Ginther v. Zimmerman, Docket No. 138746

• Decision Date: 08 September 1992
• Docket Number: Docket No. 138746
• Citation: 491 N.W.2d 282,195 Mich.App. 647
• Parties: Dean GINTHER and Sharon Ginther, Plaintiffs-Appellants, v. Joseph J. ZIMMERMAN, the Law Firm of Menmuir, Zimmerman, Kuhn & Bearup, and its predecessor in interest the Law Firm of Menmuir, Zimmerman, Rollert & Kuhn, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 282

491 N.W.2d 282

195 Mich.App. 647

Dean GINTHER and Sharon Ginther, Plaintiffs-Appellants, v. Joseph J. ZIMMERMAN, the Law Firm of Menmuir, Zimmerman Kuhn & Bearup, and its predecessor in interest the Law Firm of Menmuir, Zimmerman, Rollert & Kuhn, Defendants-Appellees.

Docket No. 138746.

Court of Appeals of Michigan.

Submitted July 23, 1992, at Grand Rapids.

Decided Sept. 8, 1992, at 9:00 a.m.

Released For Publication Nov. 19, 1992.

Fraser Trebilcock Davis & Foster, P.C. by C. Mark Hoover and Kathleen E. Kane, Lansing, for plaintiffs-appellants.

Schureman, Frakes, Glass & Wulfmeier by Jack Carpenter, Charles D. Brown, and Priscilla L. Schwarze, Petoskey, for defendants-appellees.

Before NEFF, P.J., and GRIBBS and CAVANAGH, JJ.

NEFF, Presiding Judge.

Plaintiffs appeal as of right from the circuit court's order granting summary disposition to defendants. We affirm.

In their amended complaint, plaintiffs alleged that defendants committed legal malpractice when they failed to carry out the estate plan of May Hubbard Shippey by which plaintiffs would have received certain real estate. Plaintiffs also set forth a third-party-beneficiary theory, alleging that defendants breached their contract with Mrs. Shippey to properly draft testamentary documents and that Mrs. Shippey intended that plaintiffs directly benefit from that contractual arrangement.

I

The allegations of plaintiffs' complaint are summarized as follows: On January 30, 1980, May Hubbard Shippey executed a will, one provision of which would convey to plaintiffs, if they survived her, an approximately 67.95-acre parcel of property located on Elk Lake in Antrim County. That parcel is referred to by the parties as the "original purchase" parcel. After the execution of that will, Mrs. Shippey told plaintiffs that she had decided to immediately convey the parcel to them. On July 24, 1980, she instructed defendant Rollert to effectuate her intent to convey that parcel to plaintiffs while reserving a life estate for her in the house and 5.3 acres of surrounding property. That parcel is referred to by the parties as the "homestead" parcel.

On February 4, 1981, defendant Kuhn filed a deed he had prepared that conveyed to plaintiffs the original purchase parcel less the homestead parcel. However, the homestead parcel was not conveyed in that deed subject to Mrs. Shippey's life estate.

On February 2, 1982, Mrs. Shippey executed her last known will, which was prepared by defendant Zimmerman. That will did not convey the homestead parcel to plaintiffs. Mrs. Shippey died on June 30, 1989.

II

The circuit court's order states that summary disposition was granted pursuant to MCR 2.116(C)(10). However, a full reading of the decision and the case law cited therein reveals that the court actually decided the issue on the ground that plaintiffs failed to state a claim upon which relief can be granted. An order granting summary judgment under the wrong court rule may be reviewed under the correct rule. Johnson v. Davis, 156 Mich.App. 550, 553, 402 N.W.2d 486 (1986).

III

The precise question raised is one of first impression in Michigan. That question is whether persons claiming to be intended beneficiaries of a will can maintain an action against the attorney who drafted the will where no attorney-client relationship exists between those persons and the attorney.

Plaintiffs concede that, pursuant to Pantely v. Garris, Garris & Garris, P.C., 180 Mich.App. 768, 778, 447 N.W.2d 864 (1989), an element of an action for legal malpractice is the existence of an attorney -client relationship. However, plaintiffs argue for the abrogation of that element. Plaintiffs rely on Friedman v. Dozorc, 412 Mich. 1, 312 N.W.2d 585 (1981), and cases from foreign jurisdictions for their argument.

