No. 02-140
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 143
ESTATE OF CAROLYN WATKINS,
Plaintiff and Appellant,
v.
HEDMAN, HILEMAN & LACOSTA,
a General Partnership, and Susan LACOSTA,
DONALD HEDMAN, and WILLIAM HILEMAN, individuals,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula, Cause No. DV 97-85928
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lee C. Henning, Kathy M. Burch, Henning & Keedy, P.L.L.C., Kalispell,
Montana
For Respondents:
George D. Goodrich, William Evan Jones, Garlington, Lohn & Robinson,
PLLP, Missoula, Montana
Submitted on Briefs: September 26, 2002
Decided: June 8, 2004
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 The Estate of Carolyn Watkins (the Estate) brought a legal malpractice action in the
District Court for the Fourth Judicial District, Missoula County, to recover damages
allegedly sustained as a result of attorney Susan Lacosta’s negligence in drafting a will and
trust for Carolyn and her husband. The District Court granted Respondent’s motion for
summary judgment concluding that the Estate’s action was time-barred under the three-year
statue of limitations for legal malpractice. The Estate appeals. We reverse and remand for
further proceedings consistent with this Opinion.
¶2 We address the following issue on appeal: Whether the District Court erred in
determining that the Estate’s claim of legal malpractice was barred by the three-year statute
of limitations for legal malpractice actions.
Factual and Procedural Background
¶3 Carolyn and Stanley Watkins were a married couple whose varied business holdings
included a substantial interest in Watkins-Shepherd Trucking as well as vending businesses
and beverage distributorships. Carolyn and Stanley maintained their business interests
despite Stanley’s worsening heart condition and his legally blind status. For many years, the
couple’s estate planning consisted of simple wills drafted in 1987. These wills provided that
upon the death of one spouse, everything was to go to the survivor. In 1991, Stanley’s health
deteriorated substantially and, given the size of the multi-million dollar estate, Carolyn
became concerned about preserving the family assets for their children.
¶4 In 1992, Carolyn retained Susan Lacosta, an attorney whose emphasis was in estate
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and tax planning, to draft an estate plan for Stanley and herself. Carolyn instructed Lacosta
to draft an estate plan with the same result as the 1987 wills, but with additional protection
as far as probate, privacy and with some tax advantages. Lacosta never met with Stanley,
nor did she discuss the estate plan with him.
¶5 Lacosta prepared a complex estate plan with wills and several trusts pursuant to a trust
agreement entitled “The Stanley L. and Carolyn M. Watkins Revocable Trust Agreement”
(the Trust). Carolyn later testified that it was her desire that the Trust remain revocable so
that she would retain flexibility. Carolyn also testified that she continuously asked Lacosta
whether the Trust was revocable and that Lacosta assured her that it was and that it could be
changed at any time. Because Stanley was ill, Lacosta sent the documents home with
Carolyn and left it to Carolyn to explain the documents to Stanley and obtain his signature.
Lacosta and a member of her staff subsequently “witnessed and acknowledged” Stanley’s
will.
¶6 Stanley died on April 7, 1992, and his will, prepared only a few months earlier, was
admitted to probate. Although Stanley’s 1992 will was admitted to probate with Lacosta’s
knowledge, Lacosta did not disclose to Carolyn or to the court that the will had been
improperly executed because it was not signed in the presence of witnesses as required by
§ 72-2-522, MCA. Carolyn was also unaware that the Trust became irrevocable upon
Stanley’s death.
¶7 More than a year after Stanley’s death, Carolyn instructed her local attorney, Don
Lee, to sell an asset owned by the Trust. Lee contacted Lacosta for advise in understanding
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the estate plan. Lacosta advised Lee to effect the following series of transfers: (1) Carolyn,
as trustee, should transfer the asset to a separate revocable trust; (2) Carolyn, as trustee of
the separate revocable trust, should then transfer the asset to herself individually, and
(3) Carolyn, individually, should then sell the asset to the buyer. This series of transactions
was completed on July 17, 1994.
