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Browne v. Magee

Superior Court of Rhode Island

January 13, 2016

CAROL BROWNE, Plaintiff,

Providence County Superior Court

For Plaintiff: Gil A. Bianchi, Jr., Esq.; Erica M. O'Connell, Esq.

For Defendant: John A. Donovan, III, Esq.; Gail M. Ryan, Esq.



This matter is before the Court on Attorney Diane Messere Magee's (Defendant or Attorney Magee) Motion for Summary Judgment. The Court heard arguments for summary judgment on October 6, 2015, and held an evidentiary hearing on December 17 and 18, 2015 concerning the issue of when this cause of action accrued for purposes of determining when the statute of limitations would have barred this action, if at all. For the reasons stated herein, the Court grants the Defendant's Motion for Summary Judgment.



On October 9, 1987, Plaintiff Carol Browne (Ms. Browne or Plaintiff) married Finn Behncke (Mr. Behncke). Mr. Behncke was employed in both Norway and Ireland, where he paid into their pension systems. In 1985, Mr. Behncke moved to the United States and also started paying into the Social Security system. Mr. Behncke died on February 15, 1993.

Subsequently, Ms. Browne started dating Doctor Andre Zalzal (Dr. Zalzal), and they became engaged. Dr. Zalzal requested Ms. Browne sign a prenuptial agreement, and Ms. Browne retained Attorney Magee to advise her. Each party presented a different version of what occurred at this meeting. Ms. Browne alleges that in June 1996, during one of her consultations, Attorney Magee told Ms. Browne that if her marriage to Dr. Zalzal ended, she would revert back to being Mr. Behncke's widow and would be eligible to collect widow benefits from Mr. Behncke's pensions in Norway and Ireland. (Compl. ¶ 20.) Attorney Magee argues that at a consultation on May 20, 1996, Ms. Browne informed Attorney Magee that her understanding was that she would lose her widow's pension benefits from Ireland and the United States upon marriage or cohabitation with Dr. Zalzal, and that Attorney Magee advised her to confirm that information. See Ex. 2, Magee Dep. Tr. 27:6-28:8. Attorney Magee maintains that at the meeting they never discussed Norway. Id. Attorney Magee avers that she negotiated the Prenuptial Agreement with Ms. Browne's understanding that she would no longer be able to receive widow's benefits after marrying Dr. Zalzal. Id. at 30:16-31:11. Further, Attorney Magee followed up the consultation by sending a letter summarizing their consultation and advised Ms. Browne to contact the government of Ireland to ascertain her benefits. Ex. 3, Letter dated May 21, 1996. Attorney Magee's representation included negotiating two changes to the Prenuptial Agreement. Plaintiff alleges that because she believed she was going to get Mr. Behncke's pension benefits if her marriage to Dr. Zalzal ended in divorce, she agreed to waive any right to "alimony, dower, widow's allowance, statutory allowance, distribution in intestacy, and right of election to take against the will of Andre" and "agreed that Andre's retirement/profit-sharing and IRA fund(s) and accumulations thereto would remain his separate property." See Ex. 4, Agreement. Ms. Browne signed the agreement on June 27, 1996 and on June 29, 1996, Ms. Browne and Dr. Zalzal married. In 2002, Ms. Browne filed for divorce from Dr. Zalzal and final judgment with a Settlement Agreement incorporated by reference was entered on November 7, 2002.

On August 8, 2010, at age sixty-five, Ms. Browne applied for Mr. Behncke's pensions from Norway and Ireland, as his widow. On October 15, 2010, Ms. Browne learned she was no longer eligible for the benefits because she had remarried after Mr. Behncke's death. Ms. Browne filed the present Complaint on August 1, 2013, alleging she relied on Attorney Magee's erroneous advice concerning her eligibility for her late husband's pension.


Standard of Review and Travel

On July 17, 2015, Defendant filed a motion for summary judgment, on which a hearing was held on October 6, 2015. For purposes of summary judgment, the Court must view the evidence "in the light most favorable to the nonmoving party" and determine if there is no "genuine issue of material fact to be decided." DeMaio v. Ciccone, 59 A.3d 125, 129 (R.I. 2013) (quoting Pereira v. Fitzgerald, 21 A.3d 369, 372 (R.I. 2011)) (internal quotation marks omitted). Further, the Court '"must refrain from weighing the evidence or passing upon issues of credibility."' Id. at 130 (quoting Doe v. Gelineau, 732 A.2d 43, 48 (R.I. 1999)). At the hearing, the Court found that there were genuine issues of material fact as to whether Attorney Magee breached her duty of care, whether there was causation, and the amount of damages. Hr'g Tr. 25:8-12; 31:8-32:4, Oct. 6, 2005.

However, the Defendant had also argued that the statute of limitations barred Plaintiff's claim of legal malpractice. Section 9-1-14.3 of the Rhode Island General Laws provides, "Notwithstanding the provisions of ยงยง 9-1-13 and 9-1-14, an action for legal malpractice shall be commenced within three (3) years of the occurrence of the incident which gave rise to the action." Additionally, the statute sets out an ...

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