No. 97,855
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JANET J. JEANES, as Administrator C.T.A
of the ESTATE of MAXINE J. ANTON, Deceased,
Appellant,
v.
BANK OF AMERICA, N.A.;
BANK OF AMERICA CORPORATION;
RUDY WRENICK; and SHARON KUNARD,
Appellees.
SYLLABUS BY THE COURT
1. A legal malpractice claim may be brought as a breach of contract claim when an act complained of is a breach of specific terms of the contract without any reference to the legal duties imposed by law upon the relationship created thereby. Nevertheless, when the essential claim of the action is a breach of duty imposed by law upon the relationship of attorney and client and not of the contract itself, the action is in tort.
2. A plaintiff may not frame a contract action as a tort action or a tort action as a contract action merely to avoid the legal limitation of one particular cause of action.
3. The nature of a claim–whether it sounds in tort or contract–is determined from the pleadings and from the real nature and substance of the facts therein alleged.
4. A survival action allows the personal representative to recover damages accrued by the injured party between the date of injury and death for the benefit of the decedent's estate.
5. In Kansas, a cause of action in tort accrues when the damages results. If a decedent dies before damages occur, a cause of action in tort does not survive the decedent.
6. A cause of action in tort does not survive in favor of the personal representative of a decedent unless the cause of action has accrued to the decedent during his or her lifetime.
7. A fiduciary is not responsible to another party for acts or omissions occurring after the other party expressly relieves the fiduciary of the obligation to perform.
8. When the other party to a contract has actual knowledge of the agency and the identity of the principal, the agent will be relieved from liability, whether the agent makes the disclosure or the other party acquires the knowledge from some other source.
Appeal from Shawnee District Court; DAVID E. BRUNS, judge. Opinion filed August 29, 2008. Affirmed in part, reversed in part, and remanded with directions.
John R. Hamilton, of Hamilton, Laughlin, Barker, Johnson & Watson, of Topeka, for appellant.
Tom Haney and Thomas E. Beall, of Henson, Clark, Hutton, Mudrick & Gragson, LLP, of Topeka, for appellee Sharon Kunard.
Curtis E. Woods and Dolly R. Livingston, of Sonnenschein Nath & Rosenthal LLP, of Kansas City, Missouri, for appellee Rudy Wrenick.
Before HILL, P.J., PIERRON and GREEN, JJ.
GREEN, J.: Janet J. Jeanes appeals from a summary judgment granted in favor Sharon Kunard and Rudy Wrenick in Jeanes' negligence, breach of fiduciary duty, and breach of contract claims. On appeal, Jeanes contends that the trial court improperly determined that the claims against Kunard sounded in tort. We disagree. In addition, Jeanes asserts that the trial court inappropriately granted summary judgment in favor of Kunard on her tort claims against Kunard. We disagree. Jeanes further maintains that the trial court erred in granting summary judgment to Wrenick on Jeanes' breach of fiduciary duty claim. We agree. Finally, Jeanes contends that the trial court erred in granting summary judgment to Wrenick on Jeanes' breach of contract claims. We disagree. Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings in accordance with this opinion.
On June 13, 1991, Maxine J. Anton created a living trust agreement entitled the "Maxine Jeanes Anton Living Trust." Under the living trust, Anton was to receive income from the trust assets for life. Upon Anton's death, the living trust set aside some of the assets to fund charitable remainder trusts for Anton's stepson and Anton's personal assistant. Nevertheless, the vast majority of the assets were to pass to Janet J. Jeanes, Anton's niece and sole heir. Bank IV, the predecessor of Bank of America (the Bank), was named successor trustee of Anton's living trust. Anton also had two unitrusts, for which the Bank was trustee.
Anton entered into a written agency agreement with the Bank on July 5, 1991. Under the agency agreement, Anton deposited her common stock and securities with the Bank, including her common stock in Exxon Mobil Corporation. Anton served as trustee of her living trust, and the Bank served as agent for the trustee. According to the agency agreement, the Bank performed certain tasks for Anton, including the collection of dividends and interest for deposit in Anton's accounts; the collection of proceeds from the sale of assets as directed by Anton for deposit in Anton's accounts; and the paying of bills, debts, and other obligations such as charitable donations. In addition, the Bank collected financial and tax information and delivered it to Anton's accountant for preparation of Anton's tax returns. The agency agreement stated that the Bank would charge a fee for these services "in accordance with the schedule agreed upon by the Principal and Agent in writing." Anton's primary source of income was dividend and interest income, and most of that income came from her Exxon Mobil stock.
