Justice O'CONNOR delivered the opinion of the court:
Solomon Jesmer died at his home in Chicago on October 10, 1987. Jesmer left a will, which was admitted into probate on November 6, 1987. On July 11, 1988, Natasha Rohlev, Jesmer's niece, filed a claim against the estate, seeking $100,000 for services performed for Jesmer during his lifetime. Specifically, Rohlev alleged that from September 1, 1985, up until the time of Jesmer's death in 1987, she served him as a companion, cooked for him and his three nurses, and ran the household by doing the shopping and the cleaning. Rohlev also sought money for "loss of consortium"
We reverse and remand.
The following evidence was adduced from portions of Rohlev's deposition which were submitted to the circuit court.
Rohlev subsequently moved to Chicago in August 1985. Nurse Ollie Cooper was Jesmer's sole nurse at this time. No evening nurse was secured for Jesmer until December 1985 when Nurse Bobbie Chase was hired. From August until December 1985, Jesmer was cared for by both Cooper and Rohlev. At night, Rohlev tended to Jesmer, while Cooper slept. Rohlev's bedroom was close to Jesmer's so that she could hear him ring his bell when she was needed.
In October 1985, Rohlev began her employment with the University of Chicago, where she worked Mondays through Fridays, from 8:00 a.m. until 4:00 p.m. On several occasions, Rohlev would work overtime on Saturdays or at nights. Rohlev stated that she had friends who lived in Wilmette and would occasionally stay with them on Saturday nights, but she would always return by Sunday afternoon. If she did this, she would always tell Jesmer, who would sometimes ask her not to go because he was feeling lonely.
Although Jesmer eventually was cared for by three nurses seven days per week, Rohlev continued to do certain things for Jesmer such as shampooing his hair, applying skin lotion to his body, and giving him manicures. Rohlev prepared a fresh dinner every night because Jesmer disliked eating "leftovers." To that end, Rohlev arrived home from work by 5:00 p.m. so that she could ask Jesmer what he wanted to eat, go shopping to get the food, and serve dinner by 7:00 p.m. Rohlev stated that Jesmer gave her $1000 per month for
In addition to her cooking duties, Rohlev cleaned the house and reviewed Jesmer's mail with him. Rohlev also arranged several parties for Jesmer, including three parties in one week in honor of his birthday. On such occasions, Jesmer would invite two or three couples to join them for dinner. Rohlev would prepare all the food. Rohlev also read Russian poetry to Jesmer. Rohlev shopped for Jesmer on the weekend, buying him things like pajamas.
Rohlev also filed the deposition of Marshall Patner with the circuit court. In it, Patner stated that Jesmer had told him that Rohlev had given up a great deal to come to Chicago. Jesmer also told Patner that he asked Rohlev not to return to Colorado and told him
Patner believed Jesmer promised Rohlev that if she gave up these things and took care of him in a limited way by supplementing the nurses, that he would compensate her in his will and that he was going to take care of her mother.
The affidavits filed on behalf of the estate contradict Rohlev's and Patner's depositions in all material respects. Indeed, the only undisputed fact that can be gleaned from the record is that Rohlev arrived in Chicago in 1985 and soon thereafter found employment at the University of Chicago. Chester Harris, Jesmer's longtime friend and colleague, swore that he reviewed Jesmer's mail with him from June 1985 until the time of Jesmer's death. Both Harris and Victor Gregory, Jesmer's nephew, stated that Jesmer told them that Rohlev came to Chicago to find employment. Jesmer allowed her to stay at the apartment, rent-free, in order to save money. Jesmer's nurses, Ollie Brown and Bobbie Chase, both swore that they, along with Nurse Rose Brown, performed all the nursing duties required by Jesmer. Cooper shopped for the household's food and prepared the daily meals. Chase did the laundry. All other household cleaning was done by Mrs. Jones. No one relied on Rohlev to do any work around the apartment because, many times, Rohlev would not return home after work. Chase was present once during a conversation between Rohlev and Jesmer concerning Rohlev's mother. Rohlev told Jesmer that she was anxious to have her mother come to the United States, and she wanted her to live in an apartment in the same building. Jesmer told Rohlev that he would not pay for any part of the expense in bringing her mother to this country and was opposed to her living in the same building. Chase stated that Jesmer was "emphatic" about this and told Rohlev that if she wanted to do it, she would have to pay all the expense and "not count on him" to pay any part of it.
