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Lanham v. Fleenor

Supreme Court of Idaho

November 7, 2018

THOMAS E. LANHAM, Plaintiff/Appellant,
DOUGLAS E. FLEENOR, Defendant/Respondent.

          Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Richard D. Greenwood, District Judge.

         The judgment of the district court is affirmed.

          Ellis Law, PLLC, Boise, for appellant, Allen B. Ellis argued.

          Carey Perkins, LLP, Boise, for respondent, Richard L. Stubbs argued.


         Thomas Lanham (Thomas) appeals from the district court's dismissal of his legal malpractice action against his former attorney, Douglas Fleenor (Fleenor). Fleenor represented Thomas in a will contest regarding the will of Gordon Lanham (Gordon), Thomas's father. After the magistrate court ruled against Thomas at the summary judgment stage, Fleenor filed an untimely appeal, which was rejected on that basis.

         Because the appeal brought by Fleenor was untimely, Thomas brought a legal malpractice action against Fleenor in district court. Thomas alleged that the failure to timely appeal the magistrate's ruling proximately caused him financial loss because he had a meritorious appeal that he never got to pursue due to Fleenor's negligence.

         The district court dismissed Thomas's legal malpractice claim at the summary judgment stage. The district court reasoned that a timely appeal by Fleenor would have been unsuccessful on the merits; hence, Thomas did not suffer any injury as a result of Fleenor's alleged malpractice. Thomas has appealed the district court's adverse summary judgment ruling.

         The crux of this appeal is the interpretation of Gordon's Last Will and Testament (Will), in which he attempted to disinherit Thomas. The validity of the Will was not contested. However, Thomas contends his father's Will did not properly dispose of all of Gordon's property because it did not contain a residuary clause. Thomas maintains these failures should have resulted in various assets passing to him through intestate succession. We affirm the district court's dismissal of Thomas's malpractice case.


         The facts in this case are largely undisputed. On November 16, 2010, Gordon began dictating his Will via an audio recording device. Gordon recorded his Will intermittently on nine separate days, concluding on January 7, 2011. On January 19, 2011, the ten dictated paragraphs were transcribed into his written Will. On February 19, 2011, the Will was signed, witnessed, and notarized. Thomas has not contested the validity of the Will.

         In his Will, Gordon explicitly limited the inheritance of Thomas and Thomas's brother Keith Lanham to one dollar and one wooden bed each. The Will mentioned two parcels of real property to which Thomas now claims an interest (collectively the subject properties). The subject properties are a ranch located at 3555 Butte Road, Emmett, Idaho (the Ranch), and a forty-seven acre parcel on Big Creek, in Valley County, Idaho (the Big Creek Property). Although Gordon stated in his Will that he planned on devising (the word Gordon used in the Will was "administering") "1/2 [of the Big Creek Property] to one person and 1/2 to another," the Will failed to bequeath the property to any specific devisee. The Will further failed to dispose of the Ranch. It also lacked a residuary clause to direct disposition of property not specifically devised.

         Gordon died on December 5, 2013. The Will was filed with the magistrate court for informal probate on December 20, 2013. Judd Lanham (Judd), Gordon's cousin, was appointed personal representative of Gordon's estate, as was contemplated in Gordon's Will. On January 8, 2014, Thomas filed a pro se pleading entitled "Application to Attest [sic] Personal Representative For This Estate" by which he contested the validity of the Will and requested "an order determining intestacy . . . ."

         Thomas later retained Fleenor to challenge certain portions of the Will. Fleenor filed a motion for summary judgment arguing that the Will failed to properly dispose of the residue of Gordon's estate (including the subject properties); the effect of which would mean any property not specifically devised would pass to Thomas and Keith as Gordon's intestate heirs. In response, Judd, acting on behalf of Gordon's estate, filed a cross-motion for summary judgment arguing Thomas's claim should be dismissed because Gordon's intent to disinherit his sons was clear and the Will fully and properly disposed of all of Gordon's property.

         On June 10, 2014, at the hearing on the cross-motions for summary judgment, the magistrate orally ruled against Thomas from the bench. On June 20, 2014, Fleenor, on behalf of Thomas, filed a motion asking the magistrate judge to reconsider his earlier oral ruling. On June 25, 2014, the magistrate issued written findings of fact, conclusions of law, and a judgment against Thomas.[1] The magistrate's written findings did not address the previously filed motion for reconsideration.

         Fleenor filed a notice of appeal to the district court on August 13, 2014, forty-nine days after the magistrate's written judgment was filed. (The time for filing an appeal is forty-two days. I.R.C.P. 83(b)(1)(A).) The district court dismissed the appeal as untimely and found that the June 20, 2014 motion to reconsider did not toll the period for appeal, because the magistrate's written decision was filed after the motion for reconsideration was filed. Fleenor filed a timely appeal of the district court's dismissal. However, the Court of Appeals affirmed the district court's dismissal. In doing so, that court found that Thomas's outstanding motion for reconsideration did not toll the time for filing an appeal and that the magistrate's judgment presumptively denied the outstanding motion for reconsideration. Lanham v. Lanham, 160 Idaho 89, 369 P.3d 307 (Ct. App. 2016).

         As a result of the late filing of the appeal of the magistrate's adverse ruling, Thomas filed this legal malpractice action against Fleenor on March 17, 2016, in district court.[2] After the filing of cross-motions for summary judgment, the district court ruled that a determination of whether an underlying, unperfected appeal would have been successful, if pursued in a timely way, was a question of law for the court to decide. (An unperfected appeal giving rise to a legal malpractice suit will be referred to in this decision as a "hypothetical appeal.") The district court also determined that the record was incomplete and denied both parties' motions regarding the issue of whether the hypothetical appeal would have been successful. As a result, the parties supplemented the record and stipulated that the sole issue for the renewed summary judgment motions was whether Thomas would have prevailed on his hypothetical appeal.

         The district court ruled on the renewed motions for summary judgment. In its written decision, the district court determined the Will both disinherited Thomas and unambiguously granted a general power of appointment to Judd, the personal representative of Gordon's estate. As a result, the district court found that Judd was granted the ability to distribute all property whether or not specifically bequeathed, including the subject properties. The general power of appointment therefore precluded Thomas's intestate inheritance. Given this finding, the district court determined that Thomas's untimely appeal would not have succeeded, and Fleenor's alleged malpractice could not have caused Thomas any injury. The district court then granted summary judgment to Fleenor and dismissed Thomas's case. Thomas appeals to this Court, seeking to set aside the district court's granting of summary judgment.


         In a legal malpractice appeal, the standard of review for this Court when reviewing a district court's grant of summary judgment is well-settled: this Court "uses the same standard properly employed by the district court originally ruling on the motion." Jordan v. Beeks, 135 Idaho 586, 589, 21 P.3d 908, 911 (2001). (citation omitted). "The court must grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." I.R.C.P. 56(a). "The movant has the burden of showing that no genuine issues of material fact exist. Disputed facts and reasonable inferences are construed in favor of the nonmoving party. This Court freely reviews issues of law." Soignier v. Fletcher, 151 Idaho 322, 324, 256 P.3d 730, 732 (2011) (citations omitted).

         "If there is no genuine issue of material fact, only a question of law remains, over which this Court exercises free review." Kiebert v. Gross, 144 Idaho 225, 227, 159 P.3d 862, 864 (2007). "In order to survive a motion for summary judgment, the non-moving party must 'make a sufficient showing to establish the existence of an element essential to that party's case on which that party will bear the burden of proof at trial.'" Jones v. Starnes, 150 Idaho 257, 259- 60, 245 P.3d 1009, 1011-12 (2011) (quoting Badell v. Beeks, 115 Idaho 101, 102, 765 P.2d 126, 127 (1988)).


         1. Did the district court correctly determine that the success of a hypothetical appeal is a question of law for the court to determine?

         2. Did the Will unambiguously grant a power of appointment to the executor that precluded intestate succession?

         3. If Fleenor is the prevailing party, is he entitled to his attorney's fees on appeal?

         IV. ANALYSIS

         Ordinarily, the elements of a legal malpractice claim against an attorney in Idaho consist of the following:

(1) the existence of an attorney-client relationship that gives rise to a duty of care on the part of the attorney to the client;[3]
(2) an act or omission by the attorney in breach of the duty of care;
(3) the breach of the duty was a proximate cause of damage to the client; ...

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