitted he never had a written contract with a subcontractor, never took bids from

subcontractors, and kept no financial records for any payments except for draw schedules filed

with title companies).

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¶ 109 The next factor, whether SCI, WSM, and William commingled funds and failed to

maintain arm's-length relationships, also does not warrant piercing the corporate veil. What

plaintiff contends is the use of the SCI line of credit for personal expenses was shown to be the

line of credit's sweeping function at work. According to William, the SA account, which was

William and Wendy's joint checking account, was linked to the SCI line of credit. William

stated that if the SA account was overdrawn, money would automatically be lent to it, and

ultimately SA borrowed and paid back money on an ongoing basis. William further stated that

SCI could lend money to other people at its discretion, a proposition that plaintiff's expert,

Rudnicki, agreed with. As to the other claims about SCI and WSM accounts being used for

personal expenses, William explained that certain medical payments were part of a semi-medical

plan and admitted that one of the corporations received subscriptions. Further, a payment to a

recipient in Costa Rica was explained as likely coming from another account. William insisted

that personal and business bills were paid out of their corresponding accounts and denied that

SCI made personal payments. Moreover, while an E-Trade account and other assets were

carried on SCI's books for a period of time, they were eventually removed—an occurrence that

defendants' expert, Picker, testified was the subject of correction entries that were common for

smaller corporations. Picker further stated that SCI's records had mistakes, but he did not see

evidence of commingling.

¶ 110 Plaintiff also asserts that SCI and WSM operated from the same location, used the same

employees, and performed the same management operations. Additionally, plaintiff notes that in

2006 and 2007, after WSM had taken over management functions, invoices were sent to SCI

instead of WSM, but were paid by WSM. However, the trial court was entitled to accept

William's explanations for these circumstances (see Falcon v. Thomas, 258 Ill. App. 3d 900, 909

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(1994) (in a bench trial, the trial judge weighs the evidence and makes findings of fact)), and

according to those explanations, SCI and WSM were separate. William testified that because

SCI remained the general partner, it was less confusing to have bills sent to it. William also

mentioned the difficulties he had in explaining to whom bills should be sent, maintained that

WSM paid the bills, and stated that each entity had separate bank accounts. We also note that

evidence that the affairs of two corporations were interwoven relates to the liability between the

two corporations, rather than the personal liability of an individual. Amsted Industries, Inc., 65

Ill. App. 3d at 550.

¶ 111 Additionally, the use of the line of credit to pay off Wendy's mortgage and to loan $1

million to a hedge fund was also explained. According to William, the bank required that the

mortgage on the condominium be paid off because the condominium was being used as collateral

for the loan. Picker stated this was generally required by lenders. William further testified that

the $1 million payment to the hedge fund was supposed to be a short interim loan and an

investment. Again, there was testimony that SCI could lend money to third parties. Overall,

although there was evidence that commingling occurred, such as testimony from plaintiff's

expert, Rudnicki, we reiterate that in a bench trial, the trial judge weighs the evidence and makes

findings of fact. Falcon, 258 Ill. App. 3d at 909. Further, we note that we will not disturb a trial

court's judgment as long as there is evidence to support it. Sharif, 2014 IL App (1st) 133008,

¶ 25. A finding that SCI, WSM, and William did not commingle funds and maintained arm's

length relationships was not against the manifest weight of the evidence.

¶ 112 Moving to the next consideration, there was conflicting evidence about whether SCI was

insolvent and limited evidence that WSM was insolvent. According to plaintiff's expert,

Rudnicki, SCI was insolvent throughout 2005 because the liability for the Kansas judgment had

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existed since the beginning of 2005 and when the Kansas judgment and line of credit were

accounted for, SCI's liabilities exceeded its assets in 2005. Meanwhile, defendants' expert,

Picker, stated that there was no indication in 2005 that SCI's liabilities exceeded its assets and

that there were positive retained earnings and no deficit. For his part, William testified that SCI

paid its bills and functioned until the Kansas judgment. According to William, SCI became

insolvent around March 2006, when the line of credit was no longer available and the appeal

process for the Kansas judgment ended. William also testified that WSM had been able to

operate and pay its bills. As of December 31, 2006, WSM's balance sheet showed assets of

about $58,000 in cash. In light of the conflicting opinions on the subject of solvency, the court

was entitled to lend more weight to Picker's and William's views, in which SCI was not insolvent

before the Kansas judgment. See West Shore Associates, Ltd. v. American Wilbert Vault Corp.,

269 Ill. App. 3d 175, 180 (1994) (it is function of trial judge to weigh conflicting evidence,

consider the evidence in view of all the evidence in the case, and to make findings based on that

evidence). Further, the evidence does not suggest that either entity was purposely kept insolvent

while it operated. SCI and WSM were both able to do business, though during different times.

