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11/22/2024 09:10 AM CST
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
GILBERT V. JOHNSON
Cite as 318 Neb. 105
Christian L. Gilbert, plaintiff, v. Christopher
M. Johnson and Cordell & Cordell, P.C.,
a Missouri corporation, defendants.
___ N.W.3d ___
Filed November 22, 2024. No. S-24-201.
1. Damages: Words and Phrases. In contrast to economic losses, noneconomic losses are nonmonetary losses, which include pain, suffering, and
other losses that cannot be easily expressed in dollars and cents.
2. Malpractice: Attorney and Client: Words and Phrases. Legal malpractice is any professional misconduct or any unreasonable lack of
skill or fidelity in the performance of professional or fiduciary duties by
an attorney.
3. Malpractice: Attorney and Client: Negligence: Proof: Proximate
Cause: Damages. In a civil action for legal malpractice, a plaintiff
alleging attorney negligence must prove three elements: (1) the attorney’s employment, (2) the attorney’s neglect of a reasonable duty, and
(3) that such negligence resulted in and was the proximate cause of loss
(damages) to the client.
4. Malpractice: Attorney and Client: Child Custody: Damages.
Generally, noneconomic damages will not be recoverable in Nebraska in
a legal malpractice action arising from a child custody dispute in which
no physical injury has been sustained.
5. ____: ____: ____: ____. Noneconomic damages in a legal malpractice
action arising from a child custody dispute in which no physical injury
has been sustained may be recoverable only if an attorney engages in
egregious conduct or in conduct that is intended to essentially destroy a
parent-child relationship.
Original action. Judgment entered.
Matt Catlett, of Law Office of Matt Catlett, for plaintiff.
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
GILBERT V. JOHNSON
Cite as 318 Neb. 105
A. Victor Rawl, Jr., of Gordon & Rees, L.L.P., for defendants.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Cassel, J.
INTRODUCTION
The U.S. District Court for the District of Nebraska has
certified the following question to this court: “In what circumstances, if any, may a client recover noneconomic damages in a legal malpractice action arising from a child custody
dispute?”
We determine that noneconomic damages may be available
in a legal malpractice action arising from a child custody dispute in which no physical injury has been sustained only if an
attorney engages in egregious conduct or in conduct intended
to essentially destroy a parent-child relationship.
BACKGROUND
The question arises in a legal malpractice action that Christian
L. Gilbert filed against his former attorney, Christopher M.
Johnson, and Johnson’s law firm, Cordell & Cordell, P.C.
Although Gilbert filed suit in state court, the case was removed
to federal court and docketed as case No. 4:22-CV-3248.
Gilbert hired Johnson to represent him in a paternity action
in the district court for Lancaster County. The mother of
Gilbert’s child sought to establish Gilbert’s paternity and to be
awarded custody and child support. The district court entered
a temporary custody order in which it awarded custody to the
mother and allowed Gilbert parenting time every other weekend. Gilbert alleges that he never agreed to this temporary
custody arrangement and that he wanted custody rather than
parenting time. Johnson allegedly advised Gilbert that “‘there
was no way’” the Nebraska court would award Gilbert custody
“‘and that the visitation set forth in the “Temporary Order”
was the most the court would award him.’” Gilbert alleges
that this advisement was either “negligently or knowingly
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
GILBERT V. JOHNSON
Cite as 318 Neb. 105
false” and that Johnson failed to advocate for Gilbert’s interest in the custody of his child.
Gilbert eventually retained new counsel. The state court
awarded the mother sole custody, subject to Gilbert’s parenting time. Gilbert alleges that but for Johnson’s negligence
in representing him, he would have been awarded more than
parenting time.
In Gilbert’s legal malpractice action, the federal court stated
that it was fair to infer that Gilbert was injured by the state
court’s custody orders, but not economically. The federal court
found no decision by this court regarding whether noneconomic damages are recoverable in a legal malpractice action.
After reviewing tort law in Nebraska and neighboring jurisdictions, the federal court certified the question to this court. 1 We
accepted the request.
ANALYSIS
The parties disagree regarding the availability of noneconomic damages in a legal malpractice action arising from a
child custody dispute. We summarize their arguments.
Gilbert contends that noneconomic damages should be available for legal malpractice in certain circumstances. Those circumstances are where the malpractice (1) results in a parent’s
actual loss of custody or visitation with a child, (2) is wanton
or egregious, or (3) occurs in relationships in which serious
emotional harm is especially likely to result. Gilbert contends
that disallowing such damages “would immunize attorneys for
their conduct in child custody disputes.” 2
Johnson and his law firm advance several reasons why noneconomic damages should not be recoverable. They highlight
that child custody decisions require a court to find the order
is in the best interests of the child and that parenting time
decisions are always subject to change. According to Johnson
1
See Neb. Rev. Stat. §§ 24-219 to 24-225 (Reissue 2016).
