In re Estate of Rennick

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In re Estate of Rennick, No. 82872 (1/29/98)


Docket No. 82872--Agenda 29--September 1997.
In re ESTATE OF JOHN D. RENNICK, Deceased (Judy Furniss, Appellee,
v. John D. Rennick, Jr., Ex'r, et al. (John D. Rennick, Appellant)).
Opinion filed January 29, 1998.

JUSTICE NICKELS delivered the opinion of the court:
In this appeal, we decide whether admissions contained in a discovery
deposition are admissible against a deceased party's estate. Plaintiff, Judy
Furniss, brought a professional negligence action against attorney John D.
Rennick, alleging malpractice in the preparation of an estate plan. Following
attorney Rennick's death, his estate was substituted as a party. Prior to trial,
plaintiff sought a ruling on the admissibility against Rennick's estate of
admissions Rennick made in a discovery deposition. The Peoria County circuit
court ruled that under Supreme Court Rule 212 (134 Ill. 2d R. 212), Rennick's
admissions could not be used at trial against his estate. The circuit court
granted summary judgment in favor of the estate and plaintiff appealed. The
appellate court reversed. 286 Ill. App. 3d 318. We granted the estate's petition
for leave to appeal. 166 Ill. 2d R. 315. We affirm the appellate court's
judgment.

BACKGROUND
The pleadings and attached exhibits reveal the following information.
Paul Carroll and Edna Carroll were married in 1963. Paul had a daughter from
a prior marriage, Judy Furniss, who is the plaintiff in the present action. Edna
had two daughters from a prior marriage, Patricia Akins and Vivian Johnson.
In 1976, Paul and Edna sought legal assistance from attorney Rennick
regarding the transfer of a deed for the family residence. Rennick executed a
deed transferring title to the residence from Paul alone to Paul and Edna in
joint tenancy with a right of survivorship.
In 1986, Paul and Edna sought legal assistance from attorney Rennick
concerning the preparation of an estate plan. Rennick prepared one will each
for Paul and Edna, both containing similar dispositions. Each will had a
provision devising "my interest" in the family residence to Paul's daughter,
Judy Furniss. In addition, each will provided that the residue of the estate
would pass to the surviving spouse. In the event that the other spouse
predeceased, each will provided that the residue of the estate would be divided
equally between the three daughters: Judy Furniss, Patricia Akins, and Vivian
Johnson.
In 1991, Paul died. Edna became the sole owner of the family residence
as the surviving joint tenant. In addition, the residue of Paul's estate passed to
Edna pursuant to Paul's will. After Paul's death, Edna allegedly placed the
family residence in joint tenancy with her two daughters, Akins and Johnson.
Edna also allegedly revoked the will prepared by Rennick and executed a new
will. The new will purportedly leaves her entire estate to her two daughters,
eliminating any bequest to Furniss.
Furniss filed a complaint for legal malpractice against Rennick. The
complaint alleged that Furniss was an intended beneficiary of the attorney-client
relationship between Rennick and her father. The complaint further alleged that
Rennick was negligent in failing to inform her father that, should he die first,
Edna would be free to revoke her will and defeat any distribution to Furniss.
In addition, the complaint alleged that Rennick was negligent in failing to sever
the joint tenancy in the family residence, so that Paul's interest could pass at
his death to Furniss.
Rennick argued in a motion for summary judgment that he owed
plaintiff no professional duty because plaintiff was not an intended beneficiary
of the attorney-client relationship Rennick had with Paul Carroll. See generally
Pelham v. Griesheimer, 92 Ill. 2d 13 (1982). The trial judge granted the motion
in part. The trial judge ruled that it was Edna who was the intended primary
beneficiary of the residue of Paul's estate and plaintiff was a mere contingent
beneficiary as a matter of law. Therefore, the trial judge granted Rennick's
motion for summary judgment on the claim regarding the residue. However, the
trial judge denied summary judgment regarding the family residence. The trial
judge ruled it was a jury question whether Paul intended to directly benefit
plaintiff with the provision leaving her "my interest" in the family residence.
