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12/03/96 KELLY A. FLINT v. COURT APPOINTED SPECIAL

December 3, 1996

KELLY A. FLINT, PLAINTIFF-APPELLANT,
v.
COURT APPOINTED SPECIAL ADVOCATES OF DU PAGE COUNTY, INC., A/K/A CASA OF DU PAGE COUNTY, BRIAR PICCHIETTI, INDIV., AND NATIONAL COURT APPOINTED SPECIAL ADVOCATE ASSOCIATION, A/K/A NCASAA, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 95--CH--222. Honorable Bonnie M. Wheaton, Judge, Presiding.

Released for Publication January 6, 1997.

The Honorable Justice Geiger delivered the opinion of the court. Bowman and Rathje, JJ., concur.

The opinion of the court was delivered by: Geiger

JUSTICE GEIGER delivered the opinion of the court:

The plaintiff, Kelly Flint, appeals from the order of the circuit court of Du Page County granting summary judgment in favor of defendants, Court Appointed Special Advocates of Du Page County, Inc. (CASA of Du Page County), and Briar Picchietti, on her claims for breach of contract and tortious interference with an existing contract. She also appeals from the trial court's order dismissing her claim against the defendant, the National Court Appointed Special Advocate Association (NCASAA), for lack of personal jurisdiction. We affirm in part, reverse in part, and remand for further proceedings.

NCASAA is a not-for-profit corporation which provides technical assistance and training to CASA programs throughout the United States. NCASAA also disburses funds it receives from the United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention (the DOJ), in the form of grants to local CASA programs. Local CASA programs provide trained, community volunteers to advocate for the best interests of children who come into the court system, primarily as a result of abuse or neglect. Local CASA programs recruit, screen, train, and supervise these volunteers to either serve as guardians ad litem for children, assist attorney guardians ad litem in their representation, or serve as independent third-party "Friends of the Court." As such, local CASA programs are intended to serve the overall public interest in the welfare of children. Local CASA programs are independent organizations which become members of NCASAA in order to enjoy the benefits of membership. As a condition of NCASAA membership, local CASA programs agree to abide by NCASAA's membership standards. NCASAA offers its members various support services, which may include training, technical assistance, the right to use certain trademarks and copyrighted materials, and the award and administration of DOJ grant funds to qualifying applicants.

NCASAA members include numerous local CASA programs in all 50 states. In Illinois, there are one state and 20 local CASA programs which is a NCASAA member. CASA of Du Page County is one of the local CASA programs in Illinois which are NCASAA members. CASA of Du Page County is a not-for-profit Illinois corporation. As such, it is dependent upon charitable contributions for its operation, and NCASAA grants are its only source of substantial and continued funding.

Picchietti has been a member of CASA of Du Page County's board of directors (the Board) since at least January 1, 1994. During 1995, Picchietti was the president of the Board.

During 1994, the plaintiff served as CASA of Du Page County's executive director. On April 27, 1994, CASA of Du Page County entered into a contract with the plaintiff under which the plaintiff would serve as executive director on an independent contractor basis (the original contract). The original contract was for the period beginning January 1, 1994, and ending December 31, 1994. The original contract provides, in pertinent part:

"[The plaintiff] is to receive as compensation an amount equal to fifty (50) percent of the total gross receipts donated, given and/or granted to CASA of Du Page County[] for the period beginning January 1, 1994 and ending December 31, 1994, up to an amount not to exceed $50,000.00."

In March 1994, the plaintiff applied for a NCASAA grant on behalf of CASA of Du Page County. On July 20, 1994, NCASAA entered into an agreement to grant CASA of Du Page County $75,000, payable in quarterly installments over the period beginning July 1, 1994, and ending June 30, 1996, (the grant). By entering into the agreement, CASA of Du Page County accepted the terms and conditions of the grant. Under the agreement, NCASAA may terminate the grant and cease making disbursements at any time during the grant period for violations of the grant's terms and conditions.

At a Board meeting on October 6, 1994, the plaintiff presented a proposed payout schedule which provided for payments which she believed CASA of Du Page County owed her under the original contract. The Board approved the idea of a payout schedule for the plaintiff. However, the Board had CASA of Du Page County's general counsel, Maria Jensen, review the proposed payout schedule. After reviewing the proposed payout schedule, Jensen prepared an amendment to the original contract (the amendment to the contract).

At a Board meeting on November 18, 1994, the Board reviewed and approved the amendment to the contract. Peter S. McCabe, who was the president of the board at that time, signed the amendment to the contract on behalf of CASA of Du Page County, and the plaintiff signed on her own behalf. The amendment to the contract adds the following language to the compensation provisions of the original contract:

"If [the plaintiff's] total compensation from CASA [of Du Page County] for 1994 does not total $50,000.00, the parties agree, that [the plaintiff] will be entitled to an additional $16,984.00 *** from the sums actually received from the NCASAA grant awarded to CASA [of Du Page County] in 1994, providing for distributions through January, 1996."

