FIFTH DIVISION
December 22, 2006
No. 1-05-3588
BROWN, UDELL AND POMERANTZ, LTD., ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. )
)
FRANCES RYAN and SHARON McCOLLUM, as Co- ) Honorable
Executrixes of the Estate of Daniel McCollum, Deceased, ) Margaret Brennan,
) Judge Presiding.
Defendants-Appellees )
)
(Charles Watson, Defendant). )
JUSTICE GALLAGHER delivered the opinion of the court:
This is an appeal from a grant of summary judgment that was based upon the Frauds Act
(740 ILCS 80/1 (West 2004)) (statute of frauds). We reverse and remand.
BACKGROUND
Plaintiff Brown, Udell & Pomerantz, Ltd. (BUP), is a law firm. This case arises from
BUP's claim for attorney fees incurred in representing defendant Charles Watson (Watson) in
litigation at the trial and appellate levels. In June 2000, BUP entered into a written agreement
with Watson to provide legal services to invalidate an ordinance enacted by the Village of Stone
Park prohibiting the possession of various video amusement devices. At the time, Watson was
1-05-3588
the owner of The Deluxe Grill, in Stone Park, which had video amusement devices.
In July 2000, BUP filed pleadings in the circuit court of Cook County, Illinois, in Watson
v. Stone Park, No. 00 CH 9639. Watson was the only named plaintiff. BUP sought and
successfully obtained a temporary restraining order which prohibited Stone Park from enforcing
its ordinance. The temporary restraining order was in place until July 2002. Ultimately, however,
BUP lost in its attempt to invalidate the Village of Stone Park ordinance. The trial court
dismissed the case, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615)
(West 2000)), and the order was affirmed on appeal. Watson v. Village of Stone Park, 343 Ill.
App. 3d 1300, 856 N.E.2d 695 (2003) (unpublished order under Supreme Court Rule 23).
Watson has never made any payments to BUP for work performed on the ordinance case.
In December 2003, BUP filed a complaint against Watson, the estate of Daniel McCollum,
(the Estate),1 and Service Amusement Corporation (Service Amusement) seeking recovery for
breach of contract for legal fees in the amount of $32,593.98. On April 1, 2004, BUP filed an
amended verified complaint adding counts for quantum meruit and unjust enrichment against all
three defendants.
Daniel McCollum (the decedent) died in July 2003. At the time of his death, the decedent
was associated with Service Amusement. Although the decedent and Service Amusement made
payments to BUP totaling $90,363.57, and BUP also received refunds for its expenses, apparently
1
Initially the Estate was the named defendant. Because the Estate is not an entity that can
be sued, BUP was permitted to add the actual defendants, Frances Ryan and Sharon McCollum,
the co-executrixes of the Estate of Daniel McCollum.
2
1-05-3588
no payments have been made to BUP since at least May 2003. Despite the fact that BUP had a
written agreement with Watson only, BUP alleged that it had, prior to the decedent's death,
performed legal services for both the decedent and Service Amusement based on oral agreements.
In its amended verified complaint, BUP alleged that Service Amusement, which provided
the video amusement devices to The Deluxe Grill, received substantial revenues from these
devices and that the decedent, in turn, personally received substantial revenues from Service
Amusement. BUP alleged that, prior to its representation of Watson in the litigation, the decedent
orally agreed to pay Watson's legal fees and that the decedent and Service Amusement were
primarily responsible for all legal fees, costs and interest incurred by BUP in its attempt to
invalidate the Stone Park ordinance. The only parties who witnessed the decedent's alleged oral
promise were Watson and Udell. BUP claimed that the decedent made the oral promise to pay in
June 2000, during a telephone call that took place between the decedent and Glenn Udell (Udell),
a principal and shareholder of BUP, and again in BUP's office at a meeting that took place
between the decedent, Udell and Watson. BUP also claimed that Udell specifically stated to
Watson that although the decedent and Service Amusement had agreed to pay, Watson would be
liable for all fees, costs and interest incurred by BUP if either the decedent or Service Amusement
did not pay. Watson allegedly agreed to be responsible for the fees in the event that the decedent
and Service Amusement did not pay. It is undisputed that BUP had no written agreement with
either the decedent or Service Amusement for the legal services performed in connection with the
Stone Park ordinance.
In May 2005, the Estate filed a motion for summary judgment based upon several
3
1-05-3588
grounds, including the Dead-Man's Act (735 ILCS 5/8-201 (West 2002)) and the statute of
frauds. On July 18, 2006, after full briefing and oral argument, the circuit court granted the
Estate's motion for summary judgment based on the statute of frauds. On October 6, 2005, after
full briefing and oral argument, the circuit court denied BUP's motion to reconsider and granted
BUP's request for Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) language. This timely
appeal followed.