Plaintiff took Rennick's discovery deposition, inquiring into the
circumstances surrounding the creation of the joint tenancy. Rennick died after
his deposition and his estate was substituted as a party. Plaintiff then filed a
motion seeking a ruling that admissions contained in Rennick's discovery
deposition would be admissible against his estate at trial pursuant to Rule
212(a)(2). Plaintiff conceded she would be unable to meet her burden without
the admissions contained in Rennick's deposition. Rennick's estate contended
that the admissions could not be used at trial and filed a motion for summary
judgment.
The circuit court ruled that admissions contained in Rennick's discovery
deposition could not be used as evidence against his estate. The court
acknowledged that there was a split of authority in the appellate court on the
issue of whether admissions in a discovery deposition are admissible against a
decedent's estate pursuant to Rule 212. However, the court determined it was
constrained to follow the precedent of the Third District, which had rejected the
admissibility of such statements in Riblet Products Corp. v. Starr National, 242
Ill. App. 3d 988 (1993). The trial court therefore vacated its prior order
granting partial summary judgment and granted the estate's motion for
summary judgment. Plaintiff appealed.
The appellate court reversed. 286 Ill. App. 3d 318. The appellate court
declined to follow Riblet, instead finding persuasive the reasoning in the Fourth
District case of Overcast v. Bodart, 266 Ill. App. 3d 428 (1994).
In Overcast, plaintiffs in a personal injury action sought to introduce a
party's admissions contained in a discovery deposition after the party's death.
The Overcast court first noted that admissions other than those contained in a
discovery deposition are admissible against a decedent's estate. As an example,
the court cited to Patten v. Knowe, 354 Ill. 156, 161 (1933), which found
admissible notations discovered in a decedent's papers. The Overcast court then
examined the plain language of Rule 212(a)(2), which provides that a discovery
deposition may be used "as an admission made by a party *** in the same
manner and to the same extent as any other admission made by that person."
134 Ill. 2d R. 212(a)(2), quoted in Overcast, 266 Ill. App. 3d at 433. Applying
this language, the Overcast court determined that admissions contained in a
discovery deposition must be admissible against a decedent's estate in the same
manner as those admissions not contained in a discovery deposition.
Relying on Overcast, the appellate court held that admissions contained
in decedent's discovery deposition are admissible under Rule 212 and reversed
the order granting summary judgment in favor of Rennick's estate. We granted
the estate's petition for leave to appeal to resolve the conflict in the appellate
court. Our review is limited to the issue of whether it was error to grant
defendant summary judgment premised on the ruling that admissions contained
in a discovery deposition are inadmissible against a decedent's estate.

ANALYSIS
Summary judgment is appropriate where the pleadings, affidavits,
depositions and admissions on file, when viewed in a light most favorable to
the nonmoving party, show that there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Busch v. Graphic
Color Corp., 169 Ill. 2d 325, 333 (1996). The propriety of an order granting
summary judgment is an issue of law and our review is therefore de novo.
Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). Here,
the propriety of the order granting summary judgment rests on the construction
of Rule 212. The construction of a rule, like a statute, is also a question of law
that we review de novo. See 134 Ill. 2d R. 2(a), Committee Comments.
Rule 212 distinguishes between evidentiary and discovery depositions.
The purpose of a discovery deposition is to explore the facts of the case, and
for this reason wide latitude is given in the scope and manner of questioning.
See 166 Ill. 2d R. 206(c)(1). In contrast, an evidentiary deposition is generally
used for the purpose of preserving testimony for trial, and questioning is
therefore limited by the rules of evidence. See 166 Ill. 2d R. 206(c)(2). In light
of the parties' arguments, we begin by setting out the full text of Rule 212:
"(a) Purposes for Which Discovery Depositions May Be
Used. Discovery depositions taken under the provisions of this
rule may be used only:
(1) for the purpose of impeaching the testimony
of the deponent as a witness in the same manner and to
the same extent as any inconsistent statement made by a
witness;
(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;
(3) if otherwise admissible as an exception to the
hearsay rule; or
(4) for any purpose for which an affidavit may be
used.