The amendment to the contract then provides for a payout schedule through 1995 and ending in January 1996 for payouts totalling $16,984, the amount sought in the plaintiff's amended complaint. Finally, the amendment to the contract provides that "reimbursement to [the plaintiff] pursuant to the aforesaid payment schedule is subject to the *** condition that the sums are actually received, as set forth in the NCASAA Grant."

The substantial difference between the plaintiff's proposed payout schedule and the amendment to the contract drafted by Jensen was the addition of the language that the payments to the plaintiff during 1995 and 1996 were to be made from funds "actually received" from the NCASAA grant awarded in 1994. Prior to executing the amendment to the contract, McCabe informed the plaintiff that the terms "actually received" from the NCASAA grant were added by CASA of Du Page County to make clear that CASA of Du Page County would only be obligated under the payout schedule contained in the amendment to the contract to pay her from funds actually received from NCASAA pursuant to the grant. He also informed her that the language was added to make clear that CASA of Du Page County was not obligated to pay her should it lose the NCASAA grant for any reason, as CASA of Du Page County had no other source of continued and substantial funding from which to pay her.

On December 1, 1994, the plaintiff submitted a letter to CASA of Du Page County, advising that she would not be renewing her contract to serve as executive director for 1995. At the time McCabe signed the amendment to the contract on behalf of CASA of Du Page County, neither he nor the Board was aware that the plaintiff would not serve as CASA of Du Page County's executive director during 1995. In addition, neither he nor the Board knew that NCASAA would prohibit CASA of Du Page County from paying the plaintiff pursuant to the amendment to the contract from NCASAA funds if the plaintiff were no longer providing services to CASA of Du Page County.

During the period beginning July 1, 1994, and ending December 31, 1994, CASA of Du Page County received $30,000 from NCASAA pursuant to the grant. During 1994, CASA of Du Page County received $11,149.10 from all other grants, contributions, and fund raisers. During 1994, CASA of Du Page County paid the plaintiff $26,090.55 as compensation. Of this amount, $20,516.00 was paid from funds received from NCASAA in 1994 pursuant to the grant. The plaintiff has performed no services in any paid capacity for CASA of Du Page County since December 31, 1994.

CASA of Du Page County had no executive director during January 1995. On or about January 13, 1995, CASA of Du Page County received a $7,500 grant disbursement check from NCASAA, which was deposited into its checking account.

On January 20, 1995, in order to determine how to prepare a request for quarterly grant disbursement from NCASAA, Picchietti contacted Sue Shecket, NCASAA's grant administrator. Picchietti asked Shecket how to prepare the request for quarterly grant disbursement from NCASAA and how to indicate CASA of Du Page County's payout obligation to the plaintiff under the amendment to the contract. Picchietti informed Shecket of the following: (1) that the plaintiff was no longer performing services on CASA of Du Page County's behalf; (2) that the plaintiff had served as CASA of Du Page County's executive director on an independent contractor basis, with compensation based on a percentage of the total gross receipts donated, given, and/or granted to CASA of Du Page County for the period of her tenure; and (3) that, under the amendment to the contract, CASA of Du Page County was to pay the plaintiff a portion of the funds that CASA of Du Page County would receive from NCASAA under the grant during 1995 and 1996.

Shecket informed Picchietti that NCASAA prohibited CASA of Du Page County from paying any portion of the grant funds which would be distributed to CASA of Du Page County during 1995 and 1996 as compensation to the plaintiff when she was no longer performing services for CASA of Du Page County. Shecket also informed Picchietti that if CASA of Du Page County paid any portion of the grant funds which would be distributed during 1995 and 1996 to the plaintiff while she was not performing services on behalf of CASA of Du Page County, NCASAA would rescind the grant and cease payments thereunder.

Following her conversation with Picchietti, Shecket discussed the situation with Michael Piraino, NCASAA's chief executive officer. As a result of their discussion, Shecket sent a letter to Picchietti in which she clarified the requirements and limitations on the use of the remaining NCASAA grant funds, stating that "remaining grant funding may be used to compensate only those personnel that are currently performing activities directly related to the purposes of the grant."

After Picchietti's telephone conversation with Shecket and after receiving Shecket's letter, Picchietti conferred with the executive committee of the Board (the Executive Committee). The Executive Committee agreed that, given NCASAA's position, CASA of Du Page County could not pay the plaintiff under the amendment to the contract.

On January 21, 1995, the plaintiff sent a letter to CASA of Du Page County requesting that she be paid the $3,750 due her under the payout schedule in the amendment to the contract. On January 30, 1995, she sent a letter to ...


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