ANALYSIS
Our standard of review is de novo. In re Estate of Hoover, 155 Ill. 2d 402, 615 N.E.2d
736 (1993). A plaintiff who opposes summary judgment need not prove his case, but must
provide some factual basis which could arguably result in a favorable judgment. In re Estate of
Sewart, 236 Ill. App. 3d 1, 8, 602 N.E.2d 1277, 1281 (1991). On a motion for summary
judgment, the court cannot consider any evidence that would be inadmissible at trial. Watkins v.
Schmitt, 172 Ill. 2d 193, 203-04, 665 N.E.2d 1379, 1385 (1996); CCP Ltd. Partnership v. First
Source Financial, Inc., ___ Ill. App. 3d ___, ___, 856 N.E.2d 492, 498 (2006); Sameer v. Butt,
343 Ill. App. 3d 78, 85, 796 N.E.2d 1063, 1068 (2003); Wiszowaty v. Baumgard, 257 Ill. App. 3d
812, 819, 629 N.E.2d 624 (1994). Thus, the party opposing summary judgment must produce
some competent, admissible evidence which, if proved, would warrant entry of judgment for the
opposing party. Davis v. Times Mirror Magazines, Inc., 297 Ill. App. 3d 488, 494-95, 697
N.E.2d 380 (1998).
The trial court's decision to grant summary judgment was based solely upon the statute of
frauds. BUP incorrectly asserts that the trial court “denied” summary judgment on the other
4
1-05-3588
grounds raised by the Estate. The written order merely states the grounds upon which summary
judgment was granted, and as the Estate notes, the trial court declined to rule upon the Estate's
other theories. The record contains no transcript of the hearing. Thus, we must conclude that the
court did not even address the other grounds.
BUP also incorrectly contends that the Estate had a duty to file a cross-appeal as to the
other grounds that were supposedly “denied.” This too is incorrect. Because orders denying
summary judgment are interlocutory in nature, the denial of summary judgment is ordinarily not
appealable. In re Estate of Funk, 221 Ill. 2d 30, 85, 849 N.E.2d 366, 397 (2006). In any event,
there was no “denial” of summary judgment. Moreover, not only is our review de novo, but this
court can affirm a grant of summary judgment on any basis appearing in the record, regardless of
whether the lower court relied on that ground. See, e.g., Home Insurance Company v. Cincinnati
Insurance Company, 213 Ill. 2d 307, 315, 821 N.E.2d 269, 275-76 (2004.)
The Frauds Act (740 ILCS 80/1 (West 2004)) provides as follows:
“No action shall be brought, whereby to charge any executor or
administrator upon any special promise to answer any debt or damages out of his
own estate, or whereby to charge the defendant upon any special promise to
answer for the debt, default or miscarriage of another person, or to charge any
person upon any agreement made upon consideration of marriage, or upon any
agreement that is not to be performed within the space of one year from the
making thereof, unless the promise or agreement upon which such action shall be
brought, or some memorandum or note thereof, shall be in writing, and signed by
5
1-05-3588
the party to be charged therewith, or some other person thereunto by him lawfully
authorized.”740 ILCS 80/1 (West 2004).
The Estate, citing Brown & Schinitzky Chartered v. Dentinger, 118 Ill. App. 3d 517, 455 N.E.2d
128 (1983), argued in its motion for summary judgment that the promise to pay the debt of
another must comply with the statute of frauds. Thus, the Estate contended that because BUP
had no written agreement with the decedent to pay Watson's legal fees, its claim was barred by
the statute of frauds. The trial court here granted summary judgment based on the statute of
frauds.
BUP asserts, however, that the statute of frauds does not apply to oral promises made
prior to the debt being incurred, i.e., that there must be an existing debt at the time of the alleged
guarantor's promise. BUP argues that Brown is inapposite because its agreement with the
decedent was not a collateral promise to pay the debt of another. Instead, BUP, citing Ricci v.
Reed, 169 Ill. App. 3d 1062, 523 N.E.2d 1218 (1988), and Villareal v Metropolitan Bank &
Trust Co., 277 Ill. App. 3d 188, 660 N.E.2d 69 (1995), asserts the decedent's promise was an
“original and independent” promise that does not fall within the statute of frauds. It appears that
BUP is correct.
Recently, this court decided that, despite many appellate court opinions to the contrary,
the statute of frauds did not bar an oral promise to pay that was made prior to the obligation of
the principal debtor. Rosewood Care Center, Inc. v. Caterpillar, Inc., 366 Ill. App. 3d 730, 733,
852 N.E.2d 540, 543 (2006), appeal allowed, No. 103212. The Rosewood court relied upon the
precedent of the Illinois Supreme Court in two cases from the late 1800's, Williams v. Corbet, 28
6
1-05-3588
Ill. 262 (1862), and Hartley Brothers v. Varner, 88 Ill. 561 (1878). The Rosewood court also
cited with approval Ricci v. Reed, 169 Ill. App. 3d 1062, 523 N.E.2d 1218 (1988), and disagreed
with Brown & Schinitzky Chartered v. Dentinger, 118 Ill. App. 3d 517, 455 N.E.2d 128 (1983).
