Swager v. Couri

376 N.E.2d 456, 60 Ill. App. 3d 192, 17 Ill. Dec. 457, 1978 Ill. App. LEXIS 2635
CourtAppellate Court of Illinois
DecidedMay 23, 1978
Docket77-417
StatusPublished
Cited by16 cases

This text of 376 N.E.2d 456 (Swager v. Couri) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swager v. Couri, 376 N.E.2d 456, 60 Ill. App. 3d 192, 17 Ill. Dec. 457, 1978 Ill. App. LEXIS 2635 (Ill. Ct. App. 1978).

Opinion

Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Peoria County awarding both actual and punitive damages for tortious interference with contractual relations.

The plaintiffs, Swager, Johnson, Anderson, Blye, Gramley, Harris and Lang (hereinafter known as Swager) alleged that the defendants, Couri, Riley and Reardon, while acting as officers, directors and shareholders of the Fondulac Nursing Manor, Inc. (hereinafter known as Fondulac), intentionally induced Fondulac to breach its contract with Swager and thereby deprived Swager of payment for architectural services rendered under the contract.

Early in 1969 Charles Blye, a partner in Swager, and Riley and Couri discussed the proposed construction of a nursing home in East Peoria, Illinois. On March 31, 1969, Blye prepared a sketch of the proposed site for the nursing home and presented it to the zoning board of East Peoria. On May 22, 1969, Blye met at the site with Couri and Riley, who stated that they wanted to organize a group of investors to construct a nursing home. Between May and July 16,1969, Blye and Riley went to Springfield to meet with FHA officials regarding financing of the proposed nursing home project. On July 16, 1969, Blye met with a group of investors at Swager’s office where he discussed the project.

In August of 1969 Swager prepared a proposed agreement which was signed by Blye and sent to Couri. This agreement was not signed by Couri or Riley or any other members of the group of investors considering the construction. Swager was informed that it would not be signed until the group determined whether the enterprise would be a land trust or a corporation.

On December 16, 1969, Blye attended a meeting of the proposed investors at Swager’s office and was asked to commence the schematic design portion of the project. From December 16 until April 22, 1970, Swager performed architectural services for a committee of 15 persons, including Couri and Riley, in connection with the proposed construction of the nursing home.

On March 16, 1970, Couri, acting as incorporator, filed articles of incorporation for Fondulac Nursing Manor, Inc., as an Illinois for profit corporation with an initial stated capital of *1,500.

On April 22, 1970, 15 original shareholders, including Couri and Riley, met at Swager’s office with Blye. At this meeting directors and officers of the corporation were elected, previous actions of the incorporator and promoter, Couri, were ratified and an unsigned agreement dated August 20, 1969, between Fondulac and Swager was approved. The directors were informed by Blye that Swager had *5,023.47 invested in Fondulac.

Subsequently, 13 of the 15 investors withdrew from Fondulac.

In late August or early September of 1973, defendant Reardon met with Blye and attorneys for Swager at their office in Peoria and Reardon advised Swager’s attorney that Fondulac was without funds and had not had any money for some two years and that the corporation was dissolved or in the process of being dissolved.

On September 11,1973, the defendants Couri, Riley and Reardon filed a statement of intent to dissolve the corporation and on September 27, 1973, filed articles of dissolution. No written notice of intent to dissolve the corporation was sent to Swager.

Reardon understood that Swager would be unable to recover its fee after dissolution of Fondulac but did not believe that dissolution would diminish any dollar rights of Swager because there were no corporate assets for Swager to recover at the time of dissolution. Riley knew that Fondulac was without any money at all and that Swager would not be paid. Couri was aware that if Fondulac were dissolved there would be no corporation after the dissolution and assumed that Swager could only seek payment up to the value of the assets of Fondulac. He thought that there was less than *1,000 in corporate assets at the time of dissolution. He said that he and Riley came into possession of those assets.

At the time of the dissolution of Fondulac, Swager’s claim was the only outstanding indebtedness.

Subsequent to the dissolution, Riley, Couri and Reardon formed a Nevada corporation; they became the sole investors, shareholders, directors and officers of that corporation; and that corporation eventually constructed a nursing home utilizing the services of architects other than Swager.

The gist of Swager’s complaint is that by dissolving Fondulac, Couri, Riley and Reardon deprived Swager of the fees which Swager would have received under the contract to design the nursing home.

Couri, Riley and Reardon (hereinafter known as Couri) have argued several points on appeal and Swager has raised one additional issue: that certain points raised by Couri were not properly preserved for appeal because they were not stated with specificity in Couri’s post-trial motion.

Couri’s post-trial motion stated:

“1. That the pleadings of Count IV of Plaintiffs’ complaint are presented to allege the commission of Intentional Interference with Contractual Relations, but such pleadings fail to allege all elements of the cause of action.”

Couri argued that the language of the post-trial motion was sufficient to preserve for appeal the argument that the complaint failed to allege facts from which unjustified conduct of Couri could be inferred. Couri argues that the post-trial motion also contained the language:

“8. That a defendant does not incur liability for intentional interference with contractual relations if he is justified in his interference.”

It is a well-established rule in Illinois that the failure to challenge a pleading in the trial court waives error on appeal. (Hild v. Avland Development Co. (1977), 46 Ill. App. 3d 173, 360 N.E.2d 785.) The purpose of the rule is to give the trial court an opportunity to correct errors. (Richman Chemical Co. v. Lowenthal (1958), 16 Ill. App. 2d 568, 149 N.E.2d 351.) It is also true that any errors alleged must be stated with specificity. (Lawler v. Pepper Construction Co. (1961), 33 Ill. App. 2d 188, 178 N.E.2d 687.) While the post-trial motion of Couri could have been better drafted, we think that the language was sufficient to give the trial court notice that the complaint by Swager was deficient because it did not allege all the elements of the tort of interference with contractual relations.

It is also a well-established rule in Illinois that when a cause of action has not been stated and there has been no cure effected by trial, there can be no recovery. (Lasko v. Meier (1946), 394 Ill. 71, 67 N.E.2d 162

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Cite This Page — Counsel Stack

Bluebook (online)
376 N.E.2d 456, 60 Ill. App. 3d 192, 17 Ill. Dec. 457, 1978 Ill. App. LEXIS 2635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swager-v-couri-illappct-1978.