¶8 In January 1995, during a meeting with Carolyn and her insurance and financial
advisor, John Hagman, Lacosta again assured Carolyn that the Trust was revocable. Hagman
had substantial experience in estate planning and he directly asked Lacosta whether the Trust
created a Qualified Terminable Interest Property (QTIP) trust. Lacosta responded that the
Trust agreement did not create a QTIP trust and that Carolyn could do anything she wanted
with any of the Trust assets because the trust was fully revocable by her. However, on April
21, 1995, during a meeting with Carolyn and her CPA, Gary McDermott, Lacosta admitted
that the Trust was an irrevocable QTIP trust.
¶9 Sometime between May and July 1995, Carolyn hired Neil McKay, an estate and tax
planning attorney, to determine whether and to what extent the Trust was irrevocable.
McKay testified in his deposition that the Trust would be very difficult for the average
layperson to understand. In fact, he testified that even as an estate and tax planning expert,
he had to spend many hours reading the Trust document before he could understand it.
Sometime after July 1995, McKay confirmed that the Trust was irrevocable.
¶10 When Carolyn discovered that the estate plan prepared by Lacosta did not reflect her
and Stanley’s intent, she made several efforts to minimize or negate the damage. She first
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attempted to obtain the Trust beneficiaries’ cooperation in correcting the mistakes. This
cooperative effort failed, so Carolyn next proceeded with legal action to have the erroneous
estate plan legally modified. These efforts resulted in acrimonious and protracted litigation
between Carolyn and her son, Steve Williamson, as well as some of the other Trust
beneficiaries. In those cases (hereafter collectively referred to as the “Beneficiary Suits”),
the District Court found Carolyn’s claims to be time-barred. The court reasoned that as the
personal representative of her husband’s estate, Carolyn had an absolute legal duty to the
beneficiaries to understand and administer the estate. It did not matter whether she in fact
understood the legal documents.
¶11 Carolyn died on February 23, 1997. On December 29, 1997, her Estate brought an
action to recover damages sustained by Carolyn as a result of Lacosta’s negligence.
Respondents moved for summary judgment based on the statute of limitations and on the
doctrines of res judicata and collateral estoppel. On December 28, 2001, the District Court
ruled that the Estate’s claim was time-barred under the three-year statute of limitations. The
court did not address Respondent’s other arguments. Thereafter, the Estate filed a Motion
to Alter or Amend the Judgment, which the District Court denied on March 4, 2002. The
court’s orders concluded that Carolyn should have discovered Lacosta’s negligence by April
1992, and that because Carolyn sustained damages by April 1992, the Estate’s claim was
time-barred. The Estate appeals from these orders.
Standard of Review
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¶12 Summary judgment is proper only when no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Our
standard in reviewing a district court’s summary judgment ruling is de novo. Johnson v.
Barrett, 1999 MT 176, ¶ 9, 295 Mont. 254, ¶ 9, 983 P.2d 925, ¶ 9 (citing Stutzman v. Safeco
Ins. Co. of America (1997), 284 Mont. 372, 376, 945 P.2d 32, 34). We use the same Rule
56, M.R.Civ.P., criteria applied by the district court. Johnson, ¶ 9. Moreover, all reasonable
inferences which may be drawn from the offered proof must be drawn in favor of the party
opposing summary judgment. Johnson, ¶ 8 (citing Schmidt v. Washington Contractors
Group, 1998 MT 194, ¶ 7, 290 Mont. 276, ¶ 7, 964 P.2d 34, ¶ 7).
Discussion
¶13 Whether the District Court erred in determining that the Estate’s claim of legal
malpractice was barred by the three-year statute of limitations for legal malpractice actions.
