Athens v. Prousis

• Decision Date: 27 October 1989
• Docket Number: No. 1-88-0555,1-88-0555
• Citation: 546 N.E.2d 695,190 Ill.App.3d 349
• Parties: , 137 Ill.Dec. 750 Nick ATHENS, Plaintiff-Appellant, v. Patricia PROUSIS and Prousis Pharmacy, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 695

546 N.E.2d 695

190 Ill.App.3d 349, 137 Ill.Dec. 750

Nick ATHENS, Plaintiff-Appellant, v. Patricia PROUSIS and Prousis Pharmacy, Defendants-Appellees.

No. 1-88-0555.

Appellate Court of Illinois First District, Sixth Division.

Oct. 27, 1989.

Rehearing Denied Nov. 27, 1989.

Nick Athens, Evanston, pro se.

Danae K. Prousis, Chicago, for defendants-appellees.

Presiding Justice EGAN delivered the opinion of the court:

The plaintiff, Nick Athens, brought an action to recover payment from the defendant, Patricia Prousis, for work performed under a written construction contract and for "extras" allegedly provided in addition to, and separate from, the performance covered by the written contract. The defendant denied that the plaintiff completely performed under the contract and further asserted that full payment had been made. The judge ruled in favor of the defendant at the close of the plaintiff's case. The plaintiff appeared pro se, as he does in this court.

In March 1971 the defendant, Patricia Prousis, who owned and operated a pharmacy at 30 West Washington, Chicago, Illinois, signed a lease for commercial space at 875 North Michigan Avenue, Chicago, Illinois (John Hancock Building). The defendant planned to relocate her business in the newly leased space. In February 1971 the defendant had orally agreed with the plaintiff, an architect and contractor, that he would provide the labor and materials necessary to construct the new pharmacy. He was to complete all the work by June 1, 1971, for $6,000.

The work was not completed by June 1, 1971. At the plaintiff's suggestion the parties entered into a written construction contract prepared by the defendant's attorney.

The contract, dated September 11, 1971, provided that the plaintiff agreed to "complete all construction" of a pharmacy at 875 North Michigan Avenue for the "fixed sum of $9,800." The contract set forth eight specific tasks to be included in the agreement: (1) tiling of floors; (2) shelving; (3) clock on east wall; (4) display at column; (5) chair attached to curved counter; (6) painting, except for removable ceiling panels; (7) labor needed for dismantling of shelves and adapting them to new store; and (8) formica tops for counter. The contract also provided that payments made to suppliers and subcontractors were deductible and that $2,894.27 already had been paid on the contract. Finally, the contract stated that "[a]dditional payments shall be as required to complete work, and at least 75% of [the plaintiff's] time and expenses shall be paid by completion of the work, and 100% within 90 days of completion...."

Before passing on the merits of the case we must first address the defendant's motion to strike the reply brief. The reply brief is in clear violation of Supreme Court Rule 341(e)(7). (107 Ill.2d R. 341(e)(7).) It consists almost entirely of matters outside the record and unjustified slurs against the defendant's attorney. It does not assist us in any way in resolving the issues. The motion to strike is allowed.

Turning to the merits of the appeal, we are obliged to note that this case presents an involved and confusing record and that unusual procedures were followed. The plaintiff filed his original complaint on September 10, 1981, alleging the performance of construction work of $15,000 in excess of payment. After the defendant filed a motion to dismiss, the plaintiff filed an amended complaint on April 2, 1982, which included a detailed list of "additional items of construction" and alleged that he had "supplied labor and materials for the changes made by the parties to the agreement [in the amount of] $13,300." A copy of the contract was attached to that complaint as "Exhibit A."

On July 22, 1982, the defendant filed an answer to the amended complaint and a counterclaim. A motion to strike and dismiss the defendant's second affirmative defense and her counterclaim apparently was filed on September 1, 1983, by the plaintiff's attorney, who had not yet entered his appearance. Apparently this motion, which does not appear in the record, was never ruled upon.

An attorney, Derek Gilna, appeared for the plaintiff on September 8, 1983, and filed another amended complaint. This "Amended Complaint" set forth two counts: Count I sought foreclosure of a lien filed September 7, 1983, and Count II sought payment for "goods and services described in Exhibit 'A'." Exhibit A was the September 11, 1981, contract. Again the defendant moved to dismiss, and the plaintiff, by his attorney, filed a "Second Amended Complaint" (actually the fourth complaint filed) on November 18, 1983.

