Opinion
No. 1-12-2607
12-23-2015
KRIS DANIEL and MARK DANIEL, Independent Co-Executors of the Estate of Benjamin S. Daniel, Deceased, Plaintiffs-Appellees and Cross-Appellants, v. DONALD P. RIPOLI, V. JAMES GRIECO, ARNOLD N. SCHORN AND COMPANY, an Illinois Partnership and ARNOLD N. SCHORN AND COMPANY, LLC, an Illinois Limited Liability Company, Defendants-Appellants and Cross-appellees.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 07 CH 1061 The Honorable Rita M. Novak, Judge Presiding. JUSTICE PUCINSKI delivered the judgment of the court.
Justices Lavin and Hyman concurred in the judgment.
ORDER
¶ 1 Held: Appeal by LLC dismissed for lack of jurisdiction; on cross-appeal, we affirm the portions of the court's order finding that defendants Donald Ripoli and James Grieco have no individual liability and denying the estate distributions on death, and remand so that the circuit court may enter an appropriate order regarding the money held in trust pursuant to Illinois Supreme Court Rule 305 (eff. July 1, 2004). ¶ 2 This action was brought by the defendant limited liability company's (LLC) deceased member's estate to recover the amount of LLC distributions allegedly due to the decedent under the member's participating percentage in the LLC's operating agreement. The members had executed an agreement modifying the decedent's participating percentage in the LLC under the operating agreement. The trial court found that the agreement did not effect a permanent change for the member's participating percentages and that, after the years specified in the agreement, the decedent was due the amount of his original participating percentage, which was awarded to the estate. The court entered judgment against the LLC only and held that the individual LLC members had no personal liability. The LLC appealed, arguing that the court misinterpreted the agreement and that the modification was a permanent change in the participating percentages, and the estate cross-appealed, arguing that the other LLC members also had individual liability, that the LLC conversion failed, that the damages were not based on the evidence, and that the estate was further entitled to post-death distributions to the decedent.
¶ 3 BACKGROUND
¶ 4 Beginning in December 1976, defendant Donald Ripoli and plaintiffs' decedent Benjamin Daniel were partners in the public accounting firm of Arnold N. Schorn & Co., an Illinois general partnership. On December 31, 1998, Ripoli and Daniel filed articles of organization and a statement of conversion with the Illinois Secretary of State, which converted the Arnold N. Schorn & Co. partnership into a limited liability company called the Arnold N. Schorn & Co. LLC (the LLC). The statement of conversion stated that "[e]ach partner voted for the conversion." The articles became effective on January 1, 1999. ¶ 5 On June 1, 1999 defendant James Grieco became a member of the LLC, and the members entered into an operating agreement providing that the members' participating percentage of profit allocation would be as follows if the LLC's profit was $600,000 or less: 36.5% to Grieco; 36.5% to Ripoli; and 27% to Daniel. Under the operating agreement, Daniel, Ripoli, and Grieco "approved and ratified" the articles of organization and agreed to operate the business under the Illinois Limited Liability Company Act (805 ILCS 180/1-1 et seq. (West 1998)) and the operating agreement. The operating agreement further provided that "the rights[,] duties and liabilities of the members shall be those provided in the Act as amended from time to time." ¶ 6 According to the operating agreement, the capital account of a deceased member would be paid over to the member's estate within six months of the date of death. The operating agreement provided that "any capital deficit must be eliminated within 60 days of when the deficit occurs." The operating agreement set forth a formula for distributing additional disbursements upon the death of a member. The operating agreement also contained a buy-out provision to be effective upon any member's death. The operating agreement also permitted amendment by majority approval but required consent of the affected member if the amendment would reduce the participating percentage of that member other than on a pro rata basis. ¶ 7 On October 6, 1999, Ripoli and Daniel entered into an amendment to the operating agreement in which they opted out of the buy-out provision and agreed that this provision would not apply to them unless and until a prior bank loan from American National Bank was paid. The evidence did not establish whether this loan was ever paid off. Grieco did not sign this agreement. ¶ 8 On November 3, 2003, the three members met to discuss a disparity between Daniel's participating percentage and the actual income generated from Daniel's clients. As the Daniel's estate's expert, Mike Ryan, testified, from 2000 to 2003 Daniel was given credit for contributing 27%, but his clients paid the LLC only 17%. As a result, Daniel had a negative capital account with the firm. A "capital account" is an accounting term. A capital account represents an accumulation of each member's contributions minus the member's distributions from all prior years and reflects the corresponding amount due between members, if distributions exceed contributions. At trial, Ripoli explained that a capital account is "the difference between *** the earnings of each individual member minus the draws of each individual member." ¶ 9 The minutes from the meeting of November 3, 2003 revealed that Ripoli's book of business was on target with his participating percentage, at approximately 35.85. However, Grieco's book of business in 2003 accounted for approximately 50% of the LLC's income, whereas his participating percentage under the operating agreement was set at 36.5%. Daniel's book of business in 2003 amounted to only 13.5% of the LLC's income, while his participating percentage under the operating agreement was 27%. The minutes also reflect that Daniel's capital account was shown as a negative ($79,379). ¶ 10 Daniel's negative capital account and the disparity between Grieco's and Daniel's contributions in the form of client payments and what each was credited and distributed under the operating agreement created tremendous friction between the partners and threatened to lead to the dissolution of the LLC. The minutes of the members' November 3, 2003 meeting state: "Current ratios will not allow the firm to continue. A disproportionate share of income and draws are directed to Ben Daniel." (Emphases in original.) ¶ 11 On November 24, 2003 the members met again to continue discussing this disparity and discussed various proposals to correct this disparity. The minutes of this meeting indicate that the first option discussed was termination of the firm as of October 31, 2003. The members decided against this option, however, because at the time the firm liabilities exceeded its assets. The second option discussed was that Daniel's clients would remain with the firm but Daniel would "retire" and he would be paid for those clients on a "fee per hour basis." ¶ 12 Under the third option, which is the option the members ultimately agreed upon, the LLC would continue with Daniel as an active member but with adjustments made to his draws. Specifically, the first $100,000 of Daniel's clients' cash payments to the firm would be used to pay Daniel's share of expenses. In the event that Daniel's clients paid more than $100,000 he would then receive a draw limited to a maximum of $5,500 per month or $66,000 annually. If Daniel's clients paid more than $166,000, any difference would be paid to the firm as a reduction of Daniel's negative capital account. The firm would provide Daniel with health and life insurance as a firm expense, with the firm designated as the beneficiary of the life insurance policy. Daniel would also be required to sign a promissory note for his negative capital account. ¶ 13 On December 8, 2003, the members, including Daniel, signed an agreement stating that for the year 2003 the members were not going to follow the participating percentages of the original operating agreement. Instead, they would determine that year's participating percentage based on a review of the LLC's financial statements for the year ending December 31, 2003. The agreement provided as follows: ¶ 14
"THE UNDERSIGNED, MEMBERS OF ARNOLD N. SCHORN & CO., LLC, HEREBY AGREE THAT THE PROFIT ALLOCATION AMONG MEMBERS AS REFLECTED IN THE AGREEMENT SIGNED BY THE MEMBERS IN 1999, WILL NOT APPLY TO THE YEAR 2003.
