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Cashman v. Shinn

OPINION FILED NOVEMBER 4, 1982.

G. KEITH CASHMAN, PLAINTIFF-APPELLANT,

v.

JACK P. SHINN ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Adams County; the Hon. William L. Randolph, Judge, presiding.

PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

This case concerns a suit brought in the circuit court of Adams County by plaintiff, G. Keith Cashman, a former president and director of defendant, Quincy Peoples Savings and Loan Association (Quincy-Peoples) against that defendant, its directors, and Jack P. Shinn, James G. Kemp, Jr., Warren W. Wilson, and Timothy E. Griffin. Plaintiff sought damages for alleged tortious conduct on the part of defendants causing plaintiff to resign his positions as president and director of Quincy-Peoples. Plaintiff appeals a judgment entered by the circuit court on June 11, 1981, granting summary judgment against him as to count I of his amended complaint and dismissing count II, in bar of action for failure to state a cause of action. We affirm.

The original complaint was filed December 20, 1978, and the amended complaint was filed July 31, 1980. Count I was against Quincy-Peoples, its directors, and Shinn and Kemp. It alleged those defendants had conspired to fraudulently obtain plaintiff's resignation, thus tortiously interfering with plaintiff's business relationship with Quincy-Peoples. Count II alleged the foregoing defendants and Wilson and Griffin had deprived plaintiff of due process entitling him to damages under the Civil Rights Act (42 U.S.C. § 1983 (1976)). Each count sought both compensatory and punitive damages.

On appeal, plaintiff maintains the trial court not only erred in entering the judgments for defendants but also erred in denying his motion to reconsider. That motion asserted he had obtained new matter of significance as a result of discovery in a related Federal case which revealed documents previously unavailable to him. He contended the summary judgment should have been set aside so he could present this matter to the court. Defendants make several arguments in support of the trial court's rulings. We deem some of their contentions sufficient to support the decision below and need not discuss others.

We consider first the ruling granting summary judgment on count I. At the time of the ruling much of the background information concerning the dispute was shown to be uncontradicted. Plaintiff was first hired by Quincy-Peoples in 1957, made vice-president in 1959 and president in 1969. For about 18 months prior to the summer of 1978, an employee of Quincy-Peoples, under plaintiff's supervision, made certain investments on behalf of the organization and borrowed funds for the investments. Claim was made that these borrowings exceeded that permissible under State and Federal requirements. On May 12, 1978, a meeting called by defendant Griffin, Commissioner of the Illinois Savings and Loan Commission, and presided over by defendant Wilson, a deputy commissioner, was held in Springfield. In addition to Wilson, Cashman, the defendant-directors and defendant Shinn, a supervisory agent for the Federal Home Loan Bank, were also present. The situation concerning the borrowings and plaintiff's possible responsibility were discussed. After the meeting, the defendant-directors met in the hallway and agreed that plaintiff's employment should be terminated. Only the directors were present.

The defendant-directors met again in late May or early June to discuss plaintiff's termination and his replacement. At some time they decided to offer the post to defendant Shinn. On July 20, 1978, those directors met with Wilson and Shinn to discuss the possibility of Shinn taking the position. During the course of these discussions, defendant Kemp, a Chicago attorney, had been retained by Quincy-Peoples to advise them concerning the problems which had developed. On July 27, 1978, Shinn accepted the offer to become president of Quincy-Peoples and submitted his resignation to the Federal Home Loan Bank.

On July 31, 1978, a meeting of the Quincy-Peoples' board of directors took place in the presence of a court reporter who transcribed the discussion. Shinn was not in attendance. Shortly after the meeting began, defendant Keller informed plaintiff that its purpose was to seek plaintiff's resignation. Plaintiff was given a document containing a proposed termination agreement which had been drafted, and defendant Kemp explained its provisions. Keller informed plaintiff that if he chose not to execute the termination agreement and not to resign, his employment would be terminated by action of Quincy-Peoples' board of directors.

