Rutter v. Jones, Blechman, Woltz & Kelly, P.C.

PRESENT: All the Justices

CHARLES RUTTER, EXECUTOR
OF THE ESTATE OF MILDRED
DUNCAN

v. Record No. 012612 OPINION BY JUSTICE ELIZABETH B. LACY
September 13, 2002
JONES, BLECHMAN, WOLTZ &
KELLY, P.C., ET AL.

FROM THE CIRCUIT COURT FOR THE CITY OF NEWPORT NEWS
Norman Olitsky, Judge Designate

In this appeal, we consider whether the executor of an

estate could maintain an action for legal malpractice in the

preparation of the decedent's testamentary documents.

FACTS

This case was decided on demurrer, and, therefore, we take

as true all material facts properly pleaded by plaintiff Rutter

and all inferences properly drawn from those facts. Burns v.

Board of Supvrs., 218 Va. 625, 627, 238 S.E.2d 823, 824-25

(1977). In 1993, Mildred Duncan retained Jones, Blechman, Woltz

& Kelly, P.C. (the Jones Blechman firm) to assist in her estate

planning. Duncan wanted each of her two housekeepers to receive

a "remembrance amounting to about $5,000 respectively" and

wanted "10% of the residue of her estate be devised to Trinity

United Methodist Church and Washington and Lee University as

charitable bequests." John T. Thompkins, III, a member of the

Jones Blechman firm, prepared Duncan's last will and testament

and created a revocable trust. The language of the revocable
trust suggested the amount of the remembrance to the

housekeepers, but ultimately left the bequest amount to the

trustee's discretion.

Because the trust, as written, left the bequest to the

housekeepers to the trustee's discretion, the amounts of the

bequests to Washington and Lee University and Trinity United

Methodist Church were not ascertainable at the time of Duncan's

death. As a result, the bequests to Washington and Lee

University and Trinity United Methodist Church did not meet the

federal tax requirements for charitable tax deductions pursuant

to I.R.C. § 2055(a) and, upon Duncan's death, her estate

incurred tax liabilities on those bequests amounting to

$663,996.

Charles M. Rutter, III, the executor of Duncan's estate,

filed this legal malpractice action against the Jones Blechman

firm and Thompkins (collectively "the defendants") on behalf of

the estate, alleging in Count I that, as a result of the

defendants' negligent drafting of the will and revocable trust,

the testamentary documents failed to effectuate Duncan's

intentions and constituted a breach of contract between Duncan

and the defendants. * As damages for this breach, Rutter claimed

*
The second count of Rutter's motion for judgment alleged
that the defendants negligently advised Duncan's estate after
her death. The assignment of error limited this Court's review
to those allegations of negligence occurring "prior to

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that Duncan, "by and through her executor" was entitled to

recover the amount she paid the defendants to draft the

testamentary instruments and consequential damages of $663,996,

the amount of the otherwise avoidable tax liability assessed to

the estate. The defendants demurred to the motion for judgment

asserting that Rutter lacked the standing to bring the action

and was not damaged as a matter of law. The trial court

sustained the demurrer and entered a judgment in the defendants'

favor. We awarded Rutter this appeal.

DISCUSSION

The parties spend a great deal of time discussing the

existence or non-existence of privity between the executor,

Duncan, and the defendants. Privity, however, is not

dispositive in this case. For purposes of the issue before us,

there is no assertion that Rutter has privity with the

defendants independent of his capacity as the personal

representative of the decedent. There is also no dispute that

Rutter is entitled to undertake a number of activities regarding

Duncan's rights and interests in his representative capacity as

executor of her estate. The crux of this case is the ability of

an executor to bring an action for legal malpractice in

connection with the preparation of testamentary documents.

[Duncan's] death" and, therefore, the issues addressed in Count
II are not before us.

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 Code § 8.01-25, enacted in derogation of common law,

provides that, "[e]very cause of action whether legal or

equitable, which is cognizable in the Commonwealth of Virginia,

shall survive either the death of the person against whom the

cause of action is or may be asserted, or the death of the

person in whose favor the cause of action existed." This

provision specifically limits survival of actions to those that

"existed" prior to the decedent's death. The relevant issue,

then, is whether the cause of action Rutter asserts was one

which could have been raised by Duncan during her lifetime.

A cause of action for legal malpractice requires the

existence of an attorney-client relationship which gave rise to

a duty, breach of that duty by the defendant attorney, and that

the damages claimed by the plaintiff client must have been

proximately caused by the defendant attorney's breach. In the

absence of any injury or damage, there is no cause of action.

Allied Productions v. Duesterdick, 217 Va. 763, 766, 232 S.E.2d

774, 776 (1977).

While the alleged breach of contract occurred during

Duncan's lifetime upon the drafting of her testamentary

documents, the damage or injury resulting from the breach that

Rutter claims – the avoidable estate tax liability - did not

occur until after Duncan's death. Nevertheless, Rutter argues

that there was a cause of action during Duncan's lifetime

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because she was entitled to recover the amounts she paid to the

defendants to draft the deficient testamentary documents. The

tax liability and associated accounting and legal expenses

incurred after her death, according to Rutter, were no more than

an escalation of the damages or injury caused by the defendants'

malpractice. We disagree.

As noted above, one of the elements of a legal malpractice

cause of action is injury or damage proximately caused by the

breach of contract. In this case, the fee Duncan paid the

defendants for their services was not an injury resulting from

the legal malpractice. It was merely the agreed-upon cost of

the service, the consideration given for the contract, and not

the damage or injury arising from the breach of the contract.

The injury or damage that was proximately caused by the

legal malpractice alleged in this case was the additional amount

of the tax assessed against the estate and additional legal and

accounting fees required – all of which did not arise until

after Duncan's death.

Accordingly, because the cause of action for legal

malpractice asserted in this case did not come into existence

during Duncan's lifetime and thus did not survive her death, we

will affirm the judgment of the trial court.

Affirmed.

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