concluding that trial court’s entry of summary judgment in malpractice action was improper where parties disputed whether attorney had actually been retained to represent plaintiff in real estate transaction
How later courts described this case
- concluding that trial court’s entry of summary judgment in malpractice action was improper where parties disputed whether attorney had actually been retained to represent plaintiff in real estate transaction
Written by the judges who cited it.
The opinion
Judge Phillips
concurring in part and dissenting in part.
I agree that the record raises an issue of fact as to defendants’ liability under the relationship of attorney and client. I do not agree, however, that the complaint does not adequately allege defendants’ liability in the absence of that relationship, as the real basis for defendants’ liability is not the attorney-client relationship, but defendants’ failure to properly do what they either agreed, were instructed, or undertook to do — namely, draw the deed of trust in accordance with the sale terms.
Leaving aside the attorney-client relationship, the other circumstances alleged — that defendants prepared the deed of trust under an agreement to include all the lots listed in the offer to purchase but without justification failed to include some of them— clearly state an enforceable claim for relief under theories of both *392 breach of contract and negligence. Shrinking the circumstances alleged even further, the allegation that defendants undertook to draw the deed of trust in accordance with the terms of the sale and without justification failed to do so, also states an enforceable claim since even an unobligated, disinterested volunteer can be liable for improperly performing a service or task undertaken. These claims being inherent in the comprehensive claim alleged and readily discernible from reading the complaint, it was not necessary to label them with a nonprivity or other theory of some kind. For legal rights are based upon circumstances, not theories, and the circumstances alleged, if proven, would entitle plaintiff to recover under either of the so-called theories stated by the majority. Nor is it legally significant that plaintiff did argue this at the hearing, as the sufficiency of a pleading is not determined by argument, but by its content.