|
Golden v. McDermott, Will & Emery, No. 1-97-3799 1st Dist. Corrected Opinion 9-30-98 |
SECOND DIVISON
SEPTEMBER 30, 1998
Corrected Opinion
1-97-3799
Plaintiff-Appellant, v. McDERMOTT, WILL & EMERY; ROBERT
B. McDERMOTT; WILBER H. BOIES;
LAWRENCE McDERMOTT, WILL &
EMERY; ROBERT B. GERBER;
CHARLES E. HUSSEY, II; H.
GEORGE MANN; JOHN H. McDERMOTT;
STANLEY H. MEADOWS; JAMES M.
ROCHE; JAMES E. BETKE; DOUGLAS
M. REIMER; ROBERT B. McDERMOTT,
P.C.; WILBER H. BOIES, P.C.;
LAWRENCE GERBER, P.C.; H.
GEORGE MANN, P.C.; JOHN H.
McDERMOTT, P.C.; STANLEY H.
MEADOWS, P.C.; JAMES M. ROCHE,
P.C.; JAMES E. BETKE, P.C.;
DOUGLAS M. REIMER, P.C. Defendants-Appellees No. 97 L 15106 THE HONORABLE RICHARD E. NEVILLE, JUDGE PRESIDING JUSTICE COUSINS delivered the opinion of the court: Bruce Golden, the appellant, filed suit against the appellees,
law firm McDermott, Will & Emery, as well as certain partners in
their individual capacities. Golden alleged that the appellees
breached the partnership agreement by expelling him in
contravention of specified procedures, breached their fiduciary
duty as co-partners and committed fraud in misrepresenting and
withholding information from him while his severance agreement
was being negotiated, and breached the severance agreement by not
paying him the full amount due under it. Upon a section 2-619 (735 5/2--619 (West 1994)) motion by
appellees, the judge dismissed the complaint on the basis of
various defenses, including the statute of limitations and a
release signed by Golden as part of the severance agreement.
Golden appeals, claiming that the trial court erred in granting
the motion to dismiss his complaint. The plaintiff's complaint
alleged, inter alia, (1) breach of contract, (2) breach of
fiduciary duty, and (3) duress. The plaintiff also contends that
the trial court erred in not allowing him leave to amend his
complaint a third time. We affirm. BACKGROUND The appellant, Bruce Golden, is a securities lawyer who worked
for the appellee law firm McDermott, Will & Emery (MWE) for 21
years. He joined the firm in 1970, was made an income partner in
1976 and was made a capital partner in 1981. Among the clients he
brought to MWE were a public real estate syndicator known as
Avanti Associates (Avanti), and its promoter, Timothy Sasak. In 1989, a class action suit (the Avanti suit) was brought
against Sasak and Avanti for, among other things, violation of
securities laws in the sale of its partnership assets. MWE was
also named as a defendant. The plaintiffs sought to recover $120
million from MWE. Golden alleges that shortly prior to the Avanti suit, MWE
obtained a malpractice insurance policy with Attorney's Liability
Assurance Society, Ltd. (ALAS). The claims from the Avanti suit
were the first that ALAS had to pay out for MWE, and ALAS said
that those claims were the largest it had ever been required to
cover for any firm. Golden also alleges that ALAS was hesitant to renew MWE's
insurance policy as a result of the Avanti suit and that MWE had
talks with ALAS in order to save its coverage. ALAS, he alleges,
wanted him removed from the firm, and MWE acceded. MWE postponed
his termination, Golden claims, because it needed his cooperation
in the Avanti litigation. Golden further alleges that from the time of the Avanti suit MWE
began to limit his participation in partnership business and
reduced his partnership interest. In particular, he alleges the
following: (1) around the beginning of 1990, he was told that
John McDermott, a partner of MWE and a named defendant in this
suit, had directed that he not be given any more work for United
Airlines, a major MWE client for which Golden had been doing much
work; (2) from that time he was not given any "meaningful
assignments" with United or any other MWE client; (3) John
McDermott told him that he should not bring in any new business
and McDermott also took over his contact list, purportedly in
order to ease his workload; and (4) late in 1990, partner Robert
McDermott suggested that he look into non-legal careers. In January 1991, the firm reduced Golden's partnership units by a
third. Golden's compensation was based upon these units, as was
the amount he would receive in a severance package. The Avanti litigation settled on July 18, 1991. The next day,
partners Stanley Meadows and James Roche, also defendants in this
action, informed Golden that he was being fired but that the firm
