{ "id": 222677, "name": "YOHMA GRAY et al., Plaintiffs-Appellees, v. MUNDELEIN COLLEGE, Defendant-Appellant (Loyola University of Chicago, Defendant).-JUDITH R. MYERS et al., Plaintiffs-Appellants, v. LOYOLA UNIVERSITY OF CHICAGO et al., Defendants-Appellees", "name_abbreviation": "Gray v. Mundelein College", "decision_date": "1998-05-06", "docket_number": "Nos. 1\u201497\u20140605, 1\u201497\u20140622 cons.", "first_page": "795", "last_page": "810", "citations": [ { "type": "official", "cite": "296 Ill. App. 3d 795" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "482 N.E.2d 377", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "finding waiver where plaintiff acquiesced for seven years to the payment of a lower commission than he alleged he was entitled to under a contract" } ], "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 787", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600486 ], "year": 1985, "pin_cites": [ { "parenthetical": "finding waiver where plaintiff acquiesced for seven years to the payment of a lower commission than he alleged he was entitled to under a contract" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0787-01" ] }, { "cite": "585 N.E.2d 46", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "146 Ill. 2d 98", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596984 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "105" }, { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0098-01" ] }, { "cite": "335 N.E.2d 491", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "61 Ill. 2d 365", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2965112 ], "year": 1975, "pin_cites": [ { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0365-01" ] }, { "cite": "492 N.E.2d 1284", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "112 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5537916 ], "year": 1986, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0187-01" ] }, { "cite": "648 So. 2d 145", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7443765 ], "year": 1994, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/so2d/648/0145-01" ] }, { "cite": "596 N.E.2d 754", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "232 Ill. App. 3d 419", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498902 ], "year": 1992, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0419-01" ] }, { "cite": "583 N.E.2d 567", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "221 Ill. App. 3d 705", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5795863 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "708-09" }, { "page": "709" }, { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0705-01" ] }, { "cite": "657 N.E.2d 637", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 1090", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258690 ], "year": 1995, "pin_cites": [ { "page": "1093" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/1090-01" ] }, { "cite": "569 N.E.2d 252", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "210 Ill. App. 3d 844", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2534447 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "853" }, { "page": "851-52" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0844-01" ] }, { "cite": "135 Ill. 2d 121", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256559 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-2d/135/0121-01" ] }, { "cite": "527 N.E.2d 354", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "173 Ill. App. 3d 34", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3477313 ], "year": 1988, "pin_cites": [ { "page": "42-43" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/173/0034-01" ] }, { "cite": "668 N.E.2d 77", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 322", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159564 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0322-01" ] }, { "cite": "60 N.E.2d 236", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1945, "pin_cites": [ { "parenthetical": "\"[t]he plaintiff has a right, if he so desires in the future to institute proceedings from time to time during the term of the contract for damages which he may have sustained\"" } ], "opinion_index": 0 }, { "cite": "325 Ill. App. 442", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4948187 ], "year": 1945, "pin_cites": [ { "page": "457", "parenthetical": "\"[t]he plaintiff has a right, if he so desires in the future to institute proceedings from time to time during the term of the contract for damages which he may have sustained\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app/325/0442-01" ] }, { "cite": "500 N.E.2d 47", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "149 Ill. App. 3d 88", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3461817 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0088-01" ] }, { "cite": "11 U.S.C. \u00a7 101", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "pin_cites": [ { "page": "(32)(A)" } ], "opinion_index": 0 }, { "cite": "612 N.E.2d 526", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "244 Ill. App. 3d 658", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5099143 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "664" }, { "page": "663-64" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/0658-01" ] }, { "cite": "264 N.E.2d 134", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "46 Ill. 2d 522", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2899887 ], "year": 1970, "pin_cites": [ { "page": "531-32" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0522-01" ] }, { "cite": "412 N.E.2d 1142", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3161094 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "100" }, { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0097-01" ] }, { "cite": "457 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 391", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3629915 ], "year": 1983, "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0391-01" ] }, { "cite": "679 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "287 Ill. App. 3d 354", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 520990 ], "year": 1997, "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/0354-01" ] }, { "cite": "140 N.E.2d 725", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "10 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2725643 ], "weight": 3, "year": 1957, "pin_cites": [ { "page": "327" }, { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/10/0326-01" ] }, { "cite": "652 N.E.2d 1306", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "Gray I" } ], "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 259", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291595 ], "weight": 6, "year": 1995, "pin_cites": [ { "parenthetical": "Gray I" }, { "page": "264" }, { "page": "266" }, { "page": "263" }, { "page": "260" }, { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0259-01" ] } ], "analysis": { "cardinality": 1198, "char_count": 30658, "ocr_confidence": 0.735, "pagerank": { "raw": 3.596633943516186e-07, "percentile": 0.8875094648375252 }, "sha256": "ea826ffe71a96a2de18a7e92dee1b3544158322d9e102d07eb7f13d60f5ce774", "simhash": "1:0bfbe92d7e4abcdc", "word_count": 4877 }, "last_updated": "2023-07-14T20:46:46.961592+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "YOHMA GRAY et al., Plaintiffs-Appellees, v. MUNDELEIN COLLEGE, Defendant-Appellant (Loyola University of Chicago, Defendant).\u2014JUDITH R. MYERS et al., Plaintiffs-Appellants, v. LOYOLA UNIVERSITY OF CHICAGO et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE CAHILL\ndelivered the opinion of the court:\nWe revisit plaintiffs\u2019 breach of contract suit against defendants Mundelein College and Loyola University. In an earlier appeal, we reversed summary judgment for defendants, holding that an issue of fact remained about whether the coming together of Loyola and Mundelein extinguished Mundelein\u2019s tenure obligations to plaintiffs. After a trial on remand, the trial court entered judgment for plaintiffs Yohma Gray and Elvira Fernandez Hasty against Mundelein only, including prejudgment interest. Judgment was entered against plaintiff Judith Myers. The trial court also granted summary judgment to Loyola on plaintiffs\u2019 successor liability claims. We now affirm the trial court\u2019s judgment in favor of plaintiffs Gray and Hasty against Mundelein and summary judgment for Loyola. We reverse the judgment against plaintiff Myers and the award of prejudgment interest to plaintiffs.\nDefendants Loyola and Mundelein argue on appeal that: (1) the trial court exceeded the mandate of Gray v. Loyola University, 274 Ill. App. 3d 259, 652 N.E.2d 1306 (1995) (Gray I); (2) the trial court\u2019s interpretation of Mundelein\u2019s faculty manual \u201ccontradicts all evidence of intent presented at trial\u201d; (3) plaintiffs did not prove that Mundelein\u2019s breach caused damages beyond two years\u2019 salary; (4) the trial court erroneously retained jurisdiction to award future damages; and (5) the trial court erred in awarding prejudgment interest.\nPlaintiffs cross-appeal. They argue that the trial court erred by finding Loyola, as a successor corporation, is not liable for Mundelein\u2019s breach. Plaintiff Myers argues that the trial court erred in finding that she waived her right to sue for loss of her tenure at Mundelein by accepting a five-year teaching contract with Loyola.\nPlaintiffs were tenured professors at Mundelein College until 1992. Under Mundelein\u2019s faculty manual, tenured positions could be terminated for the following reasons: (1) financial exigency; (2) the discontinuance of a program or department; (3) health; or (4) cause. The manual also explained how \u201cfinancial exigency\u201d was to be established:\n\u201cIf, after consultation with the administration, faculty, and other bodies, the [board of trustees] determines that the financial viability of the institution is endangered and that a state of exigency exists, the Board shall so declare a state of financial exigency.