In re Estate of Drwenski

• Decision Date: 28 January 2004
• Docket Number: No. 03-30., No. 03-29
• Citation: 2004 WY 5,83 P.3d 457
• Parties: In the Matter of the ESTATE OF Vernon R. DRWENSKI, Deceased: Erin Marie Connely, as Personal Representative of the Estate of Vernon R. Drwenski; Erin Marie Connely, Individually; and Drwenski, LLC, a Limited Liability Company, Appellants (Plaintiffs), v. M. Scott McColloch, Esq.; McColloch and Burns, a Partnership; and Michelle McColloch Burns, Esq., Appellees (Defendants). Erin Marie Connely, as Personal Representative of the Estate of Vernon R. Drwenski; Erin Marie Connely, Individually; and Drwenski, LLC, a Limited Liability Company, Appellants (Plaintiffs), v. M. Scott McColloch, Esq.; McColloch and Burns, a Partnership; and Michelle McColloch Burns, Esq., Appellees (Defendants).
• Court: Wyoming Supreme Court

83 P.3d 457

2004 WY 5

In the Matter of the ESTATE OF Vernon R. DRWENSKI, Deceased:

Erin Marie Connely, as Personal Representative of the Estate of Vernon R. Drwenski; Erin Marie Connely, Individually; and Drwenski, LLC, a Limited Liability Company, Appellants (Plaintiffs), v. M. Scott McColloch, Esq.; McColloch and Burns, a Partnership; and Michelle McColloch Burns, Esq., Appellees (Defendants).

Erin Marie Connely, as Personal Representative of the Estate of Vernon R. Drwenski; Erin Marie Connely, Individually; and Drwenski, LLC, a Limited Liability Company, Appellants (Plaintiffs), v. M. Scott McColloch, Esq.; McColloch and Burns, a Partnership; and Michelle McColloch Burns, Esq., Appellees (Defendants).

Nos. 03-29, 03-30.

Supreme Court of Wyoming.

January 28, 2004.

Representing Appellants: Eldon E. Silverman of Preeo Silverman Green & Egle, P.C., Denver, Colorado.

Representing Appellees: Timothy W. Miller of Reeves & Miller Park Street Law Office, Casper, Wyoming.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

KITE, Justice.

[¶ 1] Vernon Drwenski died before his divorce was finalized. As a result, his widow, Trudy Drwenski, inherited money from the estate she would not have inherited if she and Mr. Drwenski had been divorced. Mr. Drwenski's daughter, Erin Connely, sued her father's divorce attorney, Scott McColloch, because he failed to finalize the divorce before Mr. Drwenski died. The district court granted Mr. McColloch's motion for summary judgment finding he owed no duty to Ms. Connely or to the estate. We affirm the district court's judgment.

ISSUES

[¶ 2] Ms. Connely raises the following issues:

1. Were there adequate facts in the record below to show that Connely individually, as a third-party beneficiary of her father, had a legal right to [make a] claim against Attorneys for legal malpractice occurring during the lifetime of her father?

2. Did Connely, as Personal Representative of the Estate, have a cause of action to pursue the attorney malpractice case under the Wyoming survival statute?

3. Should this matter be remanded in that the existence of a duty in a complex case such as this is a mixed issue of fact and law?

[¶ 3] Mr. McColloch rephrases the issues as:

1. Whether a lawyer who represents a client in a divorce owes a duty to his client's child?

2. Whether an estate may pursue a claim where it has no damages?

[¶ 4] In her reply brief, Ms. Connely raises the following issues:

1. The duty of an attorney to an intended third-party beneficiary has yet to be decided in Wyoming and its acceptance would be consistent with good public policy and past Wyoming precedent.

2. The cause of action for legal malpractice accrued prior to the client's death and thus the claims survive in his estate.

FACTS

[¶ 5] In 1999, Mr. Drwenski, suffering from cirrhosis of the liver, was trying to get his life in order. First, he wanted a divorce from his wife, Trudy Drwenski. He hired Mr. McColloch to represent him in this matter,¹ and in April of 1999, he filed for divorce from Mrs. Drwenski.

[¶ 6] Four months later, Mr. Drwenski had a falling out with his daughter, Rian Smith, and decided he wanted to change his will. On September 2, 1999, he executed a new will leaving the bulk of his estate to another daughter, Ms. Connely, and named her personal representative for the estate. Mr. Drwenski's new will recited the fact that he was seeking a divorce and recognized that Mrs. Drwenski would be entitled to twenty-five percent of his estate under Wyoming's elective share statute in the event his divorce was not final at the time of his death.

[¶ 7] In September of 1999, Mrs. Drwenski offered to settle the divorce for $145,000. Armed with a power of attorney, Ms. Connely encouraged Mr. Drwenski to accept the offer. He chose not to do so. Instead, he made a counter-offer of $100,000, which he later withdrew.