On September 18, 1984, Gilna withdrew as the plaintiff's attorney at the plaintiff's request. The plaintiff proceeded thereafter pro se.

In response to the fourth complaint, on December 13, 1983, the defendant filed a motion to dismiss, alleging that the plaintiff's lien foreclosure claim failed to comply with the requirements of the Illinois Mechanics' Liens Act (Ill.Rev.Stat.1981, ch. 82) in that the complaint failed to include an affidavit and was not timely filed. On July 23, 1984, Judge Loren C. Lewis dismissed Count I, the lien foreclosure claim of the plaintiff's Second Amended Complaint, as time-barred. An order dated August 7, 1986, set a trial date of November 7, 1986, describing the trial date as "final as to both parties and all claims."

On November 5, 1986, Judge John Laurie entered an order (1) granting the defendant's motion for leave to file an answer and affirmative defenses instanter; (2) entering the defendant's motions to dismiss and for summary judgment; (3) granting the plaintiff's motion for leave to file an amended complaint within seven days; and (4) deferring other matters raised by the plaintiff to a hearing set for December 3, 1986.

On November 5, 1986, the defendant filed her "Answer to Count II of Second Amended Complaint and Affirmative Defenses." The answer admitted that the plaintiff provided a portion of the construction services for the pharmacy, but otherwise denied the plaintiff's allegations and stood on the provisions of the September 11, 1971, contract. The affirmative defenses alleged full payment and laches.

Also on November 5, 1986, the defendant filed a motion for summary judgment on Count II of the Second Amended Complaint. The defendant supported her motion with an affidavit stating that she had paid the plaintiff or suppliers and subcontractors $7,638.66 since the date of the contract, which combined with the amount of $2,894.27 prepaid on the contract, was more than enough to satisfy the $9,800 contract price. The defendant also attached copies of her cancelled checks and check register to support her claims. Although no notice of this motion appears in the record, the motion was entered by Judge Laurie's order of November 5, 1986, and set for hearing on December 3, 1986. No hearing was held on December 3, because the case was transferred to the Law Division on the defendant's motion.

On November 12, 1986, pursuant to Judge Laurie's order of November 5, 1986, the plaintiff filed a five-count "Amended and Supplemental Complaint." Count I alleged a breach of contract, setting forth a detailed list of alleged extras provided by the plaintiff; it referred to the September 11, 1971, contract attached as exhibit A, and sought $18,305. Count II alleged fraud and sought damages of $44,500. Count III was a quantum meruit claim, seeking in excess of $44,500. In Count IV, the plaintiff sought to recover $3,600 as an additional architectural fee for detailed drawings and supervision of construction. In Count V, the plaintiff alleged that the defendant "maliciously, willfully, and wantonly denied the plaintiff the right to photograph his work" and sought $10,000 plus punitive damages and costs.

On December 4, 1986, the defendant filed in the Law Division a motion to vacate the portion of Judge Laurie's November 5, 1986, order that granted the plaintiff leave to file an amended complaint.

On October 13, 1987, Judge P.A. Sorrentino set the case for the final trial call on January 12, 1988. On January 12, 1988, Judge Lester Foreman assigned the cause to Judge John J. Crown for trial. Judge Crown denied the defendant's motion for a one-week continuance and set the case for trial the following day. When the plaintiff realized that the defendant was not going to appear personally at trial, he orally moved for change of venue for prejudice; Judge Crown denied the motion.

The defendant presented Judge Crown with the motion filed on December 4, 1986, to vacate Judge Laurie's order of November 5, 1986, which had granted the plaintiff leave to file an amended complaint. The defendant's attorney indicated that the motion had not been argued in the intervening 13 months "because this case has been sort of in a state of flux." The motion to vacate Judge Laurie's order was based on allegations concerning pleadings, some of which do not appear in the record or are not properly authenticated. Suffice it to say that the defendant claimed that Judge Laurie abused his discretion in permitting the plaintiff to amend his pleading since another judge had previously denied the plaintiff leave to amend.

Judge Crown allowed the motion to vacate Judge Laurie's order and determined that the case should proceed to trial on Count II of the plaintiff's preceding complaint, entitled "Second Amended Complaint," which was filed on November 3, 1983.

The defendant then raised her motion for summary judgment which was filed November 5, 1986. The court took the motion for summary judgment under advisement.

At the ensuing trial the plaintiff offered the testimony of an expert witness, James Swann, an architect who once visited the defendant's pharmacy for 20 to 30 minutes in 1981...