Shideler v. Dwyer

Decision Date03 March 1981
Docket NumberNo. 381S55,381S55
Citation275 Ind. 270,417 N.E.2d 281
PartiesShirley A. SHIDELER and Barnes, Hickam, Pantzer & Boyd, Appellants (Defendants Below), v. Mary Catherine DWYER, Appellee (Plaintiff Below).
CourtIndiana Supreme Court
Alvin E. Meyer, Richard L. Gilliom, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, Lineback & Lewis, P. C., Greenfield, for appellants (defendants below)

Jon R. Pactor, Indianapolis, for appellee (plaintiff below).

PRENTICE, Justice.

This cause is before us upon the petition of the Defendants (Appellants), Shideler, et al. to transfer the cause from the Court of Appeals, First District, that Court having affirmed the denial by the trial court of Defendants' Motion for Summary Judgment by opinion at 386 N.E.2d 1211.

Transfer is now granted under Appellate Rule 11(B)(2)(c), in that there is a conflict between said decision and the decision of said Court in Cordial v. Grimm, (1976) 169 Ind.App. 58, 346 N.E.2d 266, in that the Court of Appeals, Third District, in Cordial v. Grimm, supra, held that the two year limitation statute Ind.Code § 34-4-19-1, was not limited to medical malpractice actions and is applicable to malpractice actions brought against members of the legal profession; whereas said Court, in the cause before us, held that it was not. We are in accord with the Court of Appeals, First District, upon this issue in its holding that the doctrine of ejusdem generis limits the application to the term "or others," as used in said statute, to others of the medical care community. Accordingly, Cordial v. Grimm, supra, is expressly overruled.

Nevertheless, the decision of the Court of Appeals, First District, herein is erroneous in that it held that, notwithstanding the occurrence of injury and damages, i. e. the existence of the plaintiff's right to sue the defendants, the statute limiting the time within which suit could be filed thereon did not commence to run until the entry of a judicial decree, in an action initiated by Plaintiff and to which the defendants were not parties, confirming the plaintiff's loss.

At the outset, it should be noted that the motion for summary judgment was addressed, in the main, to the issue of whether or not the action was barred by the statute of limitations and not to the issue of whether or not a named beneficiary under a will, who was disappointed by the failure of the gift occasioned by reason of the lack of professional competence of the lawyer who drafted the will, can maintain a malpractice action against the errant lawyer. Accordingly, that substantive issue is not before us, and we intimate no opinion thereon.

In California, a state that has recognized the right of the beneficiary to maintain such an action, it was held that the statute of limitations began to run at the death of the testator.

"Under the alleged facts of this case, we conclude that the limitations period starts from the date that the cause of action accrues; namely the incidence of the testatrix' death when the negligent failure to perfect the requested testamentary scheme becomes irremedial and the impact of the injury occurs." Heyer v. Flaig, (1969) 70 Cal.2d 223, 225, 449 P.2d 161, 162, 74 Cal.Rptr. 225, 226.

Formerly, statutes of limitations were looked upon with disfavor in that they are invariably in derogation of the common law. "Now, however, the judicial attitude is in favor of statutes of limitations, rather than otherwise, since they are considered as statutes of repose and as affording security against stale claims. Consequently, except in the case of statutes of limitations against the government, the courts are inclined to construe limitation laws liberally, so as to effect the intention of the legislature." 51 Am.Jur.2d, Limitation of Actions § 50, (1970). Such statutes rest upon sound public policy and tend to the peace and welfare of society and are deemed wholesome. Horvath v. Davidson, (1970) 148 Ind.App. 203, 264 N.E.2d 328; Sherfey v. City of Brazil, (1938) 213 Ind. 493, 13 N.E.2d 568; High et al. v. Board of Commissioners of Shelby County, (1883) 92 Ind. 580, 589. They are enacted upon the presumption that one having a well-founded claim will not delay enforcing it. In Re Hogan, (1921) 75 Ind.App. 53, 129 N.E. 633.

The trial judge certified and the Court of Appeals found, on Defendants' Petition for Leave to Appeal an Interlocutory Order, that the order denying summary judgment involves a substantial question of law, the early determination of which will promote a more orderly disposition of the case. Accordingly, leave was granted by the Court of Appeals for Plaintiff to appeal from the trial court order, pursuant to Indiana Appellate Rule 4(B)(5)(b). We do not disturb that grant.