¶14 The Estate argues that the District Court, when rendering its orders in December 2001
and March 2002, failed to recognize the substantial legal distinctions between the
Beneficiary Suits and this legal malpractice case, thus, the court improperly applied the same
analysis to this case as it applied in the Beneficiary Suits. The Estate maintains that the
relationship at issue here and the legal duties inherent in that relationship are different from
that adjudicated in the Beneficiary Suits. In the Beneficiary Suits, the court reasoned that
Carolyn, as the personal representative of her husband’s estate, had an absolute legal duty
to understand and administer the estate plan, thus the fiduciary duty ran from Carolyn to the
beneficiaries. In this legal malpractice case, the fiduciary duty runs from Lacosta to Carolyn.
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We agree with the Estate that this distinction changes the application of the statute of
limitations in this case.
¶15 The statute of limitations for a legal malpractice action provides:
An action against an attorney licensed to practice law in Montana or a
paralegal assistant or a legal intern employed by an attorney based upon the
person’s alleged professional negligent act or for error or omission in the
person’s practice must be commenced within 3 years after the plaintiff
discovers or through the use of reasonable diligence should have discovered
the act, error, or omission, whichever occurs last, but in no case may the action
be commenced after 10 years from the date of the act, error, or omission.
Section 27-2-206, MCA. The Estate argues that in some circumstances, a plaintiff is not
strictly bound by this three-year statute of limitations. Rather, the Estate contends that the
statute begins to run upon discovery and accrual, and delayed discovery must be excused
under certain circumstances.
¶16 The first issue to address when determining whether a party is barred by the statute
of limitations is when the statute begins to run. In the context of legal malpractice actions,
we have held that both the “discovery rule” and the “accrual rule” are statutorily binding.
Johnson, ¶¶ 11-20 (confirming statutory adoption of “discovery rule”); Uhler v. Doak
(1994), 268 Mont. 191, 195-200, 885 P.2d 1297, 1300-03 (confirming statutory adoption of
“accrual rule”).
¶17 The “discovery rule” begins the statute of limitations upon the discovery of the
negligent act. Section 27-2-206, MCA; Johnson, ¶¶ 11-20. The “accrual rule” provides that
the statute of limitations begins when all elements of a claim, including damages, have
occurred. Uhler, 268 Mont. at 195-200, 885 P.2d at 1300-03 (adopting “accrual rule”
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pursuant to §§ 27-2-102(1)(a) and (2), MCA). Thus, the law in Montana for legal
malpractice actions is that the statute of limitations does not begin to run until both the
“discovery rule” and the “accrual rule” have been satisfied. Hence, the statute of limitations
in a legal malpractice action does not begin to run until the negligent act was, or should have
been, discovered, and all elements of the legal malpractice claim, including damages, have
occurred.
Discovery Rule
¶18 The Estate contends that its claim filed on December 28, 1997, was timely because
Carolyn did not discover and should not have discovered Lacosta’s negligent acts until 1995,
which delay tolled the statute of limitations because of (1) the existence of a fiduciary
relationship between Carolyn and Lacosta; (2) the complexity of the legal transaction; and
(3) Lacosta’s concealment of her negligent acts.
¶19 First, we observe that a fiduciary relationship existed between Carolyn and Lacosta.
In Shiplet v. First Sec. Bank of Livingston (1988), 234 Mont. 166, 174, 762 P.2d 242, 247,
overruled on other grounds by Sacco v. High Country Indep. Press (1995), 271 Mont. 209,
896 P.2d 411, appellants cited 37 Am. Jur. 2d Fraud and Deceit § 409, for the rule that
“[w]here a confidential relationship exists between the parties, failure to discover facts
constituting [a claim] may be excused” and the statute of limitations may be tolled. Although
Shiplet involved an action against a bank for fraud, we conclude that the rule propounded in
that case is equally applicable to legal malpractice claims. The United States Supreme Court
noted long ago:
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There are few of the business relations of life involving a higher trust
and confidence than that of attorney and client . . . and it is the duty of the
court . . . to be watchful and industrious, to see that confidence thus reposed
shall not be used to the detriment or prejudice of the rights of the party
bestowing it.
