IN THE SUPREME COURT OF IOWA

No. 12–1817

Filed December 27, 2013

ST. MALACHY ROMAN CATHOLIC CONGREGATION OF GENESEO, 

ILLINOIS; STEVE BRISTOL; CONNI BRISTOL; and KEWANEE AREA 

UNITED WAY,

Appellants,

vs.

DONNA K. INGRAM, as Executor of the ESTATE OF JAMES INGRAM, 

and ROBERT W. BAIRD & CO., INC.,

Appellees,

and

MARIE R. TARBOX and GOSMA, TARBOX & ASSOCIATES, P.L.C.,

Appellants.

Appeal from the Iowa District Court for Scott County, Thomas G. 

Reidel, Judge.

Alleged beneficiaries of a decedent’s estate plan appeal from a 

district court order granting summary judgment to the estate of the 

decedent’s financial advisor and the firm employing that advisor. 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for 

appellants St. Malachy Roman Catholic Congregation of Geneseo, Illinois;

Steve Bristol; Conni Bristol; and Kewanee Area United Way.
2

Kevin J. Visser and Lisa A. Stephenson of Simmons Perrine Moyer 

Bergman PLC, Cedar Rapids, for appellants Marie R. Tarbox and Gosma, 

Tarbox & Associates, P.L.C.

William T. McCartan of Bradley & Riley PC, Cedar Rapids, for 

appellee Robert W. Baird & Co., Inc.

Gregory M. Lederer and Megan R. Dimitt of Lederer Weston Craig 

PLC, Cedar Rapids, for appellee Donna K. Ingram, executor of the estate 

of James Ingram.
3

MANSFIELD, Justice.

I. Introduction.

This case requires us to decide whether a financial advisor to an 

individual can be sued by identified beneficiaries of the individual’s 

signed written estate plan when, due to the advisor’s allegedly negligent 

performance of his duties, those beneficiaries do not receive what they 

were supposed to get under the plan. We conclude the rationale of 

Schreiner v. Scoville, 410 N.W.2d 679, 682 (Iowa 1987), which held that 

attorneys could be sued in these circumstances, extends to nonattorneys 

acting within the scope of their agency. Accordingly, we reverse the 

summary judgment below in part and remand for further proceedings.

Specifically, we find that plaintiff Steve Bristol was owed a duty by 

the decedent’s financial advisor and has raised a genuine issue of 

material fact as to whether the financial advisor’s negligent performance 

of his agency responsibilities caused Bristol not to receive a specific 

devise set forth in the decedent’s will. Accordingly, we reverse the 

judgment that was entered against Bristol and his spouse. However, as 

to plaintiffs St. Malachy Roman Catholic Congregation of Geneseo, 

Illinois, and Kewanee Area United Way, we find their damages are too 

speculative and affirm the judgments against them on this alternative 

ground.

II. Facts and Procedural Background.

This controversy centers on the estate planning of Alvin Engels, 

who died in February 2006 at the age of eighty. Engels was never 

married and had no children.

Beginning as early as 1993, Engels retained James “Jay” Ingram of 

Piper Jaffray as a securities registered representative. At some point, 

Engels apparently began speaking with Ingram about estate planning. 
4

On September 24, 1999, Engels executed a revocable trust agreement 

that appointed Engels and Loretta Wongstrom the cotrustees of the 

Alvin F. Engels Revocable Trust. Engels also created the Engels 

Charitable Foundation, a not-for-profit corporation, of which Engels, 

Ingram, and Wongstrom were appointed directors.1 The Revocable Trust 

and Charitable Foundation paperwork was drafted by attorney Jerry 

Pepping, while Ingram handled the transfer of Engels’s assets—including 

his home, checking accounts, Piper account, series H and HH bonds, a 

promissory note, and a variable annuity—to the Revocable Trust.

The Revocable Trust agreement provided that, upon Engels’s 

death, the Revocable Trust assets would be disbursed to two new trusts: 

Trust A and Trust B. Trust A would be funded only to the extent 

necessary to minimize federal estate taxes. The contents of Trust A were

to be distributed to the Charitable Foundation, except for $15,000, which 

would go to St. Malachy Roman Catholic Congregation (St. Malachy’s). 

Trust B would receive the remaining assets, which would be used for the 

benefit of Katherine, Andrea, and Andrew Bristol and Jerri McLane, Lynn 

McLane, and James Kleinau.

2

It is clear that Ingram was involved, to some degree, in the 

planning for Engels’s estate during this time, including the Revocable 

Trust. Pepping sent drafts of the Revocable Trust agreement and a draft 

of Engels’s last will and testament to Engels, Ingram, and Wongstrom. 

Ingram was also named as executor of Engels’s will in an October 1, 

2001 codicil and, on the same day, was named as the successor trustee 

 

1We will refer to the Alvin F. Engels Revocable Trust and the Engels Charitable 

Foundation as “the Revocable Trust” and “the Charitable Foundation,” respectively.

2The Bristol family were neighbors of Engels. Jerri McLane, Lynn McLane, and 

James Kleinau were nieces and a nephew of Engels.
5

of the Revocable Trust. Less than a year later, Ingram was appointed 

Engels’s attorney-in-fact for healthcare decisions.

In approximately November 1999, Ingram left Piper Jaffray for 

Robert W. Baird & Co. He took the Engels account with him.

In 2003, Engels apparently decided to alter his estate plan. On 

October 1, 2003, Engels executed five documents: (1) a durable power of 

attorney appointing Jerri McLane as attorney-in-fact for healthcare 

decisions, (2) a living will, (3) a durable financial power of attorney 

appointing Ingram attorney-in-fact for Engels’s financial affairs, (4) a new 

last will and testament, and (5) a charitable trust agreement creating the 

Alvin F. Engels Charitable Trust.3

These documents were drafted by attorney Marie Tarbox of the law 

firm Gosma, Tarbox & Associates. Ingram signed the Charitable Trust 

agreement, Ingram’s wife witnessed three of the documents, and each

document, with the exception of the living will, was also notarized by 

Ingram’s assistant, Mardee Trapkus.

