286 Ill. App. 3d 318 | Ill. App. Ct. | 1997
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.