Stockton v. Ford (1851), 52 U.S. 232, 247, 11 How. 232, 13 L.Ed. 676.
¶20 In the instant case, Carolyn did not discover Lacosta’s negligence until 1995. Carolyn
trusted Lacosta to draft an estate plan according to Carolyn’s and Stanley’s wishes. In fact,
when Carolyn asked Lacosta whether the Trust was revocable as they had requested, Lacosta
assured her that it was. Lacosta even advised Carolyn’s insurance and financial advisor that
the Trust was revocable.
¶21 As the Estate argues in its brief on appeal, Carolyn’s mistake was in relying upon her
attorney. However, that is not a mistake for which she should be punished. Carolyn was
entitled to trust her attorney as her fiduciary. To hold otherwise would ignore the nature of
the fiduciary relationship between attorney and client.
¶22 Second, Carolyn’s failure to discover Lacosta’s negligence may be excused because
of the complexity of the legal transaction involved. In Young v. Datsopoulos (1991), 249
Mont. 466, 817 P.2d 225, we held that if a legal transaction is beyond the understanding of
a layperson and the “date of discovery” is disputed, summary judgment is not appropriate.
In Young, the decedent’s family hired defendants to probate decedent’s estate. The family
claimed that defendants committed legal malpractice by misadvising the family concerning
removal of a co-personal representative; the possible defense of lack of consideration to a
claim against the estate on several promissory notes; and abandonment of several potential
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lawsuits. Young, 249 Mont. at 469, 817 P.2d at 227. We reversed the trial court’s grant of
summary judgment reasoning that the legal transactions constituting the alleged malpractice
were beyond the understanding of a layperson, therefore, when the facts should have been
knowable was a question of fact precluding summary judgment. Young, 249 Mont. at 473,
817 P.2d at 229.
¶23 Here, the estate plan created by Lacosta created wills with pour-over provisions and
several trusts. The complexity of this estate plan made it difficult even for experts to
understand. Attorney Don Lee failed to understand the ramifications of the estate plan and
had to call Lacosta for advice. Although attorney Neil McKay was ultimately able to
comprehend the estate plan, he testified in his deposition that he spent numerous hours
attempting to unravel and understand the plan. John Hagman, an insurance and financial
advisor with substantial experience in estate planning, could not determine whether the Trust
was an irrevocable QTIP trust. Given the inability of these professionals to understand the
Estate plan, we conclude that the plan was clearly beyond Carolyn’s understanding.
¶24 Third, Carolyn’s failure to discover Lacosta’s negligence may be excused if Lacosta
concealed her mistakes. This Court has held that
[t]he three-year statute of limitations for legal malpractice actions contains a
built-in tolling mechanism for a defendant’s fraudulent concealment of a
plaintiff’s injury. That is, a statute of limitations does not begin to run until
the plaintiff discovers, or with reasonable diligence should have discovered,
the act, error, or omission.
Joyce v. Garnaas, 1999 MT 170, ¶ 15, 295 Mont. 198, ¶ 15, 983 P.2d 369, ¶ 15. Thus, in
the context of legal malpractice, a nexus exists between a defendant’s fraudulent
10
concealment and the question of whether a plaintiff should have discovered the defendant’s
negligent act.
¶25 Although we have not yet ruled upon this issue, other courts have held that “mere
failure to reveal information can be fraudulent concealment by a person, such as a fiduciary,
who has a duty to disclose.” Geo. Knight & Co. v. Watson Wyatt & Co. (1st Cir. 1999), 170
F.3d 210, 215 (citation omitted). Thus, “if a trust or confidential relationship exists between
the parties, which imposes a duty to disclose, mere silence, by the one under that duty
constitutes fraudulent concealment and thus tolls the applicable statute of limitations.”
