Millwright v. Romer

MILLWRIGHT, Market S. James Donna

Summers, and Markel

Appellants, ROMER, Appellee.

L. W.

No. 66653.

Supreme of Iowa. Court

July relationship

client was ever entered into parties between the present to the action. James passed G. Summers away April on 14, 1945. The will drafted defendant probate. was admitted to Romer was not involved in the administration of the estate. One of the decedent’s testamentary inten- Pfeffer, Clinton, Paul E. for tions had appellants. provide been to a life estate for children, Laurel Summers and Baty, Maquoketa, Corliss C. appellee. for Summers, Markel with a going remainder to their issue. This life estate and remain- der were to take effect after a life estate to McGIVERIN, Justice. testator’s wife terminated. To effectuate Millwright, Plaintiffs Donna S. James portion this intent a of the will established ap- Markel Summers and Markel Summers a portion trust. This of the will violated peal summary judgment from dismissing the rule against perpetuities and is the legal their action de- source of present litigation and this L. single fendant W. Romer. The issue on appeal. appeal is plaintiffs’ whether action is barred The creating trust the life estate in the by the statute of limitations. find that testator’s children with the remainder to it is so barred and affirm trial court’s sum- opened children’s issue was for adminis- mary judgment. tration, after the wife, death of testator’s reviewing grant In or denial of sum- on October 1955. Defendant was not motions, mary judgment we view the un- involved with the administration of the derlying pleadings facts contained in the reports trust. Annual were through filed and the inferences to be drawn therefrom, 1977. light in the most favorable to the party On November the Jackson Coun- motion, opposing the give and to such ty upheld District challenge Court to the party the of any benefit doubt as to the grounds trust it violated the propriety of granting summary judg- rule against perpetuties, section ment. Our on appeal task is to determine Code. Judgment was affirmed on Decem- only genuine whether a issue of material ber Summers, 1979. In re fact exists and whether the law was cor- Ct.App.1979) (table). Thus, the rectly applied, and grant to reverse the trust providing a life estate to plaintiff summary judgment if it appears from the Markel Summers and a remainder to his record there is an unresolved issue of children, plaintiffs Donna Millwright S. and material fact. James Markel was terminated. Meylor Brown, Plaintiffs (Iowa 1979); mal- Frohwein v. Haesemeyer, 264 practice February 12, action on 1980. De- (Iowa 1978). Under raised, by fendant a motion summary this view of the facts underlying this case judgment, the defense that the action was the following course of events appears from barred the five-year statute of limita- the record. 614.1(4), tions of section The Code. Trial Defendant, retired, now long was an at- granted court summary the motion for torney actively engaged practice judgment, finding that all had law in this state April 1944. On that provisions been aware of the will for date defendant drafted the last will and eight years that, being nine and testament of James G. Summers. Plain- against perpetu- of the rule tiffs were beneficiaries under this will. De- ities, 614.1(4) section barred their action. employed by fendant was not plaintiffs in any time, manner at that attorney- no appealed. Plaintiffs drafting wills, In the consists of the execution of

Legal malpractice skill, use attorney “to of an likely failure mistake or error would be lawyers of ordi diligence as prudence and only surface after the death of the testa- possess commonly nary capacity skill and tor, when the instrument became effec- performance exercise in Thus, tive. in the usual case in which the Neel v. Ma they which undertake.” tasks testator died some time after the draft- Gelfand, 6 Olney, Levy, Cathcart & gana, error, ing generally suit could not be 421, 180, 422-23, 176, P.2d 98 491 Cal.3d period. within the 837, (1971). 838-39 “When Cal.Rptr. however, began Eventually, courts to re- damage gives proximately causes failure act injustice to the obvious that resulted 180-81, Id. at to an action in tort.”1 rise application general from of the rule to a 423, at 839. Cal.Rptr. 491 P.2d at 98 disappointed beneficiary. will or trust a tort action for general As a rule rarely The statute of limitations issue negligently legal malpractice based planning arose in the estate context until wills accrues on the or executed drafted stringent privity requirement was Heyer v. of death of the testator. date 1960’s, however, By overturned. the late 223, 225, 161, 162, 449 P.2d Flaig, 70 Cal.2d began the courts to alleviate the harsh- 225, (1969); v. Cal.Rptr. 74 226 Shideler application ness of strict of the statute of 281, (Ind.1981); 417 283 Jar Dwyer, N.E.2d limitations in malpractice. Instead 434, Hood, 433, 93 601 P.2d amillo v. N.M. commencing of to run at the time the 66, Levit, (1979); Legal R. Mallen and V. 67 committed, mistake or error was it was 397, (2d 1981); Malpractice at 481 ed. D. § held that begin the statute did not to run Meiselman, Attorney Malpractice: Law and death, until the testator’s at which time (1980); John Procedure at 91-92 § irreversible, the error had become ston, Legal Malpractice in Estate Plan was, been, or at least should have discov- ning-Perilous Times Ahead for the Practi tioner, 629, (1982). by adversely 649 This ered 67 Iowa L.Rev. affected beneficiar- rule, began develop approximately which ies. years ago, represents

