I promise there will be no ‘What’s In a Name?’ (the Bard), “What’s My Name?” (Snoop Dogg) or “I’ve Got a Name” (the late great Jim Croce) references. And while I’m on the subject – is there anything MORE 1970s AM-JAM or K-Tel then Jim Croce? I don’t think so. Well maybe that weird “Billy Don’t Be A Hero” song Ms. Sauer made us sing in third grade music class. (The video is even weirder! the band members are clad in Civil War garb. I S thee not!) Maybe I’m projecting but there always seemed something vaguely dark and unnerving about that song.
No idea where I’m going with this. But consider: would you pay someone $5.5M at your death just because that someone promised to use your last name as a tack-on middle name for his sons?
The First District definitely would not in Dohrmann v. Swaney, 2014 IL App (1st) 131524 (1st Dist. 2014), where the Court entered summary judgment against a plaintiff who sued a former neighbor’s estate to recover about $5.5M in money and assets under a written contract.
In the 1980s, the plaintiff – then a 40-year-old surgeon with a wife and two kids – befriended his elderly neighbor – Mrs. Rogers – a widow who was in her early seventies. In 2000, when Mrs. Rogers was 89 and the plaintiff was in his mid-fifties, Mrs. Rogers signed a contract drafted by the plaintiff’s estate planning attorney where Mrs. Rogers agreed to transfer at her death, her million-plus dollar apartment, its furnishings and a cool $4M in cash to the plaintiff all for – get this – the plaintiff’s promise to use the widow’s last name (Rogers) by adding it to plaintiff’s son’s middle names and for “past and future services.” That’s It.
Mrs. Rogers’ stated reason for the transfer (according to plaintiff) was to perpetuate her family name which would provide her with psychological Comfort.
After Mrs. Rogers signed the contract, the plaintiff legally changed his sons middle names to include the Rogers reference.
Over the course of the next several years, Mrs. Rogers transferred the home into a trust and slid further into dementia and a guardian was eventually appointed to manage her affairs.
The plaintiff sued in the Circuit Court to enforce the agreement. Mrs. Rogers’ (who died while lawsuit was pending) executor defended on the basis that the contractual consideration was grossly inadequate and shocked the conscience. The trial court agreed and entered summary judgment for the estate.
Held: Affirmed
Reasoning:
The Court found that contractual consideration was lacking and the evidence showed a disparity in bargaining power and over-reaching by the plaintiff.
The black letter contract elements are (1) offer, (2) acceptance and (3) consideration.
Consideration consists of some right, interest or benefit flowing to one party and some corresponding forbearance, detriment or loss from the other. Any act that benefits one side and disadvantages the other is generally considered sufficient consideration to form a binding contract. But, where the consideration is so grossly inadequate as to “shock the conscience”, the contract fails. (¶ 23).
A conscience-shocking failure of consideration is usually found in situations involving fraud and blatantly one-sided (unconscionable) or oppressive contracts. If there is a gross disparity in bargaining power or a blatant inequality of value exchanged, the Court will closely scrutinize the agreement and delve into the sufficiency of its consideration. (¶ 23). Where there is a complete failure of consideration, the Court can invalidate the entire transaction. (¶ 24).
Here, the Court found that the contractual consideration was shockingly absent on its face. For assets totaling $5.5M, all plaintiff had to do was file name change proceedings for his two adult (now) sons who promised to use the Rogers name as part of their name. But in their depositions, the sons testified that their use of the Rogers name was sporadic at best: they only used it on certain applications and documents through the years.
The First District found that only staggered and unverified name use can hardly qualify for valid consideration: it was an illusory promise. (¶¶33-34).
The other plus-factor cited by the court was the glaring disparity in bargaining power between the parties. Illinois courts will consider a contracting parties age, education and commercial experience when deciding whether to set aside a contract.
The plaintiff here was the stronger party in every way – physically, mentally and financially. (¶¶ 37-39). This obvious disparity added support for the court’s finding of unfairness.