Clark v. Ridgeway

• Decision Date: 12 February 1996
• Docket Number: No. 95-695,95-695
• Citation: 914 S.W.2d 745,323 Ark. 378
• Parties: Mary CLARK, Appellant, v. Robert D. RIDGEWAY, Jr., Appellee.
• Court: Arkansas Supreme Court

Page 745

914 S.W.2d 745

323 Ark. 378

Mary CLARK, Appellant, v. Robert D. RIDGEWAY, Jr., Appellee.

No. 95-695.

Supreme Court of Arkansas.

Feb. 12, 1996.

Appeal from the Garland County Circuit Court, No. CIV 94-310, Walter G. Wright, Judge.

Timothy O. Dudley, Little Rock, Kent J. Rubens, West Memphis, for appellant.

D. Scott Hickam, Hot Springs, for appellee.

BROWN, Justice.

On May 23, 1994, appellant Mary Clark sued appellee Robert Ridgeway Jr. for legal malpractice premised on a conflict of interest and breach of fiduciary duty. Ridgeway moved to dismiss the complaint on several grounds, including the lawyer immunity statute, Ark.Code Ann. § 16-22-310 (Repl.1994). He further moved for Rule 11 sanctions and attorney fees under Ark.Code Ann. § 16-22-309 (Repl.1994). Clark then amended her complaint to include allegations of professional negligence, breach of contract, and fraud. The precise allegations read:

12. In August of 1989, Plaintiff and Defendant entered into a contract. Under the terms of the contract, Plaintiff agreed not to object to the appointment of Defendant as a Master in Plaintiff's divorce proceedings. In return, the Defendant agreed that he would not represent either party to the action in the divorce case. The terms of the contract are set forth in Defendant's affidavit, which is attached hereto as Exhibit "A".

....

15. Defendant represented to the Plaintiff that he would not represent either Plaintiff or her husband in the divorce proceedings if Plaintiff did not object to his appointment as Master in the divorce proceedings. Plaintiff conditioned her approval of Defendant's appointment as Master upon Defendant's execution of an affidavit stating that he would not represent either party in the divorce proceedings. That affidavit is attached as Exhibit "A". As set forth above, Defendant later represented Plaintiff's ex-husband in child custody matters and other matters in the divorce proceedings. Plaintiff relied upon Defendant's representation to her detriment and has sustained damages as a proximate result of her detrimental reliance upon Defendant's material representations. Defendant knew or should have known that his representations were false when made.

Exhibit A to the complaint is an affidavit by Ridgeway which was executed on August 11, 1989, and was part of the divorce action between Mary Clark and Harvey Clark in Garland County Chancery Court. The affidavit reads in pertinent part:

1. I am Robert D. Ridgeway, Jr., an attorney licensed and practicing in Garland County, Arkansas, and I have acted as the attorney for Clark Industries, Inc., since its incorporation in 1985. I have advised both parties to this divorce that it would be improper for me to do anything but remain neutral in this case, and that it is my desire to continue to act as attorney for the company.

2. During the time in which I have acted as attorney for the corporation, I have had numerous conversations concerning corporate activities with both Harvey Clark and Mary Clark, some of these conversations occurring in person and some of them by telephone.

3. Although most of my communications have been with Mary Clark concerning corporate business, it has always been my impression from my discussions with them that they were both directly involved in the day to day management of the business. I say this from conversations with both of them, in which they mentioned the other at work and involved at the business, and from my telephone calls to the business asking for either of them, and they would both would (sic) be on the job site.

4. From my knowledge of the corporation and the corporation's business, as mentioned above, it would appear to me that Mrs. Clark is every bit as involved in the day to day management of the business as is Mr. Clark.

A second motion to dismiss the amended complaint was filed by Ridgeway, and that motion reasserted the grounds previously made.

The trial court granted the motion to dismiss. In doing so, it found:

I.

This Court has jurisdiction over the parties and the subject matter of this case.

II.

The Defendant is immune from the Plaintiff's cause of action pursuant to Arkansas Code Annotated § 16-22-310.

III.

The Defendant, a licensed attorney, cannot be held civilly liable for conduct carried out in reliance on a Court Order.

IV.

The Plaintiff's action seeks to re-litigate an issue which has already been decided three (3) times in the Courts, and twice before the committee on Professional Conduct. As such, the Plaintiff's actions are barred by the Doctrines of Res Judicata and Collateral Estoppel.

V.

The Plaintiff has failed to allege sufficient facts to establish any proximate causation or any other connection between the alleged behavior of the Defendant, and any alleged damages suffered by the Plaintiff.

VI.

The Plaintiff has failed to state facts upon which relief can be granted.