(b) Use of Evidence Depositions. The evidence
deposition of a physician or surgeon may be introduced in
evidence at trial on the motion of either party regardless of the
availability of the deponent, without prejudice to the right of
either party to subpoena or otherwise call the physician or
surgeon for attendance at trial. 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;
(2) the deponent is out of the county, unless it
appears that the absence was procured by the party
offering the deposition, provided, that a party who is not
a resident of this State may introduce his own deposition
if he is absent from the county; or
(3) the party offering the deposition has exercised
reasonable diligence but has been unable to procure the
attendance of the deponent by subpoena; or finds, upon
notice and motion in advance of trial, that exceptional
circumstances exist which make it desirable, in the
interest of justice and with due regard for the importance
of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used.
(c) Partial Use. If only a part of a deposition is read or
used at the trial by a party, any other party may at that time read
or use or require him to read any other part of the deposition
which ought in fairness to be considered in connection with the
part read or used.
(d) Use After Substitution, Dismissal, or Remandment.
Substitution of parties does not affect the right to use
depositions previously taken. If any action in any court of this
or any other jurisdiction of the United States is dismissed and
another action involving the same subject matter is afterward
brought between the same parties or their representatives or
successors in interest, or if any action is remanded by a court of
the United States to a court of this State, all depositions lawfully
taken and duly filed in the former action, or before remandment,
may be used as if taken in the later action, or after
remandment." 134 Ill. 2d R. 212.
Defendant argues that admissions in a discovery deposition may not be
used as evidence under Rule 212(a)(2) after the death of a party deponent.
Instead, defendant contends that under Rule 212(b)(1), only an evidence
deposition may be used in place of live testimony upon a deponent's death. The
defendant argues that allowing the evidentiary use of admissions contained in
a deceased party's discovery deposition would inhibit free discovery and be
unfair to the deceased person's estate.
Defendant reasons that allowing the evidentiary use of a discovery
deposition after a party's death would inhibit free discovery by abrogating the
distinction made in Rule 212 between discovery and evidence depositions. In
support of this view, defendant notes that the rules committee in drafting Rule
212(a) formally rejected a proposal that would have allowed discovery
depositions to be admitted into evidence if at the time of trial the deponent is
dead or otherwise unable to testify. Ill. Ann. Stat., ch. 110A, par. 212,
Historical & Practice Notes, at 302 (Smith-Hurd 1985). The drafters rejected
that proposal based on the belief that allowing a discovery deposition to be
used at trial after a deponent's death would inhibit free discovery by requiring
time consuming evidentiary objections at every discovery deposition. See P.
Tone, Comments on the New Supreme Court Rules, 48 Chi. B. Rec. 46, 49
(1967). Similarly, defendant suggests that, if admissions can be used as
evidence after a party's death, responsible attorneys would be forced to treat
every discovery deposition of a party like a formal evidentiary deposition.
Defendant also argues that it is unfair to introduce admissions contained
in a discovery deposition after the party's death. Defendant suggests that a
party may make potentially damaging statements in a discovery deposition to
opposing counsel, but then for strategic reasons wait until trial to clarify those
statements. Defendant also suggests that a litigant may distort a deceased
party's testimony by carefully selecting only those admissions that could not
be clarified by other portions of the deposition. See 134 Ill. 2d R. 212(c).
