{ "id": 4277783, "name": "LEE A. FREEMAN, JR., as Personal Representative of the Estate of Brena D. Freeman, et al., Plaintiffs and Counterdefendants-Appellees, v. RICHARD WILLIAMSON, as Successor Liquidating Trustee of Lipper Fixed Income Fund, L.P., Defendant and Counterplaintiff-Appellant", "name_abbreviation": "Freeman v. Williamson", "decision_date": "2008-06-24", "docket_number": "No. 1-07-2058", "first_page": "933", "last_page": "941", "citations": [ { "type": "official", "cite": "383 Ill. App. 3d 933" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "293 A.2d 662", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1972, "pin_cites": [ { "page": "667" } ], "opinion_index": 0 }, { "cite": "61 N.J. 190", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1931846 ], "year": 1972, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nj/61/0190-01" ] }, { "cite": "425 N.E.2d 522", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "525" } ], "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 722", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3100949 ], "year": 1981, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0722-01" ] }, { "cite": "590 N.E.2d 1013", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1015" } ], "opinion_index": 0 }, { "cite": "227 Ill. App. 3d 148", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5794097 ], "year": 1992, "pin_cites": [ { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/227/0148-01" ] }, { "cite": "780 N.E.2d 660", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "664" }, { "page": "664" }, { "page": "664" } ], "opinion_index": 0 }, { "cite": "202 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442060 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "311" }, { "page": "311" }, { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0304-01" ] }, { "cite": "526 N.E.2d 463", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "172 Ill. App. 3d 184", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5083909 ], "year": 1988, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/172/0184-01" ] }, { "cite": "770 N.E.2d 177", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "194" }, { "page": "194" } ], "opinion_index": 0 }, { "cite": "199 Ill. 2d 325", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58932 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "351" }, { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0325-01" ] }, { "cite": "835 N.E.2d 801", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "821" } ], "opinion_index": 0 }, { "cite": "216 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3828029 ], "year": 2005, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0100-01" ] }, { "cite": "736 N.E.2d 1174", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1178" } ], "opinion_index": 0 }, { "cite": "316 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096600 ], "year": 2000, "pin_cites": [ { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0581-01" ] }, { "cite": "876 N.E.2d 273", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "277" } ], "opinion_index": 0 }, { "cite": "376 Ill. App. 3d 459", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4272565 ], "year": 2007, "pin_cites": [ { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/376/0459-01" ] }, { "cite": "800 N.E.2d 1232", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "1236" } ], "opinion_index": 0 }, { "cite": "344 Ill. App. 3d 720", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3778396 ], "year": 2003, "pin_cites": [ { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0720-01" ] }, { "cite": "Del. Code Ann. tit. 6, \u00a717", "category": "laws:leg_statute", "reporter": "Del. Code Ann.", "weight": 8, "opinion_index": 0 } ], "analysis": { "cardinality": 802, "char_count": 23030, "ocr_confidence": 0.819, "pagerank": { "raw": 9.653188490067476e-08, "percentile": 0.5280610954538276 }, "sha256": "5f2c12d5943adaa30c75b6b43a6aea567b384d0c8e301f4649d92efb782b5ae1", "simhash": "1:297585fc8ff89d3a", "word_count": 3654 }, "last_updated": "2023-07-14T19:46:05.228492+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LEE A. FREEMAN, JR., as Personal Representative of the Estate of Brena D. Freeman, et al., Plaintiffs and Counterdefendants-Appellees, v. RICHARD WILLIAMSON, as Successor Liquidating Trustee of Lipper Fixed Income Fund, L.P., Defendant and Counterplaintiff-Appellant." ], "opinions": [ { "text": "JUSTICE KARNEZIS\ndelivered the opinion of the court:\nThis appeal arises from an order by the circuit court granting a declaratory judgment of nonliability in favor of plaintiffs Lee A. Freeman, Jr., as personal representative of the estate of Bre\u00f1a D. Freeman; the Bre\u00f1a and Lee