*1 Shirley DUNN, A. Plaintiff Appellant, BURTON,
McKAY, McMURRAY &
THURMAN, Partnership, Eng- Daniel County
land, Legal Lake and Salt Serv-
ices, corporation, Defendants and Re-
spondents.
No. 15208.
Supreme Utah. Court of
Sept. King Schumacher,
Samuel
of King &
Salt
Lake City,
appellant.
H. Wayne Wadsworth of Watkiss &
Campbell, Stephen
Nebeker,
B.
Kipp &
Frederick,
Christian of J. Dennis
Salt Lake
City, for defendants
respondents.
*2
CROCKETT, Justice:
Mr. England then filed a complaint
Utah seeking a divorce and custody of the
Plaintiff, Shirley
brought
A. Dunn
this
children
plaintiff.
for the
After an unsuc-
defendants,
malpractice against
action for
cessful attempt
to have John Dunn served
England
McKay,
Daniel
and the law firm of
personally
Florida,
proceeded
he
pursu-
Burton,
(hereinafter
McMurray & Thurman
4(f)(2)
ant to Rule
of U.R.C.P.2 and obtain-
McKay);
County
Lake
Legal
Salt
Serv-
ed an order for service by mail. But in-
ices,
alleged
their
negligent Representa-
stead
having
the clerk mail the summons
tion of her in a divorce action. After the
complaint,
he mailed it himself on Feb-
evidence,
presentation
plaintiff’s
ruary
granted
trial court
the motion of the de-
In February 1975,
England
Mr.
left the
fendants for a directed verdict. Plaintiff
McKay firm and became associated with
appeals.
another. With the consent of the McKay
The plaintiff
complaint
makes no
about
firm,
plaintiff’s
he took
file. When plain-
divorce,
granting
pur-
for which
tiff contacted him in March 1975 he in-
pose her husband initiated an action in
formed her that under the policy of the new
Florida,
engaged
and she
Eng-
defendant
law firm he
proceed
could not
with her case
land
until
paid
and commenced one in Utah. Her
she
him
$200;
an additional
which she did not do.
complaint
is that
the defendant
complaint
person-
mailed the
and summons
April
In
plaintiff
operated
was
on
ally,
instead
the clerk mail it as
for the removal of blood clots on
spine.
her
4, U.R.C.P.,1
provided
thereby
in Rule
de-
deposition,
her
testified that
laying the Utah divorce proceedings. The while
hospitalized,
she was
her' employer,
damages plaintiff seeks are
alleged
for the
who had been taking care of the two
loss of
of the children
daughters
and cost of
told
that he could no longer
care for
legal counsel
Florida.
them. He suggested that
inas-
much as the
had no relatives in
In September
plaintiff, her hus-
Lake,
Salt
the possibility of placing them in
band,
Dunn,
children,
John
and their two
a foster home should be considered. Plain-
Samantha,
Katherine and
moved from Flor-
that,
tiff
though
said
she did not want the
ida to
City
Salt Lake
where she had obtain-
girls
Florida,
go
that was better than
a position
ed
as director of a vocational
placing them in a foster home and was
school. Her husband had been unemployed
only
therefore her
rational alternative. Af-
during 1974 as the
injuries
result of
he had
girls
ter the
Florida,
arrived in
the plain-
sustained in an industrial accident.
In Oc-
tiff’s husband was
awarded
in a
1974 Mr.
tober of
Dunn
returned
Florida
divorce proceeding he initiated there.3
and filed for a divorce in December of that
In seeking the solution to the prob
year.
lem here presented it
appropriate
is
to in
The
then contacted Mr. England,
quire as to what
the plaintiff’s position
who
then
associated with the McKay would have been if the summons referred
paid
firm and
him a
retainer fee.
