*1 Virginia SHARKEY et al.
George M. PRESCOTT 2009-316-Appeal.
No. of Rhode Island.
Supreme
May *2 judgment granting the motion of the (defendant
defendant, George M. Prescott Prescott), or for judgment and dismissing alleging action le- gal malpractice. plaintiff argues The grant summary judgment in favor of inappropriate defendant was genuine issues of material fact exist about whether the statute of limitations barred plaintiffs complaint. This case came before the Supreme argu- Court for oral ment on January pursuant to an directing parties appear order why show cause the issues raised appeal summarily should not be decided. Subsequent to our consideration of the parties’ submitted memoranda and oral ar- guments, we are satisfied that cause has shown, not been and we proceed decide appeal at this time. For the reasons below, set forth we affirm the part part. and reverse it in Facts and Travel Philbin, Dale, Esq., Neil P. Peace for husband, The and her Walter Plaintiff. Sharkey, retained defendant to le- provide Mannix, Warwick, Melina Esq., J. gal services in 1999 for the preparation of Defendant. plan.1 an estate Prescott accordingly es- SUTTELL, C.J., Present: indenture, tablished a trust known as “The GOLDBERG, FLAHERTY, ROBINSON, Trust,” Sharkey Family which the Shar- INDEGLIA, JJ. 9,1999.2 keys executed That same day, as relevant to this appeal, the Shar-
OPINION keys signed quitclaim prepared by deeds INDEGLIA, Justice for the Court. which two lots of land (Lots 43) couple that the owned in plaintiff, Virginia Sharkey (plaintiff or Sharkey), appeals from a Narragansett to themselves as trustees.3 Sharkey 3.According plaintiff, Walter died in 2002. a summer home is located on Lot and Lot 43 is vacant. trust, becoming judicially Prior to the lots assets of the 2. The trust since has been terminat- Accordingly, including ed. the trust title to Lot was in both her and her hus- assets names, principal and undistributed income were or- band’s while title to Lot 43 was in her Sharkey. dered distributed to name alone. This was done to avoid common information did not receipt of this the other 42 and Lots In addition have that Lot 43 could make her “aware account brokerage included trust assets and in [her] out of kept [the trust] been marital home Woon- Sharkeys’ and the *3 she was coun- ownership until” provided separate the trust The terms socket. attorney in by another seled to that effect plaintiff either or the death upon Therefore, she asserted be December 2003. husband, estate was to trust her become “aware for only then did she the “Marital two trusts: into divided * * * might Prescott The the first time “Residuary Trust.” Trust” and included in negligent when he have been contain the residence was to marital trust conveyance of both plan remainder of the our estate of the and a fraction to trust].” Lots and 43 funding [the the residu- the balance estate with ary trust. after Additionally, according plaintiff, representative Bank plaintiff consulting visited a Citizens
According for the July she “became aware why in July 2001 and “asked his law office in * * * Prescott made a sec- first time that been transferred 42 and 43 had both lots setting up so July [the trust] ond mistake In a letter dated to the trust.” get access to that” she was not able said that he sent defendant which account that brokerage principal conversation memorialize their plaintiff to residuary plaintiff The in was in the trust. placed were why properties about concluded, and her husband in- maintained that she trust, “I see no defendant discussing when their formed defendant that I did some- your complaint reason for pro- was to priority estate that their executing] thing wrong preparing in However, surviving spouse. for the Because according to vide your plan.” estate was, view, not this directive in receive this letter.4 she did not plaintiff, achieved, she “decided to sue Indeed, adequately in her affidavit that stated plaintiff * * * * * * legal malpractice.” Prescott in Prescott for complain to she “did not anything had done July 2001 that he Sharkey complaint in Providence filed plan” estate be- preparing in wrong County Superior on October 2006. know in 2001 that cause she “did not in that “defendant’s conduct alleged She anything wrong pre- in Prescott had done plaintiff and her husband to advising the paring plan.” the estate living 43 into the trust deed Lots duty to 8, 2003, of the defendant’s plaintiff met with a was a breach On October care, skill, use reasonable Narragansett the Town of zoning official of plaintiff The plaintiff.” the sale of Lot 43. The behalf of the preparation that, damaged as a result meeting, claimed that she was at this plaintiff maintained $400,000, approximate amount Lots 42 and 43 she learned that “because trust], Sharkey also the Town fair-market value of Lot had been deeded into [the that “defendant’s conduct draft- alleged would consider both lots Narragansett ” deny so as to ing [her] the Trust Indenture Consequently, she ‘merged.’ to have Residuary in the principal access to the sepa- could not be sold told that “Lot 43 duty However, a breach of the defendant’s plaintiff said Trust was rately from Lot 42” lots, says he she left the trust instrument that ownership which the letter merge. alleged meeting the titles to several understood would cause at his office after their plaintiff likewise maintains days prior. The a second letter 4. The record also contains letter. did not receive this second that she 24, 2001, Sharkey, July from Prescott to dated enclosing with which that he was states care, skill, legal-malpractice and dili- actions. A to use was entered on said that she “sus- favor of gence.” a con- timely tained financial loss” as defendant. The filed a no- substantial breach of sequence alleged appeal. of defendant’s tice of equita-
duty. Additionally, requested II ble modification of the trust to afford prin- “maximum access to and control over Appeal Issues Trust, Residuary while lim- cipal from the On appeal, plaintiff argues that the trial only and control iting that access *4 justice erred when she concluded that the necessary extent to assure minimum tax granted rule did not liability.” Finally, petitioned the court summary judgment defendant’s motion for “[ejquitable for cancellation of the deed plaintiffs Specifically, on all claims. Shar- Lot 43 into [the trust].” key plain reading contends “[a] moved for May On defendant and the affidavit attached exhibits [her] 56(b) summary judgment Rule under ample reveals evidence to demonstrate Rules of Proce- Superior Court Civil outstanding issues of material fact that claims of plaintiffs dure on the basis render inappropriate.” him were time- legal malpractice against Therefore, the issues before this Court are argued barred. The defendant whether trial justice properly granted brought applica- action was outside of the summary defendant’s motion for judgment legal-malprac- ble statute of limitations for plaintiffs claims that defendant com- § tice claims codified at G.L.1956 9-1-14.3 legal malpractice mitted when he advised plaintiffs because action was commenced Ñarragan- to deed both their years more than three since the incidents properties sett to the trust and when he giving rise to it occurred. The prevent drafted the trust so as to argued opposition to the motion that her surviving spouse accessing from the princi- complaint was not time-barred because un- pal residuary trust. § “discovery der the rule” codified at 9-1- 14.3(2), malpractice the incidents of were III not discoverable the exercise of reason- able at the time that of Review oc- Standard by plaintiff curred and were discovered “It is well settled that this Court years prior within the three filing hearing justice’s reviews a grant of sum complaint. The motion was heard be- mary judgment de v. novo.” Parker justice fore a Court (R.I.2010) 627, Byrne, 996 A.2d (citing 632 21, Groff, Credit Union Central Falls v. 966 (R.I.2009)). 1262, hearing arguments par- After A.2d 1267 “We will af ties and reviewing pleadings, deposi- only firm such a decision if ‘after reviewing affidavits, testimony, tion jus- the trial the admissible light evidence most tice “plaintiff concluded that has failed to favorable the nonmoving party, we con come genuine forward admissible evidence to clude that no issue of material fact applicability demonstrate the moving party the discov- exists and that the is entitled ” Therefore, ery doctrine.” judgment the trial as a matter of law.’ Prout v. granted Providence, 1139, defendant’s motion summary City for 996 A.2d 1141 (R.I.2010)
judgment plaintiffs action (quoting Impact Lucier v. Re (R.I. creation, Ltd., 635, barred under the statute of limitations for 864 A.2d 638 66 “[sjummary
2005)). emphasize record evinces We Conversely, “if the fact, summary remedy that judgment material is an extreme issue of a will accord cautiously.” and we improper applied should be Plainfield Lovett, Convenience, v. v. 1889 reverse.” Canavan Pike & LLC ingly Gas Schef (R.I. Harnett, 778, A.2d 788 A.2d Realty Corp., Pike rin Plainfield Silva, 2004) 114 R.I. Belanger Poulin, (citing (quoting Johnston (1975)). 266, 267-68, (R.I.2004)). proce This utility identify disputed “is to dural rule’s IV trial, necessitating fact not to issues of issues.” at 58 resolve such Id. Discussion (R.I. Catanzaro, Rotelli v. review, novo Upon our de 1996)). purpose of the nature and Mindful whether defendant must determine summary judgment, of motion judgment be was entitled plaintiffs argument to consider proceed were time- allegations cause that, viewing light the evidence after discovery-rule ex whether the barred or *5 her, most favorable to there are “outstand three-year statute of limita ception to the ing of material fact that render issues Section 9-1-14.3 sets applicable. tions is summary judgment inappropriate.” three-year statute of limitations forth the legal-malpractice actions.5 governing
