DeBerry v. Summers

• Jurisdiction: Oregon
• Parties: Keri DEBERRY, Plaintiff–Appellant, v. Steven R. SUMMERS; and Steven R. Summers, P.C., an Oregon corporation, Defendants–Respondents.
• Citation: 296 P.3d 610,255 Or.App. 152
• Docket Number: A143369.,09C10241
• Court: Oregon Court of Appeals
• Decision Date: 06 February 2013

255 Or.App. 152

296 P.3d 610

Keri DEBERRY, Plaintiff–Appellant,

v.Steven R. SUMMERS; and Steven R. Summers, P.C., an Oregon corporation, Defendants–Respondents.

09C10241; A143369.

Court of Appeals of Oregon.

Argued and Submitted June 13, 2011.

Decided Feb. 6, 2013.

Terrence Kay, Salem, argued the cause and filed the briefs for appellant.

Michael J. Walker argued the cause for respondents. With him on the brief were J. Philip Parks and Parks Bauer Sime Winkler & Fernety, LLP.

Before SCHUMAN, Presiding Judge, and NAKAMOTO, Judge, and BREWER, Judge pro tempore.^*

BREWER, J. pro tempore.

Plaintiff appeals from a judgment for defendant that the trial court entered after granting defendant's motion for summary judgment on plaintiff's claims of breach of contract and professional negligence. On appeal, plaintiff asserts that there are genuine issues of material fact that preclude summary judgment. We disagree. As explained below, plaintiff failed to adduce evidence to support an inference that defendant made an agreement, express or implied, with his client, plaintiff's grandmother, to ensure that plaintiff would receive a replacement home for one that had previously been placed in trust for plaintiff's benefit. We therefore affirm.

In reviewing the trial court's grant of summary judgment to defendant, we view the record and all reasonable inferences that may be drawn from it in the light most favorable to plaintiff, the nonmoving party, to determine whether there is any genuine issue of material fact and whether defendant was entitled to judgment as a matter of law. No genuine issue of material fact exists if, based on the summary judgment record, no objectively reasonable juror could return a verdict for plaintiff. ORCP 47 C; Jones v. General Motors Corp., 325 Or. 404, 414, 939 P.2d 608 (1997).

Plaintiff is the granddaughter of Dorothy DeBerry, now deceased. Defendant is an attorney. In 1993, defendant prepared wills and revocable living trusts for Dorothy and her husband, Gerald. Gerald died in 1997. Plaintiff lived in a house (the Canyon Court home) that the trust owned. Some of Dorothy's other relatives also live in houses owned by the trust. In 2000, Dorothy directed defendant to amend the trust agreement. In the amended trust agreement that defendant prepared, Dorothy provided for specific distributions of real property to her son, daughter, nephew, and plaintiff. The amended trust agreement further provided that, upon Dorothy's death, plaintiff would receive the Canyon Court home.¹

In his deposition, defendant testified that the purpose of the amended trust agreement was “to specifically designate these properties” to go to specific individuals. At his deposition, defendant did not recall any discussion beyond that. In his affidavit in support of his motion for summary judgment, defendant averred that Dorothy never asked him, and he never agreed, to include a provision in either the original trust or will or any amendments thereto to distribute any after-acquired property to plaintiff. Defendant also testified that, “[a]t no time in my representation of [Dorothy] did I agree or contract with [Dorothy] to prepare a trust and/or a will so that [plaintiff] would receive the Trust's interest in any home other than the Trust's interest in the home designated for her in the First Amendment to the Dorothy M. DeBerry Living Trust.”

In May 2001, Dorothy signed a second amended trust agreement that defendant prepared, the purpose of which was to revoke a residuary distribution to her nephew. There is no evidence in the record that Dorothy and defendant had any contact after the second amended trust agreement was executed in 2001.

In 2003, at plaintiff's suggestion, Dorothy sold the Canyon Court home and purchased a home on West View Court. Dorothy herself, not the trust, was named as the grantee in the deed to the West View Court home. Dorothy did not thereafter transfer the West View Court home to the trust, nor did she further amend the trust to reflect that the trust no longer owned the Canyon Court home or that Dorothy, individually, owned the West View Court home. In her deposition, plaintiff testified that Dorothy told her that the West View Court home “would be [plaintiff's] home and that it was to be given to [plaintiff] upon [Dorothy's] death.” However, plaintiff did not know what, if any, discussions Dorothy had had with her attorney about that subject. Plaintiff also testified that Dorothy had assured her that plaintiff's father would not be able to get the property.

