                                   2014 IL App (1st) 131524
                                        No. 1-13-1524
                                  Opinion Filed June 26, 2014



                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                                      FIRST DISTRICT



GEORGE J. DOHRMANN III,                   )     Appeal from the
                                          )     Circuit Court of
       Plaintiff-Appellant,               )     Cook County.
                                          )
v.                                        )
                                          )
                                          )     No. 07L1602
THOMAS E. SWANEY,                         )
Independent Executor of the Estate of     )
Virginia H. Rogers, Deceased,             )
                                          )     The Honorable
       Defendant-Appellee.                )     Mary L. Mikva,
                                          )     Judge Presiding.
______________________________________________________________________________


       JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.
       Presiding Justice Howse and Justice Lavin concurred in the judgment and opinion.


                                       OPINION


¶1     Appellant George J. Dohrmann III appeals from the circuit court’s grant of summary

judgment to appellee Thomas E. Swaney, independent executor of the estate of Virginia H.

Rogers, deceased (the Estate), as to the two remaining counts of his complaint. These counts

relate to an alleged agreement made between Dorhmann and Mrs. Rogers prior to Mrs. Rogers'
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death in which Mrs. Rogers signed a document (the contract) agreeing to give Dohrmann, in part,

her apartment and all of the items contained therein, as well as the sum of $4 million. Dohrmann

contends on appeal that the trial court erred in granting summary judgment. For the following

reasons, we affirm.


¶2                                   I. BACKGROUND

¶3     Dohrmann, who was Mrs. Rogers' neighbor, filed a five-count fourth amended complaint

against Thomas E. Swaney, as guardian of the Estate of Virginia Rogers, a disabled person, and

as successor trustee of the Virginia H. Rogers Trust (Trust),1 based on a contract dated April 1,

2000. Under the purported contract, in exchange for Dohrmann's "past and future services,"

including helping to continue the Rogers name by incorporating it into his children's name, Mrs.

Rogers agreed to convey to Dohrmann upon her death her apartment and everything within it, as

well as the sum of $4 million. The contract states that Mrs. Rogers will carry out this promise

through her "Will and Testament or other testamentary substitute." Dohrmann alleged that he

legally changed the names of his minor children to add the Rogers name and that he believed he

had performed all his duties under the contract. Mrs. Rogers filed a counterclaim alleging that

the contract was the product of fraud in the execution.

¶4     At the time of the summary judgment disputed herein, only counts I and II remained. By

count I, Dohrmann requested a declaratory judgment settling the rights of the parties under the

       1
            Mrs. Rogers has since died, and the cause is now captioned "GEORGE J.

DOHRMANN III v. THOMAS E. SWANEY, as Independent Executor of the Estate of Virginia

H. Rogers, Deceased."


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contract and imposing a constructive trust on Mrs. Rogers' apartment and $4 million worth of

assets for the benefit of Dohrmann. By count II, Dohrmann requested a declaration that the

transfer of Mrs. Rogers' apartment to the Trust is void, the creation of a constructive trust on the

apartment for the benefit of Dohrmann, or, in the alternative, a money judgment in the amount

equal to the present value of Mrs. Rogers' apartment. Mrs. Rogers' estate then filed a one-count

counterclaim, alleging that the contract was a product of fraud in the execution and asking the

court to declare the contract invalid and unenforceable and to require Dohrmann to pay

compensatory and punitive damages.

¶5      Most of the background facts are not in dispute, although the parties to disagree whether

certain information is properly before the court under the Dead-Man's Act (735 ILCS 5/8-201

(West 2012)). In this Background section, we consider only the facts properly before this court,

and address the Dead-Man's Act argument in the Analysis section

¶6      Dohrmann first met Mrs. Rogers in 1984. They lived in the same building, the Drake

Tower, a cooperative apartment building, at 179 E. Lake Shore Drive. Mrs. Rogers' apartment

was substantially larger than Dohrmann's apartment. The apartment was Mrs. Rogers' primary

residence, while Dohrmann's apartment was not his primary residence.