$75
Mr.
to had been
mailed
accordance with the
and,
contacted counsel in Florida
rule,
compared
as
to her present position.
through
cooperation,
his
Mr. Dunn’s action
only
drawn,
reasonable conclusion to be
ground
was dismissed on the
that he did not
even
from the
deposition,
own
is
then have the
require-
six month residence
agreed
that she
to send her children to their
ment in Florida.
father in
Furthermore,
Florida.
they were
4(f)(2),
provides
1.Rule
U.R.C.P.
that where
2. See
note
above.
personally
summons cannot be served
that
may
“.
.
the court
order
service of
only
regard
3. We have stated
what we
as the
given
mailing
summons shall be
the clerk
facts,
they
amply supplement-
essential
but
are
copy
of the summons and
to the
dissent,
ed in to which we make reference.
party to be served .
..”
critical import,
earliest date she could
more
and which we see
by the
sent there
case,
(This
controlling in this
divorce.4
whether the trial
a default
have obtained
ruling
plain-
court was correct in
that the
sympathy for her in the unfortu-
in full
said
tiff’s evidence
impelled
failed to establish cause of
that de-
circumstances
nate
damage
action because it showed no
cision,
she is neither
to be
for which
*3
plaintiff proximately resulting from Mr.
Nevertheless,
blamed,
censured.)
the
nor
England’s conduct.8
undeniable fact is that it was
critical and
which removed the
own conduct
finding
damages
A
of such
cannot
the
of the Utah
from
children
properly
speculation
conject
be based on
or
the
permitted
Florida court
They
ure.9
can be
only
awarded
if there is
custody.5 Jurisdiction of
with their
deal
in the
upon
basis
evidence
which reasona
to make an award
favor
Utah courts
our
fairly
acting
ble minds
thereon could be
depend
either
would have
certainty
lieve with reasonable
that
the
jurisdiction over the de-
upon
personam
injury
damage
suffered
fendant,
of the children
upon presence
or
proximately
also that it was
caused
the
as to
for-
pretense is made
here.6 No
negligence of the defendant.10
there could not be
and therefore
mer
In further analyzing
problem,
for
judgment against
defendant
aspects
other
of the total situation are to be
money.
taken into account. These girls were not
that there is
questioned
It is not
usually regard
what we
as “children of
rela
attorney’s
in an
implied
an
covenant
years.”
youngest,
tender
Samantha
represent
client that he will
tionship to his
25,
(now 13)
was born June
1965
and the
competence and
client’s interest with
oldest, Katherine,
1,May
was born
1963
granting
of the de
diligence. Under
(now 15). They were thus both then of
for a directed verdict it is
fendants’ motion
age
sufficient
par
that their choice of the
(without necessarily being so
they
to be assumed
ent
desired to reside with would be an
found,
immaterial to our deci
because it is
important factor to consider. Under the
herein)
negli
shown,
that Mr.
was
including
sion
circumstances
plain
illness,
following the rule above re
gent in not
tiff’s
the attitude of the girls, and of
to,
below,
the other named
explained
ferred
and also that
the defendant as
it would
re
conjecture
of the law firm would be
be a matter of
judg
defendants
to what
England’s
might
conduct.7 Pro ment
sponsible for Mr.
resulted as to the custody
assumptions,
problem
ceeding
girls.
on those
of these
U.C.A.1953,
that,
30-3-18,
provides
assumption,
4.
7.
If on the basis of
Section
that
there was
good
duty
plaintiff,
unless
cause is shown
court oth-
a violation of
but without
orders,
hearing
causing
damage
herein,
erwise
no
for a decree of di-
her actual
as discussed
days
vorce shall be
until 90
after the
held
there should be no reversal for nominal dam-
only.
ages
is filed.
See Commonwealth National Bank
Kennedy
83,
Company,
v.
29 Utah 2d
505 P.2d
(1973).