The estate, in its motion for summary judgment, argued that no agreement, either written or implied, existed between Jesmer and Rohlev, that Rohlev's services were voluntary, and that the claim was unenforceable under the Statute of Frauds. In its ruling, the circuit court found that, based on all the documents which had been submitted, there was no genuine issue of
A claim against an estate for services rendered to the decedent can be established by evidence of either an express or implied contract or obligation, with the burden of proof on the claimant. (In re Estate of Clausen (1977), 51 Ill.App.3d 18, 9 Ill.Dec. 48, 366 N.E.2d 162.) Services rendered by a family member on behalf of another family member are presumed to be done gratuitously. (In re Estate of White (1973), 15 Ill.App.3d 200, 303 N.E.2d 569; In re Estate of Foster (1964), 46 Ill.App.2d 319, 197 N.E.2d 257; Meyer v. Meyer (1942), 379 Ill. 97, 39 N.E.2d 311.) The presumption may be rebutted by sufficient evidence of a contract, express or implied, to negate any presumption that the services were performed gratuitously. (Campion v. Tennes (1981), 93 Ill.App.3d 597, 49 Ill.Dec. 58, 417 N.E.2d 748; Moreen v. Estate of Carlson (1937), 365 Ill. 482, 6 N.E.2d 871.) The burden is on the claimant to establish the existence of an implied contract by "proof of facts and circumstances showing that it was the intention of the parties that payment should be made for the * * * services furnished." Campion v. Tennes, 93 Ill.App.3d at 603, 49 Ill.Dec. 58, 417 N.E.2d 748 quoting Switzer v. Kee (1893), 146 Ill. 577, 581, 35 N.E. 160, 162.
The record in the present case clearly establishes that no express contract existed between Jesmer and Rohlev. The law, however, recognizes two kinds of implied contracts, contracts implied in law (sometimes called "quasi-contracts") and contracts implied in fact. (In re Estate of Milborn (1984), 122 Ill.App.3d 688, 78 Ill.Dec. 241, 461 N.E.2d 1075.) Here, the circuit court ruled that no implied contract existed between the parties, but the court did not specify upon which type of implied contract it based its ruling.
A contract implied in fact is one in which a contractual duty is imposed by reason of a promissory expression which may be inferred from the facts and circumstances and the expressions of the part of the promisor which show an intention to be bound. In re Estate of Milborn, 122 Ill.App.3d 688, 78 Ill.Dec. 241, 461 N.E.2d 1075.
Here, Patner stated that Jesmer told him that Rohlev's "not going back to Colorado and giving up her husband" "was of great value to him" and that "he should take care of her in his will." Rohlev, herself, stated that Jesmer promised to leave her money after his death to take care of her and her mother. Words to that effect have been held to support a trier of fact's finding that an implied contract to pay for services existed and that an intent to pay existed on the part of the promisor. (See Heffron v. Brown (1895), 155 Ill. 322, 40 N.E. 583; In re Estate of Dal Paos (1969), 118 Ill.App.2d 235, 254 N.E.2d 300; In re Estate of Lyons (1940), 303 Ill.App. 642, 25 N.E.2d 555.) These promises, in addition to the burdensome nature of the work Rohlev alleged to have performed, could support a trier of fact's finding that Rohlev expected to receive substantial payment from the resources of Jesmer's estate, based on the promises Jesmer made to her. That Rohlev never made a demand for payment does not detract from her claim. (See In re Estate of Dal Paos, 118 Ill.App.2d at 241, 254 N.E.2d 300.) The mere fact that there was no specific agreement as to the amount to be paid for the services, or the time of payment, does not prevent the inference of a promise to pay for necessary services requested and faithfully performed. In re Estate of McWain (1966), 77 Ill.App.2d 359, 222 N.E.2d 576.