Anton first met with Sharon Kunard, a Topeka attorney, in 1991 to discuss setting up a trust for one of Anton's employees. At Anton's request, Kunard drafted trust documents and a will reflecting the wishes of Anton as expressed to Kunard. The last time Kunard was contacted by Anton for legal services was in June 2000. Anton's will, living trust, unitrusts, and all amendments thereto were prepared by Kunard.
In 1998, Rudy Wrenick was assigned to Anton's account and served as Anton's contact at the Bank. Wrenick holds the title of president of the Topeka branch of the Bank; he is a senior vice president and trust officer of the Bank.
Anton died on April 25, 2003. Anton's estate tax return indicated that Anton had a gross estate of $39,491,806.00. Anton's estate paid estate and inheritance taxes on January 24, 2004, which amounted to approximately half of the estate.
On November 24, 2004, Jeanes, in her capacity as administrator of Anton's estate, sued the Bank; Bank of America Corporation (BAC); Wrenick; and Kunard. The petition alleged claims of negligence and breaches of fiduciary duty, contract, and trust against the Bank, BAC, and Wrenick. In addition, Jeanes alleged negligence and breaches of fiduciary duty and contract claims against Kunard. These claims were based on the alleged failure of the appellees to protect Anton's assets from tax liability upon her death. Specifically, Jeanes alleged that setting up a family limited partnership would have saved over $6 million in taxes. Jeanes later amended the petition to include claims of improperly charged fiduciary fees.
The Bank, BAC, and Wrenick moved for summary judgment. Kunard moved separately for summary judgment. The trial court granted summary judgment on all claims in favor of BAC, Wrenick and Kunard. The trial court noted that Jeanes had withdrawn her claims against BAC. The trial court later filed journal entries modifying its rulings, adding that its decisions granting summary judgment to Kunard and Wrenick constituted final judgments under K.S.A. 60-254(b). Jeanes timely appeals the grant of summary judgment to Wrenick and Kunard.
Did the trial court err in ruling that the claims against Kunard sounded in tort?
Jeanes argues that the trial court erred when it failed to consider Jeanes' separate breach of contract claim against Kunard and instead determined that Jeanes' claims against Kunard sounded only in tort. Jeanes claims that the evidence showed Anton had a contract with Kunard to give estate planning advice and Kunard breached that contract by failing to furnish any estate planning advice.
Turning to our standard of review, the standards for summary judgment are well known and can be stated as follows:
"'"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied."' [Citations omitted.]" Robbins v. City of Wichita, 285 Kan. 455, 460, 172 P.3d 1187 (2007).
Additionally, the determination of whether a tort and contract claim can be brought in the same case is a question of law, which this court reviews de novo. See Bittel v. Farm Credit Svcs. of Central Kansas, P.C.A, 265 Kan. 651, 660, 962 P.2d 491 (1998).
In analyzing this issue, the trial court relied on our Supreme Court's decision in Canaan v. Bartee, 276 Kan. 116, 133, 72 P.3d 911, cert. denied 540 U.S. 1090 (2003), where our Supreme Court stated:
"'When there is both a contractual relationship and a relationship that gives rise to a legal duty, such as the attorney-client relationship, the breach of that duty and not of the contract itself gives rise to a tort action. . . . If the gravamen of the action is a breach of the legal duty and not of the contract itself, the action is in tort. [Citation omitted.]"
In determining whether Jeanes' claims sounded in contract or in tort, the trial court considered the expert opinions procured by Jeanes. The trial court noted that the opinions included statements explaining the legal duties Kunard owed to Anton in connection with the estate planning services Kunard had provided. Jeanes' expert opined that Kunard was obligated to Anton to "use reasonable and ordinary care and diligence "; to use her "best judgment"; and to exercise that "reasonable degree of learning, skill, and experience which is ordinarily possessed by other attorneys in the community who practice estate planning." Moreover, regarding the agreement between Kunard and Anton, Jeanes' expert stated that if Kunard had intended to limit the scope of her estate planning services to Anton, Kunard "had the duty to explain" to Anton the consequences of the limitation and had "the duty to recommend" that Anton obtain other estate planning counsel.