The Will provided that Steve Bristol would receive Engels’s 

residence located in Geneseo, Illinois.4 In addition, the Will made 

specific bequests of $75,000 to Jerri McLane, $25,000 to Lynn McLane, 

and $25,000 to James Kleinau. However, the entire residue of the estate 

after these bequests was to be paid to the Charitable Trust. The Will 

named Jerri McLane as executor and Ingram as successor executor in 

the event McLane could not serve.

 

3We will refer to the 2003 last will and testament and the 2003 Alvin F. Engels 

Charitable Trust as “the Will” and “the Charitable Trust,” respectively.

4As noted, Steve Bristol was Engels’s neighbor in Geneseo.
6

The Charitable Trust provided in article 3 as follows:

On the death of the Grantor [Engels], the Trustee shall 

distribute the net income and so much of the Trust principal 

as the Trustee may determine among St. Malachy’s Catholic 

Church, Geneseo, Illinois, and the United Way and the 

American Red Cross, with direction that distributions to the 

latter two organization[s] shall be used for the benefit of 

residents of Henry County, Illinois, and to such other 

501(c)(3) organizations benefitting Henry County, Illinois as 

may apply for distributions and which the Trustee, in its sole 

discretion, determines appropriate in any given year.

The Grantor recognizes that he is placing a good deal 

of discretionary power in the Trustee, and is confident that 

the Trustee will exercise its discretionary power in a manner 

that will best meet[] the needs of the charitable organizations

named herein, Geneseo, Illinois and Henry County, Illinois 

over the years.

In article 5, Ingram and Jerri McLane were designated to serve as

cotrustees of the Charitable Trust upon Engels’s death. The Charitable 

Trust also provided:

If either of the named Trustees is unable or unwilling to 

serve as a Trustee, the Trust assets shall be distributed to 

the Geneseo Is For Tomorrow (“GIFT”) Community 

Foundation with the remaining Trustee to serve in assisting 

the GIFT Board of Directors in determining distributions 

from the Trust in a manner consistent with those set forth in 

Article 3, hereof.

As with the 1999 estate planning documents, the record reflects 

that Ingram was heavily involved in the development of the 2003 Will 

and Charitable Trust. Tarbox testified she had a referral relationship 

with Ingram and received four to six referrals from him annually 

between 1998 and 2002. In each referral, Tarbox testified Ingram 

typically provided her with 

background information about the client in the sense of 

what their asset value was, if there was a trust in existence, 

information about the family, information about things that 

may be of particular concern to that client, and if there had 
7

been [specific] things that he had discussed with the 

client. . . .

Engels was one of these referrals. Tarbox said she had three or four 

conversations with Ingram in which he outlined Engels’s estate plan 

before she ever met with Engels.

According to Tarbox, during her meeting with Engels, Mardee 

Trapkus—Ingram’s assistant—was also present. Tarbox stated Ingram 

had told her in advance which charities Engels wanted to benefit. 

Despite Ingram’s history of disclosing a client’s existing trusts, Ingram 

made no mention of the existence of Engels’s Revocable Trust. Tarbox 

indicated she did not become aware of the existence of the Revocable 

Trust or the Charitable Foundation until after Engels’s death. She 

admitted she never asked Engels how his assets were titled.

Following the discussions with Ingram and her meeting with 

Engels, Tarbox concluded Engels’s intent was to leave his home to 

neighbor Steve Bristol, $25,000 each to niece Lynn McLane and nephew 

James Kleinau, $75,000 to niece Jerri McLane, and the remainder of his 

assets to charity through the Charitable Trust. That meeting was the 

only time Tarbox ever spoke directly with Engels. She summarized her 

conclusions in a September 25, 2003 letter to Engels, copied to Ingram, 

which read in part as follows:

Briefly, you indicated that you wanted Steve Bristol to 

receive your residence and that your niece Jerri McLane 

should receive $75,000. Your niece and nephew Lynn 

McLane and James Kleinau are to receive $25,000 each. 

After those distributions, the balance of your assets are to be 

held and distributed to charities and Jay [Ingram] and Jerri 

[McLane] may decide.

With the letter, she enclosed draft documents, including versions of the 

Will and Charitable Trust agreement. She later testified it was her
8

intention that Engels would review the documents and return to her 

office to execute them if they were acceptable.

According to Tarbox, rather than returning to Tarbox’s office, 

Engels executed the documents and merely had copies delivered to 

Tarbox. Tarbox was angry that Engels had executed the documents 

outside of her office. Apparently, Tarbox and Engels patched things up 

because Tarbox continued to do work for Engels.5

Meanwhile, the record indicates that Ingram made several efforts 

to get Engels to transfer his assets into his Charitable Trust during his 

lifetime. On January 23, 2004, Ingram’s assistant Trapkus sent Engels a 

letter that stated, 

I have enclosed a form that needs to be signed so that Marie 

Tarbox can change the ownership of your house into the 

[Charitable] Trust that you have created.

Please sign by the red arrow and return to me in the 

envelope I have enclosed. I will notarize your signature for 

you.

Nineteen days later, on February 11, 2004, Tarbox’s office sent a 

quitclaim deed to the recorder’s office. The quitclaim deed stated

“Alvin F. Engels” was conveying the home in Geneseo to the “Alvin F. 

Engels Charitable Trust Agreement.” The deed was recorded on 

February 23, 2004. However, apparently unbeknownst to Tarbox, at the 

time the home was titled in the name of the Revocable Trust, not in 

Engels’s name, so the deed was ineffective.

Approximately one year later, in February 2005, Ingram sent 

another letter to Engels regarding the Charitable Trust. In it he stated:

 

5Tarbox’s client ledger shows she billed Engels $850 for the estate planning 

services from September 19–25, 2003. Her records indicate that on November 21, 

2003, Engels paid her $425 for those services.
9

Mardee [Trapkus] indicated that you have some issues with 

Marie [Tarbox]. It’s important to make choices according to 

what you want. (It’s your money and you can control where 

it goes.) I’ve enclosed transfer forms that are necessary to 

move your assets into the [C]haritable [T]rust.

