Jackson State Bank v. King

• Decision Date: 06 January 1993
• Docket Number: No. 91-45,91-45
• Citation: 844 P.2d 1093
• Parties: The JACKSON STATE BANK, a Wyoming corporation, and Maurice E. Miles, Appellants (Plaintiffs), v. Floyd R. KING, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1093

844 P.2d 1093

The JACKSON STATE BANK, a Wyoming corporation, and Maurice E. Miles, Appellants (Plaintiffs), v. Floyd R. KING, Appellee (Defendant).

No. 91-45.

Supreme Court of Wyoming.

Jan. 6, 1993.

Patrick M. Hunter, Casper, for appellants.

Terry W. Mackey, Cheyenne, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ.

THOMAS, Justice.

The questions in this case are certified to this court by the United States Court of Appeals for the Tenth Circuit pursuant to Wyo.R.App.P. 11 and Wyo.Stat. §§ 1-13-104 to -107 (1988), the Federal Court State Law Certificate Procedure Act. The questions certified by the federal court are:

A. Does Wyoming's comparative negligence statute, Wyo.Stat. § 1-1-109(a) (1977), bar plaintiff's recovery in a legal malpractice action based on claims for breach of contract and breach of fiduciary duty when the jury apportions fault in the following manner: plaintiff, thirty-five percent; defendant, thirty-five percent; and a third party, thirty percent?

B. If the comparative negligence statute does not bar recovery on these claims, does it or some other principle of Wyoming law require that plaintiff's recovery be reduced by his percentage of fault?

We answer both of the certified questions in the negative.

On February 26, 1973, Rosemary Miles died, and her husband, Maurice Miles (Miles), and her son from a previous marriage, William Hutson, and his family (Hutsons) survived her. Her will divided her estate into two parts. One part, equivalent to the maximum marital deduction, was left directly to Miles. The other portion was left in a testamentary trust for the benefit of the Hutsons. Her will also provided that Miles should be appointed as the executor of her estate. Floyd R. King (King) was retained by Miles to represent him in accomplishing his duties as executor of the estate.

In April of 1979, the probate court entered an order approving the accounting and a decree of distribution in Rosemary Miles' estate, and the estate was closed in October, 1979. In July of 1986, the Hutsons brought an action against Miles in the federal district court asserting breach of his fiduciary duties as executor of the estate. Miles then filed a third-party complaint against King, alleging legal malpractice in connection with King's representation of Miles as the executor of the Rosemary Miles estate and asserting claims based on theories of negligence, breach of contract, and breach of a fiduciary duty.

Miles entered into an agreement with the Hutsons, settling their claim against him, and pursued his malpractice action against King. The legal malpractice action was tried before a jury and, on June 30, 1989, following a five-day trial, the jury returned a verdict finding that Miles had suffered damages in the amount of $46,500 as the result of King's actions. In its verdict, the jury apportioned fault, defined as "negligence causing damage," for Miles' damages, as follows: Miles 35%; King 35%; and the Jackson State Bank, not a party to the action, 30%. The jury found that King, in his attorney-client relationship with Miles, had been negligent, had breached the fiduciary duty owed by an attorney to a client, and had breached his contract with Miles.

On August 17, 1989, the United States District Court for the District of Wyoming ruled that the assessment of comparative fault by the jury applied to all three of Miles' claims, and it denied recovery. Miles then took an appeal to the United States Court of Appeals for the Tenth Circuit asserting that there was error in this ruling by the United States District Court, and that is the thrust of the questions certified to this court. We disagree with the ruling of the United States District Court.

At the time this case arose, the comparative negligence statute in effect in Wyoming provided:

Contributory negligence shall not bar a recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if the contributory negligence was not as great as the negligence of the person against whom recovery is sought. Any damages allowed shall be diminished in proportion to the amount of negligence attributed to the person recovering.

Wyo.Stat. § 1-1-109(a) (1977).

The statute was amended in 1986, but that amendment was substantive in nature and, consequently, has no retrospective application to the questions certified to this court.

In the specific context of the comparative negligence statute, we recently quoted the summarized standard for statutory construction in this way:

Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, we do not resort to rules of statutory construction. * * * Neither this Court nor the agency charged with administering the statute has a right to look for and impose another meaning.

Phillips v. Duro-Last Roofing, Inc., 806 P.2d 834, 837 (Wyo.1991) (citing Wyoming Ins. Dept. v. Avemco Ins. Co., 726 P.2d 507, 510 (Wyo.1986)).

