Prodromos v. Howard Sav. Bank

• Court: Appellate Court of Illinois
• Writing for the Court: TULLY
• Citation: Prodromos v. Howard Sav. Bank, 692 N.E.2d 707, 295 Ill.App.3d 470, 229 Ill.Dec. 718 (Ill. App. 1998)
• Decision Date: 03 March 1998
• Docket Number: No. 1-96-4129,1-96-4129
• Parties: , 229 Ill.Dec. 718 John PRODROMOS, Plaintiff-Appellant, v. HOWARD SAVINGS BANK, et al., Defendants-Appellees.

Page 707

692 N.E.2d 707

295 Ill.App.3d 470, 229 Ill.Dec. 718

John PRODROMOS, Plaintiff-Appellant, v. HOWARD SAVINGS BANK, et al., Defendants-Appellees.

No. 1-96-4129.

Appellate Court of Illinois First District, Second Division.

March 3, 1998.

Rehearing Denied April 15, 1998.

[229 Ill.Dec. 719] [295 Ill.App.3d 471] Howard Harris, Lincolnwood, for Plaintiff-Appellant.

Jeffrey B. Lieberman and Gayle L. Yeatman, Chicago, Carmen V. Speranza and Christine H. Speranza, Lake Forest, for Defendants-Appellees.

Justice TULLY delivered the opinion of the court:

Plaintiff, John Prodromos, brought this action in the circuit court of Cook County against defendant, Howard Savings Bank ("Bank"), for breach of an employment contract and for an accounting. Plaintiff also brought this action against defendants, Althea Prodromos ("Althea"), Chadwick Prodromos ("Chadwick") and Marilyn Prodromos ("Marilyn"), for tortious interference with an employment contract. The bank filed a motion to dismiss the breach of contract counts of plaintiff's six-count first amended complaint, pursuant to section 2-619(a)(7) and (9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(7), (9) (West 1994)), stating that the alleged employment contract failed to satisfy the Statute of Frauds (740 ILCS 80/1 (West 1994)). Althea, Chadwick and Marilyn also filed a section 2-619(a)(7) and (9) motion to dismiss the tortious interference with the contract count of plaintiff's first amended complaint. They alleged that because the Statute of Frauds barred enforcement of the alleged contract, there was no contract with which to interfere. The trial court granted both motions, noting that the employment contract was not signed by the bank, and finding that the writings plaintiff offered were insufficient to remove the bar of the Statute of Frauds. The trial court struck the remaining counts of plaintiff's first amended complaint, and granted plaintiff leave to amend those counts. Plaintiff filed a motion to reconsider and to vacate the order of dismissal, which the trial court denied. Plaintiff now appeals the trial court's dismissal of the breach of contract and tortious interference with the contract counts, pursuant to Supreme Court Rules 301 and 304 (155 Ill.2d Rules 301 and 304).

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

Plaintiff alleged in his first amended complaint that he owned 40% of the issued and outstanding voting stock of the bank, which was an Illinois financial institution chartered pursuant to the Illinois Savings Bank Act. At the bank's 1993 annual shareholders' meeting, plaintiff, Althea, James Economos ("Economos"), Peter S. Sotos ("Sotos"), and Louis Sotreras ("Sotreras") were elected to be the board of directors until the 1994 annual shareholders' meeting.

On March 30, 1994, plaintiff, Sotreras and Economos were present at a regular monthly directors' meeting. The minutes of that monthly meeting stated that it was called pursuant to notice, and that Althea was not present. The minutes also reflected that each director present received a copy of employment contracts for plaintiff and Althea. Plaintiff did not take part in the discussion of the contracts, and did not vote on them. Economos and Sotreras approved the contracts. The contract for plaintiff was not signed by the bank. Plaintiff, Economos and Sotreras signed the minutes of the meeting.

The 1994 annual meeting of the bank's stockholders was held later the same day. The stockholders elected Althea, Chadwick, Marilyn, Donald Veverka, and Sotos to be the board of directors for the following year. The minutes of the annual stockholders' meeting did not refer to the March 30th monthly board of directors meeting.

Plaintiff's employment was terminated without prior notice on November 15, 1994. Plaintiff alleged that he had performed all of the duties and obligations of Chief Executive Officer that the employment contract required of him between March 30, 1994, and November 15, 1994. He did not receive the full monthly salary, as provided in the employment contract during that time.

The board of directors held a special meeting on April 28, 1994. The minutes of that meeting stated that the directors did not approve the minutes of the March 30th monthly directors' meeting. The minutes of the April 28th meeting also stated, "that all purpo[r]ted actions taken [during] the March 30, 1994 meeting, including the attempted approval of any employment contracts, * * * are rejected and disavowed and are of no force and effect." The minutes of the April 30th meeting approved the directors' actions during the April 28th meeting.

