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In Re Estate of William E. Walsh v. Estate of William E. Walsh

June 25, 2012

IN RE ESTATE OF WILLIAM E. WALSH, DECEASED
(PAUL KOWSIKOFF, PLAINTIFF-APPELLANT,
v.
ESTATE OF WILLIAM E. WALSH, DEFENDANT-APPELLEE. )



Appeal from the Circuit Court of McHenry County. No. 08-PR-193 Honorable Michael J. Sullivan, Judge, Presiding.

The opinion of the court was delivered by: Justice Schostok

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Presiding Justice Jorgensen concurred in the judgment and opinion. Justice McLaren dissented, with opinion.

OPINION

¶ 1 This case involves a claim against the estate of the decedent, William E. Walsh. The claimant, Paul Kowsikoff, alleged that he performed upholstering services while in the decedent's employ and also provided caretaking services to the decedent, and that he was never paid for any of these services. After Paul presented his evidence at trial, two of the heirs moved for a directed finding in favor of the estate. The trial court granted the motion, and Paul appeals. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 The facts set out below are taken from the record and the evidence that was introduced at trial. Except as noted, they are uncontradicted. The decedent worked as an upholsterer and had his own shop. He and his first wife, Ann, divorced in the 1970s. Four children were born of that marriage: Kathleen, William, Jr., John, and Tammy. The decedent later married his second wife, Naomi (known as "Kelly"). No children were born of that marriage. Kelly died in 1999.

¶ 4 The decedent died on June 24, 2008. His estate was opened a few weeks later. No will was submitted and the only heirs recognized were the decedent's four children. The estate included, among other things, several pieces of real property, valued at a total of $2,667,000 and subject to mortgages totaling $716,537.66; about $132,000 in cash; and personal property including cars, furnishings, and jewelry. On January 23, 2009, Paul filed a claim against the estate, seeking $387,832.50 as payment for upholstery services performed for the decedent's upholstery business during the previous five years (from January 25, 2004, through the date of the claim) and $7,840 for caretaking services rendered to the decedent shortly before his death. Other claims filed against the estate included a bank's claim for money owing on the loans secured by the mortgages, and two claims filed by David Clark and the decedent's son John for unpaid building repair and rehabilitation services.

¶ 5 Paul testified that in 1981 he came to the United States from Germany, where he had been an ironworker. Looking for work, he walked into the decedent's upholstery shop in Chicago and asked him for work. Kelly was present and urged the decedent to give Paul a chance, although Paul knew nothing about upholstery at the time. The decedent and Kelly taught Paul how to disassemble and reassemble furniture. Paul's testimony that he was employed by or performed services for the decedent was objected to on the ground of the Dead-Man's Act (735 ILCS 5/8-201 (West 2010)) and was stricken, as was his testimony that he did not receive any payment in return for his labor. However, Paul was able to testify that no one other than the decedent ever paid him for his upholstery work. He also testified that, outside of the decedent's presence, he refinished furniture, answered the phone, and upholstered furniture in the decedent's Chicago shop for the next two years.

¶ 6 At the end of those two years, Paul moved in with the decedent and Kelly at 1591 West Dundee Road in Palatine, a building that housed a workspace as well as a home. The decedent also had a shop in Palatine. Paul upholstered chairs and sofas, refinished antiques, and answered the business phone daily from 8 a.m. to midnight. From the decedent, Kelly, and the decedent's son John, Paul learned the craft of upholstery to the point that he was no longer an apprentice but became a "craftsman" who could work independently. Beginning in about 1989, when the decedent was not at the shop Paul collected payments from customers, always in check form. He gave these payments to the decedent and never kept any of them. According to Paul's answers to interrogatories, the decedent gave him gifts on his birthdays and on holidays, and gave him a gold ring with what appeared to be a diamond in 1984. Paul continued to live with the decedent and Kelly and work for the decedent's upholstery business, American Upholstery and Refinishing, for the next 15 or 16 years.

