Leavenworth v. Mathes

• Decision Date: 18 July 1995
• Citation: 661 A.2d 632,38 Conn.App. 476
• Court: Connecticut Court of Appeals
• Parties: Frederick LEAVENWORTH et al. v. Carleton K. MATHES.

Page 632

661 A.2d 632

38 Conn.App. 476

Frederick LEAVENWORTH et al. v. Carleton K. MATHES.

Appellate Court of Connecticut.

Argued April 27, 1995.

Decided July 18, 1995.

Robert J. Nichols, Waterbury, for appellants (plaintiffs).

Carla Ottaviano, Glastonbury, for appellee (defendant).

Before DUPONT, C.J., and FOTI and HEIMAN, JJ.

FOTI, Judge.

The plaintiffs appeal from the judgment of the trial court granting the defendant's motion for summary judgment. We affirm the judgment of the trial court.

The plaintiffs brought this action against the defendant for legal malpractice. The action was originally filed on August 20, 1991. Thereafter, the plaintiffs filed an amended two count complaint, alleging negligence and breach of contract by the defendant.

The plaintiffs are two of the three beneficiaries under the will of their deceased mother, Maude Leavenworth (testatrix). In 1988, the testatrix hired the defendant to prepare a will distributing her estate to her three children. The will contained the following distribution of property: (1) a specific bequest of $40,000 to the testatrix's son, the plaintiff Frederick Leavenworth; (2) a specific bequest of $25,000 to the testatrix's daughter, the plaintiff Phyllis Rainhard; and (3) a specific devise of the testatrix's real property, consisting of two houses, to the testatrix's son, Wesley Leavenworth.

The testatrix died on November 4, 1989. At the time of her death, the liquid assets of her estate were insufficient to satisfy the specific bequests to the plaintiffs. In count one of the complaint, the plaintiffs alleged that the defendant was negligent in failing (1) to inquire into the amount and nature of the testatrix's assets, (2) to recognize and address the conflicting provisions in the will, (3) to draft the will so that it provided for the real estate to be mortgaged or sold in order to pay the specific bequests, (4) to advise the testatrix of the implications of the conflicting provisions, and (5) to inquire into her wishes in handling those inconsistent provisions. Count two of the complaint alleged the breach of an implied contract by the defendant in that, by his negligence as alleged in the first count, he failed to carry out effectively the intentions of the testatrix.

On July 8, 1993, the defendant filed a motion for summary judgment claiming that he owed no legal duty to the plaintiffs to ascertain the assets of the testatrix's estate. On December 7, 1993, the trial court granted the defendant's motion, concluding that once the defendant drafted a will in accordance with the testatrix's wishes, and there was no claim made otherwise, the defendant had fulfilled his obligation to his client. On appeal, the plaintiffs claim that the trial court improperly granted the defendant's motion for summary judgment. The plaintiffs argue that it was the defendant's duty to use such professional skill as would be required to give effect to the intent of the testatrix. They argue that the defendant is liable to them for his failure to inquire into the nature of the testatrix's assets and his failure to make a provision in the will to fund the specific bequests in the event that the testatrix's assets were insufficient.

We begin our analysis by stating the standard by which we review the decision of the trial court in granting a motion for summary judgment. Practice Book § 384 provides that summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Starkweather v. Patel, 34 Conn.App. 395, 400, 641 A.2d 809, cert. denied, 230 Conn. 905, 644 A.2d 918 (1994). "Even though the burden of showing the nonexistence of any material fact is on the party that seeks summary judgment, the party opposing summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. " 'When reviewing a trial court's ruling on a motion for summary judgment, we must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' " Eisele's Nursery & Garden Center, Inc. v. Kirkegard, 37 Conn.App. 271, 275, 655 A.2d 1129 (1995).

To recover on a theory of negligence, the plaintiffs must establish that the defendant owed a duty to them and that he breached that duty. Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982). The existence of a duty is a question of law, and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation. Petriello v. Kalman, 215 Conn. 377, 382-83, 576 A.2d 474 (1990). The trial court granted summary judgment on the ground that the defendant did not owe a legal duty to the plaintiffs to inquire as to the amount of the assets of the testatrix. On appeal, we must determine whether the court's conclusion that the defendant owed no duty under these circumstances, other than to prepare the will as requested by the testatrix, was "legally and logically correct." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

"As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services. A number of jurisdictions have recognized an exception to this general rule when the plaintiff can demonstrate that he or she was the intended or foreseeable beneficiary of the attorney's services.... Accordingly, courts have held that the intended beneficiary has a cause of action against an attorney who failed to draft a will in conformity with a testator's wishes; see, e.g., Lucas v. Hamm, 56 Cal.2d 583, 364 P.2d 685, 15 Cal.Rptr. 821 (1961), cert. denied, 368 U.S. 987, 82 S.Ct. 603, 7 L.Ed.2d 525 (1962); Needham v. Hamilton, 459 A.2d 1060 (D.C.App.1983); Ogle v. Fuiten, 112 Ill.App.3d 1048, 445 N.E.2d 1344 (1983), aff'd, 102 Ill.2d 356, 80 Ill.Dec. 772, 466 N.E.2d 224 (1984); failed to supervise the proper execution of a will; see, e.g., Licata v. Spector, 26 Conn.Sup. 378, 225 A.2d 28 (1966); Succession of Killingsworth, 292 So.2d 536 (La.1973); Auric v. Continental Casualty Co., 111 Wis.2d 507...