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                                    Appellate Court                         Date: 2017.05.02
                                                                            12:11:11 -05'00'




        Rosenberger v. United Community Bancshares, Inc., 2017 IL App (1st) 161102



Appellate Court        TERRANCE J. ROSENBERGER, Plaintiff-Appellant and Cross-
Caption                Appellee, v. UNITED COMMUNITY BANCSHARES, INC.,
                       Successor by Merger to Commercial Bancshares Corporation, a
                       Delaware Corporation, Defendant-Appellee and Cross-Appellant.



District & No.         First District, Sixth Division
                       Docket No. 1-16-1102



Filed                  February 24, 2017



Decision Under         Appeal from the Circuit Court of Cook County, No. 14-L-2807: the
Review                 Hon. James E. Snyder, Judge, presiding.



Judgment               Reversed and remanded; cross-appeal dismissed.



Counsel on             Jeffrey Ogden Katz, Michael Haeberle, and Stephanie Simpson, of
Appeal                 Patterson Law Firm, of Chicago, for appellant.

                       Kathryn Montgomery Moran and Sean C. Herring, of Jackson Lewis
                       P.C., of Chicago, for appellee.



Panel                  PRESIDING JUSTICE HOFFMAN delivered the judgment of the
                       court, with opinion.
                       Justices Rochford and Delort concurred in the judgment and opinion.
                                             OPINION

¶1       The plaintiff, Terrance J. Rosenberger, filed the instant action against the defendant,
     United Community Bancshares, Inc. (UCB), successor by merger to Commercial Bancshares
     Corporation, alleging it breached his employment contract by failing to pay him severance
     benefits. The circuit court granted UCB’s motion for summary judgment, finding that the
     doctrine of legal impossibility excused its performance since the severance benefits amounted
     to a “golden parachute,” which is prohibited by section 1828(k)(1) of the Federal Deposit
     Insurance Act (FDIA) (12 U.S.C. § 1828(k)(1) (2012)). Rosenberger appeals, arguing that the
     court erred in granting summary judgment because he falls within the so-called “white knight”
     exception to the prohibition against golden parachute payments. UCB cross-appeals,
     contending in the alternative that summary judgment was appropriate because Rosenberger’s
     employment was terminated for cause, thus precluding his entitlement to severance benefits.
     For the reasons which follow, we dismiss UCB’s cross-appeal, reverse the circuit court’s
     judgment, and remand for further proceedings.
¶2       The following factual recitation is taken from the pleadings, affidavits, and depositions of
     record.
¶3       UCB, successor by merger to Commercial Bancshares Corporation, is a bank holding
     company, and CenTrust Bank, N.A. (CenTrust) is a wholly owned subsidiary of UCB that
     operates a community bank in Northbrook, Illinois. As a member of the Federal Deposit
     Insurance Corporation (FDIC), CenTrust is subject to FDIC regulations.
¶4       Prior to the events at issue here, in 2011, Rosenberger and James McMahon became
     interested in investing in a community bank after the bank they previously worked at, Park
     National Bank, failed. Rosenberger and McMahon, along with a third individual, Gerard
     Buccino, formed a company, United Financial Holdings Group, Inc. (United Financial), for the
     purpose of raising capital and acquiring a majority interest in a troubled community bank in the
     Chicago area.
¶5       Rosenberger and McMahon identified CenTrust as a candidate for acquisition. According
     to a “Strategic Plan,” CenTrust was founded in 2006, and by 2008, losses quickly emerged as a
     result of a “global liquidity crisis” that impacted the United States and local economies. Due to
     the declining value of commercial real estate, CenTrust experienced losses, which required
     additional capital to be committed to its loan-loss reserves. At some point, the Office of the
     Comptroller of the Currency (OCC) entered into an “Operating Agreement” with CenTrust,
     subjecting it to heightened regulatory oversight.
¶6       In January 2012, after months of planning and negotiating with UCB and federal
     regulators, United Financial entered into a Stock Purchase Agreement with UCB, whereby
     CenTrust would receive $7 million in new capital and Rosenberger, McMahon, and Buccino
     would be hired as CenTrust’s new management team. The $7 million in new capital improved
     CenTrust’s capital reserves above the minimum “Tier 1” regulatory levels.
¶7       On February 1, 2012, UCB hired Rosenberger to serve as CenTrust’s chief lending officer.
     His employment agreement provided an initial term of three years with a base salary of
     $200,000 per year, subject to annual increases in “an amount not less than the increase to the
     Consumer Price Index for the prior twelve months.” Rosenberger’s compensation package also
     included a car allowance, reimbursement of country club and athletic club dues, a 401(k) plan,


