Preview:

Present: Hassell, C.J., Keenan, 1 Koontz, Lemons, Goodwyn and Millette, JJ., and Russell, S.J. NANCY E. JOHNSON v. Record No. 090984 OPINION BY JUSTICE DONALD W. LEMONS April 15, 2010

JOHN W. HART, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Frederick B. Lowe, Judge In this appeal we consider whether a sole testamentary beneficiary, in her individual capacity, may maintain a legal malpractice action against the attorney for the estate for the attorney's allegedly negligent services rendered to the estate. We also consider whether the prevailing party in the circuit court, by endorsing the final order "seen and consented to," has expressly waived any arguments he presented to the trial court. I. FACTS AND PROCEEDINGS BELOW

On January 17, 2007, Nancy E. Johnson ("Johnson") filed a complaint against John W. Hart and John W. Hart, P.C. (collectively, "Hart"), alleging that Hart committed legal malpractice after being retained to provide legal counsel and advice regarding the probate of Johnson's mother's estate ("the Estate"). As a result of Hart's alleged malpractice, Johnson

Justice Keenan participated in the hearing and decision of this case prior to her retirement from the Court on March 12, 2010.

1

asserted that she was removed from her position as the executor of the Estate and suffered pecuniary loss. Hart filed an answer, affirmative defenses, and demurrer. Hart's demurrer asserted that Johnson's complaint failed to state a cognizable claim because Hart represented Johnson as the executor of the Estate, not in her individual capacity. Accordingly, any proper claim would be in the name of the Estate "and/or by [Johnson], in her capacity as" the executor. Subsequently, Hart filed a motion for summary judgment, along with a supporting memorandum. In order to provide an

adequate record for the trial court to rule on the summary judgment motion, the parties stipulated to the following facts: 1. Peggy Johnson was the mother of [Johnson] and Andrea S. Johnson, and Peggy Johnson died on July 23, 2002, having executed her Last Will and Testament on December 5, 1980. 2. [Johnson] was referred to [Hart] and met with Hart and asked Hart to represent the [Estate] and assist in having [Johnson] qualified as the Executrix of the Estate. 3. There was no written contract or fee agreement between the Estate [and] Hart, and Hart represented the [Estate] between August 19, 2002 through May 13, 2005, when he ceased any representation of the Estate. 4. The claim being asserted by [Johnson] arises out of the alleged malpractice of [Hart] as the attorney for the [Estate]. Although no claim is being asserted against [Hart] for his conduct relating to anything other than his services to the [Estate], the parties would stipulate that John Hart did provide legal advice in some form

2

to [Johnson] in other personal matters, including: a. He did write checks for her personal bills; He did help in obtaining a Restraining Order for [Johnson] and her grandmother against [Johnson's] former husband; He did help [Johnson] recover her cats from a friend; He did help in filing a suit for damages to [Johnson's] ex-husband's car; He did help [Johnson] with respect to qualifying as Guardian for her sister.

b.

c.

d.

e.

5. John Midgett ["Midgett"] was appointed Administrator C.T.A. of the [Estate] when an Order was entered on July 1, 2005 removing [Johnson] as the Executrix of the [Estate]. 6. At no time prior to [Midgett's] winding up the [Estate] and filing the final accounting for approval did the [Estate] ever file a claim against John Hart. 7. When [Midgett] completed his responsibilities as Administrator C.T.A., Andrea S. Johnson had died, and [Johnson] was the sole beneficiary under the Last Will and Testament of Peggy Johnson. [Midgett], as Administrator C.T.A. of the [Estate], submitted the final accounting for the [Estate], which was approved on June 5, 2006, at which time [Johnson] inherited all of the assets of the [Estate] as the sole beneficiary of the Estate. 8. On October 18, 2005, [Midgett], as Administrator C.T.A. of the [Estate], executed an Assignment of Interest in Real Estate Contract whereby the [Estate] assigned to [Johnson] all of

3

the Estate's right, title and interest in and to that certain written instrument by and between the [e]state of Peggy Lee Anderson Johnson and D.M. Barbini Contracting, Inc. dated October 21, 2002 for the purchase of Lot 16, Phase I, Seaboard Forest on Live Oak Trail, Virginia Beach, Virginia and for the construction of a residence thereon. 9. The Final Accounting for the [Estate] was filed and approved on June 5, 2006, at which time the Estate was closed. 10. The lawsuit that has been filed by [Johnson] was filed in her individual capacity and has not been filed as a fiduciary, and as of this time, no lawsuit has been filed by the [Estate] against [Hart]. In his memorandum, Hart argued that Johnson was not the proper party to the legal malpractice action because "[i]n order to maintain a claim for legal malpractice, a plaintiff must plead and prove, inter alia, that an attorney-client relationship existed between the plaintiff and the defendant." In this case, Hart continued, "the attorney-client relationship that Hart purportedly breached was between Hart and the Estate." Johnson argued that Code

Download 1090984.pdf

Virginia Law