Friedman involved a negligence claim brought by a physician against the attorneys who had represented the adverse party in a previous unsuccessful malpractice suit against the physician. Our Supreme Court held that the physician had failed to state an actionable negligence claim because an attorney owes no duty to an adverse party in litigation. Id. at 16, 312 N.W.2d 585. The Court based that holding on its conclusion that

the public policy of maintaining a vigorous adversary system outweighs the asserted advantages of finding a duty of due care to an attorney's legal opponent. [Id. at 25, 312 N.W.2d 585.]

The Court went on to address other arguments of the physician and amici, one of which was that privity of contract no longer shields a professional from liability to foreseeable third parties. While noting that it had held in Williams v. Polgar, 391 Mich. 6, 215 N.W.2d 149 (1974), that an abstracter of title is subject to liability to foreseeable third parties who rely on the abstract, the Court stated that it was basing its decision in Friedman on public policy considerations and not on the privity of contract doctrine. Friedman, 412 Mich. at 28, 312 N.W.2d 585.

In Cramer v. Metropolitan Savings Ass'n (Amended Opinion), 136 Mich.App. 387, 397-398, 357 N.W.2d 51 (1984), this Court interpreted Friedman to mean that lack of duty, and not the privity doctrine, is the proper ground for summary disposition of a claim of legal malpractice against an adversarial attorney.

In a more recent case, our Supreme Court considered the question whether an insurance company could maintain a malpractice action against the attorney it hired to defend its insured. Atlanta Int'l Ins. Co. v. Bell, 438 Mich. 512, 475 N.W.2d 294 (1991). In the lead opinion in that case, Justice Brickley observed that traditional legal doctrine mandates that only a person in the privity of an attorney-client relationship could sue an attorney for malpractice. Id. at 518, 475 N.W.2d 294. The essential purpose of that rule is to prevent consideration of the interests of those outside the relationship from interfering with the attorney's duty to loyally represent a client. Id.

Justice Brickley went on to note, however, that the situation in Bell demonstrated that the lack of an attorney-client relationship by itself was an inadequate predicate for the analysis of malpractice liability, in view of the fact that the situation in Bell did not present a conflict between the interests of the insurer and the policy concerns of attorney loyalty. Id. at 520, 475 N.W.2d 294. He went on to resolve the issue under the principle of equitable subrogation. Id.

Thus, both in Friedman and in the lead opinion in Bell, the issue of attorney malpractice was addressed in terms other than the doctrine of privity.

IV

Some foreign courts have decided the issue in terms of privity, refusing on the ground that an attorney has no duty to nonclients to find a cause of action for legal malpractice where no attorney-client relationship exists. Dickey v. Jansen, 731 S.W.2d 581 (Tex.App., 1987); Lilyhorn v. Dier, 214 Neb. 728, 335 N.W.2d 554 (1983); Viscardi v. Lerner, 125 A.D.2d 662, 510 N.Y.S.2d 183 (1986).

Other courts have ruled that an attorney may be liable to named beneficiaries of a will where the intent of the testator, as discernible from the face of the instrument, was frustrated either by faulty drafting or by improper attestation.

For instance, in Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983), the Pennsylvania Supreme Court found that the named legatee had a cause of action as an intended third-party beneficiary of the contract between the testator and her attorney to draft a will where the legacy was voided because the legatee witnessed the will, as the attorney instructed.

In Lucas v. Hamm, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685 (1961), the plaintiffs alleged that the defendant attorney agreed with the testator to prepare a will by which the plaintiffs were to be the beneficiaries of a trust. However, in drafting the instrument, the attorney violated the rule against perpetuities, resulting in the plaintiffs receiving less than intended. The court concluded that the plaintiffs could recover as third-party beneficiaries, because the main purpose of the testator in reaching the agreement with the attorney was to benefit the persons named in the will.

In Heyer v. Flaig, 70 Cal.2d 223, 449 P.2d 161 (1969), the testatrix retained the defendant attorney to draft a will and told the attorney that she wanted her entire estate to pass to her daughters, the plaintiffs. She also told the attorney that she intended to marry. She did in fact marry ten days after executing the will. The will purported to leave the entire estate to the daughters, but failed to mention the husband, who claimed a portion of the estate as a posttestamentary spouse. Id. The Supreme...