Ruden v. Jenk, 94-1708

• Decision Date: 14 February 1996
• Docket Number: No. 94-1708,94-1708
• Citation: 543 N.W.2d 605
• Parties: Gertrude RUDEN and Rosella Jasper, Appellants, v. Tom JENK d/b/a Tom Jenk, Attorney at Law, Appellee.
• Court: Iowa Supreme Court

Page 605

543 N.W.2d 605

Gertrude RUDEN and Rosella Jasper, Appellants, v. Tom JENK d/b/a Tom Jenk, Attorney at Law, Appellee.

No. 94-1708.

Supreme Court of Iowa.

Feb. 14, 1996.

Michael E. Sheehy of Shea Law Offices, Cedar Rapids, for appellants.

James R. Hellman and Carolyn A. Rafferty of Dutton, Braun, Staack, Hellman & Iversen, P.L.C., Waterloo, for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LAVORATO, NEUMAN, and ANDREASEN, JJ.

ANDREASEN, Justice.

Gertrude Ruden and Rosella Jasper filed a legal malpractice action against Tom Jenk asserting that he had breached the standard of care as their attorney regarding their property rights and potential remedies in securing those rights while handling the estate of their deceased brother. The district court granted summary judgment in favor of Jenk holding that the plaintiffs failed to establish a prima facie case of legal malpractice. We affirm.

I. Standard of Review.

A party moving for summary judgment has the burden of establishing the absence of any genuine issue of material fact and that it is entitled to judgment as a matter of law. Iowa R.Civ.P. 237(c). In ruling upon the motion for summary judgment the court considers the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. Id. We review the record in the light most favorable to the party against whom the summary judgment was granted. Johnson v. Farm Bureau Mut. Ins. Co., 533 N.W.2d 203, 205-06 (1995).

Because the issue of whether a duty arises out of a party's relationship is a legal question, it is susceptible to summary judgment. Engstrom v. State, 461 N.W.2d 309, 315 (Iowa 1990). Although questions of negligence and proximate cause are ordinarily for the jury to decide, they may be decided as matters of law in exceptional cases. Iowa R.App.P. 14(f)(10); see Vande Kop v. McGill, 528 N.W.2d 609, 613 (Iowa 1995); Schmitz v. Crotty, 528 N.W.2d 112, 117 (Iowa 1995); Blackhawk Bldg. Sys. v. Law Firm, 428 N.W.2d 288, 291 (Iowa 1988).

Here Jenk's motion for summary judgment annexed a separate statement of material facts with specific reference to those parts of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits which support the contentions and a memorandum of authorities. See Iowa R.Civ.P. 237(h). The plaintiffs filed a response to Jenk's statement of material facts, a resistance to the motion for summary judgment, and a brief in support of the resistance. The following background facts and proceedings are derived from this record.

II. Background Facts and Proceedings.

The allegations of malpractice center around Tom Jenk's handling of the estate of Frank Ruden who died intestate in August 1990. Gertrude Ruden and Rosella Jasper, who are two of six heirs, were appointed as the administrators of Frank's estate. They designated Jenk as the attorney for the estate.

Prior to his death, Frank Ruden purchased property used as a tavern. In 1979, he entered into a real estate contract with Thomas and Karen Jaeger for the sale of the tavern property. Attorney Max Jenk, the father of Tom Jenk, prepared the contract. This real estate contract provided for installment payment of the purchase price of $80,000 with the final payment due December 1, 1989.

In 1980, Frank executed an assignment in which he transferred his interest in the Jaeger contract to Gertrude and Rosella upon his death. The instrument of assignment was a printed assignment of mortgage form. The instrument was modified to reflect that it was an assignment of a recorded real estate contract and was signed by Frank Ruden and notarized by Max Jenk. The instrument was also modified by adding "In case of my death" prior to the form language of "For value received I hereby sell, assign and transfer to Gertrude Ruden and Rosella Jasper of Dubuque, Iowa all my right, title and interest in and to a certain contract...."

Frank Ruden received all payments on the contract during his lifetime and apparently told no one of the assignment. It was never delivered to Gertrude or Rosella who were unaware of the assignment prior to the death of their brother. The real estate contract was modified by an extension agreement between Frank and the Jaegers on December 7, 1989. Attorney Tom Jenk prepared this extension agreement for Ruden. At the time of Ruden's death the unpaid balance on the real estate contract was approximately $24,000.