The estate directs our attention to Rohlev's answer to an interrogatory question in which she stated that she performed her services of her own free will. Rohlev's voluntary action, the estate argues, denotes that she had no expectation of being paid, and thus defeats her claim because the expectation of compensation is an element needed to establish an implied contract. We disagree with the estate's characterization
Rohlev's answer states that the services were performed based on an agreement. Her next answer goes on to state that she
We believe the term "voluntary" as used by Rohlev in her answer to the interrogatory does not connote that Rohlev had no expectation of compensation. Indeed, "voluntary" has a number of meanings apart from doing some act gratuitously or for free. For example, "voluntary" also could mean, in this case, that Rohlev's actions were "produced in or by an act of choice" or were "done by design or intention" (Webster's Third New International Dictionary 2564 (1986)) in light of Jesmer's promises. Moreover, the full context of Rohlev's responses reveals that she expected to receive some compensation for her services.
We also find many of the cases relied upon by the estate to be distinguishable from the present case in that those appeals stemmed from trials and, as a result, do not address principles of summary judgment. See Campion v. Tennes, 93 Ill. App.3d at 597, 49 Ill.Dec. 58, 417 N.E.2d 748; Skurat v. Kellerman (1977), 53 Ill.App.3d 361, 11 Ill.Dec. 358, 368 N.E.2d 966; In re Estate of White (1977), 15 Ill.App.3d at 200, 303 N.E.2d 569.
The purpose of summary judgment is not to try a question of fact, but, rather to determine whether one exists. (Addison v. Whittenberg (1988), 124 Ill.2d 287, 124 Ill.Dec. 571, 529 N.E.2d 552.) A motion for summary judgment appropriately is granted if the pleadings, depositions, and affidavits on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Ill.Rev.Stat. 1987, ch. 110, par. 2-1005(c).) Summary judgment is to be granted only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt his right to relief. (Purtill v. Hess (1986), 111 Ill.2d 229, 95 Ill.Dec. 305, 489 N.E.2d 867; Rambert v. Advance Construction Company, Inc. (1985), 134 Ill.App.3d 155, 89 Ill.Dec. 1, 479 N.E.2d 1007.) An order granting summary judgment will be reversed if the reviewing court finds the existence of a genuine issue of material fact. Department of Revenue v. Heartland Investments, Inc. (1985), 106 Ill.2d 19, 86 Ill.Dec. 912, 476 N.E.2d 413.
We are mindful that summary judgment has been found to be particularly inappropriate where the inferences sought to be drawn by the parties deal with questions of motive, intent, or subjective feelings and reactions. (In re Estate of Jessman (1990), 197 Ill.App.3d 414, 143 Ill.Dec. 783, 554 N.E.2d 718; Montgomery Ward & Co. v. Wetzel (1981), 98 Ill.App.3d 243, 53 Ill.Dec. 366, 423 N.E.2d 1170; Schuster v. East St. Louis Jockey Club, Inc. (1976), 37 Ill.App.3d 483, 345 N.E.2d 168.) In the present case, both parties sought to draw inferences regarding Jesmer's intent and feelings from the facts surrounding Rohlev's arrival in Chicago in the summer of 1985. In fact, our review of the evidence reveals conflicting testimony as to Jesmer's intentions regarding Rohlev's position at the apartment. Victor Gregory and Chester Harris both stated that Jesmer told them he had invited Rohlev to stay with
The estate argues that, assuming an oral contract exists, its enforcement is barred by the Statute of Frauds (Ill.Rev.Stat.1987, ch. 59, par. 1) as a matter of law because the agreement could not be performed within one year.
The record indicates that Rohlev performed her obligation to tend to Jesmer's need.
The judgment of the circuit court, therefore, is reversed, and the cause is remanded for further proceedings.
Reversed and remanded.
MANNING, P.J., and BUCKLEY, J., concur.