In re Etherton

Annotate this Case
NO. 4-95-0723




In the Matter of the Estate of DONALD W.) Appeal from
ETHERTON, Deceased, ) Circuit Court of
VAN A. BITNER, ) Mason County
Petitioner-Appellant, ) No. 93P62
v. )
Executors of the Estate of Donald W. ) Honorable
Etherton, Deceased, ) Fred W. Reither,
Respondents-Appellees. ) Judge Presiding.

PRESIDING JUSTICE COOK delivered the opinion of the


Petitioner Van A. Bitner filed a claim against the
estate of Donald W. Etherton (the decedent) for farm services
rendered by petitioner. After petitioner presented evidence that
he harvested and hauled crops for decedent, respondents Terry D.
Etherton and Shari L. Malson, the executors of the estate, moved
to dismiss the claim. Respondents argued that petitioner failed
to establish either that petitioner and decedent had intended
payment for the work, or the value and extent of the work. The
trial court dismissed the claim. Petitioner appeals, contending
(1) he presented a prima facie case for recovery in quantum
meruit, and (2) the trial court improperly excluded as hearsay an
admission of a party opponent made by decedent. We agree with
petitioner's first contention and reverse.
Decedent raised corn and soybeans in Mason County,
Illinois, until his death in November 1993. In February 1994, petitioner filed a verified claim against the estate for harvest-
ing services rendered. The claim was itemized as follows:
Combine and operator
110 acres at $ 30.00/acre.......$3,300.00
Truck and operator
110 acres at $ 4.00/acre........ 440.00
Truck operator
2 days @ $ 55.00/day............ 110.00
TOTAL: $3,850.00
After respondents denied payment, the trial court held a hearing
without jury on the claim.
At the hearing, petitioner attempted to proceed on
the alternate theories of express and implied contract. His
testimony was severely hampered because respondents made numerous
objections pursuant to the Dead-Man's Act (735 ILCS 5/8-201 (West
1992)), most of which were sustained by the court. Petitioner
was not permitted to testify regarding his conversations with
decedent, nor was he allowed to describe the harvesting work he
performed because the work was ruled an "event that took place in
the presence of the deceased." See 735 ILCS 5/8-201 (West 1992).
Petitioner testified that he had been a friend of
decedent, whom he had known all his life. Petitioner owned a
farm 10 to 12 miles distant from decedent's place. Decedent was
ill during 1993. On October 13, 1993, petitioner brought his
combine, 20-foot head and grain truck to decedent's farm in order
to harvest and haul soybeans. Steve Tracy (co-owner of the com-
bine), Beverly Bitner (petitioner's mother), decedent, and
petitioner all participated in the harvest. Petitioner stated
that he had not intended to donate his time, labor, and equip-
ment. He based his claim of $30 per acre harvest upon figures
supplied by the University of Illinois Cooperative Extension
Service (Extension Service). On cross-examination, petitioner
admitted that Extension Service tables listed the cost of owning
and operating a combine, and not the rates customarily charged
for harvesting services. The Extension Service tables listed the
operating cost of a 140-horsepower combine at $20 per acre, but
petitioner supplied a 150-horsepower combine. The Extension
Service tables listed grain hauling rates in bushels per mile,
not per day or per acre as petitioner had calculated in his
Beverly Bitner testified next. Although Beverly is
petitioner's mother, the trial court ruled she was not an "inter-
ested party" for purposes of the Dead-Man's Act, and thus the
court permitted Beverly to testify freely about events that took
place in decedent's presence. Beverly had been a friend and
houseguest of decedent. Harvest conditions were very poor in the
fall of 1993 because of heavy rainfall. Decedent farmed 500
acres without aid of employees, and by mid-October 1993, he had
not completed the harvest. Petitioner provided his combine,
truck, and labor to complete the harvest. When asked how many
acres of soybeans were harvested by petitioner, Beverly respond-
ed, "160 acres, I guess, although I really don't know." Beverly
stated petitioner did not haul any corn. She did some corn
hauling using decedent's truck. When petitioner's attorney asked
Beverly how petitioner came to perform the farm work, Beverly
attempted to relay what decedent had said. Respondents' objec-
tion to the testimony as hearsay was sustained. Petitioner made
no offer of proof regarding the content of decedent's statement.
