Furniss v. Rennick

                                3-96-0458

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             THIRD DISTRICT

                               A.D., 1997

JUDY A. FURNISS                 )  Appeal from the Circuit Court

                               )  of the 10th Judicial Circuit,

    Plaintiff-Appellant,       )  Peoria County, Illinois

                               )

    v.                         )  No. 93-L-552   

                               )

JOHN D. RENNICK, JR., EXECUTOR  )

OF THE ESTATE OF JOHN D.        )

RENNICK, Deceased, EDNA L.      )

CARROLL, PATRICIA ANN AKINS     )

and VIVIAN J. JOHNSON,          )  Honorable

                               )  Richard Grawey,

    Defendants-Appellees.      )  Judge Presiding.

JUSTICE BRESLIN delivered the opinion of the court:

    The question presented by this appeal is whether a deponent's

estate may rely on Supreme Court Rule 212 (134 Ill. 2d R. 212) to

bar the use of admissions made by the deponent in a discovery

deposition taken before his death.  For the reasons which follow,

we hold that it cannot.       

    Judy Furniss filed a legal malpractice action against attorney

John Rennick alleging that he breached a duty of professional care

when drafting the wills of her father and step-mother, Paul and

Edna Carroll.  The action arose following Paul's death when Edna

revoked her will which directed that the family residence and one-

third of their combined estate was to pass to Judy.  Edna's will at

the time of her death excluded Judy and bequeathed the entire

combined estate to her two daughters by a prior marriage.  

    Judy alleged that Paul and Edna told Rennick that upon the

death of the survivor the family residence and one-third of their

combined estate was to pass under their wills to her.  Judy alleged

that the failure to inform Paul that Edna could revoke her will if

he died first was a breach of duty.  Additionally, she alleged that

drafting the wills in a manner which did not cause Edna to refrain

from revoking the will was also a breach of duty.  Ultimately, Judy

asserted that Rennick's negligence resulted in her loss of the

family home and her share of the estate.

    Rennick died soon after his discovery deposition was taken.

Consequently, in order to prove her allegations, Judy needed to use

certain admissions made by Rennick in his deposition.  She asserted

that the relevant portions of the deposition would be admissible at

trial.  The executor disagreed and filed a motion for summary

judgment.  He argued that the admissions in the deposition were

inadmissible at trial, and therefore, Judy had insufficient

evidence to support her malpractice action.  Relying on this

Court's opinion in Riblet Products Corp. v. Starr National, 242

Ill. App. 3d 988, 611 N.E.2d 68 (1993), the trial court ruled that

any statements recorded in the discovery deposition were

inadmissible evidence.  Therefore, judgment was awarded to

defendant because Judy could not produce sufficient evidence to

sustain her burden of proof.  Judy appeals.  

    Resolution of this dispute depends on an interpretation of

Supreme Court Rule 212 (134 Ill. 2d R. 212).   The relevant parts

of Rule 212 provide:

    (a)  Purposes for which Discovery Depositions May Be

    Used.  Discovery depositions taken under the provisions

    of this rule may be used only:

                             * * *

         (2)  as an admission made by a party or by an

         officer or agent of a party in the same manner and

         to the same extent as any other admission made by

         that person;

                             * * *

    (b)  Use of Evidence Depositions.  [Portion omitted].

    All or any part of other evidence depositions may be used

    for any purpose for which a discovery deposition may be

    used, and may be used by any party for any purpose if the

    court finds that at the time of the trial:

         (1)  the deponent is dead or unable to attend or

         testify because of age, sickness, infirmity, or

         imprisonment;

                             * * *

     (134 Ill. 2d R. 212).

    Interpreting Supreme Court Rules involves the same principles

which are applicable when interpreting statutes.  Arnett v. Young,

269 Ill. App. 3d 858, 646 N.E.2d 1265 (1995).  The primary rule of

statutory interpretation is that the court should ascertain and

give effect to the intent of the legislature.  Bonaguro v. County

Officers Electoral Board, 158 Ill. 2d 391, 634 N.E.2d 712 (1994).