Following Ruden's death, Tom Jenk and the administrators inventoried the safety deposit box of the decedent. Included in the items found in the safety deposit box was the abstract to the tavern property. Later, when Jenk found the assignment inside the abstract, he recorded it. He then notified Gertrude and Rosella of the existence of the assignment by letter dated October 1, 1990 which stated, "Enclosed you will find a copy of the Assignment of Contract which has been recorded and which, by separate phraseology in the Last Will and Testament, gives to you all of the interest in the contract to the Jaegers." Jenk acknowledges this statement was an error; he intended to state that the assignment had phraseology which made it the same as a Last Will and Testament. Jenk also furnished a copy of the assignment to the Jaegers and instructed them to make their monthly payments on the real estate contract to Gertrude and Rosella.

On October 17 attorney Paul Kaufman, representing two other heirs of the Ruden estate, notified Jenk that his clients challenge the validity of the assignment. The letter stated that the assignment "is invalid in that it attempts a testamentary transfer without meeting the requisite requirements of a will. It also refers to a contract which expired prior to Frank Ruden's death." Kaufman requested that payments under the contract be considered an asset of the estate to be distributed to all heirs.

Jenk notified Gertrude and Rosella by letter dated October 30 that:

I talked to Paul J. Kaufman, who indicated that Katherine Krug and Sharon Boots have stopped at his office and want you to withdraw as Administrators of the Frank Ruden Estate. Attorney Kaufman indicated that Katherine Krug and Sharon Boots do not trust you and that they feel that you are not listing all of the assets in this particular estate.

I am lost as to why they would even think this due to the fact that we have not even filed an Inventory and I have informed Attorney Kaufman that we will send him a copy of the Inventory before we file it with the Court, and a copy of the expenses also and a copy of Frank's income tax return, which will show where he had any and all of his assets. Hopefully, this will not be necessary and we will not have to argue and fight this particular matter.

I would also like to denote to you that if you are desirous of the undersigned taking a case on and filing briefs relative to whether or not Attorney Kaufman is correct in his analysis as to whether or not the assignment of interest in the contract, which was eventually extended, is to transfer, then I would like you to let me know.

I feel that the problem that we have right here which was expressed by Attorney Kaufman for and on behalf of his two heirs in this estate denote that the assignment was for the contract not for the contract after it was extended. It is kind of a legal question and it would be a case law question. I know Attorney Kaufman hasn't researched the same and do know it would cost between $400 and $500 to research same for it will take a lot of time to find case law and read cases and if you are desirous of the undersigned doing this, it will be necessary that you give your authority to do so and that you agree to said payment on a timely basis. This office and the undersigned charge $85.00 an hour for time and this would be extraordinary fees in this particular estate and will have nothing to do with the ordinary fees of ordinary administration in an estate such as this.

Without the requested authority of the administrators, Jenk researched the validity of the assignment. He also secured a legal brief from Drake University Law School. Based upon his research and the legal brief he received, Jenk concluded the assignment was invalid. He then instructed the Jaegers to make their contract payments to the Ruden estate and advised Gertrude and Rosella to deposit the two monthly payments they had received, totalling $1200, into the estate checking account. They followed his instructions.

At about this time Gertrude and Rosella retained attorney Joseph J. Bitter to represent their personal interests in estate matters including the dispute over the assignment. On November 3 Kaufman wrote a letter to Bitter regarding the Ruden estate. The letter recognized Bitter's representation of Gertrude and Rosella and referred to a prior discussion about the assignment of the Ruden contract and Bitter's suggestion that they attempt to settle the matter.

In January 1991, Kaufman wrote to both Jenk and Bitter offering to settle each of his client's claims for $4161. Jenk wrote Gertrude and Rosella relaying the settlement offer and suggesting they discuss the offer. The letter is not addressed to Bitter, nor is a copy indicated to him. Jenk also wrote to Rosella on January 19 concerning a potential conflict of interest as a result of a claim filed against the estate by Rosella's daughter for personal services and care of Frank prior to his death:

Sometime ago you indicated to me that you and possibly your daughter would be filing a claim against Frank's estate for past care and support. As I indicated to you, I have a conflict of interest if there is to be any claim in Frank's estate due to the fact that I am the attorney for and on behalf of the estate so you will have to hire your own attorney regarding same. If the claim is filed, we will have to ask the Court to set the matter down for hearing and rule accordingly.

After Kaufman failed to receive a counteroffer...