                                                 -2-
       and discretionary bonuses. Relevant here, section 4(e) of the employment agreement entitled
       Rosenberger to severance benefits:
                   “(e) Severance Compensation. If this Agreement is terminated by the Company
               prior to the expiration of the Employment Period for any reason other than Cause, ***
               then the Employee shall be entitled to receive in a single payment *** an amount equal
               to two times his annual base salary then in effect.”
       Section 16 of the employment agreement defined “cause,” in pertinent part, as “the failure to
       follow the Company’s reasonable instructions with respect to the performance of the
       Employee’s duties.” Section 3 of the employment agreement, in turn, defined Rosenberger’s
       duties as follows:
                   “3. Duties. Employee shall serve as Chief Lending Officer of the Company and
               will, under the direction of the Board of Directors, faithfully and to the best of his
               ability perform the duties of President [sic] and Chief Lending Officer of the Company
               as assigned by the Board of Directors from time to time.”
       Although a termination without cause entitled Rosenberger to a lump sum severance payment,
       section 28(e) of the employment agreement provided that: “Any payments made to Executive
       pursuant to this Agreement, or otherwise, are subject to and conditioned upon their compliance
       with Section 18[28](k) [of the FDIA] (12 U.S.C. § 1828(k)).”
¶8         On July 25, 2012, following a regulatory examination by the OCC, CenTrust consented to
       the entry of an order (“Consent Order”), which required it to acquire and maintain increased
       amounts of capital, reduce the level of nonperforming loans, and improve its operations. The
       Consent Order set forth various duties required of the board of directors and management to
       bring CenTrust into compliance with banking regulations. As a result of the Consent Order,
       CenTrust was designated an institution in “troubled condition.” See 12 C.F.R. § 303.101(c)
       (2012).
¶9         On April 13, 2013, Rosenberger received an annual performance evaluation for 2012. In
       the evaluation, an executive committee of UCB’s board of directors stated that it was not
       satisfied with Rosenberger’s performance, finding his due diligence on “loan and OREO” to be
       “poor” and the lack of loan growth “not acceptable.” It further noted that “booking new,
       quality loans” is “critical to the overall value of the organization” and that “Rosenberger
       occasionally fails to exhibit proficiency in some of his responsibilities.” The executive
       committee acknowledged, however, that Rosenberger “followed” the board of directors’
       policies and procedures and the provisions of the July 25, 2012, Consent Order.
¶ 10       On August 19, 2013, the executive committee provided Rosenberger with a “mid-year
       review.” In that review, the executive committee observed that Rosenberger’s “pipeline of new
       loans is increasing” but that the “new loans actually funded are seriously deficient and must be
       increased.” Although the executive committee “offered suggestions” to generate new
       loans—e.g., opening “an office in Hinsdale solely for loans” and implementing “an active
       local calling program”—it did not specifically instruct Rosenberger to follow through on those
       suggestions.
¶ 11       In a memorandum dated October 15, 2013, the executive committee informed Rosenberger
       that he was underperforming and not “meeting [his] duties pursuant to Paragraph 3 of [his]
       Employment Agreement.” According to the memo, the Bank budgeted approximately $56