\u201d\nIn 1989 and 1990, Mundelein was faced with serious financial problems. But the board of trustees never declared a state of financial exigency. In the summer of 1989, Mundelein borrowed $4 million from Continental Bank. The Catholic Order of the Sisters of Charity of the Blessed Virgin Mary (the BVM Order) agreed to guarantee the loan. In exchange, Mundelein gave the BVM Order a security interest in some of its property. Mundelein also agreed not to obtain other loans without approval of the BVM Order and not to borrow from Mundelein\u2019s endowment fund. Should Mundelein violate the agreement, Mundelein\u2019s board of trustees would have 90 days to either \u201ccure the breach\u201d or vote to close the college within 18 months.\nIn October and November 1990, Mundelein borrowed from its endowment fund to pay bills. The BVM Order demanded that Mundelein\u2019s board of trustees \u201ccure the breach\u201d or vote to close the school.\nTo prevent closing, Mundelein negotiated with Loyola. On April 15, 1991, Mundelein and Loyola agreed to an \u201caffiliation.\u201d Under their agreement, Loyola acquired Mundelein\u2019s assets and assumed certain Mundelein financial obligations. Mundelein was to remain in existence as a separate college governed and administered by Loyola. Loyola agreed to continue Mundelein\u2019s educational mission and to accept its students. Loyola agreed to offer 26 of Mundelein\u2019s tenured faculty tenured positions at Loyola; to offer 11 tenured faculty a five-year appointment; and to offer three tenured faculty payments equal to two years\u2019 salary in lieu of employment. The agreement was finalized on June 14, 1991.\nOn April 29, 1991, Mundelein sent to all tenured faculty a document entitled \u201c1991-92 CONDITIONAL AND TERMINAL CONTRACT FOR TENURED FACULTY.\u201d This document stated that it was conditioned on Mundelein remaining independent and that if Mundelein College became part of Loyola, the document would not take effect.\nWhen Mundelein joined Loyola, the three plaintiffs in this suit were not offered tenured faculty positions at Loyola. Loyola offered Myers a five-year nontenured position. She accepted. Loyola offered Gray and Hasty two years\u2019 salary, which they rejected.\nIn the first appeal of this case, we reversed the trial court\u2019s finding that plaintiffs\u2019 tenure rights were extinguished when Mundelein affiliated with another school and ceased to exist as an independent college. We found \u201cno law to support the proposition that an independent college ceases to exist and its contractual obligations are extinguished when it becomes part of a university.\u201d Gray I, 274 Ill. App. 3d at 264. We held that the question of whether the tenure rights of Mundelein faculty survived the \u201ccoming together\u201d of Mundelein and Loyola could not be resolved as a matter of law because the faculty manual did not address \u201cthe fate of the faculty in the case of an affiliation, merger, or de facto merger.\u201d Gray I, 274 Ill. App. 3d at 266. The silence of the manual on the issue of tenure after affiliation created a question of fact as to the intent of the parties.\nOn remand, the trial court heard testimony about the parties\u2019 intent regarding Mundelein\u2019s tenure obligations in the event of affiliation. Plaintiffs testified that, although the effect of an affiliation on tenure was never discussed, they expected Mundelein to \u201csafeguard\u201d their tenure rights.\nMundelein presented two witnesses who testified about the custom of educational institutions with respect to tenure after affiliation. Peter Ruger, an attorney with 20 years\u2019 experience representing educational institutions, testified that the American Association of University Professors (the AAUP) publishes a \u201cRed Book\u201d that contains \u201cviews of faculty on a variety of issues that affect faculty.\u201d Ruger testified that the \u201cRed Book\u201d is \u201cused by the higher education community to determine the meaning of tenure.\u201d According to Ruger, under the \u201cprevailing view of the academic community\u201d and the \u201cRed Book,\u201d an affiliating college is not obliged to preserve tenure for all tenured faculty. Ruger testified that under AAUP guidelines a declaration of a financial exigency is not required before a college terminates tenure as a consequence of affiliation.\nLawrence White, who served as counsel for the AAUP and as in-house counsel for several schools, described the AAUP as an organization of university professors that \u201cformulate [s] and disseminate [s] policies [about] the rights and duties of faculty members across the country.