FOR THE YEAR 2003, THE PROFIT ALLOCATION TO BE USED FOR MEMBERS WILL BE DETERMINED UPON REVIEW OF ARNOLD N. SCHORN &
CO., LLC FINANCIAL STATEMENTS FOR THE YEAR ENDED DECEMBER 31, 2003."¶ 15 On January 14, 2004, the members, including Daniel, signed another agreement titled, "POINTS FOR AGREEMENT - MEMBERS OF LLC - CHANGES TO OPERATING AGREEMENT SIGNED IN 1999." The members agreed to change their capital accounts as of December 2003 to reflect the actual percentages of what each member's clients cash receipts were, minus each member's actual distributions. The agreement provided the following:
"1. CAPITAL ACCOUNTS TO BE RESTATED AS OF 1/1/03 BASED UPON A RATIO OF CASH RECEIPTS PER PARTNER CLIENTS TO TOTAL CASH RECEIPTS APPLIED TO NET INCOME FOR THE YEAR."¶ 16 The agreement provided for an adjustment to each member's capital account beginning in 2003 based on the member's actual income to the firm minus his actual distributions from all prior years, referred to by defendants as a "running scoreboard" concept. Paragraph 2 of the January 14, 2004 agreement identified the percentage of actual cash receipts each member's clients paid to the firm in 2003 and allocated profit and loss accordingly for 2003. ¶ 17 Paragraphs 3 and 4 addressed Daniel's draws for 2004 in detail and provided as follows:
"3. FOR YEAR 2004 - DRAWS FOR BSD [Daniel] LIMITED TO EXCESS OF CASH RECEIPTS FROM BSD MEMBER CLIENTS LESS $100,000. MAXIMUM DRAW DISTRIBUTION IN ANY MONTH LIMITED TO $5,500. IF DRAW SHOULD BE LARGER THAN $66,000 ($5,500 X 12 months) EXCESS TO REDUCE NEGATIVE CAPITAL ACCOUNT. IF COLLECTIONS DO NOT WARRANT A $66,000 DRAW, $5,500 WILL BE REDUCED ACCORDINGLY. HEALTH AND DENTAL INSURANCE, AICPA LIFE INSURANCE AND $50,000 INSURANCE ON
LIFE OF BSD [Daniel] WITH FIRM AS BENEFICIARY, WILL BE CONSTRUED AS OPERATING EXPENSES FOR THIS COMPUTATION. INCOME ALLOCATION WILL BE BASED UPON CASH RECEIPTS FROM MEMBER CLIENTS TO TOTAL CASH RECEIPTS FROM MEMBER CLIENTS.¶ 18 The January 14, 2004 agreement did not specifically address Daniel's draws for any years beyond 2004. ¶ 19 From the beginning of the LLC to the end of 2003, based on actual payments made by Daniel's clients, minus the actual distributions Daniel received, Daniel had a negative capital account of $218,492. This amount was reflected in the January 14, 2004 agreement. ¶ 20 The result of the January 14, 2004 agreement was that Daniel received a substantially reduced distribution. The total distribution to Daniel in 2003 was $210,806. Beginning in January 2004, Daniel received only $500 per month in draws, plus the payment of his health insurance benefits. His total distribution for 2004 was $38,448. For the years 2004, 2005, and 2006, Daniel's participating percentage in the LLC was reduced to 9.3% in 2004, 7.95% in 2005, and 0% in 2006. Daniel accepted these reduced distributions. ¶ 21 In November 2004, Daniel wrote a memo to Ripoli and Grieco to "discuss the compensation policy for Ben Daniel [year 2004] and to discuss what is fair for all concerned." Daniel asserted that the December 8, 2003 agreement was signed regarding "compensation by the partners for 2003 only" and that "nothing has been signed for 2004." Daniel wrote that he wanted $1,000 per month for living expenses and payment for his estimated taxes and health insurance. Daniel wrote in his memo: "The difference between my share of gross collections and the net to me above will be kept by the firm to reduce my deficit in my capital account." Nevertheless, Daniel continued to receive and accept reduced distributions under the reduced participating percentage. ¶ 22 The LLC members all abided by the terms of the January 14, 2004 amendment to the operating agreement until Daniel passed away. Daniel died on July 12, 2006. After Daniel's death, his estate brought this action in a four-count verified complaint against Ripoli, Grieco, the Arnold N. Schorn & Co. partnership, and the LLC, seeking the amount the estate claimed was owed to Daniel under the amended terms of the operating agreement. Count I alleged breach of contract for breach of the buy-sell agreement by Ripoli and the partnership and asserted, as a factual predicate to this claim, that the conversion from a partnership to an LLC failed. Count II sought a declaratory judgment that under the December 8, 2003 agreement and the January 14, 2004 agreement Daniel's participating percentage in the LLC was 27%, the original participating percentage, for the years 2004, 2005, and 2006. Count III sought rescission of the January 14, 2004 agreement based on Grieco and Ripoli's breach of fiduciary duty to Daniel. Count IV sought an accounting. ¶ 23 Defendants filed a two-count counterclaim. Count I sought damages for an account stated for Daniel's negative account to recover all amounts Daniel allegedly owed. Count II was brought by Ripoli individually to recover $1,870.38 he allegedly personally paid as the premiums due on the life insurance policy purchased by the LLC and the balance due on a loan he and Daniel had co-signed dated September 23, 2004. ¶ 24 On March 26, 2009, the Daniel estate field a verified first amended complaint, which alleged the same four original counts, as well as adding two more counts, Counts V and VI. Count V sought a declaratory judgment that the January 14, 2004 agreement was unenforceable for lack of consideration, and Count VI sought a declaratory judgment regarding some of the terms used in the January 14, 2004 agreement. ¶ 25 After discovery, the parties filed cross-motions for summary judgment. The estate filed a motion for summary judgment on Counts I and V and for summary judgment seeking a declaration under Count II that Daniel's participating percentage was 27% (the original operating agreement percentage) for the years 2004, 2005, and 2006. Defendants filed a motion for summary judgment in their favor on Count III. ¶ 26 On February 3, 2010, the court granted the estate's motion for summary judgment as to the issue of Daniel's participating percentage under Count II in part as to 2004, but denied the estate's motion on this count as to the years 2005 and 2006, finding that the January 14, 2004 agreement did not mention the years 2005 and 2006. The court denied the estate's motion for summary judgment on Counts One and Five. ¶ 