[¶ 8] Mr. Drwenski died on November 30, 1999, before the divorce was finalized, leaving an estate valued at over three million dollars. Because Mr. Drwenski was not divorced on the date of his death, Mrs. Drwenski was entitled to twenty-five percent of his estate under Wyoming's elective share statute.²

[¶ 9] Ms. Connely sued Mr. McColloch alleging, among other things, that he breached his duty of responsibility to Ms. Connely and to the estate.³ The gravamen of her complaint was that Mr. McColloch failed to do anything to obtain the divorce from the time he was retained in April 1999 until the time of Mr. Drwenski's death six months later. Ms. Connely alleged Mr. McColloch knew that Mr. Drwenski's marriage to Mrs. Drwenski took place "late in life," his health was fragile, he was terminally ill, and given his particular vulnerability, he was in need of the utmost prompt, thorough, and competent legal representation. The complaint further alleged, as evidence of Mr. McColloch's breach of his duty, that no discovery was undertaken, Mr. Drwenski's deposition was never taken, no request for a scheduling conference or trial date was ever made, and essentially no action was taken at all to further the progress of the divorce proceeding.

[¶ 10] The district court granted Mr. McColloch's motion for partial summary judgment holding that he had no legal duty under Wyoming law to a nonclient under these circumstances. Further, the district court held the estate was not damaged because it did not suffer a financial loss.

[¶ 11] This appeal followed.

STANDARD OF REVIEW

[¶ 12] Our standard for reviewing summary judgments is well established:

`Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which the parties have asserted. We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all the favorable inferences which may fairly be drawn from the record. We evaluate the propriety of a summary judgment by employing the same standards and by using the same materials as were employed and used by the lower court. We do not accord any deference to the district court's decision on issues of law.'

Mathewson v. City of Cheyenne, 2003 WY 10, ¶ 4, 61 P.3d 1229, ¶ 4 (Wyo.2003) (quoting Andersen v. Two Dot Ranch, Inc., 2002 WY 105, ¶ 10, 49 P.3d 1011, ¶ 10 (Wyo.2002)).

[¶ 13] This Court has stated that summary judgments are not favored, especially in negligence actions. See, for example, Roitz v. Kidman, 913 P.2d 431, 432 (Wyo.1996). This is particularly true in malpractice actions. DeHerrera v. Memorial Hospital of Carbon County, 590 P.2d 1342, 1345 (Wyo.1979). The mixed questions of law and fact usually involved in a negligence action concerning the existence of a duty, the standard of care and proximate cause "are ordinarily not susceptible to summary adjudication." Hozian v. Weathermon, 821 P.2d 1297, 1298 (Wyo.1991). Whether a particular defendant's actions have violated the required duty is generally a question for the jury. Bancroft v. Jagusch, 611 P.2d 819, 821 (Wyo.1980). The existence of a duty is, however, a question of law, "`making an absence of duty the surest route to summary judgment in negligence actions.'" Schuler v. Community First National Bank, 999 P.2d 1303, 1306 (Wyo.2000) (quoting Daily v. Bone, 906 P.2d 1039, 1043 (1995)). One consequence of the fact that summary judgments are not favored in negligence actions is that, once granted, they are subject to "more exacting scrutiny" on appeal. Woodard v. Cook Ford Sales, Inc., 927 P.2d 1168, 1169 (Wyo.1996).

[¶ 14] Questions relating to the parties' intent are usually factual, precluding summary judgment; however, where the parties' intent is clear such that reasonable minds could not differ, summary judgment is appropriate. Cordero Mining Co. v. United States Fidelity and Guarantee Insurance Co., 2003 WY 48, ¶ 10, 67 P.3d 616, ¶ 10 (Wyo.2003); see also Examination Management Services, Inc. v. Kirschbaum, 927 P.2d 686 (Wyo.1996); Detroit Institute of Arts Founders Society v. Rose, 127 F.Supp.2d 117 (D.Conn.2001).

[¶ 15] A properly drawn inference contrary to direct testimony can serve to structure a genuine issue of material fact. This Court is required to review the record in the light most favorable to the non-moving party, affording to that party all favorable inferences which may be drawn from the facts presented in the record. However, we have also stated:

"Guess-work cannot be substituted for evidence or inference, for `an inference is the conclusion drawn on reason from premises established by proof. In a sense, it is the thing proved. Guess-work is not.' Whitehouse v. Bolster, 95 Me. 458, 50 A. 240." Wright v. Conway, 34 Wyo. 1, 241 P. 369, reh. denied 34 Wyo. 42, 51, 242 P. 1107, 1110 (1925).

Whipple v. Northern Wyoming Community College Foundation of Sheridan (Estate of Roosa), 753 P.2d 1028, 1034 (Wyo.1988).

DISCUSSION

Duty of Attorney to Third Party

[¶ 16] This case requires us to examine the current state of the law and determine whether there are any circumstances in which an attorney owes a duty to a nonclient. Over 120 years ago, the United States Supreme Court held that absent fraud, collusion, or privity of contract, an attorney is not liable to a third party for professional malpractice. Savings Bank v. Ward, 100 U.S. 195, 25 L.Ed. 621, (1879). Almost eighty years later, the California Supreme Court was the first to depart from that strict contractual privity rule. In Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16 (1958), the court formulated the "balancing factors" test. This test is "closely related to the analysis and policy reasons used to justify permitting a third-party beneficiary to recover in a contract action." Wilson-Cunningham v....