However, also codifies the ex this section injuries due to acts of
ception for “those could not in the legal malpractice which Alleged Malpractice Concerning Advice diligence be discov of reasonable exercise to Deed Both Lots to Trust the occurrence of the erable at the time of argues The that plaintiff action, gave rise to the suit incident which appropriate was not on count (3) years within three shall be commenced that defendant complaint alleging of her legal the act or acts of of the time that legal malpractice committed when he ad should, rea in the exercise of malpractice her husband to deed plaintiff vised diligence, sonable have been discovered.” they Narragan that both the lots owned 9-1-14.3(2). discovery-rule The Section because, under the discov sett to the trust exception protect serves “to individuals rule, ery this claim was not time-barred. in from latent or undiscoverable suffering The trial found that the legal then seek redress after juries who claim because rule did not to this expired for a the statute of limitations has “[tjhere anything plaintiff wasn’t for the Canavan, 862 A.2d at particular claim.” undisputed that she under discover. It’s (citing Ashey Kupchan, if the two lots happen stood what would (R.I.1993)). The standard 1269-70 ownership.” were committed to common objective: it applied exception to this characteriza plaintiff argues that this only plaintiff that the be aware “requires because it does not ad tion is “erroneous per place that would reasonable facts that gravamen complaint, of the dress claim son on notice that a exists.” Omdahl, negligently advised the defendant Id. at Riemers v. (N.D.2004)). to be that all of her assets had plaintiff 687 N.W.2d years occurrence of the incident which provides § 5. General Laws 1956 9-1-14.3 legal malprac pertinent part: gave "an action for action.” rise to the (3) within three tice shall be commenced plaintiff plaintiff to the trust.” The ar- cient to alert the attorneys its that, although may she have been had gues negligent” been and that on which merger plaintiff of the title to the lots date the discovered negligence aware executed, time the trust was in the exercise of diligence pre- at the fact). “was unable learn the defendant sented a issue of material op- have informed her of another should whether, determining In in the exercise meeting until she had a with another tion diligence, of reasonable defendant’s al- lawyer 2003.” December[ ] leged legal malpractice was not discover- record, After careful review of the able until December we note defen- contention, agree complaint denial, with that her al- dant’s leged legal that defendant committed mal- complained July that she to him in practice when he preparing advised to that he erred in her and her deed both lots to the trust not because plan. husband’s estate The defendant Sharkey did not understand that the lots maintains that visited his office in merge, would then but rather because he inquire 2001 to about the lot merger Sharkey did not advise and her Sharkey husband while stated in her affidavit that could achieve their estate she did “not believe any had [she] causing without In her merge. meeting lots in 2001” and that [defendant] affidavit, Sharkey defendant,’ stated she and her she did not receive the letter affidavit, husband “deeded Lot 43 to his own [the trust] stated that he wrote to Prescott had advised her to confirm the meeting. Certainly [them] *6 carry plan, that in order to out our estate these are material facts to put be into the all our preliminary of assets had to be to the mix at a evidentiary hearing Viewing complaint, deposi- any trust.” the at time advance of trial in determin- tions, light and affidavits most favor- when ing diligence would have to plaintiff nonmoving party, put person able as the as on notice that a must, opinion it is our that the discov- claim existed. See Cikan v. ARCO Alas- (Alaska ka, Inc., 2005) ery 335, rule does to this claim. This is 125 P.3d because, (“[W]hen accepting plaintiffs so as true dispute precludes entry a factual statement that she “was not aware that dispute the must or- Lot 43 could have kept dinarily been out of be pre- [the resolved the court at a * * * until after met with liminary evidentiary hearing trust] [she] [an- in advance of 2003,” trial”); attorney] other Lopez Swyer, December[ ] v. 62 N.J. (N.J.1973) 563, 566,
there
a latent injury
at the time the A.2d
(holding
trust was
executed.6
Richmond
the determination regarding
applicabil-
the
Cf.
