McGregor v. Friedrichs v. Mullen CV-98-124-M 04/15/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Douglas McGregor and Karen McGregor, Plaintiffs and Third-Party Plaintiffs

v. Civil No. 98-124-M

James J. Friedrichs, Esg., Defendant and Third-Party Plaintiff

v.

Teresa Mahoney Mullen, Esg.; and Law Offices of Pamela D. Albee Third-Party Defendants

O R D E R

Defendant and third-party plaintiff James J. Friedrichs,

Esq., sues third-party defendants Teresa Mullen, Esq., and the

Law Offices of Pamela Albee, asserting two claims: negligent

misrepresentation and contribution (mislabeled as "Count I:

Negligent Misrepresentation"). The third-party defendants move

to dismiss both counts.

The third-party complaint's negligent misrepresentation

count seems facially meritless. In the underlying case Mr.

Friedrichs, an attorney, is being sued for malpractice by clients

who hired him to represent their interests in connection with the

purchase of waterfront property in Wolfeboro, New Hampshire.

Attorney Friedrichs concedes he was retained to review the

purchase and sale agreement, perform a title search, review the

deed, and handle the closing. Upon searching the title. Attorney

Friedrichs learned that the sellers had previously sold a portion

of the property his clients apparently thought they were buying. So, he knew or had very good reason to know that the sellers

could not convey title to that portion of the property. The

proposed deed from sellers to Friedrichs' clients, prepared by

Attorney Mullen, did not reflect that prior sale in the

description of the property to be conveyed. Friedrichs did not

recognize the error when he reviewed the draft deed. His clients

went forward with the closing to their detriment.

Upon discovering the defect in their title to the property.

Attorney Friedrichs' clients sued him. He, in turn, sued

Attorney Mullen (and her firm), claiming that she "negligently

misrepresented" material facts to him (i.e., the description of

the property to be conveyed), upon which misrepresentations he

"justifiably relied" to his own detriment. He also claims that

Attorney Mullen and her firm would be jointly liable to his

clients (who are not suing Attorney Mullen, her clients, or her

firm), if he is found liable to them, and so brings the

contribution claim.

The contribution claim is probably not premature under New

Hampshire law, since plaintiffs loosely indicated their consent

to its filing. See Connors v. Suburban Propane Company,

(D.N.H. 1996); N.H. Rev. Stat. Ann. Ch. 507:7-

g(IV)(c). Nevertheless, both the contribution claim and the

negligent misrepresentation claim fail to state causes of action

upon which relief can be granted.

Attorney Friedrichs asserts, in rather conclusory fashion,

that Attorney Mullen, as counsel to the sellers, owed him, as

2 buyers' counsel, a duty to present a proposed deed for his review

that accurately described the property her clients were able to

convey. He also claims (rather surprisingly) that he had a right

to justifiably rely on the accuracy of the property description

in the draft deed, without the need for him to actually review

it. That is, he seems to believe that he could justifiably

accept the draft description as correct, notwithstanding his own

obligation to search the title, his actual knowledge of the

"defect" in sellers' title, and his own independent duty to

professionally review the draft deed to insure that it precisely

described the property which the sellers were in a position to

convey. After all, the buyers retained (and, presumably, were

paying) Attorney Friedrichs' to protect against the very harm

they suffered.

Attorney Friedrichs also seems to suggest that his own

alleged negligence in failing to review the draft deed (or

reviewing it in a manner that failed to meet the reguisite

standard of care) did not constitute a breach of duty resulting

in harm to his clients distinct from any harm occasioned by

sellers' counsel's drafting negligence. As Attorney Friedrichs

sees it, he and sellers' counsel are jointly liable to his

clients if he is liable.

There are no unigue or specific facts pled by Attorney

Friedrichs which might suggest an unusual or special relationship

between him and Attorney Mullen, sellers' counsel. The third-

party complaint describes a rather ordinary real estate

3 transaction. As is customary, sellers' counsel provided buyers'

legal counsel with a draft deed for review, so buyers' counsel

could assure that the buyers' legal interests were fully

protected. Under the circumstances, as the buyers' attorney,

Friedrichs can hardly be heard to claim a right to "justifiably

rely" on the accuracy of Attorney Mullen's description of

property to be conveyed in the draft deed when the very purpose

of presenting the draft deed to him was to provide him with an

opportunity to professionally review it to insure its accuracy

and satisfactory character.

