Elaine Davey v. Richard E. Boston (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 30 2018, 9:34 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Alexander P. Pinegar Leslie B. Pollie
Samuel R. Robinson Travis W. Montgomery
Sarah J. Randall Kopka Pinkus Dolin PC
Jessica L. Billingsley Carmel, Indiana
Church Church Hittle & Antrim
Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Elaine Davey, May 30, 2018
Appellant-Plaintiff, Court of Appeals Case No.
89A01-1712-PL-2955
v. Appeal from the Wayne Superior
Court
Richard E. Boston, The Honorable David E. Northam,
Appellee-Defendant Special Judge
Trial Court Cause No.
89D01-1601-PL-3
Baker, Judge.
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[1] Bruce and Elaine Davey hired an attorney to help them create and execute
mutual wills. The attorney intended to sign Bruce’s will as one of two attesting
witnesses, but failed to do so. As a result, after Bruce’s death, his estate was
administered as intestate and Elaine received half, rather than all, of the estate.
She filed a claim against the attorney for legal malpractice. The attorney sought
summary judgment, arguing that because Elaine did not attempt to probate
Bruce’s will, any causal chain was broken. The trial court agreed and granted
summary judgment in favor of the attorney. We disagree, finding that any
attempt to probate the will would have been fruitless. Therefore, we reverse
and remand for further proceedings.
Facts
[2] In 2011, Bruce and Elaine engaged attorney Richard Boston to provide legal
estate planning services, including the creation of mutual wills. On July 15,
2011, the Daveys met with Boston to review and sign the wills he had prepared.
On Bruce’s will (the Will), each page contained a signature line for Bruce as the
testator and a signature line for each of two attesting witnesses. The attesting
witnesses were to be Boston and Nina Boston. While Nina signed the Will as
an attesting witness, Boston failed to do so on any part of the document. 1 The
Daveys elected to keep the original Will rather than leave it with Boston. It is
1
Boston stated in his deposition that he signed the original Will after it was photocopied by his assistant and
that he also signed the photocopy for his own file. But the photocopy later found in Boston’s file did not bear
his signature. Moreover, Boston told both Elaine and her daughter that he would sign the original Will after
Bruce’s death, clearly implying that he knew he had not signed it before that time.
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undisputed that Bruce intended to leave his entire estate to Elaine if she
survived him.
[3] Bruce died on March 29, 2014. Elaine attempted to find the original Will but
was unsuccessful. Elaine and her daughter, Azure Davey, went to Boston’s
office and the receptionist provided them with a photocopy of the Will. It bore
the signature of only one attesting witness. Boston later called both Elaine and
Azure and offered to each of them to sign the original, if they found it, after the
fact. He later said that he regretted making those statements, as signing the
Will after the fact would not be “proper.” Appellant’s App. Vol. II p. 18.
[4] After searching unsuccessfully for the original Will and, in any event, believing
that it was invalid as it lacked a second witness signature, in August 2014,
Azure filed a petition to open Bruce’s estate and be appointed administrator.
She stated in her petition that Bruce died intestate; Elaine consented to the
petition. Azure and the Daveys’ other child, Brigham Davey, acknowledged
that Bruce intended to leave the entirety of his estate to Elaine, and would not
have contested a probate proceeding. But because Bruce’s estate was
administered as intestate, half of it passed to Elaine and the other half passed to
Azure and Brigham.
[5] On January 25, 2016, Elaine sued Boston for legal malpractice. On November
15, 2016, Boston moved for summary judgment. Following briefing and a
hearing, the trial court summarily granted summary judgment in favor of
Boston.
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[6] Elaine instituted an appeal of the summary judgment order, but on March 17,
2017, she found Bruce’s original Will in her safety deposit lockbox at her bank.
The Will bore only one witness’s signature. She asked this Court for a
temporary stay and remand to the trial court; this Court granted the request and
dismissed the appeal without prejudice.2 On May 18, 2017, Elaine filed with
the trial court a motion to set aside and vacate the summary judgment order
based on the newly-discovered evidence. Following briefing and a hearing, the
trial court denied her motion. Elaine now appeals.
Discussion and Decision
[7] Elaine argues that the trial court erred by granting summary judgment in favor
of Boston and by denying her motion to set aside the judgment. Because we
rule in her favor on the first issue, we need not consider the second.
[8] Our standard of review on summary judgment is well settled:
The party moving for summary judgment has the burden of
making a prima facie showing that there is no genuine issue of
material fact and that the moving party is entitled to judgment as
a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
Once these two requirements are met by the moving party, the
burden then shifts to the non-moving party to show the existence
of a genuine issue by setting forth specifically designated
facts. Id. Any doubt as to any facts or inferences to be drawn
therefrom must be resolved in favor of the non-moving
2
This Court stated that after remand proceedings concluded, Elaine could file a new notice of appeal to raise
issues that would have been raised in her first appeal, plus any new issues that might be created by the trial
court’s ruling on remand.