                                                  -3-
       million in new loans to be funded through September 30, 2013, but only $35 million had been
       funded, running a negative variance of over $20 million. The executive committee stated:
                      “As a result, the [executive committee] is not satisfied with the performance of
                 your duties as Chief Loan Officer and wishes to immediately implement a performance
                 correction plan regarding your employment. These steps are taken in an effort to
                 improve the performance of your duties and in accomplishing the Company’s overall
                 goals of generating new loans and becoming profitable.
                      Below are areas of serious deficiencies in key areas where the [executive
                 committee needs to see substantial improvement by year-end and would like a weekly
                 progress report from you relating to the following items[.]”
       The performance correction plan, as set forth in the October 15, 2013, memorandum, goes on
       to list, in 17 bullet points, the “Key Areas/ Reasonable Instructions” that Rosenberger was to
       address in his weekly progress report. Following the list of bullet points, the executive
       committee stated as follows:
                      “Terry, the [executive committee] is eager to have you remedy these matters
                 promptly and no later than the end of this quarter, December 31, 2013, and would
                 welcome a meeting to further discuss this Performance Correction Plan. Please feel
                 free to contact Jim McMahon or Harry Stinespring to schedule a meeting upon your
                 receipt and review of this letter.”
¶ 12        On October 21, 2013, Rosenberger accepted the executive committee’s invitation and met
       with McMahon and Stinespring to discuss the performance correction plan. According to
       Rosenberger’s affidavit, he told McMahon and Stinespring that he believed the performance
       correction plan was unreasonable since his performance was being evaluated against a budget
       that was drafted in February 2013 without his input, was not approved by the OCC, and was
       superseded by an August 2013 budget. He also believed that the executive committee’s request
       for weekly progress reports was unreasonable since monthly reporting is the industry standard.
       Nevertheless, he informed McMahon and Stinespring that he intended to respond, in writing,
       to the executive committee’s performance correction plan.
¶ 13        In a letter addressed to the executive committee, dated October 30, 2013, Rosenberger
       criticized its decision to judge his performance based upon “an unreasonable budget” that was
       rejected by the OCC “as imprudent and placing the Bank at risk of failure.” He disputed the
       executive committee’s assertion that he had not fulfilled his duties under the employment
       agreement and noted that, aside from his alleged underperformance with respect to the loans,
       the performance correction plan failed to identify how he did not to perform his duties.
       Rosenberger concluded the letter by stating:
                      “I will work with whomever the [executive committee] designates to develop an
                 efficient format for the weekly reports requested in the ‘Performance Correction
                 Plan[.]’ ***.
                      ***
                      The Performance Correction Plan is an arbitrary document based on an incorrect
                 assumption to the Bank’s budget and is an ill-designed attempt to ‘make a record’ to
                 support some future action. For the reasons above, the Performance Correction Plan is
                 rejected, although I will work with the [executive committee] on weekly reporting and
                 prioritizations.” (Emphases added.)


                                                  -4-
¶ 14       Six days later, on November 5, 2013, UCB’s board of directors terminated Rosenberger’s
       employment. A letter that Rosenberger received stated that UCB “hereby terminates the
       [Employment] Agreement for cause effective immediately.” The letter did not state any
       reasons for the termination of his employment.
¶ 15       In March 2014, Rosenberger filed a single-count complaint in the circuit court of Cook
       County against UCB, alleging breach of contract. He asserted that UCB breached his
       employment agreement by failing to increase his salary on February 1, 2013, by 1.6%, the
       amount the consumer price index increased over the prior twelve months; failing to reimburse
       him for his country club dues; and refusing to pay him $406,400 in severance benefits.
¶ 16       In its answer to the complaint, UCB denied the allegations that it failed to increase
       Rosenberger’s salary or reimburse him for his country club dues. It admitted, however, that it
       had not tendered payment of severance benefits. As affirmative defenses, UCB alleged,
       inter alia, that its performance was excused under the doctrine of legal impossibility because
       Rosenberger’s severance would be a “golden parachute payment,” which is barred by section
       1828(k) of the FDIA (12 U.S.C. § 1828(k) (2012)). UCB also asserted that Rosenberger is not
       entitled to severance benefits under the terms of the employment agreement as he was
       discharged for cause.
¶ 17       In August 2015, UCB moved for “partial summary judgment” on Rosenberger’s claim for
       severance benefits. 1 In its motion, UCB did not dispute that Rosenberger’s employment
       agreement was a valid and enforceable contract or that Rosenberger had not been paid the
       severance benefits provided for in section 4(e) of that agreement. Rather, UCB asserted that
       Rosenberger seeks to recover a golden parachute payment that is prohibited by federal banking
       regulations. According to UCB, under applicable federal regulations, banks in “troubled
       condition” are barred from making golden parachute payments without the consent of the
       appropriate federal banking agency and the written concurrence of the FDIC. Since there is no
       evidence that either the OCC or FDIC consented to the payment of Rosenberger’s severance
       benefits, UCB contends it is impossible for it to perform without violating federal banking
       regulations. Alternatively, UCB argued that summary judgment in its favor is appropriate
       because there is no genuine issue of material fact that Rosenberger was discharged for cause
       and, as a consequence, he is not entitled to severance benefits under the terms of the
       employment agreement. UCB supported its motion with the deposition testimony of
       McMahon and Rosenberger, the employment agreement, the Consent Order, the performance
       evaluations, and written correspondence between Rosenberger and the executive committee.
¶ 18       In opposing the motion, Rosenberger conceded that the golden parachute provisions of the
       FDIA apply to his severance benefits. He argued, however, that a question of fact was created
       based upon evidence that he was hired as a “white knight” to rescue CenTrust from economic
       failure and, therefore, falls within an exception to rules prohibiting golden parachute
       payments. He further asserted that UCB should have applied to the appropriate federal agency
       for an exception to the golden parachute regulation and that its failure to do so was a breach of

