Jackson State Bank v. King

844 P.2d 1093, 1993 Wyo. LEXIS 1, 1993 WL 876

• Court: Wyoming Supreme Court
• Decided: January 6, 1993
• Docket: 91-45
• Status: Published

Opinions

THOMAS, Justice.

The questions in this case are certified to this court by the United States Court of Appeals for the Tenth Circuit pursuant to Wyo.R.App.P. 11 and Wyo.Stat. §§ 1-13-104 to -107 (1988), the Federal Court State Law Certificate Procedure Act. The questions certified by the federal court are:

A. Does Wyoming’s comparative negligence statute, Wyo.Stat. § l-l-109(a) (1977), bar plaintiffs recovery in a legal malpractice action based on claims for breach of contract and breach of fiduciary duty when the jury apportions fault in the following manner: plaintiff, thirty-five percent; defendant, thirty-five percent; and a third party, thirty percent? B. If the comparative negligence statute does not bar recovery on these claims, does it or some other principle of Wyoming law require that plaintiffs recovery be reduced by his percentage of fault?

We answer both of the certified questions in the negative.

On February 26, 1973, Rosemary Miles died, and her husband, Maurice Miles (Miles), and her son from a previous marriage, William Hutson, and his family (Hut-sons) survived her. Her will divided her estate into two parts. One part, equivalent to the maximum marital deduction, was left directly to Miles. The other portion was left in a testamentary trust for the benefit of the Hutsons. Her will also provided that Miles should be appointed as the executor of her estate. Floyd R. King (King) was retained by Miles to represent him in accomplishing his duties as executor of the estate.

In April of 1979, the probate court entered an order approving the accounting and a decree of distribution in Rosemary Miles’ estate, and the estate was closed in October, 1979. In July of 1986, the Hut-sons brought an action against Miles in the federal district court asserting breach of his fiduciary duties as executor of the estate. Miles then filed a third-party complaint against King, alleging legal malpractice in connection with King’s representation of Miles as the executor of the Rosemary Miles estate and asserting claims based on theories of negligence, breach of contract, and breach of a fiduciary duty.

Miles entered into an agreement with the Hutsons, settling their claim against him, and pursued his malpractice action against King. The legal malpractice action was tried before a jury and, on June 30, 1989, following a five-day trial, the jury returned a verdict finding that Miles had suffered damages in the amount of $46,500 as the result of King’s actions. In its verdict, the jury apportioned fault, defined as “negligence causing damage,” for Miles’ damages, as follows: Miles 35%; King 35%; and the Jackson State Bank, not a party to the action, 30%. The jury found that King, in his attorney-client relationship with Miles, had been negligent, had breached the fiduciary duty owed by an attorney to a client, and had breached his contract with Miles.

On August 17, 1989, the United States District Court for the District of Wyoming ruled that the assessment of comparative fault by the jury applied to all three of Miles’ claims, and it denied recovery. Miles then took an appeal to the United States Court of Appeals for the Tenth Circuit asserting that there was error in this ruling by the United States District Court, and that is the thrust of the questions certified to this court. We disagree with the ruling of the United States District Court.

At the time this case arose, the comparative negligence statute in effect in Wyoming provided:

Contributory negligence shall not bar a recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if the contributory negligence was not as great as the negligence of the person against whom recovery is sought. Any damages allowed shall be diminished in proportion to the amount of negligence attributed to the person recovering.

Wyo.Stat. § l-l-109(a) (1977).

The statute was amended in 1986, but that amendment was substantive in nature and, consequently, has no retrospective application to the questions certified to this court.

In the specific context of the comparative negligence statute, we recently quoted the summarized standard for statutory construction in' this way:

Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, we do not resort to rules of statutory construction. * * * Neither this Court nor the agency charged with administering the statute has a right to look for and impose another meaning.

Phillips v. Duro-Last Roofing, Inc., 806 P.2d 834, 837 (Wyo.1991) (citing Wyoming Ins. Dept. v. Avemco Ins. Co., 726 P.2d 507, 510 (Wyo.1986)).

Then we further quoted:

Whenever this court is engaged in the construction of a statute, the primary consideration is to discern the intention of the legislature. * * * That legislative intent should be ascertained, as nearly as is possible, from the language incorporated in the statute, which is viewed in the light of its object and purpose. * * * In those instances in which the language in the statute is plain and unambiguous, the words used are to be accorded their plain and ordinary meaning unless there is some manifestation of a legislative intent that they not be accorded the plain and ordinary meaning.

Phillips, 806 P.2d at 837 (citing Belle Fourche Pipeline Co. v. State, 766 P.2d 537, 542 (Wyo.1988)).

In Phillips, we refused to extend our comparative negligence statute, beyond its intended and express application to negligence, into warranty and strict liability theories as articulated in Restatement (Second) of TORTS §§ 402A and 402B (1965). Phillips, of course, did not encompass an issue of legal malpractice but, nevertheless, we perceive the case as controlling. Both Miles and King agreed in the briefs they submitted to this court that Phillips is controlling, but they disagreed as to the result it directed.

King urges Phillips as controlling on the premise that even though, concededly, § 1-1-109 applies only to those cases involving negligence, Miles’ claim in the trial court was founded in negligence, no matter how it might be characterized. This was the view adopted by the United States District Court, and King argues that decision manifested the correct application of § 1-1-109 to the case involved. Miles, on the other hand, distinguishes between a cause of action based on contract theories and a cause of action based on tort theories. Miles agrees Phillips stood for the proposition that § 1t1-109 reached only to those causes of action arising out of negligence. Miles argues, therefore, that the statute has no application to a legal malpractice action, which is a contractual claim based on the implied warranty that the work performed by an attorney for his client will be performed in a skillful and professional manner.

We agree with Miles that the cause of action in a legal malpractice claim is contractual in nature and that § 1-1-109 is not applicable based upon its clear and unambiguous language. We reach that result, however, upon a different analysis from that urged by Miles.

The relationship of attorney and client is contractual in nature. Grievance Committee, Wyoming State Bar v. Riner, 765 P.2d 925 (Wyo.1988); Chavez v. State, 604 P.2d 1341 (Wyo.1979), cert. denied 446 U.S. 984, 100 S.Ct. 2967, 64 L.Ed.2d 841 (1980); Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, opinion modified on denial of reh’g, 247 Kan. 699, 803 P.2d 205 (1990) (citing Bowman v. Doherty, 235 Kan. 870, 686 P.2d 112 (1984)); Pittman v. McDowell, Rice & Smith, 12 Kan.App.2d 603, 752 P.2d 711 (1988) (citing Bowman); Massey v. Cunningham, 420 So.2d 1036 (La.App.1982); Zych v. Jones, 84 Ill.App.3d 647, 40 Ill.Dec. 369, 406 N.E.2d 70 (1980). The contract may be an express contract, or it may be implied from the actions of the parties, such as, the furnishing of advice and assistance or even the awareness of the attorney of reliance on the relationship. Riner. The attorney-client relationship can be created by a retainer or an offer to retain or the payment of a fee. Zych. Even though legal malpractice may be attributable to negligence on the part of the attorney, still the right to recompense is based upon the breach of the contract with the client. It follows that, because this relationship is contractual in nature and is to be treated according to the law of contracts, there is no justification to invoke the comparative negligence statute.

In Cline v. Sawyer, 600 P.2d 725 (Wyo.1979), appeal after remand, 618 P.2d 144 (Wyo.1980), this court held the trial court was obligated to make special findings of fact in determining the amount of damages and the percentage of negligence attributable to each party under § 1-1-109(b).¹ In Cline, the owners of a trailer park had brought an action against a plumber to recover damages for allegedly defective work, asserting both contract and negligence theories. We there said:

In construction contracts, there is an implied warranty that the work will be performed in a skillful, careful, diligent and workmanlike manner. Where negligence on the part of the contractor results in a breach of this warranty, a cause of action ex contractu and a tortious action premised on negligence, or both, are available to the contractee.

Cline, 600 P.2d at 732.

More importantly, for purposes of this case, we also said:

If this is only a contract action, it may be said that these findings of fact and conclusions of law are sufficient. They reflect the existence of a contract, performance by appellees, its breach, and the resulting damages. As only a contract action, the findings required by § 1-1-109(b) would not be necessary. The same cannot be said if this is also a negligence action.

Cline, 600 P.2d at 731 (emphasis added). The conclusion to be drawn from the decisions of this court in Cline, and more recently in Phillips, is that the Wyoming Comparative Negligence Statute, as drafted by the legislature and interpreted by this court, is limited to those actions based on negligence only. Clearly, it should not be extended to actions based on contract. We, therefore, hold that § l-l-109(a) does not bar recovery by a plaintiff in a legal malpractice action, which necessarily is based on claims for breach of contract and breach of fiduciary duty.