Plaintiff relies upon the plain language of Rule 212(a)(2) in arguing that
admissions contained in a party's discovery deposition are admissible against
that party's estate. Plaintiff notes that Rule 212(a)(2) provides that a discovery
deposition may be used as an admission "to the same extent as any other
admission made by that person." 134 Ill. 2d R. 212(a)(2). Plaintiff then notes
that admissions made by a party in circumstances other than a discovery
deposition are admissible against the person's estate after death. See Republic
Iron & Steel Co. v. Industrial Comm'n, 302 Ill. 401 (1922); Patten v. Knowe,
354 Ill. 156 (1933). Plaintiff also relies on Rule 212(d) (134 Ill. 2d R. 212(d)),
which specifically provides that the substitution of parties after death does not
affect the right to use depositions previously taken.
In interpreting a supreme court rule, we apply the same principles of
construction that apply to a statute. 134 Ill. 2d R. 2, Committee Comments. Our
goal is to ascertain and give effect to the intention of the drafters of the rule.
Croissant v. Joliet Park District, 141 Ill. 2d 449, 455 (1990). The most reliable
indicator of intent is the language used, which should be given its plain and
ordinary meaning. People v. Bole, 155 Ill. 2d 188, 198 (1993). Where the
language is clear and unambiguous, we must apply the language used without
further aids of construction. People v. Zaremba, 158 Ill. 2d 36, 40 (1994).
Applying these principles, we conclude that admissions contained in a
discovery deposition are admissible against a decedent's estate. It is clear that
death does not erase an admission from a party's lips where the admission is
made outside the context of a discovery deposition. See M. Graham, Cleary &
Graham's Handbook of Illinois Evidence sec. 802.1, at 596 (5th ed. 1990),
citing Security Savings & Loan Ass'n v. Commissioner of Savings & Loan
Ass'n, 77 Ill. App. 3d 606, 612 (1979); see also Republic Iron & Steel Co., 302 Ill. at 405 (finding verbal admission of deceased plaintiff admissible against
estate); Patten, 354 Ill. at 161 (finding written instructions contained with a
deed constituted an admission admissible against a decedent's estate); Beringer
v. Lackner, 331 Ill. App. 591, 596 (1947) (finding doctor's handwritten medical
notes admissible against his estate as admissions); Schell v. Weaver, 225 Ill. 159, 162 (1906) (finding verbal admission that debt was owed admissible
against decedent's estate). We further agree with the plaintiff that the plain
language of Rule 212(a)(2) provides that admissions contained in a discovery
deposition are admissible as any other admission by a party opponent.
Defendant concedes that admissions not contained in a discovery
deposition have been held admissible against a deceased party's estate, but
claims that a different rule should apply to admissions contained in a discovery
deposition. Defendant justifies this distinction because admissions in a
discovery deposition are not voluntary in that a party deponent is forced to
submit to a deposition. Defendant claims that a party in a discovery deposition
is in an adversarial setting, instructed not to volunteer information and to
answer questions with a "yes" or "no." Defendant thus claims that it is unfair
to equate admissions in this context with the admissions not contained in a
discovery deposition.
Defendant's position finds no support in the text of Rule 212(a)(2). The
rule provides that admissions contained in a discovery deposition may be used
"in the same manner and to the same extent as any other admission made by
that person." 134 Ill. 2d R. 212(a)(2). Thus, admissions in a discovery
deposition are admissible against a deceased party's estate in the same manner
as admissions not contained in a discovery deposition.
Defendant's argument that a party should be free to answer questions
curtly and save explanations for trial also fails to recognize the nature and
effect of an admission. An admission by a party is substantive evidence
admissible as an exception to the rule excluding hearsay. Ordinary evidentiary
admissions may be contradicted or explained. M. Graham, Cleary & Graham's
Handbook of Illinois Evidence sec. 802.11, at 616 (5th ed. 1990); McCormack
v. Haan, 20 Ill. 2d 75, 78 (1960). However, ordinary evidentiary admissions
should be distinguished from judicial admissions, which conclusively bind a
party.
Judicial admissions are defined as deliberate, clear, unequivocal
statements by a party about a concrete fact within that party's knowledge.
