Long-Russell v. Hampe

• Decision Date: 04 February 2002
• Docket Number: No. 00-310.,00-310.
• Citation: 39 P.3d 1015,2002 WY 16
• Parties: Sharon LONG-RUSSELL, Appellant (Plaintiff), v. Robert A. HAMPE, Appellee (Defendant).
• Court: Wyoming Supreme Court

39 P.3d 1015

2002 WY 16

Sharon LONG-RUSSELL, Appellant (Plaintiff), v. Robert A. HAMPE, Appellee (Defendant).

No. 00-310.

Supreme Court of Wyoming.

February 4, 2002.

Walter Urbigkit of Frontier Law Center, Cheyenne, WY, Representing Appellant. Argument by Mr. Urbigkit.

Curtis B. Buchhammer of Buchhammer & Kehl, P.C., Cheyenne, WY, Representing Appellee. Argument by Mr. Buchhammer.

Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.

HILL, Justice.

[¶ 1] In this matter we are asked to answer questions certified to this Court in accordance with W.R.A.P. 11. Appellant, Sharon Long-Russell (Long-Russell), seeks an opinion of this Court which would resolve the question of whether damages for emotional suffering may be awarded in the context of a legal malpractice case wherein mere negligence on the part of the attorney is the basis for the claim of emotional damages. Appellee, Robert A. Hampe (Hampe), Attorney-at-Law, asks that those questions be answered in the negative.

[¶ 2] We will answer the certified questions in the negative. Such emotional damages may be an element of a claim for damages, in the context of a legal malpractice action, under certain limited circumstances, but not the circumstance of mere negligence.

THE CERTIFIED QUESTIONS

[¶ 3] The issues certified to this Court, by the district court, are:

1. Are damages for emotional suffering available in a legal malpractice case which alleges that an attorney negligently failed to properly assert property claims in a divorce, or negligently gave bad advice resulting in a client's eviction from her place of residence?

2. Are damages for emotional suffering available in a legal malpractice case which alleges that an attorney negligently gave incorrect legal advice about a child visitation order?

FACTUAL BACKGROUND

[¶ 4] We are asked to settle a question of law that has not been directly presented to this Court before, but which is somewhat clouded by decisions of this Court that appear to be in conflict with each other. The facts of this case are not a factor in our resolution of the questions of law at issue, but we will provide a brief outline of those facts so as to provide a structural background for our decision. The certified questions assume a factual circumstance wherein an attorney is alleged to have been negligent in the performance of his services for a client.

[¶ 5] Long-Russell was divorced from her second husband, Gary Long (Long), in September, 1982. The property settlement agreed to in that divorce made no mention of the parties owning a home. Hampe played no role in that divorce. At the time of that divorce, Long-Russell and Long were apparently renting a home from Long's parents and completing repairs on that home with a view to ultimately buying it from Long's parents. Some time after that divorce was final, Long obtained title to the home from his parents. The most significant complicating factor in this case is that Long-Russell continued to live in that house, apparently without paying rent, until Long had her evicted in 1995. Hampe did not represent Long-Russell in the eviction action either. However, Long-Russell did hire Hampe in 1995 to try to undo the eviction. At the time Hampe began representing Long-Russell, she was still residing in the home but was forcibly evicted pursuant to court order shortly after retaining Hampe as her lawyer.

[¶ 6] At the time of her divorce from Long, Long-Russell was pregnant with Richard Russell's (Russell) child. Long-Russell then married Russell, and the two of them (and eventually their two children) continued living in Long's house, with the Russell family living in the upstairs portion of the house and Long living in the basement. In January, 1995, Long-Russell was divorced from Russell. The decree of divorce in that case made no reference to Long-Russell or Russell owning any interest in Long's home. During this divorce and even after the divorce was final, custody of the children born of Long-Russell's marriage to Russell was in dispute. Hampe did not represent Long-Russell during this divorce or in the child custody proceedings which resulted in her temporary loss of the custody of the children. However, Long-Russell did hire Hampe to attempt to undo the loss of the custody of her children. Eventually, Russell was given permanent custody of the children and Long-Russell was accorded liberal visitation. The record extant suggests that all parties continue to reside in Cheyenne.

[¶ 7] The essence of Long-Russell's malpractice claim against Hampe is that he accepted her payment of attorney's fees in the approximate amount of $9,500.00 and did no meaningful work for her, gave her bad advice which complicated her legal problems, pursued hopeless claims and failed to pursue hopeful ones, and made promises of success in the legal arena that were irresponsible and, of course, they did not come to pass. In addition to the loss of the $9,500.00 in attorney's fees, Long-Russell sought damages for loss of her alleged interest in Long's home, emotional damages for the emotional upheaval that attended her eviction from Long's home, and the loss of the custody of her children. It is the claim of emotional damages that is our sole concern in this matter.

