Jennifer Linth & the Estate of Linth v. Gay

• Decision Date: 22 September 2015
• Docket Number: 45590–1–II.,Nos. 45250–2–II,s. 45250–2–II
• Court: Washington Court of Appeals
• Parties: Jennifer LINTH and the estate of Carolyn Linth; the Evelyn Plant Testamentary Trust; and the Franklyn & Evelyn Plant Green Point Foundation, Appellants, v. Carl GAY and Robin A. Gay, husband and wife, and the marital community composed thereof; Greenway & Gay, a Washington legal partnership; Greenway, Gay & Angier, a Washington legal partnership; Greenway, Gay & Tulloch, a Washington legal partnership; and Daniel W. Doran and Carol Doran, husband and wife, and the marital community composed thereof, Respondents.

190 Wash.App. 331

360 P.3d 844

Jennifer LINTH and the estate of Carolyn Linth; the Evelyn Plant Testamentary Trust; and the Franklyn & Evelyn Plant Green Point Foundation, Appellants,

v.Carl GAY and Robin A. Gay, husband and wife, and the marital community composed thereof; Greenway & Gay, a Washington legal partnership; Greenway, Gay & Angier, a Washington legal partnership; Greenway, Gay & Tulloch, a Washington legal partnership; and Daniel W. Doran and Carol Doran, husband and wife, and the marital community composed thereof, Respondents.

Nos. 45250–2–II

45590–1–II.

Court of Appeals of Washington, Division 2.

Sept. 22, 2015.

Thomas Edward Seguine, Law Office of Tom Seguine, Mount Vernon, WA, Linda Blohm Clapham, Carney Badley Spellman, P.S., Seattle, WA, for Appellants.

Christopher W. Keay, Attorney at Law, Tacoma, WA, Michael Brandt Mcdermott, Johnson, Graffe, Keay, Moniz, and Wick, Seattle, WA, for Respondents.

PART PUBLISHED OPINION

LEE, J.

¶ 1 This litigation involves a legal malpractice action arising from a dispute over an amendment to the Evelyn Plant Testamentary Trust (“the Trust”). Carl Gay was hired to draft the Trust and the First Amendment (“Amendment”) to the Trust. After Plant's death, beneficiaries of the Trust challenged the validity of the Amendment.

¶ 2 In 2009, Jennifer Linth, in her individual capacity as a beneficiary, brought a legal malpractice suit against Gay.

In 2011, Linth formed the Franklin and Evelyn Plant Green Point Foundation (“the Foundation”). In 2011, the Trust and the Foundation moved to intervene in Linth's suit.

¶ 3 Gay moved for summary judgment against Linth, arguing that he did not owe her a duty as a nonclient beneficiary, and the superior court granted Gay's motion for summary judgment. Gay then moved for summary judgment against the Trust and the Foundation, arguing that the statute of limitations had expired, and the superior court also granted this motion.

¶ 4 In the published part of this opinion, we hold that Gay did not owe Linth a duty as a nonclient beneficiary. In the unpublished portion of this opinion, we hold that the statute of limitations has expired for the Trust's and the Foundation's claims against Gay. Accordingly, we affirm the superior court's order granting Gay's motions for summary judgment and dismissing all claims against Gay.

FACTS

¶ 5 Evelyn Plant owned and lived on property known as Green Point in Port Angeles, Washington. In July 2000, Plant retained Gay to create a living trust. On July 22, 2000, Plant signed the Trust, naming herself trustee.

¶ 6 In relevant part, the Trust provided a gift of $100,000 to Linth. It also provided that if the Green Point property was part of Plant's estate, then it was to be conveyed to Crista Ministries, Inc., subject to the condition that “[f]or a period of five (5) years commencing immediately upon [Plant's] death, [Linth] shall be entitled to an estate in the Green Point residence” and “[u]pon expiration of the five-year estate, [Linth] shall be entitled to a life estate in the northeast comer of the approximately sixty (60) acres.” Clerk's Papers (CP) at 606–07.

¶ 7 In August 2000, Plant resigned as trustee and appointed Daniel W. Doran¹as successor trustee. Gay remained counsel to Doran in his role as trustee.

¶ 8 Also in August 2000, Plant sought to amend the Trust. Gay drafted the Amendment.

¶ 9 On August 22, 2000, Doran took a draft of the Amendment from Gay's office and presented the draft to Plant, who signed it. The Amendment provided that if the Green Point property was part of Plant's estate, then it was to be conveyed, along with $50,000,

to a nonprofit corporation and tax-exempt private foundation to be created by trustee in accordance with the terms set forth on the document entitled “THE FRANKLIN AND EVELYN PLANT GREEN POINT FOUNDATION PLAN” [ ... ] a copy of which is attached hereto marked Exhibit 1 and by this reference incorporated herein as though set forth in full. The gift of cash and the Green Point residence to the Foundation shall be subject to the following:

... [Linth] shall be entitled to occupy [Plant's] residence at Green Point, free of any costs, subject to the Foundation plan.

CP at 631–32. However, the referenced Foundation plan did not exist at the time Gay drafted the Amendment and exhibit 1 was not attached. The Amendment also removed Crista Ministries as a beneficiary.

