Cole v. Laws, 01-1329.

• Decision Date: 06 June 2002
• Docket Number: No. 01-1329.,01-1329.
• Citation: 76 S.W.3d 878,349 Ark. 177
• Parties: Teresa Ann COLE v. Allen LAWS, III, and Laws and Murdoch, P.A.
• Court: Arkansas Supreme Court

76 S.W.3d 878

349 Ark. 177

Teresa Ann COLE v. Allen LAWS, III, and Laws and Murdoch, P.A.

No. 01-1329.

Supreme Court of Arkansas.

June 6, 2002.

Appellant, Springdale, pro se.

Wright, Lindsey & Jennings LLP, by: Bettina E. Brownstein, Little Rock, for appellees.

ROBERT L. BROWN, Justice.

This is a legal malpractice case. Appellant Teresa Ann Cole is the former client of the appellees, Allen Laws, III, and his law firm, Laws and Murdoch, P.A. The two appellees will be referred to as Laws for purposes of this opinion. Ms. Cole appeals, pro se, the entry of partial summary judgment against her on her claim that Laws breached his fiduciary duty owed to her.¹

The present appeal arises from litigation commenced approximately eight years ago. On October 6, 1994, Terry Cole filed for divorce from his wife, Teresa Ann Cole. In March 1996, after firing prior counsel, Ms. Cole hired Laws to represent her. On June 4, 1996, the day of the final hearing on the divorce complaint, the Coles entered into a property settlement agreement.

On that date, the Coles and their attorneys met to reach a final agreement on the distribution of marital property, which was composed primarily of the Coles' cattle ranch and livestock. According to Ms. Cole, the Coles' accountant valued the real property at $269,000 and the livestock at $80,000. Thus, she maintained that the ranch was worth a total of $349,000. There were other marital assets as well. However, this appeal deals solely with the division of the ranch and the livestock.

The Coles decided to enter into a property settlement agreement in which they would share equally in the marital assets. To reach this equal division, Terry Cole would buy Ms. Cole's interest in the ranch and livestock for half of the value. According to Ms. Cole, during the meeting, Terry Cole's lawyer began negotiations by using an erroneous figure of $189,000 as the value of the ranch. His attorney apparently reached this figure by mistakenly subtracting the value of the cattle from the value of the ranch, instead of adding the two figures together. Again, the two figures added together amounted to $349,000. However, the value of the real property less the value of the cattle amounted to $189,000. Terry Cole's attorney used this erroneous lower figure throughout the meeting. It is Laws's alleged failure to correct this error that is the basis of this legal malpractice suit.

Terry Cole's attorney first used the $189,000 figure when he asked Ms. Cole and Laws if half of this figure would amount to $90,500. Laws was busy with another matter, according to Ms. Cole, so Ms. Cole answered the question by pointing out that half of $189,000 would be $94,500, not $90,500. Thereafter, the parties agreed to a property settlement agreement based on the erroneous figure. Later that same day, at the hearing on the divorce complaint, both parties testified that they were satisfied with the property settlement agreement. Specifically, Ms. Cole answered the chancellor's questions as follows:

CHANCELLOR: You are aware—you are fully aware of the property settlement agreement entered in here today, is that correct; and, are you satisfied with it?

MS. COLE: Yes, sir.

CHANCELLOR: Is there anything that we have not discussed in this property settlement agreement that needs to be discussed that may bring this matter back in here?

MS. COLE: No.

CHANCELLOR: And are you satisfied with your attorney?

MS. COLE: Yes, sir.

CHANCELLOR: Okay. I have advised you on what you're giving up, and we've gone—we've had numerous conversations about the assets and liabilities that were acquired during this marriage, is that correct?

MS. COLE: Yes.

CHANCELLOR: Okay. You understand what your rights in this property, as well as your obligation under the debts are?

MS. COLE: Yes.

CHANCELLOR: Okay. Based on that you're still—you still think this is a good property settlement agreement in your best interest?

MS. COLE: Yes.

Following this exchange, the chancellor approved the property settlement agreement and entered the divorce decree.

Ms. Cole averred that she did not realize the mathematical mistake until the next morning, on June 5, 1996. She immediately contacted Laws and told him about the error. Laws recognized the mistake as well, according to Ms. Cole, and on June 6, 1996, he filed a motion to set aside the property settlement agreement. On June 24, 1996, he filed an amended motion to set aside. The chancellor denied these motions. Ms. Cole appealed this denial, and the court of appeals affirmed the chancellor's decision in an unpublished opinion. See Cole v. Cole, 1997 WL 792913 (Ark. App. No. CA 97-136 Dec. 17, 1997).

