The opinion
STATE OF MAINE SUPERIOR COURT
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PENOBSCOT, SS. CIVIL ACTION
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Paul Gagnon, j ' - 1. :' 1 2Ocfi
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v. Order (Motion to Dismiss)
Anne Marie Dodwell et al.,
Defendants
Pending before the court is the motion to dismiss filed by defendant Wakine G.
Tanous. The court has reviewed the parties' written arguments on the motion.
Tanous moves to dismiss Gagnon's claims against him for lack of standing and
for failure to state a claim on which relief can be granted. "A motion to dismiss tests the
legal sufficiency of the complaint." McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994). On
a motion to dismiss, the court takes the allegations to be true. In re Wuge Payment
Litigation, 2000 ME 162,g 3,752 A.2d 217, 220. From this starting point, the complaint
then is examined "in the light most favorable to the plaintiff to determine whether it sets
forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief
pursuant to some legal theory." McAfee, 637 A.2d at 465. A dismissal is proper "only
when it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts
that he might prove in support of his claim." Hall v. Board of Environmental Protection,
498 A.2d 260,266 (Me. 1985).
Here, Paul Gagnon alleges that in late July 2004, his father, Everett Gagnon,
executed a deed that Tanous drafted. The terms of the deed would have conveyed two
parcels of property to Everett Gagnon and to Paul Gagnon in joint tenancy. Paul Gagnon
alleges that his father also intended to convey a third parcel in the same deed but that
Tanous negligently omitted any such conveyance from the deed. Paul Gagnon also
alleges that Tanous has wrongfully refused to record the deed that Everett did execute.
Everett Gagnon died in mid-August. Under Everett's will, Everett's seven children,
including the plaintiff, are equal beneficiaries of the estate.
In his complaint, Paul Gagnon seeks a declaratory judgment that he owns the two
parcels that were the subject of the deed. He also seeks reformation of the deed to
include the third parcel, which Paul Gagnon alleges was negligently omitted. He further
seeks i~;?;unctive:e!ief against Tanous that would require Tanous ti; record the deed, and
he seeks money damages from Tanous for negligence arising from the attempted
conveyance.
Relying on Nevin v. Union Trust Co., 1999 ME 47,726 A.2d 694, Tanous argues
here that Paul Gagnon does not have standing to pursue claims against him and that any
alleged wrongful conduct attributable to Tanous does not provide a basis for Paul Gagnon
to secure relief. In Nevin, a professional negligence claim was asserted against an
attorney based on his management of a corporation that was created for estate-planning
purposes. The plaintiffs in that action were beneficiaries of the estate that was affected
hv t h e a l l ~ ~ma!nvg~t;ce.
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The LaxTyCsUrt hP,!dthat "ind;vid~;! ber,efjcja;ies d=
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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." 1999 ME 4 7 , g 4 1 , 7 2 6 A.2d at 701.
Here, although Paul Gagnon acknowledges that he was not Tanous' client, the
transaction at issue was an intervivos conveyance. Unlike the action in Nevin, Paul
Gagnon's claim against Tanous is not that of the estate. The basis for the holding in
Nevin is that the claim properly belonged to the estate and that the individual
beneficiaries should not be entitled to pursue it. Otherwise, as the Court noted, a
respondent would face multiple and possibly differing claims because of the various
interests that the individual beneficiaries might have. 1999 ME 47, g 41, 726 A.2d at 701.
In such an instance. the personal representative of the estate is the person with standing
and is the proper claimant.
Here, on the other hand, Paul Gagnon's claim against Tanous is adverse to the
interests of the other beneficiaries to Everett Gagnon's estate, because if he prevails on
his claim, then title to several assets (namely, two or three parcels of land) would transfer
to him in his capacity as a joint tenant with Everett. Thus, the PR of Everett's estate
certainly is not the proper claimant for Paul Gagnon's causes of action.
As Paul Gagnon alleges the circumstances of the July 2004 transaction, Tanous'
role was to effect Everett's intention to create in Paul Gagnon a property interest in three
parcels in a way that would bypass the probate process and exclude Paul Gagnon's
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sib!ings as rec:plects sf any interest in that i;;spe;Pj. Cocsequently, as a more genera!
matter, although Paul Gagnon was not Tanous' client, Tanous arguably owed Paul
Gagnon a duty of care because Tanous knew that Everett (the client) intended to benefit
Paul Gagnon (the non-client) through thcse legal services; Tanous' obligations to Everett
would not be compromised by the existence of a duty to Paul Gagnon; and the absence of
any duty owed to Paul Gagnon would make it unlikely that Tanous' obligations to Everett
could be fulfilled. These factors generate a duty of care owed by an attorney to a non-
client. See RESTATEMENT
OF THE LAWGOVERNING 3 51(3) (2000).
LAWYERS
Therefore, Paul Gagnon's allegations are sufficient to present a basis for relief
against Tancus b e c a ~ s ethe ~ sf care that Tafisus s::'e?, t s
ciaims i ~ v s k2, du$
him, and because those claims are not foreclosed under Nevin.
The entry shall be:
For the foregoing reasons, the court denies the motion to dismiss filed by
defendant Wakine G. Tanous.
Dated: January 3 1, 2006