¶ 10 Doran hired Linth's sister, Claudia Smith, to help create the Foundation in accordance with the Amendment and Plant's wishes. But before the Foundation was created, Plant died on January 1, 2001. In March 2001, Smith presented a Foundation plan to Doran and Gay. Doran and Gay did not believe that Smith's Foundation plan conformed to Plant's wishes, and Doran did not adopt Smith's plan.

¶ 11 Crista Ministries, a beneficiary under Plant's original Trust but not under the Amendment to the Trust, disputed the validity of the Amendment. Linth, who was entitled to a life estate to the entire Green Point property under the Amendment, as opposed to a life estate in only a portion of the Green Point property under the original Trust, sought to enforce the Amendment.

¶ 12 In 2001, Linth filed a Trust and Estate Dispute Resolution Act (TEDRA)²action for a declaration of rights under the Trust.³In 2003, Linth and Gay agreed to toll the statute of limitations for Linth's potential claims against Gay. In 2004, attorney S. Brooke Taylor began representing the trustee.

¶ 13 In 2005, Linth signed a Nonjudicial Dispute Resolution Agreement (NDRA) to resolve the TEDRA action.⁴As part of the NDRA, Doran resigned as trustee and personal representative.

¶ 14 In 2009, Linth, in her individual capacity as a beneficiary, filed a legal malpractice against Gay. Gay moved for summary judgment against Linth, arguing that he did not owe a duty to Linth because she was not his client. The superior court found that Gay did not have a duty to Linth as a nonclient beneficiary and granted Gay's motion. Linth appeals the superior court's order of summary judgment in favor of Gay.

ANALYSIS

¶ 15 Linth argues that the superior court erred by granting Gay's motion for summary judgment because genuine issues of material fact exist about whether Gay owed her a duty as primary beneficiary of the Trust. We disagree.

A. Legal Standard

¶ 16 We review a superior court's order granting summary judgment de novo. Clark County Fire Dist. No. 5 v. Bullivant Houser Bailey P.C.,180 Wash.App. 689, 698–99, 324 P.3d 743, review denied,181 Wash.2d 1008, 335 P.3d 941 (2014). Further, we engage in the same inquiry as the superior court and our review is limited to the precise record before the superior court. RAP 9.12; Vernon v. Aacres Allvest, LLC,183 Wash.App. 422, 436, 333 P.3d 534 (2014). We resolve all factual disputes and reasonable inferences in favor of the nonmoving party. Clark County Fire,180 Wash.App. at 698, 324 P.3d 743. “[I]ssues of law are not resolved in either party's favor, but are reviewed de novo.” Rice v. Dow Chem. Co.,124 Wash.2d 205, 208, 875 P.2d 1213 (1994). “Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Clark County Fire,180 Wash.App. at 698, 324 P.3d 743.

¶ 17 “[A] defendant is entitled to summary judgment if (1) the defendant shows the absence of evidence to support the plaintiff's case” and (2) the plaintiff fails to demonstrate a genuine issue of fact on an element essential to the plaintiff's case. Clark County,180 Wash.App. at 699, 324 P.3d 743. “The nonmoving party may not rely on mere allegations, denials, opinions, or conclusory statements” to show a genuine issue of fact on an essential element. Parks v. Fink,173 Wash.App. 366, 374, 293 P.3d 1275, review denied,177 Wash.2d 1025, 309 P.3d 504 (2013). If the nonmoving party fails to demonstrate the existence of an essential element, then the court should grant summary judgment. Washington Fed. Sav. & Loan Ass'n v. McNaughton,181 Wash.App. 281, 297, 325 P.3d 383, review denied,181 Wash.2d 1011, 335 P.3d 940 (2014). We may affirm on any grounds established by the pleadings and supported by the record. Lane v. Skamania County,164 Wash.App. 490, 497, 265 P.3d 156 (2011).

¶ 18 A legal malpractice claim requires:

“(1) [t]he existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney's breach of the duty and the damage incurred.”

Parks,173 Wash.App. at 376, 293 P.3d 1275(quoting Hizey v. Carpenter,119 Wash.2d 251, 260–61, 830 P.2d 646 (1992)).

B. Linth's Legal Malpractice Claim Against Gay

¶ 19 Linth contends that Gay owed her a duty as beneficiary of the Trust. Specifically, Linth claims that Gay owed her a duty during two distinct periods. First, Linth claims that Gay owed her a duty before Plant's death, when he negligently prepared and executed Plant's estate planning documents, including the Trust and the Amendment to the Trust. Second, Linth claims that Gay owed her a duty after Plant's death, when he negligently represented Doran as personal representative and trustee. We disagree.

¶ 20 A threshold question in negligence claims is whether, as a matter of law, the defendant owed the plaintiff a duty of care. Mita v. Guardsmark, LLC,182 Wash.App. 76, 83, 328 P.3d 962 (2014). Generally, only an attorney's client may bring an attorney malpractice claim. Parks,173 Wash.App. at 377, 293 P.3d 1275. However, in limited circumstances, an attorney may owe a nonclient a duty. Id.Whether an attorney owes a nonclient beneficiary a duty is a question of law. Id.

1. Negligence Before Plant's Death: Preparation of Estate Planning Documents

¶ 21 Linth claims that Gay negligently failed to competently draft Plant's estate and trust plans by failing to include the missing attachment to the Amendment to the Trust before...