Strait v. Kennedy
| Decision Date | 04 December 2000 |
| Docket Number | No. 46564-3-I.,46564-3-I. |
| Citation | 103 Wn. App. 626,103 Wash. App. 626,13 P.3d 671 |
| Court | Washington Court of Appeals |
| Parties | Christine M. STRAIT, and Joseph J. Ganz as the Guardian Ad litem of Samantha Anne Ishmael, Appellants, v. W. James KENNEDY and Jane Doe Kennedy, individually and the marital community composed thereof; Thorner, Kennedy & Gano, P.S., a Washington Professional service corporation, Respondents. |
Roger K. Anderson, Seattle, for Appellants.
Roger B. Leighton, Stephanie Bloomfield, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, P.L.L.C., Tacoma, for Respondents.
This is an appeal of a summary judgment dismissing the legal malpractice claim brought by two daughters against their deceased mother's marital dissolution attorney, claiming that he failed to timely finalize their mother's divorce prior to her death, thereby causing them to lose portions of their inheritance. Under Trask v. Butler, 123 Wash.2d 835, 842-43, 872 P.2d 1080 (1994), a nonclient plaintiff has standing to sue an attorney only if the transaction was intended to benefit the nonclient. Because the daughters failed to meet this threshold inquiry, we affirm.
In 1980, Anne Marie Ishmael executed a will, bequeathing her entire estate to her then only child, Christine Marie Strait, and to any after-born children. Ms. Ishmael and Samuel Ishmael were married in 1983, and in 1984 they had a daughter, Samantha Anne Ishmael. Christine Strait is an adult, and Samantha Ishmael is a minor who lives with her father.
In July 1991, Ms. Ishmael retained W. James Kennedy and the law firm of Thorner, Kennedy and Gano, P.S., to represent her in an action dissolving the Ishmael marriage. A member of this same law firm had prepared Ms. Ishmael's 1980 will. In April 1992, the court held a hearing regarding the dissolution and resolved all issues except the distribution of Mr. Ishmael's pension with his employer, J.C. Penney. Because additional discovery was needed before this issue could be resolved, the court did not issue a decree of dissolution of marriage.
In May 1992, J.C. Penney sent pension information to Mr. Ishmael's attorney. In August 1992, Kennedy requested the pension information from Mr. Ishmael's attorney, but got no response. In November 1992, Ms. Ishmael sent a letter to Kennedy, requesting that he move to finalize the dissolution. In December 1992, Kennedy again requested the pension information from Mr. Ishmael's attorney, to no avail. On April 19, 1993, Kennedy deposed Mr. Ishmael and a J .C. Penney manager. And on May 12, 1993, Kennedy asked an associate to prepare interrogatories to J.C. Penney. Thereafter, Kennedy did not pursue the finalization of Ms. Ishmael's dissolution further.1
One year and three months later, on August 12, 1994, Ms. Ishmael died in an automobile accident. Because the dissolution was not finalized, and because Ms. Ishmael's 1980 will did not provide for Mr. Ishmael, the will was deemed revoked as to him, under former RCW 11.12.050 (repealed effective January 1, 1995). Thus, he was entitled to his intestate share of Ms. Ishmael's estate, and the daughters received a smaller portion of their mother's estate under her will than they would have had the marital dissolution been finalized by the time of her death.
On August 7, 1997, Anne Marie Ishmael's daughters, Christine Marie Strait and Samantha Anne Ishmael, filed a complaint against Kennedy for legal malpractice. On July 23, 1999, the court dismissed their claims on summary judgment. The daughters appeal.
When reviewing an appeal of a summary judgment order, the appellate court engages in the same inquiry as the trial court. Reynolds v. Hicks, 134 Wash.2d 491, 495, 951 P.2d 761 (1998). Summary judgment is appropriate if, when taking the facts most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hansen v. Friend, 118 Wash.2d 476, 485, 824 P.2d 483 (1992).
The daughters' legal malpractice claim is premised on their contention that Kennedy breached a duty owed to them, as nonclient beneficiaries of their mother's dissolution action, to timely finalize their mother's marital dissolution, thereby causing them to lose significant portions of their mother's estate. The daughters contend that they were intended beneficiaries of the dissolution action because their mother executed a will, prior to her marriage to Mr. Ishmael, leaving her entire estate to them; that Kennedy knew or should have known the provisions of the will because a member of his law firm prepared the will, and because Kennedy knew that if Ms. Ishmael died before the marital dissolution became final, her testamentary intent as expressed in the will would be frustrated by operation of former RCW 11.12.050, which statute had not then been repealed.
