Ellerson v. Moriarty

• Citation: 331 So.3d 767
• Decision Date: 23 June 2021
• Docket Number: 2D20-2653
• Parties: Erica ELLERSON, Appellant, v. Brenden S. MORIARTY, Esquire, and The Moriarty Law Firm, P.A., a Florida Professional Association, Appellees.
• Court: Court of Appeal of Florida (US)

331 So.3d 767

Erica ELLERSON, Appellant,

v.Brenden S. MORIARTY, Esquire, and The Moriarty Law Firm, P.A., a Florida Professional Association, Appellees.

No. 2D20-2653

District Court of Appeal of Florida, Second District.

June 23, 2021

Eric M. Bradstreet of St. Denis & Davey, P.A., Jacksonville, for Appellant.

Bruce Bellingham and Michael J. McGirney of Spector Gadon Rosen Vinci, LLP, St. Petersburg, for Appellees.

MORRIS, Judge.

Erica Ellerson appeals from a final order dismissing her legal malpractice action with prejudice. The underlying action was initiated against Brenden S. Moriarty, Esquire, and the Moriarty Law Firm, P.A. (collectively Moriarty), after a bequest of property made to Ellerson in a trust created by her grandmother could not be fulfilled due to Moriarty's alleged failure to prepare a deed conveying the property to the trust. We conclude that the trial court erred by dismissing the complaint for failure to state a cause of action where there were critical factual issues as to whether Moriarty specifically undertook the duty to fund the trust, and therefore, we reverse.

BACKGROUND

Ellerson's grandmother retained Moriarty in January 2018 to assist her with portions of her estate planning. Moriarty drafted an amendment to Ellerson's grandmother's trust, and in that amendment, it provided that Ellerson would take ownership of an undivided interest in real property located at 17th Street West in Palmetto, Florida (the 17th Street Property).¹

Ellerson's grandmother passed away in August 2018. However, because no deed had ever been prepared to transfer the 17th Street Property into the trust, it was an unfunded devise and, therefore, Ellerson did not receive her undivided interest in the property.

Ellerson then filed suit, alleging that she was an intended third-party beneficiary of the attorney-client relationship between Moriarty and her grandmother. She alleged that Moriarty never limited the scope of his duty to her grandmother to exclude advice or services to fund the trust and, in fact, had had conversations with Ellerson and her grandmother about drafting and recording deeds transferring the real property into the trust. Ellerson further contended that Moriarty failed to draft and record the deed transferring the 17th Street Property, failed to confirm the existence of a pour-over will drafted by other counsel and failed to draft a new pour-over will, and otherwise failed to properly ensure that the trust was funded to fully effectuate Ellerson's grandmother's intent as expressed in the trust amendment.

Moriarty filed a motion to dismiss the legal malpractice action raising various grounds, including Ellerson's lack of standing due to an absence of privity between the parties and because, according to Moriarty, no duty arose from Ellerson's allegations as a matter of law.

After conducting two hearings, the trial court dismissed Ellerson's complaint with prejudice. In doing so, the trial court reasoned that Moriarty's only obligation to Ellerson, a third-party beneficiary, was to draft a facially valid trust amendment that set forth Ellerson's grandmother's intent. The trial court rejected the argument that Moriarty could be held liable for the failure of the devise due to his failure to draft and record a deed conveying the 17th Street Property into the trust. This appeal follows.

ANALYSIS

We review an order of dismissal with prejudice de novo. McManus v. Gamez , 276 So. 3d 1005, 1007 (Fla. 2d DCA 2019). This includes a dismissal that is predicated on a party's lack of standing. Home Title Co. of Md., Inc. v. LaSalla , 257 So. 3d 640, 642-43 (Fla. 2d DCA 2018).

A motion to dismiss tests the legal sufficiency of a complaint to state a cause of action; it does not turn on issues of ultimate fact.

Holland v. Anheuser Busch, Inc., 643 So. 2d 621, 624 (Fla. 2d DCA 1994). Therefore, in ruling on a motion to dismiss, [a trial] court is confined to the four corners of the complaint and must take as true all well-pleaded, material facts. Temples v. Fla. Indus. Constr. Co., 310 So. 2d 326 (Fla. 2d DCA 1975) ; Gennaro v. Leeper, 313 So. 2d 70 (Fla. 2d DCA 1975).

DeMartino v. Simat , 948 So. 2d 841, 843 (Fla. 2d DCA 2007).

In an action for legal malpractice, a plaintiff must ordinarily allege and prove that he or she has privity with the attorney, that the attorney neglected a reasonable duty owed to the plaintiff, and that the attorney's negligence was the proximate cause of the plaintiff's loss. See Dingle v. Dellinger , 134 So. 3d 484, 487 (Fla. 5th DCA 2014) ; Arnold v. Carmichael , 524 So. 2d 464, 466 (Fla. 1st DCA 1988). Ellerson was not in privity of contract with Moriarty in the traditional sense.

