| ]Appellee Sandra Smith sued appellants, alleging various torts, after appellant David Rees allegedly demanded sexual favors as a condition of his continued legal representation of her. A jury awarded appellee $10,000 for emotional distress, and appellants now raise seven arguments on appeal: the trial court erred in (1) allowing appellee to present her claim when there is no legal basis for a right of recovery for emotional distress in breach of fiduciary duty cases; (2) denying appellants’ motion for sanctions for appellee’s alleged discovery violations; (3) admitting appellee’s expert testimony; (4) admonishing Rees and removing the jury several times during his testimony, thereby unfairly prejudicing the jury; (5) allowing appel-lee to introduce prejudicial evidence of Rees’s relationship with another |2woman; (6) allowing appellee to argue for punitive damages during closing arguments; and (7) denying appellants’ motion for directed verdict. Appellee cross-appeals, asserting that the trial court erred in (1) granting appellants’ motion for summary judgment on the tort of outrage, and (2) granting appellants’ motion for directed verdict on the issue of punitive damages. Because this case involves the discipline of attorneys-at-law, this court has jurisdiction pursuant to Ark. Sup. Ct. R. 1 — 2(a)(5). We reverse in part and affirm in part on direct appeal and reverse on cross-appeal.
On August 17, 2004, appellee filed a complaint in Craighead County Circuit Court, claiming that she had sought the services of Rees based upon his advertisements regarding Depo-Provera claims; that Rees breached his fiduciary duty to her as her attorney by making unwanted sexual advances and demanding that she engage in a sexual relationship with him as a condition of his continued representation; and that due to Rees’s conduct, she had suffered emotional distress. Appellee stated claims based on assault, battery, outrage, and breach of fiduciary duty.
On June 2, 2005, appellants filed a motion for summary judgment on all counts. Appellee responded and admitted that the claims for assault and battery were barred by the statute of limitations, but she contended that the claims for outrage and breach of fiduciary duty were still viable and evident from the pleadings. In an order entered March 9, 2006, the court granted appellants partial summary judgment on the issues of assault, battery, and IsQutrage. After a jury trial on the issue of breach of fiduciary duty, appellee was awarded $10,000 for emotional distress.
On appeal, appellants first contend that the trial court erred in allowing appellee to present her claim of breach of fiduciary duty to the jury when there is no legal basis for a right of recovery solely for emotional distress in breach of fiduciary duty cases. Appellants argue that, as there is no basis for appellee’s claim, allowing the jury verdict to stand would be tantamount to recognizing a new cause of action. The question of whether a valid cause of action is presented is one of law, which this court reviews de novo. Helena-W. Helena Sch. Dist. v. Fluker,
In the instant case, however, we need not decide whether appellee’s claim should be recognized as a “new” cause of action, because appellee has unquestionably failed to show any quantifiable economic loss, and we will not recognize recovery for emotional damages without any accompanying economic loss in contract-based actions such as breach of 1 .fiduciary duty. We note with approval the words of the Illinois Appellate Court in this regard:
If we were to recognize that emotional harm, absent any quantifiable injury stemming from an attorney’s legal representation of his client, was sufficient to support an action for breach of a lawyer’s fiduciary duty, we would be opening the door to any number of malpractice actions brought by clients who may have been less than satisfied with their legal representation but can point to no specific harm other than their own emotional distress. The potential for abuse would be too great.
Suppressed v. Suppressed,
Contrary to appellee’s argument that this holding will leave her without a remedy, we find that the tort of outrage is an available remedy for recovery of damages for emotional distress where no quantifiable economic loss is proved. This necessarily leads us to next consider appellee’s argument on cross-appeal that the trial court erred in granting summary judgment in favor of appellants on the claim of outrage. Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Hisaw v. State Farm Mut. Auto. Ins. Co.,
To establish a claim for outrage, a plaintiff must demonstrate the following elements: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous, beyond all possible bounds of decency, and was utterly
In her amended complaint, filed October 25, 2004, appellee alleged the following facts. In late 1997 or early 1998, appellee learned that Rees and his law firm were advertising for cases involving the birth control drug Depo-Provera. She sought Rees’s professional services for a claim based on the drug, and Rees filed a claim on her behalf sometime in | (i1998. Beginning in 1999, Rees began demanding sexual favors from appellee, and approximately six months later, appellee succumbed and had sex with Rees on an almost-weekly basis for approximately eight months. According to appellee, Rees told her that having sex with him was a requirement of his continued representation of her in her Depo-Provera claim. 1 In early 2000, ap-pellee attempted to terminate the sexual relationship, but after Rees threatened to discontinue work on her case, she continued having sex with him three or four times a month. Appellee alleged that, in 2002, Rees harassed her with telephone calls, sought her out at her place of employment on several occasions, and showed up at her house on at least one occasion, asking to have sex with her. By May 2003, appellee believed the sexual relationship had come to an end, but after seeing Rees at a Christmas party in December 2003, he again began calling her and demanding sexual favors in exchange for continuing to represent her. The sexual relationship then continued until May 2004.
Appellee alleged that, as a result of Rees’s actions, she required psychiatric care and counseling and had problems with employment. She claimed that the sexual relationship instigated by Rees was a breach of his fiduciary duty, and she also asserted that Rees ) 7purposefulIy inflicted this emotional distress. She claimed that his conduct was extreme, outrageous, and “utterly intolerable in a civilized community.”
