THOMAS E. LANHAM, Plaintiff/Appellant,
DOUGLAS E. FLEENOR, Defendant/Respondent.
from the District Court of the Fourth Judicial District of
the State of Idaho, Ada County. Richard D. Greenwood,
judgment of the district court is affirmed.
Law, PLLC, Boise, for appellant, Allen B. Ellis argued.
Perkins, LLP, Boise, for respondent, Richard L. Stubbs
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.
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.
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
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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 . . . ."
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
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. The magistrate's written findings did
not address the previously filed motion for reconsideration.
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).
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. 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.
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
STANDARD OF REVIEW
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).
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)).
QUESTIONS PRESENTED ON APPEAL
the district court correctly determine that the success of a
hypothetical appeal is a question of law for the court to
the Will unambiguously grant a power of appointment to the
executor that precluded intestate succession?
Fleenor is the prevailing party, is he entitled to his
attorney's fees on appeal?
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
(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; ...