27 The court granted defendants' motion for summary judgment on Count III (breach of fiduciary duty), finding that the Daniel estate's assertion of the Dead Man's Act rendered them unable to prove that Grieco and Ripoli breached their fiduciary duty to Daniel. ¶ 28 Regarding Count I, the court solicited briefing from the parties and the estate filed a "Motion for the Declaration of the Consequences from the Faulty Conversion." The court denied the estate's motion on July 27, 2010, finding that, notwithstanding the confusing manner in which the LLC members maintained certain partnership documents and tax returns, the LLC conversion occurred as a matter of law under section 37-10 of the Limited Liability Company Act. See 805 ILCS 180/37-10 (West 2010). ¶ 29 The estate then filed an amended complaint asserting the same six counts, which defendants answered. ¶ 30 The court held a bench trial from June 20-22, 2011. The estate relied only on stipulated LLC documents and tax returns and the testimony of its expert, certified public accountant (CPA) Mike Ryan. Ryan testified that Daniel's combined capital account in the LLC at the time of his death was $142,967. The estate entered into evidence Ryan's expert report, which set forth his opinions based on a review of the LLC's books and premised on the assumption that the January 14, 2004 agreement was unenforceable. Daniel's capital account after his death, as of December 31, 2003, was a negative $218,492. Ryan testified that if the January 14, 2004 agreement was "enforceable," then Daniel's capital account would be negative $218,491, based on the assumption that the January 14, 2004 agreement effected a permanent change to the reduced percentage to Daniel. Ryan testified that if the court found the January 14, 2004 agreement was unenforceable, Daniel would be entitled to 27% of the firm's revenue under the original operating agreement, regardless of what his clients actually paid the firm for the years 2004, 2005, and 2006. ¶ 31 Ryan testified that if the partnership was converted into an LLC, and if the January 14, 2004 agreement was effective only through 2004, under the original participating percentages of the LLC for the years 2005 and 2006 Daniel's capital account would have been positive in the amount of $142,967 and that this would have been the amount owed to Daniel. ¶ 32 On cross-examination, Ryan testified that if the January 14, 2004 agreement permanently changed the members' participating percentages to reflect what their clients actually paid to the LLC, Daniel would have a negative capital account and would owe the LLC $110,515. ¶ 33 Defendants moved for a directed finding on Counts II, IV, and V at the close of plaintiffs' case, which the court took under advisement. ¶ 34 Defendants then offered the testimony of Nancy Ciolino, Ripoli (via evidence deposition), and Grieco. Ciolino testified that she was hired by the Arnold N. Schorn & Co. partnership in 1981 as the office manager and was continuously so employed after the partnership was converted to an LLC. As the office manager, Ciolino was responsible for compiling the information used to prepare the LLC's cash receipts and tax returns. Ciolino testified that Daniel never objected to any distributions he received after January 14, 2004 or to any of the tax returns prepared after that date. ¶ 35 Ripoli testified that the parties' readjustment of the income side of the capital accounts was intended to be permanent. ¶ 36 Defendants did not offer any countering expert testimony regarding the calculation of the participating percentages under the operating agreement and the January 14, 2004 agreement. ¶ 37 The court entered an order on July 13, 2011, granting defendants' motion for a directed finding in their favor on Count III, since the court had previously granted defendants summary judgment on this count and the estate's allegations did not change in their subsequent amended verified complaint. The court also granted defendants' motion for directed finding on Counts IV and V of plaintiffs' amended complaint, but denied their motion as to Count II. The estate's motion for a directed finding on Count II of defendants' counterclaim was granted with no objection from defense counsel, as no evidence was presented regarding the claim in Count II of the counterclaim. ¶ 38 On August 11, 2011, the estate filed a post-trial motion to reconsider the portion of the order entered on July 14, 2011 entering judgment in favor of defendants on Count V. The motion was entered and continued. ¶ 39 On February 2, 2012, the court issued an opinion memorandum and judgment in defendants' favor on Counts I, III, IV and V. Regarding Count I, the court found that the estate failed to establish a claim for breach of contract under the previous buy-sell agreement under the partnership because the partnership was legally converted to an LLC as a matter of law under the Illinois Limited Liability Company Act and the conversion did not fail as the estate argued. ¶ 40 The court entered judgment in favor of the estate and against defendants, however, on Count II for declaratory judgment regarding the participation percentages of the members, finding that the January 14, 2004 agreement was enforceable for the year 2004 but did not apply prospectively to 2005 and 2006. The trial court entered judgment in favor of the estate and against defendants on both of defendants' counterclaims. The trial court concluded that under the January 14, 2004 agreement the members had agreed to change the participating percentages for allocating income for 2003 and 2004, but not beyond 2004. The court found that the January 14, 2004 agreement did not mention the years 2005 and 2006. The court awarded the estate $142,967, the amount that was owed to Daniel for 2005 and 2006 under the percentages of the original operating agreement. ¶ 41 Defendants moved for reconsideration, arguing that the members' post-agreement conduct made clear that the changes effected in the January 14, 2004 agreement were permanent, and that the members' intent to rectify the imbalances in their capital accounts would not be accomplished if the agreement applied only temporarily for 2004, as determined by the court. The court denied defendants' motion for reconsideration. The