APPEAL from the Circuit Court of Sangamon County; the Hon.
SIMON L. FRIEDMAN, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Plaintiff was a college instructor at Western Illinois University (hereinafter W.I.U.) from 1970 through 1974. He was offered and accepted a terminal contract for the 1973-74 school year and was not rehired after that. He filed a five-count complaint against defendants for breach of contract and also for violation of his constitutional rights of freedom of speech, freedom of association, and due process. On motion of defendants, the trial court entered summary judgment against plaintiff on Counts I, II, III and V. The trial court found, pursuant to Supreme Court Rule 304 (Ill. Rev. Stat. 1973, ch. 110A, par. 304) that there was no just reason for delaying enforcement or appeal. Plaintiff contends on appeal that the trial court erred in granting summary judgment. We affirm in part and reverse in part. Each count will be treated separately.
Count I of the complaint alleged that defendants violated plaintiffs contract by refusing to transmit for the consideration of the Board of Governors of State Colleges and Universities (not named as defendants) the recommendation of the Western Illinois University Committee on Personnel that plaintiff be offered a regular teaching contract for the year 1973-74. Defendants admitted that it was a requirement of the By-Laws of the Board of Governors and a part of plaintiff's contract that the involuntary release of a faculty member who has served two years or more (as plaintiff had) must, upon the member's request, be appealed to the University Committee on Personnel and its recommendation be reported to the Board of Governors.
Attached to defendants' motion for summary judgment were numerous affidavits and exhibits. John Bernhard, who was president of Western Illinois University during the pertinent period, swore that, as president, he advised the Board of Governors on September 12, 1973, of the recommendation of the University Personnel Committee that plaintiff be awarded a regular teaching contract as well as his own recommendation of a terminal teaching contract. Ben Morton, who was the executive officer and secretary of the Board of Governors, swore and deposed that Dr. Bernhard advised the Board of both his recommendation and the University Personnel Committee's recommendation at a meeting on September 12, 1973, at which Morton was present. Plaintiff filed a counteraffidavit stating that he had searched the official minutes of the Board of Governors for the week including the date of September 12, 1973, and found therein no reference to the recommendation of the University Personnel Committee and in addition, that there was no reference in the minutes to a meeting on September 12, 1973.
Civil Practice Act section 57(3) (Ill. Rev. Stat. 1973, ch. 110, par. 57(3)) provides that summary judgment is proper
"* * * if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law."
1 The moving party's right to summary judgment must be free and clear from doubt. The pleadings and affidavits must be construed most strictly against the moving party and most liberally in favor of the opponent. (Ruby v. Wayman, 99 Ill. App.2d 146, 240 N.E.2d 699.) Summary judgment is a procedure to be encouraged, but it should be awarded cautiously so as not to preempt the right to a trial by jury where a material dispute may exist. (Anderson v. Dorick, 28 Ill. App.3d 225, 327 N.E.2d 541.) Plaintiff's complaint was a verified one and therefore should be considered along with the affidavits. In Count I, he alleges that the president of W.I.U. refused to transmit the recommendation of the University Committee on Personnel. Defendants, by affidavit, said that this was done. There exists a dispute as to a material fact. Accordingly it was error to grant summary judgment on Count I.
In Count II of plaintiff's complaint, he alleged that, on July 18, 1972, he was offered and accepted a contract which stated, in part, that:
"If all of the requirements for 30 semester hours beyond the Master's Degree have been completed by September 18, 1972, with official evidence being filed in the academic personnel office by that date, the salary rate will be increased by $20.00 per month and the academic rank will be changed to Assistant Professor."
Plaintiff alleged that the By-Laws and Governing Policies of the Board of Governors were part of the contract between plaintiff and defendant, that he complied with the contract conditions and the By-Laws, but notwithstanding this defendants refused to promote plaintiff. Defendants' answer denied that plaintiff had complied with the By-Laws and Policies of the Board of Governors. An affidavit of James Connor, provost of W.I.U. stated that it was the Board's policy and more specifically W.I.U.'s policy that graduate credits earned at W.I.U. may be counted only up to one-half of the graduate credits required for promotion. The affidavit, supported by plaintiff's transcript attached as an exhibit, revealed that all of plaintiff's graduate credits had been earned at W.I.U.
Two sections of the By-Laws and Policies of the Board ...