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Evans v. Fluor Distribution Companies Inc.

decided: August 26, 1986.

DAVID J. EVANS, PLAINTIFF-APPELLANT,
v.
FLUOR DISTRIBUTION COMPANIES, INC., DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 C 3859-James F. Holderman, Judge.

Author: Wood

Before WOOD, JR., and EASTERBROOK, Circuit Judges, and BARKER, District Judge.*fn*

Wood, Jr., Circuit Judge. Plaintiff-appellant David J. Evans appeals the district court's grant of summary judgment in favor of defendant-appellee Fluor Distribution Companies, Inc. ("Fluor"). Evans alleges that his employment was wrongfully terminated in violation of oral promises made by Flour.*fn1 The court ruled that the Illinois statute of frauds precluded Evans's action. We affirm.

I.

For purposes of our review of the district court's order granting summary judgment, we will construe the facts alleged in the light most favorable to the plaintiff-appellant, David Evans. Evans was employed by Kilsby-Roberts, a wholly-owned subsidiary of Fluor (or its predecessor companies), for approximately twenty-five years before his termination. Prior to 1981, Evans had spent approximately one-half of his time in his employer's Chicago office and the remainder of his time travelling between numerous branch offices in various states and the corporate office which is located in Irvine, California. At the time of his termination, Evans was a vice-president of Kilsby-Roberts.

In late 1981, Evans's son was injured in a swimming accident and is now a quadriplegic. Several days after the accident, Sid Entin, who was then president of Kilsby-Roberts, telephoned Evans from California. Evans was told that because of his son's injury his travel schedule would be reduced significantly. Evans also testified that Entin told him that he would be able to keep his position with Kilsby-Roberts until age sixty-five. At the time this promise was made, Evans was sixty-two and would not be sixty-five until January 1984. It is uncontested that the substance of this agreement was never reduced to writing.

Evans also testified that several senior Fluor executives were informed of and approved the promise Entin made to Evans. In fact, in June 1982, Evans was told that, although Entin was no longer with the company, his promise to Evans would be honored.

As a result of these promises, Evans testified that he made several changes to his home necessary both to care for his son and to allow him to remain employed in Chicago. Evans noted that Chicago winters were difficult for his son because of his susceptibility to colds and inability to breathe in cold weather. As a result of his son's accident Evans was forced to remodel his home to accommodate his son's special needs, purchase a van which was wheelchair accessible, and hire a private nurse to help care for his son while Evans was away on business.

In December 1982, prior to reaching his sixty-fifth birthday, Evans was given the choice of either accepting early retirement or being fired. Evans chose early retirement which was effective February 1, 1983. Thereafter Evans filed suit alleging that he had been wrongfully terminated. The district court, finding no legal basis for Evans's lawsuit, granted Fluor's motion for summary judgment. Evans appeals the district court's decision.

II.

In pertinent part, Fed. R. Civ. P. 56(c) provides that the district court grant summary judgment if "there is no genuine issue as to any material fact" and if "the moving party is entitled to a judgment as a matter of law." In this case, we must therefore determine whether the district court erred in concluding that, as a matter of law, Evans's action was barred by the Illinois statute of frauds.

In relevant part, Ill. Ann Stat. ch. 59, [P]1 (Smith-Hurd 1972 and 1986 Supp.) provides:

No action shall be brought . . . upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.

It is settled under Illinois law that to be outside of the statute of frauds the oral contract in question must be capable of being performed within one year. See Martin v. Federal Life Insurance Co., 109 Ill. App. 3d 596, 604, 440 N.E.2d 998, 65 Ill. Dec. 143 (1st Dist. 1982); Gilliland v. Allstate Insurance Co., 69 Ill. App. 3d 630, 633, 388 N.E.2d 68, 26 Ill. Dec. 444 (1st Dist. 1979). As we recently noted, however, this means only that the contract must be incapable of being performed within one year if it is to fall within the statute of frauds; "if performance [within one year] though ...


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