Then we further quoted:

Whenever this court is engaged in the construction of a statute, the primary consideration is to discern the intention of the legislature. * * * That legislative intent should be ascertained, as nearly as is possible, from the language incorporated in the statute, which is viewed in the light of its object and purpose. * * * In those instances in which the language in the statute is plain and unambiguous, the words used are to be accorded their plain and ordinary meaning unless there is some manifestation of a legislative intent that they not be accorded the plain and ordinary meaning.

Phillips, 806 P.2d at 837 (citing Belle Fourche Pipeline Co. v. State, 766 P.2d 537, 542 (Wyo.1988)).

In Phillips, we refused to extend our comparative negligence statute, beyond its intended and express application to negligence, into warranty and strict liability theories as articulated in RESTATEMENT (SECOND) OF TORTS §§ 402A and 402B (1965). Phillips, of course, did not encompass an issue of legal malpractice but, nevertheless, we perceive the case as controlling. Both Miles and King agreed in the briefs they submitted to this court that Phillips is controlling, but they disagreed as to the result it directed.

King urges Phillips as controlling on the premise that even though, concededly, § 1-1-109 applies only to those cases involving negligence, Miles' claim in the trial court was founded in negligence, no matter how it might be characterized. This was the view adopted by the United States District Court, and King argues that decision manifested the correct application of § 1-1-109 to the case involved. Miles, on the other hand, distinguishes between a cause of action based on contract theories and a cause of action based on tort theories. Miles agrees Phillips stood for the proposition that § 1-1-109 reached only to those causes of action arising out of negligence. Miles argues, therefore, that the statute has no application to a legal malpractice action, which is a contractual claim based on the implied warranty that the work performed by an attorney for his client will be performed in a skillful and professional manner.

We agree with Miles that the cause of action in a legal malpractice claim is contractual in nature and that § 1-1-109 is not applicable based upon its clear and unambiguous language. We reach that result, however, upon a different analysis from that urged by Miles.

The relationship of attorney and client is contractual in nature. Grievance Committee, Wyoming State Bar v. Riner, 765 P.2d 925 (Wyo.1988); Chavez v. State, 604 P.2d 1341 (Wyo.1979), cert. denied 446 U.S. 984, 100 S.Ct. 2967, 64 L.Ed.2d 841 (1980); Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, opinion modified on denial of reh'g, 247 Kan. 699, 803 P.2d 205 (1990) (citing Bowman v. Doherty, 235 Kan. 870, 686 P.2d 112 (1984)); Pittman v. McDowell, Rice & Smith, 12 Kan.App.2d 603, 752 P.2d 711 (1988) (citing Bowman); Massey v. Cunningham, 420 So.2d 1036 (La.App.1982); Zych v. Jones, 84 Ill.App.3d 647, 40 Ill.Dec. 369, 406 N.E.2d 70 (1980). The contract may be an express contract, or it may be implied from the actions of the parties, such as, the furnishing of advice and assistance or even the awareness of the attorney of reliance on the relationship. Riner. The attorney-client relationship can be created by a retainer or an offer to retain or the payment of a fee. Zych. Even though legal malpractice may be attributable to negligence on the part of the attorney, still the right to recompense is based upon the breach of the contract with the client. It follows that, because this relationship is contractual in nature and is to be treated according to the law of contracts, there is no justification to invoke the comparative negligence statute.

In Cline v. Sawyer, 600 P.2d 725 (Wyo.1979), appeal after remand, 618 P.2d 144 (Wyo.1980), this court held the trial court was obligated to make special findings of fact in determining the amount of damages and the percentage of negligence attributable to each party under § 1-1-109(b). ¹ In Cline, the owners of a trailer park had brought an action against a plumber to recover damages for allegedly defective work, asserting both contract and negligence theories. We there said:

In construction contracts, there is an implied warranty that the work will be performed in a skillful, careful, diligent and workmanlike manner. Where negligence on the part of the contractor results in a breach of this warranty, a cause of action ex contractu and a tortious action premised on negligence, or both, are available to the contractee.

Cline, 600 P.2d at 732.

More importantly, for purposes of this case, we also said:

If this is only a contract action, it may be said that these findings of fact and conclusions of law are sufficient. They reflect the existence of a contract, performance by appellees, its breach, and the...