Alwan v. Kickapoo-Edwards Land Trust , 2018 IL App (3d) 170165 ( 2018 )

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Alwan v. Kickapoo-Edwards Land Trust, 2018 IL App (3d) 170165Appellate Court WILLIAM N. ALWAN, Plaintiff-Appellee, v. KICKAPOO-
Caption EDWARDS LAND TRUST, CENTENNIAL TRUST,
VILLENEAUVE TRUST, and DENNIS P. LAHOOD, Defendants.
–THOMAS RAFOOL, Executor of the Estate of Joseph E. Rafool,
Deceased, and WILLIAM N. ALWAN, Plaintiffs, v. DAVID COURI,
VILLENEAUVE DEVELOPMENT COMPANY PARTNERSHIP,
CENTENNIAL LAND TRUST AND PARTNERSHIP, and
KICKAPOO-EDWARDS LAND TRUST AND PARTNERSHIP,
Defendants (Phillip E. Couri, Intervenor-Appellant).
District & No. Third District
Docket No. 3-17-0165
Filed January 3, 2018
Decision Under Appeal from the Circuit Court of Peoria County, Nos. 07-L-334,
Review 08-L-20; the Hon. Lisa Y. Wilson, Judge, presiding.
Judgment Certified question answered.
Counsel on Phillip E. Couri, of Winnetka, intervenor-appellant pro se.
Appeal
James W. Springer and Bruce E. Thiemann, of Kavanagh, Scully,
Sudow, White & Frederick, P.C., of Peoria, for appellee.
Panel JUSTICE O’BRIEN delivered the judgment of the court, with
opinion.
Justices McDade and Schmidt concurred in the judgment and opinion.
OPINION
¶1 Plaintiff William N. Alwan brought actions alleging defendant partnerships, Dennis
LaHood, and David Couri improperly terminated him from the partnerships. The trial court
found that the Uniform Partnership Act (1997) (805 ILCS 206/100 et seq. (West 2016))
applied to the complaint. Phillip E. Couri (Couri), who is representing his interests pro se as
a partnership member, argued the Uniform Partnership Act (805 ILCS 205/1 (West 1996))
applied. The trial court certified a question for appellate review regarding which act applied
and Couri appealed under Illinois Supreme Court Rule 308 (eff. July 1, 2017). We affirm.
¶2 FACTS
¶3 Plaintiff William Alwan filed a complaint against the defendant partnerships,
Kickapoo-Edwards Land Trust, Centennial Trust, Villeneauve Trust, and Dennis LaHood,
the partnerships’ managing partner (No. 07-L-334). In his complaint, Alwan alleged he was
improperly terminated as a partner and denied income, profits, and access to the partnership
records. Alwan, along with plaintiff Thomas Rafool, executor of the estate of Joseph E.
Rafool, deceased, filed a second complaint against defendants Kickapoo-Edwards Land Trust
and Partnership, Centennial Land Trust and Partnership, Villeneauve Development Company
Partnership, and David Couri (No. 08-L-20). Both complaints are filed against the same
partnership defendants, despite the differences in the names in the captions. The cases were
consolidated in the trial court.
¶4 Centennial Trust ceased doing business in 2013, and Kickapoo-Edwards Land Trust
stopped operations in 2014. In June 2015, Alwan moved to disqualify Couri from
representing the partnerships due to a conflict of interest. Following a hearing, the trial court
granted Alwan’s motion and disqualified Couri from representing the partnerships. Couri and
the partnerships moved for reconsideration, which was heard and denied. A new attorney
filed an appearance for the partnerships, and Couri filed an appearance as an interested party
as a member of two of the partnerships. Alwan moved to strike Couri’s pro se appearance.