Mittleman,
Square Capital Corp.
ity
rule,
though involving
(R.I.1997)
(mem.)
fact,
A.2d
1068-69
ordinarily
issues of
“should
be made
(holding that information
preliminary
available to the
at a
hearing”
judge
before the
plaintiff at the time
negligent
jury).
act
rather
than a
Having found the
for
some time thereafter “was insuffi-
genuine
existence of
issues of material
support
6. Attached to her affidavit in
correspondence
of her
assets into the trust.” The
opposing
memorandum
defendant's motion
goes
explain
on to
had
for
is a letter from defen-
"already transferred
real estate and
[their]
July
informing plaintiff
dant dated
tangible personal property into the trust” and
you
and her husband that
have
"[n]ow
that "[n]ow
should transfer all of [their]
prepared
you,
executed the
it is
[trust]
intangible personal property into the trust.”
very important
you
your
all
transfer
lots,
merger of the
option
prevent
native
the trial
fact, we conclude
injury
an
represent
not
this claim does
“extraordi-
granted
when
erred
at the
“latent or undiscoverable”
that was
in de-
summary judgment”
remedy of
nary
of the trust. See
time of the execution
Canavan, 862
count 1.
favor on
fendant’s
Rather,
Canavan,
ac-
at 783.
at 787.
in her
statement
cepting
as true
desired
and her husband
affidavit that she
the sur-
that would afford
an estate
Concerning
Malpractice
Alleged
prin-
access to the
spouse maximum
viving
Principal of
Access
account, there is no
brokerage
cipal
Residuary Trust
about wheth-
issue of material fact
argues
next
that de
by plaintiff
error was discoverable
er this
malpractice when
legal
fendant committed
at
diligence
of reasonable
in the exercise
prevent
trust so as to
he
drafted
It
trust was executed.
the time the
accessing
princi
from
surviving spouse
Sharkey reviewed and
undisputed that
residuary trust
contravention
pal of the
it and
signed
before she
read the trust
desired es
and her husband’s
the terms
represented
“aecept[ed]
that she
surviving spouse
plan to allow
tate
long
has
been a
instrument.”
[the]
“[I]t
their life sav
principal
“spend[]
an
party
signs
that ‘a
who
principle
settled
that this claim was
She contends
ings.”
his assent to it and
instrument manifests
because, under the discov
not time-barred
not read
complain
later
that he did
cannot
have dis
she could not
ery-rule exception,
that he did not under-
the instrument or
error in the exercise of rea
covered the
Downcity
Shappy
its contents.’”
stand
until
when she
sonable
Partners, Ltd., 973 A.2d
Capital
Even
representative.
the bank
met with
Pereira,
Manchester v.
light
in a
most favor
viewing the evidence
(R.I.2007)).
1005, 1012
She does
however,
say
we cannot
plaintiff,
able to
any
why
reason
she could not
not offer
*7
issue of material fact exists
genuine
that a
its terms.
effectively manifest assent
discovery rule
application
the
about
face of
error was clear on the
Any drafting
Therefore, we hold that
to this claim.
signed.7
it was
the trust at the time
complaint
2
was time-
plaintiffs
count
of
review,
Therefore, following our de novo
brought
it
more than
because was
barred
justice that
the
agree
we
with the trial
executed,
years after the trust was
three
discovery-rule exception
apply
does not
grant
summary judgment
the
of
injury was
alleged
claim because the
this
proper.
was
this count
mal
“injur[y]
legal
an
due to acts of
not
which could not in the exercise
practice
1 of
com
Unlike count
at the
be discoverable
alleging that defendant erred when
plaint
of the incident
time of the occurrence
advised
and her husband to
he
9-1-14.3(2);
Section
gave
which
rise to the action.”