Viewing this evidence in the light most favorable to Jeanes, the trial court determined that Jeanes' claims were based on allegations that Kunard had failed to exercise "'that degree of learning, skill, and care that a reasonably competent lawyer would use in similar circumstances.'" Thus, the trial court determined that the claims against Kunard sounded in tort, and the court granted summary judgment in favor of Kunard on the contract claim.
Because an action for negligence against an attorney relies on a contract for employment, a legal malpractice claim generally contains elements of both tort and breach of contract. Pancake House, Inc. v. Redmond, 239 Kan. 83, 85-86, 716 P.2d 575 (1986). As a result, a legal malpractice claim can be brought as a breach of contract claim when "the act complained of is a breach of specific terms of the contract without any reference to the legal duties imposed by law upon the relationship created thereby." 239 Kan. at 86. Nevertheless, when "the essential claim of the action is a breach of duty imposed by law upon the relationship of attorney/client and not of the contract itself, the action is in tort. [Citation omitted.]" 239 Kan. at 86. A plaintiff may not frame a contract action as a tort action or a tort action as a contract action merely to avoid the legal limitation of one particular cause of action. Malone v. University of Kansas Medical Center, 220 Kan. 371, 376, 552 P.2d 885 (1976).
Jeanes argues that her breach of contract claim is different from her malpractice claim, that the trial court erred in blending the two claims, and that she should be allowed to bring both claims against Kunard. Jeanes cites Pizel v. Zuspann, 247 Kan. 54, 72-73, 795 P.2d 42, modified 247 Kan. 699, 803 P.2d 205 (1990), for the proposition that a tort and breach of contract claim can both be brought in the same case. In Pizel, however, the court noted that the case had been submitted to the jury on both contract and tort theories. The Pizel court pointed out that the jury had found no breach of contract. The court further noted that the jury had based its verdict on negligence. The Pizel court analyzed whether the negligence cause of action had accrued in order to determine if it was barred by the applicable statute of limitations. Our Supreme Court, however, did not analyze whether it had been proper to raise a contract claim under the facts of that case. See 247 Kan. at 73-78.
"The nature of a claim–whether it sounds in tort or contract–is determined from the pleadings [citation omitted] and from the real nature and substance of the facts therein alleged. [Citation omitted.]" Malone, 220 Kan. at 374. Our Supreme Court analyzed whether both tort and breach of contract claims were warranted in KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 110, 936 P.2d 714 (1997). In KPERS, the court carefully read the allegations set forth in the petition. Specifically, the breach of contract claim, which was based on an attorney-client employment contract, stated that the law firm had breached its contract by failing to properly advise the client. The court determined that the claims made under the breach of contract count sounded in tort and did not set forth contractual claims. 262 Kan. at 113-15.
In contrast, an attorney's conduct was determined to constitute a breach of contract in Juhnke v. Hess, 211 Kan. 438, 506 P.2d 1142 (1973). In Juhnke, the client sued his attorney for failing to file a timely notice of appeal. In the petition, the client alleged that he had employed the attorney to file an appeal from a decision, but alleged that the attorney had failed to do so within the prescribed period. The court stated that the client had pleaded breach of a specific contract: that the attorney had failed to do that which the attorney had expressly agreed to do. 211 Kan. at 441; see also Tamarac Dev. Co. v. Delamater, Freund & Assocs., 234 Kan. 618, 622-23, 675 P.2d 361 (1984) (Because the cause of action was based on an oral contract calling for a specific result, the 3-year statute of limitations applied instead of the 2-year statute of limitations based on negligence.).