2
Brief for plaintiff at 6.
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
GILBERT V. JOHNSON
Cite as 318 Neb. 105
and his law firm, “allowing such claims will result in a flood
of actions being filed in the courts” and “there is no way to
quantify the value of a purported loss.” 3
To inform our decision, we first recall our jurisprudence
concerning noneconomic damages and legal malpractice. Then,
we consider the reasoning of other courts regarding the availability of such damages in legal malpractice actions.
Noneconomic Damages in Nebraska
[1] In contrast to economic losses, noneconomic losses are
nonmonetary losses, which include pain, suffering, and other
losses that cannot be easily expressed in dollars and cents. 4
Nebraska law has long allowed recovery for mental suffering
and anxiety in negligence actions in which a physical injury
has been sustained. 5
More recently, we have indicated that noneconomic damages may be available in the absence of physical injury under
certain circumstances. Those cases, which generally involve
intentional or egregious conduct, include actions for intentional
infliction of emotional distress, 6 the intentional tort of bad
faith, 7 and retaliatory discharge in violation of public policy. 8
In an action for invasion of privacy, the Nebraska Court of
3
Brief for defendants at 13.
4
Tolliver v. Visiting Nurse Assn., 278 Neb. 532,
771 N.W.2d 908 (2009).
See, also,
Neb. Rev. Stat. § 25-21,185.08(3) (Reissue 2016); Gourley v.
Nebraska Methodist Health Sys.,
265 Neb. 918,
663 N.W.2d 43 (2003)
(Gerrard, J., concurring; Hendry, C.J., joins).
5
See, Hartwig v. Oregon Trail Eye Clinic,
254 Neb. 777,
580 N.W.2d 86
(1998); American Water-Works Co. v. Dougherty,
37 Neb. 373,
55 N.W.
1051 (1893).
6
See, Heitzman v. Thompson,
270 Neb. 600,
705 N.W.2d 426 (2005);
Brandon v. County of Richardson,
261 Neb. 636,
624 N.W.2d 604 (2001).
7
See Millard Gutter Co. v. Shelter Mut. Ins. Co.,
312 Neb. 606,
980 N.W.2d
420 (2022).
8
See Wendeln v. Beatrice Manor,
271 Neb. 373,
712 N.W.2d 226 (2006).
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
GILBERT V. JOHNSON
Cite as 318 Neb. 105
Appeals concluded a plaintiff may recover damages for mental
suffering. 9
In other cases, we have specifically disallowed noneconomic
damages. These cases show a reluctance to expand liability for
unintentional conduct.
In Tolliver v. Visiting Nurse Assn., 10 we determined that
such damages for pain and suffering were unavailable in a
claim against a hospice care program for fraudulent and negligent misrepresentation. We first observed that the tort of fraud
or misrepresentation is generally an economic tort asserted to
recover pecuniary loss. Under the circumstances, we did not
believe damages for pain and suffering were appropriate under
a misrepresentation theory because all such damages were
also alleged under a negligence cause of action. We explained
that resort to a theory of deceit is usually unnecessary when
other theories are sufficient to deal with nonpecuniary damages and that a party may not have a double recovery for a
single injury.
We disallowed damages for emotional distress in a case
involving the death of the plaintiff’s daughter’s friend. 11 We
stated that the plaintiff was neither a “reasonably foreseeable
‘bystander’ victim based upon an intimate familial relationship
with a seriously injured victim of the defendant’s negligence,”
nor a “‘direct victim’ of the defendant’s negligence because
the plaintiff was within the zone of danger of the negligence
in question.” 12 Relying on a U.S. Supreme Court decision, 13
we explained that to allow recovery for all emotional
harms, no matter how minor, that might be causally linked
9
See Sabrina W. v. Willman,
4 Neb. App. 149,
540 N.W.2d 364 (1995).
10
Tolliver v. Visiting Nurse Assn., supra note 4.
11
Catron v. Lewis,
271 Neb. 416,
712 N.W.2d 245 (2006).
12
Id. at 420, 712 N.W.2d at 249.
13
Consolidated Rail Corporation v. Gottshall,
512 U.S. 532,
114 S. Ct.
2396,
129 L. Ed. 2d 427 (1994).
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
GILBERT V. JOHNSON
Cite as 318 Neb. 105
to another’s negligence would open the door to “‘nearly infinite and unpredictable liability for defendants.’” 14
Legal Malpractice in Nebraska
We have not addressed whether noneconomic damages are
recoverable in an action claiming legal malpractice. We recall
the well-settled definition and elements of the tort.
