Dr. John Grubb v. The Board of Trustees of the University of Illinois

ORDER

BIRNBAUM, J. THIS MATTER is before the Court on Respondent's Motion to Dismiss pursuant to 735 ILCS 5/2-615 and 735 ILCS 5/2-619 of the Illinois Code of Civil Procedure.

Nature of the Claim Claimant is a former Clinical Professor for the Orthodontics Department in the University of Illinois at Chicago ("University") College of Dentistry. Respondents appointed Claimant as Clinical Professor for a term from January 16, 2007 until August 15, 2007. The University again appointed Claimant as Clinical Professor from August 16, 2007 to August 15, 2008. In July 2008, the University informed Claimant that his appointment as Clinical Professor would not be renewed. On April 27, 2009 Claimant filed a five-count Complaint in this Court alleging: 1) breach of contract; 2) promissory estoppel; 3) invasion of privacy; 4) tortious interference with employment relationship; and 5) intentional infliction of emotional distress.

Specifically, Claimant alleges that in 2006, he was orally promised an "unconditional initial three-year term of employment" with the Orthodontics Department in the University's College of Dentistry. In his claim for promissory estoppel, Claimant [*131] alleges he accepted the University's offer of employment and relocated from California to Chicago in reliance on, and in exchange for, an alleged verbal promise of a three-year term of employment. On March 12, 2012, this Court dismissed with prejudice Claimant's claim for tortious interference (Count IV) with employment relationship against Bruce Graham, Dean of the University's College of Dentistry.

On April 28, 2009, Claimant filed a federal court lawsuit against the University in the United States District Court for the Northern District of Illinois, alleging a violation of Computer Fraud and Abuse Act, 18, U.S.C. §1030(g). Specifically, Claimant claims that a University employee removed certain University software from Claimant's laptop computer when Claimant was unable to oversee the removal. On February 9, 2011, the federal court dismissed Claimant's federal court complaint with prejudice. As such, in its Motion to Dismiss, Respondent argues that the Claimant is now barred from pursuing a similar cause of action for invasion of privacy (Count III) against Respondent. Specifically, Respondent alleges the federal court action was based on identical factual allegations and res judicata bars Claimant from asserting Count III in this Court. Lastly, Respondent argues Claimant's remaining claims for breach of contract (Count I) and promissory estoppel (Count II) are unenforceable under the statute of frauds and that Claimant cannot state a claim for intentional infliction of emotional distress (Count V) because the alleged conduct of Respondent does not rise to the level of extreme and outrageous.

ANALYSIS

In order to plead a cause of action for breach of contract, Claimant must allege: 1) the existence of a valid and enforceable contract; 2) substantial performance by Claimant; 3) a breach by Respondent; and 4) damages resulting from the breach.

Only a duty imposed by the terms of a contract can give rise to a breach.

Wagner v.

State of Illinois, 60 Ill.Ct.Cl. 248 (2008). Claimant seeks to enforce an oral contract of employment with the University, which he states was an unconditional three-year term of employment. Under the Illinois statute of frauds, an alleged oral promise that cannot be performed within one year is barred. 740 ILCS §80/1. Claimant argues the Illinois statute of frauds is inapplicable because he partially performed the three year contract. However, Illinois court precedent generally does not bar application of the statute of frauds based on a party's partial performance, unless it would be impractical or impossible to place the Claimant in status quo or compensate for the value of this partial performance. Payne v. Mill Race Inn, 152 Ill.App.3d 269, 278, 504 N.E. 2d 193, 199 (2nd dist. 1987); Mclnerney v. Charter Golf, Inc., 176 Ill. 2d 482, 489, 680 N.E. 2d 1347, 1351 (1997). In this case, Claimant was compensated for his employment prior to the University's decision to not renew his appointment as Clinical Professor. Accordingly, the so-called partial performance exception does not take Claimant's claim out of the statute of frauds. In order to satisfy the statute of frauds, Claimant must have included written evidence of the contract between the parties including all the essential terms of the contract. As such, Count I and Count II are unenforceable under the statute of frauds and are dismissed.

[*132] Respondent contends that Count ILL, the alleged invasion of privacy claim, is barred by the February 9, 2011 judgment in federal court, which was voluntarily dismissed with prejudice. Respondent correctly points out that Claimant has acknowledged in this Court that his "federal action arises out of the same occurrence and/or transaction as certain of the claims asserted in the Court of Claims action." This Court agrees with Respondent that the February 9, 2011 judgment acts as a final judgment on the merits and bars any claim that arises out of the same group of operative facts pursuant to the doctrine of res judicata. As such, Claimant's Count ILL is dismissed. Lastly, Claimant's Count V must be dismissed as it is based on the alleged three-year employment contract and the invasion of privacy and Computer Fraud and Abuse Act claims.

As this Court has concluded Counts I, II and ILL must be dismissed because of the statute of frauds and res judicata, Count V must also be dismissed.

IT IS HEREBY ORDERED that Respondent's Motion to Dismiss is GRANTED.