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In Re Estate of Neprozatis





APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY KOGUT, Judge, presiding.


Rehearing denied August 16, 1978.

This case involves the rescission of a home repair contract between Robert White, d/b/a J & B Heating and Cooling Company, and Esther Neprozatis. Subsequent to the execution of this contract, Neprozatis' granddaughter petitioned the circuit court of Cook County for a citation to recover Neprozatis' assets. This petition alleged that Esther Neprozatis was incompetent; that she had come under the influence of Robert White; that she was unable to resist the demands of White; and that White had obtained from her approximately $25,000 for pretended home improvements. After a hearing without a jury, the circuit court ordered White to return $27,389 to Neprozatis. White appeals, contending that the amount of the judgment is not supported by the record; that the circuit court failed to recite a valid ground for its order of rescission; and that the court erred when it based its determination of unconscionability on the premise that there was only one contract between the two parties and when it considered its own experience in ascertaining the proper value of the repair services.

Karen Baines, Neprozatis' granddaughter, filed the citation petition on April 11, 1977. This petition indicated that Baines' request for appointment as conservator of Neprozatis' estate was pending. Subsequent to discovery proceedings, Baines amended her petition. The hearing on the amended petition commenced on September 21, 1977.

The evidence elicited at this hearing revealed that Esther Neprozatis is an 81-year-old widow; that she lives in a house that is approximately 60 years old; that sometime in early January of 1977 she allegedly telephoned J & B Heating and requested a furnace inspection; that in response to this request White sent a subcontractor to her home to conduct this examination; that the subcontractor completed the $12.95 furnace inspection during which he allegedly discovered that Neprozatis' furnace had a cracked heat exchanger; that the subcontractor then called White and related what he had allegedly found; and that at this time White went to Neprozatis' house, inspected her furnace, confirmed the subcontractor's diagnosis and indicated to Mrs. Neprozatis that she would need a new furnace. During the next month, White and his subcontractors drove Mrs. Neprozatis to two savings and loans where, at their direction, she withdrew $7,489. This money was turned over to White prior to the installation of the new furnace. Subsequent to this, additional repairs were made in Mrs. Neprozatis' home, and she issued additional checks to White to pay for this work. The following is a summary of all the work performed by White's subcontractors and the money paid therefor:

Money received Date money Work performed by White's subcontractors for by White received price stated at left ______________ __________ $2500 1/10/77 Furnace installation and humidifier. $1789 1/20/77 Electric clock Cronotherm, transformer, new wiring, new duct to chimney. $3200 1/24/77 New duct work. $2500 2/5/77 Central air conditioning and its installation. $2500 2/5/77 100 AMP Electrical Service and its installation. $1700 2/24/77 Electric air cleaner. $5800 2/24/77 House repair and repainting. $2800 2/26/77 Additional sheet metal work. $2300 3/14/77 Additional electrical work.

White introduced seven written documents which he contended were evidence of these transactions. Although these writings contained a correct description of the work performed and the corresponding amounts involved and appeared to have been signed by Mrs. Neprozatis, Karen Baines testified that the signature on five of the documents was not that of her grandmother.

White conceded that he did not do any of the work performed at Neprozatis' home but stated that he parcelled out the work to various subcontractors. He also admitted that he inspected the quality of his subcontractors' work only on occasion, and that on this particular job he paid the subcontractors a commission equal to 10% of the amount billed to the customer for each task. White further testified that his cost for having the repairs done to Neprozatis' home amounted to approximately $6502, and he indicated that this figure was based on his expenditures for materials, labor and commissions.

Petitioner's expert witness, who had 40 years of experience as a registered engineer and architect and who was a professor of architecture at the University of Illinois, indicated that he had carefully examined all of the work done to Mrs. Neprozatis' home and gave extensive testimony as to the retail and wholesale value of the materials used by White's subcontractors. He stated that none of the work was done in a competent, professional manner and consequently it would have to be entirely redone. For this reason he said that the labor costs should be valued at zero. He also testified that the retail value of the materials used was approximately $1,539.70; that a reasonable charge for the labor, overhead and profit, if the job had been properly done, would have been around $3200; and that the total charge for a satisfactory job should not have exceeded $4,000.

The expert witness was unable to examine the steel, hot-air furnace which was removed from the Neprozatis home to make way for the installation of White's new furnace since it had been destroyed prior to his inspection. However, he stated that in all his experience he had never observed a cracked heat exchanger on a furnace of that type. For such a crack to occur, he said that there would have to be a rapid heating of the metal to a very high temperature immediately followed by a sudden cooling. In his opinion these conditions could only be produced by a flood in the area where the furnace was located. Furthermore, the expert testified that a cracked heat exchanger could easily be identified because this condition causes the release of hydrogen sulfide gas which smells like rotten eggs.

Respondent's expert witness, who held a bachelor's degree in electrical engineering and who had 43 years of experience inspecting furnaces for People's Gas, Light & Coke Company, testified that cracked heat exchangers are common, that this condition is very dangerous, and that in the last 20 years cracked heat exchangers have become much more prevalent due to the use of aerosol sprays in the household. He explained that aerosol sprays expel halogenated hydrocarbons into the air which have a corrosive effect on the metal surfaces of furnaces and other heat producing appliances. The expert stated that halogenated hydrocarbons would not affect the surface of a modern, electric refrigerator because it is not heat producing, but he admitted that they would corrode an older heat fired refrigerator. He further testified that a cracked heat exchanger would not necessarily produce a sulfur dioxide smell because the gas companies have reduced the sulfur content of their gas to an absolute minimum.

Esther Neprozatis was adjudicated incompetent on May 4, 1977, and Karen Baines was then appointed as her conservator. This adjudication took place approximately one month after White's subcontractors had stopped working in the incompetent's home.

Respondent contends initially that the judgment of $27,389 in favor of petitioner is not supported by the record on appeal. After carefully examining the exhibits introduced into evidence during the trial of this matter, we must agree. These receipts and checks reveal that White received $25,089 from Neprozatis, not $27,389. Accordingly, the judgment will be reduced by $2300.

White's primary argument in this appeal is that the trial court failed to state a valid ground for its order of rescission. He calls attention to the fact that the court mentioned the following three grounds when it rendered its decision: unconscionability, incompetency and fraud. First, respondent argues that unconscionability has never been recognized as a proper reason for granting this type of equitable relief. Although he admits that incompetency and fraud are valid grounds, respondent further argues that neither ground is a legitimate basis for rescission in this particular case. Specifically, he bases the second portion of this argument on his contention that the petitioner failed to introduce sufficient evidence to ...

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