fifteen a substantial Johnston, (foot- 67 Iowa L.Rev. 648-49 departure prior prevalent from the rule omitted). (1951); 58 21, Am.Jur.2d Notice at 503 § 1975). We apply present to the case. (1971); 13, 66 (1950); C.J.S. Notice at 649 § given “The question not, in case is Michigan, see Reetz v. 505, 509, 188 U.S. 23 What injury did know of the done 390, 392, 563, S.Ct. (1903); 47 L.Ed. 566 but, known, might him? What he have States, Whiteside v. 247, 257, United 93 U.S. the use of the means of information within 882, (1876); 23 L.Ed. 885 Art Center School reach, vigilance with the which the law States, 218, v. United 221, 136 Ct.Cl. 142 Chrischilles, requires of him?” 260 Iowa at 916, 918 F.Supp. (1956); Board of Education 462, 150 at N.W.2d 100. Murphy, 981, 985, 56 Ill.App.3d 14 Ill.Dec. plaintiffs, We find that under the 620, 622, 899, 372 N.E.2d (1978); 901 Pres vigilance requires them, which the law of bytery of Harris, Southeast Iowa v. 226 should have known that the will violated 232, (Iowa 1975) 242 (for purposes against perpetuities. the rule Every citizen adequate of notice procedural vis-a-vis due is assumed to know the law charged process and is “enactments of our legislature state knowledge provisions publication with of stat and thereof adequate constitute Eg., utes. notification to University Cannon of all they Chica concerned as to what contain”), go, 677, 696-97, denied, 1946, 830, 441 99 cert. U.S. 423 S.Ct. U.S. 96 50, 560, 1957-58, (1975); 60 S.Ct. 46 L.Ed.2d 48 (1979); L.Ed.2d An Prucha v. Dept. Vehicles, 415, of Motor Luckett, 420, derson 172 National Bank v. Neb. 321 U.S. 75, (1961); 233, 243, 599, 605, 692, 701.6, 80 64 but cf. S.Ct. 88 L.Ed. § 703 (“All The Code 1981 (1944); persons presumed are North Laramie Land Co. v. Hoff the man, know law. Evidence 276, of an 283, 491, 494, 268 45 accused U.S. S.Ct. 69 person’s ignorance 953, (1925); mistake as to a L.Ed. 957 mat Louis, Ketchum v. St. ter of either fact or law shall be 306, 315-16, admissible 999, 101 25 U.S. L.Ed. 1002 in any case where it shall tend (1880); prove the States, 389, Cooke v. United 91 U.S. existence or nonexistence of some element (1875); 244 L.Ed. Barber Pure of the crime with person which the of Montgomery Milk Co. v. Alabama State charged”). Board, Milk Control 275 Ala. (1963); So.2d Realty Atlas Co. v. Code, Section against the rule House, 123 Conn. 192 A. 567 perpetuities, has a part been of the code of (1937) (“The maxims, familiar that Iowa since It provides: “Every 1851. dis- every presumed law, one is to know the position of property is suspends void which ignorance one, that of the law excuses no power the absolute controlling same, of the are upon public policy founded and in neces longer period for a during than the of lives sity, and the idea back of them is that one’s persons then in being, twenty-one years acts must having be considered as been thereafter.” plaintiffs the Since are knowledge law, done with the for of other knowledge wise its evasion would be facilitated and the against perpetuities, they are deemed courts burdened inquiries with collateral to have of and to have discover- into the content minds.”); of men’s Dunlap ed drafting the defect as of the of date reason for the rule takes into Thus, A final limi- the statute of death. testator’s the client- aspects additional of account two on that date because to run began tations relationship. though Even no such attorney have known the contents plaintiffs case, present in the it is relationship existed defend- will, the will drafted that the constituent elements of clear these two statutory rule violation of ant was applied were relationship, even if be- certain and that perpetuities case, justify of this would not to the facts in- void. Under were therefore quests presumption of knowl exception to an day plaintiff Markel last terpretation, First, laymen had an edge of the