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In Re Estate of Leiter

OPINION FILED AUGUST 8, 1980.

IN RE ESTATE OF EUGENE L. LEITER, DECEASED. — (JOHN C. PARKHURST ET AL., PLAINTIFFS-APPELLEES,

v.

THOMAS LEITER ET AL., EX'RS OF THE ESTATE OF EUGENE L. LEITER, DEFENDANTS-APPELLANTS.)



APPEAL from the Circuit Court of Peoria County; the Hon. STEPHEN J. COVEY, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 9, 1980.

This is an appeal from the granting of a motion for summary judgment by the Circuit Court of Peoria County which allowed the claims of Parkhurst and Fraser which had been filed against the estate of Eugene L. Leiter, deceased.

The decedent Leiter, Parkhurst, Fraser and two other lawyers were associated as partners in the practice of law with offices in the city of Peoria.

In the early part of 1972 the law partners were considering the purchase of certain realty in Peoria for the purpose of constructing an office building which would contain space for their own offices as well as additional space for rental to other tenants. On or about April 27, 1972, the law partners authorized the making of an offer in the amount of $125,000 for the purchase of the realty which they desired. Negotiations were entered into between the law partners and the land owner. Several months later and prior to any agreement being reached by the parties, the property was purchased by Eugene L. Leiter, the decedent, an architect, and Thomas E. Leiter. This latter individual was associated with the law firm which was attempting to purchase the property but was not a partner. He is a son of the decedent, Eugene L. Leiter, and, along with the Commercial National Bank of Peoria, is a co-executor of his father's estate.

The partners in the law firm were of the opinion that Eugene L. Leiter by this unrevealed and unilateral action in purchasing the property had breached a fiduciary duty owed to them. The law partners took the position that they had been damaged, and for a period of approximately 14 months negotiations ensued between the law partners and the parties who purchased the property in an effort to resolve the question of damages.

It was believed that the matter of damages had been resolved, and on July 24, 1974, an agreement was entered into between the Leiters and the partners Parkhurst and Fraser, the claimants, and another law partner, Jackson P. Newlin.

All parties to this appeal agree that the pertinent section of the agreement is section VI, which provides as follows:

"It is recognized by the parties hereto that in order to facilitate the completion of the improvements on the real estate for the mutual advantage of all the parties hereto that Jackson P. Newlin, Raymond J. Fraser and John C. Parkhurst, have provided certain credits and advances to Eugene Leiter and Thomas Leiter which in the aggregate amount of $13,500.00 and which amount Eugene Leiter and Thomas Leiter jointly and severally promised to pay in equal shares to Jackson P. Newlin, Raymond J. Fraser, and John C. Parkhurst, on or before five years from the date of this Agreement with no interest to accrue during said time."

It is undisputed that prior to the July 24, 1974, agreement entered into by the parties extensive negotiations were entered into which for a time centered around a proposal whereby the law partners were to share in expected profit resulting from the construction of the building. This expected profit was to be derived from the law partners being allowed to purchase the sixth floor of the building (for office space) at a discounted cost. This offer submitted to the law partners contained no mention of risk-taking, no plan for final accounting, and was in no way to be connected to actual profits. This proposal was not accepted by the law partners and negotiations continued.

On April 6, 1974, a memo from the Leiters provided the impetus for a settlement of the difficulties between the parties. This memo signified the acceptance of "a liquidation of profits" theory requested by the law partners by crediting them with a fixed sum to be effectuated by giving them a higher percentage of beneficial interests in a land trust which would own the sixth floor of the building. From this time on there was no further reference as to the sharing of profits or losses. The parties only discussed the manner of making a fixed payment and the amount. Without going into further unnecessary details, the end result was the July 24, 1974, agreement, the pertinent provision of which is section VI, which has heretofore been set out. It is clear that this clause promised to pay each claimant a sum certain, being $4,500 on or before five years from the date of the agreement, without interest.

The co-executors in this appeal argue that the trial court erred in granting summary judgment to the claimants since the pleadings disclose genuine issues of material fact which would preclude such a judgment. Specifically the co-executors argue that the promise to pay the claimants was conditioned upon profits being realized from the building venture.

We disagree with the contention of the co-executors, for the July 24 agreement is clear and unambiguous in that it provided for the payment of a sum certain at a stated time and there is no hint or suggestion of such payment being a conditional one. Not only the final agreement but the memos, minutes and documents leading to the execution of the final agreement and the affidavits for summary judgment clearly illustrate that the "profits and losses" theory was suggested and rejected by the claimants.

• 1-4 In determining whether there is a genuine issue of material fact the trial court should consider all pleadings, admissions, affidavits and other evidence, and if no genuine issue of material fact exists after considering these matters, a motion for summary judgment should be granted as a matter of law. This court has stated that where but a single inference can be drawn from undisputed facts, ...


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