Dorothy died in 2007. Plaintiff learned thereafter that the West View Court home was not owned by the trust. Instead, the West View Court home was an asset of Dorothy's estate that passed under the terms of her will. The West View Court home was the primary asset of Dorothy's probate estate. Plaintiff was one of five residual devisees of Dorothy's estate; so, instead of receiving full ownership of the West View Court home, plaintiff received 20 percent of its value.

Plaintiff brought this action against defendant, alleging claims of breach of contract and professional negligence. Plaintiff asserted in her breach of contract claim that defendant failed to carry out a contractual promise to Dorothy of which plaintiff was a third-party beneficiary. The alleged contractual promise was that defendant would include a provision in Dorothy's revocable trust or will that would achieve Dorothy's objective to distribute to plaintiff the Canyon Court home or any home purchased by Dorothy to replace the Canyon Court home. In the negligence claim, plaintiff alleged that defendant was negligent in his representation of Dorothy in failing to carry out the terms of that contract.

Defendant filed a motion for summary judgment, asserting that there was no evidence of any agreement between Dorothy and defendant to include a provision in Dorothy's will or trust to distribute a replacement property to plaintiff. In response, plaintiff filed a declaration pursuant to ORCP 47 E, stating that plaintiff had retained an expert “who is available and willing to testify to admissible facts or opinions creating a question of fact.” In addition, excerpts of both parties' deposition transcripts were placed in the summary judgment record.

At the hearing on the motion for summary judgment, the parties debated whether the record disclosed a genuine issue of material fact as to whether there was an agreement between defendant and Dorothy to benefit plaintiff. Defendant framed the issue as whether there was any evidence that defendant had undertaken to include a provision in the trust that any property purchased by Dorothy to replace the Canyon Court home would be distributed to plaintiff. Plaintiff asserted that there was evidence in the record in support of such a finding, but she also asserted that the issue as pleaded was broader, that is, whether there was evidence that defendant had agreed to confer a benefit on plaintiff and breached that agreement by neglecting to ensure that the trust, in fact, conferred that benefit on plaintiff. Plaintiff asserted that a jury could find from the evidence that it was Dorothy's objective for plaintiff to inherit the home that she was living in at the time of Dorothy's death, whether that home was the Canyon Court home or a replacement home, and that defendant, in fact, had agreed to draft the documents necessary to fulfill that objective, but that he had neglected to do so.

The trial court granted defendant's motion, explaining:

“[Y]ou cannot get to a triable issue of material fact that the agreement existed that's pled in the complaint. You just cannot get there. All the plaintiff can say is, I thought grandma did it, she said she was going to, I don't know if she ever did, I wasn't at any of her meetings with the lawyer, grandma didn't expressly ever say I went to the lawyer and told him and he did X, Y, Z.”

In her first assignment of error, plaintiff asserts that the trial court erred in doing so because plaintiff's declaration under ORCP 47 E was sufficient to create a genuine issue of material fact as to whether defendant had agreed with Dorothy that he would draft will and trust documents for plaintiff's benefit. In her second assignment of error, plaintiff contends that the trial court erred because there is other evidence, apart from that declaration, establishing an inference that defendant made such an agreement with Dorothy and that he breached it.

To set the stage for our analysis of plaintiff's assignments of error, we review the case law governing an attorney's liability to nonclients such as plaintiff in connection with the preparation of wills and trusts. In Hale v. Groce, 304 Or. 281, 744 P.2d 1289 (1987), the defendant attorney agreed with his client that he would prepare a will that included a specific bequest to the plaintiff. Id. at 283, 744 P.2d 1289. After the client died, it was discovered that the bequest was not created in the will or in related trust instruments. The plaintiff sued the attorney for negligence and for breach of contract as a third-party beneficiary. The trial court dismissed the complaint on the ground that it failed to state a claim under ORCP 21 A.

The Supreme Court ultimately held that the complaint stated claims under both contract and tort theories because, as alleged, (1) the plaintiff was an intended beneficiary of the attorney's contract with the decedent; and (2) the attorney had breached a legal duty created by that contract to the plaintiff as its intended beneficiary. Id. at 286–87, 744 P.2d 1289. The court noted that, standing alone, “without a duty to plaintiff derived from defendant's contractual undertaking, plaintiff's tort claim would confront the rule that one ordinarily is not liable for negligently causing a stranger's purely economic loss without injuring his person or property.” Id. at 283–84, 744 P.2d 1289. It was the existence of a contract between the...