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Long-Russell v. Hampe2/4/2002
Certified Questions from the District Court of Laramie County The Honorable Keith G. Kautz, Judge
[ ] In this matter we are asked to answer questions certified to this Court in accordance with W.R.A.P. 11. Appellant, Sharon Long-Russell (Long-Russell), seeks an opinion of this Court which would resolve the question of whether damages for emotional suffering may be awarded in the context of a legal malpractice case wherein mere negligence on the part of the attorney is the basis for the claim of emotional damages. Appellee, Robert A. Hampe (Hampe), Attorney-at-Law, asks that those questions be answered in the negative.
[ ] We will answer the certified questions in the negative. Such emotional damages may be an element of a claim for damages, in the context of a legal malpractice action, under certain limited circumstances, but not the circumstance of mere negligence.
THE CERTIFIED QUESTIONS
[ ] The issues certified to this Court, by the district court, are:
1. Are damages for emotional suffering available in a legal malpractice case which alleges that an attorney negligently failed to properly assert property claims in a divorce, or negligently gave bad advice resulting in a client's eviction from her place of residence?
2. Are damages for emotional suffering available in a legal malpractice case which alleges that an attorney negligently gave incorrect legal advice about a child visitation order?
FACTUAL BACKGROUND
[ ] We are asked to settle a question of law that has not been directly presented to this Court before, but which is somewhat clouded by decisions of this Court that appear to be in conflict with each other. The facts of this case are not a factor in our resolution of the questions of law at issue, but we will provide a brief outline of those facts so as to provide a structural background for our decision. The certified questions assume a factual circumstance wherein an attorney is alleged to have been negligent in the performance of his services for a client.
[ ] Long-Russell was divorced from her second husband, Gary Long (Long), in September, 1982. The property settlement agreed to in that divorce made no mention of the parties owning a home. Hampe played no role in that divorce. At the time of that divorce, Long-Russell and Long were apparently renting a home from Long's parents and completing repairs on that home with a view to ultimately buying it from Long's parents. Some time after that divorce was final, Long obtained title to the home from his parents. The most significant complicating factor in this case is that Long-Russell continued to live in that house, apparently without paying rent, until Long had her evicted in 1995. Hampe did not represent Long-Russell in the eviction action either. However, Long-Russell did hire Hampe in 1995 to try to undo the eviction. At the time Hampe began representing Long-Russell, she was still residing in the home but was forcibly evicted pursuant to court order shortly after retaining Hampe as her lawyer.
[ ] At the time of her divorce from Long, Long-Russell was pregnant with Richard Russell's (Russell) child. Long-Russell then married Russell, and the two of them (and eventually their two children) continued living in Long's house, with the Russell family living in the upstairs portion of the house and Long living in the basement. In January, 1995, Long-Russell was divorced from Russell. The decree of divorce in that case made no reference to Long-Russell or Russell owning any interest in Long's home. During this divorce and even after the divorce was final, custody of the children born of Long-Russell's marriage to Russe
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