would give him the opportunity to resign first. At that meeting
Golden was told that the reason for his firing was "lack of
production," although he says that Meadows later informed him in
confidence that pressure from ALAS was the real reason. Over the next few months Golden and the firm worked out a
severance agreement to settle his accounts. The severance
agreement contained the following release clause: In consideration for the release, MWE gave Golden a one-time
payment of $225,000 minus the amount of his draw subsequent to
October 31, 1991. Golden claims that MWE deducted more than this
amount from the $225,000, although he did not specify the amount
of the excess deduction. At Golden's behest, a provision was also
included in the agreement that would allow him to sue ALAS for
getting him fired. Golden claims that in the negotiations MWE falsely told him that
his severance payment was the largest given to any terminated
partner and was the same amount that he would have gotten had he
resigned voluntarily. He also claims that MWE concealed the fact
that no vote had been taken on his expulsion, as was mandated by
the partnership agreement. Around the time that Golden signed the severance agreement, he
was having personal problems. He had just lost a lawsuit
concerning a major defect in a house he had bought. His wife's
employer had died, and, as a result, she also was out of work.
Golden sought counseling. He says that the mental health
professional reported that the termination had left Golden
"paranoid," "fragmented," having "major depression, recurrent"
and as "dysfunctional" with "chaos reigning supreme." On November 7, 1991, Meadows told Golden that the management
committee had not taken a vote on his expulsion. He told Golden
that he would have difficulty finding new legal employment,
because ALAS had "blacklisted" him. Golden says that Meadows also
told him at some time during negotiations that "he was personally
embarrassed by [the proposed settlement agreement's] burdensome
language, and that no other partner had ever been asked to sign
such a harsh document." Golden took out a lease on an office at what he claims to be a
grossly inflated rent. He says that he took an "of counsel"
position with another law firm but received no compensation for
it. In January of 1992, MWE tendered, and Golden accepted, payment of
money due under the severance agreement. In December 1995, Golden filed suit against ALAS. He alleges
that he learned facts in discovery that led him, on December 30,
1996, to file the instant action against MWE and some of its
partners. In February of 1997, MWE partner James Roche was
deposed in the ALAS case. Golden alleges that many facts
important to his case came to light only as of the time of this
deposition. Golden's complaint alleged, inter alia, that MWE breached the
severance agreement by not paying him the full amount due under
it; that MWE violated the partnership agreement by not following
the termination procedure outlined therein; and that the
defendant partners violated their fiduciary duty to him as
co-partners and committed fraud on him. He asked for damages, as
well as a dissolution and accounting of the firm. Golden argued that the release that he signed was voidable
because it was signed under moral and economic duress, and
because the defendants withheld and misrepresented facts to him
in negotiations, in violation of their fiduciary duty. The trial court allowed two amendments to the complaint, but,
upon a section 2-619 motion by the defendants, dismissed it
rather than allow a third. This dismissal was based on several
affirmative defenses pled by MWE. First, MWE argued that the
contract claims were barred by the release and any other claims
were barred by laches or the statute of limitations. They argued
that the trial court should dismiss the claim for breach of the
severance agreement because of laches, ratification and the fact
that it was not pled with sufficient particularity despite
Golden's three opportunities to do so. The trial court agreed with the defendants and dismissed the
complaint. It held that the claim for the breach of the severance
agreement was not adequately pled, that the claim for breach of
the partnership agreement was barred by the release, and that the
other claims were barred by the statute of limitations. ANALYSIS This case comes to us on appeal from a section 2-619 dismissal,