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party. Id. Summary judgment should be granted only if the
evidence sanctioned by Indiana Trial Rule 56(C) shows there is
no genuine issue of material fact and that the moving party
deserves judgment as a matter of law. Freidline v. Shelby Ins.
Co., 774 N.E.2d 37, 39 (Ind. 2002).
Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).
[9] The underlying claim filed by Elaine against Boston is for legal malpractice.
The elements of such a claim are (1) employment of an attorney creating a duty
to the client; (2) failure of the attorney to exercise ordinary skill and knowledge
(i.e., breach of the duty); and (3) that such negligence was the proximate cause
of (4) damage to the client. E.g., Clary v. Lite Machs. Corp., 850 N.E.2d 423, 430
(Ind. Ct. App. 2006). The only element at issue in this case is proximate cause,
which “requires that there be a reasonable connection between the defendant’s
allegedly negligent conduct and the plaintiff’s damages. Proximate cause
requires, at a minimum, that the harm would not have occurred but for the
defendant’s conduct.” Gates v. Riley ex rel. Riley, 723 N.E.2d 946, 950 (Ind. Ct.
App. 2000) (internal citation omitted). Proximate cause is generally a question
of fact that should be left to the factfinder. E.g., Mundia v. Drendall Law Office,
P.C., 77 N.E.3d 846, 855 (Ind. Ct. App. 2017), trans. denied.
[10] According to Boston, any causal chain that may have linked his failure to sign
the Will to Elaine’s ultimate damages was broken when she decided not to
attempt to probate the Will and, instead, to concede to the administration of
Bruce’s estate as intestate. We agree with Elaine, however, that any attempt to
probate the Will would have been fruitless.
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[11] The right to make a will is statutory, and every valid will “must conform to the
formalities and the requirements of the statutes concerning wills.” Pfaffenberger
v. Pfaffenberger, 189 Ind. 507, 127 N.E. 766, 767 (1920). Therefore, “there is no
such thing as a substantially correctly executed will. Either the will meets the
legislative requirements or it is void.” Keener v. Archibald, 533 N.E.2d 1268,
1270 (Ind. Ct. App. 1989). If the statutory requirements are not complied with,
a court is powerless to act for a decedent, no matter how clearly his
testamentary desires may be. Hinton v. Bryant, 99 Ind. App. 38, 190 N.E. 554,
577 (1934). Indeed, the Indiana Probate Code permits only validly executed
wills to be admitted to probate. Ind. Code § 29-1-7-13(a) (providing that when a
will is offered for probate, “if the court finds that the testator is dead and that
the will was executed in all respects according to law, it shall be admitted to
probate”) (emphasis added).
[12] Relevant to this case is the requirement that a will must be executed by the
signature of the testator and at least two attesting witnesses. I.C. § 29-1-5-3(a).
The attesting witnesses and the testator must sign in each other’s presence. I.C.
§ 29-1-5-3(b)(2); see also I.C. § 29-1-5-3(c) (noting that a will that is executed
“substantially in compliance” with subsection (b) is not rendered invalid by the
existence of additional signatures, but not including a provision regarding omitted
signatures). It is undisputed that the Will does not comply with this strict
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requirement—it bears the signature of only one attesting witness.3 Therefore, it
is void and would not have been admitted to probate even if Elaine had
attempted it.
[13] Boston directs our attention to Indiana Code section 29-1-7-5(5), which
provides a way for a petitioner to ask that a lost will be admitted to probate. He
argues that Elaine could have used this provision because she was unable to
find the original Will until years later. We agree with Elaine, however, that this
provision assumes that the “lost will was validly executed in the first place[.]”
Appellant’s Br. p. 17 (emphasis original). Here, while the original Will was,
indeed, lost, it was also void—and Elaine knew that it was void, because she
knew that Boston had failed to sign it. In other words, there was never a valid
will to lose. Therefore, attempting to probate the Will as a lost will would have
either required perpetrating a fraud on the court or have been fruitless, given
that the Will was void.
[14] Because any attempt by Elaine to probate the Will would have been fruitless,
there are issues of fact remaining as to whether Boston’s alleged negligence
proximately caused Elaine’s damages. The trial court erred by granting
summary judgment in favor of Boston.
3
Boston states in his brief, without explanation or citation to the record, that the copy of the Will “contained
all necessary signatures and would have been deemed valid[.]” Appellee’s Br. p. 13 n.2. But nowhere in the
record is there a copy of the Will that contains all necessary signatures.
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[15] We reverse and remand for further proceedings.
Kirsch, J., and Bradford, J., concur.
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