Bevan v. Fix
| Decision Date | 21 March 2002 |
| Docket Number | No. 00-199.,00-199. |
| Citation | 2002 Wyo. 43,2002 WY 43,42 P.3d 1013 |
| Parties | Steven Matthew BEVAN; Steven Tyler Bevan, a minor through his next friend, Steven Matthew Bevan; and Brittany Bevan, a minor through her next friend, Steven Matthew Bevan, Appellants (Plaintiffs), v. William R. FIX, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
Robert E. Schroth, Jackson, WY, Representing Appellants. Argument by Mr. Schroth.
Stephen H. Kline of Kline Law Office, P.C., Cheyenne, WY, Representing Appellee. Argument by Mr. Kline.
Before LEHMAN, C.J., and GOLDEN, HILL, and KITE, JJ., and SPANGLER, D.J., Ret LEHMAN, Chief Justice.
[¶ 1] Appellant minors, Brittany Bevan and Steven Tyler Bevan (Brittany and Steven) appeal, through their father and next friend Steven Matthew Bevan (Bevan), from the district court's grant of summary judgment in favor of appellee William R. Fix (Fix) on their claims of intentional infliction of emotional distress. Having determined that the record reveals genuine issues of material fact sufficient to preclude summary judgment for the appellee on either child's claim, we reverse.
[¶ 2] After addressing the scope of the duty an attorney owes former clients, however, we affirm the district court's grant of summary judgment in favor of appellee Fix on appellant Bevan's claim of legal malpractice. Affirmed in part, reversed in part, and remanded.
[¶ 3] Appellants present two issues for review:
[¶ 4] Pursuant to our standard of review for summary judgments, the recitation of facts is from the vantage point most favorable to the plaintiffs, as the parties opposing the motions, awarding them all favorable inferences that may be drawn from the facts. S & G Investors, LLC v. Blackley, 994 P.2d 941, 943 (Wyo.2000).
[¶ 5] Defendant William Fix is an attorney licensed to practice law in the state of Wyoming with an office in Jackson. In July of 1992, Bevan hired Fix to represent him as defense counsel on a charge of criminal battery for family violence against his then girlfriend Jenni Jones (Jones). Fix represented Bevan throughout the course of those proceedings, which ultimately ended in a plea agreement. In December of 1994, Bevan and Jones married. Brittany and Steven are the couple's biological children. Brittany was born in August of 1991, Steven in April of 1994.
[¶ 6] In January of 1997, Jones, represented by Fix, filed a complaint for divorce from Bevan. Bevan was not consulted in regard to Fix's representation of his wife Jones nor did he consent to the representation. Subsequently, in June of 1997, Fix withdrew from representation of his client Jones because he had begun a sexual relationship with her. Bevan further alleges that during the course of the couple's divorce proceedings Fix, upon hearing a rumor that Bevan was going to file a lawsuit against him, phoned Bevan and threatened, "if I messed with him he would bury me."1 Bevan and Jones' divorce was finalized in December of 1997.
[¶ 7] The facts that relate to the Bevan children's claims are as follows. On the evening of March 29, 1998, Jones and her children Brittany and Steven, as well as two teenage babysitters, were invited to Fix's home to spend the night.2 Jones and Fix left the children in the care of the babysitters and spent the evening drinking in a local bar with various others. After returning to Fix's home, the following events took place over the course of the night and the subsequent morning.
[¶ 8] It appears from the record that everyone present agrees that Fix, Jones, and at least two other guests continued drinking and that eventually four adults, including Fix and Jones, were soaking in Fix's hot tub. At some point while in the hot tub, a verbal altercation between Fix and Jones escalated into physical violence. Over the next several hours, this pattern of verbal and physical conflict between the two continued, culminating in the violent physical confrontation that forms the basis for the Bevan children's tort claims.
[¶ 9] According to the affidavit of Jones:3
Both Fix and Jones were arrested at the scene; and, in the course of the investigation, police reports were generated which contain interviews with those witnesses present.
[¶ 10] Relatively soon after these events, Steven began "acting out" in preschool. His angry behavior included swearing and choking his classmates. Brittany reportedly had difficulty sleeping and was experiencing nightmares. Both Steven and Brittany began seeing a counselor for their behaviors; and, although the counselor "felt like both kids were, had been impacted by, in a negative way by witnessing this violence," he concentrated on Steven, believing that Brittany was "very quiet and seemed to be kind of, either seemed to be dealing with this better or at least in a different way than Steven." The counselor, following consultation with Steven's parents, caretakers, and teachers, diagnosed Steven as suffering from post-traumatic stress disorder (PTSD). Some months later, the children began seeing a second counselor in the same facility. This second counselor also diagnosed Steven as suffering from PTSD and, in addition, diagnosed Brittany as suffering from "dysthmic disorder," a form of depression. At the time summary judgment was granted, both children continued to see the second counselor therapeutically.
[¶ 11] In addition, a clinical psychologist who specializes in treating children has evaluated Brittany and Steven. According to her deposition testimony, this psychologist disclosed that Brittany has been very depressed and, while being interviewed, admitted continued suicidal feelings, including a specific incident in the summer of 1998. The psychologist flatly stated,
[¶ 12] In March of 2000, defendant Fix moved for summary judgment on all of the plaintiffs' claims. The plaintiffs opposed this motion through memorandum supported by deposition testimony and affidavit. Following a hearing on April 10, 2000, the district court entered its order granting summary judgment to Fix on all claims. This timely appeal on the claims of intentional infliction of emotional distress and legal malpractice followed.
[¶ 13] Summary judgment is appropriate if the record, viewed in the light most favorable to the non-moving party, reveals that no genuine issues of material fact exist and the prevailing party is entitled to judgment as a matter of law. Worley v. Wyoming Bottling Co., Inc., 1 P.3d 615, 620 (Wyo.2000); Terry v. Pioneer Press, Inc., 947 P.2d 273, 275 (Wyo.1997); Davis v. Wyoming Medical Center, Inc., 934 P.2d 1246, 1250 (Wyo.1997); W.R.C.P. 56(c). A fact is material if it establishes or refutes an essential element of a claim or defense. Tidwell v. HOM, Inc., 896 P.2d 1322, 1324 (Wyo.1995). In evaluating summary judgment, we apply the same standards as the trial court, without affording any deference to the trial court's decisions on issues of law. Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 216 (Wyo.1994).
[¶ 14] In R.D. v. W.H., 875 P.2d 26, 32 (Wyo.1994), this court expressly adopted the third party intentional infliction of emotional distress cause of action found in Restatement, Second, Torts, § 46(2) (1965). This subsection provides:
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