and, accordingly, we must accept well-pled allegations in
Golden's complaint as true. 735 ILCS 5/2--619 (West 1994); Elliot
v. LRSL Enterprises, Inc., 226 Ill. App. 3d 724, 589 N.E.2d 1074
(1992). But while a court generally must accept all well-pled
facts as true in this situation, it does not have to accept
conclusions of law or conclusions of fact not supported by
factual allegations. Nikolic v. Seidenberg, 242 Ill. App. 3d 96,
610 N.E.2d 177 (1993). Golden contends that the release cannot bar his claims because
MWE obtained the release by withholding and misrepresenting facts
in violation of its fiduciary duty. If MWE had withheld material
facts, it would have made the release voidable. Parties in a
fiduciary relationship owe one another a duty of full disclosure
of material facts when making a settlement and obtaining a
release. Janci v. Cerny, 287 Ill. 359, 365-66, 122 N.E. 507, 509
(1919). MWE contends that it did not breach a fiduciary duty to Golden in
negotiations, because the partnership with Golden had dissolved
at that point and a fiduciary duty among partners ends upon
dissolution. The Uniform Partnership Act defines "dissolution" as
"the change in the relation of the partners caused by any partner
ceasing to be associated in the carrying on, as distinguished
from the winding up of the business." 805 ILCS 205/29 (West
1994). Dissolution can be effected by the express will of any
party, even if in contravention of the partnership agreement.
Bluestein v. Davis, 86 Ill. App. 2d 61, 67 280 N.E.2d 61, 64
(1967). MWE contends that dissolution occurred on July 19, 1991. Relative
to MWE's contention, the record establishes that the defendants
had already forbidden Golden from taking on any more new
business. So, the work he was doing was being limited before July
19, 1991. Then, on July 19, the defendants communicated to Golden
that he was being fired but would be allowed to resign.
Therefore, MWE contends that dissolution was complete on July 19.
We agree. However, even were dissolution not complete on July 19,
it is clear that dissolution occurred by October 19, 1991, when
Golden signed the agreement. There is a conflict of authority in Illinois as to whether a
fiduciary relationship among partners ceases upon dissolution of
the partnership. MWE relies on Babray v. Carlino, 2 Ill. App. 3d
241, 276 N.E.2d 435 (1971), for the proposition that the
obligations end upon dissolution. In Babray, the plaintiff and the defendant were partners
operating a motel. The defendant bought out the plaintiff's
interest and obtained a release from any claims relating to the
partnership. Over four years later the plaintiff sued for an
accounting. She sought to avoid the release on the basis that the
defendant had violated his fiduciary duty to her by withholding
facts during negotiations. The court held that there was no
breach of fiduciary duty since fiduciary duty ended upon
dissolution. It went on to add that, even if there had been a
fiduciary duty, the release would still stand, since the
information withheld was "hardly a matter of crucial
materiality," and the transaction was fair. Babray, 2 Ill. App.
3d at 252. Among the cases Golden relies upon is Burtell v. First Charter
Service Corp. 76 Ill. 2d 427, 394 N.E.2d 380 (1979). In Burtell,
the plaintiff and defendant were joint venturers holding real
estate for development. With the consent of the plaintiff, the
defendant sold the property, and the parties reached a private
accounting. The defendant did not disclose, however, that it had
given a purchase money mortgage on the property. The plaintiff
later discovered this and sued for an accounting of payments
under the mortgage. The defendant argued that the agreement to
dispose of the partnership assets dissolved the partnership and
that it no longer had a duty to disclose or account for profits
after the sale was agreed upon. The supreme court rejected this
argument, holding that a joint venturer could be entitled to an
accounting of profits made after dissolution. A fiduciary
relationship exists between members of a joint venture. Thus, in
this case a fiduciary relationship existed between plaintiff and
First Charter. (Reese v.Melahn 53 Ill. 2d 508, 513 (1973)). When
a joint venture is found to exist, the legal principles
pertaining to the relationship between partners govern. Section
21 (1) of the Uniform Partnership Act (Ill. Rev. Stat. 1975, ch.