¶7      At the time they met, Mrs. Rogers was a 73-year-old widow. She had never had nor

adopted any children. Dohrmann was a 40-year-old neurosurgeon, married to Dr. Helen

Dohrmann. Eventually, they had two children, George IV and Geoffrey. Dohrmann and his

wife are still married.

¶8      Dohrmann and Mrs. Rogers began to socialize together more frequently in the early

1990s and served together on the board of the Drake Tower apartments. Mrs. Rogers got to

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know Dohrmann's wife and children during this time. From the record, it appears Mrs. Rogers

initially enjoyed Dohrmann's attention, but then became concerned that he was befriending her in

order to get her property upon her death.

¶9     In 1997 or 1998, Dohrmann approached Mrs. Rogers about adult adoption, suggesting

that one of them adopt the other. Dohrmann testified in deposition that Mrs. Rogers often said

she regretted not having any children, and Dohrmann wanted to give her the family she never

had. To that end, Dohrmann consulted with an attorney, who advised him that adult adoptions

could be done in Arkansas and referred him to an Arkansas attorney. In March 1998, Dohrmann

traveled to Little Rock, Arkansas, and met with an attorney who specialized in adoption law.

Upon learning that residency is a prerequisite for adult adoption in Arkansas, Dohrmann entered

into a written lease for an apartment in North Conway, Arkansas. The adoption attorney advised

Dohrmann that she needed a signed letter of engagement from Mrs. Rogers in order to proceed.

However, Mrs. Rogers never submitted a signed letter of engagement to the attorney and

Dohrmann never adopted Mrs. Rogers, nor was he ever adopted by Mrs. Rogers.

¶ 10   In February 2000, Dohrmann met with an estate planning attorney in Chicago, inquiring

what one would do if he wished to receive something in exchange for something after a person

died. The attorney drafted a skeleton agreement and subsequently discussed the agreement with

Dohrmann. The attorney did not, however, participate in the preparation or execution of the

contract in question here.

¶ 11   On April 1, 2000, Dohrmann and Mrs. Rogers, who was 89 years old at the time, signed

the contract. There were no witnesses present at the signing. Mrs. Rogers did not communicate

with her long-time lawyer and advisor, Mr. Swaney, regarding the contract. Mr. Swaney did not,

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in fact, learn of the contract until just prior to the initiation of the instant lawsuit. The contract in

its entirety reads:

                        "Agreement

                        Dear George:

                        In exchange for your past and future services and other

                good and valuable consideration (including helping the Rogers

                name to continue after my death by incorporating it into your

                children's names), I (Virginia H. Rogers) agree to give you

                (George J. Dohrmann III) upon my death 1) my apartment in the

                Drake Tower (shares of 11-East, Drake Tower Apartments, Inc. in

                Chicago) and all furniture, furnishings, personal effects and other

                property contained within it and the elevator vestibule at the time

                of my death 2) the sum of four million dollars ($4,000,000.00), and

                so will provide in my Last Will and Testament or other

                testamentary substitute that may take effect upon my death (my

                'testamentary documents'). If my testamentary documents fail to

                provide you with the above, you or your estate, shall have a valid

                claim against my estate for such amount.

                        It is my request that you pay my friend and lawyer, Thomas

                E. Swaney, the sum of one hundred thousand dollars

                ($100,000.000) as a surprise gift from me.



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                       This agreement may not be amended, modified or canceled

               except by written agreement signed by you and me. This

               agreement sets forth our entire agreement and understanding with

               respect to the matters covered hereby and supersedes all of our

               prior agreements or understandings with respect to the subject

               matter hereof. This agreement shall be governed by and construed

               in accordance with the laws of the State of Illinois applicable to

               contracts to be performed entirely within such State (determined

               without regard to choice of law provisions thereof).

