Knott v. Pratt

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
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                                 No. 90-497


 Pauline v. Knott                             Supreme Court

                                              On Appeal from
      v.                                      Orleans Superior Court

 Leslie C. Pratt                              December Term, 1991


 Alan W. Cheever, J.

 Pauline V. Knott, pro se, Craftsbury Common, plaintiff-appellant

 Douglas C. Pierson and Thomas M. Higgins of Pierson, Wadhams, Quinn &
   Yates, Burlington, for defendant-appellee


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   In this lawyer malpractice action, plaintiff appeals from
 a judgment for defendant, entered after a trial without a jury.  The court
 found that defendant's representation of plaintiff was not negligent, and,
 in any event, did not cause plaintiff any harm.  Plaintiff argues that the
 court was wrong on both conclusions.  We affirm.
      In order to recover on a legal malpractice claim, plaintiff must prove
 both that defendant was negligent and that the negligence proximately caused
 plaintiff's harm.  Brown v. Kelly, 140 Vt. 336, 338, 437 A.2d 1103, 1104
 (1981).  In the instant case, the trial court found neither element was
 proven.  We do not reach the issue of defendant's negligence because we
 conclude that plaintiff failed to prove that defendant, even if negligent,
 proximately caused her harm.
      The case involves the estate of plaintiff's father, who died in 1979.
 From 1966 until her father's death, plaintiff resided in a house with
 surrounding land owned by him in the Town of Albany.  To plaintiff's
 disappointment, her father left the Albany house and land, along with other
 property, in equal shares to plaintiff and her three siblings.  She retained
 defendant to submit to the executrix a claim for compensation for her care,
 management and maintenance of the Albany property and expenses she claimed
 were connected with a boundary dispute involving the property.   She sought
 an amount equal to the estimated appreciation in value of the Albany
 property between 1966 and 1979.
      Defendant presented the claim to the executrix on June 26, 1980,
 pursuant to 14 V.S.A. { 1204(1).  On October 8, 1980, the lawyer for the
 executrix sent defendant a letter, which the lawyer intended to serve as
 notice of the denial of the claim.  Because he interpreted the letter as an
 allowance of the claim, with only the amount to be negotiated, defendant
 did not file a petition for allowance of the claim with the probate court
 within 60 days of the notice of disallowance from the executrix, as required
 by 14 V.S.A. { 1206(a).  When defendant did file the petition, it was dis-
 missed by the probate court as untimely, a decision upheld by this Court in
 an unpublished entry order on April 30, 1987.
      The dismissal of the claim led to this litigation.  Plaintiff claimed
 that defendant was negligent in failing to timely file the petition for
 allowance in probate court.  She sought damages from defendant of $122,000,
 the amount she had claimed from the estate.
      The issue here is whether defendant's negligence, if any, was the
 "cause-in-fact" of plaintiff's damages.  Brown, 140 Vt. at 338, 437 A.2d  at
 1104.  In order to prevail in the lawyer negligence action, plaintiff had to
 show that she would have prevailed in her claim against her father's estate
 but for defendant's failure.  See 4 S. Speiser, C. Krause & A. Gans, The
 American Law of Torts { 15:87 (1987).  We therefore examine the merits of
 that claim.
      Plaintiff's claim was based on quasi-contract.  Plaintiff moved in 1961
 from her residence in Westport, Maine, to her parents' residence in
 Massachusetts and later moved with her parents to the property in Albany.
 In 1966, her parents moved back to Massachusetts, and her mother died in
 1968.  From 1966 until her father's death, plaintiff resided alone on the
 Albany property.  Her entire income during that period came from three
 sources: the sale of the Maine property for $18,000, the sale of the timber
 on the Albany land, and support provided by her father.  No rent was
 requested, and she paid none.  Through her labor, she improved the house in
 a number of ways and maintained the property.
      In addition to testifying to her activities in caring for and
 improving the Albany property, plaintiff presented a list of expenditures
 she stated she made on behalf of the property or on her father's behalf. (FN1)
 Defendant contested most of these expenses, and the court found that only
 $2,558.22, out of the total of approximately $37,000 she presented, could
 have been recovered in the probate court for these expenses.  Of this
 amount, $804 represents fees paid to defendant for legal services.
 Plaintiff contests the court's findings as to these amounts as well, but we
 need not reach the issue because we find no liability.
      Plaintiff presented no itemization of her activities in reaching her
 total claim of $122,000.  The amount was based solely on the property's
 increase in value during her father's life and while she resided alone on
 it.  Plaintiff presented no evidence that her father promised to pay her for
 her care and management of the property.  Apparently her expectation was
 that he would leave her the property in her sole name, and she blames the
 executrix, her sister, for "arrang[ing]" the will differently.
      We stated the legal principle applicable to plaintiff's quasi-contract
 claim in Wilson v. Alexander, 139 Vt. 279, 280, 428 A.2d 1089, 1090 (1981):
           Under the theory of quasi contract the law raises a
         promise to pay when a party receives a benefit and the
         retention of the benefit would be inequitable.  This
         fictitious promise exists without regard to, indeed
         sometimes contrary to, the intentions of the party
         bound.

