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1-01-2803

JUSTICE REID delivered the opinion of the court:

Following the grant of summary judgment in favor of defendant Valve & PrimerCorporation (Valve & Primer) and the denial of summary judgment in favor of Ralph DiLorenzoin the underlying chancery action seeking specific performance, DiLorenzo filed the instantappeal. For the reasons that follow, we affirm in part, reverse in part and remand the case to thetrial court.

DiLorenzo was an officer, director and shareholder of 100 shares of stock of Valve &Primer. M. Chris Dickson was the chief executive officer and majority shareholder of Valve &Primer. DiLorenzo was employed by Valve & Primer for approximately 40 years prior to theevents that led to this lawsuit.

According to DiLorenzo, on or about May 12, 1987, he informed Valve & Primer that hewanted incentives in any future employment agreements. DiLorenzo claims that, throughDickson, Valve & Primer offered him a 10-year stock option that would allow DiLorenzo topurchase an additional 300 shares at the fixed price of $250 per share. Dickson and the board ofdirectors allegedly favorably voted on the agreement at a meeting held on June 8, 1987. DiLorenzo claims he received a copy of the minutes of that meeting. DiLorenzo also claims thatin reliance on the minutes of the special board meeting, which were never altered or revoked bythe board of directors during the time he remained employed by Valve & Primer, he stayed in hisjob for over nine additional years. According to DiLorenzo, while he was working for Valve &Primer in reliance upon the minutes of the special board meeting, he was approached by othercompanies with employment opportunities. DiLorenzo did not follow up on any of theserecruitment offers.

Valve & Primer claims the 1987 employment agreement between it and DiLorenzo didnot contain a stock purchase agreement. The only purported proof of the agreement is anunsigned copy of board meeting minutes of which DiLorenzo had the only copy. Valve &Primer claimed the purported minutes were inconsistent in subject matter and format from othercorporate minutes it produces in the ordinary course of business.

In January, 1996, DiLorenzo entered into a semi-retirement agreement with Valve &Primer. Valve & Primer claims he attempted to tender his remaining 100 shares pursuant to astock redemption agreement. According to Valve & Primer, DiLorenzo demanded $4,000 pershare for the remaining 100 shares. It claims DiLorenzo admitted he came up with the proposedshare value himself and that no one of any expertise valued the stock. DiLorenzo responded that he had corporate accountants review financial statements before valuing the company's shares. Valve & Primer declined to purchase the shares at DiLorenzo's price. This resulted in a disputebetween DiLorenzo and Valve & Primer through Dickson. Shortly thereafter, Valve & Primerfired DiLorenzo. After the termination, DiLorenzo claims he attempted to exercise the purportedstock purchase agreement.

In addition to DiLorenzo, George Christofidis, another long-time employee, attempted toexercise the stock option. DiLorenzo claims that Christofidis sent a copy of the minutessupporting the claimed stock purchase agreement to Valve & Primer's corporate attorney. Christofidis allegedly indicated that the purported stock purchase agreement supportedDiLorenzo's claim in that the agreement was included as part of the overall employmentagreements both DiLorenzo and he signed. DiLorenzo claims that, in 1997, a subsequentemployment agreement between Valve & Primer and Christofidis required him to waive anyexercising of the stock option agreement referred to in the June 1987 corporate minutes. In thealternative, DiLorenzo argued before the trial court that, even if the purported agreement was notfound to be valid, it should be enforced along promissory estoppel grounds.

Cross-motions for summary judgment were filed during the litigation below. The trialcourt granted summary judgment in favor of Valve & Primer while denying DiLorenzo's cross-motion. The trial court found that, even assuming the corporate minutes were valid, thepurported agreement did not require that DiLorenzo perform any affirmative act. The trial courtalso found there was insufficient consideration to support the stock option. The trial court furtherfound there was insufficient reliance on DiLorenzo's part to support a claim for promissoryestoppel.