¶ 7 After Kelly died in 1999, Paul became the decedent's "right-hand person." About that time, the decedent sold the shop and the home in Palatine and bought a house at 8512 Route 120 in Wonder Lake. As before, Paul lived with the decedent. The decedent and Paul set up a workshop in the basement and stored fabrics and other supplies there. Paul worked out of the basement daily from early in the morning until late at night.

¶ 8 In 2004, the decedent bought a store at 4611 Elm Street in McHenry. He and Paul moved all of the fabric and supplies from the basement of the Wonder Lake house to the McHenry store. Paul continued to work for the decedent in the McHenry store. Paul did not have a car or a driver's license; he was driven to and from work by the decedent or John (who also worked out of the McHenry store for his own upholstery business). Paul was usually alone in the store all day, as the decedent would drop him off and go elsewhere. He worked approximately 14 hours per day, 7 days a week, and on holidays. He wrote out orders for upholstery jobs, ordered supplies, paid for them with checks written by the decedent, signed for deliveries, did the upholstering, and answered the phone. However, he did not keep the books for the business.

¶ 9 Paul introduced into evidence several bills and invoices that reflected deliveries to American Upholstery at the addresses Paul had identified as addresses where the decedent and he had operated their upholstery business. Several of the invoices from Metro, an upholstery supply business, listed "American Upholstery, Bill and Paul Walsh" as the business and persons to which the orders would be billed and shipped. Paul testified that this listing was not correct; Bill Walsh (the decedent) owned the business, and he (Paul Kowsikoff) managed it. The evidence also included handwritten customer orders for upholstery services, with "American Upholstery" and the business phone number written across the top. Paul testified that throughout the five-year claim period the decedent paid for Paul's Nextel cell phone, which was the business phone, and also Paul's health insurance. The phone bills admitted into evidence showed that the decedent was billed under his own name for the phone. The insurance bills were directed to Paul individually and bore handwritten notations that they had been paid by "business checks."

¶ 10 Paul was familiar with the corporation Honora Woods, which he described as a woodworking company formed by the decedent during a period when the upholstery business was slow. Paul stated that he was not employed by Honora Woods, however. He worked for the decedent and American Upholstery.

¶ 11 Paul also performed other services for the decedent. At the Wonder Lake house, Paul cooked, cleaned, and did the laundry and yard work. According to his answers to interrogatories, he provided these services in exchange for room and board. He accompanied the decedent grocery shopping. The decedent would pay for the groceries and Paul would cook the dinners, which were "a lot of pizza" and "small dinners." Paul also made coffee and breakfast for the decedent in the morning; Paul generally did not eat lunch. Paul did not go shopping by himself; according to him, he had no money, because he never got paid.

¶ 12 When Paul and the decedent first moved into the Wonder Lake house, the decedent wanted to clear a portion of the property, and Paul cut down approximately 200 trees with trunks ranging in size from three feet in diameter (about 10 of these) to young trees no bigger than sticks. A neighbor, Richard Buchert, described the Wonder Lake property as being about 14 or 15 acres, with a "very large" house having four or five bedrooms and an indoor swimming pool. Buchert had been inside the house. Paul had his own bedroom, with a television. Buchert stated that Paul did "all the work around the house" and confirmed that Paul cut down 200 trees over the course of about one year; Buchert used his tractor to help stack the wood, and in exchange Paul reupholstered the seats on Buchert's Jeep and did some other work in his home. Buchert, who stated that he and Paul "got to be good friends," also confirmed that he had seen Paul working in the McHenry store before 8 a.m. and after midnight, and stated that Paul "did all the upholstering." He saw Paul dealing with customers, and saw him take both cash and checks from customers paying for upholstery jobs. He did not see what Paul did with the cash.

¶ 13 Paul also worked in other ways as directed by the decedent. For instance, he worked on property the decedent owned in Union, as did John and David Clark. He painted some of the rooms in Tammy's house in St. Charles. Tammy did not pay him for this.

¶ 14 In January 2008, the decedent became ill with what first appeared to be a bad cold and he began coughing up blood. Eventually, it was learned that the decedent had cancer, and he died from it in June 2008. In May 2008, Paul began providing personal care to the decedent, cleaning his bed and otherwise taking care of him.

