Ogle v. Fuiten

• Decision Date: 24 February 1983
• Docket Number: No. 4-82-0486,4-82-0486
• Parties: , 68 Ill.Dec. 491 James Elvin OGLE and Leland W. Ogle, Plaintiffs-Appellants, v. Lorraine FUITEN, as Executrix of the Estate of William E. Fuiten, and Robert G. Heckenkamp, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1344

445 N.E.2d 1344

112 Ill.App.3d 1048, 68 Ill.Dec. 491

James Elvin OGLE and Leland W. Ogle, Plaintiffs-Appellants, v. Lorraine FUITEN, as Executrix of the Estate of William E Fuiten, and Robert G. Heckenkamp, Defendants-Appellees.

No. 4-82-0486.

Appellate Court of Illinois Fourth District.

Feb. 24, 1983.

Duane D. Young, Costello, Long, Young & Metnick, Springfield, for plaintiffs-appellants.

Gary M. Peplow, David L. Requa, Heyl, Royster, Voelker & Allen, Springfield, for defendants-appellees.

MILLS, Justice:

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 and 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, 62 Ill.Dec. 467, 436 N.E.2d 49, which held that in the absence of a duty to a third-person nonclient, no cause of action based on negligent performance of personal services can exist. We reject both grounds urged in the motion to dismiss.

I

One month after the filing of Favata, our supreme court filed its opinion in Pelham v. Griesheimer (1982), 92 Ill.2d 13, 64 Ill.Dec. 544, 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 nonclient the nonclient must allege and prove that the intent of the client to benefit the nonclient third party was the primary or direct purpose of the transaction or relationship." (92 Ill.2d 13, 20-21, 64 Ill.Dec. 544, 547, 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 expressed opinion that a properly pleaded complaint would state a cause of action.

II

Defendants have also argued other bases for dismissal stated in their motion to dismiss. They assert that a will cannot be collaterally attacked following a judicial determination of its validity. It is argued that: Plaintiffs' cause of action is the equivalent of an attack upon the validity of the will itself; that validity was previously determined by the admission of the wills to probate with a will contest and the final adjudication of the will construction suits herein in which this court declined to create a gift by implication (In re Estate of Smith (1979), 68 Ill.App.3d 30, 24 Ill.Dec. 451, 385 N.E.2d 363); and that the action must therefore be dismissed.

While the cases relied upon by defendants support their basic legal proposition (see Allwood v. Cahill (1943), 382 Ill. 511, 47 N.E.2d 698; Dickman v. Frieling (1946), 395 Ill. 383, 70 N.E.2d 61), they also clearly involve, or refer to, an attack on the validity of the wills which is not present here. The challenge here is whether defendants are responsible for negligently drafting the wills. The provisions of the wills themselves, as effectuated, and the probate administration would remain unaffected.

It is further argued that the underlying issues of the testators' intents were previously determined by admission of the wills to probate without a will contest and the previous will construction suits. If there is no will contest providing evidence to the contrary, the law will presume that the testator executed his will with knowledge of its contents. (Barber v. Barber (1936), 362 Ill. 634, 1 N.E.2d 44.) In the will construction suits, this court found that the text of the wills did not reveal that the testators intended the estate should go to these plaintiffs under the contingency which occurred. Rather, the wills simply failed to provide for the contingency. (Estate of Smith.) Although it is not specifically asserted, it appears defendants' argument is that plaintiffs are collaterally estopped from again litigating the issue of the testators' intent.

Collateral estoppel allows a party to prevent relitigation of a fact or question which was actually fully litigated in a prior action, which was necessary to the determination of that action, and upon which a final judgment was rendered. (Gay v. Open Kitchens, Inc. (1981), 100 Ill.App.3d 968, 56 Ill.Dec. 258, 427 N.E.2d 338.) The fact that defendants were not parties in the previous will construction suits or probate actions does not bar application of estoppel since mutuality of parties is no longer a prerequisite in Illinois. Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill.2d 1, 34 Ill.Dec. 334, 398 N.E.2d 9.

Collateral estoppel does not present a bar in this case. First, there was no opportunity in the will construction suit for full and fair litigation of the testators' intents. Unless a will is ambiguous, a court in a will construction suit will not consider extrinsic evidence in ascertaining intent. (Griffin v. Gould (1982), 104 Ill.App.3d 397, 60 Ill.Dec. 132, 432 N.E.2d 1031.) The will construction suits did not involve extrinsic evidence which would be relevant in this case.

We said in our opinion in Estate of Smith that even considering extrinsic facts well pleaded, no gift by implication to plaintiffs here was established. But that does not mean that extrinsic evidence was considered in that will construction case. On the contrary, our statement highlights the second reason why collateral estoppel does not apply in this case. In order to establish a gift by implication (which was what was attempted in the will construction suits), the...