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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 37123

MARY KILLINS SOIGNIER,

 Plaintiff-Appellant,

v.

W. KENT FLETCHER,

 Defendant-Respondent.

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Boise, April 2011 Term

2011 Opinion No. 69

Filed: June 2, 2011

Stephen W. Kenyon, Clerk

 

Appeal from the district court of the Fifth Judicial District of the State of 

Idaho, Cassia County. Hon. Michael R. Crabtree, District Judge.

The judgment of the district court is affirmed in part and reversed in part. 

Attorney fees and costs on appeal are not awarded to either party

Ellis, Brown & Shields, Chtd., Boise, and Strother Law Office, Boise, for 

Appellant. Jeffrey Strother argued.

Hawley, Troxell, Ennis & Hawley, LLP, Boise, for Respondent. Michelle 

Points argued.

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W. JONES, Justice

I. NATURE OF THE CASE

Mary K. Soignier appeals the district court’s decision to grant summary judgment to W. 

Kent Fletcher, an attorney, on her claim for legal malpractice. She asserts that Fletcher 

negligently failed to ensure that a will he prepared conveyed to her the proceeds of a trust of

which the decedent was a beneficiary until shortly before the decedent’s death. Since Fletcher 

adequately effectuated the testator’s intent as expressed in the will itself, the district court was 

correct to grant him summary judgment on the malpractice claim. However, this Court vacates 

the district court’s grant of attorney fees under I.C. § 12-120(3), as the malpractice claim in this 

case does not stem from a commercial transaction.
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II. FACTUAL AND PROCEDURAL BACKGROUND

Attorney W. Kent Fletcher represented the decedent, Zachary A. Cowan, for several 

years until Cowan’s death in October of 2006. During his lifetime, Cowan was the beneficiary of 

a trust that his mother provided for him, known as the Leonarda A. Cowan Trust (the “Cowan 

Trust”). The terms of the Cowan Trust provided that the trust would persist until Cowan reached 

age fifty, at which time it was to terminate and most of its assets were to be distributed to 

Cowan. Cowan’s fiftieth birthday was in 2003, and on March 4, 2005, he signed a Final Release 

and Discharge agreement in which he terminated his interest in the trust. Cowan did not have any 

beneficial interests in any other trusts.

Shortly after terminating his interest in the Cowan Trust, Cowan instructed Fletcher to 

prepare his Last Will and Testament. The will provided that all of Cowan’s remaining beneficial 

interests in any trusts be devised to Mary Killins Soignier, Appellant. It also referred to a written 

list of items and intended recipients that was never located. The American Cancer Society was 

named as the residual devisee for all of Cowan’s other property.

Soignier filed a claim against Cowan’s estate for the proceeds from the Cowan Trust, 

which the magistrate rejected. The magistrate found that, because the trust had terminated, the 

will unambiguously conveyed any assets that remained in Cowan’s estate to the American 

Cancer Society.

Believing that Cowan intended to leave the trust assets to her, Soignier asserted this claim 

for legal malpractice against Fletcher in 2009. The district court granted summary judgment to 

Fletcher, ruling that there was no genuine issue of fact as to whether the will frustrated Cowan’s 

intent. The court also granted Fletcher’s request for attorney fees under I.C. § 12-120(3).

Soignier appealed to this Court, contending that Fletcher negligently failed to carry out 

Cowan’s wishes by inaccurately describing his trust assets. She further contends that it was 

improper to award fees under I.C. § 12-120(3) because she was never engaged in a commercial 

transaction with Fletcher. Fletcher responds that the will was not deficient in giving effect to 

Cowan’s intent to leave any remaining trust interests to Soignier and, additionally, that the fee 

award was correct because Soignier’s claim arises directly from a transaction for legal services 

between Fletcher and Cowan.

III. ISSUES ON APPEAL

1. Whether the district court correctly granted summary judgment to Fletcher on Soignier’s 

claim for legal malpractice by finding that no breach had occurred.
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2. Whether Fletcher was entitled to attorney fees below under I.C. § 12-120(3) for 

defending against the legal-malpractice claim.