In cases involving motions for summary judgment, we conduct a de novo review of theevidence in the record. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 185-86 (2002), citingEspinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). The purpose of asummary judgment proceeding is not to try an issue of fact, but to determine whether anygenuine issue of material fact exists. Happel, 199 Ill. 2d at 186, citing Frye v. Medicare-GlaserCorp., 153 Ill. 2d 26, 31 (1992); Housh v. Swanson, 203 Ill. App. 3d 377, 381 (1990). It is a"'drastic means of disposing of litigation'" and therefore should be granted only when "'thepleadings, depositions, and admissions on file, together with the affidavits, if any, show that thereis no genuine issue as to any material fact and that the moving party is entitled to a judgment as amatter of law.'" Happel, 199 Ill. 2d at 186, quoting Espinoza, 165 Ill. 2d at 113, and 735 ILCS5/2-1005(c) (West 2000). For purposes of summary judgment, we construe the facts strictlyagainst the moving party and in the light most favorable to the nonmoving party. Happel, 199 Ill.2d at 186, citing Espinoza, 165 Ill. 2d at 113, and Frye, 153 Ill. 2d at 31.

DiLorenzo argues on appeal that the trial court misapplied the law in finding there wasinsufficient consideration to support the stock option agreement. He argues that substantialcontinued employment is sufficient consideration for agreements entered into in the employmentsetting. DiLorenzo argues that he was provided consideration for the stock option. It was as anincentive for continued employment. He also argues that, even if there was an initial lack ofconsideration, performance may ameliorate an initial lack of consideration, if the performancewas clearly invited. He claims his continued employment for nine years in reliance on theagreement satisfied the condition of the performance being invited. Here he claims Valve &Primer benefitted both from the pre-1987 employment and the post-1987 work. DiLorenzoargues that he was not promising to do something he was already obligated to do, which heconcedes would not be valid consideration.

Valve & Primer responds that the trial court correctly granted it summary judgmentbecause DiLorenzo failed to show any consideration to support the alleged stock option. Valve& Primer, without admitting that the board meeting minutes are genuine, argues that theyindicate that the alleged stock option was given to "reward" him for his long service to thecompany. Valve & Primer's position is that, if the alleged consideration for a promise has beenconferred prior to the promise upon which the alleged agreement is based, then no contract isformed. Valve & Primer also argues that the argument that the option was based, at least in part,on his claimed continued employment must fail because it relies on something DiLorenzo wasalready obligated to do. According to Valve & Primer, because DiLorenzo contends that thestock option vested immediately, only past performance could serve as consideration. As thetrial court noted, that is insufficient consideration. Additionally, if the alleged option did notvest, DiLorenzo could not bring his claim. Either way, Valve & Primer argues there is no wayDiLorenzo could have prevailed at the trial court level.

In reply, DiLorenzo contends that there is sufficient consideration to support the stockoption. He argues that whether the 1987 corporate minutes are authentic is not an issue onappeal. Since the trial court took the minutes as true, the appellate court should do likewise. DiLorenzo argues that any suggestion or innuendo by Valve & Primer that the minutes are notvalid should be disregarded by this court.

The purported minutes of the June 8, 1987, special meeting contain the following relevantlanguage:

"That in order to retain and reward such dedication GeorgeChristofidis be given an option to purchase additional shares not toexceed 300; and that Ralph DiLorenzo be given an option topurchase additional shares not to exceed 300. Said option to beexercised within 10 years from below date at the price of $250.00per share. Each share was to be restricted wherein the share mustfirst be offered to Valve and Primer Corporation to be paid byValve and Primer Corporation and held as Treasury Stock. Valveand Primer Corporation would be given 45 days to consummate thepurchase. In the event that Valve and Primer Corporation did notchoose to purchase, said stock would be offered to the existingshareholders on a pro rata basis also to be purchased within 45days. And in the event the shareholders did not purchase saidshares, the shares could be sold to any interested person or persons. Purchase price of shares would be based upon the bookvalue pursuant to a certified audit of the worth of the Corporationat the time of sale." (Emphasis added.)

