APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Plaintiffs, trustees of a pension trust and profit-sharing plan, brought an action seeking a declaratory judgment that the defendant, Harry Gottfried, a former employee, forfeited all rights and benefits in the trust funds as a result of his termination from employment. The trial court granted defendant's motion for summary judgment on March 27, 1974. Thereafter, on June 4, 1974, the court denied plaintiff's motion to amend the complaint and, further, ordered distribution to the defendant of funds due him under the trusts.
The following issues are presented by plaintiffs in this appeal: (1) Whether the trial court erred in granting summary judgment on the pleadings; (2) whether defendant forfeited his rights and benefits, if any, in the pension and profit-sharing trusts; and, (3) whether the trial court erred in denying plaintiff's motion to amend the complaint.
The complaint, filed December 5, 1973, averred that defendant was an employee of the Intrupa Manufacturing Company from January 20, 1968, until August 8, 1973, "at which time his employment was terminated"; that the defendant became a participant in the Intrupa Manufacturing and Associates Pension Trust on October 1, 1969, and a member of the Intrupa Manufacturing Company Employee trust and profit sharing plan on October 31, 1969; and, that the defendant made a demand upon plaintiffs on November 8, 1973, to tender all funds due and owing him under the pension and profit-sharing trusts. Plaintiffs' complaint further alleged that the purpose of the pension trust was to reward employees for loyal service, and that the profit-sharing plan contained a provision for forfeiture of a member's share if discharged from the company's employ "for cause." Finally, plaintiffs alleged that, based on information and belief, defendant violated his fiduciary obligation to the company, thereby forfeiting his right to any share of the funds in the trusts.
Defendant's answer and affirmative defenses, filed on December 9, 1973, denied the allegations with respect to a breach of his fiduciary obligation as an employee of the company. As affirmative defenses, he averred that plaintiffs were estopped from asserting a forfeiture of his interests in the profit-sharing plan by virtue of a partial distribution of $2000 made to the defendant in September 1973. Further, defendant alleged that the pension trust did not contain a divestment clause and, to the contrary, provided by amendment: "In the event of termination of employment of an employee for any reason other than death or disability prior to retirement, he will be fully 100 percent vested in and entitled to the value of his retirement account." Defendant concluded with the averment that, upon termination of his employment with the company, he became entitled to distribution of his vested interest in the pension trust.
On December 27, 1973, plaintiffs filed an answer to the affirmative defenses, admitting that a payment was made to defendant of $2000 and that there was no divestment provision as to the pension trust. All other averments alleged by the defendant were denied.
Defendant filed a motion for summary judgment on January 14, 1974, which essentially incorporated the allegations made in his answer and affirmative defenses. Attached thereto was the affidavit of Harry Gottfried, stating that he was advised by one of the trustees of the profit-sharing plan that the payment of $2000 was a partial distribution of his vested interest and that the remaining funds due him would be distributed shortly thereafter. Plaintiffs did not file an answer or counteraffidavits in opposition to the motion. On March 27, 1974, the Honorable Arthur L. Dunne granted summary judgment to the defendant and further ordered that the plaintiffs make an immediate distribution to defendant of his vested interests, rights and shares of the pension and profit-sharing trusts.
On May 10, 1974, defendant filed a petition for rule to show cause, predicated upon plaintiff's failure to comply with the court's order to made an immediate distribution to him of funds due under the trusts. In an answer to the petition, filed May 23, 1974, plaintiffs alleged that defendant was too old to participate in the pension plan at the time of his original employment, that defendant's interests should be forfeited due to disloyalty to the company, and that the insurance company which managed the trusts had no record that the board of directors had ever adopted the amendment providing for 100 percent vesting upon the termination of employment.
Thereafter, on June 4, 1974, plaintiffs requested leave of court to amend their complaint by adding a paragraph alleging that the defendant was discharged from his employment for cause. The court denied this motion on the grounds that it was not timely made and further ordered plaintiffs to make distribution to defendant of funds from the pension and profit-sharing trusts in a lump sum to be paid prior to July 1, 1974. Plaintiffs appealed from that order.
The first question we shall consider in this appeal is whether the trial court erred in granting defendant's motion for summary judgment. They contend that there were sufficient factual issues raised on the pleadings to warrant a full hearing and evidentiary resolution to determine if the defendant forfeited his rights and benefits, if any, in the pension and profit-sharing trusts. We disagree.
• 1 The purpose of the summary judgment proceeding is to test whether there exists a genuine issue of material fact and to summarily dispose of those cases wherein no such issue exists. (Allen v. Meyer (1958), 14 Ill.2d 284, 152 N.E.2d 576; Tau Delta Phi, Tau Eta Chapter v. Gutierrez (1967), 89 Ill. App.2d 25, 232 N.E.2d 205.) The determination of whether there exists any genuine issue of material fact is to be predicated upon the pleadings, depositions, admissions on file, together with affidavits, if any. Ill. Rev. Stat. 1973, ch. 110, § 57(3); Giampa v. Sunbeam Corp. (1966), 68 Ill. App.2d 425, 216 N.E.2d 233.
• 2, 3 It is well settled in this State that, where the movant in support of his motion for summary judgment supplies facts which, if uncontradicted, entitle him to judgment, the opposing party cannot rely alone on his complaint or answer even though the complaint and answer standing alone do present a genuine issue of a material fact. (Pefferle v. Prairie Mills, Inc. (1966), 72 Ill. App.2d 440, 218 N.E.2d 247; St. Louis Fire & Marine Insurance Co. v. Garnier (1960), 24 Ill. App.2d 408, 164 N.E.2d 625.) Further, if facts are well alleged by affidavit and not contradicted by counteraffidavit, they must be taken as true, notwithstanding the existence of contrary averments in the adverse party's pleadings which merely purport to establish bona fide issues of fact. Fooden v. Board of Governors (1971), 48 Ill.2d 580, 272 N.E.2d 497; Renieris v. Village of Skokie (1967), 85 Ill. App.2d 418, 229 N.E.2d 345.
In the instant case, the following documents were before the court at the time summary judgment was granted: Complaint, answer and affirmative defenses; answer to affirmative defenses; defendant's motion for summary judgment, and supporting affidavit. Plaintiffs filed no counteraffidavits. After carefully reviewing these documents, we hold that the trial court's granting of summary judgment was proper.
• 4 With respect to defendant's right to benefits under the pension trust, plaintiffs averred in their complaint that the defendant was a participant in the plan. Defendant alleged in his answer and affirmative defenses that the pension trust did not contain a divestment clause, and this allegation was admitted by plaintiffs in their answer. Further, defendant set forth a provision of the ...