The statement of the case, the facts and issues are as stated by Judge Lowdermilk, for the Court of Appeals and are as follows:


"Defendants-appellants Shirley A. Shideler (Shideler) and Barnes, Hickam, Pantzer & Boyd (Barnes, Hickam) bring this appeal after the Hancock Circuit Court denied their motion for summary judgment. They contend that the professional malpractice action brought by plaintiff-appellee Mary Catherine Dwyer (Dwyer) is barred by statutes of limitation set forth in IC 1971, 34-4-19-1 (Burns Code Ed.) and IC 1971, 34-1-2-2 (Burns Code Ed.).


"Shideler is a partner in the law firm of Barnes, Hickam. In 1973 Shideler prepared a Will for Robert P. Moore. Moore, who executed the Will on October 8, 1973, died on December 14, 1973. Moore's Will, which was admitted to probate on December 21, 1973, included the following provision:

" 'Clause 7.1(c); Provision for Mary Catherine Dwyer. I specifically direct Dominic L. Angelicchio to use his best efforts as long as he owns any shares of stock of Moorfeed Corporation, to cause the Corporation to continue the employment of Mary Catherine Dwyer until her retirement or her other service termination date, then from and after such date and until her death, or the death of Dominie L. Angelicchio prior thereto, Dominie L. Angelicchio shall cause the Corporation to pay Mary Catherine Dwyer as a retirement benefit the sum of $500 per month.' (Original emphasis)

"Dwyer decided to terminate her employment in the fall of 1974. Her attorney discussed Clause 7.1(c) in Moore's Will with Shideler, who was then serving as attorney for Moore's estate. The estate and Angelicchio 1 took the position that Dwyer would have to meet the qualifications set forth in the profit-sharing plan of Moorfeed Corporation before she would be eligible for any benefits provided by Clause 7.1(c) of Moore's Will. Nevertheless, Dwyer submitted her resignation effective October 31, 1974.

"When Dwyer did not receive a payment for November 1974, she filed her petition on November 13, 1974, asking the Marion County Probate Court to construe the Will of Robert P. Moore. The Probate Court entered its decree on June 30, 1975, and held that Clause 7.1(c) of Moore's Will was '... null and void and of no effect because of its impossibility of performance. The language of said Clause 7.1(c) is merely precatory language. Such Clause 7.1(c) is directed to a corporation and a stockholder of such corporation cannot cause the corporation to perform the acts set out in said clause.'

"Dwyer filed her action against Shideler and Barnes, Hickam on June 29, 1977. She alleged, inter alia, that Robert P. Moore had intended for Dwyer to receive $500 per month in addition to other retirement benefits, and that Shideler and Barnes, Hickam, who prepared the Will for Moore, knew or should have known that Clause 7.1(c) would be held void.

"Shideler and Barnes, Hickam ultimately filed their motion for summary judgment, which the trial court denied.


"The following issues have been certified to this court for consideration, pursuant to Ind.Rules of Procedure, Appellate Rule 4(B)(5):

"1. Is Dwyer's action barred by the statute of limitations set forth in IC 34-4-19-1?

"2. Is Dwyer's action barred by the statute of limitations set forth in IC 34-1-2-2?

"3. Do genuine issues of material fact exist in the case at bar?"


As previously stated herein, we have determined that IC 34-4-19-1 is not applicable. Because our decision herein is controlled by our determination of issues 2 and 3 favorable to Defendant's position, further treatment of Issue I is unnecessary.


Again referring to California authority where the right of an intended beneficiary to maintain an action against an attorney who mis-drafted the Will has been established, it has been there determined that the action is in tort. Heyer v. Flaig, supra.

"Applying the Biakanja (v. Irving (1958) 49 Cal.2d 647, 320 P.2d 16) criteria to the facts of Lucas (v. Hamm, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685), the court found that attorneys incur a duty in favor of certain third persons, namely, intended testamentary beneficiaries. In proceeding to discuss the contractual remedy of such persons as the plaintiffs in Lucas, we concluded that 'as a matter of policy * * * they are entitled to recover as third-party beneficiaries.' (56 Cal.2d at p. 590 (15 Cal.Rptr. at p. 825, 364 P.2d at p. 689).) The presence of the Biakanja criteria in a contractual setting led us to sustain not only the availability of a tort remedy but of a third-party beneficiary contractual remedy as well. This latter theory of recovery, however, is conceptually superfluous since the crux of the action must lie in tort in any case; there can be no recovery without negligence. This reading of Lucas is reinforced by the following language recited with approval in the case of Eads v. Marks (1952) 39 Cal.2d 807, 811, 249 P.2d 257: 'It has been well established in this state that if the cause of action arises from a breach of a promise set forth in the contract, the action is ex contractu, but if it arises from a breach of duty growing out of the contract it is ex delicto....

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