 See also  In re Estate of Elliott, 149 Vt. 248, 252, 542 A.2d 282, 285
 (1988) (law implies a promise to pay for a benefit that would otherwise be
 received inequitably); Reilly's Tire Mart, Inc. v. Elnicki, Inc., 149 Vt.
 37, 40, 537 A.2d 994, 995 (1987) (most significant requirement is that
 enrichment of defendant be unjust, citing Paschall's, Inc. v. Dozier, 219
 Tenn. 45, 57, 407 S.W.2d 150, 155 (1966)).  We must determine whether
 quasi-contract recovery is available in light of the totality of the
 circumstances.  See Legault v. Legault, 142 Vt. 525, 531, 459 A.2d 980, 984
 (1983).
      In the instant case, the trial court found that plaintiff's father
 received a benefit which he was aware of, due to his visits to the
 property, and which he accepted.  The court concluded, however, that it
 would not be inequitable for her father, and the estate, to retain the
 benefit without compensating plaintiff.
      The evidence fully supports the court's conclusion.  By her own
 admission, plaintiff cared for the property as a "labor of love" and as her
 own residence.  She did the work for her own benefit with the expectation,
 which proved unfounded, that she would eventually own the property.  See
 Restatement of Restitution { 57 (1937) (person who confers a benefit on
 another, without a manifest intent to claim compensation, is not entitled to
 restitution "merely because his expectation that the other will make a gift
 to him ... is not realized"); 2 G. Palmer, The Law of Restitution { 10.7(b)
 at 422 (1978) (restitution generally denied "where a person in pursuit of
 his own interests improves the land of another").  A substantial amount of
 time and expense went into litigation with her neighbor, which the court
 could find benefited only plaintiff.
      Most of the money plaintiff used for living expenses and to maintain
 and improve the property came from her father or from the sale of timber on
 the property.  See Reilly's Tire Mart, Inc. v. Elnicki, Inc., 149 Vt. at 39,
 537 A.2d  at 995 (it is not unjust to retain a benefit one has paid for).
 Plaintiff paid no rent for her occupancy of the property.
      Plaintiff has failed to show that "it is against equity and good
 conscience" to allow the estate of her father to retain the increased value
 of the Albany property.  Legault v. Legault, 142 Vt. at 531, 459 A.2d  at
 984.  Because plaintiff could not have recovered against the estate, she
 cannot recover from defendant.
      Plaintiff offers an additional argument as to why she should prevail on
 causation.  She asserts that defendant represented that she had a viable
 claim and did not state that the claim was "unsustainable or would not
 prevail."  Based on his representation, she argues that defendant is
 estopped from denying now that the claim could have prevailed.  Putting
 aside the question of whether an estoppel theory could allow a plaintiff to
 avoid having to prove causation in more appropriate circumstances, we do not
 see how the theory is factually supported in this case.  In making her
 argument, plaintiff relies on statements made by her trial lawyer.  Her
 testimony was that defendant stated that her claim was "valid" but offered
 no opinion of its strength.  Defendant denied doing even that.  The court
 found that although defendant suggested the theory of valuing the claim as
 equal to the appreciation in the value of the property, he "did not promise
 her that that would be the outcome of the litigation."
      Defendant made no statement inconsistent with his position at trial.
 See Campbell Inns, Inc. v. Banholzer, Turnure & Co., Inc., 148 Vt. 1, 7, 527 A.2d 1142, 1146 (1987) (purpose of equitable estoppel is to prevent a person
 from speaking against "'his own act, representations or commitments to the
 injury of one to whom they were directed and who reasonably relied
 thereon,'" quoting Dutch Hill Inn, Inc. v. Patten, 131 Vt. 187, 193, 303 A.2d 811, 815 (1973)).  Nor is there any evidence that plaintiff "in good
 faith changed ... [her] position in reliance" on defendant's
 representations.  My Sister's Place v. City of Burlington, 139 Vt. 602, 609,
 433 A.2d 275, 279 (1981).  There is no basis for an estoppel.
      Affirmed.
                                         FOR THE COURT:


                                         Associate Justice





 FN1.      Included in these expenses were costs associated with a boundary
 dispute with a neighbor in which plaintiff became involved in 1976.
 Litigation of the matter reached this Court twice, and the neighbor
 ultimately prevailed.  See Vahlteich v. Knott, 139 Vt. 588, 433 A.2d 287 
 (1981).