                       If the above correctly sets forth your understanding of our

               agreement, please indicate your acceptance by signing this

               agreement in the space provided below.

                       Understood, accepted and agreed on April 1, 2000:

                       s/ George J. Dohrmann III

                       Signed on April 1, 2000:

                       s/ Virginia H. Rogers"

¶ 12   An appraiser estimated that the value of Mrs. Rogers' apartment as of April 1, 2000, was

approximately $1,438,000. Another appraiser estimated that the value of the "furniture,

furnishings, personal effects and other property contained within it and the elevator vestibule" as

of April 1, 2000, was approximately $100,045.

¶ 13   Two months later, on June 22, 2000, Dohrmann's two sons' names were legally changed

to include "Rogers" as one of their middle names. Their names are now George John Rogers

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Dohrmann IV, and Geoffrey Edward David Rogers Dohrmann. At that time, George IV was 13

years old and Geoffrey was 7 years old. In practice, the boys (now young men) use the Rogers

name inconsistently. George IV used it on his high school diploma and college applications, but,

according to George IV's deposition testimony, he did not use it on his driver's license, his

student ID card, his checking account, his credit card, his high school papers, his high school

exams, or his Facebook page. Geoffrey testified that he did not have a driver's licence or state

identification card, but that he used the Rogers name "whenever [he] writes down [his] full name

when necessary." He testified that he used the Rogers name on his high school applications, his

student ID card, and his ATM card. He did not use it on his Facebook page, but did use his two

other middle names.

¶ 14     On April 1, 2000, the date the contract was executed, Mrs. Rogers' estate plan consisted

of her will and the Trust. Neither included at that time or any other time a provision for the

benefit of Dohrmann or for any member of his family. Rather, her estate plan consisted of

bequests to various friends and distant relatives aggregating several million dollars, with the

remainder of the estate distributable to seven Chicago-based charities and Mrs. Rogers' alma

mater.

¶ 15     In November 2004, Mrs. Rogers transferred legal ownership of her apartment to the

Trust, where it remains as an asset. In March 2008, an order was entered in probate court

designating Mrs. Rogers a disabled person based on her suffering from moderate dementia and

probable Alzheimer's disease. She was adjudicated to be without capacity to manage her estate

or financial affairs. Mr. Swaney was appointed as the guardian of her estate.



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¶ 16   Dohrmann filed his original complaint in February 2007, of which only counts I and II

remained at the time of summary judgment. The Estate filed its counterclaim as part of its

answer. The parties then filed cross-motions for summary judgment as to the claims against

them. In its motion for summary judgment, the Estate argued that the contract should be set

aside as a matter of law because the consideration was so grossly inadequate as to shock the

conscience; the undisputed facts demonstrate that this inadequate consideration was

accompanied by circumstances of unfairness; and the contract is unconscionable.

¶ 17   In September 2011, the circuit court entered an order barring admission of Dohrmann's

testimony and that of his wife regarding conversations with Mrs. Rogers and her participation in

the preparation and execution of the contract, as well as the name change hearing.

¶ 18   In 2012, the circuit court, in a memorandum order, found that the contract was not

enforceable, granted the Estate's motion for summary judgment on counts I and II, and denied

Dohrmann's motion for summary judgment on the Estate's counterclaim. Dohrmann appeals the

grant of summary judgment against him on counts I and II.

¶ 19                                   II. ANALYSIS

¶ 20   On appeal, Dohrmann contends the trial court erred in granting summary judgment. He

argues that summary judgment was improper because: (1) the value of Dohrmann's performance,

that is, his sons' name changes, is a disputed issue of fact; (2) Mrs. Rogers' motive for entering

into the contract is a disputed issue of fact; (3) the existence of "circumstances of unfairness" in

the making of the contract is a disputed issue of fact; and (4) the testimony of Rogers' friends

that Rogers believed Dohrmann was trying to get her apartment and her estate was inadmissible

hearsay and should not have been considered by the court. For the following reasons, we affirm.