\u201d White testified that according to the custom of educational institutions and AAUP standards, an institution that acquires another in an affiliation is not required to hire all the tenured faculty. Nor must the acquired institution insist that all its tenured faculty be hired. Both Ruger and White suggested that such requirements would hamper negotiations and discourage affiliation.\nThe trial court ruled that the Mundelein faculty manual set out the reasons and procedures for tenure termination and made no provisions for termination when an affiliation occurs. Although financial exigency was a valid reason to terminate tenure, no financial exigency had been declared by Mundelein\u2019s board of trustees as required under the manual. The trial court farther ruled that even if Mundelein had declared a financial exigency, a bona fide exigency did not exist. The court acknowledged Mundelein\u2019s \u201ccash flow\u201d problems, but noted that Mundelein still had valuable assets. The court also found that Mundelein\u2019s board of trustees \u201ctriggered a breach\u201d of the agreement with the BVM Order, thereby causing the financial crisis on which Mundelein relied to \u201cjustify\u201d affiliation.\nThe trial court did not find useful the testimony regarding the common practices of affiliating institutions or the AAUP guidelines. The court reasoned that \u201cthe parties never agreed that the AAUP [guidelines] would abrogate tenure rights upon an affiliation.\u201d Even if the AAUP guidelines controlled, the AAUP guidelines required a bona fide financial exigency, faculty involvement, and due process to end tenure in the event of affiliation.\nThe trial court ruled in favor of plaintiffs Gray \u00e1nd Hasty on their breach of contract claims and awarded damages in the amounts of $262,371 and $205,349. The trial court ruled against plaintiff Myers, holding that she had waived her claim by accepting a five-year nontenured teaching position at Loyola.\nPlaintiffs moved for a recalculation of damages. The trial court then recalculated damages through December 31, 1996, and ruled that Gray and Hasty were entitled to prejudgment interest. The trial court also said that plaintiffs may bring future actions for damages obtained after trial. The trial court granted summary judgment for Loyola on plaintiffs\u2019 successor liability claim, holding that plaintiffs had not established a de facto merger.\nMundelein first argues that the trial court exceeded the mandate of Gray I on remand by finding, after trial, that there was no bona fide financial exigency. Mundelein refers to the trial court\u2019s comments:\n\u201c[I]t is clear that the Board of Trustees never declared a financial exigency ***.\nEven if *** Mundelein had declared a financial exigency this [c]ourt could not conclude, based on the evidence before the [c]ourt, that a bona fide financial exigency actually existed.\nThe evidence clearly indicates that Loyola valued Mundelein at $65.7 million. ***\n* * *\nMundelein had cash flow problems but, based upon the valuation of $65.7 million at a cost [to Loyola] of only $12.8 million, there is no support for the conclusion that a financial exigency existed.\n* * *\nThe Mundelein Board of Trustees *** intentionally triggered a breach of the loan guarantee covenant knowing it would result in a call for a $4 million loan. *** The \u2018breach\u2019 precipitated the \u2018crisis\u2019 which \u2018justified\u2019 the action *** [of] entering into negotiations with Loyola *** regarding \u2018affiliation.\u2019 \u201d\nMundelein relies on Ptaszek v. Konczal, 10 Ill. 2d 326, 140 N.E.2d 725 (1957). In Ptaszek, our supreme court had earlier reversed the trial court\u2019s ruling and remanded, noting that one issue, a trustee\u2019s duty to account, was \u201cnot at issue.\u201d Ptaszek, 10 Ill. 2d at 327. On remand, the trial court rendered findings on that issue and ordered an accounting. Our supreme court reversed because the \u201ctrial court did not follow our opinion and mandate.\u201d Ptaszek, 10 Ill. 2d at 327.\nMundelein points out that in Gray I, we held that Mundelein\u2019s \u201cstate of severe financial crisis\u201d and that the affiliation was \u201ca direct result of the financial crisis\u201d were undisputed facts. Gray I, 274 Ill. App. 3d at 263. Mundelein argues that, like the trial court in Ptaszek, the trial court here exceeded its mandate by making a ruling that contradicted our findings of \u201cundisputed fact.\u201d\nWe acknowledge that the trial court\u2019s findings deviate from our finding in Gray I that the uncontradicted evidence established affiliation was driven by a legitimate financial crisis. But the trial court\u2019s comments are superfluous in context. In Gray I, the evidence established, and we held, that financial exigency had to be formally declared to extinguish plaintiffs\u2019 tenure rights. That was never done. The trial court\u2019s findings that there was no genuine financial crisis were unnecessary to a resolution of the case and do not require reversal.