Holland v. Lawless

623 P.2d 1004, 95 N.M. 490

• Court: New Mexico Court of Appeals
• Decided: January 6, 1981
• Docket: 4475, 4511 and 4516
• Status: Published

Opinions

OPINION

HERNANDEZ, Judge.

The defendant, Ray H. Shollenbarger, was the administrator of the estate of Carlos De La Fuente, and the defendant, Stephen F. Lawless, was the attorney for the estate. The principal asset of the estate was a residence which was mortgaged and which was in danger of being foreclosed. The administrator had made several attempts to obtain an offer to purchase the real estate but was unable to do so because of a claim that had been filed involving the residence. The administrator, through the estate’s attorney, entered into an oral agreement with the plaintiff to lease the residence to him for the sum of $313.00 per month (a sum sufficient to make the mortgage payments) with the added proviso that 60% of said rental payments would be applied to a possible purchase in the future for the sum of $40,000.00. The administrator petitioned the court for authority to enter into the léase, which was granted by order dated June 17, 1975. Subsequently, the claim against the residence was settled and Kay De La Fuente Harmston was substituted for Shollenbarger as administratrix of the estate. On May 12, 1977, plaintiff filed a petition in the probate cause seeking specific performance of the agreement by the administrator to sell the residence or in the alternative for damages. The court dismissed plaintiff’s petition with prejudice and plaintiff appealed to the Supreme Court (Matter of Estate of De La Fuente, 93 N.M. 87, 596 P.2d 856 (1979)). The Supreme Court held that:

The [trial] court properly determined that Shollenbarger and Lawless had no authority to enter into an agreement to sell the property ....

Plaintiff sued the defendants, alleging in the alternative breach of contract, legal malpractice, negligence, and misrepresentation.

Lawless filed a motion for summary judgment, as did defendants Shollenbarger and Transamerica Insurance Company. The trial court entered an order and judgment which provides in pertinent part: THE COURT MAKES THE FOLLOWING CONCLUSIONS OF LAW:

2. There is no issue of material fact with respect to Count I of the present complaint and it is barred by the doctrine of res judicata, as set forth in Holland vs. De La Fuente, New Mexico Bar Bulletin.

3. There is no issue of material fact with respect to Count II of the present complaint because there was no attorney-client relationship between plaintiff and either Shollenbarger or Lawless, and no obligation on the part of either defendant to represent or to advise plaintiff.

4. With respect to defendant Lawless, there is no issue of material fact- with respect to Count III of the complaint because defendant Lawless owed no duty to plaintiff.

5. With respect to Count III, whether or not the Administrator for the Estate was negligent in failing to follow the appropriate New Mexico statutes with respect to the sale of real estate in a pending probate estate raises an issue of material fact.

6. With respect to Count IV, there is no issue of material fact with respect to misrepresentation because of the existence of contingencies known to plaintiff and defendant Shollenbarger.

7. With respect to Count V, there are no issues of material fact except as to the application of the Bond to Count III.

9. With respect to defendant Shollenbarger, there are only two issues of material fact with respect to Count III of the Complaint. They are:

9.1 Was the Administrator negligent in failing to follow the statutory requirements with respect to the appointment of a guardian ad litem for the sale of decedent’s real estate, where a minor heir was involved.

9.2 If so, was such negligence the sole proximate cause of the failure of the alleged contract as a contract for the sale and purchase of the real property involved.

10. If both of the foregoing questions are answered in the affirmative, plaintiff’s damages are nevertheless limited to his actual damages and consequential and exemplary damages are not recoverable. If either question is answered in the negative, Count III must be dismissed.

IT IS HEREBY ORDERED THAT:

1. The motion of defendants Shollenbarger and Transamerica for summary judgment is granted except as to defendant Shollenbarger in Count III and the application of the Bond in Count V.

Plaintiff appeals, alleging five points of error none of which involve breach of contract, that claim having been abandoned in the brief-in-chief.