106½, par. 21(1)) provides: Furthermore, the provision of the Uniform Partnership Act (Act)
cited above (805 ILCS 205/21(1)(West 1994)) implies that some
fiduciary obligations continue after dissolution. Partners hold
as trustees for the others benefits acquired from the liquidation
of the partnership, which would be after the dissolution of the
partnership. In our view, the better rule is that partners stand in a
fiduciary relationship to one another after dissolution, but only
as regards winding up and accounting. Bane v. Furgeson, 707 F.
Supp. 988 (N.D. Ill. 1989). They do not have to account for new
business that they start. Bluestein v. Davis, 86 Ill. App. 2d 61,
280 N.E.2d 61 (1967). Under the Act, partners still have
authority to bind the partnership after dissolution, but only as
regards winding up and liquidation. 805 ILCS 205/33, 35 (West
1994). Since the partners are still agents after dissolution with
regard to these matters, it follows that they are also
fiduciaries, because "[a]n agent is a fiduciary with respect to
matters within the scope of his agency." Restatement (Second) of
Agency §13 (1958); In re Rosenbaum Grain Corp., 103 F.2d 656, 661
(7th Cir. 1939). We find that MWE stood in a fiduciary relationship to Golden at
the time of the severance agreement, at least for the purposes of
their private accounting. See Kurti v. Fox Valley Radiologists,
Ltd., 124 Ill. App. 3d 933, 938-39, 464, N.E.2d 1219 (1984) ("The
existence of a confidential relationship is not precluded by the
fact that plaintiff had been notified of his impending
termination *** Indeed, the need to prevent a fiduciary from
taking improper advantage of the dislocation attendant upon the
ending of a confidential relationship requires that fiduciary
principles be observed so long as the relationship continues").
Thus, the fiduciary relationship continued until the winding up
was completed with the private accounting entered into on October
19, 1991. Nevertheless, the agreement would only be voidable if MWE had
withheld facts that were material to the transaction. Janci, 287
Ill. at 365-66; See also 29 Ill. L & Prac. Partnership §268
(1957). A fact is material if the plaintiff would have acted
differently had he been aware of it. Kleinwort Benson North
America, Inc. v. Quantum Financial Services, Inc., 285 Ill. App.
3d 201, 673 N.E.2d 369 (1996). In our view, the alleged
misrepresentations on MWE's part were not material to the
agreement. On the issue of duress, we agree with the trial court that
Golden's allegations were insufficient to make out a claim.
Golden alleges three closely related types of duress. First he
claims that MWE coerced him by threatening to fire him. Then he
says that it practiced economic duress (also known as "business
compulsion") by taking unfair advantage of his financial and
personal difficulties. Finally he alleges moral duress. Although there are several proposed definitions of duress, the
supreme court has defined it as "a condition where one is induced
by a wrongful act or threat of another to make a contract under
circumstances which deprive him of the exercise of his free
will." Kaplan v. Kaplan, 25 Ill. 2d 181, 185, 182 N.E.2d 706
(1962). MWE contends that the pressure it applied to Golden did
not constitute duress, because it was not wrongful. MWE argues that it had a right to expel Golden without cause and
that it cannot be duress for it to threaten to do what it has a
legal right to do. Illinois cases support MWE's position, e.g.,
Butler v. Metz, Train, Olson & Youngren, Inc., 62 Ill. App. 3d
424, 379 N.E.2d 1255 (1978). But while it is true that one must
threaten "wrongful" action in order to be guilty of duress, the
landmark supreme court case on duress, Kaplan v. Kaplan, 25 Ill.
