{ "id": 3608793, "name": "RICHARD C. G'SELL, Plaintiff-Appellant, v. N. P. ASSOCIATES, LTD., et al., Defendants-Appellees", "name_abbreviation": "G'Sell v. N. P. Associates, Ltd.", "decision_date": "1987-02-09", "docket_number": "No. 85\u20143478", "first_page": "171", "last_page": "176", "citations": [ { "type": "official", "cite": "153 Ill. App. 3d 171" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "291 N.E.2d 641", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. 2d 325", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2925088 ], "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0325-01" ] }, { "cite": "71 Ill. 2d 606", "category": "reporters:state", "reporter": "Ill. 2d", "weight": 2, "year": 1958, "opinion_index": 0 }, { "cite": "378 N.E.2d 588", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "61 Ill. App. 3d 765", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3345178 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "767" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0765-01" ] }, { "cite": "147 N.E.2d 341", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "12 Ill. 2d 547", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2779434 ], "weight": 3, "pin_cites": [ { "page": "552" }, { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/12/0547-01" ] } ], "analysis": { "cardinality": 600, "char_count": 11345, "ocr_confidence": 0.754, "pagerank": { "raw": 4.8133270070952626e-08, "percentile": 0.3016301336487185 }, "sha256": "a206a179b8f49b2a209cb408abacd634ec9e8141c66681bf848b1a824103a18f", "simhash": "1:37a4a484ecabd794", "word_count": 1885 }, "last_updated": "2023-07-14T16:39:45.296283+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RICHARD C. G\u2019SELL, Plaintiff-Appellant, v. N. P. ASSOCIATES, LTD., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nThis is an appeal from a judgment declaring a written agreement null and void, barring enforcement of the agreement because of laches, ordering plaintiff to vacate an apartment in the building at issue, and denying defendants\u2019 claim for back rent and costs.\nThe record discloses plaintiff, Richard C. G\u2019Sell (G\u2019Sell), is a real estate developer who, since 1978, has resided at the North Park, a residential apartment building.\nDefendant N. P. Associates, Ltd. (NP), is an Illinois limited partnership which was formed in September 1981 to acquire, own, and operate the North Park. NP is the beneficial owner of the Illinois land trust which owns the North Park.\nDefendant F.S.W., Inc. (FSW), is an Illinois corporation which was organized in August 1981 to act as a general partner to defendant NP.\nDefendant Enterprises is an Illinois partnership and a limited partner of NP. Enterprises\u2019 partners are 12 trusts established for the benefit of the Wilson family. John G. \u201cJack\u201d Wilson (Wilson) is the managing partner of Enterprises.\nPrior to 1981, G\u2019Sell was a general partner in an Illinois limited partnership known as the 1931 North Lincoln Park West Partnership (the prior partnership), which owned the North Park prior to its sale in 1981 to a nominee of the Wilsons. In 1980, G\u2019Sell learned that his partners in the prior partnership intended to sell the North Park. In order to sell on more favorable terms than they were able to secure, he contacted Jack Wilson and his father, Francis Wilson, with whom he had previously done business.\nAt the initial meeting between G\u2019Sell and the Wilsons, G\u2019Sell informed the Wilsons that he wanted to manage the North Park for them, that he wanted an ownership interest in the partnership that would acquire the North Park, and that he wanted to remain in his apartment at North Park. Defendant testified that G\u2019Sell attempted to make the purchase attractive by emphasizing his expertise in obtaining Federal financing.\nNegotiations between G\u2019Sell and the Wilsons ensued, and various drafts of a proposed contract were exchanged. The negotiations centered on the terms of the sale of the North Park from the prior partnership to the Wilsons, the interest that G\u2019 Sell would have in the purchasing entity, and whether G\u2019Sell would continue to manage the North Park for acquiring entity after the purchase.\nThe draft contracts culminated in the agreement at issue here, which Wilson executed and sent to G\u2019Sell on or about April 15, 1981. G\u2019Sell testified at trial that he immediately executed the agreement and returned it to Wilson. Wilson testified that G\u2019Sell did not send him a copy of the executed agreement until February 24,1984.