3. Whether either party is entitled to attorney fees on appeal under I.C. § 12-120(3).

IV. STANDARD OF REVIEW

This Court applies the same standard as the district court when ruling on a motion for 

summary judgment. Wesco Autobody Supply, Inc. v. Ernest, 149 Idaho 881, 890, 243 P.3d 1069, 

1078 (2010). Summary judgment is proper if “the pleadings, depositions, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to a judgment as a matter of law.” I.R.C.P. 56(c). The movant 

has the burden of showing that no genuine issues of material fact exist. Stoddart v. Pocatello 

Sch. Dist. No. 25, 149 Idaho 679, 683, 239 P.3d 784, 788 (2010). Disputed facts and reasonable 

inferences are construed in favor of the nonmoving party. Castorena v. Gen. Elec., 149 Idaho 

609, 613, 238 P.3d 209, 213 (2010). This Court freely reviews issues of law. Lattin v. Adams 

Cnty., 149 Idaho 497, 500, 236 P.3d 1257, 1260 (2010).

V. ANALYSIS

A. The District Court Correctly Granted Summary Judgment to Fletcher Because He 

Did Not Breach a Duty to Soignier

There are four elements to a legal-malpractice claim: (1) there is an attorney-client 

relationship between the plaintiff and defendant; (2) the defendant lawyer owed a duty of care to 

the plaintiff; (3) the lawyer breached the duty; and (4) the lawyer’s negligence was a proximate 

cause of the client’s damage. Johnson v. Jones, 103 Idaho 702, 706, 652 P.2d 650, 654 (1982). 

Here, the parties do not dispute that the first two elements are present in this case, as Idaho 

recognizes an exception to the traditional requirement that the plaintiff have been in privity with 

the defendant lawyer in order to expect the lawyer to owe him or her a professional duty of care.

In Harrigfeld v. Hancock, 140 Idaho 134, 90 P.3d 884 (2004), this Court extended the attorney’s 

duty to non-clients who are named or identified as beneficiaries in a testamentary instrument. 

140 Idaho at 138, 90 P.3d at 888.

The pivotal issue in this appeal is whether Fletcher breached his duty of care to Soignier

by drafting a will that leaves to her interests in trusts when the decedent had no such interests. 

Whether a duty has been breached is an issue of fact, and the district court’s findings on the 

matter will be upheld if supported by substantial and competent evidence. Hanks v. Sawtelle 

Rentals, Inc., 133 Idaho 199, 203, 984 P.2d 122, 126 (1999). Harrigfeld explained that the 
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attorney’s duty to a testamentary beneficiary requires the attorney to “effectuate the testator’s 

intent as expressed in the testamentary instruments.” Harrigfeld, 140 Idaho at 138, 90 P.3d at 

888 (emphasis added). The attorney must properly draft and execute the will and other 

instruments, but only to effectuate the testator’s intent as expressed within those documents. 

Estate of Becker v. Callahan, 140 Idaho 522, 526, 96 P.3d 623, 627 (2004). 

There is substantial evidence to support the district court’s finding that the will properly 

effectuated Cowan’s intentions and that there was no breach of duty. The relevant portion of the 

will is entitled “Residue,” and reads: 

All of the rest, residue and remainder of my property which I own or have any 

interest in whatever at the time of my death, other than beneficial interests in 

trusts, I give, bequeath, and devise to the American Cancer Society. All beneficial 

interests that I have in any trusts I give, bequeath and devise to Mary [Killins 

Soignier]. I exercise any power of appointment that I might hold and appoint 

Mary [Killins Soignier].

The parties agree that the will’s language is unambiguous and that it was properly executed. The 

unambiguous intent of the testator, as it appears in the will, was to leave all beneficial interests in 

any trusts to Soignier if any so exist. The will does not mention the Cowan Trust, likely because 

it is a residuary clause not intended to bequeath any specific assets. Rather, it simply devises any 

trust assets to Soignier that have not already been disposed of in any other testamentary 

instrument. See Matter of Estate of Kirk, 127 Idaho 817, 829, 907 P.2d 794, 806 (1995) 

(interpreting a residuary clause in light of the strong presumption against intestacy). This clause 

effectuated the testator’s expressed intent to make Soignier the residual devisee of any beneficial 

trust interests Cowan had at his death. The fact that no interests actually existed did not render 

the will deficient for its expressed purpose.

