The Honorable Pasc o M. Bowman succeeded the Honorable Richard S. 1 Arnold as Chief Judge of the United States Court of Appeals for th e 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 Unite d States v. * District Court for the * Western District o f Arkansas Christopher Walthall, * * Appellee. *

___________ Submitted: April 15 , 1998 Filed: May 5 , 1998

___________ Befor e BOWMAN, Chief Judge, and McMILLIAN and MURPHY , 1 Circuit Judges.

___________ McMILLIAN, Circuit Judge.TheHonorable Jimm Larry Hendron, United States District Judge for th e 2 Western District of Arkansas. -2- Plaintiffs Steve andLavonda Leonard timely appealed froma final order in the United States District Court 2 for the Western District of Arkansas, dismissing thei r comp laint without prejudice in this diversity actio n alleging l egal malpractice against defendant Christopher Walt hall. Leonard v. Walthall , No. 97-6073 (W.D. Ark
. Oct. 29, 1 997) (order of dismissal). The district court dism issed the complaint for lack of subject matte r jurisdiction due to an insufficient amount incontroversy under 28 U.S.C. § 1332. Id. For reversal, plaintiff s argu e that the district court erred in grantin g def endant’s motion for partial summary judgment an d holdi ng as a matter of Arkansas law that plaintiff s
cann ot recover damages for emotional distress or menta l anguish ba sed upon their claim of negligence. Id. (Aug. 27, 1997) (memorandum opinion and partial judgment)

. Jurisdiction is proper in this court based up on 28 U.S.C. § 1291. For the reasons stated below, we affirm.
In their complaint, plaintiffs allege that defendant acted negl igently, and thus committed legal malpractice, by first representing plaintiffs in their eff ort to adopt a child an d then representing another individual, Maxine Sutt on, in her effort to adopt the same child

. Plaintiffs allege that defendant’s wrongful conduc t
ca used a delay of several months in their successfu l ado ptionof the child, which in turn caused them t oInou r opinion, the terms “emotional distress” and “mental anguish” hav e 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 longe r wishe d to adopt the child at the time he filed a n adop tionpetition on Sutton’s behalf. Defendant move d for partia l summary judgment on the ground that Arkansas law does n ot permit, in a negligence action, recovery of dama ges for emotional distress or mental anguish absen t physical i njury. The district court granted defendant’s motion upon holding that the Arkansas Supreme Court would not-4-

permi t plaintiffs to recover damages for their allege d emoti onal distress under the undisputed facts of thi s
case.
On appeal, plaintiffs argue that the iss ue of whether Arkan sas law permits recovery of damages for emotiona l distress in the legal malpractice context has never been squarelydecided by the Arkansas Supreme Court, but that the trend is toward allowing such damages to be recovered
. Plai ntiffs 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 t o simple negligence, the Supreme Court of Arkansas has neve r recogn ized a cause of action for the merely negligen t inflictionof emotional distress, absent some accompanyin g physical injury.” See Brief for Appellants at 14-1 6 citi ng St. Louis S.W. Ry. Co. v. Pennington , 553 S.W.2 d 436, 446-52 (Ark. 1977) (en banc) (allowing recovery o f damages for mental anguish und er Ark. Stat. Ann. § 27-906 et seq. (Repl. 1962)); Twin City Bank v. Isaacs , 67 2 S.W.2 d 651, 653-55 (Ark. 1984) (allowing emotiona l distr ess damages based upon claim that bank wrongfull y dishonoreda check in violation of Ark. Stat. Ann. § 85-4

- 402 ); and Little Rock Newspapers, Inc. v. Dodrill , 66 0 S.W.2 d 933, 935-38 (Ark. 1983) (allowing damages fo r emot ional distress resulting from injury to reputation , based upon defamation claim). Plaintiffs maintain tha t these cases illustrate that the Arkansas Supreme Cour t does make exceptions to the general rule disallowin g damages for emotional distress or mental anguish based on a negligence claim.-5-

Plaintiffs also cite Smothers v. Clouett e , 934 S.W.2d 923 (Ark. 1996) ( Smothers ), inwhich a criminal defendant sough t emotional distress damages from his defens e attorney for negligent legal representation, and th e Arkansas Supreme Court reversed the trial court’s grant o f summary judgment for the defen dant-attorney. Even though the issue on appeal in Smothers was whether the action wa s barred by the statute of limitations, id. at 924-26 , plain tiffs argue this court can nevertheless infer tha t the Arkansas Supreme Court viewed the plaintiff’ s emotional distress claim based on-6-

attorney negligence as legally viable because the Arkansa s Sup reme Court could have affirmed the dismissal on an y ground.
Finally, plaintiffs maintain that there is increasing recognition of the minority ru le which allows recovery of da mages for emotional distress damages in lega l mal practice actions. See, e.g. , Kohn v. Schiappa , 65 6 A.2d 1 323 (N.J. 1995) ( Kohn ) (where attorney had bee n reta ined to represent noneconomic interests of adoptiv e paren ts, allowing adoptive parents to sue attorney fo r wrongfully

disclosing their identities to natural parents , notwithstanding absence of economic injury). Plaintiffs conte nd that the issue in Kohn is “essentiall y indistinguishable” from the is sue in the present case and
ur ge us to hold that the Arkansas Supreme Court woul d follow Kohn if faced with the case at bar.

We review de novo the issue of whether, under Arkansa s law, plaintiffs may recover damages for their allege d emotional distress resulting from defendant’s negligen t conduct, notwithstanding the undisputed fact tha t plaintiffs have suffered no physical injury or harm to a personal or economic interest. Upon careful review of th e recordand the parties’ arguments on appeal, we agree wit h the d istrict court’s holding that plaintiff may no t recover such damages under Arkansas law.

Contr ary to plaintiffs’ assertion, Wood , 814 F.2d at 546, co rrectly explains that, as a general rule o f Ar kansas law, a plaintiff may not bring an action fo r negligent infliction of emotional distress absent physica l
or s imilar injury. See, e.g. , Dalrymple v. Fields , 63 3-7-

S.W .2d 362, 364 (Ark. 1982) (plaintiff who was neithe r physi callyinjured nor directly traumatized in any wa y could not recover for emotional distress or relate d injur ies where the evidence showed negligence but no t wil lful or wanton wrongdoing by the tortfeasor)

. Mor eover, the cases upon which plaintiffs rely to sho w that there are exceptions to the general rule can easily be distinguished from the present case because they each invo lved either statutory authorization for the damage s sought or an injury to the plaintiff’s personal o r economic interests. In the present case,-8-

howev er, there is no statute authorizing the emotiona l distress damages sought by pla intiffs, nor did plaintiffs have a parental interest in th e child or other cognizable int erest which was harmed by defendant’s allege d negligence.

We also find support for the district court’ s dispositionin Thornton v. Squyres , 877 S.W.2d 921 (Ark. 1994) ( Thornton ). In that case, the Arkansas Suprem e Court affirmed the trial court ’s directed verdict against th e plaintiff, whose claim of outrage was based upo n 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 th e trial court’s quoted statement that, if the plaintif f
cou ld state an outrage claim based on what essentiall y amounted to attorney negligenc e, “‘then virtually any act of legal malpractice touching and affecting peoples’ live s 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 no t allow p laintiffs to go forward with their claim o f attorney negligence, which is based upon wrongful conduct that closely resembles the wrongful conduct alleged i n Thorntonand for which plainti ffs’ sole basis for damages is emotional distress or mental anguish. The order of th e district court is affirmed.

A true copy.

Attest:-9- CLERK, U.S. COURT OF APPEALS, EIGHT H CIRCUIT.