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12/21/87 Christopher Muka; Radio v. the Estate of Stephen L.

December 21, 1987

DERIVATIVELY ON BEHALF OF RADIO GUIDE, INC., PETITIONERS-APPELLANTS

v.

THE ESTATE OF STEPHEN L. MUKA, RESPONDENT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

CHRISTOPHER MUKA; Radio Guide, Inc.; and Christopher Muka

517 N.E.2d 673, 164 Ill. App. 3d 223, 115 Ill. Dec. 262 1987.IL.1898

Appeal from the Circuit Court of Du Page County, Illinois, No. 85 P 0738; the Hon. S. Keith Lewis, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. UNVERZAGT and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Petitioners, Christopher Muka, Radio Guide, Inc., and Christopher Muka derivatively on behalf of Radio Guide, Inc., filed claims in the circuit court of Du Page County against the estate of Christopher's brother, Stephen L. Muka (the Estate), based on an alleged contract between Stephen and Christopher. Petitioners also filed a jury demand. On the Estate's motion, the trial court dismissed the claims with prejudice. Petitioners filed a motion for reconsideration which was denied. Petitioners appeal arguing that their claim states a cause of action in contract and that a material question of fact remains of whether the contract was performed. We agree and, therefore, reverse.

The following facts were alleged in petitioners' claims. Stephen Muka was a founder and principal shareholder of U.S. Robotics, Inc. As of June 30, 1985, Stephen valued his U.S. Robotics stock at approximately $3.4 million. On or about July 25, 1984, Stephen agreed with his brother Christopher that if Christopher would leave his then current job prospects in Pennsylvania and work with Stephen in a business enterprise in Chicago, Stephen would ensure that at the end of one year Christopher's equity interest in the new business would be at least $1 million or, failing that, Stephen would personally give Christopher $1 million worth of U.S. Robotics stock. Christopher was also to receive a yearly salary of $22,000.

The terms of the agreement were reduced to writing in a letter agreement prepared by Stephen which provides as follows:

"To: Chris Muka

Dear Christopher,

This is a letter of intent concerning your involvement in two projects: The business radio station idea, and the keyboard dot idea.

The exact form of the corporate entity which may tackle these ideas is changing from day to day. Percentages are varying etc. . . . But it is my intention that you will have a significant equity interest in these ventures and at the end of a yr. be worth at least $1,000,000. out of this, hopefully more.

Even if all else fails, and US Robotics elects not to give you a lot of stock in the new subsidiary, I will personally give you $1,000,000. worth of my USR stock, provided you work ...


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