{ "id": 8451693, "name": "MARTIN ROTH et al., Appellees, v. GERALD J. OPIELA et al., Appellants", "name_abbreviation": "Roth v. Opiela", "decision_date": "2004-06-17", "docket_number": "No. 96862", "first_page": "536", "last_page": "545", "citations": [ { "type": "official", "cite": "211 Ill. 2d 536" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "201 Ga. App. 542", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 683033 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ga-app/201/0542-01" ] }, { "cite": "195 Ill. App. 3d 644", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2494658 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "651" }, { "page": "651" }, { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/195/0644-01" ] }, { "cite": "103 Ill. App. 2d 409", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599819 ], "weight": 4, "year": 1968, "pin_cites": [ { "page": "417" }, { "page": "417" }, { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0409-01" ] }, { "cite": "203 Ill. 2d 141", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799389 ], "year": 2003, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0141-01" ] }, { "cite": "201 Ill. 2d 324", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477035 ], "year": 2002, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0324-01" ] } ], "analysis": { "cardinality": 616, "char_count": 15690, "ocr_confidence": 0.768, "pagerank": { "raw": 1.1181418333686016e-07, "percentile": 0.5727409204165957 }, "sha256": "f2e426c792ca2d68a593fb5e1f1de39070846c0c09e2cbda9bc765dde782e9a1", "simhash": "1:8f315b0f02bdd4db", "word_count": 2555 }, "last_updated": "2023-07-14T17:00:11.250886+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARTIN ROTH et al., Appellees, v. GERALD J. OPIELA et al., Appellants." ], "opinions": [ { "text": "CHIEF JUSTICE McMORROW\ndelivered the opinion of the court:\nThis case concerns the proper interpretation of a stock purchase agreement between a closely held corporation and its shareholders. The stock purchase agreement at issue contains a mandatory buy-sell provision which provides that, upon the death of a shareholder in the corporation, the shareholder\u2019s estate must sell the shareholder\u2019s stock back to the corporation. An amendment to the agreement further provides, however, that if the shareholder has \u201cspecifically bequeathed or otherwise given\u201d the stock to a direct descendant or descendants, then the mandatory buy-sell provision will not apply. The question regarding the stock purchase agreement which we must decide is this: When a shareholder of the corporation dies without a will, and his descendants inherit by intestate succession, can it be said that the shareholder \u201cgave\u201d his descendants their inheritance so as to fall within the exception to the mandatory buy-sell provision of the stock purchase agreement? The appellate court concluded that the answer to this question is \u201cyes,\u201d if it is proven that the shareholder was aware of the laws of intestacy. No. 5 \u2014 02\u20140492 (unpublished order under Supreme Court Rule 23). We conclude that the correct answer to the question is \u201cno\u201d and, for that reason, reverse the judgment of the appellate court.\nBACKGROUND\nThe following facts, which are not in dispute, are taken from the pleadings and other materials of record. Great Southwest Oil & Gas Corporation (Great Southwest) is a Nebraska corporation doing business in Illinois. At the time of its incorporation, Great Southwest had three shareholders, Richard Roth, Gerald J. Opiela and Frank J. Weber. Each shareholder owned 1,000 shares of stock.\nOn May 9, 1989, the three shareholders entered into a stock purchase agreement with Great Southwest. In this agreement, the shareholders and the corporation expressed a desire to have the stock of Great Southwest \u201cremain closely held in order to promote harmonious management of the Corporation\u2019s affairs.\u201d To this end, the agreement included a mandatory buy-sell provision which provides that, \u201c[u]pon the death of a shareholder, his estate shall sell and the Corporation shall purchase the shares which were owned by the deceased Shareholder at his death.\u201d\nOn March 18, 1997, Gerald J. Opiela conveyed his shares of Great Southwest stock to a qualified terminable interest property trust.