Carriage Way Apartments v. Pojman

527 N.E.2d 89, 172 Ill. App. 3d 827, 122 Ill. Dec. 717, 1988 Ill. App. LEXIS 1092
CourtAppellate Court of Illinois
DecidedJuly 27, 1988
Docket2—88—0085, 2—88—0155 cons.
StatusPublished
Cited by26 cases

This text of 527 N.E.2d 89 (Carriage Way Apartments v. Pojman) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carriage Way Apartments v. Pojman, 527 N.E.2d 89, 172 Ill. App. 3d 827, 122 Ill. Dec. 717, 1988 Ill. App. LEXIS 1092 (Ill. Ct. App. 1988).

Opinion

JUSTICE INGLIS

delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 307(aXl) taken from a preliminary injunction entered against plaintiffs. We reverse.

On appeal, plaintiffs contend (1) that the trial court’s summary award of a mandatory injunction was tantamount to a prejudgment attachment and violated due process; (2) that plaintiffs failed to demonstrate the lack of an adequate monetary remedy at law; (3) that the trial court abused its discretion in summarily granting a preliminary mandatory injunction without proper pleading or proof, and without bond; (4) that the trial court was divested of jurisdiction to modify its January 25, 1988, order due to the pendency of defendants’ notice of appeal; (5) that the preliminary injunction order should be dissolved because the record is insufficient to sustain its issuance without bond; and (6) that the preliminary mandatory injunction alters the status quo and therefore requires reversal.

The entitled litigation involves a real estate partnership entered into between plaintiffs, James J. Avgeris, Margaret P. Rathje, S. Louis Rathje, Allen Koranda, Kenneth Koranda, and defendants, Helen S. and H. Steven Pojman.

The partnership agreement provided for the purchase, lease, development, and sale of an apartment complex in Burr Ridge, Illinois, commonly known as Carriage Way Apartments. Pursuant to the partnership agreement, defendants each owned 8.33% of the partnership assets, profits, and losses. The partnership agreement also provided that when a partner retired from the partnership the remaining partners were to buy out the retiring partner’s interest.

The above litigation originated when the partnership, pursuant to the partnership agreement, filed an action seeking the appointment of an appraiser to determine the value of the partnership real estate. The complaint alleged that defendants had given notice to the partners that they intended to withdraw from the partnership and requested that, since the appraisers retained by defendants and the remaining parties could not agree upon the value of the property or the appointment of a third appraiser, the court determine and appoint a third appraiser whose opinion concerning the value of the real estate would be final. The complaint was later amended to include James P. Avgeris, Margaret P Rathje, S. Louis Rathje, Allen Koranda, and Kenneth Koranda, individually and d/b/a Carriage Way Apartments, a partnership, as plaintiffs.

On May 14, 1985, the court appointed Thomas Collins to conduct an appraisal of the partnership real estate and to report his determination of value to the court.

Collins filed two appraisals with the court. On June 13, 1985, defendants filed a motion for leave to file a counterclaim against the partnership and a third-party complaint against the remaining plaintiffs. It is unclear as to why defendants filed a third-party complaint when the alleged third-party defendants had already been named as plaintiffs.

The trial court, on plaintiffs’ motion, struck and dismissed counts I, II, and III of the counterclaim but denied plaintiffs’ motion to strike and dismiss count IV, which prayed for an accounting. This court entered a Rule 23 order (107 Ill. 2d R. 23) affirming the decision of the trial court. (Avgeris v. Pojman (1986), 144 Ill. App. 3d 1180 (unpublished Rule 23 order).) The mandate was filed in the trial court, and the case proceeded on count IV of the Pojmans’ counterclaim and third-party complaint.

Defendants claim that they subsequently served written notice upon all of the remaining partners that Mrs. Pojman was withdrawing her notice to withdraw from the partnership since the withdrawal was not perfected, and H. Steven Pojman, her son, served notice on the remaining partners that he had never tendered a withdrawal, and if he had tendered a withdrawal, that he was withdrawing that notice because the withdrawal was not perfected. However, in their answer to the complaint the Pojmans admitted paragraph 6 of the complaint, which stated “that on June 25, 1984, Defendants caused written notification to be served upon all other partners that Defendants were retiring from the partnership.”

The Pojmans requested, and were granted, leave to file an amended counterclaim and third-party complaint in which they sought an accounting, a declaratory judgment to declare that they were still partners of the partnership and entitled to all of the rights as partners, and a temporary and permanent injunction to restrain the partners and the partnership from disbursing defendants’ interest in the proceeds of any sale of the partnership property.

Plaintiffs filed an answer and motion to dismiss defendants’ counterclaim and third-party complaint, which motion to dismiss has not been heard.

Thereafter, on January 19, 1988, defendants served a notice of motion and a copy of an emergency petition for injunctive relief and damages based on conversion of funds which notice called for hearing instanter on January 25, 1988, at 9:30 a.m. before the Honorable John Teschner. The emergency petition alleged that the partnership property had been sold and that all proceeds from such sale had been distributed without payment to the Pojmans of their proportional share.

Plaintiffs did not file a response to the emergency petition, but instead appeared through counsel of record and requested a continuance. Counsel for plaintiffs acknowledged that the property was sold for a price which he believed was in excess of $8.1 million. He also acknowledged that the proceeds had been distributed to all of the partners to the partnership except for the Pojmans.

After recessing to review the emergency petition, the court resumed the bench and acknowledged that there was a pending dispute existing in the matter as to the amount of funds defendants were to receive and whether they were entitled to benefits as a withdrawing partner and whether the withdrawal ever took place or had been rescinded. Plaintiffs’ counsel requested seven days to find out whether the funds had been dissipated by his clients and what their intentions were. He further stated that two of his clients, the Korandas, had placed funds in an escrow account and asked that he be given seven days in which to allow the remaining plaintiffs to do something similar. He asked that in the interim the court “enter an order against the plaintiffs that there be a hold on any funds that were received by any of the plaintiffs pursuant to the closing and that they be prohibited from dissipating any of those funds.”

The court entered the January 25, 1988, order which required plaintiffs to deposit into an escrow account, or several escrow accounts, the aggregate sum of $1,249,000; that plaintiffs provide defendants with a copy of the closing documents concerning the sg,le of the partnership property on or before January 28, 1988; and that plaintiffs appear in court on January 28, 1988, at 9:30 a.m. and show proof that the funds had been deposited. The court issued the injunction without bond.

On January 28, 1988, before the hearing set for that date, plaintiffs filed a notice of appeal from the order of January 25, 1988.

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Cite This Page — Counsel Stack

Bluebook (online)
527 N.E.2d 89, 172 Ill. App. 3d 827, 122 Ill. Dec. 717, 1988 Ill. App. LEXIS 1092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carriage-way-apartments-v-pojman-illappct-1988.