Soignier believes that Cowan intended to leave her the Cowan Trust assets. The main 

thrust of her appeal is that attorneys have an ongoing duty to monitor the status of the property 

that the testator includes in his or her will and notify their clients whenever it appears that the 

client may not understand the nature of their ownership interests. In her view, Fletcher was 

negligent by not checking the trust documents to see whether the Cowan Trust had already 

terminated before Cowan passed away. She also argues that Fletcher negligently failed to explain 

to Cowan that Cowan had no remaining beneficial interests in any trusts.

Soignier’s arguments have already been rejected by this Court. First, Soignier presumes 

that Cowan intended to do something other than what was unambiguously expressed in his will. 
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In Harrigfeld, however, this Court expressly held that attorneys have “no duty to see that the 

testator distributes his or her property among the named beneficiaries in any particular manner.” 

140 Idaho at 138, 90 P.3d at 888. In other words, lawyers have no duty to testamentary 

beneficiaries with regard to what share they receive from the testator’s estate, if any. Becker, 140 

Idaho at 526, 96 P.3d at 627. It is immaterial to Soignier’s legal-malpractice claim whether she 

believes that Cowan intended to leave her assets that he did not identify in his will. See 

Holsapple v. McGrath, 575 N.W.2d 518, 521 (Iowa 1998) (holding that an attorney was not 

liable to plaintiffs for not including in the decedent’s will certain real-estate assets the plaintiffs 

thought they would receive). Attorneys do not have to postulate whether a testator intended to do 

something other than what is expressed in the will.

Second, Soignier assumes that Cowan did not understand the nature of the assets he was 

leaving to Soignier. Again, Harrigfeld stated that “a testator who has sufficient mental capacity 

to make a valid will can also understand how his or her property will be distributed under the 

testamentary documents.” 140 Idaho at 138, 90 P.3d at 888. Cowan is presumed to have 

understood that he was leaving a residuary interest to Soignier and not the specific assets he 

received as a distribution from the Cowan Trust. Thus, attorneys have no ongoing duty to 

monitor the legal status of the property mentioned in a testamentary instrument. The district 

court correctly granted summary judgment to Fletcher on Soignier’s claim for legal malpractice.

B. Fletcher Is Not Entitled to Attorney Fees Below Under I.C. § 12-120(3)

Soignier challenges the district court’s grant of attorney fees to Fletcher under I.C. § 12-

120(3). This provision requires attorney-fee awards for the prevailing party in a civil action in 

“any commercial transaction.” I.C. § 12-120(3).1 “The term ‘commercial transaction’ is defined 

to mean all transactions except transactions for personal or household purposes.” Id. The 

commercial transaction must be integral to and the basis upon which a party is attempting to 

recover. Lee v. Nickerson, 146 Idaho 5, 12, 189 P.3d 467, 474 (2008). 

 1 Idaho Code § 12-120(3) provides in full:

In any civil action to recover on an open account, account stated, note, bill, negotiable instrument, 

guaranty, or contract relating to the purchase or sale of goods, wares, merchandise, or services and 

in any commercial transaction unless otherwise provided by law, the prevailing party shall be 

allowed a reasonable attorney’s fee to be set by the court, to be taxed and collected as costs.

The term “commercial transaction” is defined to mean all transactions except transactions for 

personal or household purposes. The term “party” is defined to mean any person, partnership, 

corporation, association, private organization, the state of Idaho or political subdivision thereof.
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Until recently, this Court held that prevailing parties could not win attorney fees in tort 

actions under § 12-120(3), including legal-malpractice actions. See Rice v. Litster, 132 Idaho 

897, 901, 980 P.2d 561, 565 (1999) (denying attorney fees). Despite the fact that this Court 

refused to award attorney fees, it nonetheless has repeatedly observed that a contract for legal 

services can be a “commercial transaction” as defined in the statute. Brooks v. Gigray Ranches, 

Inc., 128 Idaho 72, 79, 910 P.2d 744, 751 (1996); Fuller v. Wolters, 119 Idaho 415, 425, 807 

P.2d 633, 643 (1991); see also Hayward v. Valley Vista Care Corp., 136 Idaho 342, 350, 33 P.3d 

816, 824 (2001) (stating that contracts for medical services are “commercial transactions” but 

that no attorney fees are available for malpractice claims). The Court reasoned that § 12-120(3) 

only applied to claims sounding in contract. Rice, 132 Idaho at 901, 980 P.2d at 565.

