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Borgeson v. Fairhaven Christian Home

AUGUST 16, 1971.

AGNES BORGESON, PLAINTIFF-APPELLANT,

v.

FAIRHAVEN CHRISTIAN HOME, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Winnebago County; the Hon. WILLIAM R. NASH, Judge, presiding.

MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT:

The plaintiff, Agnes Borgeson, appeals from an order entered September 1, 1970, by the circuit court of Winnebago County granting summary judgment in favor of the defendant.

The amended complaint alleged that on May 16, 1967, the parties entered into a contract whereby the plaintiff would pay the sum of $5300.00 and a monthly charge of $150.00 thereafter for which the defendant would furnish her lifetime care in the residential apartment owned by them. It states further that the plaintiff, in reliance on the contract, sold her home and made other personal and financial arrangements and did move into Fairhaven Home on March 31, 1968. On April 26, 1968, it is further alleged, she was forced to sign, under what is described in the complaint as duress of circumstances, a second contract that provided that the plaintiff would pay in addition to the $150.00 monthly charge her pro-rata share of any real estate taxes that might be assessed against the Home. As it turned out, taxes were assessed and the plaintiff's monthly charge was increased to $157.50 to include her pro-rata share. The complaint also alleged that the plaintiff was compelled to sign the second agreement because she was (1) 71 years old, (2) a recent widow, (3) had relied upon the first contract for lifetime care, and (4) had changed her financial circumstances on that reliance. The complaint sought to rescind the second contract and maintain the earlier agreement as binding on the parties.

Attached to the complaint as exhibits are copies of certain brochures prepared by Fairhaven describing the proposed facilities and their costs. They include a description of a "Type D" room that could be obtained for a "founder's fee" of $5300.00 and a monthly charge of $150.00. The actual contract signed by the parties on May 16, 1967, was attached to the defendant's answer and affirmative defense. It is entitled a "Deposit Agreement" and provides for a $1750.00 deposit on the total fee of $5300.00 with the balance to be paid at the time of entrance into the Home. It also provides that the plaintiff could withdraw from the agreement at any time prior to her actual move into the Home and obtain a refund of her deposit. The Deposit Agreement does not mention a monthly service charge but does provide that the parties execute a "Residence Contract" upon admission to the Home at which time the earlier agreement would, in its terms, "expire."

The Residence Contract signed by the parties on April 26, 1968, is also attached to the defendant's answer and provides for a monthly charge of $150.00 and, in addition, the disputed pro-rata share of any real estate taxes assessed against the Home.

The defendant's motion for summary judgment included all the pleadings previously filed in the cause with exhibits and a transcript of a discovery deposition of the plaintiff taken on April 30, 1970. At that time, the plaintiff stated that she was in good physical and mental health and had been in May of 1967 and April of 1968. She further testified that on April 26, 1968, a Mr. Hawkinson of the Home came to her room and asked her to sign the second agreement. They discussed the provision for payment of any assessed taxes and Mr. Hawkinson told her that he did not believe that any tax would in fact be assessed. The plaintiff then testified that she then "had to sign that agreement." She was then asked the following questions:

"Q. What force was used by anyone from Fairview Christian Home?

A. Hawkinson came into me and made me sign it.

Q. What did he do to make you sign it?

A. Oh, boy. Talked.

Q. All right. What did he say? Did he say anything other than what your have already testified?

A. No. I told you."

[1-3] The right to summary judgment is established by statute to enable the court to determine if there is any genuine factual issue to be resolved. (Ill. Rev. Stat. 1969, ch. 110, par. 57.) If the pleadings, exhibits and affidavits disclose that there is a genuine issue as to any material fact, summary judgment must not be granted. (American National Bank & Trust Co. v. Lembessis, 116 Ill. App.2d 5, 17; Reed v. Albanese, 78 Ill. App.2d 53, 57.) However a mere allegation that a genuine issue exists is not sufficient to preclude summary disposition if one does not appear from the record. Giampa v. Sunbeam Corp., 68 Ill. App.2d 425, 429.

From the record before us, it is clear that there was no genuine issue as to the facts of the case, but only the interpretation to be placed upon them, and that summary judgment was proper. There is no dispute that the plaintiff was a 71 year old widow who had sold her home and moved into the defendant's home prior to the time the parties signed the agreement on April 26, 1968. It is also not disputed that the plaintiff believed the monthly charges would be $150.00 although the only other contract she signed made no mention of the charges to be imposed. It thus ...


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