\nMundelein next argues that the trial court erred in finding that the parties did not intend affiliation to release Mundelein from tenure obligations to plaintiffs. The interpretation of a contract is a question of law to be reviewed de novo on appeal. Regnery v. Meyers, 287 Ill. App. 3d 354, 360, 679 N.E.2d 74 (1997). But Mundelein suggests that something outside the manual, for which it offered extrinsic evidence at trial, governs here. Where extrinsic evidence is needed to establish the intent of the parties, that intent is a question of fact and will not be disturbed on review unless it is contrary to the manifest weight of the evidence. See Howard A. Koop & Associates v. KPK Corp., 119 Ill. App. 3d 391, 398, 457 N.E.2d 66 (1983).\nMundelein emphasizes the trial court\u2019s finding that \u201c[n] either the faculty of Mundelein *** nor Mundelein itself ever considered what would happen if there were an affiliation or merger.\u201d Mundelein maintains that this finding \u201celiminated any possibility that Mundelein *** contractually \u2018intended\u2019 to assume obligations in the event of an affiliation.\u201d Mundelein argues that the court inverted the burden of proof and required Mundelein to \u201cdisprove the existence and breach of a \u2018phantom\u2019 contract term.\u201d\nMundelein contends that plaintiffs must prove the existence of a contract term obligating Mundelein to safeguard plaintiffs\u2019 contractual rights in the event of affiliation. But plaintiffs\u2019 argument is based on unambiguous contract terms \u2014 that Mundelein can terminate tenure for no reason other than those listed in the manual. And if affiliation is driven by a financial exigency, tenured faculty are entitled to participation in the determination and to a board declaration that a financial exigency existed. Gray I left open the possibility that Mundelein could show on remand the existence of an agreement, other than the faculty manual, that controlled the parties\u2019 tenure obligations in an affiliation. But where a party suggests that an agreement outside the underlying contract controls, the party relying on it bears the harden of proof. Cf. Ashe v. Sunshine Broadcasting Corp., 90 Ill. App. 3d 97, 100, 412 N.E.2d 1142 (1980).\nMundelein further argues that the manual term requiring a declaration of financial exigency applies only where tenure is terminated for one of the reasons specified in the manual. Mundelein suggests that \u201cfinancial crisis affiliation,\u201d although not among the reasons listed in the manual, is another way that termination of tenure may be achieved and that declaration of financial exigency is not required before such an affiliation. Mundelein suggests that in Gray I we already determined that tenure could be terminated for a reason not listed in the manual. Mundelein argues that if \u201cthis court had already decided that the [m] anual procedures applied, there would have been no need for a remand.\u201d We agree with the Mundelein analysis, but not with the conclusion.\nIn Gray I we acknowledged that the faculty manual outlines reasons for and procedures by which Mundelein could terminate tenured faculty. Gray I, 274 Ill. App. 3d at 260. We did not hold that the faculty manual lacked terms on which plaintiffs could base their breach of contract claim. We addressed only the bases of the trial court\u2019s first judgment: that the yearly employment contract, the affiliation, and the closure of Mundelein as an \u201cindependent college\u201d extinguished Mundelein\u2019s obligations under the manual. See Gray I, 274 Ill. App. 3d at 262. We concluded that the trial court erred in finding, as a matter of law, that they did. We left open the possibility that, as a matter of fact, the elimination of tenure was a necessary consequence of affiliation in an educational setting and could be established as such on remand. On remand the Mundelein expert witnesses and evidentiary materials attempted to establish just that.\nMundelein suggests that since the parties did not anticipate affiliation in the manual, custom and practice of educational institutions controls this case. Mundelein argues that the AAUP guidelines should be used to \u201cfill the [m]anual\u2019s silences.\u201d This was a proper argument within the context of the remand. But it was not an argument that Mundelein was forced to make because the burden of proof was improperly shifted. If summary judgment had not been entered in Mundelein\u2019s favor, Mundelein would have been allowed to make the argument at trial.\nCustom and usage is an aid to finding the intent of the parties when the contract was made. See Chicago Bridge & Iron Co. v. Reliance Insurance Co., 46 Ill. 2d 522, 531-32, 264 N.E.2d 134 (1970). Custom and usage may only be relied upon to interpret an agreement if the practice was \u201cso well known, uniform, long-established and generally acquiesced in as to induce the belief that the parties contracted with reference to it.