[2,3] Legal malpractice is any professional misconduct or
any unreasonable lack of skill or fidelity in the performance
of professional or fiduciary duties by an attorney. 15 In a civil
action for legal malpractice, a plaintiff alleging attorney negligence must prove three elements: (1) the attorney’s employment, (2) the attorney’s neglect of a reasonable duty, and (3)
that such negligence resulted in and was the proximate cause
of loss (damages) to the client. 16
The elements do not limit recovery to economic damages,
nor do they specifically authorize noneconomic damages. We
have declared that the general measure of damages in a legal
malpractice action is the amount of loss actually sustained by
the claimant as a proximate result of the attorney’s conduct. 17
To enlighten our decision regarding whether noneconomic
damages should be available for legal malpractice in a case
involving child custody, we consider authority from other
jurisdictions.
Noneconomic Damages in
Legal Malpractice Actions
With respect to the broad issue of whether noneconomic
damages are recoverable in a legal malpractice action, courts
elsewhere have reached different conclusions. However,
“the vast majority of jurisdictions do not allow recovery of
14
Catron v. Lewis, supra note 11, 271 Neb. at 423, 712 N.W.2d at 250.
15
See Egan v. Stoler,
265 Neb. 1,
653 N.W.2d 855 (2002).
16
Bellino v. McGrath North,
274 Neb. 130,
738 N.W.2d 434 (2007).
17
Id.
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
GILBERT V. JOHNSON
Cite as 318 Neb. 105
emotional distress damages in legal malpractice cases ‘where
the claim is not premised on intentional acts, physical injury,
or particularly egregious conduct.’” 18
We narrow our focus to those legal malpractice cases involving a familial relationship with a child. Although those cases
do not reveal any universal rule concerning the availability of
noneconomic damages, certain themes emerge.
Colorado appellate courts have spoken of difficulties in
quantifying the loss and the egregiousness of an attorney’s
conduct. In McGee v. Hyatt Legal Services, Inc., 19 a mother
sued for malpractice after child custody orders provided for
joint legal custody when the mother sought sole legal custody.
The appellate court determined that the mother failed to pre
sent a compensable loss, reasoning that it would be impossible
to ascertain whether any tangible damages were or will be
sustained by the mother because of the custodial order. The
McGee court recognized that two jurisdictions had permitted a claim for the total loss of custody, 20 but it found those
cases unpersuasive because in one, an attorney acted in a
fraudulent manner to deprive a mother of custody, 21 and in the
other, a mother was able to abscond with her child after her
attorney disobeyed a court order. 22 Following McGee, a different Colorado appellate division determined that noneconomic
damages were unavailable to grandparents who sued for legal
malpractice after their attorney failed to secure grandparent
visitation rights. 23 That court recognized “concerns about the
18
3 Barry A. Lindahl, Modern Tort Law: Liability and Litigation § 25:52 at
491 (2d ed. 2024), quoting Vincent v. DeVries,
193 Vt. 574,
72 A.3d 886
(2013).
19
McGee v. Hyatt Legal Services, Inc.,
813 P.2d 754 (Colo. App. 1990).
20
See, Talbot v. Schroeder,
13 Ariz. App. 230,
475 P.2d 520 (1970); McEvoy
v. Helikson,
277 Or. 781,
562 P.2d 540 (1977).
21
See Talbot v.
Schroeder, supra note 20.
22
See McEvoy v.
Helikson, supra note 20.
23
See Froid v. Zacheis,
494 P.3d 673 (Colo. App. 2021).
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
GILBERT V. JOHNSON
Cite as 318 Neb. 105
difficulty in quantifying the damages arising from the loss of
custody caused by an attorney’s malpractice.” 24
In answering a certified question, the Wyoming Supreme
Court determined that damages for emotional suffering were
unavailable in a legal malpractice case alleging that an attorney negligently gave incorrect advice about a child visitation
order. 25 The court “view[ed] with favor” 26 the guidance provided by the McGee court and stated:
We take special note of that court’s concerns about the
impossibility of quantifying intangible injuries to the
parent-child relationship, the effect recognition of damages would have on the district court’s authority to regulate and supervise custody decisions which must turn on
the best interests of the child, the certainty of some significant level of emotional disturbance in the dissolution
of a marriage which includes a child custody component
(especially one burdened with a high level of animosity),
as well as the certainty that neither parent can reasonably
expect full-time custody of the children because of the
statutorily required liberal visitation with the noncustodial parent. 27
A New Jersey court focused on the egregious nature of
an attorney’s conduct. Where a father’s attorney released the
child’s passport to the mother and the mother removed the
child out of the country, the court determined that the attorney’s conduct was sufficiently egregious and extraordinary to
warrant an award of emotional distress damages. 28 The court
explained: “The emotional distress caused by the irreparable
severance of the parent-child bond is expected, undoubtedly
24
Id. at 678.