The categorical rule against awarding attorney fees under § 12-120(3) in tort actions no 

longer applies in Idaho. Blimka v. My Web Wholesaler, LLC, 143 Idaho 723, 728–29, 152 P.3d 

594, 599–600 (2007). In City of McCall v. Buxton, 146 Idaho 656, 201 P.3d 629 (2009), this 

Court specifically overruled prior legal-malpractice cases that denied fee awards. In that case, we 

ruled instead that § 12-120(3) “does not require that there be a contract between the parties 

before the statute is applied; the statute only requires that there be a commercial transaction.” 

City of McCall, 146 Idaho at 665, 201 P.3d at 638 (quoting Great Plains Equip., Inc. v. Nw. 

Pipeline Corp., 136 Idaho 466, 472, 36 P.3d 218, 224 (2001)). Accordingly, in some instances, 

the prevailing party may be entitled to attorney fees under § 12-120(3) in an action for legal 

malpractice so long as a commercial transaction occurred between the prevailing party and the 

party from whom that party seeks fees.

The district court was incorrect to hold that Fletcher could collect attorney fees against 

Soignier because there was no commercial transaction between them. The fact that Fletcher 

owed a narrow duty of care to Soignier as a testamentary beneficiary did not create a commercial 

transaction between them. In Harrigfeld, this Court noted that “[a]n attorney’s duty arises out of 

the contract between the attorney and his or her client” and, further, it did not rest the duty of 

care to non-clients on a third-party-beneficiary theory. Harrigfeld v. Hancock, 140 Idaho 134, 

137–38, 90 P.3d 884, 887–88 (2004). The district court’s decision to award attorney fees to 

Fletcher under I.C. § 12-120(3) is vacated.
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C. Fletcher Is Not Entitled to Attorney Fees on Appeal Under I.C. § 12-120(3)

Both parties requested attorney fees on appeal pursuant to I.C. § 12-120(3). As explained 

in the section above, this was not an action in a “commercial transaction” in which the prevailing 

party is entitled to attorney fees pursuant to that provision. We therefore decline to award 

attorney fees on appeal under I.C. § 12-120(3).

VI. CONCLUSION

The district court correctly granted summary judgment to Fletcher on Soignier’s claim for 

attorney malpractice, but erroneously awarded him attorney fees under I.C. § 12-120(3). The 

judgment is affirmed in part and reversed in part. We vacate the award of attorney fees below. 

No fees or costs are awarded on appeal.

Justices BURDICK, J. JONES and HORTON CONCUR.

Chief Justice EISMANN, specially concurring.

I concur in the majority opinion, but write to add an additional comment. 

If we were to expand Harrigfeld v. Hancock, 140 Idaho 134, 90 P.3d 884 (2004), as 

requested by Ms. Soignier, what amount of money would she be entitled to receive? That was a 

question she could not answer during oral argument.

Cowan had already received a distribution from the trust prior to making his final will. 

The money received was obviously no longer subject to the trust, and he made no attempt to 

bequest that money to Ms. Soignier. Had he wanted to, he certainly could have done so either by 

making a specific bequest to her or granting her a portion of the residue of the estate other than 

“[a]ll beneficial interests that I have in any trusts.” He did neither. Assuming that he wanted to 

give her a bequest, it was certainly not the money he had already received. So, what was it? 

How much money did he want her to receive? Any contention that Cowan intended for Ms. 

Soignier to receive some specific sum of money is certainly contrary to the provisions of his will 

because he did not bequeath her any specific sum. The need to speculate as to what he would 

supposedly have done had his attorney given different advice shows why Harrigfeld should not 

be expanded as Ms. Soignier requests.