Greene v. Morgan, Theeler, Cogley & Petersen (S.D. 1998), 575 N.W.2d 457, 462 (citations
omitted).
¶26 This rule recognizes that a client’s failure to discover an attorney’s malpractice often
results from “a second breach of duty by the fiduciary, namely, a failure to disclose material
facts to his client.” Neel v. Magana, Olney, Levy, Cathcart & Gelfand (Cal. 1971), 491 P.2d
421, 429. As the California Supreme Court noted in Neel, tolling the statute of limitations
when the attorney remains silent “vindicates the fiduciary duty of full disclosure; it prevents
the fiduciary from obtaining immunity for an initial breach of duty by a subsequent breach
of the obligation of disclosure.” Neel, 491 P.2d at 429.
¶27 In the instant case, Carolyn may have been damaged by two distinct acts of
malpractice. First, if Lacosta failed to draft the estate plan according to Carolyn’s and
Stanley’s wishes. And second, if Lacosta improperly executed Stanley’s 1992 will and failed
to inform Carolyn of that fact. Consequently, if Lacosta committed the underlying acts of
11
malpractice, and if in each instance, she actively concealed her malpractice, then that should
not inure to her benefit. Nevertheless, these are exactly the type of factual questions
appropriate for resolution by a trier of fact. See Young, 249 Mont. at 473, 817 P.2d at 229.
Accrual Rule
¶28 Section 27-2-102, MCA, provides in pertinent part:
When action commenced. (1) For the purposes of statutes relating to
the time within which an action must be commenced:
(a) a claim or cause of action accrues when all elements of the claim
or cause exist or have occurred, the right to maintain an action on the claim or
cause is complete, and a court or other agency is authorized to accept
jurisdiction of the action;
....
(2) Unless otherwise provided by statute, the period of limitation
begins when the claim or cause of action accrues. Lack of knowledge of the
claim or cause of action, or of its accrual, by the party to whom it has accrued
does not postpone the beginning of the period of limitation.
¶29 We have held that this “accrual rule” applies to legal malpractice actions and that the
statute of limitations does not begin to run until all elements of a claim, including damages,
have occurred. Uhler, 268 Mont. at 195-200, 885 P.2d at 1300-03. More specifically, we
stated that
[i]n order to establish a cause of action for legal malpractice, there must be a
showing that the attorney owed his client a duty of care, that there was a
breach of this duty by a failure to use reasonable care and skill, and that the
breach was the proximate cause of the client’s injury and resulted in damages.
Uhler, 268 Mont. at 196, 885 P.2d at 1300 (citing Merzlak v. Purcell (1992), 252 Mont. 527,
529, 830 P.2d 1278, 1279-80) (emphasis added). In Uhler, we overruled our prior decision
in Boles v. Simonton (1990), 242 Mont. 394, 791 P.2d 755, wherein we determined that the
12
statute of limitations precluded plaintiff’s claims against their attorney even before they had
sustained any actual damages as a result of the malpractice. Uhler, 268 Mont. at 199, 885
P.2d at 1302. We further stated in Uhler that it is inherently illogical and unfair to require
a plaintiff to file an action prior to the accrual of the cause of action because if a plaintiff
filed suit when no actual damages had been sustained, the suit would properly be dismissed.
Uhler, 268 Mont. at 198, 885 P.2d at 1302. Moreover, the mere threat of future harm does
not constitute actual damages. Uhler, 268 Mont. at 198-99, 885 P.2d at 1301-02.
¶30 In the instant case, the Trust was misleadingly titled “The Stanley L. and Carolyn M.
Watkins Revocable Trust Agreement.” Despite the title, the Trust became irrevocable upon
the death of the first spouse. Thus, while the Trust became irrevocable upon Stanley’s death
in April 1992, Carolyn, relying upon Lacosta’s advice, continued to transfer the Trust assets
as if the Trust was revocable. Consequently, for several years following Stanley’s death,
Carolyn sustained no actual damages and she continued to treat the Trust assets as her own.