In the professional negligence portion of her petition, Jeanes alleged that Kunard had agreed to advise Anton concerning estate tax planning and other tax matters, including working with the Bank on estate planning, estate management, and tax matters. The petition then stated that Kunard was negligent or reckless in failing to perform certain acts that would have reduced the ultimate tax liability of Anton's estate after her death. In the breach of contract portion of the petition, Jeanes stated that Kunard and Anton had entered into an attorney-client and a contractual relationship. Jeanes alleged that Kunard had failed to recommend and to implement estate tax planning measures that would have allowed the estate to avoid a substantial estate tax liability.
Yet, unlike the Juhnke decision, Jeanes' petition contained no allegation that Kunard had failed to do what she had expressly agreed to do, such as filing a notice of appeal, which was the issue in Juhnke. On appeal, Jeanes maintains that Kunard breached her contract with Anton by not giving her any estate-planning advice. Jeanes' assertion about Kunard's failure to give Anton any estate-planning advice is nebulous. To illustrate, Jeanes does not point to any evidence or language in her petition that states that Kunard had failed to do something which she had specifically agreed or contracted to do.
Moreover, under her negligence count, the petition stated that Kunard "worked with and consulted the Bank defendants with respect to estate planning and estate management on behalf of Ms. Anton, including with respect to tax matters." Similarly, under the breach of contract claim, the petition stated that Kunard had failed to implement estate planning measures. Particularly, there was no allegation that Kunard had agreed to implement a particular tax-saving method and had failed to do so. The breach of contract claim hinges on the same allegations made in the negligence claim: that Kunard had failed to satisfy her legal duty to exercise ordinary skill and knowledge in giving legal advice. See Canaan, 276 Kan. at 120. Jeanes' petition was not based on a breach of an alleged agreement of the parties. Instead, it was based on a breach of an alleged legal duty.
Consequently, the trial court correctly determined that the evidence did not support a breach of contract claim and that the gravamen of Jeanes' claims against Kunard sounded in tort. The trial court properly granted summary judgment on the breach of contract claim in favor of Kunard.
Did the trial court err in granting summary judgment on the tort claims against Kunard because they had accrued after Anton's death?
Jeanes argues that the trial court erred in failing to find the Kansas survival statute, K.S.A. 60-1801, applied to allow her to bring tort claims on behalf of Anton's estate for legal malpractice against Kunard. Because the trial court granted summary judgment in favor of Kunard on Jeanes' tort claims, the summary judgment standard of review applies. See Robbins, 285 Kan. at 459-60. Moreover, to the extent the resolution of this issue requires interpretation of a statute or other questions of law, this court reviews those issues de novo. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
Legal malpractice requires a plaintiff to prove the following: (1) a duty of the attorney to exercise ordinary skill and knowledge; (2) a breach of that duty; (3) a causal connection between the breach of duty and the resulting injury; and (4) an actual loss or damage. Canaan, 276 Kan. at 120.
Jeanes argues that her tort claims were properly brought by the estate because the alleged legal malpractice actually caused harm to the estate. She also argues that the estate's claims survive under K.S.A. 60-1801 because they would have survived at common law.
Whether a particular cause of action survives the death of a party is to be determined by K.S.A. 60-1801. Nicholas v. Nicholas, 277 Kan. 171, 189, 83 P.3d 214 (2004) (citing Gross v. VanLerberg, 231 Kan. 401, 405, 646 P.2d 471 [1982]). K.S.A. 60-1801 states:
"In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, or for death by wrongful act or omission, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same."
The trial court pointed out that K.S.A. 60-1801 provides for survival of "causes of action for . . . an injury to the . . . personal estate." Finding that the statute did not specifically address the issue of when a claim must have accrued in order to survive, the trial court relied on common law in deciding when a personal representative may recover damages for injury to the personal estate.
Relying on Mason v. Gerin Corp., 231 Kan. 718, 721, 647 P.2d 1340 (1982), the trial court determined that even if the legal malpractice claim was viewed as an injury to the personal estate of the decedent, the decedent's personal representative could only recover damages that accrued between the date of injury and the death of the decedent. Because the damages alleged by Jeanes were the payment of excess estate taxes, the trial court determined that these damages accrued after Anton's death. Thus, the trial court found that the tort claims did not survive as a matter of law and that Kunard was entitled to summary judgment on those claims.
