FRANCES SELSNICK, Appellant, v. RICHARD HORTON, Respondent
Selsnick v. Horton
Gunderson, J., concurred and dissented.
FRANCES SELSNICK, Appellant, v. RICHARD HORTON, Respondent.
FRANCES SELSNICK, Appellant, v. RICHARD HORTON, Respondent.
No. 10779
December 30, 1980
620 P.2d 1256
Gunderson, J., concurred and dissented.
Douglas G. Lohse, Reno, for Appellant.
Vargas, Barlett & Dixon, and John C. Renshaw, Reno, for Respondent.
OPINION
By the Court,
Mowbray, C. J.:
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, 235 N.W.2d 686 (Wis. 1975); Alcorn v. Anbro Engineering, Inc., 468 P.2d 216 (Cal. 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., 426 P.2d 173 (Cal. 1967); Chelini v. Nieri, 196 P.2d 915 (Cal. 1948). Because this case, as presented below, did not warrant a jury instruction din 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.