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Magnuson v. Velikanje

April 3, 1997


Appeal from Superior Court of Yakima County. Docket No: 94-2-02009-8. Date filed: 09/21/95. Judge signing: Hon. E. T. Reynolds.

Petition for Review Denied September 3, 1997,

Authored by Dennis J. Sweeney. Concurring: Philip J. Thompson, John A. Schultheis.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. Darlene Magnuson, Debra Ann Wright, and Donald E. Swart (hereafter the Magnusons) hired the law firm of Velikanje, Moore & Shore, Inc., P.S., and its associate, Sarah Ottem, to assist in obtaining custody of their sister's three children. Ms. Ottem drafted a complaint alleging that Dawna Case had a drug/alcohol problem, had willfully abandoned the children, and had subjected the children to an unhealthy and illegal environment. *fn1 At a temporary custody hearing, the allegations of the complaint were read into the court record. Concerned because personal service had not been effected on Ms. Case, Ms. Ottem published a copy of the custody petition in the Yakima Herald-Republic to obtain service by publication. The Magnusons contacted Ms. Ottem and told her they were upset that the petition had been published. Ms. Ottem had it withdrawn from the newspaper the next day.

After Ms. Ottem successfully obtained custody of the children for the Magnusons, they sued her and Velikanje, Moore & Shore. They alleged four causes of action: breach of contract, legal negligence, invasion of privacy, and breach of fiduciary duty. All four causes of action were based on the one-day publication of the custody petition. The Magnusons did not allege any pecuniary loss. They claimed damages solely for emotional distress. The trial court dismissed their complaint. We affirm.


Breach of Contract. The Magnusons first contend the trial court erred in dismissing their breach of contract claim. They assert that Ms. Ottem promised only to publish the summons in the newspaper. The Magnusons do not dispute the fact that they have no pecuniary damages.

Our Supreme Court has addressed whether a plaintiff is allowed to recover emotional distress damages in a breach of contract action. In Gaglidari v. Denny's Restaurants, Inc., 117 Wash. 2d 426, 815 P.2d 1362 (1991), the court held that damages for mental distress are generally not recoverable because they are present in nearly every breach of contract claim. Id. at 446 (a "pecuniary loss almost invariably causes some form and degree of mental distress," (quoting Dan B. Dobbs, Handbook on the Law of Remedies sec. 12.4, at 819 (1973))). The court went on to observe that

"by allowing emotional damages whenever they are a foreseeable result of the breach, the traditional predictability and economic efficiency associated with contract damages would be destroyed." Id. The "impact of allowing emotional distress damages for breach of contract would indeed be enormous. It is easily predictable there would be a jury issue on emotional distress in nearly . . . every breach of contract case." Id. at 448. The court in Gaglidari further recognized that the majority of jurisdictions avoid the "unpredictable and destabilizing results" by limiting emotional distress damages to "contracts uniquely intended to protect some personal interest or security and which are incapable of compensation by reference to the terms of the contract." Id. at 446; see also Lickteig v. Alderson, Ondov, Leonard & Sween, 556 N.W.2d 557, 561 (Minn. 1996) ("even a malicious or bad-faith motive in breaching a contract does not convert a contract action into a tort action sufficient to support an award of emotional distress damages").

The Restatement (Second) of Contracts (1981) is in accord. Section 353 provides: "Recovery for emotional disturbance will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result." Comment a indicates that "damages for emotional disturbance are not ordinarily allowed. Even if they are foreseeable, they are often particularly difficult to establish and to measure." Restatement (Second) of Contracts sec. 353 cmt. a, at 149.

The one-day publication of a legal complaint in the newspaper to effect service of process is not an action for which "serious emotional disturbance was a particularly likely result." Restatement, supra. The Magnusons' breach of contract action was therefore properly dismissed. They did not suffer a pecuniary loss.

Attorney Negligence. The Magnusons next contend the court erred in dismissing their legal negligence claim. They assert that publication of the summons and complaint was a clear breach of the applicable standard of care for a reasonably prudent attorney.

To establish legal malpractice, a party must prove the following elements: "(1) The existence of an attorney-client relationship which gives rise to a duty of care to the plaintiff, (2) an act or omission by the attorney in breach of the duty of care, (3) damage to the plaintiff, and (4) proximate causation between the attorney's breach of duty and the damage incurred. Trask v. Butler, 123 Wash. 2d 835, 839-40, 872 P.2d 1080 (1994). The sole issue here is the third element: whether the Magnusons suffered damages. Again, they only claim damages for emotional distress.

The Magnusons offer no argument or authority to support their position that they may recover damages for emotional distress in a legal negligence action.

In Cultum v. Heritage House Realtors, Inc., 103 Wash. 2d 623, 694 P.2d 630 (1985), the court, in dicta, made a broad statement that "an attorney is liable for all losses caused by his or her failure to follow the explicit instructions of the client." Id. at 632 (emphasis added) (citing Olfe v. Gordon, 93 Wis. 2d 173, 286 N.W.2d 573 (1980)). Cultum, however, did not involve emotional distress damages in an attorney malpractice case. The issue in Cultum was whether a real estate sales person's completion of an earnest money form was the unauthorized practice of law. The plaintiff ...

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