law. action was brought his could have Summers misapplica the mistake or ability to detect was shows he The record April id., Neel, case. tion However, children in 1910. born at 844. The at P.2d Millwright born Donna S. Markel represented the estate was executor born Markel Summers in 1942and James have attorney. person This could by an the date of testator’s minors at were violated the notice that the will provided 614.8,The Code Under section death. Second, had section 558.68. statutes of predecessors, its id., Neel, to see the defect. opportunity an one of minors until in favor are extended 428, Cal.Rptr. at 844. The age majority. they reach year after an attorney probate new for was use of a Thus, could have James and Donna discovery. Jaramillo v. opportunity applicable but the their actions after Hood, at 601 P.2d at 67. The 93 N.M. run, have as to of limitations would statutes years. lasted for at least five opportunity them, present action was well before the their burden Plaintiffs have not carried brought in 1980. establish, genuine as a issue of plead to fact, exception an to the normal applica of the reasons for None well before 1980. period which ended legal mal discovery rule to tion of the Ellison, 197, 200(Iowa Brown v. exception to the support an practice actions 1981). period limitation five-year The knowledge of the law in presumption 614.1(4) legal applies to this mal section upon a by beneficiaries based present action the beneficiaries practice brought by action reason un negligently drafted will. One negligently drafted will. The statute of a discovery legal rule in mal derlying the began to run on the date of testator’s death right has a actions is that a client practice plaintiffs were with because knowl rely upon superior skill and to rule Neel, attorney. of his 6 Cal.3d at edge perpetuities. period of limitations has 838; see Cal.Rptr. P.2d at at Trial court’s plaintiffs. run as to all sum Blenderman, Baines judgment dismissing petition is mary 1974) (reliance physician medi therefore affirmed. malpractice). ap That reason not cal does AFFIRMED. because defendant was never ply here attorney. part He had no plaintiffs’ HARRIS, except concur All Justices trust, estate or of decedent’s administration McCORMICK,JJ., LARSON, and who dis- subsequent legal prior had no rela sent. tionship plaintiffs. HARRIS, (dissenting). Justice underlying discovery A second reason majority respect, the basis for the In all that the absence legal malpractice is rule in escapes me. holding denigrates duty of such a rule Question: How do we a claim that a bar full and fair disclosure to attorney to make misunderstanding negligent for lawyer was Neel, client. 6 Cal.3d at 491 P.2d against perpetuities? the rule at There is no Cal.Rptr. here, lay persons no un- relationship By pretending Answer: attorney-client derstand it. duty of disclosure. court, Now lawyers; are the defendant while giving Plaintiffs not lip service to Although would doubtless discovery rule, is. applies nevertheless an difficulty prevailing on the mer- some have artificial presumption every person its, a jury I would trust resolve their knows the law and concludes the plaintiffs I would reverse the trial court. claim. had knowledge of the legal defect in the trust even though there is substantial evi- a No one should be astonished when law- dence in fact had such knowledge. no against perpetuities. yer runs afoul the This stands the discovery rule on its head. Notwithstanding its existence for centuries plaintiffs’ The date of the knowledge of the jurisdic- inordinately complex. In all it defect, legal or when they should have been generations lawyers tions have stubbed it, aware of is a disputed issue, fact inap- professional protruding rami- toes on some propriate summary judgment. complexity fication of rule. Indeed the jurisdiction of the rule led to hold that one