2d 181, 186, 182 N.E.2d 706 (1962), says that the meaning of
"wrongful" is "not limited to acts that are criminal, tortious or
in violation of a contractual duty, but extends to acts that are
wrongful in a moral sense." Kaplan, 25 Ill. 2d at 186. So even
though an employee may be terminable at will, it is not
impossible for the threat of discharge to constitute duress.
Laemmer v. J. Walter Thompson Co., 435 F.2d 680, 682 (7th Cir.
1970); Mitchell v. C.C. Sanitation Co., 430 S.W.2d 933 (Tex. Civ.
App. 1968); see also Annotation, What Constitutes Duress by
Employer or Former Employer Vitiating Employee's Release of
Employer from Claims Arising out of Employment, 30 A.L.R.4th 294
(1984). On the other hand, it is not wrongful, and does not constitute
duress for an employer to give an employee who is about to be
fired the option to resign. Enslen v. Village of Lombard, 128
Ill. App. 3d 531, 533, 470 N.E.2d 1188 (1984). "It would be a
dangerous doctrine to hold that to offer an employee a choice of
resigning or accepting a discharge would amount to such
compulsion that the employee could avoid his resignation for
duress." Fox v. Piercy, 119 Utah 369, 376, 227 P.2d 763, 767
(1951). Golden cites Oglesby v. Coca-Cola Bottling Co., 620 F. Supp. 1336
(N.D. Ill. 1985), a case under the Age Discrimination in
Employment Act of 1967 (29 U.S.C. §§629 through 634 (1994)) that
seems contrary to this principle. See also Massi v. Blue Cross &
Blue Shield Mutual, 765 F. Supp. 904 (N.D. Ohio 1991). In our
view, Oglesby is distinguishable. Oglesby held that a "resign or
be fired" choice could be duress. Oglesby, 620 F.2d at 1342. In
that case, however, a condition of resignation was the signing of
a release that the employee was not given an adequate opportunity
to read, much less negotiate. The plaintiff did not have a chance
to get legal advice concerning his dilemma. He was forced to
choose on the spot between termination or resignation coupled
with a mysterious agreement. Oglesby, 620 F.2d. at 1342. So, even
if the choice of "resign or be fired" can constitute duress, the
choice was not sufficient to constitute duress under the facts as
alleged here. Golden next alleges economic duress or business compulsion.
Economic duress occurs where "undue or unjust advantage has been
taken of a person's economic necessity or distress to coerce him
into making the agreement." 12 Ill. L & Prac. Contracts §142
(1983). These dire circumstances must be such as to overbear the
will of the plaintiff. Higgins v. Brunswick Corp., 76 Ill. App.
3d 273, 277, 395 N.E.2d 81 (1979). Whether the circumstances did
in fact overbear the plaintiff's will is ordinarily a question of
fact. Slade v. Slade, 310 Ill. App. 77, 82, 33 N.E.2d 951 (1941).
However, it is not enough for economic duress that the plaintiff
be in great financial or personal difficulty. The defendant must
have been in some way responsible for that difficulty. "'[A]
duress claim of this nature must be based on the acts or conduct
of the other party and not merely on the necessities of the
purported victim.'" Alexander v. Standard Oil Co., 97 Ill. App.
3d 809, 815, 423 N.E.2d 578, 583 (1981), (quoting Chouinard v.
Chouinard, 568 F.2d 430, 434 (5th Cir. 1978)); see also Higgins,
76 Ill. App. 3d at 278. Assuming, under the facts as alleged, that MWE and the defendant
partners were partially responsible for some of Golden's
troubles, they still were not responsible for the death of his
wife's employer, the loss of her job, or the loss of the lawsuit
concerning Golden's house. In our view, the claim of duress
lacked this necessary element of responsibility on the part of
defendants for the plaintiff's circumstances. See Alexander, 97
Ill. App. 3d at 815. Finally, Golden alleges moral duress. Moral duress is quite
similar to economic duress. It "consists in imposition,
oppression, undue influence, or the taking of undue advantage of
the business or financial stress or extreme necessities or
weaknesses of another." People ex rel. Buell v. Bell, 20 Ill.