We do note, however, the view of the special concurrence in Rosewood discussing “the general
and widely recognized trend to abandon the preexisting debt requirement.” Rosewood, 366 Ill.
App. 3d at 735, 852 N.E.2d at 545 (Lytton, J., specially concurring). Nonetheless, as discussed
in Rosewood, the precedent of the Illinois Supreme Court is that “the statute of frauds [is] only
applicable if the promise to pay the debt of another was made after the obligation of the principal
debtor [has] been incurred.” (Emphasis added.) Rosewood, 366 Ill. App. 3d at 733, 852 N.E.2d at
543. In the instant case, BUP does not allege that McCollum promised to pay Watson's debt after
Watson's obligation was incurred. Instead, BUP alleges that McCollum's promise to pay was
made contemporaneously with Watson's promise and was made before BUP performed, i.e.,
before Watson's obligation was incurred. Thus, because this case does not involve a preexisting
debt, we must hold that BUP's claim is not barred by the statute of frauds.
Nonetheless, assuming that the statute of frauds would not apply to the decedent's alleged
promise, the Estate asserted an additional ground as to why it was entitled to summary judgment,
namely, the Dead-Man's Act (735 ILCS 5/8-201 (West 2002)). The Estate contends that the
Dead-Man's Act bars BUP's claim against the Estate regardless of whether the decedent allegedly
made a “collateral” promise to pay Watson's debt or an “original and independent” promise to
BUP.
The purpose of the Dead-Man's Act is to protect decedents' estates from fraudulent claims
7
1-05-3588
and also to equalize the position of the parties with respect to giving testimony. Gunn v Sobucki,
216 Ill. 2d 602, 609, 837 N.E.2d 865, 869 (2005). The Dead-Man's Act provides, in relevant
part, as follows:
“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 shall be allowed to testify on his or her own behalf to any
conversation or event which took place in the presence of the deceased * * *.” 735
ILCS 5/8–201 (West 2002).
The Dead-Man's Act bars only that evidence which the decedent could have refuted. Gunn v
Sobucki, 216 Ill. 2d at 609, 837 N.E.2d at 869. The primary reason for the statutory exception is
the supposed inability of the representative to oppose the statements of the adversary. Van Meter
v. Goldfarb, 317 Ill. 620, 623, 148 N.E. 391, 392 (1925).
BUP, however, cites Greenberger v. Catalfo, 293 Ill. App. 3d 88, 687 N.E.2d 153
(1997), for the proposition that whether an agreement is collateral or original is always a question
of fact that only a jury can decide. BUP also asserts, without citation to authority, that the Dead-
Man's Act is applicable only to “a trial,” and not to pleadings, and also contends that a trial court
must “wait until trial” to determine whether a defendant will either “purposefully” or
“accidentally” enter into the record testimony related to the decedent's statements or acts. It is
apparently BUP's contention that the trial court must conduct a trial and see if the Estate
“purposefully” or “accidentally” enters statements or acts of McCollum into the record, which
8
1-05-3588
would then invoke an exception to the Dead-Man's Act.2
Contrary to BUP's assertions, its argument that the Dead-Man's Act is applicable only to
“a trial” has already been rejected by this court and the Dead-Man's Act may be applied within the
context of a summary judgment proceeding. Groce v. South Chicago Community Hospital, 282
Ill. App. 3d 1004, 1010, 669 N.E.2d 596, 600 (1996); Rerack v. Lally, 241 Ill. App. 3d 692, 694,
609 N.E.2d 727, 729 (1992). As this court has explained: “[I]t strains logic to construe the Dead
Man's Act in a manner that forces litigants to proceed to trial when it would be evident from an
application of the Dead Man's Act, in the context of a summary judgment proceeding, that a
litigant cannot prove his case.” Rerack, 241 Ill. App. 3d at 694-95, 609 N.E.2d at 729.
This court has affirmed summary judgment where a plaintiff had no admissible proof to
support her case after the trial court ruled that the Dead-Man's Act barred evidence of
conversations with the decedent or acts performed in the presence of the decedent. Kamberos v.
Magnuson, 156 Ill. App. 3d 800, 805, 510 N.E.2d 112, 115 (1987). Nonetheless, the trial court
here did not grant summary judgment based upon the Dead-Man's Act. We decline to rule upon
this ground that was never considered by the trial court. Instead, we remand this matter to allow
the trial court to further consider the Estate's motion for summary judgment, to determine
2
This exception states as follows: “If any person testifies on behalf of the representative 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, any adverse party or
interested person, if otherwise competent, may testify concerning the same conversation or
event.” 735 ILCS 5/8-201(a) (West 2002).
9
1-05-3588
whether the Dead-Man's Act applies, and, if so, whether it bars the action.
For all of the foregoing reasons, we reverse the grant of summary judgment in favor of the
Estate that was based upon the statute of frauds and remand this matter for further proceedings
consistent with this opinion.
Reversed and remanded.
O'BRIEN, P.J., and O'MARA FROSSARD, J., concur.
10