On May 28, 1999, Ms. Cole filed the present legal malpractice suit against Laws in which she alleged three theories of liability: negligence, breach of contract, and breach of fiduciary duty. She asserted in her action that she was pressured into a quick settlement by Laws. She further asserted that she tried to verify the numbers herself, but that she had difficulty doing so because Laws was talking to Terry Cole at the time when she was trying to do the mathematics. She also asserts that the chancellor pressured the parties to reach the agreement, which was finalized just before the hearing. She contends in her complaint that Laws should have discovered the mathematical mistake, and his failure to do so amounted to breach of fiduciary duty as well as breach of contract and negligence.

Laws moved for summary judgment on all three claims made in Ms. Cole's complaint. The trial court granted Laws's motion on the breach-of-fiduciary-duty count on March 23, 2000, but allowed the other two counts, breach of contract and negligence, to be tried to a jury. Following the trial, the jury returned a verdict in Laws's favor on both counts, and judgment was entered on July 16, 2001. Ms. Cole appeals from the entry of partial summary judgment on March 23, 2000, but not from the judgment in Laws's favor respecting the breach-of-contract and negligence counts.

I. Laws's Alleged Procedural Bars

Laws raises two procedural bars to our consideration of the merits of this case. First, he contends that the notice of appeal was untimely. Secondly, he urges that the summary-judgment order appealed from was not a final, appealable order for purposes of Ark. R. Civ. P. 54(b). Neither of these arguments has merit.

Laws first argues that the notice of appeal was untimely. He points to the fact that the appeal was taken solely from the trial court's March 23, 2000, order of partial summary judgment on breach of fiduciary duty. Thus, Laws argues, Ms. Cole's notice of appeal dated September 12, 2001, was untimely under Ark. R.App. P.—Civ. 4(a), which requires the notice of appeal to be filed within thirty days of the entry of the order appealed.

Ms. Cole correctly counters with the fact that this argument has already been decided by this court, since we previously denied a motion to dismiss this appeal which raised the same issue of the lack of a timely notice of appeal. But more importantly, had Ms. Cole filed her notice of appeal after entry of the March 23, 2000 order granting partial summary judgment, the appeal would have been premature under Ark. R. Civ. P. 54(b), because that order appealed from did not resolve all claims involving all parties. See, e.g., Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998) (order granting partial summary judgment not a final appealable order under Rule 54(b)); Cordell v. Nadeau, 321 Ark. 300, 900 S.W.2d 556 (1995) (order granting partial summary judgment was a final appealable order only because trial court certified the order pursuant to Rule 54(b)). In the case before us, the trial court did not certify the partial summary judgment as appealable pursuant to Rule 54(b). Thus, Ms. Cole's decision to wait to appeal until entry of a final judgment was correct. At that time, all claims involving all parties had been resolved.

II. Summary Judgment

Ms. Cole's first argument is that the trial court erred in granting summary judgment on the fiduciary-duty issue as a matter of law. She asserts a number of legal points to support this allegation of error. Each point will be taken up individually, but several of her issues will not be addressed on the merits due to her failure to preserve those arguments for appeal by obtaining rulings from the trial court. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998); Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997); Technical Serv. of Ark., Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995).

a. Reliance on Ms. Cole's testimony at the divorce proceeding

She first asserts that the trial court erred as a matter of law if it relied on her testimony at the divorce hearing to find that she acquiesced in the mathematical mistake. Her theory is that reliance on this testimony constitutes an error of law because the testimony was taken before she realized the mistake. She devotes, however, a meager two sentences to this argument in her brief and cites no authority to support her contention that the trial court's decision should be reversed on this basis. We will not address this argument due to her failure to obtain a ruling on this matter from the trial court, and, further, due to the fact that the argument is not supported by citation to authority. See Cadillac Cowboy v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002) (citing Hart v. McChristian, 344 Ark. 656, 42 S.W.3d 552 (2001); Perryman v. Hackler, 323 Ark. 500, 916 S.W.2d 105 (1996); Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995)).

b. The chancellor's affidavit

The chancellor in the divorce matter signed an affidavit in support of Laws's motion for summary judgment that he was of the opinion that Ms. Cole had not made a mathematical mistake and that she was a woman who had merely changed her mind. Ms. Cole claims that it was error for the judge to rely on this affidavit in...