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¶ 21   Summary judgment is proper when the pleadings, affidavits, depositions and admissions

of record, construed strictly against the moving party, show there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-

1005(c) (West 2010). In ruling on a motion for summary judgment, the circuit court is to

determine whether a genuine issue of material fact exists, not try a question of fact. Williams v.

Manchester, 228 Ill. 2d 404, 417 (2008). A party opposing a motion for summary judgment

"must present a factual bias which would arguably entitle him to a judgment." Allegro Services,

Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 256 (1996). When

determining whether a genuine issue of material fact exists, the pleadings are to be liberally

construed in favor of the nonmoving party. Williams, 228 Ill. 2d at 417. "Summary judgment is

to be encouraged in the interest of prompt disposition of lawsuits, but as a drastic measure it

should be allowed only when a moving party's right to it is clear and free from doubt." Pyne v.

Witmer, 129 Ill. 2d 351, 358 (1989).

¶ 22   The primary objective in contract construction is to give effect to the intent of the parties.

If the contract is clear and unambiguous, the court must determine the parties' intent solely from

the ordinary and natural meaning of the language of the contract. Omnitrus Merging Corp. v.

Illinois Tool Works, Inc., 256 Ill. App. 3d 31, 34 (1993).

¶ 23   The basic requirements of a contract are an offer, acceptance, and consideration. Melena

v. Anheuser-Busch, Inc., 219 Ill. 2d 135, 151 (2006). The determination of whether

consideration is sufficient to support a contract is a question of law for the court to decide.

Valuable consideration for a contract consists of some right, interest, profit or benefit accruing to

one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by

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the other. F.H. Prince & Co. v. Towers Financial Corp., 275 Ill. App. 3d 792, 798 (1995);

Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 330 (1977) (any act or promise that benefits

one party or disadvantages the other is sufficient consideration to support the formation of a

contract). Whether a contract contains consideration is a question of law, which we review de

novo. In re Marriage of Tabassum, 377 Ill. App. 3d 761, 770 (2007). "[W]here the amount of

consideration is so grossly inadequate as to shock the conscience of the court, the contract will

fail." Ahern v. Knecht, 202 Ill. App. 3d 709, 715 (1990). This court has considered the issue of

gross inadequacy of consideration:

                       "Evidence of gross inadequacy of consideration has been

               considered by some Illinois courts as tantamount to fraud, whether actual

               or constructive. [Citations.] Thus, where there is a substantial failure of

               consideration for a contract, particularly where the inadequacy is

               accompanied by other inequitable or unconscionable features, a court of

               equity may rescind or cancel the contract.***

                       A contract may be treated as unconscionable when it is

               improvident, oppressive, or totally one-sided. [Citation.] Even where

               there is no actual fraud, courts of equity will relieve against hard and

               unconscionable contracts which have been procured by taking advantage

               of the condition, circumstances or necessity of the other parties.

               [Citation.] Factors relevant to finding a contract unconscionable include

               gross disparity in the values exchanged or gross inequality in the

               bargaining positions of the parties together with terms unreasonably

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                 favorable to the stronger party. [Citations.] Courts will also look to such

                 factors as the age and education of the contracting parties, their

                 commercial experience [Citation], and whether the aggrieved party had a

                 meaningful choice when faced with unreasonably unfavorable terms."

                 Ahern, 202 Ill. App. 3d at 715-16.

Moreover, "[w]here the amount of the consideration which passed is not only so grossly

inadequate as to shock the conscience of the court, but also accompanied by circumstances of

unfairness, the court is in a position to set aside the transaction. [Citations.] Where the

inadequacy is great, the circumstances of unfairness need only be slight to cause this court to set

aside the transaction. [Citation.]" Mimica v. Area Interstate Trucking, Inc., 250 Ill. App. 3d 423,

431-32 (1993).