We recognize that the United States Court of Appeals for the Tenth Circuit had a similar case before it in 1986. That court held that Wyoming’s comparative negligence statute was not intended to bar recovery of damages by the plaintiff under a warranty theory. Sheldon v. Unit Rig & Equipment Company, 797 F.2d 883 (10th Cir.1986), cert. denied, 479 U.S. 1090, 107 S.Ct. 1300, 94 L.Ed.2d 156 (1987). The court did conclude, however, that the thrust of the statute was to require the damages be reduced by the plaintiffs percentage of fault. King argues here the United States Court of Appeals for the Tenth Circuit misread Wyoming precedent and, for that reason, reached the wrong result in that case, urging the statute should have served as a bar. Contrarily, Miles argues § 1-1-109 does not require the reduction of recovery by a plaintiff by his percentage of fault, although he appears to concede an argument could be structured that the fault of the plaintiff could be invoked to apportion damages because of proximate cause issues like those in Sheldon. Miles then urges it would not be appropriate to apportion damages in this case.

Whether Sheldon is correctly decided is not before us in this case. Phillips was decided after the Sheldon decision, and that case would have furnished additional guidance to the United States Court of Appeals in addressing legislative intention with respect to the adoption of the comparative negligence statute and its interpretation by this court. We clearly refused to extend the comparative negligence statutes to theories of warranty and strict liability in Phillips. Extension of the Phillips rule to the case at bar demands the conclusion that the statute does not apply and it would not be proper to apportion damages to reduce recovery based on a contractual claim. It is likely the Sheldon court would have reached that result had the Phillips case been available as precedent.

With respect to the claim of breach of a fiduciary duty, it has been held that the defense of contributory negligence is not available to what is an action in equity. Federal Savings & Loan Insurance Corporation v. Huff, 237 Kan. 873, 704 P.2d 372 (1985). See also Miller v. Pine Bluff Hotel Company, 286 F.2d 34 (8th Cir.1961) (refusing to extend the Arkansas comparative negligence statute to any and all tort actions, specifically holding the statute did not apply to guest’s action against hotel for theft of property entrusted to hotel’s care). In Huff, the Supreme Court of Kansas ruled that the Kansas comparative negligence statute did not extend to an action for economic loss brought by the receiver of a savings and loan association against individual officers and directors of the association on a theory of breach of their respective fiduciary duties. The court there said that it was legally impossible for the savings and loan institution to be con-tributorily negligent and, accordingly, contributory negligence was not available as a defense to the individual defendants. The action against the defendant underwriter of the fidelity bond was simply characterized as an action predicated upon contract law, and the Kansas court held that its comparative negligence statute was inapplicable to contract actions.

We are in accord with Miles’ position that the plain and unambiguous language of § l-l-109(a) demonstrates that the statute applies only to those causes of action arising out of negligence. It does not extend to those that are based upon a theory of contract or a theory of breach of fiduciary duty. It follows that the statute does not serve as a bar to those claims by Miles, nor can it be invoked to reduce his recovery by any percentage of fault. We are not cognizant of, nor has anyone called to our attention, any other principle of Wyoming law that would require Miles to reduce his recovery by his percentage of fault as to his claims on contract theories.

In summary, we hold that Wyoming’s comparative negligence statute, Wyo.Stat. § l-l-109(a) (1977), does not bar plaintiff’s recovery in a legal malpractice action based on claims for breach of contract and breach of fiduciary duty, even though the jury has apportioned fault in the following manner: plaintiff, 35%; defendant, 35%; and a third party, 30%. We further hold that neither the comparative negligence statute nor any other principle of Wyoming law requires that the plaintiff’s recovery be reduced by his percentage of fault.

URBIGKIT, J., filed an opinion concurring in the result.

CARDINE, J., filed a dissenting opinion.

1 . Wyo.Stat. § 1 — 1—109(b) (1977) provided, in pertinent part:

(b) The court may, and when requested by any party shall:

(i) If a jury trial, direct the jury to find separate special verdicts;

(ii) If a trial before the court without jury, make special findings of fact, determining the amount of damages and the percentage of negligence attributable to each party. The court shall then reduce the amount of such damages in proportion to the amount of negligence attributed to the person recovering;

(iii)Inform the jury of the consequences of its determination of the percentage of negligence.