Contra People v. V&M Industries, Inc., 298 Ill. App. 3d 733, 741 (1998) (corporation insolvent

where was insolvent at time of trial and was never adequately funded). That SCI was eventually

drained of its assets speaks to another factor that is discussed below—whether SCI drained

diverted assets to the detriment of creditors. Overall, a finding that SCI and WSM were solvent

was not against the manifest weight of the evidence.

¶ 113 As we mention above, the evidence shows that SCI diverted assets to WSM to the

detriment of a creditor, plaintiff. William, acting through SCI, made a deliberate effort after the

Kansas judgment to divert funds to avoid paying plaintiff. As a result of the Kansas judgment, a

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garnishment was served on SCI's bank account. William stated that, subsequently, money

stopped being deposited in the account and that he directed that no money should flow through

the account without his authorization. Further, shortly after the Kansas judgment, WSM began

managing a significant number of properties that SCI had previously managed, which generated

management fees for WSM—fees that SCI previously received. Meanwhile, SCI's account was

zeroed out, with approximately $32,000 going to WSM. William also testified that after

December 2005, SCI did not generate any business income that could have satisfied the Kansas

judgment and that the running balance in SCI's account since 2005 had been around $1,000.

Further, it was William who arranged for the transfer of SCI's income stream to WSM. Where

SCI was the general or managing partner, he directed the limited partnerships to behave in a

certain manner. As to the so-called independent limited partnerships, William's testimony

described conversations and "some notification of our intent or what was going on," as well as

his communicating that "from a practical point of view, I was saying *** we needed to move it

over" due to the garnishment, a direct consequence of the Kansas judgment. The timing and

method of using WSM to take over SCI's management functions and receive the corresponding

income stream, while keeping SCI's assets low, strongly suggest that William, through SCI,

diverted assets to avoid paying the Kansas judgment.

¶ 114 The evidence also suggests that SCI's and WSM's only other officer or director, Wendy,

was nonfunctioning. Although Wendy testified that she felt some ownership in SCI, her other

statements suggested that she deferred to William on all matters and was only superficially

involved in SCI and WSM. Wendy testified that she did not recall the title of vice president

being attributed to her when she signed loan documents for SCI and that she was not active in the

business. When Wendy was asked to sign something, she would ask William questions and then

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sign the document if she was comfortable, though she also stated that she was given perfunctory

explanations. Additionally, Wendy was unfamiliar with numerous aspects of SCI and WSM.

Wendy testified that she "probably would not have paid attention" or did not remember that SCI

was the general partner of various limited partnerships, which was a key feature of SCI. She did

not know the amount of management fees that SCI received and stated that she would not know

about any agreements between SCI and the limited partnerships. As to WSM, Wendy did not

know when or why it was formed and did not recall being elected WSM's sole director. Wendy

also did not recall attending meetings for SCI or WSM, though William testified to the existence

of these meetings. Wendy's almost complete disengagement from SCI and WSM, except on

paper, suggests that she was nonfunctioning.

¶ 115 Finally, we consider whether SCI and WSM were mere façades for the dominant

stockholders. As to this factor, we agree with the trial court that SCI and WSM had a separate

corporate existence from William. SCI and WSM had employees, filed tax returns, and

functioned in their business of real estate management. SCI had existed since 1989 and records

presented at trial showed that it had a track record of generating revenue. WSM, once it took

over the management business, also generated positive revenue and appeared to actually manage

properties, even though its origins were suspect. Though William controlled both entities, and at

one point used WSM to avoid a judgment against SCI, it was not against the manifest weight of

the evidence to find that they were functioning businesses that had a history of performing

specific functions, rather than mere shields for personal liability.

¶ 116 Overall, there was not such a unity of interest and ownership such that the separate

personalities of SCI and William, and WSM and William, did not exist. See Fiumetto, 321 Ill.

App. 3d at 958. Though SCI and WSM had a nonfunctioning director or officer and SCI

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diverted assets to WSM, the two entities still maintained separate identities from William. It was

not unreasonable or arbitrary to find that the entities kept records and observed corporate

formalities, albeit imperfectly, were adequately capitalized to serve their purposes, kept funds

separate from William and Wendy's personal expenses, and were solvent while operating.

