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Tuesday, October 15, 2013

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Judith (Lund) Pherson v. Michael Lund, an 8-page opinion, Judge Bailey writes:

Judith Lund Pherson (“Wife”) appeals the denial, in substantial part, of her motion to correct error, which challenged a post-dissolution order in response to a motion by Michael Lund (“Husband”) for clarification of a pension-fund provision of a property settlement agreement incorporated into a divorce decree. Wife presents the sole issue of whether the trial court erroneously modified the property settlement agreement. We affirm. * * *

The trial court did not impermissibly modify a property settlement agreement or decree. Rather, the trial court clarified that the intent of the parties was to divide the marital property, that is, property acquired before the marriage or after the marriage and before the final date of separation.

In Martha Ferguson, Anthony Schmitt, Rebecca Schmitt, Mary Meadows, Christopher Schmitt, Rosemary Schmitt, Jerry Shillington, Christina Aleman, Steven Shillington, et al. v. Berton O'Bryan, a 14-page, 2-1 opinion, Judge Crone writes:
In Walker v. Lawson, our supreme court held that “an action will lie by a beneficiary under a will against the attorney who drafted that will on the basis that the beneficiary is a known third party.” 526 N.E.2d 968, 968 (Ind. 1988). Following Mary Linder’s death, a group of her relatives (“the Relatives”) brought a legal malpractice action against the drafter of her will, attorney Berton O’Bryan. The Relatives were not specifically named in the will, but were listed on a form that O’Bryan had given Linder for the purpose of making bequests to her intended beneficiaries. The list was referenced in the will, but was not signed, dated, or witnessed. The Relatives assert that as a result of O’Bryan’s professional negligence in drafting the will, the bequests that Linder intended to make to them failed. O’Bryan claims that he never saw the list before Linder’s death. He successfully moved for summary judgment on the basis that he owed the Relatives no legal duty with respect to drafting the will because they were not known third-party beneficiaries.

On appeal, the Relatives argue that the trial court erred in granting O’Bryan’s summary judgment motion. We conclude that regardless of whether O’Bryan saw the list, he knew that Linder intended to benefit anyone named on the list; therefore, the Relatives are known third-party beneficiaries for purposes of Walker and are thus entitled to bring a legal malpractice action against O’Bryan. Consequently, we reverse and remand for further proceedings. * * *

ROBB, C.J., concurs.
FRIEDLANDER, J., dissents with opinion. [which begins, on p. 11] In Walker v. Lawson, our Supreme Court held that a will-drafting attorney owed a duty to a listed beneficiary of the will “on the basis that the beneficiary is a known third party.” 526 N.E.2d 968, 968 (Ind. 1988). We are now called upon to consider more precisely what an attorney is required to know in order to create a duty to a beneficiary. The Majority holds that it is sufficient if the attorney knows that the testator intends, at some future point, to create a list naming a group of unidentified individuals as beneficiaries. Because I believe more is required, I respectfully dissent.

NFP civil opinions today (6):

In Re The Marriage of Debra Ann Fioritto (Weber) v. Victor Lynn Weber (NFP)

Aleesha Duensing, Erica Buzalski, Kristi Buzalski and Ray Buzalski v. Wendy Johnson and Kris A. Frazier (NFP)

In Re the Marriage of Jennifer Sausaman and Gregory Sausaman; Jennifer Hutchens (Sausaman) v. Gregory Sausaman (NFP)

In Re The Marriage of Patricia Sovinski and Patrick Sovinski; Patrick Sovinski v. Patricia Sovinski (NFP)

In Re the Paternity of S.P., W.V. v. R.P. (NFP)

Perfect North Slopes, Inc. v. Nicholas A. Searcy (NFP)

NFP criminal opinions today (1):

William Beeler v. State of Indiana (NFP)

Posted by Marcia Oddi on October 15, 2013 10:05 AM
Posted to Ind. App.Ct. Decisions