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01/28/97 JUDY A. FURNISS v. JOHN D. RENNICK

January 28, 1997

JUDY A. FURNISS, PLAINTIFF-APPELLANT,
v.
JOHN D. RENNICK, JR., EXECUTOR OF THE ESTATE OF JOHN D. RENNICK, DECEASED, EDNA L. CARROLL, PATRICIA ANN AKINS AND VIVIAN J. JOHNSON, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. No. 93-L-552. Honorable Richard Grawey, Judge Presiding.

Released for Publication March 7, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Kent Slater, Justice, Honorable Peg Breslin, Justice. Justice Breslin delivered the opinion of the court. Lytton, P.j., and Slater, J., concur.

The opinion of the court was delivered by: Breslin

The Honorable 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, 183 Ill. Dec. 215 (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, ...


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