APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE SHELDON GARDNER JUDGE PRESIDING. No. 96 L 4043 (consolidated with No. 96 L 4927)
The opinion of the court was delivered by: Justice Hall delivered the opinion of the court:
Plaintiff, American National Bank & Trust Co. of Chicago, brought this action to recover on a guaranty executed by defendant, John M. Mack, of the obligations of the law firm of Holstein Mack & Klein. The parties filed cross motions for summary judgment. Defendant also filed motions to strike various affidavits filed by plaintiff in support of its motion for summary judgment. On November 9, 1998, the trial court entered an order granting summary judgment in favor of defendant and denying defendant's motions to strike the affidavits. The November 9, 1998, order resolved all of the claims as to all of the parties in the case known as American National Bank & Trust Co. v. John M. Mack, No. 96L4034, but did not resolve all the claims in the consolidated case known as American National Bank & Trust Co. v. Holstein Mack & Klein, et al., No. 96L4927. However, the trial court's November 9, 1998, order stated that pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), there was no just reason to delay either enforcement or appeal. Plaintiff filed a timely notice of appeal on December 4, 1998. Defendant filed a timely notice of cross-appeal on December 10, 1998.
Between 1989 and 1995, plaintiff loaned the law firm of Holstein Mack & Klein (HMK) in excess of $1,700,000. HMK has ceased operating, is a debtor in a Chapter 7 bankruptcy case, and has defaulted on its obligations to plaintiff.
In 1989 defendant was a name partner at HMK. On December 5, 1989, in connection with a $600,000 line of credit, defendant executed a continuing Guaranty for the obligations of HMK to plaintiff. (Hereinafter "the Guaranty") The Guaranty was limited to recovery of $600,000 plus interest on all loans and certain expenses. The Guaranty gave defendant the right to discontinue by giving due notice to plaintiff. Notice of discontinuance limited the obligations subject to the Guaranty to those obligations outstanding at the time of the notice.
On July 14, 1994, defendant gave plaintiff written notice that he was no longer a partner at HMK and that he was discontinuing his Guaranty.
After defendant left the firm, plaintiff continued its relationship with HMK. Plaintiff continued to extend credit to HMK and renewed HMK's notes as they matured. In June 1994, plaintiff restructured HMK's loans. The line of credit was reduced from $600,000 to $100,000 and HMK was given two term loans in the total amount of $1,675,000. As part of this restructuring, plaintiff sought and received new guaranties and updated financial statements from the HMK partners. Defendant did not sign any new promissory notes, did not sign any new guaranty, and did not submit updated financial statements to plaintiff. In 1995, HMK's loans were again restructured and the notes from which this case arose were issued. Prior to approving these notes, plaintiff again sought and received new guaranties from the HMK partners. Defendant did not sign a new guaranty in 1995.
After HMK defaulted on its obligations to plaintiff, plaintiff sued defendant on his 1989 Guaranty. Plaintiff also filed a separate action against the other HMK guarantors. The two cases were consolidated. Plaintiff moved for summary judgment. Plaintiff's motion relied on two affidavits from bank officer, Michael Hayes. The Hayes I affidavit was filed in connection with plaintiff's motion for summary judgment against the other HMK guarantors and stated that HMK was in default on four notes totaling $1,700,000, all of which were executed by HMK on or after May 31, 1995.
The Hayes II affidavit, filed in connection with the summary judgment motion against defendant, stated that HMK's debt as of July 14, 1994, exceeded $600,000 and that the total amount due from HMK on all of its obligations never went below $600,000. Defendant moved to strike the Hayes II affidavit on the grounds that it was conclusory and not supported by bank records.
Plaintiff then filed three affidavits from another bank officer, Brenda Pawlak. Pawlak I, dated February 24, 1998, stated that it was based on a personal review of the bank records and that on July 14, 1994, HMK owed plaintiff $951,534. It also stated that HMK's total debt never dipped below $600,000. Attached to Pawlak I as exhibits were illegible bank records. Defendant moved to strike Pawlak I.
In response, plaintiff filed a supplemental Pawlak affidavit (Pawlak II), dated March 31, 1998. Pawlak II provided legible exhibits and reaffirmed that on July 14, 1994, HMK's total debt to plaintiff was $951,534. Pawlak II, like Pawlak I and Hayes II, stated that HMK's total debt to plaintiff never dipped below $600,000.
Plaintiff's records indicate that a total of $2,594,924.20 *fn1 in payments was received from HMK after July 14, 1994. $2,099,048.23 of these payments were allocated to principal. On July 21, 1998, defendant filed a cross-motion for summary judgment, arguing that his Guaranty was discharged by payment because HMK's post-July 14, 1994, payments on its debts exceeded the total amount owed to plaintiff on 7/14/94. Defendant also argued that the evidence of the restructuring of the HMK debt constituted a novation, entitling defendant to be discharged from his Guaranty.
After the cross-motions were fully briefed, argued, and taken under advisement, plaintiff brought a motion to correct an error in the Pawlak II affidavit. Pawlak III stated that HMK's total debt on July 14, 1994, was $1,740,002, not $951,534 as previously stated in Pawlak I and II. Pawlak III explained that the $951,534 amount was computed before all the records were assembled. Pawlak III also stated that all of the relevant records were attached to Pawlak I and Pawlak II. Defendant objected and moved to strike Pawlak III.
On November 6, 1998, the circuit court entered an order granting defendant's motion for summary judgment, denying plaintiff's motion for summary judgment, denying defendant's motions to strike the Hayes II and Pawlak I affidavits, and granting plaintiff leave to file the Pawlak III affidavit. Plaintiff now appeals from the portion of the order granting defendant's motion for summary judgment. Defendant cross-appeals from ...