DISCUSSION

[¶ 8] In the case Jackson State Bank v. King, 844 P.2d 1093, 1096 (Wyo.1993), we stated that Wyoming's comparative negligence statute is limited to those actions based on negligence only, and that it could not be extended to actions based on contract. Continuing, we stated that the comparative negligence statute would not bar recovery in a legal malpractice action, "which necessarily is based on claims of breach of contract and breach of fiduciary duty." We did not further develop the reasoning behind the quoted sentence and, furthermore, we did not cite pertinent authority to substantiate it. Although we do not call into question the result reached in the Jackson State Bank case, from today's perspective it cannot be said to resolve any of the issues at large in the instant matter.

[¶ 9] In the case Moore v. Lubnau, 855 P.2d 1245, 1248-49 (Wyo.1993), we adopted a standard well known to the area of medical malpractice as applicable also to the area of legal malpractice. This is a negligence standard, rather than a contract standard. In Meyer v. Mulligan, 889 P.2d 509, 516 (Wyo. 1995), we continued to discuss legal malpractice as an action sounding in negligence. Also see Peterson v. Scorsine, 898 P.2d 382, 388 (Wyo.1995) (wherein it is suggested that legal malpractice claims may sound both in contract and in negligence).

[¶ 10] In Daily v. Bone, 906 P.2d 1039 (Wyo.1995), we held that a claim for emotional damages stemming from a tort arising out of an automobile accident is properly assigned to a jury. In Blagrove v. JB Mechanical, Inc., 934 P.2d 1273, 1275-77 (Wyo.1997), we held as follows:

In Wyoming, our decisions have restricted recovery for emotional distress damages without accompanying physical injury. Gates v. Richardson, 719 P.2d 193, 195 (Wyo.1986). We have recognized the torts of intentional and negligently inflicted emotional distress but their application is narrowly construed to allow recovery for emotional distress only under limited circumstances. Gates, 719 P.2d at 195; Leithead v. American Colloid Co., 721 P.2d 1059, 1066 (Wyo.1986). We have permitted recovery for emotional distress as an element of damages in certain underlying actions: 1) some intentional torts, Waters v. Brand, 497 P.2d 875, 877-878 (Wyo. 1972) (false imprisonment); Cates v. Eddy, 669 P.2d 912, 921 (Wyo.1983) (malicious prosecution); 2) violation of certain constitutional rights, Town of Upton v. Whisler, 824 P.2d 545, 549 (Wyo.1992); and 3) breach of the covenant of good faith and fair dealing, State Farm Mutual Auto. Ins. Co. v. Shrader, 882 P.2d 813, 833 (Wyo. 1994). Outside of these few instances, we have adhered to the general concept that negligence permits recovery for personal injury or property damage but usually will not result in liability for emotional distress. Gates, 719 P.2d at 195; Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171, 178 (1982); W. Page Keeton et al., Prosser and Keeton on Torts § 54, at 359-60 (5th ed.1984) (few courts permit compensation for negligence which causes fright, shock, or mental disturbance). In a negligence action for personal injury, Wyoming permits recovery for emotional distress accompanying physical injury, but has not yet answered whether emotional distress damages are compensable where the defendant negligently damages or destroys real property.

The Blagroves contend that Daily provides authority for permitting recovery of their emotional distress damages under a negligence theory. In Daily, Bone drove his snowmobile through a stop sign onto a major highway causing a collision with Daily's vehicle and killing Bone. Daily, 906 P.2d at 1042. Daily was not physically injured but her witnessing Bone's impact and death caused her mental suffering of post traumatic stress disorder, depression, and agoraphobia. Id. Daily sued Bone's estate for emotional distress caused by Bone's negligence and we decided that, under the circumstances of the case, she was entitled to a trial to determine if Bone's negligence had caused her emotional distress damages. Id. at 1044.

Daily is not helpful to the Blagroves because it has the limited scope of allowing recovery for mental injury absent physical injury in an automobile collision case. Under the general rule, if Daily had been physically injured in the automobile collision she could have recovered damages for pain and suffering associated with her physical injuries and she could have recovered for the emotional distress of witnessing Bone's death. Id. at 1043. But because the general rule linked physical injury to an emotional distress claim, that rule would not permit Daily to recover for the emotional distress of witnessing Bone's death if

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