Dickens v. Quincy College Corp.

• Court: Appellate Court of Illinois
• Writing for the Court: McCULLOUGH
• Citation: Dickens v. Quincy College Corp., 245 Ill.App.3d 1055, 615 N.E.2d 381, 185 Ill.Dec. 822 (Ill. App. 1993)
• Decision Date: 10 June 1993
• Docket Number: No. 4-92-0972,4-92-0972
• Parties: , 185 Ill.Dec. 822, 83 Ed. Law Rep. 641 Randy DICKENS, Plaintiff-Appellant, v. QUINCY COLLEGE CORPORATION, an Illinois Corporation, Defendant-Appellee.

Page 381

615 N.E.2d 381

245 Ill.App.3d 1055, 185 Ill.Dec. 822,

83 Ed. Law Rep. 641

Randy DICKENS, Plaintiff-Appellant, v. QUINCY COLLEGE CORPORATION, an Illinois Corporation Defendant-Appellee.

No. 4-92-0972.

Appellate Court of Illinois Fourth District.

Argued May 19, 1993.

Decided June 10, 1993.

Andrew C. Schnack, III, Schnack, Schnack & Cashman (argued by Andrew C. Schnack, III), Quincy, for plaintiff-appellant.

R.P. O'Connell, Richard P. O'Connell, Ltd. (argued by R.P. O'Connell), Quincy, for defendant-appellee.

Justice McCULLOUGH delivered the opinion of the court:

This is an appeal by plaintiff Randy Dickens from an order of the circuit court of Adams County dismissing his complaint against defendant Quincy College Corporation. Plaintiff's complaint sought damages for breach of an employment contract as football coach.

On appeal, plaintiff raises two issues: (1) whether the trial court misapplied section 1 of the Frauds Act, commonly known as the statute of frauds (Ill.Rev.Stat.1991, ch. 59, par. 1), to the oral extension of the parties' written contract because the extension was supported and ratified by sufficient memoranda; and (2) whether, as a matter of law, part performance or promissory estoppel created an exception to the statute of frauds applicable to the case at bar. We affirm.

According to plaintiff's amended complaint, on April 23, 1986, the parties entered into a written employment contract. Plaintiff was to be paid $30,000 per year as a full-time employee, and the duration of the contract was from June 1, 1986, to June 1, 1989. It was alleged that plaintiff at all times duly performed all conditions and terms of the contract and faithfully, fully, and properly discharged the duties of employment. During the period from June 1, 1986, to June 1, 1989, the contract was modified in that plaintiff was given annual increases in salary. When the written contract expired, the parties entered into an oral contract "with written memorandum" for employment for the period of September 1, 1989, to September 1, 1990. During October 1989, plaintiff was orally advised by James Toal, defendant's president, that the contract between the parties would be extended for two years commencing September 1, 1990, under the same terms and conditions as his previous contract and at a salary of $37,692 per year. It was further alleged that, at that same time and place, plaintiff accepted Toal's offer. Plaintiff continued as defendant's head football coach until March 25, 1991, when he was terminated from defendant's employ effective June 1, 1991.

In count I of plaintiff's amended complaint, this termination of employment is alleged to be a breach of contract which was the direct and proximate cause of plaintiff's loss of income and benefits and the expending of considerable sums of money seeking other employment. Count II of the amended complaint further alleged as follows:

"11. In reliance upon the representations of the Defendant, Plaintiff performed all acts and duties assigned to him as football coach and employee of Defendant.

12. That the Defendant accepted the services of the Plaintiff up to and through March 25, 1991.

13. That the Defendant advertised and made known to the general public and potential students the additional Contract extensions of Plaintiff and used said extensions to its own benefit.

14. The Plaintiff gave up various other opportunities for advancement in reliance upon the promises of employment made by the Defendant.

15. That Plaintiff and his family, to whom he has both a moral and legal obligation to support, relied upon the promises made by the Defendant.

16. That Plaintiff performed all the terms and conditions of the Contract extension as required, and the Defendant up to March 25, 1991, accepted these benefits."

The ad damnum to both counts sought money damages.

In response, and pursuant to section 2-619(a)(7) of the Illinois Code of Civil Procedure (Code) (Ill.Rev.Stat.1991, ch. 110, par. 2-619(a)(7)), defendant filed a motion to dismiss asserting that plaintiff's claim was unenforceable under the statute of frauds. No affidavits were filed with the motion to dismiss. After hearing arguments of counsel, the trial court granted the motion to dismiss.