¶ 24                           i.       The Dead-Man's Act

¶ 25   Initially, we note that the parties dispute whether the testimony of Dohrmann and his wife

regarding statements allegedly made by Mrs. Rogers about what she received under the contract

is barred under the Dead-Man's Act (the Act). 735 ILCS 5/8-201 (West 2012). The Estate

argues that Dohrmann was and is precluded from presenting this evidence by operation of the

Dead-Man's Act and that this precise issue was presented to the circuit court, which ruled in

2011 that this particular testimony be stricken under the Dead-Man's Act. Dohrmann, on the

other hand, argues that the testimony in question was presented below by the Estate in support of

its motion for summary judgment and the Estate, therefore, waived the Dead-Man's Act's

protections.

¶ 26   The Dead-Man's Act provides:

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               "In the trial of any action in which any party sues or defends as the

               representative of a deceased person or person under a legal

               disability, no adverse party or person directly interested in the

               action shall be allowed to testify on his or her own behalf to any

               conversation with the deceased or person under legal disability or

               to any event which took place in the presence of the deceased or

               person under legal disability ***." 735 ILCS 5/8-201 (West

               2012).

Only that evidence which the decedent could have refuted is barred by the Act. Gunn v. Sobucki,

216 Ill. 2d 602, 609 (2005). The dual purposes of the Act are "to protect decedents' estates from

fraudulent claims and to equalize the position of the parties in regard to the giving of testimony.

Gunn, 216 Ill. 2d at 609.

¶ 27   "It is proper to apply the Dead-Man's Act in the context of a summary judgment

proceeding because, while a motion for summary judgment is not a modified trial procedure, it is

an adjudication of a claim on the merits and is the procedural equivalent of a trial." Balma v.

Henry, 404 Ill. App. 3d 233, 238 (2010). " '[I]t strains logic to construe the *** Act in a manner

that forces litigants to proceed to trial when it would be evident from an application of the ***

Act, in the context of a summary judgment proceeding, that a litigant cannot prove his case.' "

Balma, 404 Ill. App. 3d at 238 (quoting Rerack v. Lally, 241 Ill. App. 3d 692, 694-95 (1992)).

¶ 28   Here, this issue was previously determined by the circuit court in its September 2011

order in which it ruled that this testimony was barred by the Dead-Man's Act. Dohrmann on

appeal does not challenge this ruling, but merely reargues this issue as though the ruling does not

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exist. It does exist, and the testimony in question remains barred under the Dead-Man's Act.

Like the circuit court before us, we have disregarded any testimony submitted here that is

inconsistent with the order under the Dead-Man's Act.

¶ 29                        ii. The Consideration Provided

¶ 30   Here, our review of the record persuades us that the trial court did not err in granting

summary judgment to the Estate where, based on the record before us, there was no genuine

issue of material fact. The circumstances existing when the contract was entered into in this case

were such that the terms of the contract should be set aside where the Estate sufficiently showed

the contract should be considered void due to the grossly inadequate consideration provided Mrs.

Rogers from Dohrmann, as well as the unfair circumstances surrounding the contract's creation.

¶ 31   Under the terms of the contract, Mrs. Rogers agreed to transfer, upon her death, to

Dohrmann over $5.5 million in assets in exchange for Dohrmann adding Rogers as an additional

middle name to his two sons' names, so that their names became George John Rogers Dohrmann,

IV, and Geoffrey Edward David Rogers Dohrmann. We note here that, in his answers to

interrogatories, Dohrmann described the consideration bargained for under the contract:

                      "7. With respect to paragraphs 4 and 7 of the Amended

               Complaint, and specifically your allegation that you have

               'performed all terms and conditions to be performed' by you under

               the terms of the Contract, identify the following: (a) the 'past and

               future services' and 'other good and valuable consideration'

               contemplated under the terms of the Contract; (b) all facts you rely

               on to support your allegation that you 'performed all terms and

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              conditions to be performed' by you under the terms of the Contract;

              and (c)all documents pertaining to such allegation.