court granted the estate's request for prejudgment interest and costs, totaling $36,122.75, but denied the estate an increase in the award in the amount of $101,351.17 with prejudgment interest, for distributions on death representing life insurance proceeds and post-death collections on accounts receivable allegedly owed to Daniel. ¶ 42 On February 8, 2012, defendants filed an emergency motion to modify the judgment and stay enforcement of the judgment pending the filing of a motion to reconsider the issue of the personal liability of individual defendants Ripoli and Grieco. No order was entered on this emergency motion. ¶ 43 Defendants filed a post-trial motion to reconsider on February 28, 2012, arguing that the court's finding on Count II that the August 14, 2004 agreement did not effect a permanent change in the participating percentages was against the manifest weight of the evidence and that the monetary judgment awarded was inconsistent with its finding. In the alternative, defendants requested that the court modify the judgment on Count II to make it applicable to only the LLC and not against the individual defendants because the individual defendants have no personal liability as members of the LLC by virtue of the Illinois Limited Liability Act. ¶ 44 On July 12, 2012, the trial court entered its final post-judgment order. The trial court granted the estate's post-trial motion to modify the judgment to include pre-judgment interest and costs but denied the motion to modify the judgment to include post-death distributions to Daniel. The trial court denied defendants' motion to reconsider its entry of judgment on Count II but granted the motion to reconsider on the issue of Ripoli and Grieco's personal liability. The judgment was amended to include pre-judgment interest in the amount of $35,741.75 and costs in the amount of $381, for a total monetary judgment of $179,089.75 in favor of the estate against only the LLC defendant. ¶ 45 The LLC appealed, and the estate cross-appealed against the individual defendants Ripoli and Grieco, as well as the LLC. The LLC appealed the trial court's memorandum opinion and judgment entered February 2, 2012 and the court's order of July 12, 2012 denying in part the LLC's motion to reconsider and granting in part the estate's motion to reconsider the court's February 2, 2012 memorandum opinion and judgment. The LLC seeks reversal of the February 2, 2012 memorandum opinion and judgment and the July 12, 2012 order. ¶ 46 The estate's notice of cross-appeal states that the estate cross-appeals the February 2, 2012 memorandum opinion and judgment and also the order of July 12, 2012. The estate seeks reversal of that portion of the order entered on July 12, 2012 finding that defendants Ripoli and Grieco have no individual liability and the portion of the order denying the estate's post-trial motion to modify the February 2, 2012 judgment to reflect an increase in the amount of the judgment for alleged distributions on death that were owed to Daniel, with prejudgment interest. ¶ 47 The LLC filed an emergency motion to, in part, stay enforcement of the judgment. On August 10, 2012, the court entered an order staying enforcement of the judgment pursuant to Illinois Supreme Court Rule 305 (Ill. S. Ct. R. 305 (eff. July 1, 2004)). The court entered another order also on August 10, 2012, upon stipulation of the parties, that the money held in trust by the successor trustee under the "Arnold N. Schorn Company Insurance Trust Agreement" shall be held in trust for the benefit of the Daniel estate pursuant to Supreme Court Rule 305 (Ill. S. Ct. R. 305 (eff. July 1, 2004)) and will not be distributed until further order or resolution of this appeal in favor of the estate. ¶ 48 We issued an opinion in this case on January 28, 2015. Plaintiffs filed a petition for rehearing, which we granted on April 8, 2015. We also ordered the parties to address the impact of Huber v. American Accounting Association, 2014 IL 117293, ¶ 18, where the supreme court held that an Automated Postal Center label reflecting a purchase date was insufficient to show proof of mailing for purposes of the mailbox rule. Defendants filed an answer and plaintiffs filed a reply. Upon consideration, we issue the instant unpublished order pursuant to Supreme Court Rule 23 (eff. July 1, 2011) and dismiss the LLC's appeal for lack of jurisdiction. "Unless there is a properly filed notice of appeal, we lack jurisdiction over the matter and we are obliged to dismiss the appeal." In re Estate of York, 2015 IL App (1st) 132830, ¶ 34. ¶ 49 As to the estate's cross-appeal, we hold that the Illinois Limited Liability Company Act (805 ILCS 180/1-1 et seq. (West 1998)) is clear regarding the requirements for an effective conversion to an LLC, which were met in this case, and that individual LLC members have no personal liability. The estate did not provide any support for its contention that an estate could bring suit against the individual LLC members, thereby forfeiting this argument. Also, the trial court's damage award was firmly based on the evidence presented by the estate's expert and the LLC did not present its own countering expert testimony regarding the calculation of damages. But the estate is not entitled to post-death distributions, as an addendum to the operating agreement provided that no post-death distributions would be paid unless a loan taken by decedent and another LLC member was repaid, and there was insufficient evidence that this loan was in fact repaid. We therefore affirm these portions of the court's order finding that defendants Donald Ripoli and James Grieco have no individual liability and denying the estate distributions on death.
4. E.G. MONTHLY CONTRIBUTORY EXPENSES $8,333. THIS IS CARRIED OVER MONTH TO MONTH MINIMUM CASH REQUIREMENT FOR DRAW TO BE PAID $8,222 X # OF MONTHS - CASH RECEIPTS TO DATE.
COLLECTIONS IN ANY ONE MONTH ARE FIRST APPLIED TO THE $8,333 REQUIRED CONTRIBUTION. DRAW OF UP TO $5,500 CAN THEN BE TAKEN. IF TOTAL RECEIPTS ALLOW.
IF AMOUNT COLLECTED IS LESS THAN $8,333 LESS AMOUNT COLLECTED IS CARRIED OVER TO THE FOLLOWING MONTH. NO DRAW WILL BE TAKEN FOR THAT MONTH. IN THE SUBSEQUENT MONTH THE $8,333 PLUS CARRIED OVER AMOUNT NEEDS TO BE COLLECTED BEFORE A DRAW IS PAID."
