Opinion
3-11-0864 3-12-0064
03-25-2013
In re ESTATE OF WALTER VINCKUS, Deceased (Gidgett Callaghan, Plaintiff-Appellee, v. Tammy Lynn Vinckus, Defendant-Appellant). In re ESTATE OF WALTER VINCKUS, Deceased (Tammy Lynn Vinckus, Appellant, v. First Midwest Bank, Appellee, and Rosalie Conzachi, Defendant).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of the 12th Judicial Circuit,
Will County, Illinois,
Appeal No. 3-11-0864
Circuit Nos. 08-CH-3685
08-P-293
Honorable Richard J. Siegel,
Judge, Presiding.
Appeal from the Circuit Court
of the 12th Judicial Circuit,
Will County, Illinois,
Appeal No. 3-12-0064
Circuit Nos. 08-CH-3685
08-P-293
Honorable Richard J. Siegel,
Judge, Presiding.
JUSTICE SCHMIDT delivered the judgment of the court.
Presiding Justice Wright and Justice Holdridge concurred in the judgment.
ORDER
¶ 1 Held: The trial court properly granted summary judgment in favor of plaintiff where no genuine issue of material fact existed as to existence of oral contract to make a will and plaintiff's reliance on the same. Affirmed. ¶ 2 Following the decedent's, Walter Vinckus, death in March of 2008, his daughter and plaintiff, Gidgett Callaghan, filed suit against his estate and defendant, Tammy Vinckus, as executor. ¶ 3 Plaintiff alleged, among other things, breach of oral contract to make a will. Plaintiff moved for summary judgment on the basis of the deposition testimony of two disinterested witnesses, who testified to the existence of the oral contract. Defendant moved for cross-summary judgment, alleging that the testimony of plaintiff's disinterested witnesses was inadmissible hearsay. The trial court granted plaintiff's motion for summary judgment and denied defendant's cross-motion. ¶ 4 Defendant appeals, claiming the trial court erred in granting plaintiff's motion for summary judgment.
¶ 5 BACKGROUND
¶ 6 On March 31, 2008, Walter Vinckus passed away, leaving an estate worth an estimated $9 million. The plaintiff, Gidgett Callaghan filed suit against her father's estate and the defendant, Tammy Vinckus, as executor. Plaintiff's complaint contains causes of action for breach of contract and constructive trust. Specifically, as to the breach of contract claim, plaintiff alleges breach of contract to make a will, insofar as she was entitled to one-half of her father's estate upon his death. ¶ 7 Plaintiff was working as file clerk for American Pharmaceutical Services in 1992. She had moved out of the family home in Romeoville, Illinois, and subsequently married Paul Callaghan. Paul was self-employed and, from time to time, would work for his father-in-law, Walter. In 1994, the Callaghans moved back into Walter and Beverly Vinckus's home with the intention of purchasing their own home the following year. However, in April of 1995, Beverly Vinckus was diagnosed with liver cancer. ¶ 8 According to plaintiff, in May of 1996, Walter approached her and Paul with the following offer: "that if her and her husband quit their jobs to care for her mother and help with the businesses, he would give her half of his assets upon his death." Plaintiff claims that in reliance on this promise from her father, she and Paul quit their jobs. Plaintiff stayed home to care for Beverly, while Paul worked with Walter in his many businesses. Five months later, Beverly Vinkcus passed away. Shortly after her mother's death, plaintiff had a falling out with her father over his relationship with another woman. Walter moved his mistress (with whom he apparently had a relationship prior to his wife's death) into the family home shortly after Beverly died. The plaintiff and her husband moved out of the family home; plaintiff and Walter were estranged for the remainder of his life. ¶ 9 In his last will and testament executed in September of 2006, Walter bequeathed to his sister, Rosalie Conzachi, a life estate interest in one-half of the net profits of one of his businesses. The rest, residue and remainder was given to defendant. Walter specifically cut plaintiff out of the will, stating:
"I hereby acknowledge that I have amply provided for my daughter, Gidgett Ann Vinckus Callaghan, during her lifetime and hereby make no provision for her under this Last Will and Testament."¶ 10 In support of her claims, plaintiff called upon two disinterested witnesses to testify to the exact terms of the oral contract to make a will. The first was Walter's sister, Juanita Acantilado. Acantilado testified that Walter had promised to give plaintiff "half of everything" if she and her husband Paul "quit their jobs to care for Beverly and help run the family business." She further testified that the terms of the contract were repeated at different times in her presence. ¶ 11 Charlotte Zagajowski, Walter's sister-in-law, testified that she had heard Walter state that he "promised to give Gidgett half of everything if she and Paul quit their jobs to care for Beverly and help run the family business." Charlotte went on to explain that Walter had stated this many times. ¶ 12 Five other witnesses testified on the plaintiff's behalf regarding her performance of the contract. These witnesses included Acantilado and Zagajowski, as well as Walter's brother Anton Zagajowski, Walter's other sister Rosalie Conzachi, and Janet Richards, a 26-year employee of one of Walter's businesses. Their testimony was substantially the same, insofar as they all testified that Paul and plaintiff quit their jobs, plaintiff took care of Beverly and some administrative tasks of the businesses, and that Paul assisted in running the family businesses. They further testified as to Walter's promise that he would "take care of them" and plaintiff would receive "half of everything." ¶ 13 Based on this testimony, plaintiff moved for summary judgment. The defendant responded and filed a cross-motion for summary judgment, claiming that the testimony of the plaintiff's two disinterested witnesses constituted hearsay for which there is no exception, and that the oral contract, if one existed, was subject to the statute of frauds. ¶ 14 The trial court issued a written disposition that included both findings of fact and findings of law. The trial court found that there had, in fact, been an oral agreement between decedent and plaintiff. The court further found that plaintiff had left her employment and remained in the family home to care for her dying mother and assist in running the family businesses. As a matter of law, the court found plaintiff's actions were more than just a parent-child affinity, that the decedent's statements to his sister and sister-in-law were declarations against interest and, therefore, an exception to the hearsay rule, and that decedent's promise to leave plaintiff "half of everything" was sufficiently definite and certain as to the property subject to pass pursuant to the will. ¶ 15 This timely appeal followed.
¶ 16 ANALYSIS
¶ 17 I. Standard of Review
¶ 18 Summary judgment is proper only where "the pleadings, depositions, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Internal quotation marks omitted.) Adames v. Sheahan, 233 Ill. 2d 276, 295 (2009) (quoting 735 ILCS 5/2-1005(c) (West 2012)). "[T]his court must ascertain whether the trial court properly concluded there were no genuine issues of material fact and if there were none, whether judgment for the movant was correct as a matter of law." Constitutional Casualty Co. v. Soder, 281 Ill. App. 3d 657, 660 (1996). ¶ 19 "While the movant always has the burden of persuasion on a motion for summary judgment, the burden of production can shift to the nonmovant." Helfers-Beitz v. Degelman, 406 Ill. App. 3d 264, 267 (2010) (citing Pecora v. County of Cook, 323 Ill. App. 3d 917, 933 (2001)). Once this burden has shifted, the nonmovant cannot rest on its pleadings to raise genuine issues of material fact. See Kleiss v. Bozdech, 349 Ill. App. 3d 336, 350 (2004). To withstand a motion for summary judgment, "the nonmoving party need not prove his case at this preliminary stage but must present some factual basis that would support his claim." Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001). If the respondent fails to produce any such evidence, summary judgment is properly granted. See Kimbrough v. Jewel Companies, Inc., 92 Ill. App. 3d 813, 819 (1981). We review a circuit court's decision on a motion for summary judgment de novo. First Chicago Insurance Co. v. Molda, 408 Ill. App. 3d 839, 845 (2011).