\u201d Nielsen v. United Services Automobile Ass\u2019n, 244 Ill. App. 3d 658, 664, 612 N.E.2d 526 (1993). Evidence of custom and usage is only admissible to explain uncertain or ambiguous terms. When terms of a contract are clear, those terms alone determine the obligations of the parties. Nielsen, 244 Ill. App. 3d at 663-64.\nMundelein would have us refer to the custom and usage of educational institutions even though clear contract terms apply. We agree that the evidence shows the parties never considered the impact of affiliation, but the parties defined precise circumstances under which Mundelein could terminate tenure. While Mundelein offered evidence that custom and usage would dictate that affiliation abolished tenure, it offered no evidence that plaintiffs were aware of such custom and usage or that plaintiffs understood that the faculty manual tenure provisions would not apply in an affiliation scenario. Absent such knowledge, plaintiffs had a right to rely on the manual. The manual provisions are controlling here.\nMundelein next argues, without citing authority, that the trial court\u2019s decision violates public policy by encouraging school closures rather than affiliations. We disagree. Requiring Mundelein to adhere to the terms set out in a manual it drafted before terminating tenure violates no public policy. Nor does it encourage school closure. Mundelein could have taken whatever course was necessary to remedy its financial difficulties without continued obligation to tenured faculty if it had followed the procedures set out in its manual.\nMundelein next argues that plaintiffs failed to prove damages beyond the two years\u2019 salary they were offered. Plaintiffs were awarded damages through December 31, 1996. Mundelein argues that if Mundelein had not affiliated with Loyola, Mundelein would have closed in 1992, and plaintiffs could not have earned more than one year\u2019s additional salary.\nThe measure of damages for breach of an employment contract is the amount the plaintiff would have earned absent the breach, less what he earned or could have earned during the contract period after his termination. Ashe v. Sunshine Broadcasting Corp., 90 Ill. App. 3d 97, 100, 412 N.E.2d 1142 (1980).\nMundelein argues that the following evidence showed that Mundelein would have closed in 1992: plaintiffs\u2019 allegations in their pleadings that Mundelein was insolvent at the time of the affiliation; the chair of Mundelein\u2019s board of trustees\u2019 testimony that the college\u2019s financial crisis was severe; a faculty committee\u2019s report to the board of trustees in April 1991 that a \u201cstate of exigency exists, and *** the [c]ollege is insolvent\u201d; the 1991-92 annual contract provision that \u201call employment of faculty by the college shall terminate on June 30, 1992\u201d; and testimony from a representative of the BVM Order that the BVM Order was serious about forcing Mundelein to close.\nWe decline to rely on the imprecise use of the term \u201cinsolvent\u201d in plaintiffs\u2019 pleadings and the faculty committee recommendations. The term \u201cinsolvency,\u201d as used in those documents, is vague. Under Illinois and federal bankruptcy law, a debtor is insolvent if the sum of his debts is greater than his property at a fair valuation. See 11 U.S.C. \u00a7 101(32)(A) (1994); 740 ILCS 160/3 (West 1996). There was no judicial finding of insolvency here.\nMundelein cites no authority that plaintiffs must prove Mundelein \u201c[w]ould have survived\u201d absent Mundelein\u2019s breach. And Mundelein\u2019s claim that it would have closed is speculative. The fate of Mundelein is not \u201cundisputed,\u201d as Mundelein suggests. Mundelein ignores the chair of Mundelein\u2019s board of trustees\u2019 testimony that if affiliation negotiations with Loyola had failed, Mundelein would have attempted to \u201crestructure\u201d or to affiliate with another school. The board chair further testified that if affiliation did not work out and \u201cit came down to a restructuring versus a close [of the school, there] would have been a restructuring.\u201d Helen Garvey, a representative of the BVM Order and a member of Mundelein\u2019s board of trustees, testified that she was \u201cvery serious about closing the college\u201d in accord with the BVM Order\u2019s agreement with Mundelein. But she also said, \u201cWe didn\u2019t want to *** close ***. What we hoped was that affiliation would work and if it didn\u2019t we\u2019d have to look at something else.\u201d Just as Mundelein continued to exist when it affiliated with Loyola, it may have continued to exist if it restructured or affiliated with another school.\nWe next address an argument advanced in Mundelein\u2019s original brief that \u201c[t]here is no basis in the record for [the trial court] to retain jurisdiction or entertain future proceedings to award damages for additional lost compensation.