POINT I — THE COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO COUNT II AS THERE IS A MATERIAL ISSUE OF FACT AS TO WHETHER AN ATTORNEY-CLIENT RELATIONSHIP EXISTED BETWEEN PLAINTIFF HOLLAND AND DEFENDANTS LAWLESS AND SHOLLENBARGER

POINT II — THE COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO COUNT III AS THERE IS A MATERIAL ISSUE OF FACT AS TO WHETHER DEFENDANT LAWLESS IRRESPECTIVE OF HIS STATUS AS AN ATTORNEY WAS NEGLIGENT IN HANDLING THE REAL ESTATE TRANSACTION

POINT III — THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO COUNT IV AS THERE IS A MATERIAL ISSUE OF FACT AS TO WHETHER THERE WAS A MISREPRESENTATION BY DEFENDANTS LAWLESS AND SHOLLENBARGER TO PLAINTIFF

POINT IV — THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO COUNT V

POINT V — THE DISTRICT COURT ERRED IN LIMITING THE ISSUES OF MATERIAL FACT AS TO DEFENDANT SHOLLENBARGER IN COUNT III

At the outset it is necessary to repeat some of the holdings in Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).

Unquestionably the burden was on defendants to show an absence of a genuine issue of fact, or that they were entitled as a matter of law for some other reason to a summary judgment in their favor. [Citations omitted.] However, once defendants had made a prima facie showing that they were entitled to summary judgment, the burden was on plaintiff to show that there was a genuine factual issue and that defendants were not entitled as a matter of law to summary judgment. . . .

The burden was on the plaintiff, as the party resisting the motion for summary judgment, to come forward and demonstrate that a genuine issue of fact requiring a trial did exist.

The inferences, which the party opposing the motion for summary judgment is entitled to have drawn from all the matters properly before and considered by the trial court, must be reasonable inferences ....

The procedures provided by Rule 56, supra, serve a worthwhile purpose in disposing of groundless claims, or claims which cannot be proved, without putting the parties and the courts through the trouble and expense of full blown trials on these claims.

Turning then to plaintiff’s first point of error, we start with the following law regarding the attorney-client relationship:

Save where appointed by court, the relationship of attorney and client is created by contract. [Citation omitted.] The contract may be express or implied [Citation omitted.] .. . The existence of a contract is generally an issue and question of law. American Mutual Liability Ins. Co. v. Superior Court [38 Cal.App.3d 579] 113 Cal.Rptr. 561 (Cal.App.1974).

No formal contract, arrangement or attorney fee is necessary to create the relationship of attorney and client. George v. Caton, 93 N.M. 370, 600 P.2d 822 (Ct. App.1979).

Lawless, in an affidavit attached to his motion for summary judgment, stated that plaintiff knew at all times that Lawless was the attorney for the Estate and that at no time did he act as attorney for plaintiff. In response plaintiff filed an affidavit, the pertinent part of which reads as follows:

I have had no experience nor training with the statutory requirements and the procedures involved with purchasing real property from a decedent’s estate.

I relied upon defendant Lawless’ assurances and expertise and his opinion that nothing needed to be done by me to complete the sale and that he would handle the transaction.

I relied upon defendants’ representations to me that they were going to obtain a court order to sell the real estate to me ....

Plaintiff also attached excerpts from testimony taken in connection with plaintiff’s petition to compel the administratrix to sell him the residence. The first is an excerpt from the testimony of Lawless.

A. Well, as I said, we showed it to a large number of realtors who brought prospects out and a number of them were interested; however, no one would dare put down any money as a result of the lis pendens that was filed against it. Now, at that time, Mr. Holland worked for us and we knew him and he got into a discussion with me one day about it.

