APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
531 N.E.2d 830, 176 Ill. App. 3d 745, 126 Ill. Dec. 203 1988.IL.1590
Appeal from the Circuit Court of Cook County; the Hon. Joseph M. Wosik, Judge, presiding.
PRESIDING JUSTICE WHITE delivered the opinion of the court. RIZZI and FREEMAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE
Plaintiff, Ralph Langer, appeals from an order of the circuit court of Cook County, Illinois, granting summary judgment to defendants Marvin Bryan and Paul Warshaw and dismissing counts III, IV and VI of plaintiff's second amended complaint. We affirm.
On January 31, 1984, plaintiff filed a complaint for dissolution of his partnership with defendant Ronald Becker. Plaintiff alleged that he and Ronald Becker formed a partnership in 1978 and agreed to divide equally all profits and commissions earned by the partnership and all expenses of the partnership. The partnership represented toy and craft manufacturers and received commissions for the sale of the manufacturers' products. Plaintiff further alleged that, on January 26, 1984, Ronald Becker informed him that he was altering the division of profits and expenses of the partnership to a 60% to 40% split in favor of Becker. Plaintiff prayed that the partnership be dissolved, for an accounting of all transactions involving the partnership, and for a division of partnership assets.
On January 28, 1986, plaintiff was given leave to file an amended complaint and to name additional defendants. The amended complaint was stricken by the circuit court on April 29, 1986, and plaintiff was given leave to file a second amended complaint. The second amended complaint is in seven counts, counts I, II, V and VII of which are not at issue in this appeal.
In count III of the second amended complaint, plaintiff alleged that, starting in 1980, the partnership was the exclusive representative of Henry Gordy, Inc., in the Midwest. Marvin Bryan was employed by Henry Gordy, Inc., as national sales manager and was aware of the partnership between plaintiff and Ronald Becker. Starting in late 1983 and continuing until January 1984, Marvin Bryan "intentionally and without justification induced a breach of the contractual relationship between [plaintiff] and Ronald Becker by willfully and maliciously advising, instigating and assisting Ronald Becker to coerce [plaintiff] into accepting a reduced ownership interest in the [partnership]." Ronald Becker breached the contractual relationship by unilaterally writing partnership checks in the amounts of $3,000 and $30,000 to himself and checks in the amounts of $2,000 and $20,000 to plaintiff. Plaintiff also alleged that, on or about February 1, 1984, Ronald Becker misappropriated the partnership's exclusive right to represent certain toy and craft manufacturers.
In count IV of the second amended complaint, plaintiff alleged that Paul Warshaw was aware of the partnership between plaintiff and Ronald Becker by virtue of his position as vice-president of sales of Henry Gordy, Inc. Plaintiff also alleged that Paul Warshaw "intentionally and without justification induced a breach of the contractual relationship between [plaintiff] and Ronald Becker by willfully and maliciously advising, instigating and assisting Ronald Becker to coerce [plaintiff] into accepting a reduced ownership interest in the [partnership]." As in count III, plaintiff then alleged that Ronald Becker unilaterally divided partnership income 60%-40% in favor of himself and misappropriated the partnership's right to represent certain toy and craft manufacturers.
Count VI of the second amended complaint is based upon a conspiracy to reduce plaintiff's ownership interest in the partnership. Plaintiff alleged that Ronald Becker, Marvin Bryan and Paul Warshaw "had numerous secret conversations and conspired to coerce [plaintiff] into accepting a reduced ownership interest in the [partnership]." As a result of the conspiracy, Ronald Becker misappropriated the partnership's exclusive right to represent certain toy and craft manufacturers.
Marvin Bryan and Paul Warshaw filed petitions for summary judgment which were granted by the circuit court, and counts III, IV and VI of the second amended complaint were dismissed. Plaintiff then filed a motion to reconsider which was denied by the circuit court.
On appeal, plaintiff asserts that a genuine issue existed as to whether the actions of Marvin Bryan and Paul Warshaw were privileged and, consequently, the circuit court erred in granting the summary judgment. It is well settled that, where a plaintiff is unable to establish an element of his cause of action through the pleadings, depositions, admissions and affidavits on file, summary judgment for the defendant is proper. (Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 399, 515 N.E.2d 1047; Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85, 508 N.E.2d 1201.) While a plaintiff is not required to prove his case at the summary judgment stage, he is under a duty to present a factual basis which would arguably entitle him to judgment. (Certified Mechanical Contractors, Inc., 162 Ill. App. 3d at 399; Martin v. 1727 Corp. (1983), 120 Ill. App. 3d 733, 737, 458 N.E.2d 990.) In the case at bar, we find that entry of summary judgment on counts III and IV of the second amended complaint was proper because plaintiff failed to present facts to show that the actions of Marvin Bryan and Paul Warshaw were not privileged.
"Every man has a right, under the law, as between himself and others, to full freedom in disposing of his own labor or capital according to his own will, and any one who invades that right without lawful cause or justification commits a legal wrong, and, if followed by an injury caused in consequence thereof, the one whose right is thus invaded has a legal ground of action for such wrong. Damage inflicted by fraud or misrepresentation, or by the use of intimidation, obstruction or molestation, with malicious motives, is without excuse, and actionable. Competition in trade, business or ...