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06/20/88 Andy Nanos, v. Andy Nanos

June 20, 1988




525 N.E.2d 1133, 171 Ill. App. 3d 1005, 121 Ill. Dec. 826 1988.IL.973

Appeal from the Circuit Court of Cook County; the Hon. David Cerda, Judge, presiding.


JUSTICE QUINLAN delivered the opinion of the court. O'CONNOR and MANNING, JJ., concur.


The defendant, Andy Nanos, appeals from the circuit court order which granted the plaintiff, Ilias Alimissis, summary judgment in his suit for breach of contract and, thereafter, denied the defendant's motion to reconsider that order.

The contract which it was alleged Andy Nanos (Nanos) had breached was executed on September 10, 1985. In that document, Ilias Alimissis (Alimissis) had agreed to loan Nanos 17,000 shares of Electronic Missile Communication stock for six months and Nanos agreed to return the stock on February 10, 1986, "so that the said Alimissis would be constituted whole and not suffer any losses." The contract further stated that Nanos had pledged these shares as collateral on a personal loan. On March 19, 1986, Alimissis filed an action for breach of contract in the circuit court of Cook County after Nanos failed to return the stock as promised. Nanos was served with the summons and complaint through substitute service on his wife on April 2, 1986. On May 13, 1986, after the defendant failed to respond, the trial court entered a default judgment against Nanos based on the motion and supporting affidavit of the plaintiff. On May 27, 1986, the trial court held a proveup hearing, heard testimony, and entered a judgment order against Nanos in the amount of $187,000 plus the cost of the litigation.

Nanos filed an appearance through his first set of attorneys on June 17, 1986, and moved to vacate the default judgment. The court granted the motion over the plaintiff's written objection on July 14, 1986, and allowed the defendant 20 days in which to file his answer to the complaint. On August 4, 1986, the defendant filed his answer. The next day, the plaintiff served the defendant with a request to admit certain facts and a request for admission of the genuineness of the contract document. On October 8, 1986, the plaintiff filed a motion for summary judgment and included as supporting documents the unanswered requests, a notice of deposition, a copy of the contract, and a copy of the published market quotation for Electronic Missile Communication stock from September 9, 1985.

Defendant's first set of attorneys were permitted to withdraw from the case on October 26, 1986, and the hearing for the plaintiff's summary judgment motion was continued to December 1, 1986, to give defendant the opportunity to obtain substitute counsel. The defendant failed to appear at the December 1 hearing and did not otherwise contest the motion, and on December 5, 1986, the motion was granted. On January 2, 1987, Nanos' second set of attorneys filed their appearance and filed a motion for reconsideration of the order granting the plaintiff summary judgment. The defendant failed to appear to argue his motion for reconsideration. This motion was then stricken on January 27, 1987. The defendant filed a second motion for reconsideration which the record reflects was denied on February 26, 1987, after the trial court had heard the arguments of both parties. The record does not include transcripts of the hearings held on May 27, 1986, December 5, 1986, January 27, 1987, and February 26, 1987.

The defendant filed a notice of appeal on March 25, 1987, seeking to vacate the orders of December 5, 1986, and January 27, 1987. The defendant then failed to file his appellant's brief within the statutory time. On July 16, 1987, this court granted the defendant's appellate attorneys' motion to withdraw. On August 6, 1987, the plaintiff filed a motion to dismiss this appeal for want of prosecution, and, on August 14, 1987, a third set of attorneys filed an appearance for the defendant and objections to the motion to dismiss. This court then denied the plaintiff's motion to dismiss.

In his appeal, defendant Nanos argues that the underlying complaint failed to state a cause of action and that, in any event, summary judgment was improper because genuine issues of material fact exist concerning the contract. The factual issues which Nanos contends exist to defeat a summary judgment motion include the intent of the parties regarding the conduct that constitutes a material breach, what remedy would be available in the event of a breach, and what would be the proper measure of damages. Consequently, Nanos contends that despite the alleged legal insufficiency of the complaint, this court must vacate the trial court order granting summary judgment to the plaintiff and remand the cause for a trial on the merits.

On the other hand, the plaintiff argues that the trial court properly granted summary judgment on his complaint. The plaintiff contends that no material issue of fact was created when Nanos denied without particularity every allegation of the complaint in his answer. Alimissis notes that the defendant's motion to vacate the default judgment alleged fraudulent inducement as his only defense and that this issue was resolved against the defendant when Nanos failed to respond within 28 days to plaintiff's request to admit the genuineness of the document. The plaintiff argues that, contrary to the defendant's contention that the requests to admit were irrelevant and not part of the motion for summary judgment, in fact, the requests to admit were raised on the face of his motion, and further, in the absence of a transcript, which was the responsibility of the defendant-appellant to provide, this court must presume that the trial court properly applied the law to the facts.

The defendant argues that his case is legally in the same posture as was the case of Orthopedic & Reconstructive Surgery v. Kezelis (1986), 146 Ill. App. 3d 227, 496 N.E.2d 1112, where the court vacated the summary judgment order. The court vacated the summary judgment in Kezelis because the complaint failed to state a cause of action and, thus, was within the narrow exception to section 2-612(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-612(c)), which provides that all defects in pleadings not raised in the trial court are deemed waived. The plaintiff there, Orthopedic & Reconstructive Surgery, had attempted to sue Kezelis on a contract between Kezelis and Rush-Presbyterian St. Luke's Hospital. The Kezelis court held that where the pleadings failed to state any cause of action, a judgment in favor of the plaintiff must be vacated even though the defects in the pleadings are raised for the first time on appeal. (See Oberman v. Byrne (1983), 112 Ill. App. 3d 155, 159, 445 N.E.2d 374, 377.) The defendant Nanos contends that the plaintiff here also failed to state a cognizable cause of action and, therefore, this court may examine the sufficiency of the complaint for the first time on review. The defendant then argues that since the complaint and attached affidavit, when read together, did not state a cause of action, that the summary judgment order is void and this court should vacate the judgment in favor of Alimissis. However, this case and the Kezelis case are dissimilar.

In this case, unlike Kezelis, the type of defect complained of is a technical pleading defect and not, as in Kezelis, a jurisdictional defect. Whereas a question of whether a complaint absolutely fails to state or indicate any ground of liability can be raised at any time, defects in a complaint containing an incomplete or otherwise insufficient statement of a good cause of action may be waived. (Wagner v. Kepler (1951), 411 Ill. 368, 371, 104 N.E.2d 231, 233.) Accordingly, we find that defendant Nanos has waived all objections to the sufficiency of the complaint. See Bain v. Financial Security Life Insurance Co. (1977), 53 Ill. App. 3d 702, 707, 368 N.E.2d 1023, 1027.

Additionally, the record establishes that Nanos never responded to the requests to admit and, thus, the genuineness of the document, also, cannot now be contested on appeal. (See Banks v. United Insurance Co. (1975), 28 Ill. App. 3d 60, 63, 328 N.E.2d 167, 170.) In reviewing the record at the time summary judgment was granted, it appears that the agreement was unambiguous on its face and no inquiry into the intent of the parties was necessary. (Spircoff v. Spircoff (1979), 74 Ill. App. 3d 119, 127, 392 N.E.2d 363, 369.) Further, the requests to admit resolved any factual issues in the plaintiff's favor and made the case amenable to summary judgment. (See ...

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