           1
            Actually, UCB’s motion was a motion for a summary determination of major issues pursuant to
       section 2-1005(d) of the Code of Civil Procedure (735 ILCS 5/2-1005(d) (West 2014)). It is not a
       motion for partial summary judgment, which permits a party to seek the entry of summary judgment on
       one or more, but less than all, of the counts of a multicount complaint. 735 ILCS 5/2-1005(a)-(c) (West
       2014); Chicago Transit Authority v. Clear Channel Outdoor, Inc., 366 Ill. App. 3d 315, 323 (2006).

                                                      -5-
       the implied duty of good faith and fair dealing. Finally, Rosenberger disputed UCB’s
       contention that he was discharged for “cause” as defined in section 16 of the employment
       agreement. Rosenberger relied upon the same evidentiary material as UCB and, in addition,
       attached his own affidavit.
¶ 19       On December 22, 2015, Rosenberger voluntarily dismissed his claims for unpaid salary
       and country club dues, leaving only his claim for severance pay.
¶ 20       On March 28, 2016, the circuit court granted UCB’s motion for “partial” summary
       judgment, finding that any severance payment would constitute a prohibited golden parachute,
       thereby rendering UCB’s performance legally impossible. The court observed that, while there
       is some evidence in the record suggesting that Rosenberger qualified as a “white knight,” there
       is no evidence that federal regulators consented to the payment and, absent consent, UCB is
       prohibited from paying Rosenberger his severance benefits. Because the court previously
       granted Rosenberger’s motion to voluntarily dismiss his claims for unpaid compensation and
       country club dues, the summary judgment entered on the issue of legal impossibility was the
       equivalent of a summary judgment entered on the entire remaining complaint. As to UCB’s
       contention that Rosenberger is not entitled to severance pay based upon his termination for
       “cause,” the court determined that summary judgment in UCB’s favor on that ground was not
       appropriate. This appeal followed.
¶ 21       As a preliminary matter, we note that UCB’s cross-appeal asks this court to affirm the
       circuit court’s summary judgment ruling on alternative grounds. However, as our supreme
       court has explained, “[a] party cannot complain of error which does not prejudicially affect it,
       and one who has obtained by judgment all that has been asked for in the trial court cannot
       appeal from the judgment.” Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382,
       386 (1983). Thus, where the circuit court grants summary judgment in favor of a party, that
       party cannot file a cross-appeal to seek relief from the summary judgment order. Dowe v.
       Birmingham Steel Corp., 2011 IL App (1st) 091997, ¶ 25. For that reason, we must dismiss
       UCB’s cross-appeal. We note, however, we consider the arguments it raises in its cross-appeal
       since “an appellee may argue in support of the judgment on any basis which appears in the
       record.” Hayes v. Board of Fire & Police Commissioners, 230 Ill. App. 3d 707, 710 (1992).
¶ 22       As this matter comes to us on appeal from the entry of summary judgment, our review is
       de novo, applying the same legal standards as did the circuit court. Standard Mutual Insurance
       Co. v. Lay, 2013 IL 114617, ¶ 15. Summary judgment is appropriate where the pleadings,
       depositions, admissions, and affidavits on file establish the absence of a genuine issue of
       material fact, and that the moving party is entitled to judgment as a matter of law. 735 ILCS
       5/2-1005(c) (West 2014); Sollami v. Eaton, 201 Ill. 2d 1, 6 (2002). The purpose of a motion for
       summary judgment is to determine the existence or absence of a genuine issue as to any
       material fact; it cannot be used to resolve a disputed fact. Illinois State Bar Ass’n Mutual
       Insurance Co. v. Law Office of Tuzzolino & Terpinas, 2015 IL 117096, ¶ 14. When ruling on a
       motion for summary judgment, the court must strictly construe all evidentiary material against
       the movant while liberally construing all of the evidentiary material in favor of the opponent.
       Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). If the evidentiary material before the
       court could lead to more than one reasonable conclusion or inference, the court must adopt the
       conclusion or inference which is most favorable to the opponent of the motion. Brandt v. Time
       Insurance Co., 302 Ill. App. 3d 159, 164 (1998). Summary judgment is a drastic remedy which