Subsequently, plaintiff filed a timely motion for reconsideration. In support of the motion, plaintiff filed a memorandum to which was attached a photocopy of an April 9, 1990, letter from Toal to plaintiff informing plaintiff his salary for 1990-91 would be $37,692, a 5.5% increase over his closing 1989-90 salary. Also attached as an exhibit was a photocopy of a newspaper article reporting that defendant had announced it had "rewarded" plaintiff with a two-year contract extension. However, the record does not disclose the date of publication of the newspaper article. No affidavits accompanied these exhibits. The motion for reconsideration was denied.

Section 2-619(a)(7) of the Code allows for involuntary dismissal if the claim asserted is unenforceable by reason of the statute of frauds. If the grounds for seeking the dismissal of a complaint do not appear on the face of the complaint, the motion is to be supported by affidavit. (Ill.Rev.Stat.1991, ch. 110, par. 2-619(a).) The party opposing the motion to dismiss may file counteraffidavits. Ill.Rev.Stat.1991, ch. 110, par. 2-619(c); Michel v. Gard (1989), 181 Ill.App.3d 630, 635-36, 130 Ill.Dec. 164, 168, 536 N.E.2d 1375, 1379.

Plaintiff's first argument is that the statute of frauds does not apply to this case because it involves the oral extension of a prior written contract. As pertinent to the case at bar, section 1 of the statute of frauds provides:

"[N]o action shall be brought * * * upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." (Ill.Rev.Stat.1991, ch. 59, par. 1.)

Plaintiff's argument is illogical. Plaintiff concedes the underlying purpose of the statute of frauds is to prevent fraud. The statute of frauds applies to oral employment contracts which cannot be performed within one year. (See Sinclair v. Sullivan Chevrolet Co. (1964), 31 Ill.2d 507, 509-11, 202 N.E.2d 516, 518-19; Koch v. Illinois Power Co. (1988), 175 Ill.App.3d 248, 254, 124 Ill.Dec. 461, 466, 529 N.E.2d 281, 286.) Plaintiff cites no case which exempts oral extensions of written contracts which extensions cannot be performed within one year.

The written contract in this case expired June 1, 1989. The complaint alleges an oral contract extension from September 1, 1989, to September 1, 1990. Apparently, this extended contract was fully performed because plaintiff was not fired until March 1991, effective June 1, 1991. Therefore, the contract which plaintiff seeks to enforce in this case is the oral two-year extension of the prior written and oral contracts. According to the allegations of the amended complaint, the two-year extension, which was to begin September 1, 1990, was agreed to by the parties in October 1989. At the time of the alleged agreement, the two-year extension would not even begin for almost 11 months and obviously could not be performed within one year from the date of the agreement. The statute of frauds applies to this case.

Next, plaintiff argues the dismissal was premature because, through discovery, he may find sufficient memoranda to satisfy the statute of frauds. This is speculative. Plaintiff submitted no affidavits which indicated that such documents exist. In the event material facts are not obtainable, the reason therefore must also be set out in an affidavit. (134 Ill.2d R. 191(b).) Plaintiff did not submit any affidavits to explain why he could not obtain sufficient material to oppose defendant's motion to dismiss prior to conducting discovery.

Plaintiff also did not submit an affidavit which indicated the exhibits attached to the memorandum in support of the motion for reconsideration were true and correct copies of the documents. As Brunette v. Vulcan Materials Co. (1970), 119 Ill.App.2d 390, 396-97, 256 N.E.2d 44, 47, pointed out, letters between parties may not constitute sufficient evidence of an agreement so as to comply with the statute of frauds. Here, Toals' April 9, 1990, letter stated what plaintiff's salary would be for 1990-91, but it did not otherwise state any terms of the contract, although the original written contract was very simple in form. Of significance is the absence of any indication of a two-year extension of the prior contract, or any other period to be covered by the alleged agreement beyond the 1990-91 school year. Moreover, plaintiff admitted at oral argument before this court that he was paid through the end of the 1990-91 school year and there had been full compliance with the terms of the letter.

Obviously, there is an even greater problem with the newspaper article as it was prepared and reported by someone other than the parties to the litigation. The article is nothing more than a third person's written notation of an oral statement, and is not the parties' written memorialization of an agreement. Therefore, even assuming the newspaper reporter submitted an affidavit indicating the article accurately reflected what was said, that would be merely evidence of an oral agreement, unenforceable under the statute of frauds.

In order to satisfy the statute of frauds, the writing need not be on a single piece of paper. Nevertheless, all the essential terms must be in writing, and there must be an express reference to the other writings or such a connection between the documents, physical or otherwise, as to demonstrate that they relate to the same contract. (Chapman v. Freeport Securities Co. (1988), 174 Ill.App.3d 847, 854, 124...