Davis, Fla.App.,
298
5. Smith v.
tionship of firm, of the new England. law he could plaintiff proceed not between lished liability, any, if to with her case until she sent him McKay urges its a retainer vicarious, employer England. $200. was as the However, granted be a retrial should so Plaintiff, brief, in her must refer opportuni- have the could
that depositions forth occurring to set the facts she ty to establish with whom sustained the after February since trial relationship. attorney-client court ruled evidence concerning con- McKay a retainer. tacts with paid
Plaintiff after that date not $75 were paid was to be on a material to the ruling, fee lawsuit. This as will remainder temporar- explained, was be “good subsequently faith” basis. Plaintiff erroneous ily financially precarious position regard England’s duty (If in a be- plaintiff. upon previous obligations, but her remu- retrial could cause establish employment long procure indicated a term contract a decree of nerative divorce England procured McKay financial basis. Utah was with the sound firm with whom through she coopera- personal attorney-client counsel in Florida and established a duty action for relationship, effort Mr. Dunn’s divorce in would tive remain ground McKay on the McKay was dismissed he had firm. contends plaintiff Florida England’s of Florida for six elected to been resident remain client he not after months, viz., his move they proved McKay; evidentiary to Utah terminated with these of domicile. facts could change retrial.) constituted be established on *5 complaint April 1975, on In England filed a divorce be- was hospitalized; seeking plaintiff, custody major of of the she underwent surgery half for re- children, 20, 1975, in moval January on Utah. of blood clots on her spine April on in an 16. England attempt hospitalized, was unsuccessful While she plaintiff’s was personally by employer John Dunn served caring have had been for two England daughters. in employer sheriff Florida. consulted with The impossi- found it ble McMurray, partner McKay in the to continue this task. Steven He Mr. contacted firm, suggested making by who service mail Dunn in arranged Florida and for girls England join the court. pursuant to order of their father. Plaintiff was informed 4(f)(2), proceeded pursuant to Rule U.R. of these arrangements Eng- and contacted C.P., prepared petition land to express order to her concern over poten- However, tial permit by England difficulty procuring service mail. in the return provisions did not adhere to the of the rule children. took England no action. require 1975, to mail the 20, which the clerk sum- children left Lake on April Salt complaint. mons and He mailed it day expiration himself exact of the of the nine- 6, Furthermore, February ty-day period on 1975. he under Sec. 30-3-18.1 prepare proof failed to an affidavit of 23, 1975, May Dunn, On John es- Rule provided 4(g)(3), service U.R.C.P. tablished his six months residency in Flori- da, England On February terminat- refiled his for a divorce. employment McKay ed his with the firm Plaintiff early June, was served in while home; and became an associate in another law convalescing Eng- at she contacted land, partner of a firm. With the consent of the who her to referred Gordon at Esplin McKay firm, England Legal England took file. Services. delivered the file firm, Esplin. When McKay contacted met personally Plaintiff England’s Esplin, was attorney-client she referred to new office. relationship England Plaintiff contacted in March June established on 1975. court, good filing complaint, provided 1. “Unless the for cause shown and the court orders, may findings, just may set forth in the otherwise no by make such interim orders as be hearing equitable.” for decree of divorce shall be held days elapsed the court shall until 90 from rule, pleadings indicated that Mr. this if deposit The Florida such shall have been judgment after June Dunn could obtain made. Esplin arranged special setting Mr. 1975. trial, At the two local attorneys testified action on hearing plaintiff’s divorce England’s failure to follow the Rules of hearing, At the the trial June Civil Procedure in an attempt to effect plaintiff a decree of grant court refused to service acceptable did not meet local stan- the file did not contain an divorce because legal practice.2 dards of process proving affidavit service of as re- On July John Dunn received a However, 4(g)(3), quired Rule U.R.C.P. divorce, decree of awarding him custody of preserved plaintiff’s the trial court took and children, July 25, 1975, Florida. On the decree could be entered testimony so Legal proper Services effected a service on immediately upon procuring necessary Dunn, Mr. was awarded a Esplin Mr. contacted affidavit. decree of divorce and of the chil- requested prepare that he the affidavit 12,1975 September dren on in Utah. Plain- Esplin service. Mr. encountered some tiff received a letter in October difficulty procuring the affidavit from wherein, Mr. Dunn offered to return the England; finally England’s he went to of- children if he were assured he wouldn’t fice and received it about June have to pay child other than sums Esplin Mr. took the affidavit to the trial he voluntarily Later, chose to give. Mr. court, refused to enter the decree Dunn refused to surrender because the service and affidavit were not children. rules, viz., with