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GIARD v. POWERS

April 14, 2003

EDWARD GIARD, PLAINTIFF,
v.
WILLIAM F. POWERS, II, DEFENDANT.



The opinion of the court was delivered by: Harry D. Leinenweber, United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Edward Giarci ("Giard" or "Plaintiff"), a resident of Vermont, filed a three-count amended complaint against Defendant William F. Powers, IT ("Powers" or "Defendant"), an Illinois resident, alleging breach of contract, fraud, and promissory estoppel. Before the Court are Lowers's Motion for Summary Judgment on all counts and Giard's Cross-Motion for Summary Judgment on the promissory estoppel count. For the following reasons, the Court grants Powers's motion in part, denies it in part, and denies Giard's motion.

BACKGROUND

Except as noted, the following facts are undisputed for purposes of summary judgment. In January 1988, Powers incorporated Profile by Design ("Profile" or "the Company"), a company that designed and manufactured aerodynamic bicycle handlebars and other bicycle components. Powers recruited Giarci, a college friend, to help him with the company and in the spring or early summer of 1988, Giard joined Profile. The two men developed a partnership, with Giard focusing primarily on product design and manufacture while Powers handled the financial side of the business. Powers, who was the sole shareholder of Profile at incorporation, eventually issued additional stock and gave Giard 10,000 shares as repayment for a $10,000 loan he made to the Company. Powers retained 80,000 shares.

Profile struggled somewhat in its nascent years. The parties dispute Profile's exact earnings figures, but it appears from tax returns that while Profile's sales increased quickly, the company lost money in 1989, enjoyed some income in 1990, and lost money in 1991. In 1991, Giard and Powers considered selling Profile and its assets. In light of the potential sale, Giard and Powers had heated conversations about the amount that Giard would receive if they did sell Profile. Finally, in mid-1991, Powers presented Giard with a handwritten note, attached to Giard's amended complaint as Exhibit A ("Exhibit A"), which reads as follows:

Ed, You are right — the signature below makes it official in writing. This paper supercedes any contracts on ownership signed. Edward H. Giard will recieve [sic] 20% of the proceeds from the sales of Profile for Speed, Inc. [signed] William F. Powers, II President
Despite discussions with several potential purchasers, Giard and Powers failed to sell Profile, and on December 31, 1991, Giard resigned from the Company. He retained his shares, and continued to perform consulting work for Profile for a limited period of time.

In a deal with Colvin Hsiao that began in March 1998 and concluded in July 1999, Powers eventually sold his 80,000 shares of Profile for a purchase price of $2,180,000.00. On May 11, 1998, Giard entered into an agreement with Mark Pikula ("Pikula") regarding his 10,000 shares of Profile stock. While Giard did not technically sell his stock, he agreed to deliver the certificates to Pikula, to vote his stock as Pikula directed, to transfer any dividends to Pikula, and to refrain from assigning or encumbering the stock. Pikula paid Giard $50,000 for these rights, and retained the option to purchase the stock for an additional $100. A year later, however, Pikula exercised his right to rescind the deal, and on June 23, 1999, Giard repaid Pikula $50,000. As a result, Giard currently owns his shares of Profile. Neither Giard nor Powers ever shared the profits of their respective agreements with the other party.

Powers' failure to share the profits of his stock sale with Giard forms the basis of Giard's lawsuit. At the heart of the dispute lies Exhibit A, the 1991 note from Powers to Giard. Giard claims that Exhibit A constitutes an agreement that entitles him to twenty percent of Powers's proceeds from his sale of Profile stock. Giard asserts that Powers's failure to provide him with any portion of such proceeds is a breach of contract and grounds for fraud and promissory estoppel actions. Powers, in turn, argues that the circumstances surrounding Exhibit A demonstrate that it was only intended to govern sales of stock in 1991, when Powers and Giard were actively negotiating the sale of the business. Powers contends that Giard ignored Exhibit A in his own business dealings, and only raises it now that Powers has rebuilt the Company and sold it for a substantial profit. Powers has now filed a motion for summary judgment on all counts while Giard has filed a cross-motion for summary judgment on Count Three, Promissory Estoppel. It should be noted, however, that Powers's motion for summary judgment erroneously references plaintiff's original complaint, not his amended complaint. Accordingly, this Court will only address those of Powers's arguments that relate to existing counts.

DISCUSSION

Summary Judgment

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is "material" if it could affect the outcome of the suit under the governing law; a dispute is "genuine" where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The burden is initially upon the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In assessing the movant's claim, the court must view all the evidence and any reasonable inferences that may be drawn from that evidence in the light most favorable to the nonmovant. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000). Once the moving party has met its burden, the nonmoving party "may not rest upon the mere allegations" contained in its pleading, but rather "must set forth specific facts showing that there is a genuine issue for trial." FED. FR. CIV. P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). It "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Count One — Breach of Contract

In Count One of his amended complaint, Giard alleges that Powers breached the terms of their 1991 agreement when Powers sold his Profile stock without providing Giard with any portion of the profits. In his motion for summary judgment, Powers contends that Giard provided no consideration for the 1991 agreement and that, therefore, the agreement does not constitute a valid contract. Both Powers and Giard agree that the original consideration for the agreement was the work Giard had performed prior to the agreement and the work he would perform going forward. The parties also agree that the work Giard did for Profile prior to the agreement may not serve as consideration for the promises set forth in Exhibit A. See Johnson v. Johnson, 614 N.E.2d 348, 355 (Ill.App. Ct. 1993) (explaining that where consideration was "conferred prior to the promise upon which alleged agreement is based, there is no valid contract.") Where the parties differ is on whether Giard's promise to continue to work for Profile was adequate consideration for a valid contract in light of his resignation several months after receiving Exhibit A. As this Court noted in its order striking Defendant's Affirmative Defense, the mere promise to perform future acts constitutes ...


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