VII.

There are no justiciable issues of law or fact. Clark contends that the dismissal was error.

A history of this case is necessary to establish the context in which this litigation arose. Ridgeway had apparently performed some legal services for Mary Clark, Harvey Clark (her husband), and the family business, Clark Industries, Inc., during the time frame of 1985 to 1989. In 1990, Mary Clark and Harvey Clark were divorced, with the Property Settlement and Child Custody Agreement being filed on January 25, 1990. As part of the divorce proceedings, Ridgeway executed the quoted affidavit on August 11, 1989, and during the divorce proceedings, he was appointed Master of Clark Industries.

In August 1990, after the divorce decree was entered, Ridgeway represented Harvey Clark and Clark Industries in foreclosure litigation brought by One National Bank against the two clients and Mary Clark. A motion to disqualify Ridgeway as counsel was filed by Mary Clark, and the chancellor denied it.

In 1991, Ridgeway next represented Harvey Clark in a change of custody proceeding involving Clark's children which was resolved. In 1993, the question of whether Clark had complied with a court order concerning therapy sessions was raised by Ridgeway on behalf of Harvey Clark. In 1993, Clark filed suit against Ridgeway and her divorce attorney, but she later dismissed Ridgeway from the suit without prejudice. ¹

In her appeal in the instant case, Clark contests the findings and conclusions by the trial court in its order: (1) that Ridgeway was immune from civil liability, (2) that he justifiably acted in reliance on a court order, (3) that the suit is barred by issue or claim preclusion, (4) that Clark failed to establish proximate causation, and (5) that there are no justiciable issues of fact. We note initially that some of Ridgeway's defenses are affirmative defenses (res judicata and collateral estoppel), which are more typically raised by answer and not by a motion to dismiss. Clark does not object to the procedure followed by Ridgeway, however; nor does she contend that she was prejudiced by the process. We have permitted affirmative defenses to be raised by a motion to dismiss in the past. See Amos v. Amos, 282 Ark. 532, 669 S.W.2d 200 (1984) (res judicata); see also Davenport v. Pack, 35 Ark.App. 40, 812 S.W.2d 487 (1991) (laches and limitations). We will consider the defenses in the case at hand.

I. Summary Judgment

We first address whether the order of dismissal was in reality one for summary judgment. In her amended complaint, Clark attached the 1989 affidavit of Ridgeway as an exhibit. Also, in her response to Ridgeway's motion to dismiss, she attached her own affidavit in which she swore to the facts which led to her "contract" with Ridgeway and the facts that she contends constituted a breach. She attached Ridgeway's 1989 affidavit as a second exhibit to her response.

When matters outside the pleadings are presented and not excluded by the trial court in connection with a Rule 12(b) motion, we treat the motion as one for summary judgment under Rule 56 of the Arkansas Rules of Civil Procedure. Ark.R.Civ.P. 12(b) and (c); see Carter v. F.W. Woolworth Co., 287 Ark. 39, 696 S.W.2d 318 (1985); see also Godwin v. Churchman, 305 Ark. 520, 810 S.W.2d 34 (1991). The matters which will be considered in summary judgment proceedings are limited to affidavits, depositions, admissions, and answers to interrogatories. Ark.R.Civ.P. 56(c). Because the two affidavits by Clark were not excluded by the trial court and presumably considered by the court, we will treat the dismissal order as one for summary judgment. We emphasize, however, that we will not consider the exhibits attached to Ridgeway's brief in support of his motion to dismiss in our consideration of the propriety of summary judgment, as we have specifically held that to do so would be incorrect. See Godwin v. Churchman, supra; Eldridge v. Board of Correction, 298 Ark. 467, 768 S.W.2d 534 (1989); Carter v. F.W. Woolworth Co., supra; Guthrie v. Tyson Foods, Inc., 285 Ark. 95, 685 S.W.2d 164 (1985).

II. Negligence and Fraud

Mary Clark's first contention in this appeal is that the trial judge erroneously dismissed the case on the basis of the immunity statute for certain lawyers (§ 16-22-310(a)). According to Clark, that statute is inapplicable to this case because privity of contract existed between Ridgeway and her. The privity of contract asserted was based on an oral agreement that Ridgeway could serve as Master for Clark Industries, if he represented neither party in the divorce action. Clark attached Ridgeway's affidavit, which she contends memorializes the contract, and her own affidavit to support her contention.

The apposite statute relating to privity of contract and lawyer immunity reads:

(a) No person licensed to practice law in Arkansas and no partnership or corporation of Arkansas licensed attorneys or any of its employees, partners, members, officers, or shareholders shall be liable to persons not in privity of...