John Dosier provided background information about
custom farming. Custom farming is the practice of providing
equipment and labor to harvest another's crops. Dosier did not
participate in the harvest of decedent's crops, but he performed
custom farming for others in the Mason County area. Harvest
conditions were extremely wet and poor in 1993, and that year
Dosier performed custom farming for many farmers who ordinarily
would not need his services. Dosier did not know the customary
rate charged to harvest soybeans, but he charged $40 to $50 per
acre of corn, depending on field conditions. Dosier acknowl-
edged, however, that it was "not unheard of" for neighbors to
harvest for free when a farmer needed help.
At the close of petitioner's evidence, respondents
moved to dismiss the claim. The court stated, "I find that there
has been no expressed agreement proven and on the implied agree-
ment I don't think that the evidence is sufficient to prove all
the elements of a claim either." Accordingly, the court granted
the motion.
In jury trials, verdicts may be directed only in those
cases in which all the evidence, when viewed in its aspect most
favorable to the opponent, so overwhelmingly favors movant that
no contrary verdict based on that evidence could ever stand.
Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967). By statute, there is a different rule
in nonjury trials. Where there is a motion in a nonjury case to
find for defendant at the close of plaintiff's evidence, "the
court shall weigh the evidence, considering the credibility of
the witnesses and the weight and quality of the evidence," and
rule accordingly. 735 ILCS 5/2-1110 (West 1994). Section 2-1110
of the Code of Civil Procedure (Code) recognizes that where the
judge is the trier of fact it is illogical to require the defen-
dant to put on its case when the judge is ready to rule for
defendant at the close of plaintiff's case.
There is a two-stage procedure under section 2-1110 of
the Code. At the first stage, the trial court determines whether
plaintiff has made out a prima facie case, whether "he has ***
presented at least some evidence on every element essential to
his cause of action." Kokinis v. Kotrich, 81 Ill. 2d 151, 154,
407 N.E.2d 43, 45 (1980). If he has not, defendant is entitled
to judgment as a matter of law. Kokinis, 81 Ill. 2d at 154-55,
407 N.E.2d at 45. If "plaintiff has made out a prima facie case"
(Kokinis, 81 Ill. 2d at 155, 407 N.E.2d at 45), then at the
second stage the trial court views the case "in the same manner
as it would had the defendant rested at the close of the plain-
tiff's case" (Kokinis, 81 Ill. 2d at 158, 407 N.E.2d at 46 (Ryan,
J., specially concurring)). See People v. Hawkins, 221 Ill. App.
3d 460, 464, 582 N.E.2d 243, 246 (1991). At the second stage,
the court may enter judgment for defendant, or it may deny
defendant's motion and allow defendant to put on its case. See
People v. Wise, No. 4-96-0035, slip op. at 6 (August 1, 1996),
___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___.
Petitioner contends the trial court wrongly concluded
that petitioner failed to present a prima facie case and dis-
missed the case without ever weighing the evidence. Petitioner
asserts that this court is therefore required to address this
matter as a question of law, i.e., whether petitioner presented
at least some evidence on every element essential to sustain a
cause of action in quantum meruit. However, it is not clear that
the trial court failed to reach the second stage of the Kokinis
procedure. The court simply stated that it found the evidence
insufficient to prove all the elements of a claim. The court's
statement may be interpreted two ways: (1) the court found that
petitioner failed to present at least some evidence on all
essential elements (largely a legal question), or (2) the court
found petitioner's evidence unconvincing or of insufficient
weight to meet his burden of proof (a factual question). The
trial court's factual determinations will not be overturned on
review unless they are against the manifest weight of the evi-
dence. Hawkins, 221 Ill. App. 3d at 463, 582 N.E.2d at 246.
Regardless of whether the trial court found
petitioner's evidence legally or factually insufficient, we hold
that it erred in dismissing the claim. Although the trial court
properly found that petitioner failed to prove the existence of
an oral agreement, petitioner presented sufficient evidence of
his entitlement to payment under a theory of quantum meruit to
survive respondents' section 2-1110 motion. Quantum meruit
describes "a cause of action which seeks to recover the reason-
able value of services which have been nongratuitously rendered,
but where no contract exists to prescribe exactly how much the
renderer should have been paid." Rohter v. Passarella, 246 Ill.