Enclosed are forms necessary to transfer your assets into the 

[C]haritable [T]rust.

Tarbox testified she was unaware of Ingram’s attempts to transfer 

Engels’s property into the Charitable Trust. Had she been asked about 

the transfers, she claims she would have told Ingram or Engels the 

transfers were “inappropriate” because Engels would lose the benefit of 

those assets during his life. Yet, it is not disputed that Tarbox’s office 

sent the quitclaim deed for Engels’s home to the recorder’s office in 

February 2004. The successful transfer of the home to the Charitable 

Trust would have resulted in the need for Engels either to sell the home 

or to make rent payments in order to continue living there. While Tarbox 

did not deny preparing the quitclaim deed and admits she would have 

known of its existence because she signed the check to the recorder’s 

office, she stated she had no recollection of preparing it and was 

uncertain if the request for the deed would have come from Ingram or 

Engels. She indicated she would have told Ingram or Engels about the 

implications of transferring the home when asked to prepare the deed.6

Several months later, in August 2005, Ingram again wrote Engels 

urging him to fund the Charitable Trust by transferring his brokerage 

account assets into it. Ingram noted the annual income on Engels’s 

account amounted to $20,000 and “[t]he annual gifting of $20,000+ to 

worthwhile charities, organizations and scholarships will make a 

 

6Tarbox also did not explain why she would have arranged for the transfer of the 

home to the Charitable Trust when Bristol was to receive the home under the 2003 

estate plan.
10

substantial impact on the lives of many people in the future.” Ingram 

added, “We really need to get the [C]haritable [T]rust funded, so please 

return the enclosed forms to your attorney when you make your 

changes.”

On January 6, 2006, Ingram’s office called Tarbox to let her know 

that Engels wanted to change the designated individual on his healthcare 

power of attorney. Tarbox drafted the necessary forms and sent them to 

the new designee.

At this time, Engels’s health was deteriorating. Ingram sent a 

letter to Central Trust and Savings Bank indicating Tarbox had 

“requested that [Ingram] assist [Engels] in compliance with his Durable 

Financial Power of Attorney dated October 1, 2003.” He asked the bank 

to “honor [Ingram’s] signature on [Engels]’s personal checks until further 

notice.” Engels died on February 12, 2006.

On February 15, 2006, Tarbox sent a letter to Ingram offering “a 

short review of Mr. Engels’[s] estate plan documents.” In it, she went 

over the terms of the Will and the Charitable Trust. Tarbox testified she 

first became aware of the Revocable Trust after Engels’s estate was 

opened and Ingram provided the Revocable Trust documents to her.

In a handwritten, one-page document that Ingram created after 

Engels’s death entitled “Alvin Engels Estate,” Ingram listed the monetary 

bequests to the nieces and nephew under the Will and additionally noted 

the house was to “deed out quickly to Bristol.”

However, Engels’s assets were still titled in the Revocable Trust. 

As a result, the provisions of the Revocable Trust controlled the 

distribution of his assets, and there were no assets to be probated under 

the Will. This meant there was no residuary to fund the Charitable 

Trust.
11

It is not clear when Ingram became aware that Engels’s assets 

would pass according to the Revocable Trust rather than the Will. 

Regardless, he clearly knew this by August 15, 2006, when he sent the 

following letter to the priest of St. Malachy’s:

Hi Father—

Please accept this as a donation to help cover the cost 

of the funeral luncheon for [Engels].

[Engels]’s intentions were to remember St. Malachy’s 

in a significant manner, but his last will was declared invalid 

and his entire estate will be given to his relatives.

It’s unfortunate.

Approximately a year later, in August 2007, the counsel for 

St. Malachy’s sent a letter to Ingram asking him to 

investigate and initiate an attorney’s malpractice suit 

[against] Marie Tarbox and Gosma, Tarbox & Associates, 

P.L.C. for negligence in preparing the Last Will & Testament 

of Mr. Engels and for not revoking his revocable living trust 

and re-titling his assets to carry out his last wishes.

St. Malachy’s asserted Ingram, as a trustee of the Charitable Trust, had 

a fiduciary duty to the beneficiaries of the Charitable Trust—

St. Malachy’s, the United Way, and the American Red Cross.

Ingram did not bring a claim against Tarbox or her law firm, but 

instead responded through counsel on September 5, 2007. The letter 

stated:

Ingram followed his fiduciary duties by prudently investing 

the assets of the 1999 Revocable Trust as well as by making 

distributions of Trust proceeds in accordance with the terms 

of the governing trust documents. As such, we believe that 

any malpractice action should be brought by the 

beneficiaries.

On January 27, 2011, St. Malachy’s, Steve Bristol, and his wife 

Conni Bristol filed a petition naming Tarbox, Tarbox’s law firm, Ingram, 
12

Ingram’s employer Baird, the American National Red Cross, the 

American Red Cross of the Quad Cities Area, and the Kewanee Area 

United Way as defendants. The plaintiffs alleged negligence by Tarbox

and Ingram and their respective firms. On March 7, 2011, shortly after 

the petition was filed, Ingram died. His wife, Donna Ingram, as executor 

of Ingram’s estate, was substituted as a defendant on April 5, 2011.7

The Red Cross entities have never appeared in the litigation. 

United Way answered and filed cross-claims against Tarbox and her firm, 

and against Ingram and his firm, and therefore was realigned as a 

plaintiff.

Ingram and Baird initially moved to have the claims against them 

dismissed for failure to state a claim. They maintained they owed no 

duties to the beneficiaries of the Charitable Trust or the Will and that the 

plaintiffs’ claims were barred by the economic loss doctrine. The district 

court denied the motion.

Baird then moved for summary judgment on July 20, 2012. Baird 

argued no duty to the plaintiffs existed, any duty owed was discharged 

by Ingram’s act of supplying the necessary documents to transfer 

Engels’s assets to the Charitable Trust, the claims were barred by the 

economic loss doctrine, St. Malachy’s and the United Way lacked 

standing to bring claims, and the damages allegedly sustained were too 

speculative. Ingram joined Baird’s motion for summary judgment.