In response, Rees denied all the allegations and, in a counterclaim filed February 11, 2005, claimed that he had never represented her in a legal dispute; that he never made sexual advances toward her; and that appellee had conspired to extort money from him by threatening to reveal these untruthful allegations.
2
In the motion for summary judgment, appellants asserted that appellee could not meet the elements of the tort of outrage and attached copies of appellee’s answers to interrogatories as support for this contention. In the interrogatories, appellee claimed the following injuries: loss of self-esteem, anger, loss of weight, loss of appetite, sleep deprivation, problems with social relationships, and a distrust of men. In response to appellants’ motion for summary judgment, appellee referred the court to Rees’s actions as laid out in her complaint, and she also asserted that any argument appellants had regarding the sufficiency of her damages would be better dealt with through cross-examination at trial. The court’s order granting summary judgment on outrage merely stated that
On appeal, appellee claims that the unique facts of this case entitled her to present her claim of outrage to the jury; therefore, it was error for the court to grant summary judgment in favor of appellants. In her argument, appellee again asserts the many factual ^allegations that were contained in her complaint. She also argues that, because the jury found in her favor, it is now undisputed that Rees engaged in outrageous conduct and that she therefore had a valid claim for the tort of outrage. To support her argument, appel-lee cites McQuay v. Guntharp,
In response, appellants argue that ap-pellee has incorrectly based her argument against the granting of summary judgment on the evidence adduced at trial, when the summary judgment was granted based only on the evidence presented in the pleadings, affidavits, and other discovery presented at the time of the motion. Appellants also take issue with appellee’s reliance on statutory authority, noting that the statute referred to by appellee specifically omits private attorneys. And finally, appellants argue that the damages alleged aPPellee in her complaint, including “emotional pain,” “problems with employment ” “anSer ” and “loss of self-esteem,” are clearly ^sufficient to support a claim of outrage.
While we agree with appellants that evidence adduced at trial is an improper basis for a reversal of summary judgment, we also agree with appellee that the many factual allegations regarding Rees’s behavior that were in dispute rendered the grant of summary judgment improper. In addition, we find that an action for outrage is particularly appropriate when there has been a violation of a trusted relationship and the injury is not just the result of an “unwanted, improper physical touching, but from the position and occupation of the actor.” McQuay,
Although we are reversing on appellants’ first argument on direct appeal, we choose to address some of appellants’ remaining arguments as they concern issues that may arise again upon remand. See, e.g., Bailey v. Rose Care Ctr.,
The imposition of sanctions, including dismissal, for failure to provide discovery rests in the trial court’s discretion; this court has repeatedly upheld the trial court’s exercise of such discretion in fashioning severe sanctions for flagrant discovery violations. S. College of Naturopathy v. State ex rel. Beebe,
For their third argument on appeal, appellants argue that the trial court erred in | nadmitting the testimony of John C. Everett, appellee’s purported expert witness, because he did not qualify as an expert. In this case, however, Everett’s testimony concerned only whether a breach of fiduciary duty had occurred, and because we are reversing the award of damages for such a breach, it is not clear that the issue will recur upon remand, and we therefore decline to address whether Everett did, in fact, qualify as an expert.
Fourth, appellants contend that the trial court erred in admonishing Rees and removing the jury several times during Rees’s testimony, thereby unfairly prejudicing the jury. Multiple times during his direct examination, Rees would not respond to questions with a “yes” or “no” but instead attempted to give more explanatory answers than those sought by appel-lee’s counsel. The court would then interrupt appellant and ask “Is your answer yes or no, Mr. Rees?” The court also had the jury removed three different times during Rees’s testimony so the court could admonish him regarding his testimony. Appellants’ counsel asked the court to admonish the jury so they would not draw any conclusions about the veracity or the testimony of appellant based upon the court sending them out multiple times, and the court obliged by instructing the jury not “to speculate at all about what may have occurred in the courtroom while you were absent.” On appeal, appellants assert that the repeated interruptions and critical statements made by the court were highly prejudicial toward Rees, and the instruction given to the jury could not have erased the prejudice. Appellee responds that any error should be considered invited error, | 12as it arose from Rees’s own lack of cooperation. We resolve this issue by holding that appellants received the relief that was requested, which was an admonishment to the jury, and appellants are therefore not entitled to any further relief on appeal. See Berry v. St. Paul Fire & Marine Ins. Co.,
Next, appellants assert that the trial court erred in allowing appellee to introduce prejudicial evidence of Rees’s relationship
On appeal, appellants assert that the purpose behind Dixon’s testimony was merely to show Rees’s bad character, which is inappropriate under 404(b) and was highly prejudicial to appellants. On the other hand, appellee argues that Dixon’s testimony was completely appropriate and necessary to impeach Rees’s earlier deposition testimony that he did not know Dixon and to show Rees’s method of procuring sexual relationships with female clients | isby demanding sex in exchange for representation.
Evidentiary rulings are a matter of discretion and are reviewed only for abuse of that discretion. Taylor v. Taylor,
The only issue left to be addressed is appellee’s argument concerning punitive damages, but we find it is not clear that the issue will recur upon remand and therefore choose to not address the issue. See Bailey, supra.
Affirmed in part and reversed in part on direct appeal; reversed on cross-appeal.
Notes
. At trial, appellee testified that not only had Rees demanded sexual favors as a condition of his continued representation, he also stated: "I know lawyers that have represented you before and if you don't do this then ... there's not another lawyer in Northeast Arkansas or Southeast Missouri who's gonna represent you when I get through with you.''
. Rees's counterclaim was later dismissed by summary judgment on September 7, 2007.