Now we turn our attention once again to Jeanes' argument. Jeanes argues that the rule from Mason, which the trial court relied on in determining that postdeath damages could not be recovered, is distinguishable. In Mason, 231 Kan. at 721, our Supreme Court stated: "A survival action allows the personal representative to recover damages accrued by the injured party between the date of injury and death for the benefit of the decedent's estate." Jeanes asserts that this statement is dicta because the Mason court was concerned with whether the statute of limitations had run on a wife's wrongful death claim under K.S.A. 60-1901 et seq.
Jeanes further points out that the Mason court relied on Flowers, Administratrix v. Marshall, Administrator, 208 Kan. 900, 494 P.2d 1184 (1972), for the rule when a particular cause of action survives the death of a party. In Flowers, the plaintiff sought to bring a claim for loss of earnings or earning capacity under the survival statute (K.S.A. 60-1801) in order to bypass the recovery cap on a wrongful death claim. Our Supreme Court held that "in an action under the survival statute to recover damages for personal injury to plaintiff's decedent who died as a result of such injury, recovery may not be had for loss of earnings or earning capacity beyond the time of death." (Emphasis added.) 208 Kan. at 908. Jeanes, however, argues that because K.S.A. 60-1801 does not specifically limit recovery of damages to property while a person is alive, recovery of postdeath damages should be recoverable under Restatement (Second) of Torts § 917 (1964).
Nevertheless, our Supreme Court adopted and favorably cited the Flowers decision in Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 337, 552 P.2d 1363 (1976) (The legislature in enacting the Kansas Automobile Injury Reparations Act dealt with two separate and distinct types of actions: the first, K.S.A. 60-1801, a survival action authorizing recovery of damages accruing between the injury and the death of the injured person; the second, K.S.A. 60-1901, a wrongful death action for the exclusive benefit of all the heirs who have sustained loss from damages accruing after death.).
In addition, the trial court relied on Price, Administrator v. Holmes, 198 Kan. 100, 422 P.2d 976 (1967), in making its decision. In Price, the court held that to determine whether a particular cause of action survived, one must first determine when the cause of action accrued. The Price court stated that a cause of action in tort arising out of the faulty execution of a will did not accrue until damages had occurred. 198 Kan. at 104-06. Moreover, the court stated that if the decedent died before damages had occurred, a cause of action in tort did not survive him or her. 198 Kan. 105-06. Indeed, "[a] cause of action in tort does not survive in favor of the personal representative of a deceased person unless the same has accrued to the decedent during his [or her] lifetime." 198 Kan. 100, Syl. ¶ 4.
In Price, an action was filed to recover damages suffered by plaintiff's decedent because of a faulty execution of a will. The Price court, in applying K.S.A. 60-1801, held that the faulty execution of the will amounted to a breach of warranty. Moreover, the court held that the breach of warranty survived the death of the defendant decedent under K.S.A. 60-1801 and allowed the administrator of the plaintiff decedent to maintain the action against the defendant decedent. 198 Kan. at 106-07. In short, Price states that a tort action accrues when the injury occurs, but a contract action accrues when the breach occurs. 198 Kan. at 104-06.
On the other hand, Jeanes' challenges the trial court's determination that these tort claims cannot be brought by the estate because they did not accrue during Anton's lifetime. Jeanes argues that the estate's claims should be allowed because the harm in this case was suffered before Anton's death and the excessive taxes were simply an escalation of damages. Basically, Jeanes argues that Anton could have sued Kunard for negligent estate planning while she was alive, possibly receiving as damages a refund of her attorney fees paid to Kunard and attorney fees incurred in restructuring her estate plan. Moreover, Jeanes contends that because such a cause of action existed while Anton was alive, Anton's estate's cause of action for recovery of excessive estate taxes survived Anton's death.
Jeanes' argument comes directly from the Texas Supreme Court's decision in Belt v. Oppenheimer, Blend, Harrison & Tate, 192 S.W.3d 780 (Tex. 2006). In Belt, two sisters were executors of their father's estate. The two sisters, in their capacity as executors, sued the attorneys who had prepared their father's will. They alleged that the attorneys were negligent in drafting the will and in advising their father on asset management. Specifically, the executors maintained that the estate had incurred over $1,500,000 in tax liability that could have been avoided by competent estate planning.
