Gregory & Swapp, PLLC and Highberg v Krandendonk

Gregory & Swapp appealed the denial of their motion for judgment notwithstanding the verdict as to noneconomic damages in this legal malpractice case and an attorney fee award to Krandendonk and Krandendonk cross appealed the denial of her litigation expense request and the exclusion of two statements by Highberg. The Court vacated on appeal, reversed in part on cross appeal and dismissed as moot in part on cross appeal. It held the noneconomic damages were not available under a breach of contract theory as the contract here did not address let alone authorize damages for mental distress and the contract was for prosecuting a personal injury claim and thus did not involve peculiarly personal interest such as child custody or wrongful conviction. It held that the noneconomic damages were unavailable under a breach of fiduciary duty because Krandendonk presented no evidence that her distress was caused by Highberg’s breach of duty instead of the fact her claim was dead. It held the attorney fee ward had to be vacated as it was based on the breach of fiduciary claim, that the denial of litigation expenses was correct as the fiduciary duty claim failed and held the evidentiary ruling issue was moot given the failure of the claim.