Q. He didn't work for you as a salaried employee?

A. No, he worked as an investigator on various cases, but we knew him quite well and he just, passing the time with me one day, said he was interested in the house and I told him about the de la Fuente house and he indicated at that time that he might be interested in some sort of rent-purchase agreement because he thought we might be able to win the lawsuit, so we worked out a rent-purchase agreement.

The following is an excerpt from plaintiff’s testimony:

Q. Now, did you have an agreement, a discussion with Mr. Lawless, concerning your leaving this property back in 1975?

A. Yes, sir.

Q. What was your agreement with him?

A. An oral agreement with Mr. Lawless on July 1, 1975, to the effect that I could move into the premises, change the locks on the doors and take over the mortgage payments of $313 a month until the — whatever it is, warranty deed or whatever is done to turn the property to my name, and applying sixty percent of the $313 a month payments towards the purchase price.

Mr. Lawless told me — I had specifically asked if there was some paperwork that needed to be done, and he said no, that it would probably be closed within thirty to sixty days and that was all that was ever discussed about it. [Emphasis added.]

It is our opinion that plaintiff failed to satisfy the burden of showing that there was a genuine issue of material fact; that the relationship of attorney and client existed. The mere fact that Lawless discussed the matter of the lease and possible purchase of the residence with plaintiff was not enough to establish the relationship.

Defendant Shollenbarger filed an affidavit in support of his motion for summary judgment which recites in pertinent part as follows:

I never acted as attorney for plaintiff or gave him legal advice ... I never . . . made any representations to him or even discussed this “agreement” with him.

Plaintiff’s affidavit in response contained many conclusory and self-serving statements and the following was the only statement of fact in this regard: “I relied upon defendants’ representations to me that they were going to obtain a court order to sell the real estate to me .... ” This is all plaintiff submitted in regard to Shollenbarger. Albeit the relationship of attorney and client may be implied, there must be some facts to raise the implication. Plaintiff did not show any facts relating directly or inferentially to an attorney-client relationship; the facts all show that plaintiff and defendants were acting as separate parties to the real estate transaction and not in any way as attorneys and client. The plaintiff did not carry the burden of showing that there was a genuine issue of material fact, and summary judgment on Count II was properly granted.

Plaintiff’s second point of error, that Lawless was negligent in handling the real estate transaction, is without merit. There is no showing that Lawless owed plaintiff a duty in this regard.

The traditional formula for the elements necessary to such a cause of action may be stated briefly as follows:

1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.

2. A failure on his part to conform to the standard required. These two elements go to make up what the courts usually have called negligence; but the term quite frequently is applied to the second alone. Thus it may be said that the defendant was negligent, but is not liable because he was under no duty to the plaintiff not to be.

3. A reasonable close causal connection between the conduct and the resulting injury. This is what is commonly known as “legal cause,” or “proximate cause.” W. Prosser, Law of Torts § 30 (4th ed. 1971). Compare U.J.I. Civil 12.1

As we stated above, there was no showing that plaintiff and Lawless were attorney and client. Plaintiff argues that the relationship between them was similar to that of broker and buyer. However, this is of no benefit to plaintiff. “The broker is ordinarily held to be the agent of the party who first employs him.” Wolf v. Price, 52 Cal. Rptr. 889, 244 Cal.App.2d 165 (1966). The party who first employed Shollenbarger was, of course, the Estate. Furthermore, when a person agrees to act as broker for one of the parties to a transaction a fiduciary relationship arises between them; the broker owes a duty of utmost good faith to his principal and cannot represent any of the other parties to the transaction without his principal’s knowledge and consent. See, Yrisarri v. Wallis, 76 N.M. 776, 418 P.2d 852 (1966) and Mitchell v. Allison, 54 N.M. 56, 213 P.2d 231 (1949). Lawless owed no duty to plaintiff and consequently any negligence on his part could not give rise to a cause of action for plaintiff.