St. Malachy’s and the Bristols resisted the motion. They 

maintained that Ingram’s “intimate role as a financial advisor for Alvin 

Engels,” Ingram’s close relationship with Tarbox in connection with 

 

7We will use “Ingram” hereafter to refer interchangeably to Jay Ingram and his 

estate.
13

Engels’s estate planning, and Ingram’s knowledge of Engels’s desire to 

benefit the plaintiffs created a duty to the specifically identifiable 

beneficiaries of the Will and Charitable Trust. They also argued that if 

the court found St. Malachy’s and the Bristols lacked standing, the 

Charitable Trust should be substituted as a party.

Tarbox and her law firm also filed a brief resisting the plaintiffs’ 

suggestion that the Charitable Trust should be substituted or joined as a 

party in the case.

The district court issued its ruling on the motion for summary 

judgment on September 10, 2012. In it, the court addressed only Baird 

and Ingram’s arguments related to duty. The court determined neither 

Ingram nor Baird owed any duty to the beneficiaries of the Will or the 

Charitable Trust to advise Tarbox or Engels that Engels’s assets were 

held in a Revocable Trust and needed to be moved out of that trust. The 

court explained, “The Court agrees with Baird’s assertion that judicial 

creation of a duty to beneficiaries of a client’s estate or trust would lead 

to divided loyalties of securities registered representatives.” It added, 

“The Court simply cannot and should not create a duty for a securities 

registered representative that would, in any manner, require or 

encourage that individual to practice law without a license.”

Because the court found no duty existed, it concluded it was 

“unnecessary for the Court to address the remaining contentions set 

forth in the brief” submitted by Baird and joined by Ingram. The court 

granted the motion for summary judgment and dismissed the claims 

against Ingram and Baird.

St. Malachy’s, the Bristols, and United Way, joined by Tarbox, 

submitted an application for interlocutory appeal. We treated Tarbox’s 
14

joinder as a separate application for interlocutory appeal and granted 

both applications.

III. Standard of Review.

Summary judgment is appropriate if

the pleadings, depositions, answers to interrogatories, 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.

Iowa R. Civ. P. 1.981(3). The district court’s ruling on a motion for 

summary judgment is reviewed for correction of errors of law. Pitts v. 

Farm Bureau Life Ins. Co., 818 N.W.2d 91, 96 (Iowa 2012).

IV. Analysis.

A. Duty. The plaintiffs allege Ingram and Baird acted negligently 

in the course of their dealings with Engels and that this negligence 

harmed them. “Generally, [a]n actionable claim of negligence requires 

the existence of a duty to conform to a standard of conduct to protect 

others, a failure to conform to that standard, proximate cause, and 

damages.” Id. at 98 (internal quotation marks omitted).

“The issue of whether a particular duty arises out of parties’

relationships is always a matter of law for the court to decide.” Dettmann 

v. Kruckenberg, 613 N.W.2d 238, 251 (Iowa 2000) (internal quotation 

marks omitted). Historically, we have considered three factors when 

determining whether a duty exists: “(1) the relationship between the 

parties, (2) reasonable foreseeability of harm to the person who is 

injured, and (3) public policy considerations.” Thompson v. Kaczinski, 

774 N.W.2d 829, 834 (Iowa 2009) (internal quotation marks omitted). In 

Thompson, we held foreseeability can no longer form the sole basis for a 

court’s no-duty determination. Id. at 835; see also Pitts, 818 N.W.2d at 
15

98 (“In Thompson, we . . . , in general, rejected the use of foreseeability 

when determining, as a matter of law, that one party did not owe a duty 

to another.”). However, we later noted the Thompson duty analysis is not 

dispositive in cases like the present one that are “based on agency 

principles and involve[] economic loss.” See Langwith v. Am. Nat’l Gen. 

Ins. Co., 793 N.W.2d 215, 221 n.3 (Iowa 2010), superseded by statute, 

2011 Iowa Acts ch. 70, § 45 (codified at Iowa Code § 522B.11(7) (Supp. 

2011)); see also Pitts, 818 N.W.2d at 99 (“Since this is a case based on 

agency principles and involving economic harm, we will not rely on the 

concept of duty embodied in Thompson . . . .”).

As a registered representative, Ingram was clearly Engels’s agent in 

certain respects. See Restatement (Third) of Agency Intro., at 9 (2006) 

(noting that “[s]ecurities brokers . . . are the subject of statutory and 

administrative regulation, but the common law of agency otherwise 

governs relationships between and among the agent, the principal, and 

third parties to transactions”). “As a general matter, a stockbroker is an 

agent of his client.” Thompson ex rel. Thorpe Family Charitable 

Remainder Unitrust v. Federico, 324 F. Supp. 2d 1152, 1166 (D. Or. 

2004); see also O’Malley v. Boris, 742 A.2d 845, 849 (Del. 1999) (stating 

that “[t]he broker, as agent, has a duty to carry out the customer’s 

instructions promptly and accurately”); Hand v. Dean Witter Reynolds 

Inc., 889 S.W.2d 483, 492–93 (Tex. App. 1994) (“The relationship 

between a broker and its customer is that of principal and agent.”).

To the extent Ingram was acting as Engels’s agent, Ingram owed a 

duty to Engels subject to the parties’ agreement:

Subject to any agreement with the principal, an agent 

has a duty to the principal to act with the care, competence, 

and diligence normally exercised by agents in similar 

circumstances. Special skills or knowledge possessed by an 
16

agent are circumstances to be taken into account in 

determining whether the agent acted with due care and 

diligence. If an agent claims to possess special skills or 

knowledge, the agent has a duty to the principal to act with 

the care, competence, and diligence normally exercised by 

agents with such skills or knowledge.

Restatement (Third) of Agency § 8.08, at 343.

“Whether the agency exists and its extent are questions of fact.” 