\u201d\nIn the trial court\u2019s November 7, 1996, order, the court awarded damages and \u201creserve [d] the right to adjust this figure during the continued pendency of this case and in the interest of both fairness and judicial economy to provide a suggested procedure for \u2018future damages.\u2019 \u201d Plaintiffs then filed a posttrial motion asking the court to recalculate damages. In its January 23, 1997, order, the court recognized that it could not award future damages (see Lewis v. Loyola University, 149 Ill. App. 3d 88, 500 N.E.2d 47 (1986)), but acknowledged that \u201cplaintiffs Gray and Hasty may bring future actions during the term of their employment contract for damages which are sustained subsequent to trial.\u201d\nThe record shows that the trial judge did not retain jurisdiction but entered final orders on all matters before him. We read his remarks as an affirmation of the right of the plaintiffs to do what, under the law, they were already entitled to do: bring a cause of action when it is ripe for adjudication. See Corby v. Seventy-One Hundred Jeffery Avenue Building Corp., 325 Ill. App. 442, 457, 60 N.E.2d 236 (1945) (\u201c[t]he plaintiff has a right, if he so desires in the future to institute proceedings from time to time during the term of the contract for damages which he may have sustained\u201d).\nMundelein next argues that the trial court erred in ruling that the faculty manual is \u201can instrument in writing\u201d that supports an award of prejudgment interest under section 2 of the Interest Act (815 ILCS 205/2 (West 1996)). Whether to award prejudgment interest is a matter within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Krantz v. Chessick, 282 Ill. App. 3d 322, 327, 668 N.E.2d 77 (1996).\nSection 2 allows creditors to receive 5% interest \u201cfor all moneys after they become due on any bond, bill, promissory note, or other instrument of writing.\u201d 815 ILCS 205/2 (West 1996). We have held that \u201c[t]he type of instrument contemplated is [one] that evidences money lent or advanced, thus setting up a creditor-debtor relationship,\u201d and that the writing must \u201cbear a specific date by which the indebtedness created comes due.\u201d Wilder Binding Co. v. Oak Park Trust & Savings Bank, 173 Ill. App. 3d 34, 42-43, 527 N.E.2d 354 (1988), rev\u2019d on other grounds, 135 Ill. 2d 121 (1990); see also Krantz, 282 Ill. App. 3d 322. A faculty manual is not an \u201cinstrument in writing\u201d for purposes of the Interest Act. See Arneson v. Board of Trustees, 210 Ill. App. 3d 844, 853, 569 N.E.2d 252 (1991). We must reverse the trial court\u2019s award of prejudgment interest.\nPlaintiffs next argue that the trial court erred in granting summary judgment to Loyola on the issue of successor liability. We review summary judgment de novo. Prettyman v. Commonwealth Edison Co., 273 Ill. App. 3d 1090, 1093, 657 N.E.2d 637 (1995).\nAs a general rule, when a corporation merges with another, it takes on the latter\u2019s obligations and liabilities. But when a corporation merely purchases the assets of another corporation, the purchasing corporation is not hable for the debts and liabilities of the selling corporation by reason of its succession. Kaleta v. Whittaker Corp., 221 Ill. App. 3d 705, 708-09, 583 N.E.2d 567 (1991). But a purchasing corporation will be liable if the plaintiff establishes that the purchase amounts to a de facto merger. To establish de facto merger, plaintiffs must show that: (1) the seller ceased operation and dissolved; (2) the buyer assumed the seller\u2019s liabilities and obligations necessary for the uninterrupted continuation of business; (3) there is a continuity of shareholders; and (4) there is a continuity of the business enterprise, including management, employees, location, general business operations, and assets. Kaleta, 221 Ill. App. 3d at 709. All four elements must be proven to establish de facto merger. Myers v. Putzmeister, Inc., 232 Ill. App. 3d 419, 424, 596 N.E.2d 754 (1992); Kaleta, 221 Ill. App. 3d at 710.\nPlaintiffs do not argue that any of the elements of de facto merger have been established. Instead they argue that \u201c[u]nder the unique facts of this case, the four indicia of de facto merger *** should not be immutable rules which apply with full force to [not]-for-profit corporations, which do not have shareholders.\u201d But plaintiffs cite no authority that would allow us to deviate from the clear requirements to establish a de facto merger. And plaintiffs do not suggest what \u201cindicia\u201d should be applied to not-for-profit corporations. We note that not-for-profit corporations are controlled by \u201cmembers\u201d rather than \u201cshareholders.\u201d Compare 805 ILCS 5/7.05 (West 1996) to 805 ILCS 105/107.03 (West 1996). But even disregarding the requirement that there be a continuation of shareholders, plaintiffs cannot establish the other elements of de facto merger. Mundelein did not dissolve. Nor did Mundelein\u2019s, business continue \u201cuninterrupted.