A. Freeman, Sr., Charitable Annuity Lead Trust; the Lee A. Freeman, Jr., Irrevocable Family Trust; Crispin Freeman; Clark Freeman; and Cassidy Freeman (plaintiffs) and dismissing counterclaims filed by defendant Richard Williamson, the successor liquidating trustee (Trustee) of the Lipper Fixed Income Fund, L.P. (the fund), a Delaware limited partnership, against plaintiffs, who were former limited partners/investors in the fund. The court found Trustee\u2019s claims against plaintiffs were time-barred under the provisions of the Delaware Revised Uniform Limited Partnership Act (6 Del. Code Ann. tit. 6, \u00a717 \u2014 101 et seq. (1999)) (Delaware Act). On appeal, Trustee argues the court erred in finding his claims time-barred under Delaware law because the claims did not arise under the partnership agreement or under the Delaware Act. We affirm.\nBACKGROUND\nThe fund was a limited partnership organized under Delaware law in 1993. Its principal place of business was New York, New York. Investors joined the fund as limited partners by entering into a partnership agreement with the general partner, Lipper & Company, L.P, also a Delaware limited partnership (the general partner). Pursuant to the agreement, limited partners had no role in the management of the fund, their participation being limited to making capital contributions to the fund which would be credited to each limited partner\u2019s individual capital account. The value of the capital accounts increased or decreased according to each limited partner\u2019s capital contribution to the fund and pro rata share of any gains or losses in the fund\u2019s assets/investments. The agreement assigned the general partner complete control to manage the fund, including the power to invest the fund\u2019s assets, maintain the fund\u2019s accounts and records, value the fund\u2019s assets and send the limited partners monthly statements of the value of their capital accounts and any increases and losses therein resulting from the fund\u2019s operation as determined by the general partner.\nSection 10.05 of the agreement, titled \u201cGoverning Law,\u201d provides:\n\u201cNotwithstanding the place where this Agreement may be executed by any of the parties, the parties expressly agree that all the terms and provisions hereof shall be construed under the laws of the State of Delaware and, without limitation thereof, that the Partnership Act as now adopted or as may be hereafter amended shall govern the partnership aspects of this Agreement.\u201d\nThe agreement defines \u201cPartnership Act\u201d as \u201cthe Delaware Revised Uniform Limited Partnership Act, as amended from time to time,\u201d i.e., the Delaware Act (6 Del. Code Ann. tit. 6, \u00a717 \u2014 101 (1999)) (Delaware Act).\nSection 17 \u2014 607(c) of the Delaware Act provides that \u201c[ujnless otherwise agreed, a limited partner who receives a distribution from a limited partnership shall have no liability under this chapter or other applicable law for the amount of the distribution after the expiration of 3 years from the date of the distribution.\u201d 6 Del. Code Ann. tit. 6, \u00a717 \u2014 607(c) (1999).\nPlaintiffs, residents of Illinois, variously became limited partners in the fund in 1993 and 1994 by entering into a limited partnership agreement with the general partner. Plaintiffs each contributed to and received distributions from their respective capital accounts during their participation in the fund. In 1999, plaintiffs withdrew from participation in the limited partnership. By October 1999, each had ceased being a limited partner and received final distributions from the fund of the balances in his or her capital account as determined by the general partner.\nIn 2002, upon the resignation of the fund\u2019s portfolio manager, the general partner discovered that the fund\u2019s assets had been cumulatively overstated by more than $329 million for the period between January 1995 and 2001. It made the decision to liquidate the fund. In 2002, the Supreme Court of New York granted approval for the liquidation and, in 2003, appointed Trustee to oversee the liquidation. In 2004, the New York court authorized Trustee to pursue the partnership\u2019s rights against third parties.\nTrustee determined that limited partners such as plaintiffs, who received distributions from the fund during the overvaluation period, received overvalued distributions, i.e., more than they were entitled to receive. Although conceding that plaintiffs were unaware of the overvaluations and innocently received the overpayments, in 2006, Trustee demanded plaintiffs return the overpayments and threatened to sue them if they did not return certain specified portions of the distributions they had received.