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02/10/94 DAVID M. KERCHER v. FORMS CORPORATION

February 10, 1994

DAVID M. KERCHER, PLAINTIFF-APPELLANT,
v.
FORMS CORPORATION OF AMERICA, INC. AND NODAWAY VALLEY COMPANY., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ODAS NICHOLSON, JUDGE PRESIDING.

Released for Publication April 19, 1994.

Cousins, Jr., Gordon, McNULTY

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS, Jr., delivered the opinion of the court:

David M. Kercher (Plaintiff) appeals the trial court's entry of summary judgment in favor of Forms Corporation of America, Inc. (Defendant) and Nodaway Valley Company on plaintiff's breach of permanent employment contract and misrepresentation of financial condition claims. The critical question involved in this appeal turns on a breach of an alleged oral agreement for permanent employment.

The issue presented for review is whether a question of fact regarding the duration of plaintiff's employment existed so as to preclude the entry of the summary judgment order that the trial court rendered in defendant's favor.

We affirm.

BACKGROUND

Plaintiff placed his resume on file with an executive search firm. As a result of the search firm's notifying plaintiff of a position with defendants, plaintiff, in January 1987 flew to Illinois from California and interviewed with defendant's president and the chairman of Nodaway Valley Company, defendant's parent company. Plaintiff testified that defendant's president told him that he was looking for someone who would ultimately become president. Shortly thereafter, defendant's president called plaintiff and offered him a position as vice president of marketing at an annual salary of $85,000, with health, dental, and life insurance, a retirement plan, and a bonus based on defendant's profits.

Plaintiff testified that he asked defendant's president about the duration of his employment and a golf membership. Defendant's president responded that the company had gone to "a lot of expense and will go to a lot of expense to hire [plaintiff]." He also responded that plaintiff's position was "obviously a long term proposition," and that was why defendants were not "allowing [plaintiff] to exercise any of [plaintiff's] [stock option] rights for the first couple of years." According to plaintiff's deposition testimony, the restraint on exercising the stock options acted as an incentive for plaintiff to remain employed by defendants.

Plaintiff requested a letter memorializing their conversation as to the terms of employment. The letter which plaintiff received outlined basic aspects of his employment: salary, potential 20% bonus, deferred compensation plan, supplementary income plan, stock option plan exercisable at 40% after two years and 20% for each of the next three years, automobile, and moving expenses. However, the letter was bereft of any provision regarding plaintiff's length of employment. In closing, defendant's president stated:

"I believe David [plaintiff] that this confirms our conversation, and I'm looking forward to working with you and building a better Forms Corporation of America."

Plaintiff admitted that nothing contained in the letter referred to defendant guaranteeing him a job for a specific duration.

Plaintiff started working for defendant on April 1, 1987. Approximately seven months later, ...


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