                      Answer: The Contract identifies the consideration and the

              acts to be performed by the parties. Dr. Dohrmann performed by

              taking actions to change the names of his two sons and incorporate

              the Rogers name into their legal names in order to continue the

              Rogers name after the death of Ms. Rogers. Dr. Dohrmann

              initiated legal proceedings in the Circuit Court of Cook County to

              change the names of his sons and incorporate the Rogers name into

              their legal names. On June 22, 2000, George J. Dohrmann IV

              became legally known as George J. Rogers Dohrmann IV, and

              Geoffrey Dohrmann became legally known as Geoffrey E. D.

              Rogers Dohrmann.

                      There were and are no 'future services' to be performed. At

              no time prior to the execution of the Contract did Ms. Rogers and

              Dr. Dohrmann discuss any 'past' services or 'future services' to be

              performed as part of the Contract.

                      All documents responsive to this Interrogatory have been

              produced in Plaintiff's Response to First Set of Document Requests

              of Defendant Virginia H. Rogers."

Accordingly, therefore, the sole consideration Dohrmann agreed to give in exchange for over

$5.5 million in assets was to add Rogers as an additional middle name to his sons' names.

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According to the plain language of the contract, the addition of 'Rogers' to the boys' names was

of value to Mrs. Rogers because it would help the Rogers name to continue after Mrs. Rogers'

death. We address that consideration here.

¶ 32   We agree with the Estate that Mrs. Rogers did not gain much by the addition of the

Rogers name to the boys' middle names. The stated purpose of adding the name was to "help[]

the Rogers name to continue after [her] death." However, Dohrmann did not change the boys'

surnames to Rogers, nor even exchange their middle names for Rogers. Rather, he merely added

the name Rogers as one of two middle names for George IV and one of three middle names for

Geoffrey. This can hardly be said to perpetuate the Rogers name after Mrs. Rogers' death.

¶ 33   We note here Dohrmann acknowledges it is appropriate for a court to consider whether

consideration was provided in a contract, but argues that it is improper for a court to consider the

relative value or adequacy of the consideration. He states: "a court may examine the

consideration exchanged for several purposes, none of which, however, includes determining

and/or weighing the relative value of adequacy of legal consideration exchanged." We disagree,

as, in cases like the one at bar where the consideration provided is so grossly inadequate as to

shock the conscience, a court may examine the adequacy of the consideration. See, e.g., Bonner

v. Westbound Records, Inc., 76 Ill. App. 3d 736, 743 (1979) ("It is not the function of either the

circuit court or [the appellate] court to review the amount of the consideration which passed to

decide whether either party made a bad bargain [Citations] unless the amount is so grossly

inadequate as to shock the conscience of the court." (Emphasis added)); see also Ahern, 202 Ill.

App. 3d at 716.



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¶ 34    Additionally, the contract is brief and makes no provision for when or even if the boys

must actually use the name Rogers. It appears from the record before us that the boys have used

the name only intermittently. Moreover, there is nothing in the contract to prevent the boys from

legally removing Rogers as a middle name, particularly because they, as minors, were not parties

to the contract. Where the consideration for a contract is illusory, the contract will be invalidated

for gross inadequacy of consideration. See Mimica, 250 Ill. App. 3d at 432. Although the

children allegedly took the Rogers name as their own in order to perpetuate the Rogers name

after Mrs. Rogers' death, enforcing that obligation is a legal impossibility. Accordingly, the

consideration to this contract is illusory.