it could form no basis for a mal- suit,

practice inasmuch as misunderstand-

ings by lawyers of the rule are so common- Hamm,

place. Lucas v. 56 Cal.2d

(1961). jury might An Iowa reach the same lay person But

conclusion. a should not be prosecuting a

barred from claim based on against, Plaintiff, the rule a persons, SEEMAN, suit of all David lawyer. Although this case is unusual is not LIBERTY MUTUAL INSURANCE particularly Our complicated. rules tort COMPANY, Defendant. and, claims for are well settled notes, majority as the apply as much No. 66706. lawyers professions. toas other The dis- Supreme Court of Iowa. rule, covery majority, also recited deeply woven into the our fabric of law. July yield should established rules and give plaintiffs day their in court. The ques- when, ever,

tion of if plaintiffs should be knowledge of the rule so as

bar their claim under the statute of limita-

tions, question jury should be a fact question

to decide. It is not which

be decided us as a of law. The matter

trial court should be reversed. JJ„ LARSON, join

McCORMICKand

dissent.

LARSON, Justice (dissenting). join dissent,

I Justice Harris’s with these

additional views. The discovery rule was

designed to ameliorate the results of harsh

charging a claimant with giving

facts rise to despite his claim

fact he was unaware of them and would not

have discovered them in the exercise of

reasonable care. notes whereby began the statute of limitations rule, general find that which attorney’s negligent when the act or run starts the statute of running limitations See, e.g., Wilcox v. omission occurred. death, the date of testator’s explic- must be 183, Plummer, (4 Pet.) 172, 29 7 L.Ed. U.S. itly by application modified discovery 821, (1830); Bosworth, Goldberg 824 v. 29 rule. A similar modification occurred in 1057, 1060, 849, 215 853 Misc.2d N.Y.S.2d Hood, 433, 434, Jaramillo v. 93 N.M. 601 (Sup.Ct.1961). Professor Johnston has com 66, (1979): P.2d damage 67 “The harm or upon mented the transition from the rather in harsh old rule to the new rule: this case arose at the time testatrix died. However, party third-party beneficiary 1. A can also recover as an intended third- contract party beneficiary theory conceptually superfluous of contract between the “is since the attorney preparation case; testator and the of crux of the action must lie in tort in purpose recovery negligence.” the will. “Since ... the main can be no there without making agreement Heyer Flaig, 223, 227, 161, testator with the at v. 70 Cal.2d 449 P.2d torney 164, 225, persons Cal.Rptr. (1969). is to benefit named in his 74 228 effectuated, plaintiffs’ petition will and this intent can be In the case seems attorney, only by theory event of a breach to be based on the breach of contract action, giving However, right recovery. alleged the beneficiaries we also and, recognize, policy, “negligence” pleading as a matter of under the notice rule, 69, third-party theory are entitled to recover as bene Iowa R.Civ.P. the tort of recov- Hamm, 583, 590, ery ficiaries.” Lucas v. 56 Cal.2d was raised. 685, 689, 821, (1961), theory recovery important 15 825 The choice of denied, 987, 603, cert. 368 U.S. 82 7 S.Ct. because different causes of action have differ- (1962); generally ing periods. 614.1(2), (4) L.Ed.2d 525 see Khabbaz v. See §§ Swartz, 279, (Iowa 1982). (5), 319 N.W.2d The Code. 33 However, Co., the cause of action did not accrue Richmond & D. R. 136, 140, 81 Ga. 7 283, damage (1888); until the harm or was ascertainable 284 S.E. Neal v. Board of Su- discovery pro pervisors, 723, 728, Our 243 147, discoverable.” Iowa (1952); 150 vides: “The limitation statute or statutes in O’Neal v. Virginia & M. Bridge Co., (1861); cases 18 Md. do not start to run until 26 Twiehaus v. Ros- ner, when, discovery, the date of 362 Mo. or the date 245 S.W.2d 110 (1952); care, Mayor the exercise of Giordano reasonable and Council of Dumont, Borough of wrongful should have N.J.L. discovered the act.” (1948); A.2d Hagerman Griswold, v. Town Chrischilles v. 260 Iowa Hagerman, 118, 124-25, 141 19 N.M. 94, 100 (1967). P. applies The rule (1914); Shealey v. American Health Ins. legal malpractice cases. Cameron v. Co., 79, 85-86, 220 S.C. 66 S.E.2d Montgomery,

Case Details

Case Name: Millwright v. Romer

Court Name: Supreme Court of Iowa

Date Published: Jul 21, 1982

Citation: 322 N.W.2d 30

Docket Number: 66653

Court Abbreviation: Iowa