Simpson v. Calivas

650 A.2d 318, 139 N.H. 1, 1994 N.H. LEXIS 101
CourtSupreme Court of New Hampshire
DecidedSeptember 21, 1994
DocketNo. 92-231
StatusPublished
Cited by86 cases

This text of 650 A.2d 318 (Simpson v. Calivas) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simpson v. Calivas, 650 A.2d 318, 139 N.H. 1, 1994 N.H. LEXIS 101 (N.H. 1994).

Opinion

HORTON, J.

The plaintiff, Robert H. Simpson, Jr., appeals from a directed verdict, grant of summary judgment, and dismissal of his claims against the lawyer who drafted his father’s will. The plaintiff’s action, sounding in both negligence and breach of contract, alleged that the defendant, Christopher Calivas, failed to draft a will which incorporated the actual intent of Robert H. Simpson, Sr. to leave all his land to the plaintiff in fee simple. Sitting with a jury, the Superior Court (Dickson, J.) directed a verdict for the defendant based on the plaintiff’s failure to introduce any evidence on damages or breach of duty. The trial court also granted summary judgment on collateral estoppel grounds based on findings of the Strafford County Probate Court and dismissed the action, ruling that under New Hampshire law an attorney who drafts a will owes no duty to intended beneficiaries. We reverse and remand.

In March 1984, Robert H. Simpson, Sr. (Robert Sr.) executed a will that had been drafted by the defendant. The will left all real estate to the plaintiff except for a life estate in “our homestead located at Piscataqua Road, Dover, New Hampshire” (emphasis added), which was left to Robert Sr.’s second wife, Roberta C. Simpson (stepmother). After Robert Sr.’s death in September 1985, the plaintiff and his stepmother filed a joint petition in the Strafford County Probate Court seeking a determination, essentially, of whether the term “homestead” referred to all the decedent’s real property on Piscataqua Road (including a house, over one hundred acres of land, and buildings used in the family business), or only to the house (and, perhaps, limited surrounding acreage). The probate court found the term “homestead” ambiguous, and in order to aid construction, admitted some extrinsic evidence of the testator’s surrounding circumstances, including evidence showing a close relationship between Robert Sr. and plaintiff’s stepmother. The probate court, however, did not admit notes taken by the defendant during consultations with Robert Sr. that read: “House to wife as a life estate remainder to son, Robert H. Simpson, Jr. . . . Remaining land ... to son Robert A. [sic] Simpson, Jr.” The probate court construed the will to provide Roberta with a life estate in all the real property. After losing the will construction action — then two years after his father’s death — the plaintiff negotiated with his stepmother to buy out her life estate in all the real property for $400,000.

The plaintiff then brought this malpractice action, pleading a contract count, based on third-party beneficiary theory, and a negligence count. At trial, the plaintiff presented evidence, including the defendant’s notes and testimony of some of Robert [4]*4Sr.’s friends and acquaintances, to ,show that Robert Sr. had intended that his son take the buildings used in the family business and the bulk of the land in fee simple. The trial court, however, sustained objections to the plaintiff’s three attempts to introduce evidence on damages. First, it refused to allow the plaintiff to testify as to the $400,000 he paid to buy out his stepmother. Second, it refused to allow the plaintiff’s expert on damages to testify, ruling that he had not been properly disclosed as an expert during discovery. Finally, it refused to admit appraisal values contained in the probate inventory. With no evidence on damages before the jury at the end of the plaintiff’s case, the trial court directed a verdict for the defendant. Further, it directed a verdict on the reasoning that the plaintiff had failed to introduce any, evidence of intent that conflicted with the terms of the will as construed.

The plaintiff raises three issues on appeal: (1) whether the trial court erred in ruling that under New Hampshire law a drafting attorney owes no duty to an intended beneficiary; (2) whether the trial court erred in ruling that the findings of the probate court on testator intent collaterally estopped the plaintiff from bringing a malpractice action; and (3) whether the trial court erred in excluding the plaintiff’s proffered damages evidence.

In an opinion dated November 23, 1993, we reversed and remanded. The defendant moved for rehearing. See SUP. CT. R. 22. We granted the motion, withdrew our opinion, and ordered rebriefing and reargument. We reverse and remand.

I. Duty to Intended Beneficiaries

In order to recover for negligence, a plaintiff must show that “there exists a duty, whose breach by the defendant causes the injury for which the plaintiff seeks to recover.” Goodwin v. James, 134 N.H. 579, 583, 595 A.2d 504, 507 (1991). The critical issue, for purposes of this appeal, is whether an attorney who drafts a testator’s will owes a duty of reasonable care to intended beneficiaries. We hold that there is such a duty.

As a general principle, “the concept of ‘duty . . . arises out of a relation between the parties and the protection against reasonably foreseeable harm.” Morvay v. Hanover Insurance Co., 127 N.H. 723, 724, 506 A.2d 333, 334 (1986). The existence of a contract between parties may constitute a relation sufficient to impose a duty to exercise reasonable care, but in general, “the scope of such a duty is limited to those in privity of contract with each other.” Robinson v. Colebrook Savings Bank, 109 N.H. 382, 385, 254 A.2d 837, 839 (1969). The privity rule is not ironclad, though, and we [5]*5have been willing to recognize exceptions particularly where, as here, the risk to persons not in privity is apparent. Id. In Morvay, for example, we held that investigators hired by an insurance company to investigate the cause of a fire owed a duty to the insureds to perform their investigation with due care despite the absence of privity. Accordingly, the insureds stated a cause of action by alleging that the investigators negligently concluded that the fire was set, thereby prompting the insurance company to deny coverage. Morvay, 127 N.H. at 726, 506 A.2d at 335; see also Spherex, Inc. v. Alexander Grant & Co., 122 N.H. 898, 451 A.2d 1308 (1982) (accountants may be liable in negligence to those who reasonably rely on their work despite lack of privity); Robinson, 109 N.H. 382, 254 A.2d 837 (bank owes duty to beneficiary of account with survivorship feature set up by depositor).

Because this issue is one of first impression, we look for guidance to other jurisdictions. The overwhelming majority of courts that have considered this issue have found that a duty rims from an attorney to an intended beneficiary of a will. R. MALLEN & J. Smith, Legal Malpractice 3d. § 26.4, at 595 (1989 & Supp. 1992); see, e.g., Stowe v. Smith, 441 A.2d 81 (Conn. 1981); Needham v. Hamilton, 459 A.2d 1060 (D.C. 1983); Ogle v. Fuiten, 466 N.E.2d 224 (Ill. 1984); Hale v. Groce, 744 P.2d 1289 (Or. 1987). A theme common to these cases, similar to a theme of cases in which we have recognized exceptions to the privity rule, is an emphasis on the foreseeability of injury to the intended beneficiary. As the California Supreme Court explained in reaffirming the duty owed by an attorney to an intended beneficiary:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bennett v. Gentile
487 Md. 487 (Court of Appeals of Maryland, 2024)
Steven Grady v. Jones Lang Lasalle Construction Co., Inc. & a.
193 A.3d 283 (Supreme Court of New Hampshire, 2018)
Darlene Ketteridge v. Martin, Lord & Osman, P.A.
Supreme Court of New Hampshire, 2018
John Morris & a. v. Town of Dublin
Supreme Court of New Hampshire, 2017
Gregory Riso & A. v. Maureen C. Dwyer, Esq. & A
135 A.3d 557 (Supreme Court of New Hampshire, 2016)
Baer v. Leach
2014 DNH 214 (D. New Hampshire, 2015)
Tamposi v. Denby
136 F. Supp. 3d 77 (D. Massachusetts, 2015)
Neenan v. CitiMortgage
2013 DNH 163 (D. New Hampshire, 2013)
L’Esperance v. Mahattan Mortgage
2012 DNH 155 (D. New Hampshire, 2012)
Castro v. Panica et al.
2012 DNH 124 (D. New Hampshire, 2012)
L'Esperance v. HSBC Consumer Lending
2012 DNH 104 (D. New Hampshire, 2012)
Levy v. Lique et al.
2012 DNH 080 (D. New Hampshire, 2012)
Peterboro Tool v. People’s United Bank
2012 DNH 026 (D. New Hampshire, 2012)
Clearview v. Ware
2011 DNH 139 (D. New Hampshire, 2011)
Estate of Schneider v. Finmann
933 N.E.2d 718 (New York Court of Appeals, 2010)
Porter v. Dartmouth College, et al.
2010 DNH 008 (D. New Hampshire, 2010)
Franchi v. New Hampton School
2009 DNH 139 (D. New Hampshire, 2009)
Brodeur v. Claremont School District
2009 DNH 082 (D. New Hampshire, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
650 A.2d 318, 139 N.H. 1, 1994 N.H. LEXIS 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simpson-v-calivas-nh-1994.