¶ 35    In total, pursuant to the terms of the contract, Mrs. Rogers, an elderly widow, agreed to

give Dohrmann upon her death $5,538,000 in cash and property in exchange for Dohrmann

adding Rogers as an additional middle name to the names of his sons in an effort to help

perpetuate the Rogers name after Mrs. Rogers' death. The contract does not contain any

provision mandating how, when, or whether Dohrmann's sons are to use the Rogers name. The

disparity is shocking on its face. We agree with the circuit court, which stated that this

consideration "seems to be so minimally beneficial to Mrs. Rogers (particularly in light of the

goal stated in the Contract of 'continuing the Rogers name') as to be almost nonexistent,

especially when contrasted with the $5.5 million Dr. Dohrmann is to receive under the terms of

the Contract."

¶ 36                                  iii. Circumstances of Unfairness

¶ 37    Although the inadequacy of consideration in this situation is sufficient in itself to find this

contract void, we also agree with the circuit court and the Estate that there were circumstances of

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unfairness, that is, the extremely disproportionate bargaining power of the contracting parties,

surrounding the execution of the contract to such an extent that the contract could be found void

on those grounds, as well. See Mimica, 250 Ill. App. 3d at 431-32 ("Where the amount of the

consideration which passed is not only so grossly inadequate as to shock the conscience of the

court, but also accompanied by circumstances of unfairness, the court is in a position to set aside

the transaction. [Citations.] Where the inadequacy is great, the circumstances of unfairness need

only be slight to cause this court to set aside the transaction. [Citation.]"). Factors relevant to

this analysis include the age and education of the contracting parties. See Ahern, 202 Ill. App.

3d at 716 ("Courts will also look to such factors as the age and education of the contracting

parties, their commercial experience [Citation], and whether the aggrieved party had a

meaningful choice when faced with unreasonably unfavorable terms [Citations].").

¶ 38   In reviewing the record before us, we have found many of the uncontested facts clearly

demonstrate circumstances of unfairness surrounding the execution of the contract, that is, the

parties had vastly different bargaining positions. At the time of the contract's execution in 2000,

Mrs. Rogers was an 89 year old widow whose husband had died many years previously. Two

years following the execution of this contract, Mrs. Rogers was diagnosed with Alzheimer's

disease. She had no children nor any immediate family. She was entering into a contract worth

$5.5 million with Dohrmann, a physician. Mrs. Rogers had a long-time attorney and advisor,

Mr. Swaney, but she did not consult him regarding the execution of this contract. She also had

in place an estate plan for the event of her death.

¶ 39   The other contracting party, Dohrmann, is a highly educated neurosurgeon, married with

a family. Under the contract, Dohrmann stood to reap a benefit worth $5.5 million. Prior to

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entering into the contract, Dohrmann consulted an estate planning attorney. This attorney

drafted a "skeleton" agreement for him. These facts clearly show that the creation of this

contract involved gross inadequacy of consideration as well as circumstances of unfairness.

¶ 40   Dohrmann's argument that Mrs. Rogers' motive for entering into the contract is a disputed

issue of material fact which precludes summary judgment does not persuade us differently.

Dohrmann argues that Mrs. Rogers' actual motive in having the boys legally change their names

was "to take on and bear her name as their own, from which she would derive personal

satisfaction, pleasure and gratification." This argument, however, is belied by the very language

of the contract itself, which states unequivocally that the purpose of entering into the contract

was to "help[] the Rogers name to continue after my death by incorporating it into your

children's names." See Omintrus Merging Corp. v. Illinois Tool Works, Inc., 256 Ill. App. 3d 31,

34 (1993) ("The primary objective in contract construction is to give effect to the intention of the

parties ***. If the contract is clear and unambiguous, the judge must determine the intention of

the parties solely from the plain meaning of the language of the contract ***." (Internal quotation

marks omitted.)). In addition to the language of the contract itself, Dohrmann admitted in his

interrogatory responses in the circuit court that Mrs. Rogers' purpose for entering into the

contract was to continue her name after her death. Specifically, as discussed previously, in his

verified response to a written interrogatory, Dohrmann answered that he entered into the contract

with Mrs. Rogers "in order to continue the Rogers name after the death of Ms. Rogers."