\nOn December 22, 1997, Great Southwest and the three shareholders adopted a five-paragraph amendment to the stock purchase agreement. The majority of this amendment relates to the creation of a right on the behalf of the original stockholders to transfer stock to a direct descendant without the approval of the other shareholders. Paragraph one of the amendment expressly authorizes the original shareholders to \u201cmake a transfer, by gift or otherwise,\u201d of Great Southwest stock to a direct descendant, provided that the aggregate number of shares so given does not exceed 249. Paragraphs two and three of the amendment set forth optional buy-sell provisions which, in the event of certain triggering events, give an original shareholder the first option to buy back stock that has been given to a direct descendant.\nThe fourth paragraph of the amendment to the stock purchase agreement, which is the provision at issue in this case, sets forth an exception to the mandatory buy-sell provision of the stock purchase agreement. Paragraph four states that the buy-sell provision will not take effect if an original shareholder dies \u201chaving specifically bequeathed or otherwise given\u201d his shares of Great Southwest stock to a direct descendant or descendants. Paragraph five of the amendment states that no transfer made pursuant to the amendment will be effective until the transferee agrees, in writing, to be bound by the terms of the stock purchase agreement.\nOn December 24, 1997, Frank Weber transferred 100 shares of Great Southwest stock to each of his two sons. That same day, Richard Roth also transferred 100 shares of Great Southwest stock to each of his two children, Martin Roth and Kerry Roth Zerla. All the children signed statements indicating their agreement to be bound by the terms of the stock purchase agreement.\nRichard Roth died intestate on February 4, 2001. Under Illinois\u2019 statute of descent (755 ILCS 5/2 \u2014 1(a) (West 2000)), 50% of Richard\u2019s estate was inherited by his widow, Rebecca Roth. The remaining 50% of Richard\u2019s estate went to his children, with each child receiving 25%. On April 7, 2001, Rebecca executed a disclaimer to any interest in her husband\u2019s Great Southwest stock, pursuant to section 2 \u2014 7 of the Probate Act of 1975 (755 ILCS 5/2 \u2014 7 (West 2000)). Because of the disclaimer, the 400 shares of Great Southwest stock that would have passed by intestate succession to Rebecca went, instead, to the children, with each child receiving 50%. Thus, in total, each child was to inherit 400 shares of the 800 shares of stock owned by Richard at the time of his death. Together with the previous 100 shares of Great Southwest stock which they had received, the children were to own 500 shares of stock each, or a combined one-third of the corporation\u2019s outstanding shares.\nOn April 18, 2001, Richard Roth\u2019s children, the plaintiffs in this case, filed a complaint for declaratory judgment in the circuit court of Crawford County. Plaintiffs sought a declaration that they had the right to inherit the 800 shares of Great Southwest stock which were owned by Richard at the time of his death. The complaint named as defendants Gerald J. Opiela, both individually and as trustee of the qualified terminable interest property trust dated March 18, 1997, Frank J. Weber and Great Southwest.\nPlaintiffs and defendants filed cross-motions for summary judgment. In support of their motion, plaintiffs contended that the mandatory buy-sell provision of the stock-purchase agreement was not apphcable to the 800 shares of Great Southwest stock owned by Richard Roth. According to plaintiffs, the fact that Richard died intestate and that Rebecca Roth issued the disclaimer meant that the 800 shares of stock had been \u201cotherwise given\u201d to them as described in the amendment to the stock purchase agreement. Therefore, plaintiffs alleged, the exception to the mandatory buy-sell provision applied and Richard\u2019s estate was under no obligation to sell the shares of stock to the corporation.\nDefendants disagreed. Defendants argued that, under the law of Illinois, intestacy does not constitute an affirmative act of giving and, therefore, that Richard had not \u201cotherwise given\u201d the 800 shares of stock to plaintiffs. Thus, in defendants\u2019 view, the exception to the mandatory buy-sell provision did not apply and Richard\u2019s estate was required to sell the shares of stock to Great Southwest. Following a hearing, the circuit court granted defendants\u2019 motion for summary judgment.