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Deltak, Inc. v. Schwartz





Appeal from the Circuit Court of Cook County; the Hon. Albert S. Porter, Judge, presiding.


An original complaint for preliminary injunction was brought by plaintiff-appellee Deltak, Inc. (Deltak), against defendant-appellant Steven M. Schwartz (Schwartz). Prior to its stipulated dismissal, Schwartz filed suit in the circuit court of Cook County against Deltak seeking damages for Deltak's alleged breach of his written employment contract. Deltak filed a motion for summary judgment on Schwartz' contract claim, and it was granted.

Schwartz appeals, contending that a material issue of fact was raised thereby preventing the entry of summary judgment. More particularly, Schwartz contends the following material factual issues were presented to the trial court: (1) he was not made aware of the quality standards governing his work, although failure to comply with these standards was the basis for the termination of his employment; (2) he was not given the required 30 days' notice prior to termination of his failure to comply with quality standards; and (3) he was terminated improperly at the "whim" of his employer.

We affirm the decision of the trial court.

Deltak, Inc., is a corporation that develops and produces multi-media training courses for the electronic data processing industry. Some of these courses are written by independent authors, who are employed by Deltak to design and write materials in connection with particular projects.

On July 5, 1979, Deltak and Schwartz entered into a written contract providing that Schwartz, as an independent author, would design and write two to five multi-media training courses. The contract provided, in pertinent part,

"3B. All deliverables [writer's work product] must conform to DELTAK's product development standards and procedures ***, which have been furnished to WRITER prior to the signing of this Agreement. All deliverables must also conform to DELTAK's quality standards, as interpreted by DELTAK's Vice President of Product Development, who must approve the quality and content of all deliverables before work on the next phase begins."

The contract also provided that Schwartz' fee was to be a royalty of 8% of Deltak's gross receipts from the sale of the courses. At the time he signed the contract, Schwartz received a copy of Deltak's Standards and Procedures Manual.

Schwartz submitted the first design for his project in November 1979. Deltak's vice president of product development determined that Schwartz' work failed to conform to Deltak's quality standards. He requested Schwartz make substantial revisions. The revised product design, submitted in February 1980, also was rejected as being of inferior quality. On April 7, 1980, Deltak wrote Schwartz a six-page letter explaining in detail the problems its reviewers had found in the content, organization, and writing of the revised design. At the end of six pages of criticism, the letter concluded, "We are making good progress."

In June 1980, Deltak's vice president of product development conferred with members of Deltak's committee assigned to oversee Schwartz' work; he determined that Schwartz' work product had failed to meet the specified quality standards for the project. He instructed the product manager to terminate Schwartz' employment contract. Thereupon, Schwartz was terminated and another author was hired to produce the program. The second author never saw any of Schwartz' work product. Schwartz' breach of contract action and subsequently this appeal followed.

• 1 Schwartz' first contention on appeal is that he raised a material fact issue to the effect that Deltak failed to furnish him with its product development standards. Schwartz' failure to conform to these standards allegedly was the basis for termination. It was against these standards that the quality of Schwartz' work was to be judged, and, if they were not made known to him, he could not be guilty of having breached his obligation to meet the standards. However, an examination of the trial court record reveals evidentiary facts which directly controvert Schwartz' first contention. If the party moving for summary judgment supplies evidentiary facts which, if not contradicted, would entitle him to judgment, the opposing party cannot rely upon his complaint alone to raise issues of material fact. (Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App.3d 569, 575, 442 N.E.2d 648, 653.) An affidavit in support of a motion for summary judgment, as was presented in this case, is actually a substitute for testimony taken in open court. (Fooden v. Board of Governors (1971), 48 Ill.2d 580, 587, 272 N.E.2d 497, 499, cert. denied (1972), 408 U.S. 943, 33 L.Ed.2d 766, 92 S.Ct. 2847.) Well-alleged facts contained therein, uncontradicted by counteraffidavit must be taken as true, notwithstanding contrary averments in the adverse party's pleading which purport to establish bona fide issues of fact. 48 Ill.2d 580, 587, 272 N.E.2d 497, 500-01, cert. denied (1972), 408 U.S. 943, 33 L.Ed.2d 766, 92 S.Ct. 2847.

The record discloses that Schwartz himself filed an affidavit explicitly stating that he had received Deltak's "Product Development Standards and Procedures Manual" at the time he signed the employment contract. A second affidavit was filed by Serge P. Beauregard, group vice president of development and operations at Deltak, affirming that Schwartz was given the procedures manual when he accepted his first assignment. The record is devoid of any contradictory evidence or counteraffidavits which place this material fact at issue. Accordingly, we find that Schwartz literally received Deltak's product development standards and was thereby apprised of the quality standards to which his work was to conform and to which his work allegedly did not conform. No material issue of fact remained to be decided in connection with the foregoing.

Schwartz' second and third contentions on appeal both address the issue of the propriety of his termination. Schwartz argues that certain conditions precedent to the termination of the employment contract were not met. Deltak denies Schwartz' contention. Schwartz contends that his agreement with Deltak required 30-days' prior written notice as a condition precedent to termination. The provision at issue, paragraph 7D(3), provides:

"7D. Contingencies for WRITER's Non-Performance; If WRITER fails to meet any schedule deadlines, fails to comply with DELTAK's product development or quality standards, or fails to cooperate in setting any schedule for ...

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