Hansen v. Ruby Construction Co., 155 Ill. App. 3d 475, 480 (1987). Where
made, a judicial admission may not be contradicted in a motion for summary
judgment (Schmahl v. A.V.C. Enterprises, Inc., 148 Ill. App. 3d 324, 331
(1986)) or at trial (Dayan v. McDonald's Corp., 125 Ill. App. 3d 972, 983
(1984)). The purpose of the rule is to remove the temptation to commit perjury.
Smith v. Ashley, 29 Ill. App. 3d 932, 935 (1975).
Testimony at a discovery deposition may constitute a judicial admission.
Hansen, 155 Ill. 2d at 480; Albright v. Parr, 126 Ill. App. 3d 464, 468 (1984);
Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 71
Ill. App. 3d 562, 568 (1979); Kosin v. Shero, 45 Ill. App. 3d 1047, 1051
(1977); Meier v. Pocius, 17 Ill. App. 2d 332, 335 (1958); see also Van's
Material Co. v. Department of Revenue, 131 Ill. 2d 196, 211 (1989) (finding
that pretrial answers to interrogatories may constitute judicial admissions in the
same manner as those in a discovery deposition). Thus, defendant is incorrect
to suggest that a party deponent is always free after a deposition to change
testimony or so reconstruct it as to avoid the consequences of the deposition.
We also reject defendant's argument that admitting a deceased party's
admissions contained in a discovery deposition is unfair because a party may
not give a complete answer during a deposition. The purpose of discovery is
to facilitate disclosure. A party who is less than candid in answering deposition
questions may rightly suffer from this lack of disclosure by forfeiting the
opportunity after the party's death to personally contradict or further explain an
evidentiary admission.
It is true that the rules committee in drafting Rule 212 did formally
reject a proposal that would have allowed discovery depositions into evidence
if at the time of trial the deponent is dead or otherwise unable to testify. The
drafters in rejecting this proposal were concerned only with preserving the
distinction between discovery and evidentiary depositions for nonparty
witnesses, not changing the general rules regarding party admissions.
Different evidentiary rules apply to the use of deposition testimony
depending on whether the deponent is a party. The deposition testimony of a
party may contain admissions which are an exception to the rule excluding
hearsay. 134 Ill. 2d R. 212(a)(2); Gillson v. Gulf, Mobile & Ohio R.R. Co., 42 Ill. 2d 193, 197 (1968). In contrast, the deposition of a nonparty witness is
hearsay, which is generally admissible only for impeachment purposes. 134 Ill.
2d R. 212(a)(1).
The drafters were concerned with transforming a discovery deposition
of a nonparty witness into an evidentiary deposition because an attorney will
rarely impeach a nonparty witness in a discovery deposition. Instead, an
attorney will often allow a nonparty deponent to testify falsely, saving
impeaching evidence for trial so as not to tip off the hostile witness and
undermine the value of the impeaching evidence. P. Tone, Comments on the
New Supreme Court Rules, 48 Chi. B. Rec. 46, 49 (1967). The drafters
therefore realized the problem with making this entire deposition, otherwise
inadmissible except for impeachment purposes, suddenly admissible by reason
of the deponent's death. For this reason, the drafters rejected the wholesale
introduction of nonparty deposition testimony after the deponent's death.
This reasoning does not apply to party admissions made in a deposition.
Statements of a party made during a deposition are admissible as an exception
to the rule excluding hearsay when introduced by a party opponent. For this
reason, a party and his or her attorney know at the time of the party's
deposition that any statement made could be used as an admission. The
evidentiary rules that limit the use of a nonparty witness' deposition testimony
simply do not apply to a party deponent. Moreover, the evidentiary rules
regarding admissions do not suddenly change after a party's death simply
because the admission is contained in a discovery deposition.

CONCLUSION
For the foregoing reasons, the judgment of the appellate court, reversing
the circuit court's judgment and remanding for further proceedings, is affirmed.

Appellate court judgment affirmed.