¶5 The trial court entered an order on October 24, 2016, with the following findings: the
partnerships were created under the Uniform Partnership Act (805 ILCS 205/1 (West 1996))
(1917 Act); none of the partnerships took affirmative steps to fall under the Uniform
Partnership Act (1997) (1997 Act) (805 ILCS 206/100 et seq. (West 2016)); and the 1917
Act governed. The trial court also found that Couri was an interested party and denied
Alwan’s request to strike Couri’s appearance. Alwan moved for reconsideration, which the
trial court granted in part. On reconsideration, the court found that the 1997 Act applied and
certified a question for appellate review:
“Whether application of the Uniform Partnership Act of 1997, 805 ILCS
206/1206(b), becomes mandatory for all partnerships, including existing partnerships
formed in 1976-1978, pursuant to the Partnership Act of 1917, 805 ILCS 205/1 et
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seq., that failed to take any action or elect to be governed by the Uniform Partnership
Act of 1997.”
¶6 Couri sought leave to appeal to this court pursuant to Illinois Supreme Court Rule 308
(eff. July 1, 2017). We granted leave. No other parties have appealed.
¶7 ANALYSIS
¶8 On appeal, Couri argues that the 1917 Act applies and the trial court erred when it
determined that the 1997 Act was applicable. Couri submits that the trial court’s retroactive
application of the 1997 Act served to diminish vested rights he had under the 1917 Act, thus
making the trial court’s application of the 1997 Act improper and violative of his due process
rights.
¶9 A party may appeal an interlocutory order not otherwise appealable when the trial court
finds the order involves a question of law on which there is substantial ground for a
difference of opinion and the termination of the litigation will be materially advanced by an
immediate appeal. Ill. S. Ct. R. 308(a) (eff. July 1, 2017). When considering a certified
question on review, the court is limited to the question presented. McGurk v. Lincolnway
Community School District No. 210, 287 Ill. App. 3d 1059, 1062-63 (1997) (citing Thompson
v. Walters, 207 Ill. App. 3d 531, 533 (1991)). We review de novo questions certified under
Rule 308. Merritt v. Department of State Police, 2016 IL App (4th) 150661, ¶ 13.
¶ 10 When interpreting a statute, the court gives the statutory language its plain and ordinary
meaning to determine the legislature’s intent. Hayashi v. Illinois Department of Financial &
Professional Regulation, 2014 IL 116023, ¶ 16. Where the language is unambiguous, a court
should not read exceptions, limitations, or conditions into the statute’s plain language. Id.Clear and unambiguous language must be applied without relying on other aids of statutory
construction. Wisniewski v. Kownacki, 221 Ill. 2d 453, 460 (2006). We review de novo issues
of statutory interpretation. Id.¶ 11 When legislation is new or amended, it applies to pending lawsuits and existing causes of
action unless applying it would interfere with a vested right. Dardeen v. Heartland Manor,
Inc., 186 Ill. 2d 291, 295 (1999) (citing First of America Trust Co. v. Armstead, 171 Ill. 2d
282, 289 (1996)). A vested right is one that is “so ‘complete and unconditional’ ” that it is
akin to a property right. Id. (quoting Armstead, 171 Ill. 2d at 291). There is no vested right to
a statute’s continuation or to a particular method of procedure prior to judgment. Id. at 299.
“[P]rocedure is the machinery for carrying on the suit, including pleading, process, evidence,
and practice.” GreenPoint Mortgage Funding, Inc. v. Poniewozik, 2014 IL App (1st) 132864,
¶ 18.
¶ 12 To determine whether new legislation or an amendment should be applied prospectively
or retrospectively, courts employ a three-step process. Schweickert v. AG Services of
America, Inc., 355 Ill. App. 3d 439, 442 (2005). The first step is to consider whether the
legislature explicitly states an intent about retroactivity. Id. When the legislative intent is
unclear, the next step is to decide whether the amendment is procedural or substantive in
nature. Id. Lastly, if the statute is procedural, courts look at its retroactive impact, meaning
whether it attaches new legal consequences to events that happened before the statute was
amended. Id. Under Illinois law, courts do not need to go beyond the first step because the
temporal reach will always be expressed either in the statute or by default in section 4 of the
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Statute on Statutes (5 ILCS 70/4 (West 1998)). Allegis Realty Investors v. Novak, 223 Ill. 2d
318, 331-32 (2006). Section 4 instructs that if new legislation or an amendment is procedural,
it may be applied retrospectively, but if it is substantive, it may not be so applied. Id. at 331.
