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10/27/89 Nick Athens, v. Patricia Prousis Et Al.

October 27, 1989

NICK ATHENS, PLAINTIFF-APPELLANT

v.

PATRICIA PROUSIS ET AL., DEFENDANTS-APPELLEES



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.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

546 N.E.2d 695, 190 Ill. App. 3d 349, 137 Ill. Dec. 750 1989.IL.1701

Appeal from the Circuit Court of Cook County; the Hon. John J. Crown, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE EGAN delivered the opinion of the court. McNAMARA and LaPORTA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN

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."

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 ...


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