Bright v. Zega
| Decision Date | 17 June 2004 |
| Docket Number | No. 04-44.,04-44. |
| Citation | 186 S.W.3d 201 |
| Parties | Valerie BRIGHT v. Stephen S. ZEGA and Davis & Zega, P.C. |
| Court | Arkansas Supreme Court |
Harry McDermott, Fayetteville, AR, for Appellant.
Davis, Wright, Clark, Butt & Carithers, PLC, by: Laura J. Andrews and Bradley D. Shepherd, Fayetteville, AR, for Appellees.
Appellant Valerie Bright appeals from the circuit court's order dismissing her attorney negligence and breach-of-contract complaint against the appellees, Stephen S. Zega and Davis & Zega, P.C. (jointly referred to as Zega), for failure to state facts upon which relief could be granted pursuant to Ark. R. Civ. P. 12(b)(6). She asserts two points on appeal: (1) that the circuit court erred in concluding that because she settled her lawsuit in the underlying case, her claim of negligence against Zega should be dismissed; and (2) that the circuit court erred in dismissing her breach-of-contract claim where her complaint alleged a specific promise of representation and further alleged that Zega ignored her case and wrongfully withdrew. We affirm.
On August 27, 2003, Ms. Bright filed a twelve-page complaint against Zega in which she alleged two counts: breach of contract and attorney negligence. Ms. Bright alleged that following several allegedly discriminatory acts by her employer, Wal-Mart, she contacted Zega to represent her in a lawsuit against the company for discrimination and retaliation. Ms. Bright stated that Zega "specifically promised [her that] he and his law firm would sue Wal-Mart on her behalf for discrimination and retaliation and he would attend her EEOC [Equal Employment Opportunity Commission] interview with her." Ms. Bright alleged that in reliance upon those promises, she hired Zega to represent her.
Ms. Bright further alleged that Zega failed to attend her EEOC interview on March 6, 2002, and that six days later, EEOC notified her of her right to sue.1 On June 10, 2002, Zega filed Ms. Bright's suit against Wal-Mart in federal court, but, she claims, the complaint did not contain any allegations of retaliation. With respect to her breach-of-contract claim, Ms. Bright asserted that following her failed appearance at a deposition scheduled for November 12, 2002, Zega filed a motion to withdraw. On November 14, 2002, the federal district court granted Zega's motion to withdraw from her case. She contended that Zega breached his contract with her by "failing . . . to attend her EEOC interview as promised, failing to prepare and develop her case for trial as promised, failing to obey her instructions to change her deposition date as instructed, failing to file a cause of action for retaliation as promised, and withdrawing without justification . . . in breach of their promise to sue Wal-Mart on her behalf."
With respect to mitigation, Ms. Bright alleged that she "did everything she could" to hire another attorney to represent her. However, no one would take her case due to the trial date of April 21, 2003. She further stated that she was unaware of any other alternative but to represent herself, and, thus, she was forced to accept a $3500 settlement from Wal-Mart. She concluded that but for Zega's breach of contract, she would have obtained an enforceable judgment against Wal-Mart in excess of $100,000, reinstatement to her job, and attorney's fees.
In the alternative, Ms. Bright claimed that as a result of the attorney-client relationship previously set forth, Zega had a duty to represent her with a reasonable degree of care, skill, and diligence, and owed her a fiduciary duty. She specifically alleged that Zega breached his duty in that he failed "to comply with the Rule 26 discovery requirements . . .; failed to prepare and develop [her] case before November 12, 200[2]; failed to obey [her] instructions to change her deposition date; failed to file a cause of action for retaliation; failed to discuss their intent to withdraw as her attorneys before they filed their motion to withdraw; failed to obtain [her] consent to withdraw; failed to find out the circumstances as to why [she] did not show up for her deposition; failed to give [her] adequate notice so that she could find another attorney before they withdrew; failed to file a motion for a continuance based upon their impending withdrawal as her attorney; failed to discuss and advise [her] with regard to her available options resulting from their withdrawal as [her] attorneys; and unjustly withdrew as her attorneys on November 14, 2003." She maintained that as a direct, proximate, and foreseeable result of Zega's negligence, she was damaged in excess of $100,000.
On September 17, 2003, Zega filed a motion to dismiss Ms. Bright's complaint. The motion asserted that Ms. Bright had filed the action under a theory of legal negligence and that because she had settled her federal case with Wal-Mart for $3500, she had elected her remedies, and thus, her complaint failed to state a cause of action upon which relief could be granted.
Following briefs on the dismissal issue, the circuit court issued a letter opinion on November 5, 2003, in which it concluded that Zega's motion to dismiss had merit and should be granted. Specifically, the circuit court found, in that letter opinion in pertinent part:
. . . Here, Plaintiff's complaint does include allegations giving rise to the gender discrimination claim against Wal-Mart and the subsequent alleged wrongful conduct of the Defendants, but it fails to set forth sufficient facts as a matter of law to establish Plaintiff's damages were occasioned as a proximate result of Defendants' conduct.
Plaintiff in her complaint also alleges Defendants breached the attorney-client contract by failing to represent Plaintiff with a reasonable degree of care, skill, and diligence. Although styled as a breach of contract claim, paragraphs 33 through 45 of Plaintiff's complaint contain allegations of negligent representation by Defendants as opposed to breach of contract. In essence, Plaintiff alleges Defendants failed to represent Plaintiff with a reasonable degree of care, skill, and diligence.
The Arkansas Supreme Court in Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998) held that failing to act diligently is present in every lawyer-client relationship, but "the violation of that obligation is nothing more than negligence." Even if the promise to act diligently was stated in a written contract, the Court held that such a reference does not transfer the action from one of negligence into a breach of contract action. Id. Accordingly, the mere allegation of failure to proceed diligently or act competently does not permit the claim to be asserted as a breach of contract claim.
Here, as in Plaintiff's claim alleging negligence, Plaintiff has once again failed to allege facts as a matter of law that would establish Plaintiff's damage proximately resulted from Defendants' conduct.
Plaintiff in her complaint concludes Defendants' conduct resulted in her damage; however, when treating the facts alleged in Plaintiff's complaint as true, and viewing them in the light most favorable to Plaintiff, it's clear she has failed to plead facts as a matter of law sufficient to give rise to a claim for relief against Defendants. The underlying claim against Wal-Mart was settled by Plaintiff. She is now attempting to re-litigate the Wal-Mart case by speculating such conduct resulted in damage. Plaintiff's conclusions fail to state a cause of action against Defendants.
The circuit court then entered an order of dismissal without prejudice, which incorporated the reasoning set forth in the letter opinion.
Ms. Bright argues on appeal that Zega owed her a fiduciary...
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