¶ 50 ANALYSIS
¶ 51 Plaintiffs argue in the petition for rehearing that the kiosk stamp on Schorn's Notice of Appeal ("Filed 2012 Aug. 2, AM 10:50 Clerk Dorothy Brown") was insufficient to prove that Schorn actually filed the Notice of Appeal timely and that without timely filing of the Notice of Appeal this court lacks jurisdiction. Plaintiffs filed a motion to dismiss based in part on this argument, and we took the motion with the case. ¶ 52 Plaintiffs argue that filing in the office of the clerk of the circuit court of Cook County in one of her self-stamping kiosks does not document when the clerk actually had exclusive control of the document only that it was stamped at a certain time on a certain date. ¶ 53 Defendants argue that the date stamp is prima facie evidence of timely filing with the clerk of the circuit court. ¶ 54 The use of kiosks to self-stamp creates a grey area that this case asks us to explore. ¶ 55 Is the time between the date on the kiosk stamp and the time the document is entered into the clerk's electronic docket assumed by any rule of law or precedent to mean that the document has been in the exclusive control of the clerk of the circuit court? Or, is the time between the kiosk stamp and the time the document is entered into the clerk's electronic docket sufficiently undocumented so as to leave unanswered the question of when the document was actually in the exclusive control of the clerk of the circuit court? ¶ 56 We recognize that in the absence of any local rule, either in the clerk's office or in the circuit court of Cook County, there is a high possibility of mischief with the clerk's self-stamping kiosks. ¶ 57 Self-stamping kiosks are a relatively new addition to the services available to users of the clerk of the circuit court. The kiosks themselves are large, stand-alone boxes with two sections: the top section has the date/time stamping mechanism. The bottom section is an open drop box, that is, documents can be put into and taken out of the drop box by anyone. There is no key or other restricted access. ¶ 58 The user inserts a document into the top section, the stamping mechanism stamps the date and time, and the user removes the document. The user then may put the document into the drop box, but the user could also walk away with the document. There is no internal mechanism that "swallows" the document once it is stamped, and nothing to prevent documents from being removed from the drop box. ¶ 59 At that point, the document is clearly and fully in the control of the user, not the clerk, and could not under any circumstance be considered "filed." ¶ 60 Cases before the advent of self-service kiosks have considered the question of when a document is filed with the clerk. ¶ 61 In Polka v. Turner, 182 Ill. App. 3d 705 (1989), the court considered whether a complaint was filed timely in relation to the statute of limitations where the date stamp indicated a date after the statute had run but counsel presented an affidavit to establish the complaint was delivered to the clerk on time. The clerk stamp on the document stated it was stamped December 8, 1987, at 1:21 a.m. The defendant moved to dismiss based on the statute of limitations, which had ended December 7, 1987. Counsel responded with an affidavit that he had delivered the document to the "custody and control" of the clerk of the circuit court on December 3, 1987. The trial court granted the motion to dismiss. ¶ 62 The court in Polka reasoned: " 'All know that to file a paper in a cause, it must be placed in the hand and under the control of the Clerk *** [as] the purpose and object is to render it a part of the records of his office and that object must be communicated to him in some manner capable of being understood' to old otherwise 'would be to sanction a practice so loose that litigants could, and many times would, suffer a great wrong.' " Polka, 182 Ill. App. 3d at 708 (quoting Hamilton v. Beardslee, 51 Ill. 478, 481 (1869). The court concluded: "Neither the affidavit of [Lambros or Byrne] establishes that the documents were handed to the clerk or to a deputy of that office on December 3, 1987, with direction that the documents were to be filed at that time and that such direction was successfully communicated. *** Evidence of delivery, alone, of a complaint to the clerk's office on one date is insufficient to establish the complaint was then in the clerk's exclusive control such as would overcome prima facie proof the complaint was filed on a different date as indicated by the clerk's stamp. As the supreme court noted in Hamilton, equating mere delivery with filing would create a problematic practice and, we suggest, one open to abuse. We therefore conclude the circuit court was correct in dismissing plaintiff's complaint." Polka, 182 Ill. App. 3d at 708-09. Polka decided that handing the document over was not enough, the date stamp was the evidence of the time of filing. But that was because at the time, the only way to get a date stamp was when the document was in the actual and exclusive control of the clerk. Polka was decided before self-service kiosks. ¶ 63 Plaintiffs look at the flip side: is the kiosk stamp itself prima facie evidence of the date and time of filing when it is clear that the stamp could have been affixed without giving the document over to the control of the clerk? ¶ 64 In Cano v. Village of Dolton, 250 Ill. App. 3d 130, the court again considered when a document was filed: on January 2, 1992, or on January 3, 1992, when both dates were stamped by the clerk of the appellate court, but the first was "obscured by pen scratching and was superscribed 'Void.' " The Petitioner presented an affidavit that he gave the petition to the clerk of the appellate court on January 2, 1992, and was told the computers were not working and that he was to call the office the next day to get his case number. The court noted that neither party disputed the affidavit. The court agreed that the file stamp, January 2, 1992, was timely and accepted jurisdiction of the case. The court stated: "As a rule, the file stamp or mark of the clerk's office can be used to establish that a paper tendered to the court was filed within the requisite time frame ***. However, the file stamp is only prima facie proof of the date when the paper was filed, not a conclusive presumption of filing. It may be rebutted by an affidavit which attests that the filing was tendered on a date other than that appearing on the stamp." Cano, 250 Ill. App. 3d at 136. Cano was also decided before the self-stamping kiosks, and was therefore based on the understanding that the only way to get a document stamped was to give it over to the control of the clerk. While Cano reestablished that the clerk's stamp was prima facie evidence of the date of filing, it also established that affidavits could successfully challenge the date on the clerk's stamp, the situation we have here. ¶ 65 Plaintiffs have provided an affidavit that the Notice of Appeal was not filed on August 2, 2012, because it is not reflected on the clerk's internal electronic docket for that date or any date up to and including August 27, 2012, which is corroborated by a copy of the clerk's electronic chancery ("Passport System") docket printed out September 13, 2012. ¶ 66 In Childs v. Pinnacle Health Care, LLC, 399 Ill. App. 3d 167, one of the issues was the date of filing the notice of appeal in the circuit court. Childs was a mailbox rule case involving a notice of appeal that was mailed to the clerk of the circuit court within the applicable period. Childs had until June 19, 2009, to file her Notice of Appeal. Her affidavit of mailing and proof of service stated she mailed it on June 12, 2009. The Notice of Appeal was file stamped by the clerk of the circuit court on June 16, 2009. "Since the notice of appeal reached the circuit court clerk prior to its due date, we consider the date of filing to be the date that it was received by the clerk evidenced by the file stamp." Childs decided the issue was resolved when the document was "received" by the clerk of the circuit court as evidenced by the file stamp. ¶ 67 Here, we do not know for certain when the clerk of the circuit court received the document because the file stamp was not affixed by the clerk or her deputy, but by a self-service kiosk in her office, but not under her exclusive control. ¶ 68 If the user places the document into the drop box, it is still in the control of the user, since, unlike U.S. Post Office mail boxes, there is no internal flap that prevents the removal of any document - a caution for all users of the kiosks, because mischief comes in all forms: it is entirely possible for someone to inadvertently or by design, remove someone else's document from the drop box. ¶ 69 It is clear that there are only two ways to be certain the document was actually in the exclusive control and possession of the clerk of the circuit court: 1) in the traditional manner of filing: stepping up to the counter, handing the document to the clerk, getting it stamped, taking away your own file