The same reasoning applies to the denial of Shollenbarger’s motion for summary judgment on count III, which Shollenbarger appeals. There must be some relationship between plaintiff and defendant for the defendant’s duty to arise. There is no factual showing from which an attorney-client relationship can be implied between plaintiff and Shollenbarger, and there is no factual showing from which a broker and buyer relationship can be established between plaintiff and Shollenbarger. There is no evidence that plaintiff and Shollenbarger ever discussed the real estate transaction, and even if there were, in any broker-buyer situation, Shollenbarger as Estate Administrator would clearly be the person “from whom to buy” and not a broker. As there are no facts showing a relationship imposing a duty upon Shollenbarger, summary judgment on the negligence claim should have been granted.

The resolution of plaintiff’s third point of error can be found in the holdings of Steinberg v. Coda Roberson Construction Co., 79 N.M. 123, 440 P.2d 798 (1968): “[T]he great weight of authority no longer recognizes privity of contract as having a place in tort law.” And Stotlar v. Hester, 92 N.M. 26, 582 P.2d 403 (Ct.App.1978):

The tort of negligence by words is recognized [also called' the tort of negligent misrepresentation].

With privity of contract removed as a requirement for a negligence claim, and thus removed as a requirement for negligence by words, our concern is with the limitations on the tort.

3 Restatement of Torts (Second) § 522 (1977) reads:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

(3) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered

(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and

(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.

... We hold that the New Mexico tort of negligence by words is set forth in 3 Restatement of Torts (Second) § 552 (1977).

The limitations on the tort . . . are stated in 3 Restatement of Torts (Second) § 552(2)(a) and (b) (1977).

. . . The comment to the Restatement explains these limitations.

The rule . . . subjects the negligent supplier of misinformation to liability only to those persons for whose benefit and guidance it is supplied.

[I]t is not necessary that the maker should have any particular person in mind as the intended, or even the probable, recipient of the information. In other words, it is not required that the person who is to become the plaintiff be identified or known to the defendant as an individual when the information is supplied. It is enough that the maker of the representation intends it to reach and influence either a particular person or persons, known to him, or a group or class of persons, distinct from the much larger class who might reasonably be expected sooner or later to have access to the information and foreseeably to take some action in reliance upon it. It is enough, likewise, that the maker of the representation knows that his recipient intends to transmit the information to a similar person, persons or group. It is sufficient, in other words, insofar as the plaintiff’s identity is concerned, that the maker supplies the information for repetition to a certain group of class of persons and that the plaintiff proves to be one of them, even though the maker never had heard of him by name when the information was given. It is not enough that the maker merely knows of the ever-present possibility of repetition to anyone, and the possibility of action in reliance upon it, on the part of anyone to whom it may be repeated.

Looking, then, at this situation in light of these holdings, it is apparent that it is a factual issue as to whether the statements made by Lawless to the plaintiff constituted negligent misrepresentation. There is no doubt that Lawless made some statements to plaintiff; whether those statements were false, whether Lawless acted negligently, and the scope of any liability are all questions of fact to be resolved by the trier of facts. Summary judgment as to defendant Lawless on Count IV was improperly granted; however, summary judgment in favor of Shollenbarger was proper on Count IV because Shollenbarger made no representations.

Plaintiff’s fourth point is resolved by our resolution of point three because the liability of the surety depends upon the liability of the principal. The principal was Shollenbarger, and we have held Shollenbarger was entitled to summary judgment on all claims made against him.

Plaintiff’s fifth and last point need not be decided because Shollenbarger was entitled to summary judgment.

The summary judgments entered in favor of Shollenbarger and Transamerica are affirmed; the denial of summary judgment in favor of Shollenbarger and Transamerica on Count III is reversed with instructions to enter summary judgment on that count. The summary judgment in favor of Lawless is affirmed except as to Count IV, the misrepresentation claim. The cause is remanded for trial on that claim.

IT IS SO ORDERED.

WOOD, C. J., concurs. SUTIN, J., concurring in part, dissenting in part.