Liberto v. Waddell
| Decision Date | 04 June 2003 |
| Docket Number | CA02-1232. |
| Parties | JOSEPH LIBERTO APPELLANT, v. SCOTT WADDELL APPELLEE. |
| Court | Arkansas Court of Appeals |
Appellant, Joseph Liberto, appeals the trial court's grant of appellee's, Scott Waddell, motion for summary judgment. Appellant filed suit against appellee for legal malpractice, contending that he lost his case because of appellee's negligence in the preparation and presentation of his federal case against his employer Consolidated Freightways (CF) for age and disability discrimination. The complaint alleged that Waddell was negligent in failing to (1) call witnesses Bobby Kirksey, Valerie Helton, and Brenda Tart, (2) call appellant's treating physician Dr. George DeRoeck, and (3) conduct the necessary discovery to allow his experts, certified public accountant David Worlow, and Dr. Neal Southern to testify.
In response, appellee asserted that he performed adequately and that some of the witnesses were not called because he found their testimony lacking veracity. Appellee stated that he did not call the treating physician because his opinion was not favorable to appellant's claim. The appellee further argued that his decisions were shielded by judgmental immunity, and following a motion for summary judgment, the trial court agreed.
In its order, the trial court found in part that:
The [appellant] cites Lemon v. Laws in support of his position that judgmental immunity does not apply to the instant case. In Lemons v. Laws, an attorney was hired to obtain a divorce for his client. He failed to offer a witness to corroborate the grounds. On appeal, the divorce was set aside and the client ultimately lost the benefits of a favorable divorce settlement and incurred additional attorney's fees. This case is different. In Lemon, the attorney could have put on a witness to testify to an existing state of affairs. In the instant case, the attorney, in his deposition, stated that there was no witness, whose testimony was worth of belief, to testify about any state of affairs that was favorable to the [appellant]. The witnesses, who late in the game and only shortly before the trial claim to have overheard damaging statements by members of management, were in the court[ ]s opinion, properly looked upon with suspicion by the attorney. It is said that an attorney's devotion to his client must always be single-minded. This however is never the case, nor should it be. [His] loyalties are always dual because he always represent[s] the judicial system. Hopefully the duties will not come into conflict. When those loyalties do conflict, it is hoped that the attorney will do as the defendant did here and decline to offer testimony that has clearly been "shaded" to suit the purpose.
The testimony of the treating physician is a closer question. It would have been preferable to have had some medical testimony to support the [appellant's] position. However, the attorney is not responsible for creating it where it does not exist. The [appellant] stated the physician could have testified about how many days he was off from work. Realistically, he would have testified to much more than that under cross-examination. The attorney determined that the adverse information that would have been thus elicited would have outweighed any benefit to his testifying. Whether these judgments turn out to be "right" or "wrong," they are they type that lawyers are called upon to make and the kind to which judgmental immunity applies.
For the reasons stated herein, the [appellees'] motion for summary judgment is hereby granted. The motion to exclude the [appellant's] expert witness is hereby rendered moot.
Following the court's order, appellant filed a motion to vacate, for reconsideration and for a new trial. He noted that the court granted the motion on grounds not advanced by appellee, and that the court did not rule on appellant's claim that the appellee was negligent in failing to timely disclose the opinions of the expert witnesses. The trial court did not rule on the motion; thus, it was deemed denied for the purposes of appeal. This appeal followed.
The sole issue before this court is whether the Craighead County Circuit Court erred in granting summary judgment in favor of the appellee. For the reasons set forth below, we affirm in part and reverse and remand in part.
The rule governing summary judgment motions is as follows:
In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party.
Summer v. Garland, ___ Ark. ___, ___ , 98 S.W.3d 23, 25 (Feb. 13, 2003) (citing Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535).
On a summary-judgment motion, once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Welch Foods, Inc. v. Chicago Title Ins. Co., 341 Ark. 515, 17 S.W.3d 467. When a party cannot present proof on an essential element of its claim, there is no remaining genuine issue of material fact, and the party moving for a summary judgment is entitled to judgment as a matter of law. Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553. Summary judgment is not appropriate where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Lee v. Hot Springs Village Golf Sch., 58 Ark. App. 293, 951 S.W.2d 315.
Bishop v. City of Fayetteville, ___ Ark. App. ___, ___, 97 S.W.3d 913, 918 (Feb. 12, 2003). The grant of summary judgment may be appropriate in a legal malpractice suit. See Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445.
Appellant's suit is predicated upon the theory that appellee negligently represented him during the prosecution of his suit for age discrimination and disability against his employer CF. The appellate courts' most thorough discussion of an attorney's legal obligation to his client is set forth in Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445:
An attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of the client. Schmidt v. Pearson, Evans, and Chadwick, 326 Ark. 499, 931 S.W.2d 774. In order to prevail on a claim of legal malpractice, a plaintiff must prove that the attorney's conduct fell below the generally accepted standard of practice and that such conduct proximately caused the plaintiff damages. Id. In order to show damages and proximate cause, the plaintiff must show that but for the alleged negligence of the attorney, the result in the underlying action would have been different. Id. An attorney is not liable to a client when, acting in good faith, he or she makes mere errors of judgment. Id. Moreover, attorneys are not, as a matter of law, liable for a mistaken opinion on a point of law that has not been settled by a court of highest jurisdiction and on which reasonable attorneys may differ. Id.
Pugh v. Griggs, 327 Ark. at 581-82, 940 S.W.3d at 447. This defense is often referred to as "judgment immunity." Johnson v. Daggett, 99 F. Supp.2d 1008, 1012 (E.D. Ark. 2000).
Conversely, [an attorney] is answerable in damages for any loss to his client which proximately results from a want of that degree of knowledge and skill ordinarily possessed by others of his profession similarly situated, or from the omission to use reasonable care and diligence, or from the failure to exercise in good faith his best judgment in attending to the litigation committed to his care.
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