\nPlaintiffs refused to return the alleged overpayments and filed a declaratory judgment action in the circuit court of Cook County in 2006 seeking a determination by the court of the rights of the parties under both the agreement and the Delaware Act. They sought a finding that they were not liable to the Trustee or the fund for any amounts received as past distributions. Plaintiffs argued, in relevant part, that Trustee\u2019s claims were time-barred due to the expiration of the three-year liability period for distributions stated in section 17\u2014 607(c) of the Delaware Act and that the agreement itself provided that a partner had no obligation to restore a negative balance in its capital account. Trustee answered and filed a three-count counterclaim for unjust enrichment, money had and received and conversion.\nPlaintiffs filed a combined motion pursuant to sections 2 \u2014 615(e) and 2 \u2014 619 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2 \u2014 615(e), 2 \u2014 619 (West 2006)) for judgment in favor of plaintiffs on the declaratory judgment and dismissal of the counterclaims as a matter of law, asserting in relevant part the expiration of the three-year period provided in section 17 \u2014 607(c). The court granted dismissal of the conversion counterclaim. It denied the motion regarding the declaratory judgment action and the unjust enrichment and money had and received counterclaims.\nSubsequently, the court, sua sponte, reconsidered and reversed its decision, finding in favor of plaintiffs on both the declaratoiy judgment action and dismissal of the two remaining counterclaims. The court determined that the agreement applied to the counterclaims; Delaware law applied to the agreement; the three-year statute of limitations in section 17 \u2014 607(c) applied to the counterclaims; and Trustee\u2019s efforts to recoup the overpayments were, therefore, time-barred by the terms of the agreement. The court dismissed the counterclaims with prejudice.\nTrustee timely appealed pursuant to Supreme Court Rules 301 and 303 (155 Ill. 2d Rs. 301, 303), contesting the court\u2019s grant of a declaratory judgment of nonliability to plaintiffs and dismissal of Trustee\u2019s unjust enrichment and money had and received counterclaims. Trustee does not contest the court\u2019s dismissal of its counterclaim for conversion.\nANALYSIS\nStandard of Review\nThe court granted judgment in favor of plaintiffs on their motion for a declaratory judgment of nonliability and on their motion to dismiss Trustee\u2019s counterclaims pursuant to sections 2 \u2014 615 and 2 \u2014 619, holding the Delaware Act and section 17 \u2014 607(c) in particular applied to Trustee\u2019s actions pursuant to the agreement and operated to bar his actions. Where, as here, the court\u2019s decision to grant a declaratory judgment is not based on factual determinations but rather on a pure question of law, we review the court\u2019s decision de novo. Inland Land Appreciation Fund, L.P. v. County of Kane, 344 Ill. App. 3d 720, 724, 800 N.E.2d 1232, 1236 (2003); Universal Casualty Co. v. Lopez, 376 Ill. App. 3d 459, 463, 876 N.E.2d 273, 277 (2007). We similarly apply de novo review to a court\u2019s grant of a motion to dismiss under either section 2 \u2014 615 or 2 \u2014 619 (Neppl v. Murphy, 316 Ill. App. 3d 581, 583, 736 N.E.2d 1174, 1178 (2000)) and to the construction, interpretation, or legal effect of a contract (Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 129, 835 N.E.2d 801, 821 (2005)).\nApplication of Delaware Law\nThe sole issue here is whether the court erred in applying the three-year restriction in section 17 \u2014 607(c) of the Delaware Act to Trustee\u2019s action to recoup the overpayments. The validity of the counterclaims is not at issue, only whether Trustee is time-barred from asserting them.\nThe partnership agreement expressly incorporates section 17 \u2014 607 of the Delaware Act into the agreement. Section 7.04 of the agreement provides, in relevant part, that the right of a withdrawn partner to receive distributions from the partner\u2019s capital account \u201cis subject to the provision by the General Partner for all fund liabilities in accordance with Section 17 \u2014 607 of the Partnership Act and other applicable law.\u201d Further, section 10.05 of the agreement provides:\n\u201cNotwithstanding the place where this Agreement may be executed by any of the parties, the parties expressly agree that all the terms and provisions hereof shall be construed under the laws of the State of Delaware and, without limitation thereof, that the Partnership Act as now adopted or as may be hereafter amended shall govern the partnership aspects of this Agreement.