The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant Omar Ahmad's ("Ahmad") motion for summary judgment. For the reasons stated below, we grant the motion for summary judgment.
Plaintiff Cingular Wireless LLC ("Cingular"), alleges that in 2001 it entered into a Reseller Agreement ("2001 Agreement") with PlatinumTel Communications, LLC ("PTC"). Under the terms of the 2001 Agreement, Cingular was allegedly obligated to provide PTC with mobile telephone services, which PTC would then re-sell to end users. In exchange, PTC allegedly promised to pay Cingular in accordance with a pay schedule in the 2001 Agreement. According to Cingular, on November 6, 2001, Ahmad, Chief Executive Officer of PTC, entered into a guaranty agreement ("Guaranty"), under which Ahmad personally guaranteed to Cingular prompt and full payment of any indebtedness owed to Cingular under the 2001 Agreement. In May 2003, Cingular allegedly entered into another Reseller Agreement ("2003 Agreement") with PTC, which Cingular contends was merely a renewal of the 2001 Agreement. Cingular claims that PTC failed to pay for services received and that PTC owes in excess of $4,500,000. Cingular brought the instant action solely against Ahmad, including in the complaint a breach of contract claim based upon an alleged breach of the Guaranty by Ahmad. Ahmad moves for summary judgment.
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).
Cingular argues that the 2003 Agreement is merely a renewal, or a modification, of the 2001 Agreement. According to Cingular, the Guaranty, which related to the 2001 Agreement, continued to apply to any debts PTC incurred under the 2003 Agreement. Ahmad argues that the 2003 Agreement was a new agreement and that he cannot be held personally liable since the Guaranty applied only to the 2001 Agreement. Under Illinois law, the parties can modify an existing contract as long as the parties "agree to alter a contractual provision or to include additional obligations, while leaving intact the overall nature and obligations of the original agreement." Schwinder v. Austin Bank of Chicago, 809 N.E.2d 180, 189 (Ill. App. Ct. 2004)(emphasis added); see also Thomas v. Garrett, 456 S.E.2d 573, 574-75 (Ga. 1995)(stating that "[i]t is clear, however, that the modification of a contract may be accomplished by a subsequent mutual agreement of all the parties thereto").
I. Terms of Agreements and Guaranty
Cingular argues that the terms of the 2001 Agreement, the 2003 Agreement, and the Guaranty show that the 2003 Agreement is a renewal or modification of the 2001 Agreement. Ahmad argues that the terms of the 2001 Agreement, 2003 Agreement, and Guaranty clearly indicate that the 2003 Agreement is an entirely separate and new agreement. Cingular points out that the Guaranty provides that the obligation of Ahmad under the Guaranty is "absolute, continuing and unlimited" and that Ahmad's obligations under the Guaranty are not diminished by "[a]ny renewal, extension, modification or rearrangement in connection with the" obligations under the 2001 Agreement. (C. Ex. H. Par. 2, 4(e)).
Ahmad points out, on the other hand, that the 2001 Agreement had a four year term. (R O SF Par. 15). The Guaranty provides that the guaranty of Ahmad is made in connection with "certain Authorized RESELLER Four Year Customer Sales Agreements. . . ." (R O SF Par. 14). Cingular admits, however, that the 2003 Agreement had a term of three years. ( R OSF Par. 21). The 2003 Agreement is thus not one of the "Four Year Customer Sales Agreements" contemplated in the Guaranty. (R O SF Par. 14). Cingular also concedes that the debt that is the subject of the instant action was not incurred during the term of the 2001 Agreement and was instead incurred during the term of the 2003 Agreement. (R OSF Par. 28).
Cingular also concedes that the Guaranty also provides that the term "Agreement" is to be used to reference the 2001 Agreement and that Ahmad guarantees indebtedness in "connection with RESELLER'S performance of the Agreement." (R OSF Par. 13). Thus, the Guaranty specifically ties itself solely to the 2001 Agreement and not to separate future agreements.
Another indication that the 2003 Agreement was not a renewal or modification of the 2001 Agreement is the fact that the 2001 Agreement contained a specific provision that provided a mechanism for renewal. (R OSF Par. 16). Thus, when entering into the 2001 Agreement the parties contemplated such a provision as the appropriate manner in which to renew the 2001 Agreement. ...