The point is both intuitive and self-evident, and extensive

legal analysis beyond that set out in the third-party defendants'

supporting memorandum is not warranted. Attorney Friedrichs

surely knew that his clients had not retained him simply to rely

on the accuracy and legal sufficiency of whatever sellers'

counsel drafted or proposed. Besides, there is no guestion that

Attorney Friedrichs was independently obligated to review the

deed in accordance with the applicable professional standard of

care, specifically to discover and remedy any descriptive errors

that might inure to the detriment of his clients. A faulty deed

description is fairly basic as drafting errors go; one easily

recognizable upon fairly superficial review and comparison to the

results of a title search (which Attorney Friedrichs had in

hand).

The short of it is this: nothing pled by Attorney

Friedrichs (even accepting all facts pled by him as true and

4 considering them in a light favorable to his position) is

sufficient to establish his justifiable reliance on the faulty

property description. His reliance on Attorney Mullen's

draftsmanship under these circumstances was neither justifiable

nor reasonable as a matter of law. Rather, Attorney Friedrichs

was duty bound to exercise independent professional care in

representing his clients' interests, and that meant independently

and carefully examining the deed and land records to assure

himself and his clients that all was in order. Attorney

Friedrichs simply had no right at all to rely upon the accuracy

of the deed description under the circumstances recited in his

third-party complaint and memorandum in opposition to the motion

to dismiss. At a minimum, it cannot be said that such reliance

was "reasonable" or "justifiable."

It is egually apparent that sellers' counsel owed no common

law duty of due care to Attorney Friedrichs or his clients, the

buyers. Her undivided loyalty, under the circumstances described

in the third-party complaint, was to her own clients — the

sellers. Buyers were represented by independent counsel, and the

buyers nowhere claim to have relied on sellers' counsel to do

Attorney Friedrichs' job with regard to protecting their legal

interests. Attorney Mullen also could expect that Attorney

Friedrichs would not blindly rely on her draftmanship, but would

actually review the deed and title search results. More

importantly, however, no special relationship between Friedrichs

and Mullen has been pled that would warrant imposition of any

5 actionable duty running from her to him relative to her

draftmanship. To the extent Attorney Friedrichs implies in his

third-party complaint that his clients were relying on sellers'

counsel to draft an accurate deed description, that reliance also

would hardly be legally justified or reasonable, since they

retained him as their counsel, to independently review the deed

description for accuracy, search the title, and otherwise protect

their discrete legal interests in connection with their purchase.

Attorney Friedrichs points to no controlling New Hampshire

law or precedent that might suggest some other result. None of

the cases cited by Attorney Friedrichs comes close to suggesting

that legal counsel might justifiably rely on opposing counsel's

deed draftmanship as being error-free, particularly where counsel

has been independently retained by the buyers to check that very

draftmanship for material errors. It is doubtful, to say the

least, that the New Hampshire Supreme Court would find such a

common law duty, or would recognize such "justifiable reliance,"

or would even remotely consider a deed drafting error by one

counsel to constitute a "negligent misrepresentation of fact" to

opposing counsel, upon which opposing counsel might justifiably

rely. It is egually unlikely that the court would conclude that

any special relationship exists between opposing counsel

warranting imposition of an actionable duty to avoid

misrepresentations of the sort identified by Attorney Friedrichs.

See generally, Stillwater Condominium Assn. et al. v. Town of

Salem,

(1995); Island Shores Condo Assn. v. Citv of

6 Concord,

(19 92); McCarthy v. Barrows,

(1978).

For the reasons given, and those set out in third-party

defendants' memorandum in support of their motion to dismiss, the

third-party complaint is hereby dismissed for failure to state

claims upon which relief can be granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge

April 15, 1999

cc: Steven M. Latici, Esg. Peter G. Beeson, Esg. Cheryl M. Hieber, Esg.

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