"A contract, to be valid, must contain offer, acceptance, and consideration; to beenforceable, the agreement must also be sufficiently definite so that its terms are reasonablycertain and able to be determined." Halloran v. Dickerson, 287 Ill. App. 3d 857, 867-68 (1997),citing Ogle v. Hotto, 273 Ill. App. 3d 313, 319 (1995). "A contract is sufficiently definite andcertain to be enforceable if the court is able from its terms and provisions to ascertain what theparties intended, under proper rules of construction and applicable principles of equity." Halloran, 287 Ill. App. 3d at 868, citing Midland Hotel Corp. v. Reuben H. Donnelley Corp., 118Ill. 2d 306, 314 (1987). "A contract may be enforced even though some contract terms may bemissing or left to be agreed upon, but if essential terms are so uncertain that there is no basis fordeciding whether the agreement has been kept or broken, there is no contract." Halloran, 287 Ill.App. 3d at 868, citing Academy Chicago Publishers v. Cheever, 144 Ill. 2d 24, 30 (1991).

We now turn to the question of whether the minutes of the June 8, 1987, meeting areevidence of the existence of a contract between these parties. The trial court, in its order ofMarch 23, 2001, found that "it is unnecessary to reach the issue of the authenticity of thecorporate minutes. However, assuming arguendo, the minutes are valid, the purported agreementdoes not require the plaintiff to perform any affirmative act and therefore, there is insufficientconsideration to support the option." Based upon our review of the record, we find the trialcourt's findings and conclusions to be in error. To understand where we differ from the trialcourt, it is necessary to begin with basic contract principles. Was there an offer? We find therewas an offer, in the form of granting DiLorenzo the option to purchase up to 300 shares of Valve& Primer at a preset sale price. The nature of this offer was such that DiLorenzo was, if thecorporate minutes turn out to be valid, free to tender his acceptance within the 10-year window. Was there an acceptance? We say yes. The acceptance in this case would be the tender ofmoney per purchased share or the offer of the sale of said stock back to the company at "bookvalue." Specifically, DiLorenzo promised to pay $250 per share for his choice of shares up to300. The company offered to repurchase the stock at "book value." Finally, was thereconsideration? Again, we say yes. Consideration consists of some detriment to the offeror, somebenefit to the offeree, or some bargained-for exchange between them. Doyle v. Holy CrossHospital, 186 Ill. 2d 104, 112 (1999), citing Lipkin v. Koren, 392 Ill. 400, 406 (1946). "'Any actor promise which is of a benefit to one party or disadvantage to the other is a sufficientconsideration to support a contract.'" Doyle, 186 Ill. 2d at 112, quoting Steinberg v. ChicagoMedical School, 69 Ill. 2d 320, 330 (1977); Green v. Ashland Sixty-Third State Bank, 346 Ill.174, 178 (1931). The shares of corporate stock were to be paid for at a fixed price. Thedescribed amount of United States currency is certainly consideration for the purchase of stock,as is the exchange of the shares for money.

Because of the posture of this case, the problem presented is not whether there was anoffer, acceptance and consideration for the parties' mutual promises but, rather, whether promiseswere made at all. Valve & Primer claims the corporate minutes were phony, a fabrication byDiLorenzo or Christofidis or both. DiLorenzo claims they are authentic. We find this to be agenuine issue of material fact that should have operated to preclude the entry of summaryjudgment in the case below. If the minutes are valid, then DiLorenzo is entitled to exercise hisoption and would be entitled to the full benefit of that option. It will then be a matter for the trierof fact to define and apply the definition of phrase "retain and reward" in the corporate minutesto the facts of the case. The validity of the option becomes of crucial importance to theresolution of this case. Had this case proceeded to its logical conclusion, with both sidesmarching up the proverbial hill and presenting their evidence, DiLorenzo might not be able toauthenticate the minutes and prove the existence of the contract. He should have gotten thatchance. This case should not have been disposed on summary judgment grounds, so the ruling ofthe trial court is found to be an abuse of discretion.