In addition, when the irrevocable nature of the Trust was discovered by attorney Neil McKay
in mid-1995, he contacted Lacosta who advised that the Trust could be revised with the
beneficiaries’ consent. Had this effort been successful, Carolyn would never have suffered
the damages that formed the basis of the Beneficiary Suits. As it was, Carolyn did not
sustain any actual damages until suit was brought to remove her as Trustee on May 30, 1996.
Hence, the present action, filed on December 28, 1997, was well within the three-year statute
of limitations set forth in § 27-2-206, MCA.
Res Judicata and Collateral Estoppel
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¶31 Respondents also contend on appeal that this action is barred by the doctrines of res
judicata and collateral estoppel. Both of these doctrines are based on a judicial policy
favoring a definite end to litigation. Kullick v. Skyline Homeowners Ass’n, 2003 MT 137,
¶ 17, 316 Mont. 146, ¶ 17, 69 P.3d 225, ¶ 17 (citing Rausch v. Hogan, 2001 MT 123, ¶ 14,
305 Mont. 382, ¶ 14, 28 P.3d 460, ¶ 14). Res judicata bars a party from relitigating a matter
that the party has already had an opportunity to litigate. Kullick, ¶ 17 (citing Olson v.
Daughenbaugh, 2001 MT 284, ¶ 22, 307 Mont. 371, ¶ 22, 38 P.3d 154, ¶ 22). Collateral
estoppel is a form of res judicata and bars the reopening of an issue that has been litigated
and resolved in a prior suit. Kullick, ¶ 18 (citing Finstad v. W.R. Grace & Co., 2000 MT
228, ¶ 28, 301 Mont. 240, ¶ 28, 8 P.3d 778, ¶ 28).
¶32 The doctrine of res judicata applies if the following four elements have been satisfied:
(1) the parties or their privies are the same; (2) the subject matter of the present and past
actions is the same; (3) the issues are the same and relate to the same subject matter; and
(4) the capacities of the persons are the same in reference to the subject matter and to the
issues between them. Kullick, ¶ 17 (citing Hall v. Heckerman, 2000 MT 300, ¶ 13, 302
Mont. 345, ¶ 13, 15 P.3d 869, ¶ 13). Here, the Beneficiary Suits were not malpractice
actions and Lacosta was not a party to those claims. Thus, res judicata is not applicable in
this case.
¶33 The same is true as to the doctrine of collateral estoppel. Collateral estoppel only
applies if the following three elements have been satisfied: (1) the identical issue raised was
previously decided in a prior adjudication; (2) a final judgment on the merits was issued in
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the prior adjudication; and (3) the party against whom the plea is now asserted was a party
or in privity with a party to the prior adjudication. Kullick, ¶ 18. This Court has recognized
that parties who are drawn into litigation as a result of a professional’s malpractice have a
right to bring a subsequent and separate suit against the professional. See Fadness v. Cody
(1997), 287 Mont. 89, 951 P.2d 584 (sellers who were awarded damages against purchasers
as a result of fraud in real estate action have a subsequent and separate action against real
estate agent and closing agent for their breaches of duty). The reason behind allowing a
subsequent and separate action is that the later action raises different issues.
Identity of issues is the most crucial element of collateral estoppel. In
order to satisfy this element, the identical issue or “precise question” must
have been litigated in the prior action.
....
. . . The fact that each action arises from the same transaction does not
mean that each involve the same issues.
Fadness, 287 Mont. at 96-97, 951 P.2d at 588-89 (citations omitted). We noted in Fadness
that “[t]he duties owed by [the professionals] to the [plaintiff] were not decided, nor even
considered by the jury in the first case.” Fadness, 287 Mont. at 97, 951 P.2d at 589.
