¶1dissenting.
¶2Appellant Kelly voluntarily entered into a partnership contract which expressly provided in pertinent part, as follows:
6. Termination and Buy-Out. This agreement and this partnership may be terminated by any partner beginning One Hundred Twenty (120) days after notice in writing of intention to do so is given to the other partners. In the event of the death, retirement, or withdrawal of a partner, such partner shall be paid in accordance herewith and as computed hereunder, his net capital account, his vested interest in receivables, and his vested interest in contingent fee cases
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¶3(Emphasis added.) I agree with the Court of Appeals that this provision of the contract contains no specific provision describing what is to become of the interests of the remaining partners when the withdrawing partner is paid off. However, I disagree that it is silent on and does not cover that subject. Language may carry meaning by virtue of its specific context. Such implied meaning are "based on tacit assumptions reliable enough to generate identifiable expectations in the particular audience." Reed Dickerson, The Interpretation and Application of Statutes 41 (1975). The implied meaning carried by paragraph 6, when read in the context of this partnership agreement, is that upon fulfilment of the duties imposed upon the remaining partners by paragraph 6, the balance of all interests of the partnership, whatever they might be, would pass to the remaining partners and any arrangement they might strike. Upon receipt of all that is specified and due under this provision, the withdrawing partner foregoes any further interest.
¶4When appellant Kelly, after withdrawing, sought to fulfill the duties of the partnership imposed by extant (yet unfulfilled) contracts of the partnership to provide legal services to clients and to enjoy the benefits of those contracts of the partnership, he did so in contravention of his agreement with his partners. To be sure, and for the benefit and protection of clients, Kelly and each of his former part-
¶5ners remained obligated upon the contracts of the partnership after Kelly withdrew, unless those contracts provided otherwise, or the client released them. Ind.Code § 28-4-1-86; 2 Alan R. Bromberg et al., Bromberg & Ribstein On Partnership § 7.14. However, as between Kelly and his former partners, it would be just and proper to impose a constructive trust on the fees earned by Kelly for fulfilling contracts of the partnership intended for the benefit of all partners. See Boushehry v. Ishak (1990), Ind.App., 550 N.E.2d 784 (modified on rehearing on other grounds, 560 N.E.2d 116). Of course, Kelly would be entitled to keep all fees which he earned from the clients of the partnership if those fees were based upon contracts that were made with Kelly after he withdrew.
¶6I respectfully dissent and would affirm the trial court on these alternate grounds in accordance with Ind.Appellate Rule 15(E) and (N).
¶7GIVAN, J., concurs.