copy or copies, and leaving a stamped original in the hands of the clerk; 2) at the time the document is entered into the clerk's data system, since, clearly, the document has to be in some clerk's hands to be able to be data entered. Note that only the first of these confirms the date and time of the actual and exclusive control of the document by the clerk. There is no way to know how long a document sits around until the data entry. It could be hours, days, or even weeks before the data entry is done. Note also that the date the data entry is done is not available on the clerk's public electronic dockets, although that information can presumably be retrieved internally by the clerk's data processing software. That means the time of data entry may include a gap, particularly because at the time of data entry the date of the data entry is not put onto the docket, the date of the stamp on the document is entered instead. ¶ 70 After reviewing the clerk of the circuit court of Cook County's website, we cannot find, nor do the parties provide, any rules mandating when or how often the clerk must remove documents from the drop box, in contrast to the rules of the Northern District of Illinois: "Clerk's office staff will empty the drop box a number of times each business day." We cannot know how often the clerk's staff removes documents from the drop box. Because of this, we cannot know if documents stack up in the drop box for hours, days or even weeks. ¶ 71 Even less certain is when the documents removed from the drop box are entered into the clerk's electronic docket system. ¶ 72 The Illinois Supreme Court recently considered a "kiosk" question. In Huber v. American Accounting, 2014 IL 117293, the court was asked if the self service kiosk postage label of the U.S. Post Office was proof of the date of service under the mailbox rule. The court held it was not, because U.S. Post Office self-service kiosks dispense a postage label when it is bought, but that is not proof of when the document or package was actually mailed, i.e., given over to the exclusive control of the U.S. Post Office, which is essential for operation of the mailbox rule for service. The reasoning is clear: the post office label is not proof of mailing. A self-service kiosk stamp is no more compelling proof that the clerk has actual control of a document. ¶ 73 Certainly, because documents can easily be removed from the clerk's kiosk drop box until some unknown time when a clerk staff person empties the box, and in the interim the user of the drop box could remove the document, or some third party by mistake or design could remove the document, those documents cannot be said to be in the exclusive control of the clerk. ¶ 74 The kiosk stamps provide several possibilities:
1) the person filing a document could stamp the actual document on a given day and place the document in the drop box on the same day, leaving it to the unknown custom and practice of the clerk of the circuit court to actually take possession of the document and enter it into her data system;¶ 75 In the absence of any rules of the circuit court or of the clerk of the circuit court that only documents with a date stamp that is earlier or the same as the date the documents are removed and collected by clerk staff from the drop box AND that documents in the drop box will be collected at regular intervals during each business date, AND that documents filed in the kiosks will be data entered day-for-day, it is impossible for this court to determine that the notice of appeal was in fact under the exclusive control of the clerk of the circuit court on August 2, 2012. But our analysis cannot stop there. ¶ 76 We note that the Chancery printout of September 13, 2012, gives no indication of the Notice of Appeal being filed on August 2, 2012. We cannot determine that this weighs in favor of or against Schorn since it is entirely likely that a kiosk stamped document might not actually be in the electronic docket of the actual division it is meant for, i.e., we do not know if all kiosk stamped documents are collected by clerk staff and then routed to their proper division for data entry, or if the data entry is done in a generic docket instead. ¶ 77 Further, we note that at some later date the full public electronic docket of the clerk's office does not indicate that a notice of appeal and certificate of service were filed on August 2, 2012. However, it is likely that when the data entry was done it was relying on the kiosk date stamp, which may or may not have been the actual date that the document was in the exclusive control of the clerk, again complicating the analysis. ¶ 78 And in the absence of an affidavit and supporting record from the clerk of the circuit court detailing who data entered the Notice of Appeal stamped August 2, 2012, and when, it is impossible to determine what, if any, time lag there was between the kiosk stamping and the entry on the electronic docket, so the electronic docket cannot be proof that anything was actually filed on August 2, 2012, only that a document kiosk stamped August 2, 2012, was put into the queue of documents to be data entered at some point. ¶ 79 We note that the copy of the Notice of Appeal included in the plaintiffs' motion to dismiss has an incomplete fax heading that reads, "8-13-12 10:57 am No. 2055 P 1/2 and 8-13-12 10:57 am No. 2055 P 2/2," whereas the (kiosk) stamp on that fax copy reads, "August 2, 2012." Plaintiffs insinuated come mischief with the fax and the file date. However, because an original blue-stamped copy of the Notice of Appeal with no fax heading is in the brief submitted by Schorn, it appears that the faxed document was actually a copy of a notice of appeal that was faxed to someone from someone on August 13, 2012. There is no fax number on the copy of the fax so the point of origin cannot be determined. ¶ 80 We also note that a blue-stamped copy of the Schorn Notice of appeal, presumably an extra original or a color copy of the original, is included in the Schorn Brief of Defendants-Appellants, filed in the appellate court May 29, 2013. The blue stamp reads, "Filed 1 2012 Aug 2, AM 10:50, Clerk, Dorothy Brown." This is the "kiosk stamp" in question. There is no doubt that the kiosk stamp says August 2, 2012. The only doubt is whether the actual document was in the exclusive control of the clerk on August 2, 2012. ¶ 81 The record on appeal does not contain a copy of the Notice of Filing or the Certificate of Service for the Notice of Appeal. ¶ 82 In most cases, we can look to the Notice of Filing and the Certificate of Service, statements by the attorney, an officer of the court, detailing to whom, how and when he or she provided service of the document to other parties. Although not perfect, since the date an attorney mailed, faxed, sent, or personally delivered the document to other parties may not be the same date as the date it was filed in the clerk's office, the Notice of Filing generally has a space for the date that the actual document was filed, and the Certificate of Service normally gives a good indication of when the actual document was filed and provided to other parties as certified by the attorney. ¶ 83 We caution that relying on the date stamp from a self-service kiosk, particularly on time-sensitive documents, without more, is an invitation to trouble. ¶ 84 And, for the reasons stated above, we strongly urge the circuit court of Cook County and the clerk of the circuit court of Cook County to develop kiosks with internal document control mechanisms and to publish rules for the continued use of self-stamping kiosks that will prevent the issues raised above. ¶ 85 Having now commented several times that it is impossible for this court to conclude when documents stamped in the kiosks are in the exclusive control of the clerk of the circuit court, we turn now to the specifics of this case. We note in the public docket maintained by the clerk of the court that the certificate of services appears to have been filed on August 2, 2012. We say "appears" because, as we said above, we have no idea when the actual document was data entered, only that a document stamped with that date was data entered at some point. Without more from either Daniels or Schorn, i.e., an affidavit from the clerk outlining her procedures for emptying the drop box and queuing up the documents to be data entered, and printouts from the mainframe (metadata) detailing when the documents were data entered and by whom, we find the issue has not been fully presented to this court and decline to assume anything as to the time the clerk had actual control of the Notice of Appeal. ¶ 86 It is particularly vexing that the record does not contain a copy of the Certificate of Service or the Notice of Filing, so that even if we decided that the word of an officer of the court overcomes our reluctance to rely on the kiosk stamp, in this case we do not have the documents of record to make that determination. ¶ 87 Next, we proceed to address the estate's arguments, on cross-appeal, concerning Ripoli and Grieco's