Similarly, in the case sub judice, the duties owed by Lacosta to Carolyn and Stanley were
not considered or decided in the prior Beneficiary Suits. See In the Matter of the Stanley L.
and Carolyn M. Watkins Revocable Trust Agreement (Toole County Cause No. DV 96-016);
In the Matter of the Estate of Stanley L. Watkins (Toole County Cause No. 92-DP-020).
Conclusion
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¶34 We hold that because Carolyn did not discover Lacosta’s negligence until 1995, and
because Carolyn did not sustain any actual damages until 1996, the present action, filed on
December 28, 1997, was filed within the three-year statute of limitations for legal
malpractice actions. In addition, we hold that the doctrines of res judicata and collateral
estoppel are not applicable in this case because neither the parties nor the issues in this case
are the same as in the Beneficiary Suits. Accordingly, we hold that the District Court erred
in granting Respondents’ motion for summary judgment.
¶35 Reversed and remanded for further proceedings consistent with this Opinion.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
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Justice Jim Rice specially concurring.
¶36 I concur in the holding of the Court, but not in the entirety of the rationale.
¶37 Regarding damage, the Court holds that, although the Trust became irrevocable upon
Stanley’s death in April 1992, Carolyn sustained no actual damage therefrom because she
continued to transfer assets as if the Trust was revocable. Further, the Court determines that
if, following Carolyn’s discovery that the Trust was irrevocable, her effort to modify the
Trust by obtaining the beneficiaries’ consent had been successful, she would never have
suffered any damage. See ¶ 30. The Court then concludes that Carolyn did not sustain any
damages until suit was brought to remove her as Trustee in May 1996. I disagree with these
conclusions.
¶38 Upon Stanley’s death, Carolyn was subjected to an irrevocable trust (the portion of
the Trust which was Stanley’s individual trust) which was contrary to the express
instructions given to Watkins’ counsel. At that point, Carolyn had lost the ability to manage
the entirety of the Watkins’ affairs as she desired, a tangible loss. As the District Court
noted: “What are the actual damages here? They’re the inability of Mrs. Watkins to legally
administer the trust in the manner which she wished.” The fact that, notwithstanding the
irrevocable nature of the Trust, Carolyn acted as if the Trust was revocable, did not eliminate
her damages. To the contrary, these actions, taken in possible violation of the Trust, exposed
her to potential liability for breach of trust or fiduciary duty, and, indeed, a petition alleging
breach of her duties was later filed. Further, if the effort to modify the Trust by beneficiary
17
consent would have been successful, that effort would have mitigated Carolyn’s damages,
but would not have eliminated them altogether.
¶39 In Anderson v. Glenn (Idaho 2003), 87 P.3d 286, defendant attorney developed a trust
for plaintiffs, who transferred property into the trust in 1980. In 1997, it was discovered that
the trust was defective and did not accomplish the plaintiffs’ purposes. Noting that the
plaintiffs had given up substantial rights of control over the property in 1980, the Supreme
Court of Idaho held that damage had been sustained by the plaintiffs at that time: “Damage
occurred when the trust was created and control of the property surrendered to that trust.”
Anderson, 87 P.3d at 290.
¶40 I would conclude that Carolyn sustained damage in April of 1992, when Stanley died
and Stanley’s trust, containing substantial assets, became irrevocable. This would be
consistent with Uhler v. Doak (1994), 268 Mont. 191, 885 P.2d 1297, wherein we held that
the limitation period began to run when the plaintiff-client first acted to his detriment upon
his counsel’s advice–even though the plaintiff did not then realize he was acting to his
detriment. However, notwithstanding this conclusion regarding damage, because I agree that
knowledge of counsel’s negligence should not be imputed to Carolyn prior to her actual
knowledge thereof in April of 1995, I concur that the three-year limitation period began to
run at that time, and that the complaint filed herein on December 28, 1997, was timely.
/S/ JIM RICE
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