Thum v.O’Dea, No. 39-2-14 Bncv (Wesley, J., June 24, 2014).


[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]


                                                     STATE OF VERMONT
SUPERIOR COURT                                                                                                  CIVIL DIVISION
Bennington Unit                                                                                         Docket No. 39-2-14 Bncv
                                               Thum et al vs. O'Dea et al
                                             ENTRY REGARDING MOTION

Count 1, Malpractice - Attorney (39-2-14 Bncv)
Count 2, Malpractice - Attorney (39-2-14 Bncv)

Title:                Motion to Dismiss (Motion 1)
Filer:                Joseph O'Dea
Attorney:             Gregory S. Clayton
Filed Date:           March 17, 2014

Response filed on 06/09/2014 by Attorney Robert F. O'Neill for Plaintiff Tiffany Cobb Morgan

The motion is DENIED.

               Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss

       Plaintiffs sue Defendants for legal malpractice and consumer fraud. According to the
complaint, Joseph O’Dea represented the estate of Mildred Cobb Thum as its executor and
attorney. O’Dea erred in his assessment of taxes due and the error caused the estate to incur
$117,000 in interest and penalties. After realizing his error, O’Dea told the Plaintiffs the Internal
Revenue Service may waive the penalties. The IRS declined to waive the penalties.

        On March 17, 2014, Defendants moved to dismiss for lack of subject matter jurisdiction
and failure to state a claim. Defendants argued the civil division lacks subject matter jurisdiction
to hear this case because all matters related to the settlement of estates must be addressed by
the probate division. Defendants further argued Plaintiffs are not the real party in interest to
bring a claim; instead, Defendants believe the Estate should bring a claim. Finally, Defendants
argue Plaintiffs cannot use errors in professional judgment as the basis for a consumer fraud
claim. Plaintiffs opposed the motion to dismiss on June 9, 2014.

        The Court disfavors and rarely grants motions to dismiss. See Bock v. Gold, 2008 VT
81, ¶ 4, 184 Vt. 575. The Court uses motions to dismiss to evaluate the law in a pleading.
Powers v. Office of Child Support, 173 Vt. 390, 395 (2002). Accordingly, the Court will only grant
a motion to dismiss when there are “no facts or circumstances, consistent with the complaint
that would entitle Plaintiff to relief.” Bock, 2008 VT 81, ¶ 4. For this motion, the Court assumes
the truth of all facts offered by the non-moving party. Id.

       Civil division has jurisdiction over all civil actions and may hear cases that are not part of
the subject matter jurisdiction of another division. 4 V.S.A. § 31(1), (5). The probate division has
exclusive jurisdiction over the settlement of estates. 4 V.S.A. § 35(2). The Vermont Supreme
Court allowed the superior court equity jurisdiction over claims brought against the
administrators of an estate. See Heirs of Friend Adams v. Administrators of Friend Adams, 22 Vt.
50, 62 (1849). More recently, the Vermont Supreme Court heard a legal malpractice claim
against an estate’s attorney in the civil division. See Merchants Trust Co. v. Peisch, 165 Vt. 7, 7
(1996). In Peisch, the Vermont Supreme Court did not raise an issue of subject matter
jurisdiction. See id.

        Under the circumstances presented, the Court has subject matter jurisdiction. Legal
malpractice claims are within the jurisdiction of the civil division. See 4 V.S.A. § 31(1), (5);
Peisch, 165 Vt. at 7. Although the probate division has exclusive jurisdiction over the settlement
of estates, this matter raises claims that are outside of a typical estate. The situation is similar
to that in Adams where the Supreme Court allowed plaintiffs to sue administrators outside of
the probate court. See 22 Vt. at 62. The situation is also similar to Peisch, where the Supreme
Court would have dismissed the claims had the superior court lacked subject matter
jurisdiction. See 165 Vt. at 7.

        The Court rejects Defendant’s claim that Plaintiffs lack standing. Plaintiffs are the real
parties in interest to bring suit against Defendants. Ordinarily, the executor must sue to recover
damages against the estate. See Mason v. Hicks, 76 Vt. 287, 288 (1904). Heirs may sue when the
executor has refused to sue. See Marsh v. Marsh, 78 Vt. 399, 403 (1906). This case presents an
odd situation because the heirs seek to sue a former executor. The Court will not require the
heirs to show the executor refused to sue himself, particularly as Defendant has now resigned.
On a motion to dismiss, the Court will assume the new executor made this refusal. See Bock,
2008 VT 81, ¶ 4. Assuming the new executor refused to sue, Plaintiffs may bring this action. See
Marsh, 78 Vt. at 403.

        Finally, the Court considers if Plaintiffs may sue Defendants for consumer fraud.
Plaintiffs may not sue an attorney for consumer fraud based on an incorrect legal opinion.
Webb v. LeClair, 2007 VT 65, ¶¶ 21–22, 182 Vt. 559. On the other hand, plaintiffs may sue an
attorney for consumer fraud based on “[t]he commercial, entrepreneurial aspects of the
practice of law include advertising, billing and collection practices, fee arrangements, and
methods of obtaining, retaining and dismissing clients.” Kessler v. Loftus, 994 F.Supp. 240, 243
(D. Vt. 1997); see also Webb, 2007 VT 65, ¶ 22 (adopting Kessler). Here, the basis for Plaintiffs’
claims against Defendants is O’Dea’s alleged legal errors. The claims do not relate to how O’Dea
ran his business. See Kessler, 994 F.Supp. at 243. The alleged errors plainly support the claim for
legal malpractice but do not give rise to a claim for consumer fraud. See Webb, 2007 VT 65, ¶¶
21–22. Therefore, the Court will dismiss the claim for consumer fraud.

Order

       The Court GRANTS in PART and DENIES in PART Defendants’ motion to dismiss. The
Court GRANTS the motion in regard to Plaintiffs’ claim for consumer fraud (Count II). The Court
DENIES the motion in regard to the claim for professional malpractice (Count I).

So ordered.

Electronically signed on June 23, 2014 at 04:59 PM pursuant to V.R.E.F. 7(d).
______________________________________
John P. Wesley
Superior Court Judge




Notifications:
Robert F. O'Neill (ERN 2991), Attorney for Plaintiff Robert Thum
Robert F. O'Neill (ERN 2991), Attorney for Plaintiff Carl Thum
Robert F. O'Neill (ERN 2991), Attorney for Plaintiff David Thum
Robert F. O'Neill (ERN 2991), Attorney for Plaintiff Eric Thum
Robert F. O'Neill (ERN 2991), Attorney for Plaintiff Frank Thum
Robert F. O'Neill (ERN 2991), Attorney for Plaintiff Tiffany Cobb Morgan
Gregory S. Clayton (ERN 1716), Attorney for Defendant Joseph O'Dea
Gregory S. Clayton (ERN 1716), Attorney for Defendant Joseph O'Dea
David A. Boyd (ERN 4578), Attorney for party 1 Co-Counsel
David A. Boyd (ERN 4578), Attorney for party 2 Co-Counsel
David A. Boyd (ERN 4578), Attorney for party 3 Co-Counsel
David A. Boyd (ERN 4578), Attorney for party 4 Co-Counsel
David A. Boyd (ERN 4578), Attorney for party 5 Co-Counsel
David A. Boyd (ERN 4578), Attorney for party 6 Co-Counsel

wesley