individual liability for breach of the prior partnership buy-sell agreement under count I and the estate's alleged right to further compensation in a distribution on death to Daniel. ¶ 88 The estate argues that the court erred in determining that Ripoli and Grieco have no individual liability for breach of contract under count I and erred in granting the defendants' post-judgment motion to modify the judgment to reflect entry of judgment against only the LLC and not the individual defendants. It is within the trial court's discretion whether to grant or deny a motion for rehearing, retrial, modification of judgment, to vacate judgment, or for other relief. Langone v. Schad, Diamond & Shedden, P.C, 406 Ill. App. 3d 820, 830 (2010). ¶ 89 The estate argues that defendants waived this issue by not raising the alleged lack of standing as an affirmative defense in their answer and also by not raising it as an affirmative defense in a motion to dismiss. " '[L]ack of standing in a civil case is an affirmative defense, which will be waived if not raised in a timely fashion in the trial court.' " Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 6 (2010) (quoting Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 508 (1988)). But modifications of judgment within 30 days of judgment in non-jury cases are expressly allowed by section 2-1203 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-1203(a) (West 2012). Defendants, therefore, did timely raise the issue of the estate's lack of standing to sue the individual defendants. They did not waive this issue either below or on appeal. ¶ 90 The Limited Liability Company Act was amended, effective January 1, 1998, from previously allowing personal liability of LLC members to the same extent as shareholders in a corporation to expressly barring any personal liability. See Pub. Act 90-424 (eff. Jan. 1, 1998). Under section 10-10(a) of the Act, members of an LLC have no personal liability:
2) the person filing a document could stamp the actual document on a given day and NOT place the document into the drop box on the same day, but instead take it back to the office and add to it, change pages or take other action, in effect buying some time to complete or correct the document to be filed, and then place the amended document into the drop box at a later time or date giving the impression that it is the original un-amended or complete document "filed" on the earlier stamped day or time;
3) the person filing a document could stamp the document and then place it into the drop box and some other person, either by design or inadvertence could remove the document from the drop box;
4) the person who wishes to file a document could place blank paper into the stamping mechanism on a date certain or a number of blank pages on a series of dates, take those papers back to the office, print out documents on those previously stamped pages of paper and put them into the drop box at a later date again, buying time, making it look like the entire document was stamped on the stamped date, when in fact it was not.
"(a) Except as otherwise provided in subsection (d) of this Section, the debts, obligations, and liabilities of a limited liability company, whether arising in contract, tort, or otherwise, are solely the debts, obligations, and liabilities of the company. A member or manager is not personally liable for a debt, obligation, or liability of the company solely by reason of being or acting as a member or manager." 805 ILCS 180/10-10(a) (West 1998).¶ 91 Section 10-10(a) has remained unchanged since this amendment. 805 ILCS 180/10-10(a) (West 2012). This provision was in effect from the date the partnership was converted to an LLC and has been in effect throughout the duration of this case. ¶ 92 Subsection (d) of section 10-10 provides:
"(d) All or specified members of a limited liability company are liable in their capacity as members for all or specified debts, obligations, or liabilities of the company if:
¶ 93 The legislature clearly removed the provision that allowed a member or manager of an LLC to be held personally liable similar to the Business Corporation Act. "Thus, the Act does not provide for a member or manager's personal liability to a third party for an LLC's debts and liabilities, and no rule of construction authorizes this court to declare that the legislature did not mean what the plain language of the statute imports." Puleo v. Topel, 368 Ill. App. 3d 63, 70 (2006) (citing Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 83 (1994)). ¶ 94 The estate also cannot establish the exception under subsection (d), because there is no provision in the LLC's articles of organization or any other agreement between the members that allows for individual liability of the members to a third party. ¶ 95 In an attempt to avoid the bar of section 10-10, the estate argues that the conversion of the partnership to an LLC "failed" because the LLC members continued to treat certain aspects of the business as a partnership. But the fact that the LLC members continued to treat aspects of the business as a partnership (for instance, filing K-1 partnership tax return statements) does not change the legal status of the business as an LLC. Section 10-10(c) of the Act specifically provides that any inconsistent actions by LLC members does not affect the legal status of the LLC and cannot be a ground for imposing personal liability:(1) a provision to that effect is contained in the articles of organization; and
(2) a member so liable has consented in writing to the adoption of the provision or to be bound by the provision." 805 ILCS 180/10-10(d) (West 1998).
"(c) The failure of a limited liability company to observe the usual company formalities or requirements relating to the exercise of its company powers or management of its business is not a ground for imposing personal liability on the members or managers for liabilities of the company." 805 ILCS 180/10-10(c) (West 1998).¶ 96 Subsection (c) was added by the 1998 amendment to the Act and has been in effect unchanged since then. See Pub. Act 90-424 (eff. Jan. 1, 1998); 805 ILCS 180/10-10(c) (West 2012). The trial court correctly exercised its discretion in granting defendants' motion to amend the judgment. ¶ 97 The estate maintains that Ripoli and Grieco are individually liable because the conversion from a partnership to an LLC failed. We find the estate's argument on this point is without merit. ¶ 98 On December 31, 1998, Ripoli and Daniel, the only members of the original partnership, filed a statement of conversion and articles of organization with the Illinois Secretary of State. This effectively converted the partnership into a limited liability company. Then Grieco joined the newly formed LLC in 1999. ¶ 99 The statement of conversion specifically stated that "[e]ach partner voted for the conversion," which satisfied the statutory requirement that all partners approve a conversion. 805 ILCS 180/37-10(b) (West 1998). Doing so creates a presumption that all prerequisites to formation have been satisfied. 805 ILCS 180/5-40(a) (West 1998). Under section 5-40 of the Illinois Limited Liability Company Act, "[u]pon the filing of the articles of organization by the Secretary of State, the limited liability company's existence shall begin." 805 ILCS 180/5-40(a) (West 1998). ¶ 100 The estate also argues that the conversion to an LLC failed because the partnership assets did not vest in the LLC. This argument is entirely refuted by the Act. Under section 37-15(b) of the Act, the entity essentially remains unchanged and "is for all purposes the same entity that existed before the conversion." 805 ILCS 180/37-15(a) (West 1998). The assets do not need to be transferred to vest in the newly formed LLC. Section 37-15 of the Illinois Limited Liability Company Act provides that all assets of the partnership automatically become assets of the LLC upon conversion:
"(b) When a conversion takes effect:
(1) all property owned by the converting partnership or limited partnership vests in the limited liability company;
(2) all debts, liabilities, and other obligations of the converting partnership or limited partnership continue as obligations of the limited liability company;
(3) an action or proceeding pending by or against the converting partnership or limited partnership may be continued as if the conversion had not occurred;¶ 101 The estate argues that the court incorrectly relied on section 10-10 when section 15-20 of the Act allows actions by a member against other members of an LLC to enforce the member's rights under the operating agreement. Section 15-20 provides, in relevant part:
(4) except as prohibited by other law, all of the rights, privileges, immunities, powers, and purposes of the converting partnership or limited partnership vest in the limited liability company; and
(5) except as otherwise provided in the agreement of conversion under Section 37-10, all of the partners of the converting partnership continue as members of the limited liability company." 805 ILCS 180/37-15(b) (West 1998).
