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Ogle v. Fuiten

OPINION FILED FEBRUARY 24, 1983.

JAMES ELVIN OGLE ET AL., PLAINTIFFS-APPELLANTS,

v.

LORRAINE FUITEN, EX'X OF THE ESTATE OF WILLIAM E. FUITEN, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Sangamon County; the Hon. Richard J. Cadagin, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

This case alleges legal malpractice.

The complaint was dismissed below.

It should not have been.

We reverse and remand.

Plaintiffs are third-party nonclients who allege they were the intended beneficiaries of wills drafted by attorney William Fuiten. They allege that the wills failed to include a contingency which did occur, and under which the testator desired plaintiffs to be the beneficiaries. The failure of the wills to provide any beneficiaries under the contingency resulted in an intestate devolution.

The motion to dismiss was filed pursuant to sections 45 and 48 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, pars. 45, 48.) It alleged, inter alia, that (1) there is no recognized cause of action in Illinois by third-party nonclients against an attorney for allegedly negligent performance of his duty to his clients, and (2) the validity of the wills had previously been litigated and the underlying issues were not now subject to collateral attack. The trial court dismissed the action, citing Favata v. Rosenberg (1982), 106 Ill. App.3d 572, 436 N.E.2d 49, which held that in the absence of a duty to a third-person non-client, no cause of action based on negligent performance of personal services can exist. We reject both grounds urged in the motion to dismiss.

I

• 1 One month after the filing of Favata, our supreme court filed its opinion in Pelham v. Griesheimer (1982), 92 Ill.2d 13, 440 N.E.2d 96. In Pelham, the court discussed the same cases relied upon in Favata and noted that they were premised upon the requirement of privity. After discussing the trend in tort law to abolish the privity requirement, the court stated:

"[T]o establish a duty owed by the defendant attorney to the non-client the non-client must allege and prove that the intent of the client to benefit the non-client third party was the primary or direct purpose of the transaction or relationship." (92 Ill.2d 13, 20-21, 440 N.E.2d 96, 99.)

The court then discussed how the scope of the attorney's liability could be limited by analogizing the scope of the duty to the concept of a third-party beneficiary.

In Pelham, the plaintiffs were the children of a divorced couple and the defendant was the attorney retained by the mother in the divorce action. The divorce decree ordered the husband to maintain his children as beneficiaries of life insurance policies. The husband did not comply, and the children claimed that defendant breached his duty by failing to notify various parties of the circumstances. The court found that no cause of action for breach of contract was stated under a third-party beneficiary theory of recovery since it failed to allege — legally or factually — that a contract was entered into for the direct benefit of the plaintiffs. Furthermore, no cause of action in negligence was stated since the attorney had no duty to a divorced client's children under the circumstances. It then reiterated that to establish the duty, the plaintiffs must plead and prove that the relationship between the attorney and his client was entered into for the primary and direct benefit of the plaintiff, plus other traditional elements of negligence.

Defendants characterize the Pelham language as dictum and argue that without a holding creating this cause of action, Favata must control. We believe the relevant language may be construed as dictum since it was not supported by the force of an adjudicated valid cause of action. Nonetheless, we cannot ignore the clearly ...


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