\nOn appeal, the appellate court reversed. The appellate court stated:\n\u201cWe agree with the trial court that the term \u2018otherwise given\u2019 is not ambiguous because this term implies a conscious act of giving; however, we cannot agree with the trial court\u2019s granting of a summary judgment. The record before us fails to indicate whether or not Richard Roth intended to give all of his shares to the plaintiffs. While Richard Roth did not specifically bequeath the shares to the plaintiffs, there was no showing that he did not intend for his children to inherit the stock. The fact that he gave each of his children 100 shares of stock prior to his death suggests that he may have wanted them to inherit the stock. Mr. Roth may have been cognizant of the laws of intestacy and may have known that his widow would disclaim her interest in the stock. On the record before us, we cannot be sure whether Mr. Roth\u2019s intestacy was a conscious act of giving or an act of indifference.\u201d No. 5 \u2014 02\u20140492.\nHaving concluded that summary judgment was inappropriate, the appellate court remanded the cause for trial. Defendants thereafter filed a petition for leave to appeal in this court, which we allowed.\nANALYSIS\nSummary judgment is proper where \u201cthe pleadings, depositions, 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 judgment as a matter of law.\u201d 735 ILCS 5/2 \u2014 1005(c) (West 2000); Robidoux v. Oliphant, 201 Ill. 2d 324, 335 (2002). We review the grant of summary judgment de novo. Guillen v. Potomac Insurance Co. of Illinois, 203 Ill. 2d 141, 149 (2003).\nBefore this court, the parties do not dispute the essential facts. Plaintiffs and defendants agree that Richard Roth died intestate, that Rebecca Roth issued a disclaimer to the 800 shares of Great Southwest stock which Richard owned at the time of his death and that, under the laws of intestate succession, the stock would ordinarily devolve to plaintiffs. The parties do contest, however, the meaning of paragraph four of the amendment to the stock purchase agreement and its application to this case. Paragraph four of the amendment states:\n\u201cIf an original SHAREHOLDER dies having specifically bequeathed or otherwise given his shares of stock in the CORPORATION to a direct descendant or descendants, then the provisions of the STOCK PURCHASE AGREEMENT for mandatory sale and purchase of stock by the CORPORATION and the other SHAREHOLDERS shall not be applicable, and said transfer shall be permissible, and the CORPORATION shall retain all proceeds from any life insurance policy which insured said SHAREHOLDER as for the absolute property of the CORPORATION.\u201d\nAs they did in the courts below, plaintiffs acknowledge that Richard Roth did not \u201cspecifically bequeath\u201d his 800 shares of Great Southwest stock to them. Plaintiffs emphasize, however, that the amendment to the stock purchase agreement pertains to shares that are \u201cotherwise given\u201d (emphasis added) to a descendant or descendants. Plaintiffs again assert that, through the laws of intestate succession, Richard \u201ceffectively conveyed\u201d his shares of stock to plaintiffs once Rebecca Roth executed her disclaimer. Thus, in plaintiffs\u2019 view, the 800 shares of stock were \u201cotherwise given\u201d to them.\nDefendants, in response, maintain that intestacy is not an act of giving and, therefore, that Richard did not give the stock to plaintiffs in any sense of the term. In support of this position, defendants cite two decisions from our appellate court, Genung v. Hagemann, 103 Ill. App. 2d 409 (1968), and In re Estate of Anderson, 195 Ill. App. 3d 644 (1990).\nAt issue in Genung was an antenuptial agreement between Eleanor Genung and Gilbert Genung. The agreement provided, in part, that \u201cnothing herein shall be construed to be a bar to either party to this agreement giving any property of which they may be possessed to the other party by will or otherwise.\u201d Gilbert died intestate. Eleanor thereafter filed a declaratory judgment action in which she maintained that, because the antenuptial agreement stated that property could be given by will or \u201cotherwise,\u201d she had a right to an intestate\u2019s share of her late husband\u2019s estate. The defendants disputed this construction of the antenuptial agreement and maintained that to give property \u201cby will or otherwise\u201d meant that an affirmative act of either making a will or inter vivos gift was required. The appellate court agreed, stating:\n\u201cThe statement that either party may give property to the other is followed by the statement that each shall \u2018control\u2019 their personal estate and do with it \u2018whatsoever they wish and, will, by his or her orders or directions, or by will ... .