"(a) A member may maintain an action against a limited liability company or another member for legal or equitable relief, with or without an accounting as to the company's business, to enforce all of the following:¶ 102 Here, however, the claims against the LLC and Ripoli and Grieco were brought by Daniel's estate, not by Daniel. Section 15-20(a) expressly provides only for an action by a "member." It does not also allow for actions by the member's representatives, agents, or a member's estate. The plain language of section 15-20(a) of the Act is expressly limited to only members. In the event of an individual member's death, the member becomes disassociated from the LLC. See 805 ILCS 180/35-45(8)(A) (West 1998). The estate cites to no authority allowing actions against individual members of an LLC by a member's estate. In its cross-appeal, as the appellant on this claim of error the estate must provide this court with authority to support its claim of error, and the failure to do so renders the argument forfeited. See Ill. Sup. Ct. R. 341(e)(7) (eff. Apr. 11, 2001); Chicagoland Chamber of Commerce v. Pappas, 378 Ill. App. 3d 334, 364 (2007). The estate has provided no authority that an estate can maintain an action against individual LLC members. As such, the estate has forfeited its argument that it could properly maintain an action against the individual defendants and obtain a judgment against them. ¶ 103 Under the Act, once the partnership was converted to an LLC with the Illinois Secretary of State, it legally became an LLC and no inconsistent actions of the members can change this legal fact. Once a partnership is converted to an LLC, it legally becomes an LLC and remains an LLC despite any inconsistent actions of its members. Members of an LLC have no individual liability to nonmembers. The Act is clear on both of these points. The court did not abuse its discretion in modifying the judgment on Count II to reflect judgment against only the LLC and not the individual defendants Ripoli and Grieco. We affirm the court's ruling on this issue. ¶ 104 The estate also argues that the court erred in denying its motion to modify the judgment to include distributions upon death to Daniel, which include $50,000 in life insurance proceeds and the post-death collection of accounts receivable. As noted above, the disposition of a motion to amend a judgment is reviewed for abuse of discretion. See Federal Kemper Life Assurance Co., 266 Ill. App. 3d at 98. We hold the trial court did not abuse its discretion in refusing to award the estate any distributions upon death. ¶ 105 Section 9.5 of the operating agreement provided for distributions upon death, but the addendum to the operating agreement dated October 6, 1999, provided that there would be no distribution upon death unless and until a preexisting loan from American National Bank was paid. The addendum specifically provided: "After each former partner and now member's estate has finally paid its share (50%) of the bank loan, Section 9.5 will apply as to the remaining collections on outstanding receivables at the date of death ***." ¶ 106 The estate argues that defendants waived the issue of this "condition precedent" to the post-death distributions, but this was one of the estate's counterclaims, on which it had the burden of proof. Regardless of whether defendants raised any defense on this issue, the estate had the burden of proof. ¶ 107 The trial court found that the estate did not provide evidence establishing that this loan was repaid. This finding is not against the manifest weight of the evidence. The estate relies on Ryan's testimony that he reduced Daniel's capital account by $1,458, which was half of the balance of the loan. The estate thus interprets the provision in the addendum to mean that once either individual member pays its share (half) of the bank loan, then section 9.5 would apply and allow distributions on death. The addendum, however, requires "each former partner and now member's estate" to pay its share of the loan before section 9.5 would apply. The estate itself argues in its brief on appeal that "[i]t is clear from the language of the Addendum itself that the requirement that the Note be paid in full before any distributions on death were made was intended to benefit both Mr. Daniel and Ripoli, upon the death of the first to die." (Emphasis added.) Thus, the estate recognizes that the addendum in fact required that the entire loan be repaid before section 9.5 would apply. ¶ 108 Even assuming as true that Daniel repaid his share of the loan, there was no evidence that Ripoli paid his share of the loan. Further, Ripoli sought reimbursement in the counterclaim from the estate of $1,000, which he, not Daniel, paid for Daniel's share of the loan. Although the estate maintains on appeal that there was "substantial, reliable and uncontroverted evidence" that the loan was repaid, from our review of the evidence at trial, there was no evidence that this loan was in fact repaid. We therefore affirm the portion of the order of July 12, 2012 denying the estate's motion to modify the judgment to include the distribution upon death.
(1) The member's rights under the operating agreement.
(2) The member's rights under this Act.
(3) The rights and otherwise protect the interests of the member, including rights and interests arising independently of the member's relationship to the company." 805 ILCS 180/15-20(a) (West 2012).
http://www.ilnd.uscourts.gov/home/clerksoffice/CLERKS_OFFICE/dropbox.htm --------
¶ 109 CONCLUSION
¶ 110 For the reasons stated, we find that this court does not have jurisdiction to consider the merits of the LLC's appeal. However, we affirm the portions of the court's judgment entered on July 12, 2012 finding that defendants Ripoli and Grieco have no individual liability and denying the estate's motion to modify the February 2, 2012 judgment to include distributions on death. We remand so that the circuit court may enter an appropriate order regarding the money held in trust pursuant to Illinois Supreme Court Rule 305 (eff. July 1, 2004). ¶ 111 Dismissed in part, affirmed in part, and remanded.