The Honorable Pasco M. Bowman succeeded the Honorable Richard S. 1

Arnold as Chief Judge of the United States Court of Appeals for the

Eighth Circuit at the close of business on April 17, 1998.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-4062

___________

Steve Leonard, Lavonda Leonard, *

*

Appellants, *

* Appeal from the United

States

v. * District Court for the

* Western District of

Arkansas

Christopher Walthall, *

*

Appellee. *

___________

 Submitted: April 15,

1998

 Filed: May 5,

1998

___________

Before BOWMAN, Chief Judge, and McMILLIAN and MURPHY,

1

Circuit Judges.

___________

McMILLIAN, Circuit Judge.
The Honorable Jimm Larry Hendron, United States District Judge for the

2

Western District of Arkansas.

-2-

Plaintiffs Steve and Lavonda Leonard timely appealed

from a final order in the United States District Court2

for the Western District of Arkansas, dismissing their

complaint without prejudice in this diversity action

alleging legal malpractice against defendant Christopher

Walthall. Leonard v. Walthall, No. 97-6073 (W.D. Ark.

Oct. 29, 1997) (order of dismissal). The district court

dismissed the complaint for lack of subject matter

jurisdiction due to an insufficient amount in controversy

under 28 U.S.C. § 1332. Id. For reversal, plaintiffs

argue that the district court erred in granting

defendant’s motion for partial summary judgment and

holding as a matter of Arkansas law that plaintiffs

cannot recover damages for emotional distress or mental

anguish based upon their claim of negligence. Id. (Aug.

27, 1997) (memorandum opinion and partial judgment).

Jurisdiction is proper in this court based upon 28 U.S.C.

§ 1291. For the reasons stated below, we affirm. 

In their complaint, plaintiffs allege that defendant

acted negligently, and thus committed legal malpractice,

by first representing plaintiffs in their effort to adopt

a child and then representing another individual, Maxine

Sutton, in her effort to adopt the same child.

Plaintiffs allege that defendant’s wrongful conduct

caused a delay of several months in their successful

adoption of the child, which in turn caused them to
In our opinion, the terms “emotional distress” and “mental anguish” have

3

essentially the same meaning and are interchangeable. 

-3-

suffer great emotional distress and mental anguish. In 3

his answer, defendant alleges that plaintiffs no longer

wished to adopt the child at the time he filed an

adoption petition on Sutton’s behalf. Defendant moved

for partial summary judgment on the ground that Arkansas

law does not permit, in a negligence action, recovery of

damages for emotional distress or mental anguish absent

physical injury. The district court granted defendant’s

motion upon holding that the Arkansas Supreme Court would

not
-4-

permit plaintiffs to recover damages for their alleged

emotional distress under the undisputed facts of this

case. 

On appeal, plaintiffs argue that the issue of whether

Arkansas law permits recovery of damages for emotional

distress in the legal malpractice context has never been

squarely decided by the Arkansas Supreme Court, but that

the trend is toward allowing such damages to be recovered.