                                                  -6-
       results in the disposition of a case without a trial and, as such, should not be granted unless the
       right of the movant is free from doubt. Bruns v. City of Centralia, 2014 IL 116998, ¶ 12.
¶ 23       As his sole assignment of error, Rosenberger argues that the circuit court erred in granting
       summary judgment in UCB’s favor because a genuine issue of material fact exists on the
       question of whether UCB’s performance under section 4(e) of the employment agreement was
       excused under the doctrine of legal impossibility.
¶ 24       “The doctrine of legal impossibility, or impossible performance, excuses performance of a
       contract only when performance is rendered objectively impossible either because the subject
       matter is destroyed or by operation of law.” (Emphasis added.) Innovative Modular Solutions
       v. Hazel Crest School District 152.5, 2012 IL 112052, ¶ 37. The doctrine has been narrowly
       applied based upon judicial recognition that the purpose of contract law is to allocate the risks
       that might affect performance and that performance should be excused only in extreme
       circumstances. YPI 180 N. LaSalle Owner, LLC v. 180 N. LaSalle II, LLC, 403 Ill. App. 3d 1, 6
       (2010). One particular example of impossibility excusing performance is an intervening
       governmental regulation or order. Restatement (Second) of Contracts § 264 (1981).
       Significantly, however, the doctrine does not apply to excuse performance as long as it lies
       within the power of the promisor to remove the obstacle to performance. Downs v. Rosenthal
       Collins Group, L.L.C., 2011 IL App (1st) 090970, ¶ 39. The party advancing the doctrine has
       the burden of proving impossibility. Michigan Avenue National Bank v. State Farm Insurance
       Cos., 83 Ill. App. 3d 507, 514 (1980).
¶ 25       In this case, UCB’s impossibility defense is based upon section 1828(k)(1) of the FDIA.
       Under the FDIA and its implementing regulations, the FDIC “may prohibit or limit, by
       regulation or order, any golden parachute payment.” 12 U.S.C. 1828(k)(1) (2012); see also 12
       C.F.R. § 359.0 et seq. (2012). As is relevant here, a golden parachute is:
                “any payment (or any agreement to make any payment) in the nature of compensation
                by any insured depository institution *** for the benefit of any institution-affiliated
                party pursuant to an obligation of such institution *** that—
                        (i) is contingent on the termination of such party’s affiliation with the
                    institution ***; and
                        (ii) is received on or after the date on which—
                                                       ***
                             (III) the institution’s appropriate Federal banking agency determines that
                        the insured depository institution is in a troubled condition (as defined in the
                        regulations prescribed pursuant to section 1831i(f) of this title)[.]” 12 U.S.C.
                        § 1828(k)(4)(A) (2012).
       An “[i]nstitution-affiliated party” (IAP) includes “[a]ny director, officer, employee, or
       controlling stockholder *** of *** an insured depository institution or depository institution
       holding company.” 12 C.F.R. § 359.1(h)(1) (2012). By regulation, no insured depository
       institution or depository institution holding company may make or agree to make a golden
       parachute payment, except as provided by the express regulatory process. 12 C.F.R. § 359.2
       (2012).
¶ 26       Although Rosenberger concedes that the severance benefits provided for in his
       employment agreement constitute a golden parachute, he argues that UCB cannot rely upon
       the impossibility defense because he qualifies under the “white knight” exception to the