the in accordance Mrs. Dunn employed Florida counsel in complaint. had mailed the summons and December, 1975, to set aside the Florida 4(f)(2), provides: Rule U.R.C.P. decree; this motion was denied. has She (1) In circumstances described above pursued her attempt to have the decree justifying by publica- service of summons modified; Utah, but in Florida as in she tion, party desiring if the service of sum- was required prove change of circum- petition stating mons shall file a verified March, 1977, stances. her Florida coun- *6 which the facts from the court deter- sel entered into a stipulation, whereby the by just mines that service mail is likely younger child was plaintiff returned to give by publi- actual notice as service promise return for a that she would never cation, may the court order that service support. seek child The older child was to given by of shall be the clerk summons be allowed to visit her mother during the mailing copy of the summons and com- summer. plaint party to the to be served at his Defendants made a motion for a directed address, or his last known address. Ser- verdict, granted. which the trial court For completed days vice shall be ten after purpose the of the motion defendants con- mailing. such negligence, ceded there was argued but 4(g), provides: Rule U.R.C.P. proximate cause and damages had not been days process, Within 5 after of service established. Defendants plaintiff, claimed proof thereof shall be made as follows: by Florida, sending the children to divested jurisdiction. Also,
the Utah court of the (3) by . and an affidavit Florida court have would found Utah had deposit copy jurisdiction matter; clerk of the court of a of a of no custody to hear the and, post therefore, the summons and in the if properly service had been effected, (f) prescribed by office as subdivision would have been in no Attorney’s liability suffered, damages 2. See 45 A.L.R.2d Anno: other ney’s because of the attor- negligence preparing conducting litiga- negligent protect for tion, or failure to the client’s attorneys by complying requirements 11: “In several cases have claim § with notice negligence by chargeable failing oppos- with actionable been or ing parties to obtain lost, by proper process.” client’s cause of action was where the or damages properly effected) circumstances. different is complete days ten af- custody were loss of ter the mailing. claimed clerk’s 12(a) Under Rule legal expenses children and the she incurred defendant has twenty days after service is sought complete answer, also to file damages in Florida. Plaintiff his thus Mr. Dunn harm, thirty days had in which emotional defendants ar- to answer after mailing. 55(a), U.R.C.P., Under Rule gued were not recoverable without a con- the fact of defendant’s physical impact. default could temporaneous have been by 7, 1975, entered the clerk on March stressed the children were Defendants (This or time thereafter. assuming is present in Utah at the time of the not proof of service had been made in accord- hearing initial of Mrs. Dunn’s divorce action ance with 4(g)(3).) Rule 24, 1975, June and even if there had been on circumstances, Under the foregoing proper service on Mr. Dunn de- acquired jurisdiction court would have entered, consequences cree would have enter a decree of divorce and determine argued the same. Defendants Mr. been custody of the children. The court would proceeded have Dunn would his Flori- not have lost by the children action and been custody da awarded leaving the state on April nor children, were present who Florida. To presence their in Florida at the time of the argument, their sustain defendants cited initial hearing 24,1975. divorce on June fact that after Mr. Dunn received his Brown v. Cool3 this court stated: decree, Dunn, Florida Mrs. received a Utah having acquired Once juris with an decree of divorce award of diction courts often jurisdic exercise such September on tion in custody subject cases when the arguments Prior to the in connection outside of its jurisdiction. territorial verdict, with the motion for a directed trial court had ruled it was not an issue in Defendants’ argument entire proxi- as to this as to whether a case Utah decree of mate cause damages predicated on divorce could have been prior entered law, Florida specifically that decree; Florida would Florida the domicile of the have ruled the Utah court jurisdic- had no children was not relevant. The court fur- tion to hear matter in June ther only ruled could introduce 1975, because the children were not physi- relating evidence to the alleged negligence cally present in Utah on that Thus, date. McKay up February defendants contend the consequences would day England terminated his em- same, been the if Mr. Dunn had been ployment with McKay. Those facts occur- properly served. ring February between 21 and June (the day Legal engaged) Services was Florida law does not defendants’ *7 were not admitted into evidence. The trial claim. court also the restricted admission of testi- Mirras,5 In Mirras v. the issue before the mony concerning plaintiff’s contacts with Florida courts was whether a New York firm, viz., the McKay did have a jurisdiction court had to award the custody procure contract with the firm to her a child, of a minor who had physically been decree of divorce? outside of New during York the pro entire ceeding.