We next address DiLorenzo's claim that he is entitled to the value of the shares of stockbased upon the theory of promissory estoppel. DiLorenzo argues that the trial court misappliedthe law in finding that there was insufficient reliance to support a claim for promissory estoppel. He claims that, once the trial court decided there was insufficient consideration to support theoption contract, promissory estoppel should have been applied by the court to enforce theagreement as a matter of equity. DiLorenzo argues that he detrimentally relied upon Valve &Primer's promise in that he worked at Valve & Primer for an additional period in excess of nineyears in reliance on the stock option agreement. DiLorenzo claims that he relied on the stockoption as part of his overall, long-term compensation package. He also argues that Valve &Primer received a benefit from DiLorenzo's continued employment, such that it should not beallowed to renege on the promise made to DiLorenzo.

Valve & Primer responds that the trial court was correct in finding insufficient reliance tosupport the promissory estoppel claim. Valve & Primer argues that the DiLorenzo could notsatisfy the detrimental reliance prong of the promissory estoppel elements. Though DiLorenzoclaimed he did not act upon offers of employment he claims were made by other companiesduring the course of his employment with Valve & Primer, he presented to the trial court nothingbut his own testimony in support of his claim. Valve & Primer argues that, since DiLorenzoessentially is claiming his stock option vested immediately, he cannot contend that hedetrimentally relied upon the purported agreement in the corporate minutes by turning downthose other opportunities. Thus, Valve & Primer contends the trial court properly found nodetrimental reliance sufficient to support a promissory estoppel claim. For purposes ofpromissory estoppel, if DiLorenzo's allegations are taken as true, and the purported option vestedimmediately, it required nothing of him in order to be exercised other than the payment of $250per share.

"Promissory estoppel arises when (1) an unambiguous promise was made, (2) thedefendant relied on the promise, (3) the defendant's reliance on the promise was reasonable, and(4) the defendant suffered a detriment." People v. Fako, 312 Ill. App. 3d 313, 318 (2000), citingPeople v. Raymond, 202 Ill. App. 3d 704, 708 (1990); Pickus Construction & Equipment v.American Overhead Door, 326 Ill. App. 3d 518, 523 (2001); Pokora v. Warehouse Direct, Inc.,322 Ill. App. 3d 870, 879 (2001). Whether detrimental reliance has occurred is determinedaccording to the specific facts of each case. Parkside Senior Services, L.L.C. v. NationalDevelopment & Consultants, Ltd., 303 Ill. App. 3d 1022, 1026 (1999), citing Home ElectronicCo. v. Hall & Underdown Heating & Air Conditioning Co., 86 N.C. App. 540, 544 (1987)

While we would accept that, under certain circumstances, it may be possible for arelinquishment of a job offer to constitute consideration sufficient to support a contract, this isnot such a case. There is nothing in the language of the corporate minutes or any other source tobe found in this record to suggest that Valve & Primer conditioned the alleged stock option onDiLorenzo's promise to remain in his employment. While the corporate minutes say the allegedgrant of the stock option was intended to "retain and reward," it contains no mechanism makingthe retention mandatory. Since the corporate minutes lack a mandatory obligation on whichDiLorenzo could have reasonably detrimentally relied, and he could have elected to buy theshares of stock immediately, DiLorenzo's decision to remain on the job for the additional periodof over nine years must be viewed as a voluntary act. Under those circumstances, promissoryestoppel would not apply. Additionally, if the trial court, upon remand, finds the corporateminutes valid and concludes there was a valid offer, there can be no promissory estoppel. Ineither scenario, the trial court was correct in ruling that promissory estoppel did not apply. Itwas, therefore, not an abuse of discretion to grant Valve & Primer's motion for summaryjudgment on that issue.

In light of the foregoing, the decision of the trial court is affirmed in part, reversed in partand remanded for further proceedings consistent with this opinion.

Affirmed in part and reversed in part; cause remanded.

CAMPBELL, P.J., concurs.

QUINN, J., concurs in result only.