The trial court granted the attorneys' motion for summary judgment on the grounds that the estate planners owed no duty to the personal representatives of the deceased client's estate. The court of appeals affirmed, relying on a previous precedent. In the previous case, the court of appeals had held that an estate-planning malpractice claim did not accrue during the decedent's lifetime and, therefore, did not survive the decedent because the estate's injuries did not arise until after the decedent's death. Nevertheless, the Texas Supreme Court reversed. 192 S.W.3d at 789. The court held that the estate's personal representatives could maintain a legal malpractice action against the decedent's attorneys. 192 S.W.3d at 789.
In reaching its decision, the Belt court did not focus on the fact that the damages had occurred after the decedent's death. Instead, the court relied on the fact that the attorneys' alleged negligence occurred before the decedent's death: If the decedent had discovered the injury before death, the decedent could have sued the estate planners, possibly recovering the fees paid to them or the fees incurred in restructuring the estate to minimize tax liability. 192 S.W.3d at 786. The Belt court determined that "if the injury occurs during the client's lifetime, a claim for estate-planning malpractice survives the client's death. [Citation omitted.]" 192 S.W.3d at 786. It would seem that the Belt court believed that if there was an "actionable wrong" suffered by the decedent during his lifetime, his estate should be allowed to bring a claim after his death. 192 S.W.3d at 786.
Nevertheless, Belt is distinguishable from this case based upon Kansas law. For example, Kansas courts allow a beneficiary of a will to sue an attorney who has negligently drafted a will in certain situations. See Pizel, 247 Kan. at 67-68; Johnson v. Wiegers, 30 Kan. App. 2d 672, 674-78, 46 P.3d 563, rev. denied 274 Kan. 1112 (2002). In contrast, whether a beneficiary could sue in the alternative was important to the Belt court when it decided that a representative of an estate could bring a negligence claim against an attorney alleging the payment of excessive estate taxes. 192 S.W.3d at 783-89.
In particular, one of the reasons for allowing the executors to pursue a recovery in Belt was that in Texas, a beneficiary could not sue the decedent's attorney. The Belt court noted that "precluding both beneficiaries and personal representatives from bringing suit for estate-planning malpractice would essentially immunize estate-planning attorneys from liability for breaching their duty to their client." 192 S.W.3d at 789. This is not the case in Kansas. Because beneficiaries can sue attorneys, Kansas attorneys may still be held liable to potential beneficiaries for malpractice. Pizel, 247 Kan. at 67-68.
Jeanes, however, attempts to distinguish her case from Pizel by maintaining that the estate's representative can bring the claims because the estate had been harmed. In adopting California's test for determining whether a beneficiary could recover against an attorney who has negligently drafted a will or trust document, the Pizel court quoted from a California Supreme Court case:
"'In some ways, the beneficiary's interests loom greater than those of the client. After the latter's death, a failure in his testamentary scheme works no practical effect except to deprive his intended beneficiaries of the intended bequests. Indeed, the executor of an estate has no standing to bring an action for the amount of the bequest against an attorney who negligently prepared the estate plan, since in the normal case the estate is not injured by such negligence except to the extent of the fees paid; only the beneficiaries suffer the real loss.' [Citation omitted.]" (Emphasis added.) 247 Kan. at 66.
Jeanes argues that her claims do not involve the normal case where the estate is not injured. Instead, she contends that this is a case where the estate itself was harmed by the attorney's alleged negligence.
Even if we accept Jeanes' assertions that her tort claims for legal malpractice are either a cause of action that involves injury to Anton's personal estate under K.S.A. 60-1801 or a cause of action that would have survived at common law, the tort claims must have accrued during Anton's lifetime to survive. Mason, 231 Kan. at 721. Jeanes cites Sizemore v. Swift, 79 Or. App. 352, 719 P.2d 500 (1986), in support of her argument that the legal malpractice claim survived Anton's death. This case relied on by Jeanes, however, is clearly distinguishable.
In Sizemore, a father had been receiving payments from a spendthrift trust for which the father was the beneficiary. When the father died, it was determined that the spendthrift trust included no provision for its distribution on the father's death. The father's son and sole heir had an attorney file a declaratory judgment action, which ultimately declared