\u201d\nAccordingly, the Delaware Act and, specifically, section 17 \u2014 607 of the Delaware Act are incorporated into the agreement by reference.\nSection 17 \u2014 607(a) of the Delaware Act provides that a partnership cannot make distributions to a partner if such would cause the liabilities of the partnership to exceed its assets, thus protecting creditors of the partnership. 6 Del. Code Ann. tit. 6, \u00a717 \u2014 607(a) (1999). Section 17 \u2014 607(b) provides that limited partners receiving distributions in violation of section 17 \u2014 607(a) with knowledge of the violation are hable to the partnership for the distribution, while limited partners with no knowledge of the violation are not liable for any such distribution. 6 Del. Code Ann. tit. 6, \u00a717 \u2014 607(b) (1999). Section 17 \u2014 607(b) also provides that \u201c[sjubject to [section 17 \u2014 607(c)], [17 \u2014 607(b)] shall not affect any obligation or liability of a limited partner under an agreement or other applicable law for the amount of a distribution.\u201d 6 Del. Code Ann. tit. 6, \u00a717 \u2014 607(b) (1999).\nSection 17 \u2014 607(c) provides that, \u201c[u]nless otherwise agreed, a limited partner who receives a distribution from a limited partnership shall have no liability under this chapter or other applicable law for the amount of the distribution after the expiration of 3 years from the date of the distribution.\u201d 6 Del. Code Ann. tit. 6, \u00a717 \u2014 607(c) (1999). Section 17 \u2014 607(c) is unambiguous: a limited partner is not hable for any distribution received from a limited partnership, regardless of whether that distribution violated section 17 \u2014 607(a) or \u201cother applicable law,\u201d if more than three years have passed since the distribution. Although Trustee argues to the contrary, section 17 \u2014 607(c) does not apply only to distributions resulting in a partnership\u2019s inability to satisfy its creditors, i.e., distributions violating section 17 \u2014 607(a). Section 17 \u2014 607(c) states that a limited partner \u201cshall have no liability under this chapter or other applicable law\u201d (emphasis added) (6 Del. Code Ann. tit. 6, \u00a717 \u2014 607(c) (1999)), making clear that no matter what the basis for liability might be, the three-year expiration period applies. It is uncontested that more than three years have passed since plaintiffs received the distributions which Trustee seeks to partially recoup. Accordingly, if section 17 \u2014 607(c) applies to those distributions, plaintiffs are no longer liable for the return of the distributions and Trustee is time-barred from pursuing any claims for them.\nIt is uncontested that, if Illinois law applies to Trustee\u2019s counterclaims, the claims are not time-barred. Trustee\u2019s position, therefore, is that Illinois law rather than Delaware law applies to his efforts to recoup the overpayments and the court erred in holding otherwise.\nTrustee argues Illinois law applies to his claims because section 17 \u2014 607(c) of the Delaware Act is a statute of limitation. Citing Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 770 N.E.2d 177 (2002), Trustee asserts that, notwithstanding the agreement\u2019s choice of law provision selecting Delaware law to apply to the agreement, because the issue here concerns a statute of limitations, the law of the forum, Illinois, controls. So long as a choice of law provision does not contravene Illinois public policy and there is some relationship between the chosen forum and the parties to the transaction, an express choice of law provision will be given full effect. Hartford v. Burns International Security Services, Inc., 172 Ill. App. 3d 184, 187, 526 N.E.2d 463 (1988). However, Belleville Toyota, Inc. provides that, although a choice of law provision generally will be honored, the law of the forum will control as to statute of limitations matters because statutes of limitations are procedural, fixing the time in which the remedy for a wrong may be sought rather than altering substantive rights. Belleville Toyota, Inc., 199 Ill. 2d at 351, 770 N.E.2d at 194. In Belleville Toyota, Inc., the parties\u2019 contract contained a choice of law provision stating that California law would govern the contract. The court, therefore, applied California substantive law pursuant to the choice of law provision but, to determine the timeliness of the plaintiff\u2019s claim under contract, applied Illinois law to the statute of limitations issue.