Dohrmann's argument after summary judgment was granted that, in fact, Mrs. Rogers' actual

motive in entering into the contract and in having the boys legally change their names was "to



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take on and bear her name as their own, from which she would derive personal satisfaction,

pleasure and gratification" strikes us as disingenuous.

¶ 41                                    iv. Hearsay Exception

¶ 42    Finally, Dohrmann urges not to consider the evidence of Mrs. Rogers' statements to third

parties regarding Mrs. Rogers' suspicions that Dohrmann "was after" her property. Dohrmann

argues that these out-of-court statements we offered to prove the matter asserted and, therefore,

are inadmissible. The Estate replies that the statements in question are, in fact, admissible under

the "state of mind" exception to the hearsay rule. We agree with the Estate.

¶ 43    “ ‘Hearsay evidence is an out-of-court statement offered to prove the truth of the matter

asserted, and it is generally inadmissible due to its lack of reliability unless it falls within an

exception to the hearsay rule.’ ” People v. Caffey, 205 Ill. 2d 52, 88-89 (2001) (quoting People

v. Olinger, 176 Ill. 2d 326, 357 (1997)). Statements that indicate the declarant’s state of mind

are admissible as exceptions to the hearsay rule when the declarant is unavailable to testify, there

is a reasonable probability that the proffered hearsay statements are truthful, and the statements

are relevant to a material issue in the case. Caffey, 205 Ill. 2d at 91 (citing People v. Floyd, 103

Ill. 2d 541, 546 (1984)). The state of mind exception applies only to the state of mind of the

declarant and not the state of mind of someone other than the declarant. People v. Munoz, 398

Ill. App. 3d 455, 479 (2010); People v. Lawler, 142 Ill. 2d 548, 559 (1991).

¶ 44    Dohrmann's argument here is that these statements are inadmissible hearsay because "the

statements are offered to prove that Rogers, in fact, believed what she said she believed." We

disagree, as Mrs. Rogers' statements to third parties were not admitted into evidence to prove the

matter asserted, that is, that Dohrmann was trying to get property and money from her, but rather

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to demonstrate that, at the time Mrs. Rogers and Dohrmann entered into the contract in question,

Mrs. Rogers had suspicions regarding Dohrmann's motives and would, therefore, have been

reluctant to enter into such a contract with him. This demonstration of Mrs. Rogers' state of

mind at the time the contract was signed is precisely into the state of mind exception to the

hearsay rule. See Caffey, 205 Ill. 2d at 91. The circuit court considered this question and found:

                       "[T]here are significant circumstances of unfairness

               surrounding the Contract. The court rejects [Dohrmann's]

               argument that Mrs. Rogers' suspicions regarding Dr. Dohrmann's

               motives are inadmissible hearsay. [The Estate is] correct that these

               are admissible because they are offered to prove Mrs. Rogers' state

               of mind, and not for the truth of the matter asserted. Guski v. Raja,

               409 Ill. App. 3d 686, 699-700 (1st Dist. 2011). These statements

               are being offered to demonstrate that Mrs. Rogers held suspicions

               toward Dr. Dohrmann, and thus would presumably have been less

               included to enter into a contract of this nature with him. This is

               only one of several aspects of this transaction that support [the

               Estate's] argument about circumstances of unfairness."

We agree with the circuit court, particularly insofar as these statements, admitted as an exception

to the hearsay rule, are merely one of the myriad reasons we find that the execution of this

contract was surrounded by circumstances of unfairness.




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¶ 45   In the instant case, the circuit court properly granted summary judgment in favor of the

Estate where there was no genuine issue as to any material fact. The circuit court properly found

that the contract was unenforceable.

¶ 46                                   III. CONCLUSION

¶ 47   For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 48    Affirmed.




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