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01/22/98 PAUL GANCI v. GARY BLAUVELT

January 22, 1998

PAUL GANCI, MARIE E. SECKER, JO ANNA CLAYCOMB AND ROSALIE JONES, PLAINTIFFS,
v.
GARY BLAUVELT, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT, V. KENNETH R. DEIHL, THIRD-PARTY DEFENDANT-APPELLEE.



Appeal from Circuit Court of Sangamon County. No. 92L271. Honorable Stuart H. Shiffman, Judge Presiding.

Honorable Frederick S. Green, J., Honorable James A. Knecht, J. - Concur, Honorable Robert J. Steigmann, J. - Concur. Justice Green delivered the opinion of the court.

The opinion of the court was delivered by: Green

The Honorable Justice GREEN delivered the opinion of the court:

On June 8, 1992, plaintiffs, Paul Ganci, Marie E. Secker, Jo Anna Claycomb, and Rosalie Jones, brought suit in the circuit court of Sangamon County against defendant and third-party plaintiff, Gary Blauvelt, and third-party defendant, Kenneth R. Deihl. Plaintiffs are the natural-born children of Leonard Ganci, and Blauvelt is the natural-born child of Delores Ganci, who was Leonard's wife. The complaint alleged Blauvelt and Deihl, an attorney-at-law, wrongfully deprived plaintiffs of a portion of Delores' estate to which they were entitled. In September 1996, plaintiffs dismissed their complaint as to Deihl.

On December 27, 1996, Blauvelt filed a third-party complaint against Deihl seeking contribution in regard to any judgment. On April 1, 1997, the court allowed Deihl's motion to dismiss the third-party complaint pursuant to section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 1996)) as untimely under sections 13-214.3(b) and 13-204(b) of the Code (735 ILCS 5/13-214.3(b), 13-204(b) (West 1996)).

In its order of dismissal, the circuit court made a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) making that order appealable. Blauvelt has appealed, contending that, under the complex statutory scheme involving third-party claims, his claim was timely. Deihl maintains the trial court correctly ruled the third-party claim was untimely. He also seeks to support the trial court order for the first time on appeal on the theory the third-party complaint was void because Blauvelt failed to obtain the court's permission to file the complaint, as required by section 2-406(b) of the Code (735 ILCS 5/2-406(b) (West 1996)). We hold the third-party complaint was not barred by section 13-214.3(b) or 13-204(b) of the Code and failure to obtain the trial court's permission to file the third-party complaint did not void it. Accordingly, we reverse and remand.

The substance of the complaint was as follows: (1) in January 1985, Deihl prepared a joint and mutual will for Leonard and Delores; (2) the will devised each one's estate to the other upon the death of the first and for the estate of the survivor to each of the plaintiffs and Blauvelt in equal shares; (3) the wills named plaintiff Ganci and Blauvelt as coexecutors; (4) Leonard died first, in December 1987; and (5) on or about January 15, 1988, Deihl mailed a copy of the joint and mutual will to all plaintiffs and Blauvelt, advising them that opening an estate was unnecessary because Leonard's property was held in joint tenancy.

The complaint further alleged that (1) on or about January 23, 1988, Delores retained Deihl to prepare a new will; (2) this document purported to bequeath all of Delores' property, including that obtained upon Leonard's death, to Blauvelt; (3) Delores also placed all of the property she obtained upon Leonard's death in joint tenancy with right of survivorship in favor of herself and Blauvelt; (4) Delores died in June 1991, at which time her will was admitted to probate and Blauvelt was named executor; and (5) sometime after Delores' death, Blauvelt admitted he was not entitled to most of what he received from Delores and agreed to share equally with each of the plaintiffs but only distributed approximately one-fifth of the assets he had agreed to share. In separate counts, plaintiffs asked for (1) a determination that the will of Leonard and Delores was joint and mutual, (2) imposition of a constructive trust on the property coming from Leonard and Delores, and (3) money damages.

In Blauvelt's third-party complaint, he alleged, in part, as follows:

"In the event that a judgment is entered in favor of the plaintiffs and against [Blauvelt], *** [Blauvelt] is entitled to a right of contribution from [Deihl] in an amount equivalent to [his] culpability in drafting the will of Delores M. Ganci and in an amount equivalent to [his] culpability in advising [Blauvelt] and acting as attorney for the estate while [Blauvelt] was acting as executor for the estate." (Emphasis added.)

We consider first the timeliness of Blauvelt's third-party complaint. His most serious contention in that regard is his assertion the complaint was barred by section 13-204(b) of the Code. Blauvelt maintains section 13-204 is inapplicable because his claim is for indemnity rather than contribution, but this would make no difference because section 13-204(c) states that section 13-204 is applicable to either contribution or indemnity claims. 735 ILCS 5/13-204(c) (West 1996). In any event, implied indemnity arises in cases of vicarious liability. American National Bank & Trust Co. v. Columbus-Cuneo-Cabrini Medical Center, 154 Ill. 2d 347, 350, 609 N.E.2d 285, 287, 181 Ill. Dec. 917 (1992); Allison v. Shell Oil Co., 113 Ill. 2d 26, 29, 495 N.E.2d 496, 498, 99 Ill. Dec. 115 (1986). Here, the third-party complaint is based upon Deihl's culpability in drafting Delores' will and in advising Blauvelt, all to the damage of plaintiffs. Thus, the liability is not alleged to be vicarious but one that is shared because of the combined actions of Blauvelt and Deihl.

Prior to January 1, 1995, when Public Act 88-538 became effective (Pub. Act 88-538, ยง 5, eff. January 1, 1995 (1994 Ill. Laws 154, 157), amending 735 ILCS 5/13-204 (West 1992)) (hereinafter amendment), section 13-204 of the Code had no subsections and stated:

"Contribution among tortfeasors. No action for contribution among joint tortfeasors shall be commenced with respect to any payment made in excess of a party's pro rata share more than 2 years after the party seeking contribution has made such payment towards ...


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