Although we found that SCI violated the Fraudulent Transfer Act, here we considered the

different question of whether William used SCI and WSM merely as an instrumentality to

conduct his own business. See Peetoom, 334 Ill. App. 3d at 527. We acknowledge that SCI and

WSM were not perfect, but plaintiff had to make a substantial showing that they were a dummy

or sham for William (see Jacobson, 278 Ill. App. 3d at 1088), which it failed to do. Based on the

consideration of the factors discussed above, the trial court's finding that William was not an

alter ego for SCI and WSM was not against the manifest weight of the evidence.

¶ 117 F. Attorney Fees

¶ 118 Lastly, defendants assert that the trial court should not have awarded attorney fees against

SCI, WSM, and Anderson because there was no statutory authority for doing so and none of

those entities had a contract with the bank that provided for attorney fees. Defendants argue that

the Fraudulent Transfer Act (740 ILCS 160/1 et seq. (West 2006)) does not authorize fee awards.

Additionally, defendants contend that WALP was the obligated party responsible for fees in the

Kansas case and no other defendants agreed to fee-shifting. Defendants further argue that the fee

petition was required to differentiate between the hours spent on fee-shifting claims and fees

sought pursuant to a statute. Additionally, defendants assert that the court should have reduced

the fees because plaintiff did not prevail on all claims, the fee petition contained vague and ill-

defined tasks, and the fee petition contained improper overhead, such as travel expenses, long

distance charges, computerized legal research, paralegal and secretarial work, and copying

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expenses. Defendants also assert that the court did not entertain their request for an evidentiary

hearing.

¶ 119 Generally, Illinois courts follow the "American Rule," which provides that each party

must bear its own attorney fees and costs, absent statutory authority or a contractual agreement.

Country Mutual Insurance Co. v. Styck's Body Shop, Inc., 396 Ill. App. 3d 241, 251 (2009).

Additionally, a trial court has broad discretion in awarding attorney fees, and we will not reverse

a decision about attorney fees absent an abuse of that discretion. Timan v. Ourada, 2012 IL App

(2d) 100834, ¶ 29.

¶ 120 There are two grounds that plaintiff relies on to justify its attorney fees: the Fraudulent

Transfer Act (740 ILCS 160/1 et seq. (West 2006)) and the Kansas judgment and underlying

loan documents. Initially, we note that a statute or contract must allow for attorney fees by

specific language, such that the provision at issue must specifically state that "attorney fees" are

recoverable. Negro Nest, LLC v. Mid-Northern Management, Inc., 362 Ill. App. 3d 640, 642

(2005).

¶ 121 We disagree with plaintiff's contention that attorney fees are recoverable as punitive

damages under the Fraudulent Transfer Act. Plaintiff cites section 8 of the Fraudulent Transfer

Act, which states that a creditor may obtain "any other relief the circumstances may require"

(740 ILCS 160/8(a)(3)(C) (West 2006)), and asserts that Illinois permits trial courts to award

punitive damages. However, plaintiff has failed to provide an Illinois case where attorney fees

were granted under the Fraudulent Transfer Act. In fact, two cases have specifically rejected

such claims, though we acknowledge that those two cases predate the current version of the

Fraudulent Transfer Act. See Kardynalski v. Fisher, 135 Ill. App. 3d 643, 649 (1985) (denying

plaintiff's claim for attorney fees "for want of statutory authority"); Anderson v. Ferris, 128 Ill.

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App. 3d 149, 156 (1984) (plaintiff not entitled to attorney fees where complaint neither

specifically sought punitive damages nor did plaintiff cite any Illinois authority that would

authorize such damages for this type of action). Although here, plaintiff sought punitive

damages in its complaint, the circumstance remains that the current version of the Fraudulent

Transfer Act does not specify that attorney fees are recoverable and Illinois courts generally

refuse to allow recovery for attorney fees unless the statute specifically states that "attorney fees"

are recoverable. See Negro Nest, LLC, 362 Ill. App. 3d at 649. We decline to follow plaintiff's

cited cases from other states that provide for attorney fees or punitive damages for a fraudulent

transfer claim. Though out-of-state cases should be examined when relevant, decisions of the

reviewing courts of foreign jurisdictions are not binding on Illinois courts. See Skipper Marine

Electronics, Inc. v. United Parcel Service, Inc., 210 Ill. App. 3d 231, 239 (1991).

