Opinion
12-P-231
12-11-2012
ALBERT J. FORTIER v. JOHN J. SULLIVAN & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Albert J. Fortier, appeals from a judgment following a Superior Court judge's allowance of the defendants' motion to dismiss Fortier's claims of professional negligence and breach of contract. Fortier, the residuary beneficiary of the last will and testament of Susan S. Pond, contends that John J. Sullivan (Sullivan), Pond's attorney, erred in drafting Pond's will, which reduced Fortier's inheritance thereunder contrary to Pond's intent. The thrust of Fortier's averments concern whether the judge erroneously concluded that, as matter of law, an attorney for a testator (1) owes no duty of care to the testator's intended beneficiaries, and (2) is not contractually liable to the testator's intended beneficiaries in the absence of a written contract. We affirm that part of the judgment dismissing Fortier's claim for professional negligence, but reverse that part of the judgment dismissing Fortier's claim for a breach of contract. In reviewing the judge's dismissal of Fortier's complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), we take as true Fortier's allegations as well as any favorable inferences that may be drawn therefrom. Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011). 'What is required at the pleading stage are factual ' allegations plausibly suggesting (not merely consistent with)' an entitlement to relief . . . .' Ibid., quoting from Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008.
The judge also dismissed Fortier's claim under G. L. c. 93A, § 9, a ruling from which Fortier has not appealed.
The drafting error arises from Sullivan's undisputed failure to exercise Pond's power of appointment over the assets of the Susan S. Pond Trust. Fortier alleges that Sullivan's mistaken belief that, absent a power of appointment, the general residuary clause in Pond's will was sufficient to pass to Fortier the residual assets of the trust, thwarted Pond's intent to have those assets so pass upon her January, 2009, death.
1. Professional negligence. Fortier pleaded no facts supporting the existence of an attorney-client relationship, either express or implied, see Miller v. Mooney, 431 Mass. 57, 60-61 (2000), alternatively proposing that he falls within a limited range of nonclients to whom a duty of care is nevertheless owed. Notwithstanding the absence of an attorney-client relationship, '[a]n attorney also may owe a duty to someone who is not his client 'who the attorney knows will rely on the services rendered." DaRoza v. Arter, 416 Mass. 377, 382 (1993), quoting from Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 524, cert. denied, 493 U.S. 894 (1989). See Spinner v. Nutt, 417 Mass. 549, 552 (1994). Fortier does not allege foreseeable reliance.
Instead, Fortier contends that a duty of care runs from a testator's attorney to a testator's intended beneficiary under a completed testamentary instrument where there exists no conflict between the interests of the testator and the beneficiaries of that instrument. To find that a duty arises as Fortier suggests, however, requires us to accord him protection in tort by considering a legal status imposed upon him by contract -- a marked deviation from established precedent. This we decline to do. See DaRoza, supra at 382-384 (absent facts sufficient to establish foreseeable reliance, nonclient's claim of legal malpractice failed as matter of law). See also Page v. Frazier, 388 Mass. 55, 64-65 (1983); Lamare v. Basbanes, 418 Mass. 274, 276 (1994). Compare McCarthy v. Landry, 42 Mass. App. Ct. 488, 490-491 (1997). Fortier has not adequately raised his right to relief under a theory of foreseeable reliance, and therefore, the judge, relying on Miller, correctly allowed the defendants' motion to dismiss with respect to legal malpractice. See Miller, supra at 61 (claim of legal malpractice cannot not lie absent proof that the defendant owed plaintiff a duty of care).
The plaintiff relies on language in some Massachusetts cases expressing the assumption, for the sake of other discussion, that the attorney-client element may be established by proof of a third-party beneficiary contract, but no Massachusetts decision has squarely decided the issue. See Ryan v. Ryan, 419 Mass. 86, 90 (1994); Miller, 431 Mass. at 61 n.3; Rogers v. Regnante, 50 Mass. App. Ct. 149, 153 (2000). This assumption does not have the force of precedent compelling the conclusion that, as matter of law, a testator's attorney owes a duty of care to a testator's intended third-party beneficiary, nor are we persuaded to endorse this view.
Because Sullivan owed no duty to Fortier, we need not address the potential for conflict of the interests of Pond and Fortier.
2. Breach of contract. The judge incorrectly concluded, however, that the absence of a written contract compelled the dismissal of Fortier's claim of a breach of contract pursuant to the Statute of Frauds. An intended beneficiary may maintain an action for a breach of contract where it appears from ''the language and circumstances of the contract' that the parties to the contract ' clearly and definite[ly]' intended the beneficiar[y] to benefit from the promised performance.' Miller, supra at 62, quoting from Anderson v. Fox Hill Village Homeowners Corp., 424 Mass. 365, 366-367 (1997). Fortier alleges himself to be the intended beneficiary of the legal services rendered by Sullivan to Pond, a fact substantiated by Sullivan's own admissions. Contrast Doherty v. Admiral's Flagship Condominium Trust, 80 Mass. App. Ct. 104, 111 (2011). See Cumis Ins. Soc., Inc. v. BJ's Wholesale Club, Inc., 455 Mass. 458, 466 (2009).
We take as true (1) Fortier's allegation that Sullivan stated to Fortier and Fortier's counsel that Pond intended to pass the residual assets of the trust, like the residual assets under the will, to Fortier, and (2) a copy of a chart, prepared by Sullivan, showing the passage to Fortier of assets under both the will and the trust.
The Statute of Frauds, and the Statute of Wills, G. L. c. 259, §§ 5, 5A, do not preclude Fortier from maintaining an action in this instance. 'Proof sufficient to override the purposes behind the Statute of Frauds and the Statute of Wills . . . must be clear and persuasive.' Rogers v. Regnante, 50 Mass. App. Ct. 149, 153 (2000), quoting from Ryan v. Ryan, 419 Mass. 86, 92-93 (1994). As Fortier's allegation that Pond intended to pass the residual assets of the trust to Fortier, while self-interested, was corroborated by Sullivan's admission, we view the pleading of this count of the plaintiff's complaint as sufficient at this stage of the proceedings. Contrast Ryan, supra at 92.
We note that G. L. c. 259, §§ 5, 5A, have been repealed effective April 1, 2012, and replaced by provisions of the Massachusetts Uniform Probate Code, G. L. c. 190B. See St. 2008, c. 521, §§ 42, 44, as amended by St. 2010, c. 409, § 23, and St. 2011, c. 224.
Accordingly, that portion of the judgment that dismisses count II (breach of contract) of the complaint is reversed and the matter is remanded for further proceedings consistent with this memorandum and order. The judgment is otherwise affirmed.
So ordered.
By the Court (Rapoza, C.J., Brown & Fecteau, JJ.),