Fowler v. Berry Seed Co., 248 Iowa 1158, 1165, 84 N.W.2d 412, 416 

(1957); see also Peak v. Adams, 799 N.W.2d 535, 546 (Iowa 2011) 

(“Agency is generally a question of fact.”); Mayrath v. Helgeson, 258 Iowa 

543, 547, 139 N.W.2d 303, 305–06 (1966) (“[U]sually the nature and 

extent of the authority of an agent, and whether his acts or contracts are 

within the scope of his authority, are questions of fact . . . .”). While the 

existence of some agency relationship is not contested by the parties, the 

scope of that relationship is. Ingram and Baird argue Ingram was merely 

a securities registered representative—only able to “give incidental advice 

to retail investors who buy and sell securities.” They claim Ingram never 

acted in the role of an estate planner or financial planner for Engels.

The plaintiffs allege Ingram’s relationship with Engels far exceeded 

the scope of the typical relationship between a securities registered 

representative and his or her client. They argue Ingram was intimately 

involved with Engels’s estate planning and, in fact, gave estate planning 

advice.

We believe the summary judgment record supports a conclusion 

that Ingram did far more than just recommend financial investments. 

Ingram worked with Engels’s previous attorney when the Revocable Trust 

and the Charitable Foundation were established. He became a director 

of the Charitable Foundation. He was Engels’s designated successor as 
17

the trustee of the Revocable Trust. He was the executor of Engels’s 

original will.

Ingram and Engels discussed the terms of Engels’s new will and 

Charitable Trust before they were drafted. According to Tarbox, Ingram 

spoke with Tarbox three or four times and “outlin[ed] a plan” for Engels’s 

estate before Engels had his first and only meeting with Tarbox. Ingram 

communicated to Tarbox the parties whom Engels wished to benefit 

under the Will and Charitable Trust. Ingram was to be the executor of 

the Will if Jerri McLane could not serve. Ingram was named cotrustee of 

the Charitable Trust. Ingram repeatedly wrote Engels providing forms for 

him to transfer the ownership of his assets to the Charitable Trust. As 

Ingram said to Engels, “We really need to get the [C]haritable [T]rust 

funded.”

Even though Ingram was not licensed to provide legal services, he 

had a general legal duty to exercise care in whatever services he did 

provide as Engels’s agent. See Restatement (Third) of Agency § 8.08, at 

343 (“If an agent claims to possess special skills or knowledge, the agent 

has a duty to the principal to act with the care, competence, and 

diligence normally exercised by agents with such skills or knowledge.”).

If an agent undertakes to perform services as a 

practitioner of a trade or profession, the agent “is required to 

exercise the skill and knowledge normally possessed by 

members of that profession or trade in good standing in 

similar communities” unless the agent represents that the 

agent possesses greater or lesser skill.

Id. cmt. c, at 346 (citing Restatement (Second) of Torts § 299A, at 73

(1965)).

A reasonable fact finder could conclude that Ingram was acting on 

Engels’s behalf in developing and implementing an estate plan. Even if 

Ingram fell short of actually performing legal services, a fact finder could 
18

certainly determine that Ingram was serving as Engels’s go-between or 

intermediary with Tarbox. If Ingram failed to perform these services with 

due care, he could potentially be liable to Engels or his estate. See 

Collegiate Mfg. Co. v. McDowell’s Agency, Inc., 200 N.W.2d 854, 857 (Iowa 

1972) (“Generally an agent owes his principal the use of such skill as is 

required to accomplish the object of his employment. If he fails to 

exercise reasonable care, diligence, and judgment in this task, he is 

liable to his principal for any loss or damage occasioned thereby.”); 

Restatement (Second) of Torts § 874, at 300 (1979) (“One standing in a 

fiduciary relation with another is subject to liability to the other for harm 

resulting from a breach of duty imposed by the relation.”).

But, of course, neither Engels nor his estate is bringing this action. 

The plaintiffs, rather, are putative beneficiaries of the Will and the 

Charitable Trust. Yet, we have previously recognized that “a lawyer owes 

a duty of care to the direct, intended, and specifically identifiable 

beneficiaries of the testator as expressed in the testator’s testamentary 

instruments.” Schreiner, 410 N.W.2d at 682. In Schreiner, a lawyer 

drafted a will and a codicil that devised a one-half interest in certain real 

estate to Schreiner. Id. at 680. Later, in the course of representing the 

same client, the attorney brought an action for partition by sale of the 

same piece of real estate. Id. As a result of the partition sale, the client 

received cash. Id. When the client later died, Schreiner’s interest was 

found to have adeemed because the testator no longer owned the real 

property. Id. The money from the sale did not go to Schreiner, but 

passed to the testator’s family through a residuary clause in the codicil 

to the will. Id. Schreiner brought an action for professional negligence 

against the attorney, who in turn argued that he owed no legal duty to 

Schreiner. Id. at 681.
19

While we recognized that an attorney traditionally was considered 

to owe a duty of care only to his or her client, we noted the trend in other 

states had been “to allow some relaxation of the privity standard in 

severely limited situations.” Id. Consistent with that trend, we found a 

duty could be owed to “direct, intended, and specifically identifiable 

beneficiaries of the testator as expressed in the testator’s testamentary 

instruments.” Id. at 682. We further confined the duty by stating an 

action

ordinarily will arise only when as a direct result of the 

lawyer’s professional negligence the testator’s intent as 

expressed in the testamentary instruments is frustrated in 

whole or in part and the beneficiary’s interest in the estate is 

either lost, diminished, or unrealized.

If the testator’s intent, as expressed in the 

testamentary instruments, is fully implemented, no further 

challenge will be allowed.

Id. at 683 (citations omitted).