When ruling on a motion for summary judgment, the court may only

consider evidence which is admissible at trial.  Fearon v. Mobil

Joliet Refining Corp., 131 Ill. App. 3d 1, 475 N.E.2d 549 (1984).

    In Abel v. General Motors Corp., 155 Ill. App. 3d 208, 507

N.E.2d 1369 (1987), the court held that after a deponent's death,

admissions in the deponent's discovery deposition could not be

considered by the trial court when ruling on a motion for summary

judgment.  The court, citing Rule 212, reasoned that only

evidentiary facts could be considered by the trial court when

ruling on the motion, and the discovery deposition could not be

considered because only evidence depositions could be used to

provide testimony in court.  Abel, 155 Ill. App. 3d at 221, 507

N.E.2d at 1378.  This Court followed the Abel decision in  Riblet

Products Corp. v. Starr National, 242 Ill. App. 3d 988, 611 N.E.2d

68 (1993).

    However, the fourth district appellate court specifically

rejected Abel in Overcast v. Bodart, 266 Ill. App. 3d 428, 639

N.E.2d 984 (1994), and held that the admissions made in a discovery

deposition could be submitted into evidence as admissions of a

party opponent against that individual's estate.  Overcast, 266

Ill. App. 3d at 433, 639 N.E.2d at 987 (citing Patten v. Knowe, 354

Ill. 156, 188 N.E. 173 (1933)).  The court found it illogical to

refuse the entry of the admissions into evidence when Supreme Court

Rule 212(a)(2) specifically provides that a discovery deposition

may be used as an admission made by a party to the same extent as

any other admission made by that individual.  Overcast, 266 Ill.

App. 3d at 433, 639 N.E.2d at 987.  The court reasoned that the

dichotomy between 212(a) and 212(b) was to allow evidence

depositions to be introduced at trial by the personal

representative of the party declarant, but prevent the

representative from introducing the declarant's discovery

deposition.  Overcast, 266 Ill. App. 3d at 433, 639 N.E.2d at 987.

Thus, the restriction is on the representative of the declarant,

not upon the party opponent.

    We agree with the reasoning in Overcast.  Subsection (a)(2) of

the Rule clearly states that admissions in discovery depositions

can be used in the same manner as any other admission made by that

party.  (134 Ill. 2d R. 212(a)(2)).  Additionally, we fail to see

the rationale in allowing admissions in a decedent's books and

papers to be used against his estate after his death, (see Patten,

354 Ill. at 161, 188 N.E. at 175), but not admissions in a

discovery deposition.  A deposition is taken under oath and is

recorded by a court reporter.  Thereafter, the deponent may review

the transcripts to ascertain their accuracy.  In the present case,

the deponent had that opportunity but waived it.

    Furthermore, subsection (b) is silent as to the use of

discovery depositions.  It governs only the use of evidence

depositions and does not state that discovery depositions may not

be used at trial by a party opponent.  In the present case, the

alleged admissions were made by the decedent in a discovery

deposition, and therefore, come within the scope of subsection (a)

of the Rule rather than (b).  Hence, as subsection (a) allows the

introduction of admissions to the same extent as any other

admissions made by that party, the plain meaning of Rule 212

permits the introduction of the admissions at trial.  

    Therefore, we hold that Supreme Court Rule 212 (134 Ill. 2d R.

212) permits the introduction of the deponent's admissions at

trial.  Any statements which the trial court concludes are relevant

admissions are not precluded from evidence by Rule 212 and may be

considered by the court when ruling on defendant's motion for

summary judgment.  Accordingly, we reverse the trial court's

decision granting defendant summary judgment and remand.  To the

extent that Riblet Products Corp. v. Starr National, 242 Ill. App.

3d 988, 611 N.E.2d 68 (1993) is inconsistent with this opinion, it

is overruled.

    For the foregoing reasons, the judgment of the circuit court

of Peoria County is reversed and remanded to the circuit court for

further hearings consistent with this opinion.                   

    Reversed and remanded.

    LYTTON, P.J., and SLATER, J., concur.