Selsnick v. Horton

• Citation: 96 Nev. 944,620 P.2d 1256
• Decision Date: 30 December 1980
• Docket Number: No. 10779,10779
• Parties: Frances SELSNICK, Appellant, v. Richard HORTON, Respondent.
• Court: Supreme Court of Nevada

Page 1256

620 P.2d 1256

96 Nev. 944

Frances SELSNICK, Appellant, v. Richard HORTON, Respondent.

No. 10779.

Supreme Court of Nevada.

Dec. 30, 1980.

Douglas G. Lohse, Reno, for appellant.

Vargas, Bartlett & Dixon, and John C. Renshaw, Reno, for respondent.

OPINION

MOWBRAY, Chief Justice:

THE FACTS

Appellant Frances Selsnick commenced an action for legal malpractice against Attorney Richard Horton. Appellant's claims of negligence were based upon three grounds: (1) respondent Horton's failure to prosecute an appeal of a summary judgment granted in favor of First Commercial Title; (2) Horton's dismissal without prejudice, of a claim against Union Federal; and (3) Horton's advice to appellant to release certain funds pursuant to a stipulation. A jury awarded appellant $52,126.80. A postjudgment motion for new trial was granted primarily on the grounds that a jury instruction was given which, in the view of the district court, improperly allowed compensation for mental anguish. Appellant appeals from the order granting the motion for a new trial, and the district court's order granting a partial summary judgment against appellant on her claim predicated upon Horton's failure to prosecute the appeal against First Commercial Title.

THE MOTION FOR A NEW TRIAL

Part of the instruction regarding damages read: "Such sum to plaintiff as may reasonably compensate plaintiff for any mental anguish, anxiety, or suffering caused by defendant's actions." It was error for the trial court to so instruct. Appellant's suit was premised solely upon ordinary negligence; she did not allege nor attempt to prove extreme and outrageous conduct causing such anguish or distress. Absent such proof, appellant may not recover damages for mental anguish or emotional distress. McKissick v. Schroeder, 70 Wis.2d 825, 235 N.W.2d 686 (1975); Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216 (1970); Restatement (Second) of Torts § 46(1) (1965). Cases cited in the dissent for the opposite proposition involve situations allowing an additional element of damage because of the presence of physical injury. Babcock & Wilcox Co. v. Nolton, 58 Nev. 133, 71 P.2d 1051 (1937); see also Burrus v. N.-C.-O. Ry. Co., 38 Nev. 156, 145 P. 926 (1914); Barnes v. W. U. Tel. Co., 24 Nev. 125, 50 P. 438 (1897). In the Burrus case, this court merely recognized the rule that, in special cases involving peculiarly personal subject matters, mental anguish may be a foreseeable damage resulting from breach of contract. See Crisci v. Security Insurance Co. of New Haven, Conn., 66 Cal.2d 425, 58 Cal.Rptr. 13, 426 P.2d 173 (1967); Chelini v. Nieri, 32 Cal.2d 480, 196 P.2d 915 (1948). Because this case, as presented below, did not warrant a jury instruction on mental anguish, the trial court properly granted respondent his motion for a new trial.

THE PARTIAL SUMMARY JUDGMENT

The trial court granted respondent's motion for partial summary judgment against appellant on her claim predicated upon Horton's failure to prosecute an appeal against First Commercial Title. NRCP 56(c) allows for summary judgment only where there is no genuine issue as to any material fact. Whether Horton's conduct in not pursuing the appeal or not applying for relief from the default judgment, NRCP 60, fell below that of a reasonable attorney is an issue of fact which should have been resolved at trial. Therefore, the trial court erred in granting respondent's motion.

For the above reasons, we affirm the order granting respondent's motion for a new trial, and reverse the order granting respondent partial summary judgment.

THOMPSON, MANOUKIAN and BATJER, JJ., concur.

GUNDERSON, Justice, concurring and dissenting:

The appellant, Dr. Selsnick, contends the trial court erred, inter alia, by granting partial summary judgment in favor of respondent Horton. Thereby, the court precluded Dr. Selsnick from introducing evidence at trial on allegations that attorney Horton failed to prosecute the appeal he had been hired to process in her behalf; that for several months Horton repeatedly lied to her, saying her appeal remained viable; that Horton in fact acquiesced in dismissal of her appeal without informing her or obtaining her consent; and that Horton's actions constituted not only negligence, but extreme and outrageous conduct. By thus rendering summary judgment, the trial court determined that Mr. Horton's misconduct could not, as a matter of law, give rise to a cause of action or, in the alternative, that such misconduct did not damage Dr. Selsnick in any measurable way.

