Complete Conference v. Kumon North America

• Decision Date: 14 August 2009
• Docket Number: No. 2-08-0506.,2-08-0506.
• Citation: 915 N.E.2d 88
• Parties: COMPLETE CONFERENCE COORDINATORS, INC., Plaintiff-Appellant, v. KUMON NORTH AMERICA, INC., Defendant. (Katherine E. Lichter, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

915 N.E.2d 88

COMPLETE CONFERENCE COORDINATORS, INC., Plaintiff-Appellant, v. KUMON NORTH AMERICA, INC., Defendant.

(Katherine E. Lichter, Defendant-Appellee).

No. 2-08-0506.

Appellate Court of Illinois, Second District.

August 14, 2009.

Carol L. Anfinson, Aurora, IL, for Appellant.

Russell J. Heitz, Heitz & Bromberek, Naperville, IL, for Appellee.

Justice O'MALLEY delivered the opinion of the court:

Plaintiff, Complete Conference Coordinators, Inc., appeals the trial court's ruling granting summary judgment in favor of plaintiff's former employee, defendant Katherine Lichter, on plaintiff's claim for intentional interference with a contractual relationship. The claim was based on defendant's allegedly inducing one of plaintiff's clients, Kumon North America, Inc. (Kumon), to breach its contract with plaintiff in favor of a new contract with defendant shortly after defendant left plaintiff's employ. (Plaintiff also brought a claim for breach of contract against Kumon, but the parties settled the claim.) On appeal, plaintiff argues that (1) the trial court erred in ruling that, due to lack of foundation, it could not consider three exhibits plaintiff introduced in opposition to defendant's motion for summary judgment, and (2) the trial court erred when it ruled that, even if it were to consider the contested exhibits, defendant was entitled to summary judgment. For the reasons that follow, we affirm the judgment of the trial court.

In response to defendant's motion for summary judgment, plaintiff attached several exhibits to lay out the basis for its claim that defendant interfered with its contract with Kumon. The first exhibit, a partial transcript of the deposition testimony of Carol Kuc, plaintiff's owner, included Kuc's testimony that defendant asked Kuc to sign the Kumon contract over to her in July 2000 but that Kuc declined. Kuc testified that defendant again requested that Kuc sign over Kumon's contract in early August 2005, and Kuc recalled that the two discussed the idea over lunch on August 11. After that conversation, Kuc noticed that defendant had failed to send an invoice to Kumon, and, when Kuc asked defendant about the discrepancy, "her response was `It's my money.'" Kuc said that defendant then told her "that if [Kuc] would sign over Kumon, she wouldn't bother any of the other clients." Kuc testified that she declined to sign over the Kumon contract, and she recalled that, on August 15, defendant tendered her a letter indicating that defendant was resigning as an officer of plaintiff but would continue, at least temporarily, as an employee of plaintiff. According to Kuc, "on the 17th, she came in in the morning * * *, said her resignation was effective immediately and left."

The next exhibit attached to plaintiff's response opposing summary judgment was a printout purporting to be an e-mail, sent at approximately 10 p.m. on August 15, 2005, from defendant to a contact at Kumon. The e-mail states as follows:

"I wanted to inform you that I have resigned my position as [an officer of plaintiff] effective immediately. I have offered to stay on for a short time to wrap up my projects and make the transition for them as smooth as possible. I have informed Carol Kuc, [plaintiff's] President, that it is my intention to start my own business and continue meeting planning.

I will give you a call in the morning to discuss the current status of your projects."

The next exhibit, a copy of a telephone invoice, indicates three calls made on the morning of August 16; in its response, plaintiff indicated that the telephone invoice was obtained during discovery and that the three calls were from defendant to Kumon. (Defendant attached a portion of Kuc's deposition to her motion for summary judgment; in that portion of the deposition, Kuc testified that she could not know what defendant and Kumon discussed during these calls.)

The next exhibit, a letter from Kumon to plaintiff dated August 16, 2005, states as follows in pertinent part:

"We at [Kumon] appreciate the service [plaintiff] has provided us over the years. However, I am writing to inform you that we will not need the assistance of your company for any upcoming conferences or events for budgetary and other considerations."

In its response, plaintiff stated that the letter was dated August 16 but was postmarked August 17.

Plaintiff's next exhibit purports to be a copy of an August 22 e-mail from defendant to Kumon, indicating her new contact information and asking if she could pass the information on to others (presumably others who worked at Kumon). Another of plaintiff's exhibits, a printout that appears to be Kumon's August 22 e-mail response, confirms Kumon's new relationship with defendant.

The above e-mail exhibits do not appear in the record at any point prior to plaintiff's response in opposition to summary judgment, and plaintiff's response and accompanying documents include nothing to verify the authenticity of the e-mail printouts. During argument on the motion for summary judgment, defendant argued that there was no foundation to show that the e-mail evidence was authentic, and plaintiff responded that the e-mails had been produced by defendant during discovery. (Plaintiff argued that its response in opposition to summary judgment established the source of the e-mails. Plaintiff's response does say that "[t]he documents produced in discovery from [defendant] show" that defendant sent various e-mails, but there is no affidavit or other authentication attached to the motion.) The trial court ruled that the e-mail exhibits were inadmissible for lack of foundation and that, even if it were to consider the e-mails, plaintiff had failed to present evidence that defendant actively persuaded or otherwise encouraged Kumon to breach its contract with plaintiff. Plaintiff thereafter moved for reconsideration, and it attached to its motion an affidavit from its attorney attesting that the above-described e-mail exhibits were received from defendant during discovery. The trial court denied the motion to reconsider but granted plaintiff leave to file the affidavit, as well as leave to file defendant's actual discovery responses, which included the above-described e-mails. Plaintiff timely appeals.

Plaintiff first argues on appeal that the trial court erred in ruling that the e-mail exhibits were inadmissible for lack of foundation. Evidence that would be inadmissible at trial is not admissible in support of or in opposition to a motion for summary judgment. Dangeles v. Muhlenfeld, 191 Ill.App.3d 791, 799-800, 138 Ill. Dec. 815, 548 N.E.2d 45 (1989). "In civil cases in Illinois, the basic rules of evidence require a proponent of documentary evidence to lay a foundation for the introduction of that document into evidence." Anderson v. Human Rights Comm'n, 314 Ill.App.3d 35, 42, 246 Ill.Dec. 843, 731 N.E.2d 371 (2000). "Evidence must be presented to demonstrate that the document is what its proponent claims it to be." Anderson, 314 Ill.App.3d at 42, 246 Ill.Dec. 843, 731 N.E.2d 371. "Without proper authentication and identification of the document, the proponent of the evidence has not provided a proper foundation and the document cannot be admitted into evidence." Anderson, 314 Ill.App.3d at 42, 246 Ill.Dec....