App. 2d 82, 95, 155 N.E.2d 104 (1959). "[R]elief is granted in
such cases on the basis that the party benefiting thereby has
received money, property, or other advantage which in equity and
good conscience he should not be permitted to retain." People ex
rel. Buell, 20 Ill. App. 2d at 95. As the trial judge observed, there are only a few Illinois cases
on moral duress. Reported Illinois opinions have only found moral
duress in extreme circumstances, such as those in People ex rel.
Buell v. Bell, 20 Ill. App. 2d 82, 95, 155 N.E.2d 104 (1959). See
also In re Petition of Heubert, 132 Ill. App. 2d 793, 270 N.E.2d
464 (1971); Pittman v. Lageschulte, 45 Ill. App. 2d 207, 195
N.E.2d 394 (1964). In People ex rel. Buell, an unwed mother was
pressured into giving up her child for adoption. She was
wrongfully told that if she did not give up the child she would
not be able to keep her other children. She was weak and in poor
condition when she signed the agreement, which she did not read
and was not read to her. In our view, these cases are inapposite. Golden was a legally
sophisticated attorney who negotiated the severance agreement
over the course of several months. Given the dissimilarity of
these facts to the above cases, we hold that Golden has not
established a claim for moral duress. Even if the severance agreement were voidable because of duress
or a breach of fiduciary duty, we believe that Golden ratified
the agreement by his subsequent conduct. "It is well established
that the retention of the consideration by one sui juris, with
knowledge of the facts will amount to a ratification of a release
executed by him in settlement of a claim, where the retention is
for an unreasonable time under the circumstances of the case." 66
Am. Jur. 2d Release §27 (1973). A victim of fraud who, knowing of the fraud, "accepts the
benefits flowing from a contract for any considerable length of
time ratifies the contract." Carlile v. Snap-on Tools, 271 Ill.
App. 3d 833, 842, 648 N.E.2d 317, 324 (1995); see also Butler v.
Metz, Train Olson & Youngren, Inc., 62 Ill. App. 3d 424, 379
N.E.2d 1255 (1978). Golden accepted a large sum of money as a
result of the settlement agreement, despite the fact that he was
on notice at that point of facts that he says made the agreement
voidable. He retained the money for over five years. This
constitutes ratification of the release. See Seward v. B.O.C.
Division of General Motors Corp., 805 F. Supp. 623, 633 (N.D.
Ill. 1992). Accordingly, given the release's broad terms, it bars
Golden's noncontract actions. Golden further claims that MWE violated the severance agreement
by not paying him the full amount due under it. Golden did not
specify which deductions from the $225,000 he believes to be
improper. In our view, this claim was not adequately pled to put
MWE on notice of the nature of the claim against it and, thus,
did not state a cause of action. In re Beatty, 118 Ill. 2d 489,
517 N.E.2d 1065 (1987). Although Golden requested leave to amend
his complaint in order to rectify the deficiencies, whether to
allow a plaintiff leave to amend a complaint is within the
discretion of the trial court. Johnson v. Abbott Laboratories,
Inc., 238 Ill. App. 3d 898, 904, 605 N.E.2d 1098 (1992). Given
the fact that Golden had had three previous opportunities to
plead the claim correctly, we cannot say that the trial court
abused its discretion in denying leave to amend yet again. Although we have held that Golden's claims are barred because he
has ratified the release, we will address the statute of
limitations and laches issues for completion. Since Golden asks
for relief in equity, the appropriate defense, strictly speaking,
is laches rather than the statute of limitations. First National
Bank v. Road District No. 8, 328 Ill. App. 122, 65 N.E.2d 396
(1946)(abstract of op.). Laches is defined as "such neglect or
omission to assert a right, taken in conjunction with a lapse of
time of more or less duration and other circumstances causing
prejudice to an adverse party, as will operate to bar relief in
equity." Pyle v. Ferrell, 12 Ill. 2d 547, 552, 147 N.E.2d 341
(1958). Nevertheless, when a cause of action could be brought either in
law or in equity, courts of equity generally guide themselves by
the statute of limitations in determining laches. Brown v.
