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Nevin v. Union Trust, part 2

Claims Against Attorneys
	[¶31]  In actions against attorneys, the statute of limitations begins to
run "from the date of the act or omission giving rise to the injury," except
in enumerated cases, when the statute begins to run upon the discovery of
the cause of action.  See 14 M.R.S.A. § 753-A.  One such exception is "an
action alleging professional negligence in the drafting of a last will and
testament."  Id. § 753-A(B).  
	[¶32]  The plaintiffs argue that their claims fall within the statutory
discovery rule because their claims assert "negligence in the drafting of a
last will." 	
	[¶33]  We have recognized that statutes of limitation will be narrowly
construed.  See Harkness v. Fitzgerald, 1997 ME 207, ¶ 5, 701 A.2d 370,
372.  Thus, we cannot, as the plaintiffs urge, construe the law firm's alleged
negligence in its ongoing management and advice concerning the affairs of
the Corporation to be negligence in the drafting of Learned's last will and
testament.  From all that appears, there was no negligence in the drafting of
the will itself.  
	[¶34]  Plaintiffs also ask us to judicially construct a discovery rule for
actions against estate planning lawyers.  When the Legislature has given
explicit directions as to when a statute of limitations begins to run, we are
not "free to re-define the term" by the creation of a discovery rule.  See
Musk v. Nelson, 647 A.2d 1198, 1201 (Me. 1994).  In addition, when the
Legislature provides for enumerated exceptions to its definition, those
exceptions "implicitly den[y] the availability of any other."  Id. at 1202.
	[¶35]  Had the Legislature intended that the will drafting exception to
the occurrence rule in section 753-A should apply to negligence in drafting
estate planning documents and the management of entities created as part
of an estate plan, it could have said so.  Accordingly, section 753-A bars
application of the discovery rule to the claims against the attorneys. 
	[¶36]  The plaintiffs next argue that their claims against the attorneys
are saved from the statutes of limitation by the doctrine of continuing
representation.  The doctrine of continuing representation "tolls the
running of the statute in an attorney malpractice action until the
professional relationship terminates with respect to the matter underlying
the malpractice action."  Smith v. Stacy, 482 S.E.2d 115, 120 (W. Va. 1996). 
	[¶37]  For the doctrine to apply, there must be a "clear indicia of an
ongoing, continuous, developing, and dependent relationship between the
client and the attorney."  Schoenrock v. Tappe, 419 N.W.2d 197, 201 (S.D.
1988) (quoting Muller v. Sturman, 437 N.Y.S.2d 205, 208 (N.Y. App. Div.
1981)).  Even if we might apply the continuing representation doctrine in
the appropriate case, here plaintiffs have stipulated away any such claims by
waiving claims regarding any representation in the period after February 1,
1989.
	[¶38]  Application of 14 M.R.S.A. § 753-A bars the personal
representative's claim against the attorneys.
The Beneficiaries' Claims
	[¶39]  The last matter for this Court to address is the beneficiaries'
claims against Hale & Hamlin.  The trial court determined that the
individual beneficiaries lacked standing to make a claim against Hale &
Hamlin because they were not clients of Hale & Hamlin and, therefore,
lacked privity.  
	[¶40]  A number of the jurisdictions that have addressed the issue
have determined that individual named beneficiaries of a will have standing
to bring professional negligence claims against attorneys representing
estates or preparing estate documents.  See, e.g., Simpson v. Calivas, 650
A.2d 318, 321 (N.H. 1994) (citing R. Mallen & J. Smith, Legal Malpractice
§ 26.4, at 595 (3d ed. 1989 & Supp. 1992)). 
	[¶41]  When there is a personal representative to assert the financial
claims on behalf of the estate, however, the better rule appears to be not to
allow individual beneficiaries to assert claims for negligence.  Otherwise, it
is possible that a number of individual beneficiaries could assert differing
and conflicting malpractice claims, and attorneys, in drafting wills and
estate planning documents, could be presented with difficult challenges
resolving conflict of interest issues with respect to named beneficiaries at
times when they are drafting the documents.  See Barcelo v. Elliot, 923
S.W.2d 575, 578 (Tex. 1996).  In such instances, what is good for one
beneficiary may not be good for another beneficiary or for the estate as a
whole.  A holding that attorneys have some duty, enforceable through a cause
of action, to individual beneficiaries of estates, separate from their duty to
the estate itself, could significantly add to the difficulty and cost of
preparing estate planning documents and obtaining competent counsel to
draft documents when there is a significant possibility of conflict among
beneficiaries.  Accordingly, we conclude that individual beneficiaries do not
have standing to sue estate planning attorneys for malpractice when they are
not the client who retained the attorney and when the estate is represented
by a personal representative who stands in the shoes of the client.  
	[¶42]  Therefore, we conclude that:
	1.  The Superior Court ruled correctly in dismissing the claims
by the personal representative and the individual beneficiaries against
the law firm defendants.
	2.  The judgment of the Superior Court must be vacated and
remanded for determination of the claims by all the plaintiffs against
Union Trust. 


	The entry is 
Judgment vacated in part and affirmed in part. 
Remanded to the Superior Court for further
proceedings consistent with this opinion.

Attorneys for plaintiffs: Julian L. Sweet, Esq., (orally) Paul F. Macri, Esq. Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961 Attorneys for defendants: James R. Wholly, Esq., (orally) George Z. Singal, Esq. Gross, Minsky, Mogul & Singal, P.A. P O Box 917 Bangor, ME 04402-0917 (for Union Trust Company) Kevin J. Beal, Esq., (orally) Preti, Flaherty, Beliveau, Pachios & Haley, LLC P O Box 9546 Portland, ME 04112-9546 (for Hale & Hamlin)
FOOTNOTES******************************** {1} . The actual plaintiffs are Crocker Nevin both individually as a beneficiary of the estate and in his capacity as personal representative of the Estate of Jennie Fassett Learned, and Annie Chamberlain, Jane N. Guinness and Ethelbert Nevin II, individually as beneficiaries of the estate. {2} . This Court may consider a report: "provided that the decision thereof would in at least one alternative finally dispose of the action." M.R. Civ. P. 72(a). {3} . The record is unclear regarding the timing of the resumption of the gifts, the above statement is based on representations by counsel at oral argument. {4} . 14 M.R.S.A. § 752 states: All civil actions shall be commenced within 6 years after the cause of action accrues and not afterwards, except actions on a judgment or decree of any court of record of the United States, or of any state or of a justice of the peace in this State, and except as otherwise specially provided. {5} . In its original order, the court granted a summary judgment effectively barring claims for acts which occurred prior to November 15, 1989. On plaintiffs' motion, objected to by the defendants, this was amended by the court, recognizing the tolling agreement, to move the bar date back to February 1, 1989. {6} . Myrick, which applied the discovery rule to 14 M.R.S.A. § 753, and overruled a prior decision, Tantish v. Szendey, 158 Me. 228, 182 A.2d 660 (1962), predated enactment of the comprehensive law governing medical malpractice claims and time limits. See 24 M.R.S.A. §§ 2851 et seq. {7} . Anderson predated enactment of 14 M.R.S.A. § 753-A.
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