App. 3d 860, 866, 617 N.E.2d 46, 50 (1993). The law presumes
services knowingly and voluntarily accepted by a decedent during
the decedent's lifetime from nonfamily claimants to have been
performed with an expectation of receiving compensatory payment.
In re Estate of Brittin, 247 Ill. App. 3d 756, 760, 617 N.E.2d 877, 880 (1993). A claimant who performed such services is
entitled to receive the reasonable value thereof. Brittin, 247
Ill. App. 3d at 760, 617 N.E.2d at 880. If such services were
performed by a family member, however, they are presumed to be
gratuitous. Brittin, 247 Ill. App. 3d at 760, 617 N.E.2d at 880.
It has been said that quantum meruit claims against an
estate should be scrutinized with care (In re Estate of Rollins,
269 Ill. App. 3d 261, 273, 645 N.E.2d 1026, 1034 (1995)), and
that a claimant has the burden of proving a claim against an
estate by clear and convincing evidence (In re Estate of Milborn,
122 Ill. App. 3d 688, 690-91, 461 N.E.2d 1075, 1078 (1984); but
cf. In re Estate of Sewart, 274 Ill. App. 3d 298, 309, 652 N.E.2d 1151, 1159-60 (1995); In re Estate of Brumshagen, 27 Ill. App. 2d
14, 22, 169 N.E.2d 112, 116 (1960) (preponderance of the evidence
standard applied)). Petitioner's evidence was sketchy, largely
because of the restrictions placed on his testimony pursuant to
the Dead-Man's Act, but the evidence was nevertheless sufficient
to raise a presumption in favor of recovery.
Petitioner established that he was not a relative of
decedent, he performed a valuable service for decedent, he
intended to be paid for his work, and decedent knowingly and
voluntarily accepted the benefit of petitioner's labor and
equipment. Nothing in the record contradicts petitioner's
evidence, nor is there any indication that the trial court found
the testimony not credible.
Respondents contend, however, that petitioner failed to
establish (1) a reasonable expectation to be paid, (2) the nature
of the services rendered, and (3) the reasonable value of the
services. We disagree. First, as noted above, a presumption
arises that the parties intended payment under the facts present-
ed. The facts that petitioner was a friend of decedent and that
it is "not unheard of" for farmers sometimes to help each other
out for free are insufficient to erase this presumption. The
services provided were not trivial, and petitioner's heavy farm
equipment cost money to operate. Although the presumption of
nongratuity may burst if the friendship is of such a quality to
be nearly familial (see Sewart, 274 Ill. App. 3d at 310-11, 652
N.E.2d at 1160), the evidence here does not suggest that peti-
tioner and decedent shared anything more than a casual friend-
ship. Second, the evidence was sufficient to establish that
petitioner harvested decedent's soybeans. Petitioner's verified
claim stated that he harvested 110 acres, but his mother testi-
fied that he harvested approximately 160 acres. Had the Dead-
Man's Act not barred petitioner from testifying personally, any
confusion about the exact number of acres harvested might have
been removed. Respondents cannot complain that the proof exceed-
ed the claim. It is true that petitioner failed to establish
that he hauled any corn for decedent. However, the $110 sought
for corn hauling represents but a small fraction of the claim.
Petitioner's entire claim should not fail because of this lack of
proof. Finally, petitioner's evidence regarding the value of his
services was sufficient for the court to determine a reasonable
amount of compensation due.
We therefore reverse the dismissal. On remand, the
trial court is directed to proceed as if it denied respondent's
As we reverse and remand on the first issue, we need
not consider whether Beverly Bitner's testimony regarding dece-
dent's statements to her were properly excluded as hearsay. If
Beverly Bitner's testimony was not excluded under the Dead- Man's
Act, however, the testimony would appear to come in as an admis-
sion of a party opponent, an exception to the hearsay rule. If
Beverly Bitner was attempting to relate statements made by
decedent to plaintiff, of which she had no firsthand knowledge,
the objection was properly sustained.
Reversed and remanded.
GREEN and KNECHT, JJ., concur.