In general, only an attorney's client may file a claim for legal malpractice. Trask v. Butler, 123 Wash.2d 835, 839-40, 872 P.2d 1080 (1994). A nonclient plaintiff must prove, among other things, the existence of an attorney-client relationship that gives rise to a duty of care to the plaintiff, in order to establish a legal malpractice claim. Trask at 839, 872 P.2d 1080 (citing Hizey v. Carpenter, 119 Wash.2d 251, 260-61, 830 P.2d 646 (1992)).
Washington cases have not specifically addressed whether an attorney representing one party in a dissolution action owes any duty to the client's children as heirs apparent of the client's estate. However, in Trask, the Washington Supreme Court adopted a modified multifactor balancing test to determine generally whether a lawyer owes a duty to a nonclient. The elements of the modified multifactor balancing test are:
872 P.2d 1080 ().
Following Trask, we examine the threshold question of whether the attorney's services were intended to benefit the plaintiffs as heirs apparent of their mother's estate. In other words, if Kennedy's representation of Ms. Ishmael in the marital dissolution action was not intended to preserve and protect the daughters' expectancies under the will Ms. Ishmael executed in 1980, the daughters' claims must fail as a matter of law. That timely entry of a final decree dissolving the Ishmael marriage may have incidentally preserved and protected the daughters' expectancies under that will is not relevant to the inquiry.
Jurisdictions other than Washington have considered the issue of whether an attorney representing one party in a marital dissolution owes any duty to the client's children as heirs apparent, and each has held that such an attorney does not owe such a duty. See Wilson-Cunningham v. Meyer, 16 Kan. App.2d 197, 820 P.2d 725 (1991); Haldane v. Freedman, 204 Cal.App.2d 475, 22 Cal.Rptr. 445 (1962).
In Wilson-Cunningham, the Kansas Court of Appeals considered a claim very similar to the one at bar. There, attorney Meyer represented Charles Wilson in a dissolution action. 820 P.2d at 726. A hearing was held and the parties testified that although they had nearly reached a property settlement agreement, they had not yet agreed on the division of certain items. The parties also testified that they thought they could resolve their remaining issues but if they could not they would present the issues to the trial court for resolution. The court granted the dissolution, approved the parties stipulations as to property division, maintenance, child custody and support, and provided that if the parties could not reach agreement as to the remaining issues the court would order a division at a later date. Id. A few weeks later, the parties agreed on the final disposition and both the parties signed the final decree. Id. The decree was ready to be filed on November 23, 1987. Id. At 12:16 a.m., on December 4, 1987, Charles Wilson died intestate. Id. The decree was filed at 9 a.m. on December 4, 1987. Id. The divorce decree was ineffective to terminate the marriage because the decree was filed after Mr. Wilson's death. Id.
Charles' children from a former marriage sued Meyer claiming that they received a smaller share of their father's estate because, due to the untimely filing of the divorce decree, his wife received a spousal share of his estate by intestate succession. Id. The children alleged tort and contract claims against Meyer, claiming that he owed them a duty as intended beneficiaries of the representation and, alternatively, as third-party beneficiaries on the contract between Charles and Meyer. Id.
The Kansas Court of Appeals rejected the argument that the children...
To continue reading
Request your trial
-
In re Estate of Drwenski
...be whether the plaintiff is an intended beneficiary of the transaction; if not, no further inquiry need be made. Strait v. Kennedy, 103 Wash.App. 626, 13 P.3d 671 (2000). We align with the Washington court, which Put another way, if the plaintiff was not an intended beneficiary of the trans......
-
Parks v. Fink
...958 P.2d 301. The general rule is that only an attorney's client may bring an action for attorney malpractice. Strait v. Kennedy, 103 Wash.App. 626, 630, 13 P.3d 671 (2000) (citing Trask v. Butler, 123 Wash.2d 835, 839–40, 872 P.2d 1080 (1994)). “But an attorney may owe a nonclient a duty e......
-
Usoro v. Helm, 66100-1-l
...Trask, 123 Wn.2d at 843. It is not enough that the plaintiff is an incidental beneficiary of the transaction. Strait v. Kennedy, 103 Wn. App. 626, 631, 13 P.3d 671 (2000). Here, Helm's services were intended to benefit Etcetera—not Usoro. As the sole judgment-creditor, Etcetera, and not Uso......
-
Usoro v. Helm
... ... Trask , 123 Wn.2d at 843. It is not enough that the ... plaintiff is an incidental beneficiary of the transaction ... Strait v. Kennedy , 103 Wn.App. 626, 631, 13 P.3d 671 ... (2000) ... Here, ... Helm's services were intended to benefit ... ...