Narragansett
their
lots to the
deed both
69 discovery rule did not their (holding causing the achieve estate without added.) merge.” claim in the context plaintiffs’ (Emphasis lots malpractice disagree medical because respectfully holding “[t]here with this in- nothing undiscoverable about the justice’s [was] would affirm the trial decision to 2 jury negligence”). Accordingly, or count grant summary judgment in favor of the plaintiffs complaint was time-barred defendant. 2006, brought because it was more than This has held that a “bald asser- years three after the trust was executed tion that do exist is [factual issues] insuffi- result, As a genuine no issue of place cient to beyond the [defendant] material fact exists and the defendant was summary reach of judgment.” American summary judgment entitled to on this Bank, Johnson, Express FSB v. 945 A.2d as a matter of law. See count Ciambrone 297, (quoting Egan’s Laun- Ltd., 207, Lepore, & Coia Cleaners, dry & Inc. v. The Community (R.I.2003) (affirming grant R.I., 719, Hotel Corp. Newport, 110 R.I. judgment the absence from the (1972) (where 297 A.2d fact, record of a issue of material merely affiant stated that he was disputing stressing but Court was “careful charges but failed to forth put any evi- determination, making fully cogni- respect dence with to the amount he al- summary judgment zant that ‘is a drastic leged was in dispute)); see also People’s ”) remedy granted to be sparingly’ (quot- Berube, Credit Union Works, Boiler ing Superior Inc. v. R.J. (R.I.2010) (Where putative issue in (R.I. Sanders, Inc., dispute was whether the accept- bank had 1998)). delivery ed aof deed and the “Berube[,] affidavit; responded by filing an Y however, the affidavit was from Berube Conclusion herself, employee not from an of the credit For the reasons in this opinion, stated anyone union or else who light could shed affirm entered accepted whether credit union favor of the defendant on count and deed or refused it. allega- Berube’s mere vacate the on count 1. The rec- tions insufficient to rebut the affida- [were] ord shall be remanded to the union.”). vit offered credit proceedings Court for in accordance with affidavit, In plaintiffs she stated: *8 opinion. this “7. deeded Lot 43 to The Sharkey [We] GOLDBERG, Justice concurring and Family Trust because Attorney dissenting. Prescott had advised [us] respectfully portion dissent from that carry plan, order to out our estate majority’s of the declaring decision all of our assets had to be discovery applies rule to count 1 of the to the trust. plaintiffs complaint. majority holds « * * * the plaintiff adequately alleged that the defendant legal malpractice committed “17. I was not aware that Lot 43 could plaintiff “not because did not kept [the] under- have been out of The Shar- merge, key stand that the lots would then but Family my sepa- Trust and in rather because he did not ownership advise rate until after I met [the] and her plaintiff Attorney husband that could Donald Packer in
December, (Emphasis 2003.” “material into the mix a put fact[ ] to be at added.) preliminary evidentiary hearing any at in determining time advance of trial self-serving consider this affidavit I do not diligence when would put have summary judgment to overcome sufficient person a on notice that a claim question of the statute the crucial of I remain Although existed.” convinced limitations, plaintiff such that is entitled to grant of plaintiff rule. The rely upon discovery affirmed, I concur count should be in the to a fails offer even scintilla asserts —but majority’s determination that crucial plan the estate of evidence—that could 2001, the question of whether in accomplished placing without have been lot Attorney visited with Prescott to discuss produce in the trust. She has failed to '48 lots, merged her concerns about the is a goals any relating evidence to dispositive material or, fact—indeed fact indeed, goals how those estate my by opinion be decided the trial convey- have been achieved without could —to evidentiary at a Moreover, justice preliminary hear- 43 to the trust. ing lot me, ing. Singsen, See Hanson v. 898 A.2d determinatively for has failed she (R.I.2006) (where 1244, 1248 any indicating that produce evidence held that of the application “[t]he husband have acted statute or her late would dif- limitations law ferently if this unknown estate scenario is a matter of for the determine”) justice realized. trial Ashey had been (R.I. Kupchan, summary judgment, In the tri- granting 1993)). This Court has held that in certain correctly justice al held: instances, preliminary there be ques- will discovery T didn’t find “[I]f by tions of fact which should be decided out until later that I didn’t have to do justice. the trial See Hall v. Insurance this,’ hasn’t, affidavit, then she America, North Co. come forward with admissible evidence (R.I.1999) question (holding that dispute to demonstrate some whether due was exercised about that such that she’s entitled to the “should be determined of the discovery doctrine. "* * * benefits preliminary Court as a pre- issue ceding the determination of whether the giving her for not having “Even credit prior statute of limitations had run options the other available discovered defendant”) addition (emphasis her and her husband until she visited Gelineau, omitted); and Roe Packer, Attorney has failed “[bjefore (holding the applicability demonstrate or rela- making a final a motion ruling on for sum- tionship of that to some claim * * * mary judgment justice may a motion that she would have acted differently first need to certain preliminary find facts had she not been the victim de- moving question before on to decide the added.) negligence.” (Emphasis scribed *9 law, namely, the statute of whether limita- agree this finding. with against plaintiff’). tions has run majority disput- also that the notes ed issue of whether the visited Attorney Prescott in 2001 to discuss merger, her concerns about the lot as the defendant contends memorialized by the 2001 letter from