                                                    -7-
       prohibition against golden parachute payments. More specifically, he asserts that UCB cannot
       rely on the impossibility defense because it had the ability to seek government approval for the
       severance payment but had failed to do so.
¶ 27       As Rosenberger correctly observes, section 1828(k) does not prohibit all golden parachute
       payments. Rather, section 1828(k)(2) grants authority to the FDIC to develop regulations for
       determining which termination payments should, and should not, be made. The FDIC
       regulations set forth limited exceptions for a depository institution or depository institution
       holding company, such as UCB, to make what would otherwise be a prohibited golden
       parachute payment. Specifically, a golden parachute payment may be made if and to the extent
       that:
                    “(1) The appropriate federal banking agency, with the written concurrence of the
               [FDIC], determines that such a payment or agreement is permissible; or
                    (2) Such an agreement is made in order to hire a person to become an IAP either at
               a time when the insured depository institution or depository institution holding
               company satisfies or in an effort to prevent it from imminently satisfying any of the
               criteria set forth in § 359.1(f)(1)(ii), and the institution’s appropriate federal banking
               agency and the Corporation consent in writing to the amount and terms of the golden
               parachute payment. ***; or
                    (3) Such a payment is made pursuant to an agreement which provides for a
               reasonable severance payment, not to exceed twelve months salary, to an IAP in the
               event of a change in control of the insured depository institution; provided, however,
               that an insured depository institution or depository institution holding company shall
               obtain the consent of the appropriate federal banking agency prior to making such a
               payment ***[.]” (Emphasis omitted.) 12 C.F.R. § 359.4(a)(1)-(3) (2012).
¶ 28       Qualifying for any of these exceptions requires a two-step process. First, the applicant or
       Rosenberger must certify to the appropriate federal banking agency that:
               “it does not possess and is not aware of any information, evidence, documents or other
               materials which would indicate that there is a reasonable basis to believe, at the time
               such payment is proposed to be made, that:
                    (i) The IAP has committed any fraudulent act or omission, breach of trust or
               fiduciary duty, or insider abuse with regard to the depository institution or depository
               institution holding company that has had or is likely to have a material adverse effect
               on the institution or holding company;
                    (ii) The IAP is substantially responsible for *** the troubled condition, as defined
               by applicable regulations of the appropriate federal banking agency, of the insured
               depository institution, depository institution holding company or any insured
               depository institution subsidiary of such holding company;
                    (iii) The IAP has materially violated any applicable federal or state banking law or
               regulation that has had or is likely to have a material effect on the insured depository
               institution or depository institution holding company[.]” 12 C.F.R.
               § 359.4(a)(4)(i)-(iii) (2012).
¶ 29       Second, and notwithstanding the fact that the requisite certifications (as outlined in 12
       C.F.R. § 359.4(a)(4) (2012)) have been made, the FDIC “may consider” the following in
       exempting certain payments from the golden parachute restrictions:

                                                   -8-
                    “(1) [w]hether, and to what degree, the IAP was in a position of managerial or
                fiduciary responsibility;
                    (2) [t]he length of time the IAP was affiliated with the insured depository institution
                or depository institution holding company, and the degree to which the proposed
                payment represents a reasonable payment for services rendered over the period of
                employment; and
                    (3) [a]ny other factors or circumstances which would indicate that the proposed
                payment would be contrary to the intent of section 18(k) of the [FDIA] or this part.” 12
                C.F.R. § 359.4(b)(1)-(3) (2012).
¶ 30       Under the regulations, either UCB or Rosenberger could have applied to the FDIC and the
       OCC for a determination that the severance pay provided in section 4(e) of Rosenberger’s
       employment agreement is permissible.2 However, there is nothing in the record suggesting
       that either UCB or Rosenberger ever requested the FDIC and the OCC to approve
       disbursement of the severance payments.
¶ 31       In urging reversal of the circuit court’s grant of summary judgment, Rosenberger asserts
       that the severance payment could be approved by the FDIC because he qualifies under the
       “white knight” exception in 12 C.F.R. § 359.4(a)(2) (2012). Accordingly, Rosenberger
       maintains that an impossibility defense is not available to UCB, as it could have secured
       regulatory approval to pay the severance payment under the employment agreement. He cites
       Hill v. Commerce Bancorp, Inc., No. 09-3685(RBK/JS), 2012 WL 694639 (D.N.J Mar. 1,
       2012), in support of his argument.
¶ 32       In Hill, a former executive sued for breach of his employment contract after his former
       employer, Commerce Bancorp, refused to pay his severance allowance. The bank moved for
       summary judgment arguing that it could not pay the executive’s severance package because
       such payment would constitute a golden parachute prohibited under the FDIA. It also argued
       that the severance package did not fall under any of the enumerated exceptions to the golden
       parachute regulations. Id. at *2. In denying the bank’s motion for summary judgment, the
       district court began its analysis by noting that both parties were “equally eligible to apply for
       the exception to the golden parachute restrictions, as long as they are able to certify to the
       [points in 12 C.F.R. § 359.4(a)(4)],” but that neither party submitted an application. Id. at *7.
       Although the court was “perplexed” by the executive’s refusal to even consider filing the
       application himself, the court nevertheless found a genuine issue of material fact as to whether
       it was objectively impossible for the bank to perform under the contract by seeking agency
       approval for the golden parachute payment. Id. at *10. The court reasoned that the bank failed
       to present any evidence demonstrating that it could not make the requisite certification under
       section 359.4(a)(4). Specifically, the bank presented no evidence demonstrating that it had a

           2
           The employment agreement did not obligate either Rosenberger or UCB to obtain the FDIC’s
       approval. That is, neither party expressly agreed that they would obtain the necessary government
       approval. Consequently, we cannot say that either party was solely responsible for satisfying the
       condition precedent and assumed the risk of failing to do so. This is not to say, however, that the parties
       had no obligation to seek the FDIC’s approval. Although the employment agreement did not require
       UCB to obtain the FDIC’s approval, we believe that UCB was still bound by the implied covenant of
       good faith and fair dealing to seek the required authorization. See Martinez v. Rocky Mountain Bank,
       540 Fed. App’x 846, 851 (10th Cir. 2013).