Under the facts of the Schreiner case, we determined the lawyer 

was “actively involved in [the will, codicil, and sale of the property] and 

[was] fully aware of [the client’s] intent to leave Schreiner an interest in 

the property.” Id. However, the lawyer never explained to the client 

“what effect the sale would have on her testamentary intent or redrafted 

her codicil to insure Schreiner would receive a portion of the proceeds 

from the partition sale,” and as a result, nothing passed to Schreiner 

under the will. Id. While we stated that “in most cases, the post-will 

disposition of property will give rise to no cause of action” because “[n]o 

lawyer reasonably can be expected to keep track of the provisions in the 

wills of his or her clients, nor the effect on those instruments caused by 

changes in the clients’ affairs,” we determined Schreiner had alleged 

sufficient facts to avoid dismissal. Id.
20

We also emphasized that allowing a cause of action in these 

circumstances made sense because “the testator’s estate generally will 

have little incentive to challenge the lawyer’s action.” Id. at 682. In 

effect, we allowed the intended beneficiary of the testator’s written 

instrument to step into the testator’s shoes. See Restatement (Third) of 

the Law Governing Lawyers § 51 Reporter’s Note cmt. f, at 370 (2000) 

(citing Schreiner as an example of “[a] nonclient enforcing duties of a 

lawyer to a client”).

The duty we imposed in Schreiner was extended in Holsapple v. 

McGrath to include the specifically identifiable beneficiaries of 

nontestamentary instruments. 521 N.W.2d 711, 713–14 (Iowa 1994). 

The Holsapple plaintiffs filed suit against an attorney after a quitclaim 

deed drafted by the attorney was found to be defective because it had not 

been properly notarized. Id. at 712. Under the quitclaim deed, the 

Holsapples were to receive certain farmland. Id. The grantor–decedent

had discussed with her attorney her intent to give the land to the 

Holsapples and signed the quitclaim deed before her death. Id. We 

applied the reasoning from Schreiner and found the Holsapples, despite 

their lack of an attorney–client relationship with the attorney in question, 

could recover if they established they were “specifically identified, by the 

donor, as an object of the grantor’s intent” and “the expectancy was lost 

or diminished as a result of professional negligence.” Id. at 714. Again, 

the plaintiff would have to show that the client “attempted to put the 

donative wishes into effect and failed to do so only because of the 

intervening negligence of a lawyer.” Id. at 713.

We again relied on the Schreiner decision in Pitts, where we found a

life insurance agent owed a duty under certain circumstances to the 

intended beneficiary of a life insurance policy. Pitts, 818 N.W.2d at 101–
21

06. In that case, a widow filed an action against her late husband’s 

insurance agent, claiming the agent negligently failed to cause her to be 

named the sole beneficiary of her husband’s life insurance policy. Id. at 

95–96. The husband’s daughter from a prior marriage had been a partial 

beneficiary of the policy, but the child support obligation had expired a 

few years before the husband’s death. Id. at 95. In answering the 

question of whether the agent owed a duty to the widow, we indicated 

“any duty . . . owed . . . would arise out of [the] agency relationship as 

insurance agent, insured and intended beneficiary.” Id. at 99.

We first looked at the widow’s claim that the relationship of an 

insurance agent to a beneficiary of a life insurance policy was analogous

to the relationship between an attorney and the beneficiary of a 

testamentary instrument as found in Schreiner. Id. at 101. In 

concluding they were comparable, we noted other jurisdictions had 

accepted the analogy and indicated that “[l]ike a testamentary 

instrument, the main purpose of the [insurance agent]’s transaction with 

the insured is to benefit the intended beneficiary.” Id. at 101–02. We 

also observed that damage to an intended beneficiary was foreseeable,

and if the beneficiary could not bring a claim, “the very purpose for 

which the insurance agent was employed would be frustrated.” Id. at 

102. Ultimately, we held an insurer owes a duty to the beneficiary if the 

beneficiary can “show that he or she was the ‘direct, intended, and 

specifically identifiable beneficiar[y]’ of the policy as well as the other 

elements of negligence.” Id. at 106 (quoting Schreiner, 410 N.W.2d at 

682). We stated, however, that the beneficiary must “point to evidence in 

the written instrument itself that identifies her as the intended 

beneficiary of the entire policy.” Id. at 109.
22

The present question is whether a financial planner should be 

treated similarly to an attorney or an insurance agent. That is, if a 

written instrument executed by the deceased principal specifically 

identifies the plaintiff as an intended beneficiary, but due to the agent’s 

negligence the decedent’s plan as set forth in the instrument is defeated, 

can the beneficiary sue? We see no reason to treat one kind of agent 

differently from another, so long as the plaintiffs are “direct, intended, 

and specifically identifiable beneficiaries.” Schreiner, 410 N.W.2d at 682.

Logic and fairness support this result. Both Tarbox and Ingram 

were involved with Engels’s estate plan, but their respective roles are 

disputed. As we have discussed above, within the scope of their 

respective agencies, both Tarbox and Ingram generally owed duties of 

due care. See F.W. Myers & Co. v. Hunter Farms, 319 N.W.2d 186, 188 

(Iowa 1982) (stating that if an agent “fails to exercise reasonable care, 

diligence, and judgment under the circumstances, he is liable to his 

principal for any loss or damage resulting”). It seems appropriate to 

allow the fact finder to sort out the parties’ (including Engels’s) respective 

shares of responsibility.

Baird acknowledged at oral argument that this would be a different 

case if Ingram had been licensed as an attorney or a certified public 

accountant. To some extent, this concession undermines Ingram and 

Baird’s position, because the lack of a professional license is not 

generally viewed as a stop sign for legal liability. See Sande L. Buhai, Act 

Like a Lawyer, Be Judged Like a Lawyer: The Standard of Care for the 

Unlicensed Practice of Law, 2007 Utah L. Rev. 87, 88 (noting that “[a] 

majority of courts have held that one who provides legal services, 

regardless of whether licensed or authorized, should be held to the 

standard of care applicable to attorneys providing those same services”); 
23

see also Buscemi v. Intachai, 730 So. 2d 329, 330 (Fla. Dist. Ct. App. 

1999) (affirming a negligence award against a financial planner and 

stating that “[a]ppellant overlooks the fact that whether a lawyer or not, if 

he undertakes to give legal advice, he is subject to a standard of due 

care”).

Under the Will, plaintiff Steve Bristol was clearly a direct, intended, 

and specifically identifiable beneficiary. The Will provided that Bristol 

would receive Engels’s house. This game plan was confirmed by Tarbox’s 

contemporaneous September 2003 letter to Engels, as well as by 

Ingram’s handwritten summary prepared shortly after Engels’s death in 

February 2006. A reasonable fact finder could determine that Bristol’s 

inheritance was defeated because Ingram did not tell Tarbox the home 

was already titled in the Revocable Trust.

