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In Bond v. McLaughlin, 2017
WL 728176, --- So.3d --- (Ala. 2017), the Alabama Supreme Court reversed
summary judgment for an attorney in a legal malpractice action, finding a
question of fact as to whether plaintiff could prove her “case within a
case.” In an Alabama legal malpractice
action, the plaintiff must prove that the attorney breached the standard of
care, and also that the plaintiff would have obtained a more favorable outcome
in the underlying case “but for” the attorney’s breach. This is the “case
within a case” doctrine.
The plaintiff, Mrs. Bond,
retained the attorney to file a will contest in her deceased husband’s probate
proceeding, in which an unexecuted copy of a 2001 will was submitted as a “lost
will.” Mrs. Bond contended that her husband had revoked the “lost will” by
destroying it prior to his death in 2005.
The attorney filed Mrs. Bond’s
will contest after the six-month deadline, and the will contest was dismissed as
untimely. Mrs. Bond sued the attorney for legal malpractice, arguing that she
was damaged by the admission of the “lost will” to probate.
The attorney admitted that he
failed to timely file the will contest. However, he sought and was granted
summary judgment on grounds that Mrs. Bond could not prove that she would have
prevailed in the underlying will contest because she could not prove the “lost will”
had been revoked. In other words, the attorney argued that Mrs. Bond could not
prove her “case within a case.”
On appeal, the Alabama Supreme
Court reversed summary judgment, finding that a question of fact existed as to
whether Mrs. Bond could prove her “case within a case.” Separately, the Court rejected the attorney’s
argument that res judicata principles
prevented Mrs. Bond from contesting the validity of the “lost will.”
Regarding the “case within a
case” doctrine, the Court held that at the summary judgment stage in a legal
malpractice case a plaintiff must prove by substantial evidence that she would have
obtained a different result in the underlying will contest but for the
attorney’s malpractice. However, Mrs. Bond did not have to present “undisputed
evidence or definitively prove” that the underlying result would have been
different. Instead, she must only present substantial evidence from which the
fact finder “could infer” that the result would have been different.
The Alabama Supreme Court then held that Mrs. Bond’s evidence of her husband’s prior statements of intent to revoke and replace his will was admissible as an exception to Alabama’s hearsay rule, as statements of the declarant’s memory regarding the revocation of his own will. The Court held that the testimony constituted substantial evidence from which a jury could infer that Mrs. Bond would have obtained a different result in the underlying will contest had it been timely filed.