Deberry v. Summers
255 Or. App. 152
Or. Ct. App.2013Background
- Plaintiff is Dorothy DeBerry's granddaughter; defendant is attorney who prepared Dorothy and Gerald DeBerry's wills and revocable living trusts starting in 1993.
- Dorothy and Gerald's trust amended in 2000 to specify distributions, including that plaintiff would receive the Canyon Court home.
- Dorothy signed a second amendment in 2001; no evidence of further contact between Dorothy and defendant after 2001.
- Dorothy sold the Canyon Court home in 2003, buying a West View Court home titled in Dorothy personally; the trust was not amended to reflect the West View Court home.
- Dorothy died in 2007; West View Court became part of Dorothy's probate estate rather than the trust, and plaintiff received 20% of its value as a residuary devisee.
- Plaintiff sued for breach of contract and professional negligence, claiming defendant promised to include provisions to have plaintiff receive the Canyon Court home or a replacement home; defendant moved for summary judgment and the court granted it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff's ORCP 47 E affidavit precluded summary judgment | Affidavit created a genuine issue on scope of duty | Affidavit did not address terms; issue not based on expert opinion | Affirmed summary judgment on this point |
| Whether there is a genuine issue of material fact that defendant promised to benefit plaintiff | Evidence shows Dorothy intended plaintiff to receive Canyon Court or replacement home | No specific express/implied promise shown; records rely on speculation | No triable issue; record insufficient for implied/express promise |
| Whether Hale and Caba allow a nonclient to sue for implied promises by attorney | Nonclient can recover if promise to client benefits plaintiff | Promises must be specific; otherwise depend on client-duty | Hale/Caba require specific promise; no triable issue here |
| Whether Dorothy's statements create an implied agreement to benefit plaintiff | Dorothy's assurances suggest defendant agreed to carry out plaintiff's objective | Statements show plaintiff's expectations but not defendant's agreement; speculation too high | Insufficient to infer an implied agreement; trial not warranted |
Key Cases Cited
- Hale v. Groce, 304 Or 281 (Or. 1987) (intended third-party beneficiary may sue for breach of contract and malpractice)
- Caba v. Barker, 341 Or 534 (Or. 2006) (implied promises to make will invulnerable to contest require basis for implication)
- Frakes v. Nay, 254 Or App 236 (Or. App. 2012) (nonclient claims require proof of promise to client; distinctions in duties)
- Gwin v. Lynn, 344 Or 65 (Or. 2008) (distinguishes expert knowledge from personal knowledge for summary judgment)