The parties do not dispute that after the proposed termination agreement was tendered to plaintiff, the meeting was recessed. Plaintiff then telephoned Wilson and asked him if he had requested plaintiff's resignation. Wilson said he had not. The tendered document was then executed by the parties. It provided plaintiff would be given the position of vice-chairman of Quincy-Peoples until December 31, 1978, and would receive his existing salary until that date. Thereafter plaintiff purported to repudiate the agreement and further matters of significance occurred which we discuss later.

The plaintiff correctly notes that the purpose of summary judgment procedure is not to make findings of fact but to determine whether factual issues exist. However, when the information properly before the court ruling on the motion shows that a ruling in favor of the movant would be required as a matter of law, summary judgment may be entered accordingly.

The only evidence of tortious conduct on the part of any defendant which might have induced plaintiff to enter into the resignation agreement was evidence that some of the directors told plaintiff his resignation was being requested by certain Federal and State savings and loan regulatory officials when that was not true. No evidence indicated either defendants Kemp or Shinn were party to any such statements. Accordingly for that reason alone, judgment for Kemp and Shinn as to count I was justified.

We conclude that the summary judgment as to Quincy-Peoples and its directors was also justified upon the basis of conduct by plaintiff which estopped him from recovery against them. The documents before the trial court showed plaintiff and his counsel had various discussions about the signed resignation agreement with various of the defendant-directors. Eventually the directors were informed by plaintiff on August 31, 1978, that plaintiff was repudiating the agreement because of material misstatements made by him as well as material mistakes, duress, and coercion. Subsequently, a meeting was held between the parties' representatives on September 19, 1978. Then, on September 21, 1978, a letter was sent on behalf of Quincy-Peoples. The letter recited that representatives of the parties met as we have described, and "[a]s a result of the `spirit' of [that] meeting" the directors ordered the writer to release monies previously held in abeyance. The letter then stated, "Accordingly, pursuant to the terms of an agreement entered into by and between you and [Quincy-Peoples] dated July 31, 1978, the following payroll checks are enclosed."

The above letter listed checks for the pay periods ending August 31, 1978, and September 15, 1978, in the sums of $1,728.94 and $1,690.61, respectively. The letter also listed a check in the sum of $933.24 "for final director's fees for the months of June and July, 1978." The evidence showed the letter contained the foregoing checks and that they were eventually accepted by plaintiff and cashed. Additionally, plaintiff received and cashed similar checks covering periods up to the first half of December 1978. Before cashing the checks, plaintiff placed a notation on his endorsement stating "partial president's employment salary," but he never otherwise notified Quincy-Peoples he was accepting the checks in a presumed capacity as president rather than under the termination agreement. Plaintiff thus accepted all of the salary payments he would have been entitled to under the resignation agreement except that for the last half of December 1978.

• 1 While the evidence is in dispute as to what took place between the parties on September 19, 1978, the letter of September 21, 1978, sending the checks referred to that meeting only in reference to the "spirit" in which the letter was sent. The letter made perfectly clear that the checks were being sent pursuant to the July 31, 1978, resignation agreement the terms of which are not in dispute. Plaintiff's endorsement purporting to change the tenor of his acceptance of the checks from that in which they were sent to him could not do so. (In re Estate of Cunningham (1924), 311 Ill. 311, 142 N.E. 740; Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill. App.3d 818, 420 N.E.2d 567.) Since plaintiff accepted those benefits sent to him under the resignation agreement, he was estopped to deny its validity. (28 Am.Jur.2d Estoppel & Waiver sec. 59 (1966); see also Artnell Co. v. National Broadcasting Co. (1972), 4 Ill. App.3d 970, 282 N.E.2d 493.) The resignation agreement contained an agreement to hold harmless the directors of Quincy-Peoples. The estoppel inures to their benefit as well as to that of Quincy-Peoples.

The major thrust of plaintiff's claim of damage in count I was his resignation of the presidency. Even if his claim for relief was not negated for the reasons previously stated, he could not have recovered for loss of the presidency because the evidence before the court showed that he had no reasonable expectation of continued employment at the time he executed the resignation. That is a necessary element of tortious interference as alleged in count I. The other elements are (1) knowledge of the business relationship by the interferor, (2) intentional interference, and (3) resultant damage. O'Fallon ...


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