\nPlaintiffs respond that Delaware law should apply to Trustee\u2019s claims because the three-year restriction in section 17 \u2014 607(c) is a statute of repose rather than a statute of limitations. A statute of repose differs from a statute of limitations in that it is substantive rather than procedural. Ferguson v. McKenzie, 202 Ill. 2d 304, 311, 780 N.E.2d 660, 664 (2001). While a statute of limitations merely gives a time limit for bringing a cause of action, with the time beginning when the action has ripened or accrued, a statute of repose extinguishes any right to bring the cause of action, regardless of whether it has accrued or whether any injury has resulted. Ferguson, 202 Ill. 2d at 311, 780 N.E.2d at 664; Cornett v. Gromann Service Co.-Retail, 227 Ill. App. 3d 148, 150, 590 N.E.2d 1013, 1015 (1992).\n\u201cA statute of repose gives effect to a policy different from that advanced by a statute of limitations; it is intended to terminate the possibility of liability after a defined period of time, regardless of a potential plaintiffs lack of knowledge of his or her cause of action.\u201d Ferguson, 202 Ill. 2d at 311, 780 N.E.2d at 664. The function of a statute of repose \u201c \u2018is thus rather to define substantive rights than to alter or modify a remedy.\u2019 \u201d Thornton v. Mono Manufacturing Co., 99 Ill. App. 3d 722, 726, 425 N.E.2d 522, 525 (1981), quoting Rosenberg v. Town of North Bergen, 61 N.J. 190, 199, 293 A.2d 662, 667 (1972). Because a statute of repose is substantive, where an issue concerns a statute of repose, a choice of law provision governs. Belleville Toyota, Inc., 199 Ill. 2d at 351, 770 N.E.2d at 194.\nSection 17 \u2014 607(c) is a statute of repose. Its provision that, \u201c[u]n-less otherwise agreed, a limited partner who receives a distribution from a limited partnership shall have no liability under this chapter or other applicable law for the amount of the distribution after the expiration of 3 years from the date of the distribution\u201d clearly terminates the possibility of the limited partner\u2019s liability after a defined period of time, three years after receiving a distribution, regardless of whether a potential plaintiff knows of his or her cause of action. Section 17 \u2014 607(c) defines substantive rights. It does not merely alter or modify a time period within which a cause of action may be brought after accrual but, rather, extinguishes any right a potential plaintiff has to bring a cause of action against a limited partner for a distribution without regard to whether a cause of action has actually accrued or whether any injury has resulted. Accordingly, because section 17 \u2014 607(c) is a statute of repose affecting substantive rights, to determine the timeliness of Trustee\u2019s claims under the agreement, we must apply Delaware law pursuant to the parties\u2019 choice of law provision. Under Delaware Act section 17 \u2014 607(c), Trustee\u2019s claims filed more than three years after plaintiffs received the contested distributions are time-barred.\nTrustee argues, however, that his claims do not arise under the partnership agreement and, therefore, the choice of law provision does not apply to his claims. We grant that there is no provision in the agreement which deals directly with the issue of overpayments to partners or with the obligations of partners who have withdrawn from the partnership to reimburse the partnership for overpayments. Indeed, there is no provision in the agreement that addresses the obligations of a limited partner after that partner has withdrawn from the partnership and ceased to be a partner, i.e., become a \u201cformer partner\u201d as defined by the agreement.\nAs plaintiffs point out, section 8.03 of the agreement does provide that \u201c[n]o partner shall have an obligation to restore a negative balance in its capital account.\u201d However, we do not find this section evidence that the agreement covers the issue of overpayments to former partners or that Trustee\u2019s claims are, therefore, specifically prohibited by the agreement through section 17 \u2014 604(c). First, section 8.03 applies to \u201cpartners,\u201d not to \u201cformer partners,\u201d such as plaintiffs, who have withdrawn from the partnership and have, by definition, ceased to be partners. Second, as limited partners who have withdrawn from the partnership, plaintiffs no longer have capital accounts, let alone capital accounts with a negative balance. Section 8.03 is clearly not applicable to the situation at bar. Accordingly, Trustee is correct that the agreement does not address directly the situation he seeks to remedy by recouping alleged overpayments from plaintiffs.