Plaintiffs describe as “incorrect” the Eighth Circuit’s

statement in Wood v. National Computer Systems, Inc., 814

F.2d 544, 546 (8th Cir. 1987) (Wood), that, “[a]s to

simple negligence, the Supreme Court of Arkansas has never

recognized a cause of action for the merely negligent

infliction of emotional distress, absent some accompanying

physical injury.” See Brief for Appellants at 14-16

citing St. Louis S.W. Ry. Co. v. Pennington, 553 S.W.2d

436, 446-52 (Ark. 1977) (en banc) (allowing recovery of

damages for mental anguish under Ark. Stat. Ann. § 27-906

et seq. (Repl. 1962)); Twin City Bank v. Isaacs, 672

S.W.2d 651, 653-55 (Ark. 1984) (allowing emotional

distress damages based upon claim that bank wrongfully

dishonored a check in violation of Ark. Stat. Ann. § 85-4-

402); and Little Rock Newspapers, Inc. v. Dodrill, 660

S.W.2d 933, 935-38 (Ark. 1983) (allowing damages for

emotional distress resulting from injury to reputation,

based upon defamation claim). Plaintiffs maintain that

these cases illustrate that the Arkansas Supreme Court

does make exceptions to the general rule disallowing

damages for emotional distress or mental anguish based on

a negligence claim. 
-5-

Plaintiffs also cite Smothers v. Clouette, 934 S.W.2d

923 (Ark. 1996) (Smothers), in which a criminal defendant

sought emotional distress damages from his defense

attorney for negligent legal representation, and the

Arkansas Supreme Court reversed the trial court’s grant of

summary judgment for the defendant-attorney. Even though

the issue on appeal in Smothers was whether the action was

barred by the statute of limitations, id. at 924-26,

plaintiffs argue this court can nevertheless infer that

the Arkansas Supreme Court viewed the plaintiff’s

emotional distress claim based on
-6-

attorney negligence as legally viable because the Arkansas

Supreme Court could have affirmed the dismissal on any

ground. 

Finally, plaintiffs maintain that there is increasing

recognition of the minority rule which allows recovery of

damages for emotional distress damages in legal

malpractice actions. See, e.g., Kohn v. Schiappa, 656

A.2d 1323 (N.J. 1995) (Kohn) (where attorney had been

retained to represent noneconomic interests of adoptive

parents, allowing adoptive parents to sue attorney for

wrongfully disclosing their identities to natural parents,

notwithstanding absence of economic injury). Plaintiffs

contend that the issue in Kohn is “essentially

indistinguishable” from the issue in the present case and

urge us to hold that the Arkansas Supreme Court would

follow Kohn if faced with the case at bar.

We review de novo the issue of whether, under Arkansas

law, plaintiffs may recover damages for their alleged

emotional distress resulting from defendant’s negligent

conduct, notwithstanding the undisputed fact that

plaintiffs have suffered no physical injury or harm to a

personal or economic interest. Upon careful review of the

record and the parties’ arguments on appeal, we agree with

the district court’s holding that plaintiff may not

recover such damages under Arkansas law. 

Contrary to plaintiffs’ assertion, Wood, 814 F.2d at

546, correctly explains that, as a general rule of

Arkansas law, a plaintiff may not bring an action for

negligent infliction of emotional distress absent physical

or similar injury. See, e.g., Dalrymple v. Fields, 633
-7-

S.W.2d 362, 364 (Ark. 1982) (plaintiff who was neither

physically injured nor directly traumatized in any way

could not recover for emotional distress or related

injuries where the evidence showed negligence but not

willful or wanton wrongdoing by the tortfeasor).

Moreover, the cases upon which plaintiffs rely to show

that there are exceptions to the general rule can easily

be distinguished from the present case because they each

involved either statutory authorization for the damages

sought or an injury to the plaintiff’s personal or

economic interests. In the present case,
-8-

however, there is no statute authorizing the emotional

distress damages sought by plaintiffs, nor did plaintiffs

have a parental interest in the child or other cognizable

interest which was harmed by defendant’s alleged

negligence. 

We also find support for the district court’s

disposition in Thornton v. Squyres, 877 S.W.2d 921 (Ark.

1994) (Thornton). In that case, the Arkansas Supreme

Court affirmed the trial court’s directed verdict against

the plaintiff, whose claim of outrage was based upon

allegations that her attorney mishandled her divorce and

thus caused her temporarily to lose custody of her child.

Id. at 922-23. The Arkansas Supreme Court agreed with the

trial court’s quoted statement that, if the plaintiff

could state an outrage claim based on what essentially

amounted to attorney negligence, “‘then virtually any act

of legal malpractice touching and affecting peoples’ lives

is also a tort of outrage.’” Id. at 923. 

In sum, we agree with the district court’s holding in

the present case that the Arkansas Supreme Court would not

allow plaintiffs to go forward with their claim of

attorney negligence, which is based upon wrongful conduct

that closely resembles the wrongful conduct alleged in

Thornton and for which plaintiffs’ sole basis for damages

is emotional distress or mental anguish. The order of the

district court is affirmed.

A true copy.

Attest:
-9-

 CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.