                                                       -9-
       reasonable basis to believe that the executive engaged in a disqualifying act that “ ‘has had or is
       likely to have a material adverse effect’ on [the bank].” Id. at *9 (quoting 12 C.F.R.
       § 359.4(a)(4)(i) (2012)). Thus, because “there remain[ed] a genuine question of material fact
       as to whether or not [the bank is] able to make the *** certification[s] [necessary to apply for
       an exception], [the bank] cannot be afforded summary judgment on their contractual
       impossibility defense.” Id. at *10.
¶ 33       Similarly, here, UCB presented no evidence demonstrating that it applied for an exception
       to make the severance payment. Nor has UCB pointed to any evidence showing that it could
       not make the necessary certification under section 359.4(a)(4). Indeed, McMahon testified in
       his deposition that he is not aware of any fraudulent acts or omissions committed by
       Rosenberger, and he denied that Rosenberger committed any breach of fiduciary duty, insider
       abuse, or violated any federal or state banking law or regulations. He also stated that
       Rosenberger was not responsible for UCB’s troubled condition. Thus, McMahon’s testimony,
       coupled with the fact that there is no evidence in the record that Rosenberger engaged in a
       disqualifying act that “has had or is likely to have a material adverse effect” on UCB (see 12
       C.F.R. § 359.4(a)(4)(i) (2012)), creates a genuine issue of material fact as to whether UCB
       could have sought and received agency approval for the severance payment to Rosenberger.
       See Hill, 2012 WL 694639, at *9; cf. Rohr v. Reliance Bank, 826 F.3d 1046, 1053 (8th Cir.
       2016) (summary judgment appropriate where employee failed to submit any evidence to rebut
       the bank’s evidence showing that it could not make the certification).
¶ 34       We conclude, therefore, that the circuit court erred in granting summary judgment in
       UCB’s favor on grounds that its performance under the employment agreement was rendered
       objectively impossible by operation of law.
¶ 35       Having found that UCB is not entitled to summary judgment on grounds of contractual
       impossibility, we next address UCB’s contention that, pursuant to the terms of the employment
       agreement, Rosenberger is not entitled to severance benefits since he was terminated for cause.
¶ 36       We begin by noting that the parties do not argue that the employment agreement is
       ambiguous. “Where the terms of an agreement are unambiguous, the parties’ intent must be
       determined solely from the language of the agreement itself, and it is presumed that the parties
       inserted each provision deliberately and for a purpose.” Jameson Realty Group v. Kostiner,
       351 Ill. App. 3d 416, 426 (2004). The terms of an agreement, if unambiguous, should generally
       be enforced as they appear, and those terms will control the rights of the parties. Batson v. The
       Oak Tree, Ltd., 2013 IL App (1st) 123071, ¶ 35.
¶ 37       In this case, the employment agreement permitted UCB to terminate Rosenberger’s
       employment for cause. Section 16 of the employment agreement defined “cause,” in pertinent
       part, as “the failure to follow the Company’s reasonable instructions with respect to the
       performance of the Employee’s duties.”
¶ 38       “Generally, the burden is on the employer to prove that the employee was guilty of conduct
       justifying termination.” Staton v. Amax Coal Co., 122 Ill. App. 3d 631 (1984). Moreover,
       whether an employee engaged in misconduct or disobeyed reasonable orders, is a question for
       the trier of fact to resolve. Mitchell v. Jewel Food Stores, 142 Ill. 2d 152, 165 (1990); Lukasik
       v. Riddell, Inc., 116 Ill. App. 3d 339, 346 (1983).
¶ 39       Here, UCB asserts that it terminated Rosenberger for cause based upon his failure to follow
       reasonable instructions. Specifically, it claims that the undisputed evidence shows that
       Rosenberger “disagreed with and rejected” the performance correction plan and failed to

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       follow the executive committee’s reasonable instructions to provide it with weekly progress
       reports.
¶ 40       Based upon our review of the record, we find that genuine issues of fact exist as to whether
       Rosenberger failed to follow the executive committee’s instructions, as set forth in the
       performance correction plan dated October 15, 2013, to provide it with weekly progress
       reports. The record contains evidence demonstrating that Rosenberger met with McMahon and
       Stinespring on October 21, 2013, to discuss the performance correction plan, and in a letter to
       the executive committee, dated October 30, 2013, he stated that he “will work with whomever
       the [executive committee] designates to develop an efficient format for the weekly reports.”
       Although Rosenberger expressed willingness to follow the executive committee’s instructions,
       his employment was terminated six days later on November 5, 2013. Based on this evidence,
       reasonable minds could differ as to whether Rosenberger failed to follow the executive
       committee’s instructions relating to weekly progress reports. We conclude, therefore, that a
       genuine issue of material fact exists as to whether Rosenberger’s conduct constituted cause for
       UCB to terminate his employment.
¶ 41       For the foregoing reasons, we conclude that the circuit court erred in granting summary
       judgment in UCB’s favor. We, therefore, reverse the circuit court’s judgment and remand for
       further proceedings. UCB’s cross-appeal is dismissed.

¶ 42      Reversed and remanded; cross-appeal dismissed.




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