Jackson v. Ivory

• Decision Date: 26 June 2003
• Docket Number: No. 02-1022.,02-1022.
• Citation: Jackson v. Ivory, 353 Ark. 847, 120 S.W.3d 587 (Ark. 2003)
• Parties: Keith JACKSON v. George S. IVORY, Jr., Chantel Denise Mullen and Ivory Law Firm.
• Court: Arkansas Supreme Court

120 S.W.3d 587

Keith JACKSON v. George S. IVORY, Jr., Chantel Denise Mullen and Ivory Law Firm.

No. 02-1022.

Supreme Court of Arkansas.

June 26, 2003.

Friday, Eldredge & Clark LLP, by: John Dewey Watson, John F. Peiserich, and Brandon J. Harrison, Little Rock, for appellant.

Barber, McCaskill, Jones & Hale, P.A., by: Robert L. Henry, III and D. Keith Fortner, Little Rock, for appellees.

JIM HANNAH, Justice.

Appellant Keith Jackson appeals the summary judgment order of the Pulaski County Circuit Court, Second Division, which dismissed his claim of professional negligence against Chantel Mullen and his claims of respondeat superior and negligent supervision against George Ivory, Jr. ("Ivory"), and the Ivory Law Firm. On appeal, Jackson argues that: (1) Ark.Code Ann. § 16-22-310 (Supp.1993) does not bar his claim of professional negligence against Mullen; (2) a material factual dispute remains as to whether Jackson was in privity with Mullen; (3) a material factual dispute remains as to whether this case presents an exception to the privity requirement of § 16-22-310; (4) Mullen is estopped from claiming that she owed no duty to Jackson; (5) Jackson's negligent supervision and respondeat superior claims against Ivory are not barred by Ark.Code Ann. § 16-22-310.

We agree that the trial court erred in granting summary judgment in finding that there was no material factual dispute as to whether Jackson was in privity with Mullen, and we reverse and remand as to that point. We also agree that the trial court erred in granting summary judgment in finding that there was no material factual dispute as to whether Mullen and Ivory had an employee-employer relationship at the time of Mullen's alleged negligence; therefore, we reverse and remand the trial court's finding that Jackson's respondeat superior claims against Ivory are barred by section 16-22-310. We affirm the trial court on all remaining points. This appeal was certified to us by the court of appeals pursuant to Ark. R.S.Ct. 1-2(a)(5), as it represents an issue regarding the practice of law.

Facts

In 1996, Jackson served as an uncompensated recruiter of athletes for Elbert Crawford, a sports agent. At that time, Crawford, a longtime friend of Jackson's, worked at Llama Sports Management. After Llama Sports Management closed in 1998, Crawford formed Ace Sports Management ("Ace"). At the request of Crawford, Jackson began providing funds for the operation of the sports management business in 1997.

Some time in early 1998, Crawford met with Jackson and Dr. Joe Hargrove to discuss the possibility of Hargrove and Jackson investing in Ace. Jackson, Crawford, Hargrove, Hargrove's office manager, and appellee attorney Chantel Mullen attended the meeting to discuss investment opportunities and options. Jackson's accountant and financial advisor, Judd Rothman, participated in the meeting via conference call.

After the meeting, Jackson agreed to supply Ace with additional working capital of $370,000. Jackson's total contributions, which included prior advances and the $370,000 in working capital, amounted to $512,000, excluding interest on the loans prior to the final loan of $370,000.

Jackson requested that Crawford and Ace make arrangements to secure his loans to Ace. Mullen drafted an agreement ("Agreement") and, on March 3, 1998, at the offices of Ace, she gave copies of the draft to Jackson and Crawford. The Agreement provided that Jackson was to "have a first lien against $500,000.00 of the agent fees due and owing to Ace Sports Management, LLC and/or Elbert Crawford from the 1998 NBA Player's Contract of Corliss Williamson." The Agreement also gave Jackson a 40% ownership interest in Ace.

Jackson discussed the Agreement with Rothman, and Rothman recommended that professional basketball player Derek Fisher's contract should also be included as a specific revenue source. Mullen inserted typewritten modifications to the Agreement which stated that the income derived from Derek Fisher's contract would also be used to satisfy Ace's debt to Jackson.

