Millwright v. Romer

• Decision Date: 21 July 1982
• Docket Number: No. 66653,66653
• Parties: Donna S. MILLWRIGHT, James Markel Summers, and Markel Summers, Appellants, v. L. W. ROMER, Appellee.
• Court: Iowa Supreme Court

Page 30

322 N.W.2d 30

32 A.L.R.4th 251

Donna S. MILLWRIGHT, James Markel Summers, and Markel Summers, Appellants, v. L. W. ROMER, Appellee.

No. 66653.

Supreme Court of Iowa.

July 21, 1982.

Paul E. Pfeffer, Clinton, for appellants.

Corliss C. Baty, Maquoketa, for appellee.

Considered en banc.

McGIVERIN, Justice.

Plaintiffs Donna S. Millwright, James Markel Summers and Markel Summers appeal from summary judgment dismissing their legal malpractice action against defendant L. W. Romer. The single issue on appeal is whether plaintiffs' action is barred by the statute of limitations. We find that it is so barred and affirm trial court's summary judgment.

In reviewing the grant or denial of summary judgment motions, we view the underlying facts contained in the pleadings and the inferences to be drawn therefrom in the light most favorable to the party opposing the motion, and give to such party the benefit of any doubt as to the propriety of granting summary judgment. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied, and to reverse the grant of summary judgment if it appears from the record there is an unresolved issue of material fact.

Meylor v. Brown, 281 N.W.2d 632, 634 (Iowa 1979); Frohwein v. Haesemeyer, 264 N.W.2d 792, 795-96 (Iowa 1978). Under this view of the facts underlying this case the following course of events appears from the record.

Defendant, now long retired, was an attorney actively engaged in the practice of law in this state on April 3, 1944. On that date defendant drafted the last will and testament of James G. Summers. Plaintiffs were beneficiaries under this will. Defendant was not employed by plaintiffs in any manner at that time, and no attorney-client relationship was ever entered into between the parties to the present action.

James G. Summers passed away on April 14, 1945. The will drafted by defendant was admitted to probate. Romer was not involved in the administration of the estate. One of the decedent's testamentary intentions had been to provide a life estate for his children, Laurel Summers and plaintiff Markel Summers, with a remainder going to their issue. This life estate and remainder were to take effect after a life estate to testator's wife terminated. To effectuate this intent a portion of the will established a trust. This portion of the will violated the rule against perpetuities and is the source of the present litigation and this appeal.

The trust creating the life estate in the testator's children with the remainder to the children's issue was opened for administration, after the death of testator's wife, on October 11, 1955. Defendant was not involved with the administration of the trust. Annual reports were filed through 1977.

On November 8, 1978, the Jackson County District Court upheld a challenge to the trust on the grounds that it violated the rule against perpetuties, section 558.68, The Code. Judgment was affirmed on December 27, 1979. In re Summers, 292 N.W.2d 877 (Iowa Ct.App.1979) (table). Thus, the trust providing a life estate to plaintiff Markel Summers and a remainder to his children, plaintiffs Donna S. Millwright and James Markel Summers, was terminated.

Plaintiffs brought the present legal malpractice action on February 12, 1980. Defendant raised, by a motion for summary judgment, the defense that the action was barred by the five-year statute of limitations of section 614.1(4), The Code. Trial court granted the motion for summary judgment, finding that all plaintiffs had been aware of the provisions of the will for eight or nine years and that, being charged with knowledge of the rule against perpetuities, section 614.1(4) barred their action.

Plaintiffs appealed.

Legal malpractice consists of the failure of an attorney "to use such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake." Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 180, 491 P.2d 421, 422-23, 98 Cal.Rptr. 837, 838-39 (1971). "When such failure proximately causes damage it gives rise to an action in tort." ¹ Id. at 180-81, 491 P.2d at 423, 98 Cal.Rptr. at 839.

As a general rule a tort action for legal malpractice based on negligently drafted or executed wills accrues on the date of death of the testator. Heyer v. Flaig, 70 Cal.2d 223, 225, 449 P.2d 161, 162, 74 Cal.Rptr. 225, 226 (1969); Shideler v. Dwyer, 417 N.E.2d 281, 283 (Ind.1981); Jaramillo v. Hood, 93 N.M. 433, 434, 601 P.2d 66, 67 (1979); R. Mallen and V. Levit, Legal Malpractice § 397, at 481 (2d ed. 1981); D. Meiselman, Attorney Malpractice: Law and Procedure § 5.14, at 91-92 (1980); Johnston, Legal Malpractice in Estate Planning--Perilous Times Ahead for the Practitioner, 67 Iowa L.Rev. 629, 649 (1982). This rule, which began to develop approximately fifteen years ago, represents a substantial departure from the prior prevalent rule whereby the statute of limitations began to run when the attorney's negligent act or omission occurred. See, e.g., Wilcox v. Plummer, 29 U.S. (4 Pet.) 172, 183, 7 L.Ed. 821, 824 (1830); Goldberg v. Bosworth, 29 Misc.2d 1057, 1060, 215 N.Y.S.2d 849, 853 (Sup.Ct.1961). Professor Johnston has commented upon the transition from the rather harsh old rule to the new rule:

In the drafting and execution of wills, any mistake or error would be likely to surface only after the death of the testator, when the instrument became effective. Thus, in the usual case in which the testator died some time after the drafting error, suit generally could not be brought within the statutory period. Eventually, however, courts began to react to the obvious injustice that resulted from application of the general rule to a disappointed will or trust beneficiary.

