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Strong v. Fitzpatrick

Supreme Court of Vermont

May 12, 2017

William Strong
Edward D. Fitzpatrick and Bergeron, Paradis & Fitzpatrick, LLP

         On Appeal from Superior Court, Chittenden Unit, Civil Division, Helen M. Toor, J.

          Matthew D. Anderson and Shannon E. Lamb of Pratt Vreeland Kennelly Martin & White, Ltd., Rutland, for Plaintiff-Appellant.

          Justin B. Barnard of Dinse, Knapp & McAndrew, P.C., Burlington, for Defendants-Appellees.

          PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ.

          REIBER, C.J.

         ¶ 1. In this legal malpractice case, plaintiff claims that his deceased mother's attorney failed to draft a will reflecting her alleged intent to leave plaintiff a greater share of real estate than that left to his siblings. Plaintiff appeals the trial court's summary judgment decision for defendant, arguing that defendant owed him a duty of care as a prospective beneficiary of his mother's estate. We disagree and therefore affirm.

         ¶ 2. Plaintiff's mother married plaintiff's stepfather in 1966. Mother had three children when she married stepfather: plaintiff and his two siblings. Stepfather had no children, but he owned land known as the Munson Homestead, which had been built in 1834 by the first of seven generations of his family to live there. The Homestead consisted of two sections: (1) a portion where the house was situated (House Portion), and (2) a large tract of undeveloped land (Upper Meadow). Plaintiff and his siblings lived on the Homestead until early adulthood. Plaintiff returned to the Homestead in 1992 to care for mother and stepfather and to maintain the Homestead. During this time, plaintiff claims that "[o]n more than one occasion, " stepfather told plaintiff that he wanted plaintiff "to inherit the entire Munson Homestead" when stepfather and mother died. Plaintiff lived on the Homestead until mother's death in 2012.

         ¶ 3. Meanwhile, stepfather died in 2000, and mother inherited the entire Homestead. In anticipation of this inheritance, mother had executed a will in 1999 that would leave the entire Homestead to her three children in equal shares. Plaintiff was "distraught" about this plan and testified that he discussed it with mother in 2002 or 2003. He told mother that he "had done a lot of work to the place" and that her plan "wasn't what [he] was told" by stepfather. Plaintiff contends that mother responded, "I will leave you the house, the barn and the lower meadow, and you three kids can divide up the upper field"-in other words, she would leave the House Portion exclusively to plaintiff, and the Upper Meadow to all three of her children.

         ¶ 4. In 2006, mother hired defendant to help with the potential sale of the Upper Meadow to a developer for over $1, 000, 000. Plaintiff claims that this sale was intended to "ease facilitation of her primary estate planning objective" which he says at that point was to leave the House Portion to plaintiff and the rest of her property divided among her three children. Although the sale to the developer fell through, defendant did draft a codicil to her 1999 will to assist with her estate planning. This codicil named defendant as the executor of mother's estate but did not change the disposition of her property.* However, according to defendant, he later met with mother in February 2010 and she "indicated" to defendant that she "would like" plaintiff to inherit the entire House Portion and split the Upper Meadow with his two siblings. Indeed, after mother's death, defendant wrote a letter to plaintiff in August 2013 about this meeting:

I met with your mother in February of 2010. She had contacted me and indicated that she wanted to make a change to her will. We met in her kitchen. She explained to me that she wanted [plaintiff] to have the corner piece where the house is, being about [two] acres. The upper meadow was to be sold and split equally amongst her three children.

         Nevertheless, defendant described the meeting as merely "a consult" and that no decisions were made to move forward with the contemplated changes; indeed, he testified that "even in the beginning, she never asked me to [revise the will]. She never said, change my will."

         ¶ 5. In September 2011, defendant again met with mother regarding her will. Defendant maintains that mother was concerned about plaintiff's ability to pay the taxes on the House Portion, in addition to his share of the taxes on the Upper Meadow. It is disputed whether plaintiff was present at this meeting. Plaintiff insists that mother instructed defendant to draft a codicil and that defendant responded that he would go back to his office and draft the papers for her to sign. But there was never any further communication between defendant and mother after that meeting.

         ¶ 6. In March 2012, mother fell ill and was hospitalized. Plaintiff testified that he called defendant: "I told him that my mother was dying; that, she wants you to come down to the hospital and bring the will for her to sign." Defendant did not do this. Instead, he drafted and executed a Power of Attorney authorizing plaintiff to handle mother's affairs. Mother died on March 31, 2012, without executing a codicil leaving the House Portion to plaintiff. The entire Homestead was sold, and the proceeds were split between plaintiff and his siblings according to the terms of mother's 1999 will.

         ¶ 7. Plaintiff then filed a complaint against both defendant and his law firm alleging that defendant committed legal malpractice and consumer fraud. Specifically, plaintiff alleged that defendant breached a duty of care by failing to advise mother on matters of her estate and failing to draft a codicil reflecting her intent. The court granted a partial motion to dismiss by defendants in June 2015, dismissing the consumer fraud allegation. In February 2016, plaintiff filed an amended complaint, adding another count of legal malpractice. This amended complaint alleged that defendant breached a duty owed to plaintiff to the extent that he could have successfully challenged mother's ...

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