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05/28/87 Robert F. Shultz Et Al., v. Delta-Rail Corporation Et

May 28, 1987

ROBERT F. SHULTZ ET AL., PLAINTIFFS-APPELLANTS

v.

DELTA-RAIL CORPORATION ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

508 N.E.2d 1143, 156 Ill. App. 3d 1, 108 Ill. Dec. 566 1987.IL.705

Appeal from the Circuit Court of Du Page County; the Hon. S. Bruce Scidmore, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. REINHARD and HOPF, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiffs, Robert F. Shultz (Robert) and Morris D. Davis (Morris), appeal from an order entered in the circuit court of Du Page County granting defendants', Delta-Rail Corporation, John D. Shultz (John), and Marie Shultz (Marie), motion to dismiss pursuant to section 2-619 (a)(9) of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(9).) The issue raised on appeal is whether the trial court erred in granting defendants' motion to dismiss based on affirmative matter capable of defeating plaintiffs' claims. We affirm.

The circumstances of this case are complex and are further complicated by the fact that the case involves an intrafamily dispute, and each side has a different version or interpretation of the underlying facts giving rise to the dispute. In 1962 Robert and his brother John formed the Delta Tube Corporation, which underwent a name change to Delta-Rail Corporation in 1966. Robert contributed two-thirds of the initial capitalization, and John, one-third. At the time of incorporation three stock certificates were issued: certificate No. 1, for 50 shares, issued to Robert; certificate No. 2, also for 50 shares, issued to John; and certificate No. 3, for five shares, issued to the brothers' father. Robert did not receive shares of stock proportionate to his contribution because he was involved in bankruptcy proceedings in connection with a precursor corporation, and Robert was a personal guarantor of its debts. The bankruptcy matter was eventually settled and Robert was appointed to the board of directors of Delta Tube. In 1964 stock certificate No. 4 for 50 shares was issued to Marie, John's wife, for no consideration, with the understanding that she was holding the certificate for the benefit of Robert, who at the time was still involved in the bankruptcy proceedings. Each brother has a separate version regarding the purpose of the issuance of certificate No. 4. Robert contends that certificate No. 4 was issued to reflect his true capital contribution to the corporation, i.e., 100 shares or two-thirds of the outstanding stock, while John had 50 shares or one-third of the stock. John's version is that certificate No. 4 was issued to replace certificate No. 1, and, therefore, as of that date Robert was left with no shares of stock. John stated that this action was taken because of Robert's 1966 divorce. As plaintiffs' brief notes, neither version is completely supported by the facts. According to plaintiffs' amended complaint, the record book of the corporation contains the statements that certificate No. 4 was a transfer from John and also a transfer of certificate No. 1. John's version is contradicted by facts pleaded in plaintiffs' second amended complaint which state that both Robert and Marie participated as shareholders after 1964, i.e., in 1966, 1971, 1972, and 1973. Robert's version is in conflict with the fact that the corporate annual reports and record book continued to list 112 shares as outstanding (John had received seven additional shares in 1964), even though the owners of certificates No. 1, 2, and 4 totaling 150 shares participated as shareholders.

In 1978 Robert requested that certificate No. 4 be transferred from Marie to himself. The transfer took place during a meeting at the office of attorney Keith Roberts, who at the time represented both brothers and the corporation. As a result of the meeting, an agreement was executed which transferred certificate No. 4 from Marie to Robert for no consideration. The agreement further stated that:

"The outstanding Common Stock Certificates in Delta Rail Corp as of this date [August 2, 1978] are as follows:

No. 2 - fifty (50) shares, JOHN D. SHULTZ

No. 3 - five (5) shares, FRANK A. SHULTZ [the father]

No. 4 - fifty (50) shares, ROBERT F. SHULTZ

No. 5 - seven (7) shares, JOHN D. SHULTZ"

This agreement does not mention certificate No. 1. When questioned on this issue at his deposition, John made the following statements:

"Q. [Plaintiffs' Counsel] Would you tell me everything that took place at the August 2 meeting?

A. Demand was made upon Robert Shultz for certificate number 1.

Q. Who made that demand?

A. Keith Roberts.

Q. What did Keith Roberts say?

A. He said Where is certificate number 1?

Q. That's how he made his demand?

A. Yes, to the best of my knowledge.

Q. Do you recall those words?

A. No, I don't recall those words.

Q. Then what happened?

A. Robert Shultz said Certificate 1 never existed.

Q. Said it never existed?

A. Never existed.

Q. What else was said?

A. After he refused the existence of certificate number 1, this agreement was typed up including paragraph 2. [recital of the outstanding stock] There was no argument about the fact."

In 1979 Robert and John entered into negotiations for the purchase of Robert's interest. An agreement was apparently reached by both parties but the scope of the agreement is in dispute. The record evinces the existence of the following documents: an "Agreement" dated September 25, 1979, for the sale of certificate No. 4 to the corporation at a price of $3,560 per share to be paid in installments over two years; an "Assignment" of certificate No. 4 dated September 25, 1979; an "Assignment" of certificate No. 1 dated September 25, 1979; an "Agreement" providing for the employment of Robert as an independent consultant dated October 1, 1979; and a "Mutual Release and Indemnification" dated October 3, 1979.

At his deposition, Robert testified that he executed an agreement for the sale of certificate No. 1 that contained the same provisions as for certificate No. 4. Installment payments on the sale of this certificate were to start in 1981 after the payments on certificate No. 4 had been completed. Robert testified that he signed the agreement for the sale of certificate No. 1 at the office of John's attorney. He claimed that the agreement for the sale of certificate No. 1 was never returned to him. This agreement is not part of the record on this case.

In his deposition, John testified that the agreement executed by the parties concerned the sale of certificate No. 4, since "Robert Shultz said (on August 2, 1978) certificate No. 1 did not exist." When asked why an assignment of ...


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