Kemper v. Worcester

• Decision Date: 06 May 1982
• Docket Number: No. 81-249,81-249
• Parties: , 62 Ill.Dec. 29 Billy C. KEMPER, Plaintiff-Appellant, v. Robert P. WORCESTER and Willis D. Lamson, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 827

435 N.E.2d 827

106 Ill.App.3d 121, 62 Ill.Dec. 29

Billy C. KEMPER, Plaintiff-Appellant, v. Robert P. WORCESTER and Willis D. Lamson, Defendants-Appellees.

No. 81-249.

Appellate Court of Illinois, Fifth District.

May 6, 1982.

William A. Sunderman, Janett S. Winter-Black, Anderson Law Offices, Charleston, for plaintiff-appellant.

Law Offices of Robert L. Douglas, Ltd., Robert L. Douglas and Charles C. Roberts, Robinson, for defendants-appellees.

KARNS, Presiding Justice:

Billy C. Kemper brought an action against Robert P. Worcester and Willis D. Lamson in the circuit court of Jasper County alleging that they had caused his discharge as president and trust officer of the First National Bank of Newton by tortiously interfering with his contractual relationship with the Bank. Defendants moved for judgment on the pleadings, and the court entered judgment for defendants relying on our decision in Kemper v. First National Bank of Newton (5th Dist. 1981), 94 Ill.App.3d 169, 49 Ill.Dec. 799, 418 N.E.2d 819, which held that a national bank incurs no liability under the National Bank Act (12 U.S.C. § 24) for discharging an officer of the bank prior to the time his contractual period of employment expires. The trial court considered that the plaintiff had no legally protected interest in his position as president of a national bank.

On February 14, 1978, plaintiff was hired as president and trust officer of the First National Bank of Newton "for the ensuing year." In April of 1978, the board of directors voted to discharge plaintiff because he purchased stock in the bank without disclosing the purchase to the board. Thereafter, plaintiff filed two lawsuits, one against the bank for wrongful discharge and the second against the defendant members of the board, individually.

As to the first lawsuit, the bank moved for judgment on the pleadings. The trial court, in granting the motion, relied on section 24, paragraph fifth of the National Bank Act which provides that a national banking association shall have the power "(t)o elect or appoint a president, vice-president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure and appoint others to fill their places." (12 U.S.C. § 24, par. 5 (Emphasis added)). On appeal, in affirming the trial court, we noted that:

"Here, the plaintiff accepted his employment with knowledge, actual or imputed, of the board's authority to dismiss him at its pleasure. Once the board's approval of his appointment was withdrawn, his contractual status as an employee vanished, and he had no legal right upon which to base his claim." Kemper v First National Bank of Newton (5th Dist. 1981), 94 Ill.App.3d 169, 171, 49 Ill.Dec. 799, 801, 418 N.E.2d 819, 821.

The instant appeal arises from the second lawsuit. Plaintiff, in his fourth amended complaint, alleges that defendants "intentionally, wantonly, maliciously and without justification interfered, disrupted and damaged the employment rights of plaintiff." Plaintiff further alleges that, as a result of the interference, he sustained losses in employment benefits, salary and damage to his reputation in the banking community. As stated, defendants moved for judgment on the pleadings citing the prior lawsuit and stating that, as a matter of law, plaintiff failed to state a cause of action. The trial court granted the motion and entered judgment for defendants finding our decision in Kemper to be dispositive.

We note at the outset that a motion for judgment on the pleadings tests the sufficiency of the pleadings as a matter of law (Johnson v. Town of the City of Evanston (1st Dist. 1976), 39 Ill.App.3d 419, 350 N.E.2d 70), and that uncontested, well-pleaded allegations of fact will be, for the purposes of review, deemed to be true. (Keller v. Brunswick Corporation (4th Dist. 1977), 54 Ill.App.3d 271, 11 Ill.Dec. 873, 369 N.E.2d 327.) On review of an order granting judgment on the pleadings, we must ascertain whether the trial court correctly determined that no genuine issue as to any material fact was presented by the pleadings and, if there was no such issue, whether judgment was correctly entered. Upper Avenue Bank of Chicago v. First Arlington National Bank of Arlington Heights (2nd Dist. 1980), 81 Ill.App.3d 208, 36 Ill.Dec. 525, 400 N.E.2d 1105.

In the instant case, it is undisputed that plaintiff's fourth amended complaint recites the necessary elements to state a cause of action for tortious interference with advantageous or contractual relations. Thus, the sole issue raised on appeal is whether section 24, paragraph fifth of the National Bank Act (12 U.S.C. § 24, par. 5), as applied in Kemper v. First National Bank of Newton (5th Dist. 1981), 94 Ill.App.3d 169, 49 Ill.Dec. 799, 418 N.E.2d 819, precludes plaintiff from maintaining a cause of action for tortious interference with advantageous or contractual relations under the facts presented. In making this determination, it is necessary to examine the nature of the action in the instant case and in the prior lawsuit.

In Kemper, plaintiff brought an action for wrongful discharge against First National Bank in Newton and sought damages following as a consequence of the dismissal. The issue in that case was whether a national bank may dismiss an officer before the expiration of his stated tenure, without incurring liability for wrongful discharge or breach of contract. Relying on section 24, paragraph fifth of the National Bank Act, we affirmed the trial court's grant of defendant's motion for judgment on the pleadings and noted that " * * * although a national bank may contract to employ an officer for a definite period of time, it may not bargain away its right, granted by statute, to discharge officers 'at pleasure'." (94 Ill.App.3d 169, 171, 49 Ill.Dec. 799, 801, 418 N.E.2d 819, 821.) Kemper, therefore, stands for the proposition that, by virtue of the National Bank Act, the board of directors of a national bank may dismiss an officer prior to the expiration of his term, without incurring liability for wrongful discharge or breach of contract on the part of the bank.

In the instant case, plaintiff brought an action in tort for unjustified interference with advantageous or contractual relations against defendants, two of the directors of the First National Bank in Newton, and sought damages incurred as a result of defendants' interference with his employment rights. The trial court, relying solely on our decision in Kemper, granted defendants' motion for judgment on the pleadings. Plaintiff asserts that the trial court...