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Prodromos v. Howard Savings Bank

March 03, 1998

JOHN PRODROMOS, PLAINTIFF-APPELLANT,
v.
HOWARD SAVINGS BANK, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Lester D. Foreman, judge Presiding.

The opinion of the court was delivered by: Justice Tully delivered the opinion of the court:

Plaintiff, John Prodromos, brought this action in the circuit court of Cook County against defendant, Howard Savings Bank ("Bank"), for breach of an employment contract and for an accounting. Plaintiff also brought this action against defendants, Althea Prodromos ("Althea"), Chadwick Prodromos ("Chadwick") and Marilyn Prodromos ("Marilyn"), for tortious interference with an employment contract. The bank filed a motion to dismiss the breach of contract counts of plaintiff's six-count first amended complaint, pursuant to section 2-619(a)(7) and (9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(7), (9) (West 1994)), stating that the alleged employment contract failed to satisfy the Statute of Frauds (740 ILCS 80/1 (West 1994)). Althea, Chadwick and Marilyn also filed a section 2-619(a)(7) and (9) motion to dismiss the tortious interference with the contract count of plaintiff's first amended complaint. They alleged that because the Statute of Frauds barred enforcement of the alleged contract, there was no contract with which to interfere. The trial court granted both motions, noting that the employment contract was not signed by the bank, and finding that the writings plaintiff offered were insufficient to remove the bar of the Statute of Frauds. The trial court struck the remaining counts of plaintiff's first amended complaint, and granted plaintiff leave to amend those counts. Plaintiff filed a motion to reconsider and to vacate the order of dismissal, which the trial court denied. Plaintiff now appeals the trial court's dismissal of the breach of contract and tortious interference with the contract counts, pursuant to Supreme Court Rules 301 and 304 (155 Ill. 2d Rules 301 and 304).

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

Plaintiff alleged in his first amended complaint that he owned 40% of the issued and outstanding voting stock of the bank, which was an Illinois financial institution chartered pursuant to the Illinois Savings Bank Act. At the bank's 1993 annual shareholders' meeting, plaintiff, Althea, James Economos ("Economos"), Peter S. Sotos ("Sotos"), and Louis Sotreras ("Sotreras") were elected to be the board of directors until the 1994 annual shareholders' meeting.

On March 30, 1994, plaintiff, Sotreras and Economos were present at a regular monthly directors' meeting. The minutes of that monthly meeting stated that it was called pursuant to notice, and that Althea was not present. The minutes also reflected that each director present received a copy of employment contracts for plaintiff and Althea. Plaintiff did not take part in the Discussion of the contracts, and did not vote on them. Economos and Sotreras approved the contracts. The contract for plaintiff was not signed by the bank. Plaintiff, Economos and Sotreras signed the minutes of the meeting.

The 1994 annual meeting of the bank's stockholders was held later the same day. The stockholders elected Althea, Chadwick, Marilyn, Donald Veverka, and Sotos to be the board of directors for the following year. The minutes of the annual stockholders' meeting did not refer to the March 30th monthly board of directors meeting.

Plaintiff's employment was terminated without prior notice on November 15, 1994. Plaintiff alleged that he had performed all of the duties and obligations of Chief Executive Officer that the employment contract required of him between March 30, 1994, and November 15, 1994. He did not receive the full monthly salary, as provided in the employment contract during that time.

The board of directors held a special meeting on April 28, 1994. The minutes of that meeting stated that the directors did not approve the minutes of the March 30th monthly directors' meeting. The minutes of the April 28th meeting also stated, "that all purpoted actions taken the March 30, 1994 meeting, including the attempted approval of any employment contracts, *** are rejected and disavowed and are of no force and effect." The minutes of the April 30th meeting approved the directors' actions during the April 28th meeting.

In February 1995, the next annual shareholders' meeting was held, and Althea, Chadwick, Marilyn and Georgia Revis were elected as directors. The minutes of the meeting did not refer to the March 30th monthly directors' meeting.

In its motion to dismiss, the bank asserted that the three-year employment contract that plaintiff attached to his complaint was not signed by the bank, and therefore violated the Statute of Frauds. It also submitted that plaintiff did not perform his job based on a reasonable reliance of the contract, and that on April 30, 1994, the new board of directors repudiated the board's actions of March 30, 1994. Furthermore, the bank alleged that the March 30th monthly directors' meeting was conducted in violation of the bank's bylaws and state regulatory requirements, and that any action taken by the board at the meeting was invalid and not binding upon the bank. The bank stated that the board's violations included: holding the meeting at an unauthorized location; lacking the required number of five directors, and failing to notify Althea of the meeting. In their motion to dismiss, Althea, Chadwick and Marilyn adopted the bank's motion, asserting that the contract violated the Statute of Frauds, and that there did not exist a valid and enforceable contract upon which to base an action for tortious interference with a contract. The trial court granted defendants' motions and dismissed the first three counts of plaintiff's first amended complaint with prejudice on September 5, 1996. Plaintiff filed a motion for reconsideration, which the trial court denied.

ISSUES PRESENTED FOR REVIEW

On appeal, plaintiff contends that the trial court erred in granting defendants' section 2-619 motions to dismiss, and argues that: (1) the signed minutes of the March 30, 1994, board of directors' meeting constituted a writing sufficient to remove the bar of the Statute of Frauds; (2) plaintiff's partial performance of the contract removed the bar of the Statute of Frauds; and (3) defendants failed to properly raise "affirmative matters" (that the March 30th directors' meeting violated the bank's bylaws and state regulations) within the scope of a section 2-619(a)(9) motion to dismiss.

Plaintiff first contends on appeal that the signed minutes of the March 30th monthly directors' meeting constituted a writing sufficient to remove the bar of the Statute of Frauds. Plaintiff argues that those minutes were executed by the directors pursuant to their statutory duty and authority, and that the minutes ...


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