IN THE CIRCUIT COURT OF COOK COUNTY , ILLINOIS

COUNTY DEPARTMENT, LAW DIVISION

CHRIST GIANAKOPOULOS and )

JEANNINE GIANAKOPOULOS, )

)

Plaintiffs, )

)

v. ) Case No. 07 L 1817

) Judge Winkler

THEODOROS GEORGIADES d/b/a )

NEW MILLENNIUM CONSTRUCTION, INC.; )

THEODOROS GEORGIADES d/b/a )

NEW MILLENNIUM REMODELING, INC.; )

NEW MILLENIUM REMODELING, INC.; and )

THEODOROS GEORGIADES, )

)

Defendants. )

PLAINTIFFS’ AMENDED REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

NOW COME the Plaintiffs, Christ Gianakopoulos and Jeannine Gianakopoulos (“Plaintiffs”), through their attorneys, the Law Offices of Burton A. Brown, and for their Amended Reply to the Response of Defendants THEODOROS GEORGIADES d/b/a NEW MILLENIUM CONSTRUCTION, INC., THEODOROS GEORGIADES d/b/a NEW MILLENNIUM REMODELING, INC.; NEW MILLENIUM REMODELING, INC.; and THEODOROS GEORGIADES (“Defendants”) to Plaintiffs’ Motion for Summary Judgment, state as follows:

ARGUMENT

I. Defendants Have Failed to Raise Any Issues of Material Fact, Entitling Plaintiffs to Summary Judgment on All Issues .

A. Defendants’ Response Improperly Makes Factual Allegations Without an Affidav it or Other Evidence in Support .

Defendants’ Response has failed to set forth a material issue of fact. Under Rule 191 and 735 ILCS 5/2-1005, factual allegations in opposition to summary judgment must be made via affidavit. An affidavit submitted in the summary judgment context serves as a substitute for testimony at trial; thus, there must be strict compliance with Rule 191(a) “to insure that trial judges are presented with valid evidentiary facts upon which to base a decision.” Robidoux v. Oliphant, 775 N.E.2d 987, 994 (Ill. 2002). Where a plaintiff that supplies well-alleged facts by testimony that are not contradicted by counter-affidavit, such allegations must be taken as true. Steiner Elec. Co. v. Nuline Techs., 847 N.E.2d 656, 661 (1st Dist. 2006).

Here, Defendants’ Affidavit fails to set forth any of “the facts upon which” Defendants rely. Sup. Ct. Rule 191(a). Similarly, Defendants’ Response makes factual claims, but fails to refer to an affidavit or any other evidence to support the factual allegations contained therein. Thus, Plaintiffs’ factual allegations must be taken as true. Accordingly, Plaintiffs must be awarded summary judgment as Defendants have not, and cannot, raise any issue of material fact that contravenes the overwhelming evidence that Defendants are liable for breach of contract.

B. Even Taken on their Merits, Defendants ’ Claims that they Were Not Allowed to “Address” the Damage are Irrelevant to Summary Judgment as they Fail to Raise an Issue of Material Fact .

Even assuming Defendants’ allegations are true, their Response still fails to raise any issue of material fact that would preclude summary judgment. Defendants repeatedly acknowledge that they were aware of the flaws in their work—but claim that Plaintiffs “discharged” them before they could fix the problem. Resp. at 4-9, 12-14, 18. Although the claim that Plaintiffs “discharged” Defendants is patently false, it is irrelevant for summary judgment purposes. This is because Illinois law is clear that once Defendants were in material breach of the contract, Plaintiffs were entitled to discharge them from the job.

Tellingly, Defendants do not cite a single case in support of their argument that they were not in breach due to not being allowed to stay on the job. To the contrary, “a party to a contract is discharged from his duty to perform where there is a material breach of the contract by the other party.” Dragon Const., Inc. v. Parkway Bank & Trust, 287 Ill. App. 3d. 29, 678 N.E.2d 55, 58 (1st Dist. 1997). Illinois courts have defined “material breach” as a “failure to do an important or substantial undertaking set forth in a contract.” Mayfair Const. Co. v. Waveland Assoc. Phase I P’ship, 249 Ill. App. 3d 188, 619 N.E.2d 144, 154 (1st Dist. 1993). In addition, “material” means “important” or “substantial.” Id. Whether a breach is “material” is a question to be decided on the inherent justice of the matter. Israel v. Nat’l Canada Corp., 276 Ill. App. 3d 454, 658 N.E.2d 1184, 1190 (1st Dist. 1995). The issue of materiality is a question of fact for the court to decide. Id. “Materiality” is decided based upon the facts of each case, but factors include a contractor’s repeated and persistent failure to supply skilled workers or proper materials (Robinhorne Const. Corp. v. Snyder, 113 Ill. App. 2d 288 (4th Dist. 1969)), and repeated disregard of ordinances, rules, and regulations (Phillips v. Green Street Corp., 143 Ind. App. 30, 237 N.E.2d 590 (1968)).

Under the legal definitions of “material” above, there can be no doubt that Defendants’ were in material breach of the contract. The factual allegations supporting the material breaches of the contract—fully supported by testimony—were detailed in Plaintiffs’ original motion and will not be repeated here. Suffice it to say that the extent and breadth of the construction defects—not to mention the numerous building code violations and failures to abide by the contract terms—are an extreme case of substandard work. Thus, Defendants were in “material” breach of the contract, entitling Plaintiffs to summary judgment

C . Defendants’ Claims that No Credits Were Contradict the Plain Terms of the Contract.