¶ 15 The day after the decedent died, Tammy came to the house and went from room to room looking around. Two days later, Kathleen called Paul while he was at work and told him that she and Tammy were at the house. He called John, who advised him to return home. Paul got a ride to the house from a neighbor. When he got there, Tammy and Kathleen were in his bedroom with a locksmith. They were working on opening the safe that was located in the closet of the bedroom. The safe had belonged to the decedent; it was moved into Paul's closet in 2000 or so. Paul did not know the combination and had thought it was empty. Paul called the police. When he was allowed back into the house, the safe was open and empty. Afterward, Paul called a locksmith and had the locks to the house changed. At some point after the decedent's death, Tammy went to the McHenry store with the administrator of the estate and took a folder of documents, including invoices, receipts, and business records, from the desk there.

¶ 16 Paul then attempted to introduce, as evidence that the decedent intended him to receive something for his upholstery work, a document with the heading "Last Will and Testament of William E. Walsh and Naomi A. Walsh." The document was handwritten and bore the date January 17, 1996. Paul first saw it in 1996. Paul's testimony that the decedent gave him the document was stricken under the Dead-Man's Act. Paul testified that the writing on the document was Kelly's; he had seen her handwriting and signature, as well as those of the decedent, on work orders and insurance forms. Paul attempted to testify that he recognized the decedent's and Kelly's signatures on the document, but the trial court sustained an objection to this testimony (which presumably was proffered to lay a foundation for admission of the document) as hearsay, and told Paul's attorney to move on. The document was not admitted into evidence. However, a copy of it was attached as an exhibit to certain interrogatory answers that were filed in connection with a motion, and thus it is part of the record on appeal. The document stated, among other things, that the home and property at 1591 West Dundee Road in Palatine were to be given to Paul after the decedent's death, along with $150,000.

¶ 17 John testified on behalf of Paul. He was experienced in the upholstery business and considered himself a master upholsterer. In the last 20 years, he had known three other master upholsterers: his brother Bill (William), his "brother" Ray (not otherwise identified in the record), and Paul. He formed the opinion that Paul was a master upholsterer in the late 1980s. He was aware of the hourly rates charged by master upholsterers in Chicago and the northern suburbs. In 2004, a master upholsterer would have been paid $22.50 to $23.25 per hour. In 2008, a master upholsterer could command $25 per hour. John had lived with the decedent through 1986, and he stated that he and Paul had worked late on many nights. Paul typically worked on weekends and holidays. For instance, Paul was in the basement of the Wonder Lake house working on New Year's Eve of 2004. John gave repeated examples of Paul working on various holidays and weekends and late at night.

¶ 18 Tammy testified as an adverse witness. Beginning in 1999, she would help the decedent with the books for his business from time to time, whenever he asked for such help. The decedent paid her for the time she spent doing this, although he never gave her a W-2 form for filing taxes. She would write checks for the business and pay bills. She never wrote any checks to Paul. Tammy was asked to recall her deposition testimony to the effect that Paul had been paid for all the work he had done and to explain how she believed that had occurred. Tammy repeatedly refused to answer the question, stating that she did not understand it, or did not know, or could not answer.

¶ 19 When Tammy and Kathleen went to the decedent's house after his death and opened the safe, there was more than $80,000 in cash in it, and jewelry. Tammy did not see any papers in the safe. When Kathleen testified, she confirmed that there was cash (more than $100,000) and jewelry in the safe, and maybe some keys, but no papers. Kathleen gave the cash to the administrator, although she withheld $5,000 to hire an attorney. She later repaid this money to the estate.

ΒΆ 20 Kathleen testified that she first met Paul in 1983, at her grandmother's funeral. She recalled Paul living with the decedent and Kelly on Dundee Road in Palatine. The decedent and Paul were doing upholstery work out of the home. She also saw Paul working out of the shop in Palatine, and also out of the McHenry store. She had been inside the Wonder Lake house, although never when the decedent was absent. She thought Paul's bedroom was about 12 feet by 12 feet. (Paul testified that his bedroom was 20 feet by 20 feet.) When asked whether it was her position that Paul "had gotten paid everything he's ...


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