If the by England service had been made The court stated: 4(f)(2), U.R.C.P., accordance with Rule In the case before us what would have been the consequences? divorce proceeding in New ^ork was an he testified rather than the clerk initial proceeding instituted without complaint mailed the summons and on Feb- presence of the jurisdic- child within the 5,1975. ruary 4(f)(2) (if Under Rule service tion Therefore, of the Court. the Court 3. 123 5.Fla.App., Utah 260 P.2d 202 So.2d Restatement, 2d, Conflicts, 4. See § acquired jurisdiction
never
and could not
diction
having
properly litigated the
continuing jurisdiction for
further
matter before it.9
proceedings.
In Mirras the court ruled the Florida trial
by quoting
The court continued
and fol-
court did not have
give any
weight under
lowing
ruling
from Smith v. Davis:6 the doctrine of comity, because of the ab-
long
It has
been the law of this state
sence of relevant facts bearing upon the
jurisdiction
that
have no
to initial-
courts
best interest and welfare of the child before
adjudicate
ly
custody
of a minor child the New York court at
the time of its
physically present
unless such child is
decree. Nor was
there
evidence with
jurisdiction
within the territorial
reference
qualifications
parent
seeking
adjudi-
court at the time suit
to whom custody was awarded.
cation of its
is filed.
In Powell v. Powell10 a Louisiana court
supplied by the court in
[Italics
Mirras.]
entered a
judgment
final
awarding perma-
Periolat,7
v.
In Periolat
the court reiterat
nent
of a minor child to the father.
ruling:
ed the Florida
judgment,
Prior to this
the mother brought
However, the
jurisdic-
court did have
the child to Florida.
judgment
After
had
regarding
tion to enter the order
custody, been
favor,
rendered in the father’s
he filed
because the child was within the court’s
a petition for a writ of
corpus
habeas
jurisdiction
complaint
when the
was filed Florida. The court stated:
alleged.
so
Mirras v.
Although the Louisiana judgment does
Mirras,
887;
Fla.App. 2d
202 So.2d
not require enforcement in Florida under
Rich,
Fla.App.
Rich v.
4th
214 So.2d
the full
clause,
faith and credit
it is enti-
777; Nieburger
Nieburger,
Fla.App.