Defendants’ Response denies that credits were due to Plaintiffs in the amount of $8,000 Resp. at 3-4. Again, this claim is improperly made due to lack of affidavit or other evidence. Defendants claim that they built the addition with steel instead of wood as a means of providing the credit due to the inability to build the addition with Dryvit. Resp. at 4. Again, this allegation is unsupported. Plaintiffs testified that the brick would be used in lieu of Dryvit for an $8,000.00 credit (Pl. Mot. at 8), and that testimony has not been refuted by any evidence. As for the $8,500.00 due to Plaintiffs for self-purchases, Defendants claim that these self-purchase credits were to be given from the “holdback” at the end of the job. Resp. at 3-4. Defendants do not explain, however, why the contract does not state that the credits should be given from the holdback. They also do not explain why a $10,000.00 holdback would be placed in the contract if the parties had intended to credit $8,500.00 back to Plaintiffs anyway. In Illinois, the central tenet behind contract law is to honor the intent of the parties. Arrow Master, Inc. v. Unique Forming, Ltd., 12 F.3d 709, 713 (7th Cir. 1993) (under Illinois law, primary object is to give effect to the parties’ intentions). Here, the contract itself spelled out exactly which credits were due, and for what. See Contract at 2-4. Defendants may not graft on belated interpretations of the contract that serve their interests, especially where those terms contradict the contract itself.

II. Defendants’ Arguments About Georgiades’ Personal Liability Are Contradicted by their Own Exhibits Offered in Support .

Plaintiffs’ motion for summary judgment demonstrated that Georgiades is personally liable because the contract bears two illegitimate corporate names: “New Millennium Construction, Inc.” (dissolved in 2002) and “New Millennium Remodeling, Inc.” (never existed). Defendants claim that the “real” contract—attached to their brief—lists the company name as “New Millenium Remodeling, Inc.” (Response at 15) (emphasis added).[1] Defendants’ own exhibit does not—as they claim—say New Millenium Remodeling, Inc. (with one “n”). To the contrary, it says New Millennium Remodeling, Inc. (two “n”s). Furthermore, it bears the name of New Millennium Construction, Inc. on the top of the signature page. “New Millennium Remodeling, Inc.” is a non-existent company, while “New Millenium Remodeling, Inc.” exists and is in good standing. However, Defendants’ own exhibit contains the name of the non-existent company. Thus, even assuming Defendants’ contract is the “real” one (which it is not), there is no doubt that Georgiades signed the contract on behalf of New Millennium Construction, Inc. and New Millennium Remodeling, Inc.—which were dissolved and non-existent, respectively. Thus, there is simply no basis to claim that Georgiades is not personally liable.

Defendants also claim that Georgiades was under corporate protection because of a flyer bearing the name “New Millenium Remodeling, Inc.” However, the flyer—again, attached to Defendants’ own Response—shows that it spells Millenniuim with two “n”s, not one “n” as stated by Defendants in their Response. Defendants have made a transparent attempt to confuse and/or mislead the Court. In either case, their argument is demonstrably false, as shown by their own exhibits.

Defendants then try to blame the problem on the fact that Georgiades is not a native English speaker. They claim that Defendants simply made a “scrivener’s error” and did not “attempt to defraud.” Resp. at 19. First, personal liability on the contract does not require intent to defraud. Second, Defendants do not cite any authority for the proposition that non-native speakers are somehow exempted from personal liability. If the Legislature saw fit to provide such exemptions in the Business Corporation Act, they would have done so. Moreover, it is impossible to explain away the corporate names as a “scrivener’s error” when the Defendants used the same illegitimate names on every version of the contract, and even their own flyer.

In sum, Georgiades ent has not provided a shred of evidence—much less logical argument—why he should not be personally liable on the contract. Accordingly, Plaintiffs must be awarded summary judgment on the issue of personal liability as well.

Finally, Defendants further invent facts by claiming that they offered to complete the job for an “escrow” of “$35,000 to pay for costs only and no profit.” Response at 20. To the contrary, Defendants had attempted to bully Plaintiffs into settling the case for $67,500.00. See Letter dated 12/14/06, attached as Exhibit B. Interestingly, the letter stated it was on behalf of “New Millennium Remodeling, Inc.,” the name of the non-existent corporation listed on the contract.

In total, Plaintiffs sustained damages of $137,160.63[2] as a direct and proximate result of Defendants’ breach of the contract.

Conclusion

For the reasons stated above, there is no issue of material fact in the case at bar, and Plaintiffs are entitled to summary judgment on all issues.

Respectfully Submitted,

LAW OFFICES OF BURTON A. BROWN

____________________________

One of Plaintiffs’Attorneys

Burton A. Brown

Babak Bakhtiari

Law Offices of Burton A. Brown

205 W. Wacker Dr., Suite 922

Chicago, IL 60606

(312) 236-5582

Atty. No. 91197

1

[1] Defendants’ exhibit is not the contract they signed with Plaintiffs, which is attached hereto as Exhibit A (unscanned version, identical to contract attached to original motion). Interestingly, Defendants’ version of the “real” contract is missing several pages.

[2] Plaintiffs’ motion for summary judgment inadvertently described the cost of repairing roof damage as $15,125.00. Those invoices, attached as Exhibit C to the original motion, actually show a repair cost of $28,597.74, as verified by the Affidavit of Chris Gianakopoulos filed in support of the motion.