¶ 20 II. Oral Contract to Make a Will
¶ 21 Defendant attacks the trial court's grant of summary judgment on two fronts. First, as noted above, that the terms of the contract lacked the necessary specificity to be enforceable; second, whether plaintiff rebutted the presumption that her services were rendered gratuitously by virtue of the familial relationship is a question of material fact that could not be decided at the summary judgment stage. ¶ 22 a. Evidence of Existence of the Contract and Sufficiently Definite Terms ¶ 23 A contract to make a will supported by valid and adequate consideration is enforceable in a court of equity. See Burke v. Burke, 12 Ill. 2d 483 (1958). A contract "is sufficiently definite and certain to be enforceable if the court is enabled from the terms and provisions thereof *** to ascertain what the parties have agreed to do." (Internal quotation marks omitted.) Pritchett v. Asbestos Claims Management Corp., 332 Ill. App. 3d 890, 896 (2002). However, in a suit for specific performance of a contract to make a will, the evidence of the existence of the contract and its terms must be clear and explicit and "so convincing that it will leave no doubt in the mind of the court." (Internal quotation marks omitted.) In re Estate of Spaulding, 187 Ill. App. 3d 1031, 1036 (1989) (quoting Greenwood v. Commercial National Bank of Peoria, 7 Ill. 2d 436, 440 (1955)). Where there is no factual dispute, the question of whether a contract between the parties exists presents a question of law that is reviewed de novo. Wolf v. Auxxi & Associates, Inc., 2011 IL App (2d) 110727, ¶ 12. ¶ 24 We find In re Niehaus Estate, 341 Ill. App. 454 (1950), instructive. In Niehaus, the terms of an oral contract to make a will were discussed where the claimant alleged a "promise of deceased to make a will in her favor, leaving her his entire estate, on [the] condition she would continue to remain in his home, after the death of his wife in 1930, and care for him, etc." Id. at 456. As in this case, the claimant presented the testimony of many witnesses to support her claim, while the defendants presented nothing. Id. Based upon this testimony and the fact that claimant's full and complete performance was uncontradicted, this court found that the evidence in the case was sufficient to justify the trial court's finding that the essential terms of the contract were clearly established. Id. at 459. ¶ 25 In the case at bar, the record supports all of the elements for a valid oral contract. We recognize that the decision in Niehaus followed a bench trial, and that the trial court had an opportunity to determine the credibility of each of the claimant's witnesses. Yet, in upholding the trial court's decision, this court found that claimant's reliance on the promise and full performance of the contract were not contradicted. Here, uncontradicted evidence establishes that Walter Vinckus told his daughter if she and her husband quit their jobs to stay home and help care for her ailing mother and assist with the family businesses, he would give them "half of everything." These terms are sufficiently definite to ascertain what each party agreed to do. This evidence was further bolstered by the uncontroverted, unrebutted testimony of plaintiff's two disinterested witnesses. Indeed, the defendant failed to offer any evidence whatsoever to call into question the creation of the oral contract, nor did she present any testimony or affidavits that would give rise to a genuine issue of material fact that the contract existed, or that plaintiff acted in reliance on it. We note that defendant never actually argues that Walter did not make this promise to plaintiff; she only asserts that its terms were not definite enough to be enforceable. ¶ 26 Accordingly, we find that the trial court was correct in finding, as a matter of law, that the terms of the agreement between Walter and plaintiff were sufficiently definite and certain to constitute a valid and enforceable oral contract to make a will. ¶ 27 b. Finding That Plaintiff's Actions Were Not Attributable to Parent-Child Affinity ¶ 28 Defendant cites to In re Estate of Spaulding, supra, both in support of her proposition that plaintiff failed to provide sufficient proof as to the existence of a contract to make a will in her favor, and that the trial court erred in finding that plaintiff's actions were not attributable to mere parent-child affinity. In Spaulding, the testator's former co-habitant brought an action against testator's estate seeking specific performance of an oral contract to make a will. Id. at 1031. The plaintiff alleged that she "formed and maintained a bond of mutual love and affection" with Spaulding, and that he promised to marry her, prompting her to leave her home and move in to Spaulding's home in Chicago. (Internal quotation marks omitted.) Id. at 1032-33. In addition, plaintiff stated that she was his companion, sharing with him the privileges of the home, giving aid, comfort, and sharing in expenses. Id. at 1033. She asserted that in consideration for the maintenance and continuation of their relationship, he orally agreed on numerous occasions to leave plaintiff his entire estate with the exception of one ring. Id. Plaintiff further stated that in