In February 1995, the next annual shareholders' meeting was held, and Althea, Chadwick, Marilyn and Georgia Revis were elected as directors. The minutes of the meeting did not refer to the March 30th monthly directors' meeting.

In its motion to dismiss, the bank asserted that the three-year employment contract that plaintiff attached to his complaint was not signed by the bank, and therefore violated the Statute of Frauds. It also submitted that plaintiff did not perform his job based on a reasonable reliance of the contract, and that on April 30, 1994, the new board of directors repudiated the board's actions of March 30, 1994. Furthermore, the bank alleged that the March 30th monthly directors' meeting was conducted in violation of the bank's bylaws and state regulatory requirements, and that any action taken by the board at the meeting was invalid and not binding upon the bank. The bank stated that the board's violations included: holding the meeting at an unauthorized location; lacking the required number of five directors, and failing to notify Althea of the meeting. In their motion to dismiss, Althea, Chadwick and Marilyn adopted the bank's motion, asserting that the contract violated the Statute of Frauds, and that there did not exist a valid and enforceable contract upon which to base an action for tortious interference with a contract. The trial court granted defendants' motions and dismissed the first three counts of plaintiff's first amended complaint with prejudice on September 5, 1996. Plaintiff filed a motion for reconsideration, which the trial court denied.

ISSUES PRESENTED FOR REVIEW

On appeal, plaintiff contends that the trial court erred in granting defendants' section 2-619 motions to dismiss, and argues that: (1) the signed minutes of the March 30, 1994, board of directors' meeting constituted a writing sufficient to remove the bar of the Statute of Frauds; (2) plaintiff's partial performance of the contract removed the bar of the Statute of Frauds; and (3) defendants failed to properly raise "affirmative matters" (that the March 30th directors' meeting violated the bank's bylaws and state regulations) within the scope of a section 2-619(a)(9) motion to dismiss.

OPINION

Plaintiff first contends on appeal that the signed minutes of the March 30th monthly directors' meeting constituted a writing sufficient to remove the bar of the Statute of Frauds. Plaintiff argues that those minutes were executed by the directors pursuant to their statutory duty and authority, and that the minutes identified the exact employment contract involved and the parties to that contract.

We review a section 2-619(a)(7) and (9) motion to dismiss de novo, and the trial court, after reviewing all pleadings and supporting documents in the light most favorable to the non-moving party, should grant the motion if plaintiff can prove no set of facts to support a cause of action. In re Chicago Flood Litigation, 176 Ill.2d 179, 189, 223 Ill.Dec. 532, 537, 680 N.E.2d 265, 270 (1997); Stephen L. Winternitz, Inc. v. National Bank of Monmouth, 289 Ill.App.3d 753, 755, 225 Ill.Dec. 324, 325, 683 N.E.2d 492, 493 (1997). The trial court must take all well-pleaded facts in the complaint and attached exhibits as true, and construe from them all reasonable inferences in the plaintiff's favor. Prodromos v. Poulos, 202 Ill.App.3d 1024, 1028, 148 Ill.Dec. 345, 349, 560 N.E.2d 942, 946 (1990). The trial court must also consider whether the defendant presented facts constituting an affirmative defense which could defeat the plaintiff's cause of action. Prodromos, 202 Ill.App.3d at 1028, 148 Ill.Dec. at 349, 560 N.E.2d at 946.

The Statute of Frauds states that:

"[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." 740 ILCS 80/1 (West 1994).

In order to satisfy the Statute of Frauds, there must be a writing, not necessarily on a single piece of paper, which is signed by the party to be charged. Chapman v. Freeport Securities Co., 174 Ill.App.3d 847, 854, 124 Ill.Dec. 289, 293, 529 N.E.2d 6, 10 (1988). The writing must contain all essential terms of the contract, and the signed writing must refer expressly to the other writings, or the other writings must be connected, physically or otherwise, to show that they relate to the same contract. Dickens v. Quincy College Corp., 245 Ill.App.3d 1055, 1060, 185 Ill.Dec. 822, 825, 615 N.E.2d 381, 384 (1993); Chapman, 174 Ill.App.3d at 854, 124 Ill.Dec. at 293, 529 N.E.2d at 10. Writings sufficient to satisfy the Statute of Frauds may include several documents, which may consist of such forms as letters, notes, and papers. American College of Surgeons v. Lumbermens Mutual Casualty Co., 142 Ill.App.3d 680, 698-99, 96 Ill.Dec. 719, 731-32, 491 N.E.2d 1179, 1191-92 (1986). Where a party offers minutes of a meeting to satisfy the Statute of Frauds, the minutes must be approved, because without approval, the secretary's signature is not authorized. Chapman, 174 Ill.App.3d at 854, 124 Ill.Dec. at 293, 529...