\nThe agreement provided, in pertinent part:\n\u201c3. Partnership: Should we acquire the Property, the beneficial interest in the land trust at closing will be transferred to a Limited Partnership (the \u201cPartnership\u201d) created pursuant to an agreement to be entered into having, among others, the following provisions:\n(a) General Partners: You and Wilson Enterprises or its des-ignee.\n* * *\n(e) Special Payment: During the time the Partnership is the owner of the Property, you shall be entitled to occupy your present apartment rent-free.\u201d\nSubsequent to Wilson\u2019s execution and delivery of the agreement but prior to the closing on the North Park, G\u2019Sell indicated that he had a potential conflict of interest with his former partners by virtue of being both a buyer and a seller of the North Park. Wilson testified that G\u2019Sell indicated that he was no longer interested in a partnership because the economics of the deal were unfavorable but that he still wanted to manage the property. Wilson also testified that because of G\u2019Sell\u2019s conflict of interest and the deteriorating economics of the proposed acquisition, the parties made a new oral agreement prior to the closing establishing that G\u2019Sell would manage the North Park for NP but would not be a partner in NP.\nPrior to the closing, G\u2019Sell also became involved in litigation with the former partnership which involved allegations that G\u2019Sell had a conflict of interest because of his partnership interest with the Wil-sons. G\u2019Sell twice testified under oath that he had no understanding with the Wilsons concerning participation in a partnership to acquire the North Park. He also wrote a letter to his prior partners denying the existence of any understanding.\nThe closing of the transaction took place on September 15, 1981. G\u2019Sell attended as a member of the former partnership. He was aware that at the time of the closing the Wilsons controlled the sole general partner of the acquiring entity, but he made no objection at that time. The agreement of limited partnership creating NP, which G\u2019Sell subsequently received, also did not include G\u2019Sell as a general partner and did not include the special payment referenced at paragraph 3(e) of the agreement.\nIn support of their argument that there was no partnership agreement, defendants note that subsequent to September 15, 1981, G\u2019Sell never included with his Federal income tax return any document reflecting a partnership interest in the North Park, nor did he claim the fair rental value of his apartment as income.\nIn support of plaintiff\u2019s assertion that a partnership agreement did exist, G\u2019Sell cited a letter from Wilson to Acquisition Funding Corporation and two verified complaints in which G\u2019Sell is referred to as a partner, general partner, or managing partner of NP. G\u2019Sell also testified that he received quarterly financial statements for the North Park each quarter until this case was filed and that he had concluded, based on the fact that there was no net cash flow and net profit being generated by the North Park, that he was not being denied any benefits that he was entitled to as a partner pursuant to the agreement.\nFollowing a bench trial, the trial court entered a judgment order declaring the agreement null and void, barred enforcement of the agreement because of laches, ordered G\u2019Sell to vacate his apartment, and denied NP\u2019s claims for back rent and costs. Plaintiff now brings this appeal.\nLaches involves the neglect or omission to assert a right in conjunction with a lapse of time which causes prejudice to an adverse party. (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 552, 147 N.E.2d 341.) The decision to either invoke or refuse application of this defense is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. (Beckham v. Tate (1978), 61 Ill. App. 3d 765, 378 N.E.2d 588, appeal denied (1978), 71 Ill. 2d 606.) Whether laches will be applied is determined by the particular facts of each case. Pyle v. Ferrell (1958), 12 Ill. 2d 547, 147 N.E.2d 341.\nIn Pyle the court considered four factors in determining the applicability of this equitable defense: \u201c(1) Conduct on the part of the defendant giving rise to the situation of which complaint is made and for which the complainant seeks a remedy; (2) delay in asserting the complainant\u2019s rights, the complainant having had notice or knowledge of defendant\u2019s conduct and the opportunity to institute a suit; (3) lack of knowledge or notice on the part of the' defendant that the complainant would assert the right on which he bases his suit, and (4) injury or prejudice to the defendant in the event relief is accorded to\nthe complainant or the suit is held not to be barred.