On March 11, 1998, Jackson and Crawford signed the Agreement. Mullen was not present when the parties signed the Agreement. A UCC-1 Financing Statement was never filed with the Secretary of State; thus, Jackson's lien was never perfected.

Subsequent to the execution of the Agreement, Crawford pledged the contracts of Williamson and Fisher to other lenders who obtained a priority position to Jackson because Jackson's lien had not been perfected. Crawford and Ace later went into bankruptcy, of which Jackson is a creditor.

After learning that his lien had not been perfected, Jackson filed a complaint against Ivory and Mullen. Jackson contended that Mullen, while acting as his attorney, had committed professional negligence, in that she failed to perfect Jackson's lien, failed to properly draft the Agreement, failed to inform Jackson of the consequences of not taking appropriate steps to perfect his lien, and failed to act as an ordinary and prudent attorney would in similar circumstances. The complaint also alleged that at the time Mullen worked on the Agreement between Jackson and Crawford, she was an associate in the office of appellee Ivory and, as such, Mullen's alleged negligent acts could be imputed to Ivory.

Mullen and Ivory filed a motion for summary judgment, which stated that Jackson's claim was "barred by the privity/lawyer-immunity statute. Ark.Code Ann. § 16-22-310." Both Mullen and Ivory denied that they ever served as Jackson's attorney. After a hearing on May 21, 2001, the trial court granted Mullen's and Ivory's motion for summary judgment.

In the order granting summary judgment, the trial court stated:

I. There is no genuine issue as to any material fact.

II. Plaintiff's claim against Chantel Mullen is barred by A.C.A. § 16-22-310.

III. Plaintiff's claim against George Ivory, Jr. is barred by A.C.A. § 16-22-310.

IV. Chantel Mullen is entitled to Summary Judgment in her favor and her Motion for Summary Judgment is granted by the Court.

V. George S. Ivory, Jr. is entitled to Summary Judgment in his favor on Plaintiff's claims, including the allegation of negligent supervision, and his Motion for Summary Judgment is granted by the Court.

VI. Summary Judgment is granted in favor of Ivory Law Firm.

VII. A.C.A. § 16-22-310 is not unconstitutional as alleged by plaintiff.¹

Standard of Review

Summary judgment should only be granted by the trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. See Vanderpool v. Pace, 351 Ark. 630, 97 S.W.3d 404 (2003). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. City of Barling v. Fort Chaffee Redevelopment Authority, 347 Ark. 105, 60 S.W.3d 443 (2001). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002).

On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably be drawn and reasonable minds might differ. Flentje v. First Nat'l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).

I. Claims Against Mullen

Jackson argues that issues of material fact exist as to whether section 16-22-310 bars him from maintaining his cause of action against Mullen for legal malpractice for failing to perfect his lien.

A. The Privity Requirement

Section 16-22-310(a) provides:

(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 contract with the person, partnership, or corporation for civil damages resulting from acts, omissions, decisions, or other conduct in connection with professional services performed by the person, partnership, or corporation, except for:

(1) Acts, omissions, decisions, or conduct that constitutes fraud or intentional misrepresentations; or

(2) Other acts, omissions, decisions, or conduct if the person, partnership, or corporation was aware that a primary intent of the client was for the professional services to benefit or influence the particular person bringing the action. For the purposes of this subdivision, if the person, partnership, or corporation:

(A) Identifies in writing to the client those persons who are intended to rely on the services, and

(B) Sends a copy of the writing or similar statement to those persons identified in the writing or statement, then the person, partnership, or corporation, or any of its employees, partners, members, officers, or shareholders may be held liable only to the persons intended to so rely, in addition to those persons in privity of contract with the person, partnership, or corporation.

We have stated that the plain language of section 16-22-310 requires the plaintiff to have direct privity of contract with the person, partnership, or corporation he or she is suing for legal malpractice. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002); Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001); McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999). Privity of contract is defined as "that connection or relationship which exists between two or more contracting parties." Swink v....