Partnership Agreements May Not Eliminate One Partner’s Fiduciary Duty to Others, First District Rules


A trial court was correct to find a breach of fiduciary duty in a real estate partnership, the First District Court of Appeal ruled March 27. In 1515 North Wells LP v. 1513 North Wells LLC, No. 1-07-1881 (Ill. 1st. Dist. March 27, 2009), the appeals court also upheld the lower court’s rulings that one partner had breached his contract and that denied him a chance to amend his complaint to pierce the corporate veil.

The case grows out of a real estate development deal struck in 1997. Thomas Bracken, Mark Sutherland, Alex Pearsall and an uninvolved fourth partner formed 1515 North Wells LP, a limited partnership, to develop a condominium with retail space. Sutherland and Pearsall then created SP Development Corporation to serve as the general partner of 1515 North Wells LP. Bracken separately created 1513 North Wells LLC to own space in the building that was to be a health club. Bracken borrowed $250,000 to pay for his part of the property, and signed a note saying he agreed to pay it back no later than 15 days after receiving a financial statement from 1515 North Wells. He further agreed to pay it even if there was a dispute, then wait for a refund later.

To begin development, SP, the general partner, solicited bids for a general contractor. It hired yet another Sutherland and Pearsall company, Sutherland and Pearsall Development, even though its bid was the only one received that failed to state a maximum price for the project. The same general contractor, not 1515 North Wells, later received the profits from condominium upgrades.

In 2001, Bracken received his financial statement but did not pay back the loan, claiming the accounting was inadequate. The next year, 1515 North Wells sued him for breach of contract. Bracken countersued SP, and Sutherland and Pearsall as individuals, for breach of fiduciary duty, citing the choice of their own company as general contractor. SP was granted summary judgment on Bracken’s breach of contract issue, and the individuals were granted summary judgment on breach of fiduciary duty as to them personally. Bracken was unsuccessful in his own request for summary judgment, finding that there were genuine issues of material fact to address at trial.

The court also denied Bracken leave to amend his complaint to pierce the corporate veil and find Sutherland and Pearsall personally liable for the alleged breach of fiduciary duty. Bracken’s request came in 2005, seven weeks before trial and after the issue had been raised in previous filings. However, the judge in the case retired, delaying trial. At a bench trial in December of 2005, the court found for Bracken on the breach of fiduciary duty claim. Bracken then petitioned for reconsideration of the summary judgment against him and of the denial of leave to amend his petition, in light of the court’s finding. The new judge did not change the first judge’s rulings, and in fact, amended the judgment against Bracken to include more interest and attorney fees.

Everybody appealed to the First District. On appeal, Bracken argued that the trial court erred in finding him liable for breach of contract in repayment of the loan, and in not allowing him to amend his complaint to include a request to pierce the corporate veil. SP argued that the trial court should not have found a breach of fiduciary duty because of language in the partnership agreement for 1515 North Wells.

The First District started its analysis by quickly affirming the trial court’s rulings against Bracken. It was undisputed that Bracken was contractually obligated to pay the money back, the court said, and it was undisputed that he did not repay it. Thus, summary judgment on the breach of contract issue was entirely appropriate.

It next looked at Bracken’s claim for amending his case to include a count for piercing the corporate veil. Bracken argued that he had repeatedly made that request but had not been allowed, starting at least 16 months before trial. However, the court found no evidence in the record that Bracken had done so. It further concluded that the motion he did make, seven weeks before trial, was not timely. Bracken did not make his request until nearly three years after the case was filed, the court reasoned, and had no way of knowing that the late-September trial would be postponed further. In fact, allowing an amended complaint at that late date would have been prejudicial, the First District wrote.

Finally, the appeals court dismissed SP’s argument that the trial court erred in finding it breached its fiduciary duty. SP relied on language in the partnership agreement providing that partners may engage in whichever activities they choose without financial obligation to the partnership. However, the appeals court said, the Illinois Uniform Partnership Act specifies that a partnership agreement may never eliminate or reduce a partner’s fiduciary duties. Furthermore, there was ample evidence at trial that SP breached its fiduciary duty, including the “cost plus” contract with the contractor and the fact that it did not route condo sales profits back to the partnership. Thus, the First District upheld the trial court’s decisions on all counts.

Based in Chicago and near Naperville, Ill., Lubin Austermuehle handles partnership and shareholder, and family business disputes including such disputes involving real-esate partnerships, and other business ventures for businesses, partnerships and corporations of all sizes, from closely held family businesses to larger enterprises. Our Chicago and Oak Brook commercial litigation attorneys represent businesses in state and federal courts, and alternative dispute resolution, throughout Illinois, Indiana and Wisconsin. Lubin Austermuehle’s goal is to minimize our clients’ financial risk and avoid disruptions to their business as much as possible while still protecting their legal rights. If your business, corporation or partnership is involved in an Illinois business lawsuit and you would like to learn more about how we can help, contact Lubin Austermuehle today for a free consultation.

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