We do not prejudge the outcome of this case. The ultimate 

question is whether Ingram or Tarbox breached a duty to Engels, thereby 

causing Bristol to lose his specifically identified inheritance. There are 

potential issues of fact as to what Engels, Ingram, and Tarbox said to 

each other, as to the scope of Ingram’s agency and whether it included 

the communication of information to Tarbox, and as to whether Tarbox 

had an independent obligation to ascertain the ownership of house.

8

Moreover, an agent’s duties may be affected by an agreement 

between the agent and the principal. See Collegiate Mfg. Co., 200 N.W.2d 

at 857 (“This general rule may be altered, either to limit or enlarge the 

ordinary duties, by agreement of the parties.”); see also F.W. Myers & 

Co., 319 N.W.2d at 188 (“[u]nless otherwise agreed” (internal quotation 

 

8We also do not address whether Baird is liable for Ingram’s actions under 

respondeat superior, a matter that is not before us.
24

marks omitted)); Restatement (Third) of Agency § 8.08, at 343 (“Subject 

to any agreement with the principal . . . .”). In Pitts, we pointed out that 

“the agency agreement had not been modified”; hence, the insurance 

agent owed “the use of such skill as is required to accomplish the object 

of his employment.” Pitts, 818 N.W.2d at 100 (internal quotation marks 

omitted). As in Pitts, no such agreement is before us. See id.

For the foregoing reasons, we hold that when an agent negligently 

performs his or her duties to a principal, and as a result of that 

negligence a direct, intended, and specifically identifiable beneficiary of a 

written instrument executed by the principal does not receive the 

benefits set forth in the written instrument, the beneficiary is owed a 

duty by the agent and may have a cause of action against him or her.

We conclude, therefore, that the district court should not have 

entered summary judgment against Bristol based on the absence of a 

legal duty. For reasons that we discuss below, however, it is 

unnecessary for us to decide whether St. Malachy’s or the United Way 

were also direct, intended, and specifically identifiable beneficiaries that 

were owed a similar duty by Ingram and Baird.

B. Economic Loss. Ingram and Baird argue, alternatively, that

the damages sought by all plaintiffs in the case, including Bristol, are 

“merely for money damages against a non-professional” and are barred 

by the economic loss doctrine.9

 

9Because the district court granted summary judgment to Ingram and Baird 

based on the absence of a legal duty, it did not need to reach their alternative 

arguments that summary judgment should be granted based on the economic loss rule, 

lack of standing, and speculative damages.

However, these arguments were raised below and are reiterated in Ingram and 

Baird’s briefing to this court. It is well-settled that we may affirm a district court ruling 

on an alternative ground provided the ground was urged in that court. See Bagelmann 
25

“As a general proposition, the economic loss rule bars recovery in 

negligence when the plaintiff has suffered only economic loss.” Annett 

Holdings, Inc. v. Kum & Go, L.C., 801 N.W.2d 499, 503 (Iowa 2011). In 

part, this rule is intended to prevent the “tortification of contract law.” 

Id. It is also intended to encourage parties to enter into contracts and to 

protect parties from being responsible for remote economic losses. Id. at 

503–04.

However, we have also stated the economic loss doctrine is subject 

to qualifications:

For example, purely economic losses are recoverable in 

actions asserting claims of professional negligence against 

attorneys and accountants. Also, negligent 

misrepresentation claims fall outside the scope of the 

economic loss rule. In addition, when the duty of care arises 

out of a principal-agent relationship, economic losses may be 

recoverable.

Id. at 504 (citations omitted).

Here, any duty owed to Bristol arises out of the principal–agent

relationship between Ingram and Engels. Unless Ingram breached a 

duty to Engels as Engels’s agent, Bristol can have no claim against 

Ingram. Therefore, Bristol’s claims fall under the third recognized 

exception: losses arising out of a principal–agent relationship. Id. As a 

result, the economic loss rule does not apply.

C. Damages. The defendants argue that even if a duty was owed 

to the plaintiffs and the economic loss rule does not apply, St. Malachy’s

and United Way lack standing, and their claimed damages are too 

_______________________

v. First Nat’l Bank, 823 N.W.2d 18, 32 (Iowa 2012); DeVoss v. State, 648 N.W.2d 56, 61 

(Iowa 2002).
26

speculative.

10 We will focus our discussion only on the question of 

damages. The defendants maintain that the amount of any gift to either

of these entities was in the full control and discretion of the Charitable 

Trust’s trustees and, therefore, a matter of guesswork. They contend 

that St. Malachy’s and United Way could have received little or nothing,

and there is no reasonable way to estimate what they would have 

received.

“As a general rule, the party seeking damages bears the burden of 

proving them; if the record is uncertain and speculative as to whether a 

party has sustained damages, the factfinder must deny recovery.” Data 

Documents, Inc. v. Pottawattamie Cnty., 604 N.W.2d 611, 616 (Iowa 

2000). “There is a distinction between proof of the fact that damages 

have been sustained and proof of the amount of those damages.” Pavone

v. Kirke, 801 N.W.2d 477, 495 (Iowa 2011) (quoting Olson v. Nieman’s, 

Ltd., 579 N.W.2d 299, 309 (Iowa 1998)). “[I]f the uncertainty merely lies 

in the amount of damages sustained, recovery may be had if there is 

proof of a reasonable basis from which the amount can be inferred or 

approximated.” Id. (citation and internal quotation marks omitted). 

“Thus, some speculation on the amount of damages sustained is 

acceptable,” but a plaintiff cannot recover overly speculative damages. 

Id.