However, Florida courts have recognized a limited exception to the privity requirement to allow intended testamentary beneficiaries under certain circumstances to maintain malpractice actions against attorneys: "When an attorney undertakes to fulfill the testamentary instructions of his client, he realistically and in fact assumes a relationship not only with the client but also with the client's intended beneficiaries. The attorney's actions and omissions will affect the success of the client's testamentary scheme; and thus the possibility of thwarting the testator's wishes immediately becomes foreseeable. Equally foreseeable is the possibility of injury to an intended beneficiary. In some ways, the beneficiary's interests loom greater than those of the client. After the latter's death, a failure in his testamentary scheme works no practical effect except to deprive his intended beneficiaries of the intended bequests."

Arnold , 524 So. 2d at 466 (quoting McAbee v. Edwards , 340 So. 2d 1167 (Fla. 4th DCA 1976) ). Thus, if a plaintiff and attorney are not in privity, the plaintiff must be an intended third-party beneficiary of the attorney's services. Dingle , 134 So. 3d at 487-88.

"Intended third-party beneficiaries of testamentary documents have standing to bring an action for legal malpractice ‘if they are able to show "that the testator's intent as expressed in the will is frustrated by the negligence of the testator's attorney." ’ " Passell v. Watts , 794 So. 2d 651, 652 (Fla. 2d DCA 2001) (quoting Hare v. Miller, Canfield, Paddock & Stone , 743 So. 2d 551, 553 (Fla. 4th DCA 1999) ); see also Angel, Cohen & Rogovin v. Oberon Inv., N.V. , 512 So. 2d 192, 194 (Fla. 1987) ("For the beneficiaries’ action in negligence to fall within the exception to the privity requirement, testamentary intent as expressed in the will must be frustrated by the attorney's negligence and as a direct result of such negligence the beneficiaries’ legacy is lost or diminished."); Gunster, Yoakley & Stewart, P.A. v. McAdam , 965 So. 2d 182, 184 (Fla. 4th DCA 2007) (holding that trial court did not err in denying appellants’ motion for partial summary judgment because appellees demonstrated they had standing to bring suit against appellants where appellees’ father's intent, as expressed in his will, was frustrated by appellants’ negligence and appellees’ legacy was diminished as a direct result of that negligence); Arnold , 524 So. 2d at 466 (recognizing intended third-party beneficiary exception to privity requirement); Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A. , 467 So. 2d 315, 317 (Fla. 3d DCA 1985) (acknowledging the proposition "that an attorney preparing a will has a duty not only to the testator-client, but also to the testator's intended beneficiaries" and that, therefore, "[i]n limited circumstances, ... an intended beneficiary under a will may maintain a legal malpractice action against the attorney who prepared the will, if through the attorney's negligence a devise to that beneficiary fails" (first citing DeMaris v. Asti , 426 So. 2d 1153 (Fla. 3d DCA 1983) ; and then citing McAbee , 340 So. 2d 1167 )).

Here, Ellerson alleged that she was an intended third-party beneficiary of her grandmother's trust and that her grandmother intended for the 17th Street Property to pass to Ellerson as set forth in the trust. Ellerson also alleged that due to Moriarty's negligence in failing to draft and record a deed, the trust was not funded with that property and, therefore, that particular devise failed. This was sufficient to allege Ellerson's standing.

The fact that this appeal involves the consideration of a grantor's intent as stated in a trust, versus that of a testator's intent as stated in a will, does not preclude the application of the intended third-party beneficiary exception to the privity requirement. See Passell , 794 So. 2d at 652-53 (analyzing intended third-party beneficiary issue as applied to a trust); Dingle , 134 So. 3d at 488 (recognizing that the intended third-party beneficiary "exception to the rule of privity is not limited to will drafting cases" (citations omitted)). Assuming that Ellerson's allegations are true, as a trial court must when ruling on a motion to dismiss,² there are critical factual issues that could only be resolved upon the taking of evidence: whether Moriarty limited the scope of his retention such that he was not required to assist in funding the trust and whether he expressly agreed in conversations to draft and record a deed in order to effectuate Ellerson's grandmother's intent to pass the 17th Street Property to Ellerson as set forth in the trust amendment. Those factual issues are crucial to determining whether Moriarty owed a duty to Ellerson. Cf. Gunster, Yoakley & Stewart, P.A. , 965 So. 2d at 183 (concluding that the "trial court did not err in submitting to the jury the question of whether Gunster Yoakley had a duty to fund a revocable trust during [the] decedent's lifetime").

We reject Moriarty's argument that Ellerson cannot state a cause of action because she cannot rely on extrinsic evidence—here, the alleged conversations that Ellerson and her grandmother had with Moriarty—to prove that Moriarty undertook a specific duty to prepare and record a deed to fund the...