McKenzie Dredging Co. v. Deneen River Co.

619 N.E.2d 188, 249 Ill. App. 3d 694, 188 Ill. Dec. 824
CourtAppellate Court of Illinois
DecidedAugust 17, 1993
Docket3—92—0801, 3—92—0836 cons.
StatusPublished
Cited by26 cases

This text of 619 N.E.2d 188 (McKenzie Dredging Co. v. Deneen River Co.) 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
McKenzie Dredging Co. v. Deneen River Co., 619 N.E.2d 188, 249 Ill. App. 3d 694, 188 Ill. Dec. 824 (Ill. Ct. App. 1993).

Opinion

JUSTICE SLATER

delivered the opinion of the court:

Plaintiff McKenzie Dredging Company entered into a joint venture agreement with Deneen River Company (Deneen) to do construction work on navigational locks at Quincy, Illinois, and Saverton, Missouri, for the Army Corps of Engineers. After completion of the project, plaintiff filed an action for an accounting and other damages against Deneen. While the suit was pending, Deneen sold its assets and the corporation was dissolved. Melvin, Justine, Vernon and Charlene Budd, the former shareholders of Deneen, were then joined as defendants. Following a bench trial, the trial court entered a judgment in favor of plaintiff for $44,174.77. Plaintiff’s sole issue on appeal is its claim that the court erred in denying its request for prejudgment interest. Defendants have also appealed, contending that the trial court erred by: (1) disallowing payment of $53,050 to Melvin Budd, Sr., for supervising the project; and (2) disallowing payment for use of Deneen’s “floating plant” (barge, crane, tugboat, etc.) and equipment. We affirm.

The joint venture agreement was entered into by the parties on October 25, 1985. The agreement provided for, inter alia, the allocation of personnel expenses, out-of-pocket expenses and the rental of construction equipment and “floating plant” used on the project. After allocation of these charges, the parties were to equally divide any profits or loss. The agreement also provided that William Ashton, the engineer of the project, was to act as arbitrator of any disputes and as trustee of any payments made by the Corps of Engineers. Ashton did not act in either capacity, however, and the payments made by the Corps of Engineers were deposited in Deneen’s general account. These payments totalled $626,982.55, and Deneen paid plaintiff $84,412.85.

After the project was completed in September of 1986, Deneen hired accountant Clyde Martin to prepare a cost summary of the job. Martin did not include charges for the rental of plaintiff’s floating plant, even though such charges were expressly provided for in the joint venture agreement. Martin did allow, however, rental charges for the use of Deneen’s floating plant. Martin concluded that the project lost money and that plaintiff owned Deneen over $78,000.

Gene Ginoli, a certified public accountant, was Martin’s employer. Ginoli reviewed Martin’s work but he did not independently verify it. Ginoli testified that they were instructed to cost the job out without regard to the joint venture agreement because Melvin Budd, Sr., president of Deneen, felt that the agreement had been substantially violated.

Cecil Cox, a certified public accountant, testified for plaintiff. Cox concluded that the project lost $277,643.66 if owned equipment and floating plant rentals were allowed to both parties. According to Cox, if these charges were allowed, plaintiff was owed $145,531.60. If these charges were disallowed, however, the project earned a profit of $120,303 and plaintiff was owed $67,429.21.

After six days of testimony, the trial concluded on May 24, 1992, and the trial court issued a letter of opinion on August 7, 1992. The court found in favor of plaintiff for $52,691.52, but it rejected plaintiff’s request for prejudgment interest. The court stated that the agreement did not provide for interest and “the history of the agreement would not seem to justify the same.” The court also noted that Ashton’s refusal to act as arbitrator was beyond the control of the parties. Both plaintiff and the defendants filed post-trial motions and the court issued its final order on September 30, 1992. The court corrected a computational error and entered judgment in favor of plaintiff for $44,174.77. The court again denied plaintiff’s claim for prejudgment interest, finding that the amount owed was disputed and that there was no showing that Melvin Budd, Sr., was not acting in good faith and with a reasonable belief in his position. The court also noted that the litigation was controlled by the plaintiff, that a bench trial may be called to hearing in Marshall County within 30 to 45 days, and that to allow plaintiff “to proceed with this matter for over five years and then claim interest would not seem to be well founded.” As indicated earlier, both plaintiff and defendants have appealed from the trial court’s order.

We first address plaintiff’s argument that the trial court erred in denying its request for prejudgment interest. Plaintiff first contends that money wrongfully retained by one party to a joint venture is subject to a constructive trust, even if that party acted in good faith. Therefore, plaintiff argues, the trial court erred in denying prejudgment interest on the basis that Melvin Budd had a reasonable belief in his position and was acting in good faith.

Even assuming, however, that a constructive trust may be imposed where a defendant acts in good faith, we find that such a proposition has little relevance to the question of whether to allow prejudgment interest. The imposition of a constructive trust and the award or denial of prejudgment interest are separate issues, and we find plaintiff’s attempt to equate the two unpersuasive.

Plaintiff next maintains that an equitable award of prejudgment interest is intended to fully compensate the plaintiff, rather than punish the defendants. Plaintiff relies on In re Estate of Wernick (1989), 127 Ill. 2d 61, 535 N.E.2d 876, where the court stated:

“The rationale underlying an equitable award of prejudgment interest in a case involving a breach of fiduciary duty is to make the injured party complete by forcing the fiduciary to account for profits and interest he gained by the use of the injured party’s money. [Citations.] The injured party is thus compensated for any economic loss occasioned by the inability to use his money. Prejudgment interest in this context acts as a concept of fairness and equity and not as a sanction against the defendant. [Citation.] Fundamental principles of damages and compensation dictate that when money has been wrongfully withheld the victim receive interest for the wrongdoer’s retention of his money.” Wernick, 127 Ill. 2d at 87, 535 N.E.2d at 888.

We agree, of course, that the purpose of awarding prejudgment interest is to fully compensate a party when its money has been wrongfully withheld. We do not agree, however, that this concept mandates an award of prejudgment interest in every case involving a dispute between joint venturers. As the Wernick court pointed out:

“In Illinois, prejudgment interest may be recovered when warranted by equitable considerations, and disallowed if such an award would not comport with justice and equity. [Citations.] *** Whether equitable circumstances support an award of interest is a matter lying within the sound discretion of the trial judge. [Citations.] Such a determination will not be disturbed on review unless it constitutes an abuse of discretion.” Wernick, 127 Ill. 2d at 87, 535 N.E.2d at 888.

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Bluebook (online)
619 N.E.2d 188, 249 Ill. App. 3d 694, 188 Ill. Dec. 824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckenzie-dredging-co-v-deneen-river-co-illappct-1993.