\u2019 (Emphasis added.) We believe this indicates an intention that an affirmative act of ordering, or directing, or making a will, is intended if the other is to take property over which he or she has by the agreement given up all rights. We do not construe the agreement to mean that a failure to act, such as intestacy, is the \u2018giving\u2019 or the \u2018doing with the properties\u2019 specified in the agreement.\u201d Genung, 103 Ill. App. 2d at 417.\nIn Anderson, which involved the interpretation of a prenuptial agreement, the appellate court agreed with, and followed, the logic of Genung. Anderson, 195 Ill. App. 3d at 651. In so doing, the court noted with approval the Genung court\u2019s conclusion that \u201c[ijntestacy was analogous to a failure to act.\u201d Anderson, 195 Ill. App. 3d at 651.\nWe find the appellate court\u2019s holdings in Genung and Anderson persuasive and applicable here. In this case, the phrase \u201cotherwise given\u201d appears in the amendment to the stock purchase agreement immediately after the words \u201cspecifically bequeathed\u201d \u2014 words which connote an affirmative action taken on the part of the original shareholder. Further, as noted previously, the phrase \u201cotherwise given\u201d is found in the body of an amendment that is largely concerned with creating a right on behalf of the original stockholders to transfer stock by gift to direct descendants. In this context, it is appropriate to give the words \u201cotherwise given\u201d their plain and ordinary meaning and to assume that the words refer to some affirmative act of transfer, such as an inter vivos gift.\nThe appellate court below agreed that the phrase \u201cotherwise given\u201d unambiguously refers to \u201ca conscious act of giving.\u201d The court reasoned, however, that if Richard Roth was aware of the laws of intestacy, and if he was aware that his widow would disclaim any interest in his stock, then it could be said that he \u201cgave\u201d the 800 shares of stock to plaintiffs. We disagree. Intestacy, by definition, is not taking action with respect to the distribution of one\u2019s estate. See, e.g., Genung, 103 Ill. App. 2d at 417. To hold, as the appellate court did, that intestacy could be \u201ca conscious act of giving\u201d is to adopt a contradiction. It is the equivalent of saying that not taking action is, in fact, acting. We reject that proposition. Accord Genung, 103 Ill. App. 2d at 417; Anderson, 195 Ill. App. 3d at 651. The 800 shares of Great Southwest stock at issue in this case were not given to plaintiffs by Richard Roth. Rather, the stock devolved to plaintiffs by operation of law, i.e., through intestate succession and Rebecca Roth\u2019s disclaimer.\nPlaintiffs cite Brown v. Momar, 201 Ga. App. 542, 411 S.E.2d 718 (1991), as persuasive authority for their contention that the 800 shares of stock were \u201cotherwise given\u201d to them. That case is of no relevance here since it involved the interpretation of a will rather than the question of whether intestacy could be considered an act of giving.\nIn the case at bar, the 800 shares of stock owned by Richard Roth at the time of his death were not \u201cspecifically bequeathed or otherwise given\u201d to plaintiffs. Accordingly, the exception to the mandatory buy-sell provision, as set forth in paragraph four of the amendment to the stock purchase agreement, is inapplicable. The circuit court therefore properly granted summary judgment in favor of defendants.\nCONCLUSION\nFor the forgoing reasons, the judgment of the appellate court is reversed. The judgment of the circuit court granting defendants\u2019 motion for summary judgment is affirmed.\nAppellate court judgment reversed; circuit court judgment affirmed.", "type": "majority", "author": "CHIEF JUSTICE McMORROW" } ], "attorneys": [ "Michael D. Ryan, of Ryan, Bennett, Radloff & O\u2019Brien, of Mattoon, for appellants Gerald J. Opiela and Frank J. Weber.", "John E Ewart, of Craig & Craig, of Mattoon, for appellant Great Southwest Oil & Gas Corporation.", "Robert L. Douglas, of Robinson, for appellees." ], "corrections": "", "head_matter": "(No. 96862.\nMARTIN ROTH et al., Appellees, v. GERALD J. OPIELA et al., Appellants.\nOpinion filed June 17, 2004.\nMichael D. Ryan, of Ryan, Bennett, Radloff & O\u2019Brien, of Mattoon, for appellants Gerald J. Opiela and Frank J. Weber.\nJohn E Ewart, of Craig & Craig, of Mattoon, for appellant Great Southwest Oil & Gas Corporation.\nRobert L. Douglas, of Robinson, for appellees." }, "file_name": "0536-01", "first_page_order": 548, "last_page_order": 557 }