Flynn v. Cohn

581 N.E.2d 30, 220 Ill. App. 3d 393, 163 Ill. Dec. 79, 1991 Ill. App. LEXIS 1625
CourtAppellate Court of Illinois
DecidedSeptember 20, 1991
Docket1-89-3322
StatusPublished
Cited by7 cases

This text of 581 N.E.2d 30 (Flynn v. Cohn) 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
Flynn v. Cohn, 581 N.E.2d 30, 220 Ill. App. 3d 393, 163 Ill. Dec. 79, 1991 Ill. App. LEXIS 1625 (Ill. Ct. App. 1991).

Opinion

PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, judgment was entered in favor of plaintiff, John W. Flynn, and against defendant, Erwin Cohn, on plaintiff’s action for an accounting after the dissolution of a law partnership and on defendant’s counterclaim. Defendant now appeals and we consider: (1) whether it was against the manifest weight of the evidence to find that the partners did not have a dissolution agreement; (2) whether it was against the manifest weight of the evidence to find that defendant was not entitled to an accounting from plaintiff for profits allegedly overpaid during the partnership; (3) whether plaintiff’s expert should have been barred from testifying when plaintiff failed to properly disclose him; (4) whether it was against the manifest weight of the evidence to accept the accounting of plaintiff’s expert; (5) whether the finding that defendant was not entitled to compensation for the winding-up of partnership business was erroneous; and (6) whether defendant was prejudiced when the trial judge changed his previous ruling striking certain portions of defendant’s counterclaim. For the following reasons, we affirm.

In 1971, plaintiff and defendant entered into an oral partnership agreement to practice law and to divide the expenses and profits equally. During the partnership, plaintiff generally handled divorce, real estate, and commercial cases receiving hourly fees or retainers. Defendant generally handled personal injury and workers’ compensation cases receiving contingent fees. Both partners brought cases into the firm, and if a case involved the other partner’s area of concentration, that partner handled the case. No time records were kept on the amount of time a partner worked on a case, and no record was kept of the cases each partner brought into the partnership. On April 1, 1987, after 16 years of partnership, plaintiff and defendant agreed to dissolve. During the winding-up period after dissolution, they each generally handled the cases they brought into the partnership. Plaintiff handled 37 cases which generated $37,000 in fees, and defendant handled approximately 140 cases which generated $531,233 ^in fees. The facts stated above are essentially undisputed between the parties.

Shortly after dissolution, plaintiff filed a complaint for an accounting to recover his share of the fees received on the partnership’s cases after dissolution.

Defendant answered the complaint and filed a five-count counterclaim, only four counts of which are relevant on appeal. In count I, defendant sought an accounting from plaintiff alleging plaintiff was overpaid during the partnership because he did not share the work. In count II, defendant alleged that the partnership’s assets should be distributed according to a dissolution agreement entered into when they formed the partnership. In count IV, defendant alleged that the partnership’s assets should be distributed according to a contract implied in fact, exhibited by their conduct after dissolution. In count V, defendant alleged that the partnership’s assets should be distributed according to a dissolution agreement entered into when the partnership dissolved. As a remedy for the counterclaim, defendant requested judgment that each partner was entitled to receive the fees on the cases he retained after dissolution to the exclusion of the other partner.

Initially, an evidentiary hearing was held to determine whether an accounting was required and whether the partners had an agreement to divide the partnership’s assets in the event of dissolution.

Plaintiff testified that when he and defendant formed the partnership, they agreed to a “50/50 partnership” but did not discuss dissolution. Subsequently, when they agreed to dissolve the partnership, they could not reach an agreement as to how to divide the partnership’s assets. Plaintiff wanted to continue their partnership agreement to share expenses and profits on the remaining cases equally, but defendant wanted to retain the fees on the cases he was handling at the time, which were the personal injury and workers’ compensation cases. Some of those cases were brought into the firm by plaintiff, including a medical malpractice case which was expected to generate a large fee.

Defendant testified that he and plaintiff reached a dissolution agreement when they formed the partnership. At that time, they agreed if the partnership was dissolved, each partner would retain the cases he brought into the partnership. However, if a case was brought into the partnership by one partner and handled by the other, the partner who was working on the case had the option to retain it. They also agreed to share the workload equally. Defendant testified that although no record was kept, they generally knew which cases they brought into the partnership.

Defendant further testified that when they subsequently agreed to dissolve the partnership, plaintiff was not satisfied with their original dissolution agreement because defendant would retain the partnership’s high percentage of personal injury cases. He testified that after some discussion, they agreed each partner would pay the costs and retain the fees on the cases he handled after dissolution.

The trial judge did not find one partner’s testimony more credible than the other but stated defendant’s testimony on the terms of the dissolution agreement was “equivocal.” The judge found it was more likely than not that they did not have a dissolution agreement and, as a result, the partnership’s assets would be equally divided according to the original partnership agreement. The judge ordered both plaintiff and defendant to prepare an accounting of the partnership’s cases indicating expenses incurred and fees received after dissolution. The trial continued for the accounting aspect of the case and defendant’s counterclaim.

Plaintiff testified that during the partnership, although he and defendant focused their cases on different areas of the law, they shared the work on all the partnership’s cases. Court appearances and depositions were divided on an ad hoc basis depending on who was available. At defendant’s request, plaintiff agreed to work on more of defendant’s cases.

Defendant testified, however, that plaintiff generally did not work on his cases. Plaintiff would only handle an occasional deposition on a personal injury case and would never work on a workers’ compensation case, although they were the majority of the partnership’s cases. Despite defendant’s request for more assistance, plaintiff did not handle personal injury cases.

Defendant also testified he prepared his own accounting of the partnership cases he handled after dissolution but admitted that he omitted the workers’ compensation cases.

When plaintiff called his expert, Nicholas Burke, to testify at trial, defendant objected because plaintiff failed to disclose his identity until one week earlier, violating Supreme Court Rule 220 (134 Ill. 2d R. 220). The trial judge asked defendant whether he wanted to take Burke’s deposition before he testified, and defendant initially expressed concern it would delay the hearing but then offered to take the deposition that day. The judge stated that if defendant wanted to take the deposition, trial would not proceed that morning.

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Cite This Page — Counsel Stack

Bluebook (online)
581 N.E.2d 30, 220 Ill. App. 3d 393, 163 Ill. Dec. 79, 1991 Ill. App. LEXIS 1625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flynn-v-cohn-illappct-1991.