25
See Long-Russell v. Hampe, 39 P.3d 1015 (Wyo. 2002).
26
Id. at 1020.
27
Id. at 1020-21.
28
Innes v. Marzano-Lesnevich,
435 N.J. Super. 198,
87 A.3d 775 (2014),
affirmed as modified
224 N.J. 584,
136 A.3d 108 (2016).
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
GILBERT V. JOHNSON
Cite as 318 Neb. 105
genuine and easily appreciated by the average person without
the need for expert testimony.” 29
Proof of outrageous conduct was necessary under Virginia
law in a legal malpractice action seeking mental anguish
damages where a client alleged her lawyers were negligent
and reckless in their representation of her, which resulted in
the client’s loss of custody of her two children. 30 The court
reasoned: “To permit recovery for mental anguish in this case
would necessarily extend recovery for mental anguish to all
malpractice cases. There is no reason or principle that distinguishes child custody cases from any other professional malpractice cases.” 31
The Iowa Supreme Court has recognized that although
emotional distress damages are generally not recoverable in
torts absent intentional conduct by a defendant or some physical injury to the plaintiff, such damages may be available
for a claim of legal malpractice when emotional distress is a
natural and foreseeable consequence of attorney malpractice. 32
In Miranda v. Said, 33 an immigration attorney recommended
an illegitimate course of action that resulted in the clients’
deportation and separation from their family for 10 years.
The court explained that “it was the type of relationship in
which negligent conduct was especially likely to cause severe
emotional distress, supporting a duty of care to protect against
such harm.” 34
In the context of a divorce proceeding, an Illinois appellate court determined that “a valid claim exists for noneconomic damages resulting from a plaintiff’s loss of custody
29
Id. at 241,
87 A.3d at 800.
30
Timms v. Rosenblum,
713 F. Supp. 948 (E.D. Va. 1989).
31
Id. at 955.
32
See Miranda v. Said,
836 N.W.2d 8 (Iowa 2013).
33
Id.
34
Id. at 33.
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318 Nebraska Reports
GILBERT V. JOHNSON
Cite as 318 Neb. 105
and visitation of his children which allegedly resulted from an
attorney’s negligence.” 35 In Person v. Behnke, 36 a father completely lost contact with his children for approximately 5 years
because his attorney failed to take any action on the father’s
behalf. The appellate court addressed concerns about broadening the scope of tort liability. In doing so, it (1) recognized
that juries have long made the determination of damages from
loss of society, (2) limited its holding to a parent involved in a
divorce proceeding, and (3) limited the scope of its holding to
only the most egregious cases by focusing on the conduct of
the attorney. The court also emphasized that “a plaintiff must
allege that he lost custody or visitation, not just that he was
disappointed in the amount of visitation granted.” 37
Generally Not Recoverable
[4] We are asked in what circumstances, if any, a client may
recover noneconomic damages in a legal malpractice action
arising from a child custody dispute. Generally, noneconomic
damages will not be recoverable in Nebraska in a legal malpractice action arising from a child custody dispute in which
no physical injury has been sustained.
But we recognize that the parent-child relationship has
intrinsic value 38 and that emotional harm from a lost parent-child relationship would be foreseeable. An effect on a parent-child relationship could be relatively minor, such as a mere
variation in visitation or parenting time. But it could also be
extremely serious, so as to essentially, if not totally, destroy
that relationship. Noneconomic damages should not be recoverable unless they relate to conduct at the most serious end of
the spectrum.
35
Person v. Behnke, 242 Ill. App. 3d 933, 937,
611 N.E.2d 1350, 1353,
183
Ill. Dec. 702, 705 (1993).
36
Person v.
Behnke, supra note 35.
37
Id. at 941,
611 N.E.2d at 1356,
183 Ill. Dec. at 708 (emphasis in original).
38
See Brandon v. County of
Richardson, supra note 6.
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GILBERT V. JOHNSON
Cite as 318 Neb. 105
Because the direct injury to the client would be personal in
nature rather than economic, we are disinclined to absolutely
foreclose the possibility of an award of noneconomic damages. But whether such damages are available must ultimately
depend on the attorney’s conduct. This leads to our answer to
the certified question.
CONCLUSION
[5] The answer to the certified question is that noneconomic
damages in a legal malpractice action arising from a child
custody dispute in which no physical injury has been sustained
may be recoverable only if an attorney engages in egregious
conduct or in conduct that is intended to essentially destroy a
parent-child relationship.
Judgment entered.