\u201d Pyle v. Ferrell (1958), 12 Ill. 2d 547, 553, 147 N.E.2d 341.\nApplying these principles to the instant case, it is clear that a laches defense is applicable. G\u2019Sell admitted that he knew, at the time of the closing on September 15, 1981, that he was not being included as a general partner of the entity which acquired the North Park; he stated twice under oath that he had no interest in the North Park; he declared no partnership interest on his tax returns nor did he ever ask NP to supply him with documents to include with his returns. In addition, G\u2019Sell took no action to enforce his purported rights until at least January or February of 1984, nearly three years after the closing. Accordingly, a finding of undue delay in asserting a known right is supported by the evidence.\nG\u2019Sell contends, to the contrary, that pursuant to Illinois law (Ill. Rev. Stat. 1985, ch. 110, par. 13 \u2014 206), he has 10 years to bring suit to enforce the terms of the alleged agreement. This contention presumes the existence of a contract, which the trial court found did not exist. Moreover, laches operates to bar even a right within the statute of limitations if equity requires. Thus even if we were to disagree with the trial court on the issue of whether a contract existed, its enforcement could still be barred by laches. Beckham v. Tate (1978), 61 Ill. App. 3d 765, 767, 378 N.E.2d 588, appeal denied (1978), 71 Ill. 2d 606; Slatin\u2019s Properties, Inc. v. Hassler (1972), 53 Ill. 2d 325, 330, 291 N.E.2d 641.\nG\u2019Sell also contends that he was receiving \u201cbenefits\u201d and, accordingly, was not on notice that he was being denied his rights. It is not clear what plaintiff defines as benefits, with the exception of the rent-free apartment. The use of the apartment, however, is not inconsistent with defendants\u2019 assertion that plaintiff was merely managing the property on defendants\u2019 behalf.\nNor are we persuaded by G\u2019Sell\u2019s contention that he was misled by certain actions of the Wilsons to believe that he was a general partner. G\u2019Sell claims that a letter written by Wilson to Charles L. Smead refers to G\u2019Sell as \u201cour partner.\u201d This letter was sent on April 15, 1981, and predates both G\u2019Sell\u2019s request to be released from the partnership because of the conflict of interest with his prior partners and the closing of the sale of the North Park. Reliance on this letter after he had failed to assert his partnership interest at the closing is misplaced.\nPlaintiff further argues that laches should not apply because defendants have not been prejudiced by G\u2019Sell\u2019s delay in filing this action. He argues that whatever monies defendants contributed to fund operating deficits for the North Park they were obligated to pay under the agreement. Under the terms of the agreement, however, Enterprises was only required to raise equity for the initial rehabilitation of the North Park, not for ongoing operation expenses. Irrespective of that issue, we concur with the trial court\u2019s finding that defendants would be prejudiced if G\u2019Sell continued to occupy an apartment rent-free while he is no longer providing management services to Wilson Enterprises.\nSince we find that the trial court\u2019s judgment in favor of defendant is proper on the basis of laches, we need not consider the waiver and estoppel arguments addressed by defendants.\nFor the foregoing reasons, we affirm the judgment of the trial court.\nJudgment affirmed.\nQUINLAN, P.J., and BUCKLEY, J., concur.", "type": "majority", "author": "JUSTICE O\u2019CONNOR" } ], "attorneys": [ "Edward T. Joyce and Richard S. Reizen, both of Joyce & Kubasiak, P.C., of Chicago, for appellant.", "Kenneth B. Drost and Anthony G. Giglio, both of Katten, Muchin, Zavis, Pearl, Greenberger & Caller, of Chicago, for appellees." ], "corrections": "", "head_matter": "RICHARD C. G\u2019SELL, Plaintiff-Appellant, v. N. P. ASSOCIATES, LTD., et al., Defendants-Appellees.\nFirst District (1st Division)\nNo. 85\u20143478\nOpinion filed February 9, 1987.\nRehearing denied April 7, 1987.\nEdward T. Joyce and Richard S. Reizen, both of Joyce & Kubasiak, P.C., of Chicago, for appellant.\nKenneth B. Drost and Anthony G. Giglio, both of Katten, Muchin, Zavis, Pearl, Greenberger & Caller, of Chicago, for appellees." }, "file_name": "0171-01", "first_page_order": 193, "last_page_order": 198 }