Goodman, 147 Ill. App. 3d 935, 941, 498 N.E.2d 854 (1986).
Passing of the limitations period, moreover, obviates the
requirement of prejudice on the part of the defendant.
Schlossburg v. Corrington, 80 Ill. App. 3d 860, 865, 400 N.E.2d
73 (1980). Since the statute of limitations for written contracts is 10
years, the issue does not arise as to the contract claims. 735
ILCS 5/13--206 (West 1994). But the other claims are governed by
a five-year limit as "civil actions not otherwise provided for."
735 ILCS 5/13--205 (West 1994). More than five years passed between the alleged fraud and the
filing of this suit. Golden, however, argues that the limitations
period should be tolled because he did not learn of the facts
that formed the basis of his complaint until he conducted
discovery in the ALAS case. The statute of limitations begins to
run when "the injured person [is] possessed of sufficient
information concerning his injury and its cause to put a
reasonable person on inquiry to determine whether actionable
conduct is involved." Knox College v. Celotex Corp., 88 Ill. 2d
407, 416, 430 N.E.2d 976 (1981). Golden argues that the fiduciary relationship should have
released him from the duty to make inquiries. Although it is
difficult to fix the precise point when Golden had enough
information to put him on inquiry, we conclude that he had enough
information by November 7, 1991, when he learned that proper
procedures had not been followed in his expulsion. And at that
point he was no longer in a fiduciary relationship with the
defendants. If a cause of action is fraudulently concealed, this can toll the
running of the limitations period. Huffman v. Gould, 327 Ill.
App. 428, 436, 64 N.E.2d 773, 777 (1945). However, the fact that
fraud forms the basis of Golden's causes of action does not show
that the causes of action themselves were fraudulently concealed.
Skrodzki v. Sherman State Bank, 348 Ill. 403, 406, 181 N.E. 325
(1932); Zagar v. Health & Hospitals Governing Com'n, 83 Ill. App.
3d 894, 898, 404 N.E.2d 496 (1980). On the contrary, Meadows is
alleged to have told Golden up front that he had been expelled in
contravention of the partnership agreement and that the
settlement agreement, contrary to what other partners had said,
was quite harsh. Accordingly, even if Golden's noncontract claims
were not barred by ratification of the release, they would be
barred by laches. For the foregoing reasons, the judgment of the trial court is
affirmed. Affirmed. GORDON, P.J., and WOLFSON, J., concur.
BRUCE GOLDEN,
APPEAL FROM THE CIRCUIT
COURT OF COOK COUNTY
"Golden *** releases *** the Firm *** from any and all claims *** whether now known or
unknown *** including, but not limited to, any and all claims *** relating to or arising out
of Golden's partnership, tenure or separation from the firm *** provided, however, that this
release and discharge shall not bar Golden from bringing any action to *** enforce this
agreement."
"Every partner must account to the partnership for any benefit, and hold as a trustee for it
any profits derived by him without the consent of the other partners from any transaction
connected with the formation, conduct, or liquidation of the partnership or from any use by
him of its property.
Although the sale of the real estate by First Charter may
have disposed of the assets of the joint venture, it would
not extinguish the rights and obligations between the
partners that arose from that relationship or that arose from
the unauthorized dealing with its property. On dissolution, a
partnership is not terminated, but continues until the
winding up of its affairs is completed." 76 Ill. 2d at 438.