Citation. Hotz v. Minyard, 304 S.C. 225, 403 S.E.2d 634, 1991)
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Brief Fact Summary.
Appellant brought suit against her father’s attorney alleging breach of fiduciary duty for his failure to disclose the existence of a second will executed by her father.
Synopsis of Rule of Law.
A fiduciary relationship exists when one has a special confidence in another so that the latter, in equity and good conscience, is bound to act in good faith.
On October 24, 1984, Dobson, Respondent, a South Carolina Lawyer, drafted decedent’s will. Decedent had a daughter, Judy, and a son, Tommy. Decedent owned two automobile dealerships, the Greenville Dealership and the Anderson Dealership. In decedent’s first will he left the Greenville Dealership to his son, gave other family members bequests totaling $250,000, and divided the remainder of his estate equally between his son and a trust for his daughter, Appellant. The same afternoon that decedent executed his first will, he returned to respondent’s office and signed a second will containing the same provisions as the first will except that it gave real estate upon which the Greenville Dealership was located to Tommy outright. Decedent instructed respondent not to disclose the existence of the second will and specifically directed that Appellant not be told about it. In January 1985, appellant called respondent requesting a copy of the will her father had signed the morn
ing of October 24, 1984 and with decedent’s permission, respondent discussed the first will with appellant in detail. Respondent explained decedent’s intent to provide for appellant as he had for his son when and if she became capable of handling a dealership and respondent made notations to this effect on the copy of the will he discussed with appellant. Appellant claims respondent told her the will she was shown was in actuality decedents last will and testament and appellant believed the handwritten notes were part of the will. Respondent denies making that express statement but admits that he never told her the will he discussed with appellant had been revoked. In January 1986 decedent was admitted to the hospital for various health problems and while decedent was ill, appellant and her brother decided appellant would care for decedent while he temporarily ran the Anderson Dealership. Appellant questioned her brother’s financial dealing while he was running the Anderson Deale
rship and consulted an Anderson law firm regarding her concerns. Respondent was granted summary judgment on the cause of action for breach of fiduciary duty. Appellant appeals.
Whether the decedent’s attorney breached his fiduciary duty to Appellant by following decedent’s wishes and not disclosing the existence of a second will to Appellant?
Reversed in part and affirmed in part.
Summary judgment was improperly granted because there was a factual issue presented as to whether the attorney breached his fiduciary duty to Appellant. Although the attorney represented the decedent and not the appellant, he did have an on-going attorney/client relationship with Appellant and there’s evidence that Appellant had a special confidence in him. Although the attorney owed no duty to disclose the existence of decedent’s second will, he owed Appellant the duty to deal with her in good faith and not actively misrepresent the first will.
The grant of summary judgment is reversed on the cause of action for vicarious liability against Law Firm because there’s no evidence he was acting in his capacity as an accountant on the occasion in question since he was giving legal advice and no rendering accounting services.
An attorney/client relationship is by nature a fiduciary one.