The terms of the Charitable Trust provided:

On the death of the Grantor [Engels], the Trustee shall 

distribute the net income and so much of the Trust principal 

as the Trustee may determine among St. Malachy’s Catholic 

Church, Geneseo, Illinois, and the United Way and the 

 

10The defendants raise lack of standing and speculative damages only as to 

St. Malachy’s and United Way, not as to the Bristols. Engels’s home was specifically 

devised to Steve Bristol in the Will.
27

American Red Cross, with direction that distributions to the 

latter two organization[s] shall be used for the benefit of

residents of Henry County, Illinois, and to such other 

501(c)(3) organizations benefitting Henry County, Illinois as 

may apply for distributions and which the Trustee, in its sole 

discretion, determines appropriate in any given year.

The Grantor recognizes that he is placing a good deal 

of discretionary power in the Trustee, and is confident that 

the Trustee will exercise its discretionary power in a manner 

that will best meet[] the needs of the charitable organizations 

named herein, Geneseo, Illinois and Henry County, Illinois 

over the years.

Moreover, if either of the trustees—Ingram or Jerri McLane—died 

or became unable to serve, the Trust assets would go to the Geneseo Is 

For Tomorrow (GIFT) Community Foundation, with the remaining trustee 

“to serve in assisting the GIFT Board of Directors in determining 

distributions from the Trust in a manner consistent with [the above].” 

Ingram, as we know, died in 2011, so at that point, the Trust assets 

would have gone to GIFT with Engels’s niece McLane “to serve in 

assisting” GIFT. The decision maker would have been the GIFT Board, 

with only input from McLane.

We believe the essentially unbridled discretion of the trustees or 

GIFT to select charitable recipients within a particular geographic area

makes the fact and amount of damages too speculative for either 

St. Malachy’s or United Way to recover. See Giambrone v. Bank of N.Y., 

677 N.Y.S.2d 608, 610 (App. Div. 1998) (“[T]his claim and the plaintiff’s 

claim of fraud against the Adamo defendants must fail because the 

damages sought are speculative and incapable of being proven since they 

are based on the terms of the single-life trust, which provided that the 

plaintiff’s right to income was at the sole discretion of the trustees.”); 

Pietz v. Toledo Trust Co., 577 N.E.2d 1118, 1122 (Ohio Ct. App. 1989) 

(finding damages too speculative when sons would not receive benefit 
28

under the trust until the mother’s death, and mother could use and 

exhaust assets before that time, potentially leaving them nothing).

We have rejected damage claims in the past when they were too 

speculative. In one case, we upheld a district court ruling barring 

anesthesiologists from recovering damages after the expiration date of a 

contract even though the contract provided it “shall” renew unless 

terminated by either party. Tredrea v. Anesthesia & Analgesia, P.C., 584 

N.W.2d 276, 288 (Iowa 1998); see also Data Documents, Inc., 604 N.W.2d 

at 617 (finding that damages were too speculative where the plaintiff 

established only the unpaid contract price but did not present proof on 

the market price of the goods it had produced or the expenses saved from 

the defendant’s breach); Sun Valley Iowa Lake Ass’n v. Anderson, 551 

N.W.2d 621, 641 (Iowa 1996) (finding damages too speculative when the 

plaintiff “produced scant evidence to establish the reduction in value” of 

the property in question); Mood v. Van Wechel, 402 N.W.2d 752, 758 

(Iowa 1987) (finding insufficient evidence to support a claim for damages 

where there was no showing of the value of the damaged crops); Schiltz v. 

Teledirect Int’l, Inc., 524 N.W.2d 671, 674–75 (Iowa Ct. App. 1994) 

(finding that the landlord’s claim of damages against a tenant for unpaid 

electrical charges was too speculative when the lease required the tenant 

to compensate the landlord for certain electrical use but “[i]nsufficient 

evidence was provided from which the trial court could adequately 

determine the amount of electricity expenses which [the defendant] 

should pay”). Here, whether or not St. Malachy’s and United Way would 

have received anything and in what amounts was completely up to the 

discretion of the trustees.

St. Malachy’s only response is to refer us to Ingram’s August 2006 

letter to the church, which enclosed a donation to cover the cost of the 
29

Engels’s funeral lunch.

11 The letter did say that Engels’s “intentions 

were to remember St. Malachy’s in a significant manner.” But,

“significant” is not exactly a term of precision, and more importantly, 

nothing would have constrained the trustees of the Charitable Trust or 

GIFT from bestowing the Charitable Trust assets on other charities to the 

exclusion of St. Malachy’s. The Charitable Trust document itself 

provides that “[t]he Grantor recognizes that he is placing a good deal of 

discretionary power in the Trustee[s].”

In short, we believe the evidence here is insufficient to establish 

either the fact of damage or a reasonable basis from which damages can 

be inferred or approximated. See Pavone, 801 N.W.2d at 495. We note 

that none of the parties have cited comment f to Restatement (Second) of 

Torts section 912 (“Certainty”), which gives the example of a person who

is in a class of beneficiaries, one of whom would have 

received a gift but for the wrongful conduct and there is no 

evidence to indicate which one would have been the 

recipient. In these cases the injured person, in order to 

recover, has the burden of proving that the gift would have 

been made to one of the class; having satisfied this burden, 

he is then entitled to receive an amount commensurate for 

the chance that he had of receiving the gift.

Restatement (Second) of Torts § 912 cmt f, at 486. Comment f thus 

appears to allow one out of a “class of beneficiaries” to recover a 

percentage of the whole based on “the chance . . . of receiving the gift.” 

See id. The problem with applying comment f here, however, is that 

there is no confined “class of beneficiaries.” See id. Potentially, the 

income and principal of the Charitable Trust could have been distributed 

to any number of “501(c)(3) organizations benefitting Henry County, 

 

11United Way does not respond to Baird and Ingram’s argument that the 

damages it seeks are too speculative.
30

Illinois as may apply for distributions.” Thus, there is no reasonable 

basis for awarding damages in favor of St. Malachy’s or United Way 

without requiring the fact finder to speculate as to the trustees’ or GIFT’s 

future discretionary actions.

V. Conclusion.

For the foregoing reasons, we reverse the summary judgment 

entered for defendants Ingram and Baird on the claims of plaintiffs Steve 

and Conni Bristol but affirm the summary judgment entered against 

plaintiffs St. Malachy’s and United Way. We remand for further 

proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except Waterman, J., who takes no part.