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Neumann v. Neumann

September 25, 2002

GREGORY NEUMANN, PLAINTIFF-APPELLEE
v.
KENNETH NEUMANN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 12th Judicial Circuit, Will County, Illinois No. 93--CH--5259 Honorable Thomas M. Ewert Amy Bertani-Tomczak Judges, Presiding

The opinion of the court was delivered by: Justice Breslin.

MODIFIED ON DENIAL OF REHEARING

This appeal springs from an action for an accounting, dissolution of a partnership, and a claim for breach of fiduciary duty filed by plaintiff Gregory Neumann against his brother and partner Kenneth Neumann. After many years of litigation, the trial court dissolved the partnership and entered an order on September 28, 2000 making final determinations regarding the accounting, the dissolution of the partnership, the splitting of the assets and a finding of breach of fiduciary duty on the part of defendant Kenneth. All that remained to be done was the sale of the partnership real estate and equipment and the setting of prejudgment interest.

In March of 2001 Kenneth filed a motion to vacate the September 28, 2000 order. The trial court denied the motion, finding that the September 28, 2000 order was final and appealable and that Kenneth was barred from appealing it because he did not appeal within 30 days of its entry. Kenneth appealed both the denial of the motion to vacate and the award of prejudgment interest. We affirm the trial court and hold that an order entered in a partnership dissolution that disposes of the merits of the case and finally determines the rights and obligations of the parties is final and appealable and must be appealed within 30 days pursuant to Supreme Court Rule 304(b)(2). 155 Ill. 2d R. 304(b)(2). We also hold that a partner's breach of fiduciary duty does not preclude the court from awarding him prejudgment interest based on equitable considerations.

FACTS

Gregory and Kenneth were equal partners in Neumann's Nursery. Trouble started between the brothers over a decade ago. After a bench trial and by agreed order, the court appointed a receiver to value the partnership property, wind down partnership affairs, and liquidate partnership assets. The receiver filed her report in October of 1999. Both parties filed written objections to the receiver's report, and a hearing was held to consider the objections, question the receiver, and present witnesses to rebut her findings.

Following the hearing, the trial court held that Kenneth had breached his fiduciary duty to Gregory and entered an order on September 28, 2000 which granted partial judgment in favor of Gregory in the amount of $775,246.73. The order resolved all partnership issues but reserved the question of prejudgment interest and execution of the sale of certain equipment and partnership land. In February of 2001, the court entered an order awarding $689,823 in prejudgment interest to Gregory and entered a nunc pro tunc order awarding $7,048 to Gregory for reimbursement for partnership expenses. Kenneth appealed. A motion to dismiss filed by Gregory was taken with the case.

ANALYSIS

The first issue we must resolve is whether Kenneth's appeal of the September 28, 2000, order is barred because it is untimely. Gregory argues that the trial court's September 28, 2000 judgment was a final and appealable order and that Kenneth's failure to appeal from it within 30 days precludes him from appealing it now.

A judgment entered in the administration of a receivership, liquidation, or similar proceeding that does not dispose of an entire proceeding but which finally determines a right or status of a party is appealable under Supreme Court Rule 304(b)(2) within 30 days after its entry. 155 Ill. 2d R. 304(b)(2); 155 Ill 2d R. 303(a) (1). A final judgment is one that disposes of the rights of the parties so that if the judgment is affirmed, nothing remains for the trial court to do but proceed with execution of the judgment. Kim v. Alvey, Inc., 322 Ill. App. 3d 657, 749 N.E.2d 368 (2001).

In its September 28, 2000 order the trial court made specific findings regarding all partnership issues. The order determined the judgment amount that Kenneth owed Gregory. Proceeds from the real estate and equipment sales were to be used to adjust the accounts between the brothers. The only details that remained were those which were required to enforce the already decided issues, i.e., the realty and personalty sales. The court also needed to make a determination regarding Gregory's request for prejudgment interest. In our view, the order disposed of the rights of the parties and was final and appealable as nothing remained for the trial court to do except implement its order. Because Kenneth did not appeal from that order within 30 days, he is precluded from appealing those issues now. See McCaffrey v. Nauman, 204 Ill. App. 3d 761, 562 N.E.2d 628 (1990) (holding that an order which finally determines the rights of the parties in a partnership dissolution must be appealed within 30 days).

Kenneth cites McCaffrey v. Nauman, 204 Ill. App. 3d 761, 562 N.E.2d 628 (1990) as an example of a final and appealable order and maintains that this case is not like McCaffrey. In McCaffrey, 204 Ill. App. 3d at 764, 562 N.E.2d at 630, what remained to be done after the order at issue was entered was the real estate closing, the distribution of the sale proceeds, and the filing of the receiver's report regarding the sale. The court retained jurisdiction merely to implement its order. McCaffrey, 204 Ill. App. 3d at 764, 562 N.E.2d at 630.

Unlike McCaffrey, at the time the September 28, 2000 order was entered in this case, no purchasers had been specifically identified. Nevertheless, the order in this case left no doubt that at the November 8 hearing the equipment would be sold and real estate offers would be considered and acted upon. The order stated that the proceeds from the sales would be used to adjust the brothers' accounts. As in McCaffrey, all that remained to be done after entry of the September 28, 2000 order was for the court to implement it.

Kenneth also urges us to follow Hildebrand v. Topping, 240 Ill. App. 3d 104, 608 N.E.2d 119 (1992), which he maintains supports his argument. In that case the trial court retained jurisdiction after it had entered the order at issue to oversee the wind-up of partnership affairs, the final accounting and the sale of real estate. Hildebrand, 240 Ill. App. 3d at 107, 608 N.E.2d at 122. To determine whether the order was final and appealable, the court looked at the nature of the conflict and the effect that the order in question had on the conflict. Hildebrand, 240 Ill. App. 3d at 108, 608 N.E.2d at 122. The reviewing court found that the order was not final and appealable because it was intertwined with the final accounting that was still pending. Hildebrand, 240 Ill. App. 3d at 108, 608 N.E.2d at 122. Hildebrand is distinguishable from the present case in ...


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