great weight
tled to
and respect under
1st
7. 336 So.2d 1257 Fla.App., 242 So.2d 139 6, supra. 8. Note decree, The of the child. which justify
to welfare would a change of .the trial The custody. negligent order of the court with manner reversed the in which light attempted consider the case in of to to effect constructive instructions service Mr. comity applicable other on Dunn was the proximate of the doctrine cause of Mrs. opinion.11 custody Dunn’s loss of the forth in the of principles set children, found; so the jury or could have us, at the time before the matter the directing trial court erred in the verdict. complaint was filed construc- parties are issued, dispute as to the the dam- process tive chil- service of ages which to would be entitled. residing with their mother and dren were Mrs. Dunn contends she was entitled all to the service present were Utah. If of expenses the fees and she her incurred in made in accordance with process had been attempt regain custody to of the children. U.R.C.P., 4(f)(2), Rule the court would have She also seeks loss support of child and the custody the acquired jurisdiction to hear transportation cost of pay which she must such a supports issue. law conclu- Florida for the residing visit of the child in Florida. the acquired juris- Utah court sion.12 Once Finally, plaintiff damages seeks for emo- diction, to the removal of the children Flori- tional distress and the loss of her relation- illness, during da the mother’s would not ship with her children. power of court to hear terminate the the issue. custody the Under determine Mrs. present Dunn was entitled to evi- 30-3-4, only decree of can Sec. divorce be dence concerning her fees legal ex- granted legal the admission of evi- upon penses Florida, incurred in which were cause, in the thus decree dence taken consequence direct of her loss of custody of must awarding custody of children be based However, the children. she cannot claim as best upon indicating evidence the interest damage items of loss of child or of the children and the and welfare fitness transportation costs of the child living in custody parent of the whom awarded. Florida, because the courts of Utah would acquired not personal jurisdiction have over proper If had effected con- Dunn, Mr. if he had been served according Dunn, Mrs. Dunn structive service on Mr. procedure set forth in 4(f)(2), Rule could a decree of have been awarded di- U.R.C.P., provides for constructive vorce, of the granting custody minor service of a nonresident. prior a time children on June decree to Mr. award of Florida Plaintiff’s claim damages for emo- , Dunn. would tional Since Utah court have distress is on contingent the nature of an jurisdiction litigated legal had have action for malpractice. and would General- ly, legal malpractice the issue decree would custody, of Utah constitutes both a tort and a of weight breach contract.13 great been entitled to under comity the doctrine in the Florida courts. of Legal malpractice consists of the fail- custody, To would have attain burden ure of an attorney skill, ‘to use such pru- been Dunn prove dence, on clear and diligence Mr. lawyers of ordi- that new conditions convincing nary evidence skill and capacity commonly possess had arisen since rendition Utah and exercise in performance jurisdiction adjudicate 11. See 35 A.L.R.3d Anno: Extraterritorial children reside has Custody custody though of parent Effect of Valid Award of Child of issue of even resides Parents, Divorced Change 570, In Absence Substantial purposes another state. For [Citations] Circumstances, 7(a), pp. trying §§ issue under those circum- Florida therein. cases cited process stances service of under the construc- parent tive service statute on the nonresident Rich, 12. Rich v. Fla.App., 214 So.2d should process be sufficient to accord him due ” (1968), involving “. . . A suit an issue of of law. . is in the nature of an rem action where the children are within Simmons, v. (1976). Peters 87 Wash.2d of the court. For this reason a [Citations] P.2d 1053 court within whose territorial
903
they
objection,
undertake.’
without
tasks
at a hearing or
[Citation]
trial
where services
proximately
contemplated
such failure
causes
by
When
their em-
ployment
it
to an action in
contract were to
damage,
gives rise
tort.
be rendered.
case, the
un-
attorney
in the usual
Since
The record
factually
incomplete as to
perform
pursuant
to
his duties
dertakes
this asserted waiver. Presently, all that is
client,
with the
the attor-
to
contract
indicated is that a senior member of the
ney’s
requisite
failure to exercise
skill McKay
gave
firm
England plaintiff’s files;
express
and care is also breach of an
or without consultation as to her preference,
implied term of that contract.