The statute of limitations issue rarely arose in the estate planning context until the stringent privity requirement was overturned. By the late 1960's, however, the courts began to alleviate the harshness of strict application of the statute of limitations in legal malpractice. Instead of commencing to run at the time the mistake or error was committed, it was held that the statute did not begin to run until the testator's death, at which time the error had become irreversible, and was, or at least should have been, discovered by the adversely affected beneficiaries.

Johnston, 67 Iowa L.Rev. at 648-49 (footnotes omitted).

We find that the general rule, which starts the statute of limitations running on the date of testator's death, must be explicitly modified by application of the discovery rule. A similar modification occurred in Jaramillo v. Hood, 93 N.M. 433, 434, 601 P.2d 66, 67 (1979): "The harm or damage in this case arose at the time testatrix died. However, the cause of action did not accrue until the harm or damage was ascertainable or discoverable." Our discovery rule provides: "The limitation statute or statutes in malpractice cases do not start to run until the date of discovery, or the date when, by the exercise of reasonable care, plaintiff should have discovered the wrongful act." Chrischilles v. Griswold, 260 Iowa 453, 462, 150 N.W.2d 94, 100 (1967). The rule applies in legal malpractice cases. Cameron v. Montgomery, 225 N.W.2d 154, 155 (Iowa 1975). We apply it to the present case.

"The question in any given case is not, What did plaintiff know of the injury done him? but, What might he have known, by the use of the means of information within his reach, with the vigilance which the law requires of him?" Chrischilles, 260 Iowa at 462, 150 N.W.2d at 100.

We find that plaintiffs, under the vigilance which the law requires of them, should have known that the will violated the rule against perpetuities. Every citizen is assumed to know the law and is charged with knowledge of the provisions of statutes. E.g., Cannon v. University of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 1946, 1957-58, 60 L.Ed.2d 560, 575-76 (1979); Anderson National Bank v. Luckett, 321 U.S. 233, 243, 64 S.Ct. 599, 605, 88 L.Ed. 692, 703 (1944); North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283, 45 S.Ct. 491, 494, 69 L.Ed. 953, 957 (1925); Ketchum v. St. Louis, 101 U.S. 306, 315-16, 25 L.Ed. 999, 1002 (1880); Cooke v. United States, 91 U.S. 389, 401, 23 L.Ed. 237, 244 (1875); Barber Pure Milk Co. of Montgomery v. Alabama State Milk Control Board, 275 Ala. 489, 494, 156 So.2d 351, 355 (1963); Atlas Realty Co. v. House, 123 Conn. 94, 101, 192 A. 564, 567 (1937) ("The familiar legal maxims, that every one is presumed to know the law, and that ignorance of the law excuses no one, are founded upon public policy and in necessity, and the idea back of them is that one's acts must be considered as having been done with knowledge of the law, for otherwise its evasion would be facilitated and the courts burdened with collateral inquiries into the content of men's minds."); Dunlap v. Richmond & D. R. Co., 81 Ga. 136, 140, 7 S.E. 283, 284 (1888); Neal v. Board of Supervisors, 243 Iowa 723, 728, 53 N.W.2d 147, 150 (1952); O'Neal v. Virginia & M. Bridge Co., 18 Md. 1, 26 (1861); Twiehaus v. Rosner, 362 Mo. 949, 952, 245 S.W.2d 107, 110 (1952); Giordano v. Mayor and Council of Borough of Dumont, 137 N.J.L. 740, 742, 61 A.2d 245, 247 (1948); Hagerman v. Town of Hagerman, 19 N.M. 118, 124-25, 141 P. 613, 616 (1914); Shealey v. American Health Ins. Co., 220 S.C. 79, 85-86, 66 S.E.2d 461, 464 (1951); 58 Am.Jur.2d Notice § 21, at 503 (1971); 66 C.J.S. Notice § 13, at 649 (1950); see Reetz v. Michigan, 188 U.S. 505, 509, 23 S.Ct. 390, 392, 47 L.Ed. 563, 566 (1903); Whiteside v. United States, 93 U.S. 247, 257, 23 L.Ed. 882, 885 (1876); Art Center School v. United States, 136 Ct.Cl. 218, 221, 142 F.Supp. 916, 918 (1956); Board of Education v. Murphy, 56 Ill.App.3d 981, 985, 14 Ill.Dec. 620, 622, 372 N.E.2d 899, 901 (1978); Presbytery of Southeast Iowa v. Harris, 226 N.W.2d 232,...