¶ 122 Plaintiff also contends that the Kansas judgment and underlying loan documents permit

attorney fees. This argument has some merit. The mortgage note stated that if it became

necessary to employ counsel to collect or enforce the debt or protect or foreclose the security for

the debt, the "Maker also shall pay on demand all costs of collection ***, including attorneys'

fees and costs reasonably incurred for the services of counsel." SCI signed the note as WALP's

general partner. The Kansas court subsequently found SCI jointly and severally liable for all of

WALP's debts, obligations, and judgments, which included attorney fees. The judgment also

provided for "other expenses accrued and accruing, including reasonable attorneys' fees" and

stated that plaintiff had incurred and would continue to incur substantial costs in attempting to

collect the judgment, including the "reasonable attorneys' fees related to Plaintiff's collection

efforts." As plaintiff asserts, this language could justify an award of attorney fees both for the

Kansas judgment and the proceedings in Cook County to enforce that judgment. See Poilevey v.

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Spivack, 368 Ill. App. 3d 412, 416 (2006) (judgment supported award of postjudgment attorney

fees where one clause specifically awarded specific amount of fees and costs and other clause

provided for " 'reimbursement for reasonable attorney fees and costs of collection' ").

Additionally, it could be argued that because WSM was found to be a mere continuation of SCI,

it could also be held responsible for attorney fees. A corporation that went "through a mere

change in form without a significant change in substance *** should not be allowed to escape

liability." (Internal quotation marks omitted.) Vernon v. Schuster, 179 Ill. 2d 338, 346 (1997).

¶ 123 At the same time, the Kansas judgment provided for "reasonable attorneys' fees related to

[plaintiff's] collection efforts," and the trial court's ruling did not explain whether the entirety of

the proceedings in Cook County fell into that category. This matter involved years of litigation

over a number of issues, and yet the court's orders on fees were sparse and did not indicate on

what basis plaintiff was awarded fees against SCI, WSM, and Anderson. It would have been

particularly helpful to have the court's reasoning where Anderson was not found to be a mere

continuation of another Spatz-related entity. Where, as here, we review the court's fee order for

an abuse of discretion (Timan, 2012 IL App (2d) 100834, ¶ 29), we decline to speculate how

broad the reach of the Kansas judgment and loan documents are without some explanation from

the trial court.

¶ 124 Further, the court's order does not contain any indication of whether the requested fees

were reasonable, an inquiry that involves multiple considerations. Only those fees that are

reasonable are allowed, the determination of which is left to the trial court's sound discretion.

Kaiser v. MEPC American Properties, Inc., 164 Ill. App. 3d 978, 983 (1987). Further, the party

seeking the fees always bears the burden of presenting sufficient evidence from which the trial

court can render a decision as to their reasonableness. Id. Rather than presenting a mere

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compilation of hours multiplied by a fixed hourly rate or bills issued to the client, the petition for

fees must specify the services performed, by whom they were performed, the time expended, and

the hourly rate charged. Id. at 984. The trial court should also consider a variety of additional

factors, such as the skill and standing of the attorneys, the nature of the case, the novelty and/or

difficulty of the issues and work involved, the matter's importance, the degree of responsibility

required, the usual and customary charges for comparable services, and the benefit to the client.

Id. Additionally, the trial court "should also consider whether there is a reasonable connection

between the fees and the amount involved in the litigation." (Internal quotation marks omitted.)

Heller Financial, Inc. v. Johns-Byrne Co., 264 Ill. App. 3d 681, 691 (1994).

¶ 125 Additionally, where a case involves some claims filed pursuant to statutes that allow for

attorney fees and others not, the fee petition must distinguish between the hours spent on the

statutory fee-shifting claims and the other claims. Country Mutual Insurance Co., 396 Ill. App.

3d at 252. Moreover, one factor that may shift an award of fees upward or downward is the

result that the plaintiff obtained, which is an important consideration when the plaintiff only

prevailed on some of its claims. Id. at 253. There, the court must decide whether the

unsuccessful claims were related to the successful claims and whether based on the level of

success achieved, the hours reasonably expended were a satisfactory basis for making a fee

award. Id.

¶ 126 As to overhead expenses, which defendants also challenge as appearing in plaintiff's fee

petition, we note that expenses that an attorney regularly incurs regardless of specific litigation,

including telephone charges, in-house delivery charges, in-house photocopying, check

processing, newspaper subscriptions, and in-house paralegal and secretarial assistance, are not

recoverable as costs of litigation. Johnson v. Thomas, 342 Ill. App. 3d 382, 401 (2003). These

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overhead expenses refer mainly to fixed expenses that are already reflected in an attorney's

hourly rate and should not be apportioned to any single cause of action so as to constitute an

additional charge. Id. at 402. However, this definition of overhead does not include charges for

expenses specially incurred to third parties specifically in furtherance of a particular cause of

action. Id. As an aside, the fee for computerized legal research does not fall neatly within the

categories of overhead versus outside expenditures and some courts have made a distinction

based on the billing method for each individual case. Id. at 403.

¶ 127 Here, the record does not indicate whether the trial court considered any of the above

factors when it ruled on plaintiff's fee petition. As noted above, plaintiff's actual fee petition was

not in the record, which makes it unclear on what specific bases plaintiff sought fees. Moreover,

plaintiff did not respond in its reply brief to defendants' arguments regarding the reasonableness

of the requested fees. Also troubling is that defendants were apparently denied an evidentiary

hearing that they requested in their response to plaintiff's fee petition. The purpose of an

evidentiary hearing is to provide sufficient information to allow the court to assess intelligently

the reasonableness of the fees charged (Heller Financial, Inc., 264 Ill. App. 3d at 691), which

would have been quite helpful here. Although a previous order stated that a hearing was

scheduled, the court's orders of June 25, 2013, and July 10, 2013, both orders indicate that the

court heard "arguments" from the parties and do not mention a hearing or state that the fees were

found to be reasonable. Generally, in protracted litigation involving multiple complex issues, an

evidentiary hearing should be conducted on the request of the losing party, especially if the

prevailing party was represented by multiple attorneys, which may have resulted in duplicative

charges, and where the prevailing party was entitled to fees and costs with respect to some

claims, but not others. Trossman v. Philipsborn, 373 Ill. App. 3d 1020, 1058 (2007). Both of

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those circumstances were at play in this matter. See also Bank of America National Trust &

Savings Ass'n v. Schulson, 305 Ill. App. 3d 941, 952 (1999) (when a party who must pay attorney

fees asks for an evidentiary hearing, he is entitled to one). Moreover, the reasonableness of fees

is a matter of proof, and a party ordered to pay attorney fees has the right to conduct meaningful

cross-examination on the issue (id.), which apparently did not occur here.

¶ 128 The trial court's order leaves many unanswered questions. The appendix to the fee

petition was voluminous, it contained charges that appear to qualify as overhead expenses, and

many of the entries are redacted. The record does not contain reports of proceedings for June 25,

2013, and July 10, 2013, when the orders related to the fee petition were entered. The trial

court's orders gave no indication of the basis for awarding fees or whether it considered the many

factors at work in deciding whether the attorney fee award was reasonable, and yet plaintiff was

awarded all of its requested fees. We recognize that it is the appellant's burden to present a

sufficiently complete record of the proceedings at trial to support a claim of error, and that in the

absence of such a record on appeal, it will be presumed that the order entered by the trial court

was in conformity with the law and had a sufficient factual basis. Foutch, 99 Ill. 2d at 391-92.

At the same time, trial judges must also justify the substance of their decisions, either orally or in

writing, and explaining a ruling instills confidence in the impartiality and fairness of the judge

and enhances respect for the courts. Turczak v. First American Bank, 2013 IL App (1st) 121964,

¶ 19. Here, because the court's orders give no indication of the basis for its decision, contained

no finding of whether the fees were reasonable, and at the very least, a number of entries in the

fee petition appendix appear suspect, we simply cannot determine whether the trial court abused

its discretion. But cf. Chicago Title & Trust Co. v. Chicago Title & Trust Co., 248 Ill. App. 3d

1065, 1072-73 (1993) (although defendants did not provide transcript of the hearing or of the

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trial judge's comments when fees were awarded, the court made an independent assessment of

the propriety of fees where it appeared that the court carefully examined the affidavits and time

records submitted, the order specified that the award represented a reasonable fee, and there were

no affidavits or testimony that contradicted the trial court's finding). Accordingly, we vacate the

fee award and remand the matter to the trial court to explain the basis for awarding fees and for

an evidentiary hearing on attorney fees.

¶ 129 III. CONCLUSION

¶ 130 For the foregoing reasons, we affirm the circuit court's judgment on the issues of

collateral estoppel, the Fraudulent Transfer Act, and alter ego. We vacate the fee award and

remand on the issue of attorney fees.

¶ 131 Affirmed in part; vacated and remanded in part.

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