Bevan Ex Rel. Bevan v. Fix
2002 WY 43, 2002 Wyo. LEXIS 46, 42 P.3d 1013 (2002)
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Rule of Law:
A single instance of extreme and outrageous conduct can constitute intentional infliction of emotional distress if a family member is present and has sensory and contemporaneous observance. An attorney owes continuing fiduciary duties of confidentiality and loyalty to former clients, and a breach can give rise to a legal malpractice claim, but the former client must prove actual injury or damages.
Facts:
- In July 1992, Steven Matthew Bevan hired William Fix, an attorney, to represent him in a criminal battery charge for family violence against his then-girlfriend, Jenni Jones.
- Bevan and Jones married in December 1994 and had two biological children, Brittany Bevan (born August 1991) and Steven Tyler Bevan (born April 1994).
- In January 1997, Jenni Jones, represented by William Fix, filed a complaint for divorce from Steven Matthew Bevan, who was not consulted and did not consent to Fix representing Jones.
- In June 1997, Fix withdrew from representing Jones after beginning a sexual relationship with her.
- During the divorce proceedings, Fix allegedly threatened Steven Matthew Bevan, saying "if I messed with him he would bury me," after hearing a rumor that Bevan intended to sue him.
- On the evening of March 29, 1998, Jones and her children, Brittany and Steven, along with two teenage babysitters, were guests at Fix's home; Jones and Fix left the children in care of the babysitters to go drinking at a local bar.
- In the early morning hours of March 30, 1998, after returning to Fix's home, Fix physically assaulted Jones, throwing her out of bed, banging her head against a wall, kicking, punching, and choking her while screaming that he would kill her, following an escalation of a verbal altercation.
- Steven (age 3) witnessed Fix choking Jones, and Brittany (age 6) heard screaming and shouting, heard a "bounce" as her mother was slammed, and observed her mother crying with Steven comforting her.
- Following the incident, Steven began acting out aggressively (e.g., swearing, choking classmates) and was diagnosed with Post-Traumatic Stress Disorder (PTSD); Brittany experienced difficulty sleeping, nightmares, and was diagnosed with dysthymic disorder and admitted continued suicidal feelings. Fix and Jones were arrested at the scene.
Procedural Posture:
- In July 1992, Steven Matthew Bevan (Bevan) hired William R. Fix (Fix), an attorney, to represent him in a criminal battery charge.
- In January 1997, Jenni Jones, represented by Fix, filed a complaint for divorce from Bevan.
- Fix withdrew from representing Jones in June 1997.
- In March 2000, Fix moved for summary judgment on all claims brought by Steven Matthew Bevan and his minor children, Brittany and Steven Bevan.
- The district court granted summary judgment to Fix on all claims, finding no genuine issues of material fact for intentional infliction of emotional distress for the children and legal malpractice for Steven Matthew Bevan.
- Appellants (Steven Matthew Bevan, Brittany Bevan, and Steven Tyler Bevan) appealed the district court's summary judgment ruling to the Wyoming Supreme Court.
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Issue:
1. Is a single, violent domestic altercation, sensorily and contemporaneously observed by minor children who are immediate family members, capable of being considered "extreme and outrageous" conduct sufficient to withstand a motion for summary judgment on a claim of intentional infliction of emotional distress? 2. Does an attorney owe continuing fiduciary duties of confidentiality and loyalty to a former client, and if breached by representing the former client's adversary in a substantially related matter, what must the former client demonstrate to prove damages?
Opinions:
Majority - Lehman, Chief Justice
1. Yes, the district court erred in granting summary judgment for the defendant on the intentional infliction of emotional distress claims by the minor children, because genuine issues of material fact exist as to whether Fix's conduct was "extreme and outrageous" and whether the children were "present at the time." The court reversed the district court's conclusion that a single isolated incident cannot be "extreme and outrageous," citing Restatement (Second) of Torts § 46 illustrations where all involved isolated incidents. The court also rejected the idea that domestic violence, even if a single event, requires a "continuing course of abuse" to be considered outrageous, stating such reasoning would impose an undue burden on a class of plaintiffs. The appropriate standard is whether the conduct is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." The court clarified that "present at the time" for a third-party IIED claim means "sensory and contemporaneous observance" and does not require visual observation, finding Brittany's auditory and subsequent visual observations and Steven's direct visual observation sufficient to preclude summary judgment. The children's documented behavioral changes and diagnoses constituted sufficient evidence of severe emotional distress, and a reasonable jury could find Fix acted "recklessly" in causing such distress. 2. No, the district court did not err in granting summary judgment for the defendant on Steven Matthew Bevan's legal malpractice claim, but on the grounds that Bevan failed to present evidence of damages. The court first established that an attorney does owe continuing fiduciary duties of confidentiality (Rule 1.6) and loyalty (Rule 1.9) to former clients, recognizing these rules as a codification of common law. The court rejected the argument that professional conduct rules cannot be a basis for civil liability, emphasizing that fiduciary obligations pre-date ethical codes. While acknowledging that a "substantial relationship" between the former and present matter may allow a jury to infer the use of confidential information in a malpractice claim (unlike an irrebuttable presumption in disqualification cases), Bevan presented no evidence of any injury or damages. He did not allege that the outcome of his divorce would have been more favorable had Fix not represented Jones. Without proof of legal injury or damages, there is no basis for compensation in a negligence suit, regardless of whether a breach of fiduciary duty occurred. The court did not need to address the district court's conclusion regarding waiver.
Analysis:
This case significantly clarifies the parameters for intentional infliction of emotional distress claims, particularly for third-party observers, by broadening the interpretation of "extreme and outrageous" conduct to include isolated, severe acts and expanding "presence" to encompass sensory, non-visual observation. It also solidifies the common law recognition of continuing fiduciary duties (confidentiality and loyalty) that attorneys owe to former clients, codifying these through the Rules of Professional Conduct as a basis for legal malpractice claims. Crucially, the decision differentiates the evidentiary requirements for malpractice suits from disciplinary actions or disqualification motions, emphasizing that actual damages, not just a breach of duty or an inference of conflict, are indispensable for a former client to prevail in a civil negligence claim.