¶ 13 The 1917 Act defined “person” as “individuals” and “partnerships.” 805 ILCS 205/2
(West 1996). It defined “partnership” as “an association of two or more persons to carry on
as co-owners a business for profit.” 805 ILCS 205/6(1) (West 1996). The 1997 Act defines
“partnership” as “an association of 2 or more persons to carry on as co-owners a business for
profit formed under Section 202 of this Act, predecessor law, or comparable law of another
jurisdiction” and “person” as, inter alia, an individual or partnership. 805 ILCS 206/101(f),
(j) (West 2016).
¶ 14 The 1997 Act further provides:
Ҥ 1206. Applicability.
(a) Before January 1, 2008, this Act governs only a partnership formed:
(1) on or after January 1, 2003, except a partnership that is continuing the
business of a dissolved partnership under Section 33 of the superseded Uniform
Partnership Act; and
(2) before January 1, 2003, that elects, as provided by subsection (c) of this
Section, to be governed by this Act.
(b) On and after January 1, 2008, this Act governs all partnerships.
(c) Before January 1, 2008, a partnership voluntarily may elect, in the manner
provided in its partnership agreement or by law for amending the partnership
agreement, to be governed by this Act.” 805 ILCS 206/1206(a)-(c) (West 2016).
¶ 15 In order to answer the certified question we must determine whether the 1997 Act had
retroactive effect. We begin our analysis by considering whether the 1997 Act expressly
states its temporal reach. We find it does. In section 1206 of the 1997 Act, the legislature
mandated that the Act applies to all partnerships after January 1, 2008. 805 ILCS
206/1206(b) (West 2016). Under its plain language, the statutory provision applies regardless
of when the partnerships were formed or whether the partnerships used the statute’s opt-in
provision to fall under the Act’s authority before January 1, 2008. Contrary to Couri’s
assertions, it is immaterial for our determination when the partnerships were formed or if
they opted in for earlier coverage under the 1997 Act. Under our interpretation of the Act, all
partnerships fall under its authority after January 1, 1998. We thus find the 1997 Act applies
to all partnerships after January 1, 2008.
¶ 16 While the parties did not offer, and we have not found, any Illinois law speaking to the
issue before us, Alwan points to foreign cases that support the position the 1997 Act applies.
In Total Holdings USA, Inc. v. Curran Composites, Inc., 999 A.2d 873, 877-78 (Del. Ch.
2009), and Robertson v. Jacobs Cattle Co., 830 N.W.2d 191, 199-200 (Neb. 2013), the courts
found that after their effective dates, new versions of Uniform Partnership Act applied to all
partnerships, including those formed prior to the statutes’ effective dates. Because Illinois
also adopted the Uniform Partnership Act, we consider these cases persuasive and further
support for our interpretation that the 1997 Act applies. Reed v. Doctor’s Associates, Inc.,
331 Ill. App. 3d 618, 622 (2002) (“ ‘judicial opinions from other jurisdictions interpreting
[uniform acts] are given greater-than-usual deference’ ” (quoting Bass v. SMG, Inc., 328 Ill.
App. 3d 492, 497 (2002))).
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¶ 17 We answer the certified question in the affirmative. Application of the 1997 Act
“becomes mandatory for all partnerships, including existing partnerships formed in
1976-1978, pursuant to the Partnership Act of 1917, 805 ILCS 205/1 et seq., that failed to
take any action or elect to be governed by the Uniform Partnership Act of 1997.”
¶ 18 CONCLUSION
¶ 19 For the foregoing reasons, the question certified by the circuit court of Peoria County is
answered in the affirmative.
¶ 20 Certified question answered.
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