reliance on his promise to make a will, she maintained and continued the wedding and made arrangements for their wedding. Finally, plaintiff stated that in an attempt to fulfill these promises, Spaulding drafted and signed a document that was purportedly his will. Id. Defendants moved for summary judgment, which the plaintiff resisted by presenting her own deposition testimony and affidavit, along with the affidavits of nine other individuals who attested to Spaulding's promise to make a will in plaintiff's favor for the services she had provided him. Id. at 1034. The trial court granted defendant's motion, and plaintiff appealed. ¶ 29 This court, in upholding the trial court's grant of summary judgment, found that plaintiff had failed to present sufficient proof of the existence of a contract to make a will in her favor. Id. at 1037. Specifically, that there was no evidence that the household chores, the expenses, or the "love" and "affection" returned by plaintiff were in exchange for Spaulding's purported promise to make a will rather than the result of ordinary "male-female affinity." Id. Furthermore, the court found that "the facts, when construed in the light most favorable to plaintiff, do not establish that plaintiff substantially changed her position for the worse in reliance on Spaulding's promise to make a will." Id. at 1038; see also Greenwood, 7 Ill. 2d at 440 (where the promisee shows no substantial change for the worse in his position in consequence of the agreement, relief will be denied). ¶ 30 Contrary to defendant's argument, we find Spaulding cuts in favor of plaintiff in this case. While the plaintiff in Spaulding could provide no evidence that testator's promises were more than mere testamentary intentions, here, the testimony of Acantilado and Zagajowski clearly links Walter's promise to the plaintiff's actions. Furthermore, the plaintiff was able to establish reliance on Walter's promise, where she and her husband quit their respective employment to assist Walter and his ailing wife on a full time basis. ¶ 31 Defendant's assertion that the trial court's finding that her "claim that Gidgett's care for her mother can be harmonized as an affinity between parent and child is not reasonable in view of the additional requirements to quit her job and remain in the home" was not appropriate for summary judgment is further undermined by the fact that summary judgment was upheld in Spaulding. In this regard, defendant's argument is that the trial court engaged in a credibility determination inappropriate at the summary judgment stage. We agree with defendant that it is not within the province of the trial court or the reviewing court to engage in weighing the credibility of witnesses at the summary judgment stage. See Schuster v. East St. Louis Jockey Club, Inc., 37 Ill. App. 3d 483 (1976) (It is not the function of the trial court on a motion for summary judgment to resolve doubts about the credibility of one side's evidence in order to reach a decision on the motion.). Yet in Spaulding, the court upheld summary judgment by finding that the evidence was wholly lacking to prove that plaintiff's actions were attributable to anything other than ordinary "male-female affinity." ¶ 32 This was not a credibility determination, but a finding by the court that not an iota of evidence was presented during summary judgment proceedings that would give rise to a genuine issue of material fact that would necessitate a denial of plaintiff's motion. Plaintiff's evidence was unrebutted, except by argument. Construing the pleadings, affidavits and other documents in the record in the light most favorable to defendant, we cannot say that there was any evidence to suggest that plaintiff's performance of the contract was attributable to parent-child affinity, and not reliance on her father's promise to give her half of everything. See Erasmus v. Chicago Housing Authority, 86 Ill. App. 3d 142, 145 (1980) (holding that in considering a motion for summary judgment, a trial court should construe facts liberally in favor of nonmovant; even so, a trial court need not strain hard to adduce some remote factual possibility to defeat the motion). ¶ 33 We note, once again, that the burden of production shifted to defendant, as the nonmoving party, to provide some factual basis to support her claim that such a contract never existed or that plaintiff's actions were gratuitous and based on parent-child affinity. See Fabiano v. City of Palos Hills, 336 Ill. App. 3d 635 (2002). Where plaintiff provided the deposition testimony and affidavits of two disinterested witnesses to prove the existence of the oral contract to make a will and her reliance on the same, defendant failed to provide the trial court with any evidence or factual basis whatsoever to support her claim or raise a genuine issue of material fact. ¶ 34 We, therefore, find that the trial court did not err in finding defendant's claim that plaintiff's care for her mother can be harmonized as an affinity between parent and child to be unreasonable, and that it did not give rise to a genuine issue of material fact that would make summary judgment in plaintiff's favor improper.
¶ 35 CONCLUSION
¶ 36 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed. ¶ 37 Affirmed.