\u201d There were significant changes in the management, employees, and business operations after the affiliation. The \u201caffiliation\u201d of Loyola and Mundelein is not the type of union covered by the de facto merger doctrine.\nPlaintiffs note that \u201c[t]he imposition of liability upon the successor corporation is grounded upon the notion that no corporation should be permitted to commit a tort or breach a contract and avoid liability through corporate transformation in form only.\u201d Munim v. Azar, 648 So. 2d 145, 154 (Fla. Dist. Ct. App. 1994). But Mundelein continues to exist as a corporate entity and has not avoided liability here.\nWe next address plaintiff Myers\u2019 cross-appeal. She argues that she did not waive her tenure rights by accepting a five-year teaching contract with Loyola.\nWhether Myers waived her right to sue for loss of tenure is a question of fact, the resolution of which will not be disturbed unless it is contrary to the manifest weight of the evidence. Sexton v. Smith, 112 Ill. 2d 187, 194, 492 N.E.2d 1284 (1986). Waiver is the relinquishment of a known right. Pantle v. Industrial Comm\u2019n, 61 Ill. 2d 365, 372, 335 N.E.2d 491 (1975). A waiver may be made by express agreement or implied from the conduct of the party who allegedly waived the right. Ryder v. Bank of Hickory Hills, 146 Ill. 2d 98, 105, 585 N.E.2d 46 (1991). Waiver will be implied when a party\u2019s conduct is inconsistent with an intention to assert the right. Ryder, 146 Ill. 2d at 105.\nMyers argues that nothing she did was inconsistent with asserting her breach of contract claim against Mundelein. We agree. Myers\u2019 acceptance of a five-year teaching position and her efforts to obtain tenure at Loyola are not inconsistent with pursuit of a remedy against Mundelein. A plaintiff has a duty to mitigate damages. In breach of employment contract cases, this duty includes seeking other employment. See Arneson, 210 Ill. App. 3d at 851-52. Myers\u2019 mitigation of damages by accepting employment with Loyola does not amount to waiver.\nWe note that continued employment under new employment conditions after a breach of employment contract may, in some circumstances, result in a waiver of a plaintiff\u2019s breach of contract claim. See Vandevier v. Mulay Plastics, Inc., 135 Ill. App. 3d 787, 482 N.E.2d 377 (1985) (finding waiver where plaintiff acquiesced for seven years to the payment of a lower commission than he alleged he was entitled to under a contract). But Myers did not continue to work for Mundelein. She worked for Loyola. Defendants cite no case in which the acceptance of employment with a different entity amounts to waiver.\nMundelein notes that it was the affiliation agreement between Mundelein and Loyola that created the five-year teaching position Myers was selected to fill. But Mundelein does not dispute that Loyola, not Mundelein, selected Myers and offered her the position. If Loyola intended to extinguish Myers\u2019 tenure claim against Mundelein through acceptance of Loyola\u2019s offer, nothing prohibited Loyola from including that condition in its offer of employment.\nBut Myers is entitled only to a declaration that Mundelein breached its contract. In defendant Mundelein\u2019s petition for rehearing, Mundelein notes that Myers did not seek damages or prove damages before the trial court. Myers sought only a declaratory judgment and injunctive relief in her complaint.\nWe remand with directions to enter judgment for plaintiff Myers. The trial court is instructed to recalculate plaintiffs Gray and Hasty\u2019s damages in a manner consistent with this opinion.\nAffirmed in part and reversed in part; cause remanded.\nGORDON and BURKE, JJ., concur.", "type": "majority", "author": "JUSTICE CAHILL" } ], "attorneys": [ "Jill M. Rappis, of Chicago, for Loyola University.", "Ellen M. Babbitt, Ira J. Belcove, and Harry J. Nelson, all of Butler, Rubin, Saltarelli & Boyd, of Chicago, for Mundelein College and Loyola University.", "Arthur J. O\u2019Donnell and Kenneth N. Flaxman, both of Chicago, for Judith R Myers, Yohma Gray, and Elvira Fernandez Hasty." ], "corrections": "", "head_matter": "YOHMA GRAY et al., Plaintiffs-Appellees, v. MUNDELEIN COLLEGE, Defendant-Appellant (Loyola University of Chicago, Defendant).\u2014JUDITH R. MYERS et al., Plaintiffs-Appellants, v. LOYOLA UNIVERSITY OF CHICAGO et al., Defendants-Appellees.\nFirst District (3rd Division)\nNos. 1\u201497\u20140605, 1\u201497\u20140622 cons.\nOpinion filed May 6, 1998.\n\u2014 Modified on denial of rehearing June 17, 1998.\nJill M. Rappis, of Chicago, for Loyola University.\nEllen M. Babbitt, Ira J. Belcove, and Harry J. Nelson, all of Butler, Rubin, Saltarelli & Boyd, of Chicago, for Mundelein College and Loyola University.\nArthur J. O\u2019Donnell and Kenneth N. Flaxman, both of Chicago, for Judith R Myers, Yohma Gray, and Elvira Fernandez Hasty." }, "file_name": "0795-01", "first_page_order": 813, "last_page_order": 828 }