.14 plaintiff was
referred to
when she
firm;
contacted the McKay
England refus-
plaintiff attempted
prove
At the trial
to
ed to continue the ease without payment duty by England
other violations of
an additional sum of money. In a determi-
McKay;
proof
this evidence involved
nation
who,
of the facts
fact,
as to
sus-
occurring
facts
after
terminated
tained the attorney relationship
client,
with
employment
McKay.
his
with
Such evi-
plaintiff, it
appropriate
to observe that
by
was excluded
the trial court.
dence
.If
primary
obligation of lawyers associat-
granted,
retrial were
this evidence could be
practice
ed in
is not to mislead the clients as
admitted as well as evidence of the contract
to who is responsible to the client.19
McKay.
with
In connection
England’s
with
duty not to
Plaintiff contends she had a contract
withdraw
good
without
cause and his duty
McKay
procure
with
to
decree of
prosecute
to
the divorce action to comple-
divorce,
Employment
in Utah.
of one
tion, if the facts indicate plaintiff was his
generally
member of a firm is
deemed to be
client, an analysis of his demand for addi-
employment
of the firm.15
claims
She
money
tional
must be made. According to
violation,
duty
attorney
as a
of an
who
evidence,
original
contract of em-
an
impliedly
undertakes
conduct
action
ployment was a $75 retainer with
pay-
stipulates he will prosecute it to a conclu-
ment of additional
sums as
sion. He cannot abandon the suit without
Thereafter,
able.
England refused
pro-
Although
party may
reasonable cause.16
ceed without an
payment,
additional
al-
discharge
attorney
his
with or without
though he
knew of
precarious
cause, an attorney may not withdraw from finances and the children’s travel to Flori-
except
good
a case
cause.17
da. England subsequently withdrew from
According
plaintiff, McKay
has never
case,
good
was there
cause?
withdrawn; England
July,
withdrew in
Contracts which are either made or
McKay
Young
1975.
has cited and relies on
modified after the relationship has been
Bridwell,18
v.
wherein this court stated one
established labor under the presumptive
employing
perform
another to
some work
onus of unfairness and invalidity and the
skill,
requiring special
such as an attorney,
burden is upon the attorney
prove
though
he is
that contract entitled to his
they were entered into openly
equita-
personal services and to refuse
those
an
bly. The law
requires
here
of the attor-
associate, must be held to have waived the
ney conduct which is much more unselfish
right
personal
to his
assistance where the
and ‘stricter than the morals of the mar-
associate,
facts show attendance
ket place’.
case,
In a leading
the court
Olney,
Motors,
Magana,
Levy,
Saunders,
14. Neel v.
17. Midvale
Cathcart &
Inc. v.
21 Utah
Gelfand,
Cal.Rptr.
(1968);
6 Cal.3d
98
Matter of Kauf-
838-
2d
described a ..20 sion, ministry’ but ‘not a trade CARTER, Norman G. Plaintiff Appellant, and entitled to damages Plaintiff was claim v. anguish. As previously for mental ob- CARTER, Pauline Defendant served, legal malpractice may an action for Respondent. conceptually framed either a tort or a be of contract. This is a case breach not No. 15158. wrong except no actionable existed where Supreme Court of Utah. pain suffering. jur- this for mental In 15, Sept. isdiction, suffering pain mental con- wrong, with a which apart nection from suffering pain
such constitutes cause action, proper damages is a element of proximate it
where is natural conse-
quence wrong.21 Helikson,22 McEvoy malpractice v. attorney, against urged
action defendant damages anguish sought for mental improper. were The court stated wrongful
that “where the act constitutes an
infringement legal right, aof mental suf- for,
fering may be it is recovered if
direct, proximate and natural result of the ruled,
wrongful act.” The court if the evi-
dence established defendant’s conduct re- infringement
sulted in the of plaintiff’s child,
right of his would damages anguish
be entitled to recover suffering, owing
and mental to the loss of
his minor child.23
WILKINS, J., concurs the views ex-
pressed opinion dissenting of MAU-
GHAN, J.
(3rd
Jaeger),
Schroeder,
20. 10 Williston
23.Also
On Contracts
Ed.
see
Ariz.App.
Talbot
13
Peterson,
p. 919;
(1971), malpractice action;
Skeen v.
113
§
also see