McAbee v. Edwards, 75-1708

• Decision Date: 16 July 1976
• Docket Number: No. 75-1708,75-1708
• Citation: 340 So.2d 1167
• Parties: Jacquelyn Yon McABEE, Appellant, v. Warren EDWARDS and St. Paul Mercury Insurance Co., a Foreign Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1167

340 So.2d 1167

Jacquelyn Yon McABEE, Appellant, v. Warren EDWARDS and St. Paul Mercury Insurance Co., a Foreign Corporation, Appellees.

No. 75-1708.

District Court of Appeal of Florida, Fourth District.

July 16, 1976.

Rehearing Denied Dec. 17, 1976.

Donald R. Corbett, Orlando, for appellant.

Monroe M. McDonald, of Sanders, McEwan, Mims & McDonald, Orlando, for appellee, Edwards.

Edna L. Caruso, of Howell, Kirby, Montgomery, D'Aiuto & Dean, West Palm Beach, for appellee, St. Paul Mercury Ins. Co.

DOWNEY, Judge.

Appellant Jacquelyn Yon McAbee sued appellees Warren Edwards (a lawyer) and his insurance carrier St. Paul Mercury Insurance Company for malpractice arising out of the preparation of a last will and In her amended complaint appellant makes the following material allegations. In April 1960, her mother employed appellee Edwards to prepare her (the mother's) will leaving her entire estate to her daughter (the appellant). After the will was executed on April 15, 1960, the mother married Mr. Moore. Thereafter the mother made an appointment with appellee Edwards, advised him of her marriage, and requested him to redraft her will so that appellant would be her sole beneficiary. Appellee Edwards advised the mother that it was unnecessary to make any changes in the will to effect her testamentary plan. The mother died in 1972 while married to Mr. Moore and the will in question was admitted to probate. Mr. Moore claimed an interest in the mother's estate as a pretermitted spouse. ¹ Moore's claim was eventually settled for the sum of $27,000. Appellee Edwards owed to appellant as the beneficiary of her mother's estate the duty to properly advise appellant's mother of the necessity to change her will after her marriage so that the entire estate of the mother would go to the appellant, as the mother intended. Appellee breached this duty and appellant was damaged as a result of that breach.

testament for appellant's mother, Bonita P. Yon. The court entered a judgment on the pleadings and Mrs. McAbee appealed from that judgment.

Among other responses to the foregoing allegations, appellees' answer admitted the preparation of the mother's will and affirmatively pleaded: (1) appellant lacked standing to sue because of lack of privity; (2) laches; (3) the statute of limitations; (4) compromise and settlement. The trial court granted appellees' motion for judgment on the pleadings and this appeal followed.

Since the judgment under review is one on the pleadings entered upon motion of the defendants-appellees, all well pleaded allegations of the nonmoving party (appellant) are taken to be true while those of the movants (appellees) that have been denied are taken as false. Butts v. State Farm Automobile Mutual Ins. Co., 207 So.2d 73 (3d DCA, Fla.1968). The question thus presented here is whether the appellant's amended complaint stated a cause of action.

Appellant contends that the amended complaint presents a meritorious claim based upon a tort theory sounding in negligence or upon the contract theory of third party beneficiary. Appellees on the other hand assert that under the law of Florida a lawyer owes a duty only to his immediate client. Without privity of contract no action can be maintained for negligence in rendering legal services.

The briefs of counsel and our independent research demonstrate that there is a division of authority on the question presented. Perhaps the numerical weight of that authority favors the contentions of the appellees. See Annot.: Attorneys--Liability To Third Parties, 45 A.L.R.3d 1184, § 2a. However, we are persuaded that the better view favors the maintenance of the cause of action alleged by appellant. Ibid. Probably the closest case on point is Heyer v. Flaig, 70 Cal.2d 223, 74 Cal.Rptr. 225, 449 P.2d 161 (1969), in which a decedent's two daughters sued the lawyer who drafted the decedent's will. They alleged that their mother employed the defendant to prepare a will leaving her entire estate to the daughters, and that their mother advised the defendant that she was about to be married. Defendant prepared the will leaving the estate to the daughters but never mentioned the soon to be husband. Upon 'In the case of Lucas v. Hamm, . . . 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685 (1961), we embraced the position that an attorney who erred in drafting a will could be held liable to a person named in the instrument who suffered deprivation of benefits as a result of the mistake. Although we stated that the harmed party could recover as an intended third-party beneficiary of the attorney-client agreement providing for legal services, we ruled that the third party could also recover on a theory of tort liability for a breach of duty owed directly to him. At the heart of our decision in Lucas v. Hamm lay this recognition of duty.

the death of the testatrix the husband asserted a claim 'as a post-testamentary spouse' resulting in a loss of $50,000 in the value of the daughters' inheritance. Judgment was entered for the defendant on the ground that the statute of limitations had run. In reversing, the Supreme Court of California discussed the duty of a lawyer in these circumstances to his immediate client and to the beneficiaries designated in the proposed will:

'In the earlier case of Biakanja v. Irving (1958) 49 Cal.2d 647, 320 P.2d 16, 65 A.L.R.2d 1358, we had held that a notary public who negligently failed to direct proper attestation of a will became liable in tort to an intended beneficiary who suffered damage because of the invalidity of the instrument. In that case, the defendant argued that the absence of privity deprives a plaintiff of a remedy for negligence committed in the performance of a contract. In rejecting this contention we pointed out that the inflexible privity requirement for such a tort recovery has been virtually abandoned in California. (49 Cal.2d at pp. 649-650, 320 P.2d at p. 19.) We then analyzed the bases for imposing such a duty: 'The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame...