                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                No. 97-4062
                                ___________

Steve Leonard, Lavonda Leonard,                   *
                           *
         Appellants,       *
                           * Appeal from the United
                              States
    v.                     * District Court for the
                           * Western    District    of
                              Arkansas
Christopher Walthall,      *
                           *
         Appellee.         *
                      ___________

                                             Submitted:            April 15,
1998

                                                       Filed:            May 5,
1998
                                ___________

Before BOWMAN,1 Chief Judge, and McMILLIAN and MURPHY,
    Circuit Judges.
                      ___________


McMILLIAN, Circuit Judge.




       1
       The Honorable Pasco M. Bowman succeeded the Honorable Richard S.
       Arnold as Chief Judge of the United States Court of Appeals for the
       Eighth Circuit at the close of business on April 17, 1998.
      Plaintiffs Steve and Lavonda Leonard timely appealed
from a final order in the United States District Court2
for the Western District of Arkansas, dismissing their
complaint without prejudice in this diversity action
alleging legal malpractice against defendant Christopher
Walthall.        Leonard v. Walthall, No. 97-6073 (W.D. Ark.
Oct. 29, 1997) (order of dismissal).                  The district court
dismissed     the    complaint      for      lack    of   subject     matter
jurisdiction due to an insufficient amount in controversy
under 28 U.S.C. § 1332.            Id.       For reversal, plaintiffs
argue     that     the    district         court     erred   in     granting
defendant’s       motion    for    partial         summary   judgment    and
holding as a matter of Arkansas law that plaintiffs
cannot recover damages for emotional distress or mental
anguish based upon their claim of negligence.                     Id. (Aug.
27,   1997) (memorandum opinion and partial judgment).
Jurisdiction is proper in this court based upon 28 U.S.C.
§ 1291.     For the reasons stated below, we affirm.


      In their complaint, plaintiffs allege that defendant
acted negligently, and thus committed legal malpractice,
by first representing plaintiffs in their effort to adopt
a child and then representing another individual, Maxine
Sutton,     in    her     effort     to      adopt     the   same     child.
Plaintiffs       allege    that    defendant’s         wrongful      conduct
caused a delay of several months in their successful
adoption of the child, which in turn caused them to



      2
      The Honorable Jimm Larry Hendron, United States District Judge for the
Western District of Arkansas.
                                     -2-
suffer great emotional distress and mental anguish.3                         In
his answer, defendant alleges that plaintiffs no longer
wished     to   adopt     the   child       at   the   time   he   filed     an
adoption petition on Sutton’s behalf.                     Defendant moved
for partial summary judgment on the ground that Arkansas
law does not permit, in a negligence action, recovery of
damages for emotional distress or mental anguish absent
physical injury.         The district court granted defendant’s
motion upon holding that the Arkansas Supreme Court would
not




      3
        In our opinion, the terms “emotional distress” and “mental anguish” have
essentially the same meaning and are interchangeable.
                                      -3-
permit plaintiffs to recover damages for their alleged
emotional distress under the undisputed facts of this
case.


    On appeal, plaintiffs argue that the issue of whether
Arkansas law permits recovery of damages for emotional
distress in the legal malpractice context has never been
squarely decided by the Arkansas Supreme Court, but that
the trend is toward allowing such damages to be recovered.
Plaintiffs describe as “incorrect” the Eighth Circuit’s
statement in Wood v. National Computer Systems, Inc., 814
F.2d 544, 546 (8th Cir. 1987) (Wood), that, “[a]s to
simple negligence, the Supreme Court of Arkansas has never
recognized a cause of action for the merely negligent
infliction of emotional distress, absent some accompanying
physical injury.”        See Brief for Appellants at 14-16
citing St. Louis S.W. Ry. Co. v. Pennington, 553 S.W.2d
436, 446-52 (Ark. 1977) (en banc) (allowing recovery of
damages for mental anguish under Ark. Stat. Ann. § 27-906
et seq. (Repl. 1962)); Twin City Bank v. Isaacs, 672
S.W.2d   651,   653-55    (Ark.     1984)   (allowing   emotional
distress damages based upon claim that bank wrongfully
dishonored a check in violation of Ark. Stat. Ann. § 85-4-
402); and Little Rock Newspapers, Inc. v. Dodrill, 660
S.W.2d 933, 935-38 (Ark. 1983) (allowing damages for
emotional distress resulting from injury to reputation,
based upon defamation claim).         Plaintiffs maintain that
these cases illustrate that the Arkansas Supreme Court
does make exceptions to the general rule disallowing
damages for emotional distress or mental anguish based on
a negligence claim.


                              -4-
      Plaintiffs also cite Smothers v. Clouette, 934 S.W.2d
923 (Ark. 1996) (Smothers), in which a criminal defendant
sought     emotional   distress       damages    from   his   defense
attorney    for   negligent   legal     representation,       and   the
Arkansas Supreme Court reversed the trial court’s grant of
summary judgment for the defendant-attorney.             Even though
the issue on appeal in Smothers was whether the action was
barred by the statute of limitations, id. at 924-26,
plaintiffs argue this court can nevertheless infer that
the    Arkansas    Supreme    Court     viewed    the    plaintiff’s
emotional distress claim based on




                                -5-
attorney negligence as legally viable because the Arkansas
Supreme Court could have affirmed the dismissal on any
ground.


       Finally, plaintiffs maintain that there is increasing
recognition of the minority rule which allows recovery of
damages     for     emotional     distress           damages     in    legal
malpractice actions.         See, e.g., Kohn v. Schiappa, 656
A.2d 1323 (N.J. 1995) (Kohn) (where attorney had been
retained to represent noneconomic interests of adoptive
parents, allowing adoptive parents to sue attorney for
wrongfully disclosing their identities to natural parents,
notwithstanding absence of economic injury).                     Plaintiffs
contend     that    the   issue         in     Kohn      is    “essentially
indistinguishable” from the issue in the present case and
urge us to hold that the Arkansas Supreme Court would
follow Kohn if faced with the case at bar.


       We review de novo the issue of whether, under Arkansas
law, plaintiffs may recover damages for their alleged
emotional distress resulting from defendant’s negligent
conduct,     notwithstanding       the         undisputed       fact     that
plaintiffs have suffered no physical injury or harm to a
personal or economic interest.               Upon careful review of the
record and the parties’ arguments on appeal, we agree with
the    district    court’s   holding          that    plaintiff    may    not
recover such damages under Arkansas law.


       Contrary to plaintiffs’ assertion, Wood, 814 F.2d at
546,    correctly    explains     that,        as    a   general   rule    of
Arkansas law, a plaintiff may not bring an action for
negligent infliction of emotional distress absent physical
or similar injury.        See, e.g., Dalrymple v. Fields, 633
                                  -6-
S.W.2d 362, 364 (Ark. 1982) (plaintiff who was neither
physically injured nor directly traumatized in any way
could    not    recover       for   emotional    distress    or   related
injuries where the evidence showed negligence but not
willful    or        wanton    wrongdoing       by   the    tortfeasor).
Moreover, the cases upon which plaintiffs rely to show
that there are exceptions to the general rule can easily
be distinguished from the present case because they each
involved either statutory authorization for the damages
sought    or    an    injury    to   the    plaintiff’s     personal   or
economic interests.           In the present case,




                                      -7-
however, there is no statute authorizing the emotional
distress damages sought by plaintiffs, nor did plaintiffs
have a parental interest in the child or other cognizable
interest     which     was    harmed       by    defendant’s       alleged
negligence.


    We     also   find    support        for    the    district    court’s
disposition in Thornton v. Squyres, 877 S.W.2d 921 (Ark.
1994) (Thornton).         In that case, the Arkansas Supreme
Court affirmed the trial court’s directed verdict against
the plaintiff, whose           claim of outrage was based upon
allegations that her attorney mishandled her divorce and
thus caused her temporarily to lose custody of her child.
Id. at 922-23.       The Arkansas Supreme Court agreed with the
trial court’s quoted statement that, if the plaintiff
could state an outrage claim based on what essentially
amounted to attorney negligence, “‘then virtually any act
of legal malpractice touching and affecting peoples’ lives
is also a tort of outrage.’”             Id. at 923.


    In sum, we agree with the district court’s holding in
the present case that the Arkansas Supreme Court would not
allow    plaintiffs      to   go   forward      with    their     claim   of
attorney negligence, which is based upon wrongful conduct
that closely resembles the wrongful conduct alleged in
Thornton and for which plaintiffs’ sole basis for damages
is emotional distress or mental anguish.                The order of the
district court is affirmed.



    A true copy.


           Attest:

                                   -8-
           CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.




                  -9-