\nNevertheless, we find Trustee\u2019s claims do arise under the partnership agreement. The agreement sets the general partner\u2019s duty to val\u00faate the fund\u2019s assets and make distributions to limited partners in the fund and the limited partners\u2019 right to receive such distributions. There is, therefore, no question that any distributions plaintiffs received were made pursuant to the terms of the agreement. In that same agreement, the parties agreed that any terms and provisions of the agreement would be construed under Delaware law and partnership aspects of the agreement would be governed by the Delaware Act. A distribution received from the partnership pursuant to the agreement is clearly a partnership aspect of the agreement. The \u201cpartnership aspect\u201d of such a distribution does not cease to exist merely because the partner receiving the distribution ceases to be a partner. The nature of the distribution does not change when the status of its holder changes.\nFurther, the agreement incorporates section 17 \u2014 607(c) by both direct (section 7.03 of the agreement) and indirect (choice of law section 10.05) reference. Section 17 \u2014 607(c) specifically refers to distributions received by limited partners from the limited partnership. There is no question the distributions Trustee is claiming are such distributions. There is, therefore, also no question that those distributions are, through the incorporation of section 17 \u2014 607(c) into the agreement and its reference to distributions received by limited partners, incorporated into the agreement as well and Trustee\u2019s claims against those distributions arise under the agreement. Because the Trustee\u2019s efforts to recoup the excess distributions arise under the agreement, Delaware law applies to those efforts. Applying section 17 \u2014 607(c) of the Delaware Act to Trustee\u2019s claims, we find the claims time-barred.\nFor the reasons stated above, we affirm the decision of the circuit court.\nAffirmed.\nHOFFMAN, EJ\u201e and SOUTH, J\u201e concur.\nPursuant to section 13 \u2014 205 of the Code, Illinois has a general five-year statute of limitation for civil actions. Section 13 \u2014 205 provides:\n\u201c[A]ctions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.\u201d 735 ILCS 5/13 \u2014 205 (West 2006).\nApplying the discovery rule, Trustee\u2019s cause of action accrued in 2002 when the fund discovered that its assets had been overvalued for a period of years and that partners who received distributions during that period received more money than they were entitled to receive. Trustee\u2019s 2006 action to reclaim the overpayments was, therefore, within the five-year limitations period in section 13 \u2014 205 and would not be time-barred under Illinois law.\nThroughout the agreement, provisions specifically refer to \u201cpartners,\u201d \u201cformer partners,\u201d \u201cgeneral partners,\u201d \u201cformer general partners,\u201d \u201climited partners\u201d and \u201cformer limited partners,\u201d clearly indicating that a \u201cpartner,\u201d whether general or limited, is not the same as a \u201cformer partner.\u201d Section 2.09(e) of the agreement defines \u201cformer limited partners\u201d and \u201cformer general partners\u201d as \u201cpersons or entities which from time to time cease to be limited partners or a general partner, as the case may be, under this agreement.\u201d Section 7.03 of the agreement specifies that, a \u201climited partner ceases to be a partner\u201d on the effective date of the limited partner\u2019s withdrawal from the partnership/fund. Therefore, when plaintiffs withdrew from the partnership in 1999, they ceased to be \u201climited partners\u201d and became \u201cformer limited partners\u201d or \u201cformer partners.\u201d\nSee footnote 2.", "type": "majority", "author": "JUSTICE KARNEZIS" } ], "attorneys": [ "Lasky & Rifkind, Ltd., of Chicago (Norman Rifkind, Leigh R. Lasky, and Amelia S. Newton, of counsel), and Labaton Sucharow LLf) of New York, New York (Joseph Einstein and Jonathan Gardner, of counsel), for appellant.", "Jenner & Block, LLP (Richard P Campbell, of counsel), and Law Offices of Nancy A. Temple, both of Chicago, for appellees." ], "corrections": "", "head_matter": "LEE A. FREEMAN, JR., as Personal Representative of the Estate of Brena D. Freeman, et al., Plaintiffs and Counterdefendants-Appellees, v. RICHARD WILLIAMSON, as Successor Liquidating Trustee of Lipper Fixed Income Fund, L.P., Defendant and Counterplaintiff-Appellant.\nFirst District (2nd Division)\nNo. 1\u201407\u20142058\nOpinion filed June 24, 2008.\nLasky & Rifkind, Ltd., of Chicago (Norman Rifkind, Leigh R. Lasky, and Amelia S. Newton, of counsel), and Labaton Sucharow LLf) of New York, New York (Joseph Einstein and Jonathan Gardner, of counsel), for appellant.\nJenner & Block, LLP (Richard P Campbell, of counsel), and Law Offices of Nancy A. Temple, both of Chicago, for appellees." }, "file_name": "0933-01", "first_page_order": 949, "last_page_order": 957 }