Therefore, the majority's assertion that Dr. Selsnick "did not allege nor attempt to prove extreme and outrageous conduct" causing anguish or distress is only correct because the trial court, by summary judgment, precluded such proof.

Even without her claim for outrageous conduct being fully and properly presented, Dr. Selsnick apparently satisfied the jury that Mr. Horton's actions warranted a verdict in her favor. I respectfully submit that this verdict, entered upon Dr. Selsnick's other claims against Mr. Horton, should be upheld and that no further delay should be indulged in allowing her recovery as to the sum of $52,126.00.

It appears from the record that on or about March 28, 1972, Dr. Selsnick employed Mr. Horton to file an appeal of a default summary judgment entered against her and in favor of First Commercial Title Company ("the builder's control") in an ongoing contractual dispute centered on the construction of the doctor's home. Mr. Horton took a retainer of $500.00 and, on April 10, filed a notice of appeal. In the ensuing two months, Horton neither docketed the record on appeal, nor sought an extension of time to do so. On August 18, 1972, this court granted an unopposed motion by First Commercial Title to dismiss the appeal on grounds that it had been abandoned.

The record further reflects that while these events were occurring, up to and including December 4, 1972, Horton repeatedly told Dr. Selsnick that her appeal was pending and all was in order. In November of 1972, Dr. Selsnick personally called this court to inquire about the status of her appeal and learned it had been dismissed. ¹

On December 5, 1972, Dr. Selsnick finally managed to confront Mr. Horton personally and told him, "Mr. Horton, I know that the appeal is no longer before the Supreme Court ... What do we do?" Mr. Horton made no response at all for a few moments and then told Dr. Selsnick, "I give ulcers, I don't get ulcers."

These facts are obviously sufficient to support a finding of liability against Mr. Horton, whether on grounds of ordinary negligence, or grounds of outrageous or willful misconduct. ²

By signing and filing Dr. Selsnick's appeal as he did on April 10, 1972, Mr. Horton indicated that he believed there were good grounds to support it. NRCP 11. In dismissing the appeal for a want of perfection on August 18, 1972, this court did not determine that the appeal was frivolous or that it had been processed for purposes of delay, nor did this court impose damages for delay on Dr. Selsnick. NRAP 38. Mr. Horton did not seek a voluntary dismissal of the appeal under NRAP 42 nor did he ever express any reservations about the merits of the appeal to Dr. Selsnick. Permissible inferences from this court's action, and Mr. Horton's inaction, are that although the appeal did not lack merit, Mr. Horton inexcusably failed to perfect it and to prevent its dismissal. ³

Also, the record shows Mr. Horton acted outrageously by repeatedly lying to Dr. Selsnick, saying her appeal was still pending when he knew it had been dismissed, without his having registered any opposition. If he had acted properly, or allowed Dr. Selsnick to do so, the appeal Mr. Horton has certified to be valid could have been preserved.

A trial judge should exercise great care in granting motions for summary judgment. Short, cited above; McColl v. Scherer, 73 Nev. 226, 231-232, 315 P.2d 807 (1957). Rule 56 of the NRCP ⁴ authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, and where no genuine issue remains for trial. Short, cited above; Bader Enterprises, Inc. v. Becker, 95 Nev. 807, 809, 603 P.2d 268 (1979); Lipshie v. Tracy Investment Co., 93 Nev. 370, 375, 566 P.2d 819 (1977); Nevada Land & Mtge. v. Hidden Wells, 83 Nev. 501, 506, 435 P.2d 198 (1967). A litigant has a right to trial where there is the slightest doubt as to the facts. Short, cited above.

As the majority appear to realize, it is widely recognized that an attorney may be held liable for the failure to take or perfect an appeal if a trial shows an appeal would have resulted favorably to the client. Moreover, in circumstances analogous to those before us, it has been held that an action lies even without a showing that the appeal would have been won. Welder v. Mercer, 247 Ark. 999, 448 S.W.2d 952 (1970) (failure to perfect appeal by missing deadline for filing of transcripts in will contest constituted a gross dereliction of duty for which the attorney was liable).

In the instant matter, Dr. Selsnick was ready to present evidence to establish that her appeal of the default summary judgment in favor of First Commercial Title would likely have been successful. She had several expert witnesses ready to testify to that effect. ⁵ During the trial, when Dr....