Opinion
79-3003-E-1; CA A47487.
Argued and submitted December 19, 1988
Affirmed on appeal; judgment modified on cross-appeal and affirmed as modified April 5, reconsideration denied May 26, 1989 petition for review denied June 27, 1989 ( 308 Or. 158)
Appeal from the Circuit Court, Jackson County, L.L. Sawyer, Judge.
Richard A. Stark, Medford, argued the cause for appellant — cross-respondent. With him on the brief was Stark and Hammack, Medford.
Ervin B. Hogan, Medford, argued the cause for respondent — cross-appellant. With him on the brief were Daniel C. Thorndike and Blackhurst, Hornecker, Hassen Thorndike, Medford.
Before Buttler, Presiding Judge, and Warren and Rossman, Judges.
PER CURIAM
Affirmed on appeal; judgment modified on cross-appeal to exclude prejudgment interest and affirmed as modified.
Plaintiff brought this action for an accounting of his interest in a partnership with defendant. In an earlier appeal, Deyoe v. Holloway, 66 Or. App. 352, 674 P.2d 1187 (1984), we reversed the trial court's denial of an accounting and remanded with instructions on how to interpret the partnership agreement in calculating the amount due on the accounting. No petition for review was filed; on remand, the trial court followed our instructions. Plaintiff now takes exception to our interpretation of the partnership agreement, which has become the law of the case and cannot now be disturbed. Friendship Auto v. Bank of Willamette Valley, 300 Or. 522, 526 n 2, 716 P.2d 715 (1986); Public Market Co. v. Portland, 179 Or. 367, 170 P.2d 586 (1946).
Defendant cross-appeals, assigning error to the trial court's award of interest on the amount found to be due to plaintiff. In an accounting among partners, interest is available only if a partner violated a fiduciary duty. Starr v. International Realty, 271 Or. 396, 407, 533 P.2d 165 (1975); Liggett v. Lester, 237 Or. 52, 61, 390 P.2d 351 (1964). No breach of fiduciary duty on the part of defendant is alleged. The judgment must be modified to exclude prejudgment interest.
Affirmed on appeal; judgment modified on cross-appeal to exclude prejudgment interest and affirmed as modified.