Nash v. Hendricks

• Court: Arkansas Supreme Court
• Writing for the Court: Jim Hannah
• Citation: Nash v. Hendricks, 369 Ark. 60, 250 S.W.3d 541 (Ark. 2007)
• Decision Date: 22 February 2007
• Docket Number: No. 06-968.,06-968.
• Parties: Howard & Zettie NASH, Individually & as Guardians of Roderick Nash, Appellants, v. Brad HENDRICKS, Lamar Porter, Brad Hendricks Law Firm, P.A., Appellees.

250 S.W.3d 541

369 Ark. 60

Howard & Zettie NASH, Individually & as Guardians of Roderick Nash, Appellants, v. Brad HENDRICKS, Lamar Porter, Brad Hendricks Law Firm, P.A., Appellees.

No. 06-968.

Supreme Court of Arkansas.

February 22, 2007.

Larry C. Wallace, for appellants.

Barber, McCaskill, Jones & Hale, P.A., by Robert L. Henry and Cynthia W. Kolb, Little Rock, for appellees.

JIM HANNAH, Chief Justice.

Appellant Howard Nash, individually, and as special administrator for the Estate of Roderick Nash, Deceased, appeals the order of the Pulaski County Circuit Court, Third Division, granting summary judgment in favor of appellees Brad Hendricks, Lamar Porter, and Brad Hendricks Law Firm, P.A. (collectively referred to as Hendricks Law Firm or law firm). On appeal, Mr. Nash argues that the circuit court (1) abused its discretion in refusing to permit a separate hearing to hear evidence on a motion for recusal prior to ruling on the merits of a summary-judgment motion, where an evidentiary hearing had been requested, (2) erred in granting summary judgment as a matter of law in a legal-malpractice lawsuit where legal experts had submitted disputing affidavits as to the defendant lawyers' breaches of the applicable standard of care, and (3) erred in granting Hendricks Law Firm's motion for summary judgment on statute-of-limitations grounds. Although this case was originally filed in the court of appeals, we assumed jurisdiction of the case as it involves questions that arise under the power of the supreme court to regulate the practice of law. See Ark. Sup.Ct. R. 1-2(a)(5). We affirm.

The facts underlying the case are as follows. Roderick Nash was a military serviceman who was injured in a motor vehicle accident while off his marine base in California. Roderick suffered severe injuries, including trauma to his brain. He was later transported to Arkansas for rehabilitation, diagnosis, and treatment.

On January 17, 1995, Roderick underwent a brain biopsy procedure at McClellan Veterans Administration Hospital in Little Rock. The procedure was performed by Charles Teo, M.D., and assisted by Anthony Russell, M.D. However, the brain biopsy was performed on the wrong side. After the biopsy was performed, Warren Stringer, M.D., interpreted radiological studies of Roderick's brain. Subsequently, Howard and Zettie Nash, Roderick's parents, were appointed as coguardians of Roderick's estate and retained the Brad Hendricks Law Firm to represent their son in a medical-malpractice lawsuit against Drs. Teo, Russell, and Stringer.

A medical-malpractice complaint naming Drs. Teo, Russell, and Stringer as defendants was filed in Pulaski County Circuit Court on December 31, 1996. According to the Hendricks Law Firm, the complaint was filed in Pulaski County Circuit Court to determine if the physicians were government employees or private physicians when they provided services at the VA. The law firm states that the complaint was not intended to file a federal-tort-claim lawsuit.

The lawsuit was later removed to the United States District Court, Eastern District of Arkansas, and in an order entered on August 11, 1997, the district court found that Drs. Teo and Russell were employed by the VA and were acting within the scope of their employment during the relevant time of the alleged medical malpractice. Accordingly, the district court concluded that the United States of America must be substituted as the proper defendant in the place of Drs. Teo and Russell. The district court then found that an administrative-tort claim had not been made to the VA, as required by 28 U.S.C. § 2675(a).¹ Concluding that it did not have subject-matter jurisdiction over the United States, the district court dismissed the case. The district court also determined that it lacked jurisdiction over Dr. Stringer, who was determined to be a private physician, and remanded the case against him back to the circuit court.

The Hendricks Law Firm did not file an administrative-tort claim, nor did the law firm commence prosecution of the suit against Dr. Stringer. Instead, the law firm terminated its attorney-client relationship with the Nashes. In a letter to the Nashes, attorney Lamar Porter explained that the federal court had terminated the claims against Drs. Teo and Russell, based on the fact that they were employees of the federal government at the time of the alleged malpractice. Porter stated that the law firm saw no reason to appeal that decision and that if the Nashes desired to appeal, then they should contact another attorney. The letter also explained that the federal-court order of dismissal was entered on August 12, 1997; thus, the Nashes would have thirty days from that date to appeal.

Additionally, Porter stated that the case against the radiologist, Dr. Stringer, was being sent back to state court. Porter stated that, because Dr. Stringer did not interpret the x-rays until after the biopsy had already been completed, the firm would be nonsuiting the case in state court. Finally, Porter explained that the nonsuit would allow the case against Dr. Stringer to be refiled within one year in the event the Nashes hired another attorney to pursue the case.

The time for filing an administrative-tort claim subsequently lapsed. The Nashes then retained counsel to pursue a legal-malpractice lawsuit in Pulaski County Circuit Court and had a guardian appointed for Roderick. The suit was filed on August 5, 2004. Discovery was taken, and during that time, the Nashes learned that the circuit judge's father had previously represented one of the appellees in a legal-malpractice lawsuit.

The Hendricks Law Firm filed a motion for summary judgment on February 8, 2006. The Nashes responded and later moved for recusal, requesting an evidentiary hearing and an opportunity to conduct additional discovery. The law firm moved to strike the expert affidavit submitted by the Nashes. A hearing was held on the various motions on May 1, 2006. On May 15, 2006, the circuit court denied the Nashes' motion for recusal and request for evidentiary hearing, denied the motion for additional discovery, denied the motion to strike the Nashes' expert affidavit, and granted summary judgment in favor of the Hendricks Law Firm.

In the order granting summary judgment, the circuit court ruled that the Nashes could not have prevailed on their medical-malpractice lawsuit due to the application of the Feres² doctrine. Further, the circuit court determined that the statute of limitations had run on the legal-malpractice lawsuit.

On May 16, 2006, Roderick died. An order was entered on June 12, 2006, substituting Howard Nash as special administrator and reviving the lawsuit. This appeal followed.

Mr. Nash first argues that the circuit court abused its discretion in refusing to grant a separate hearing to hear evidence on a motion for recusal prior to ruling on the merits where an evidentiary hearing had been requested. Mr. Nash filed a motion for recusal and request for evidentiary hearing on April 28, 2006, at 2:53 p.m., which was the Friday afternoon prior to the Monday, May 1, 2006 hearing on the summary-judgment motion. The motion for recusal was based on the stated facts that appellee Lamar Porter was previously represented by the Honorable James Moody, the circuit court judge's father, in a legal-malpractice action when both the Honorable James Moody and the circuit court judge were previously attorneys employed at the law firm Wright, Lindsey & Jennings. The circuit court denied the motion to recuse.

On May 1, 2006, prior to hearing arguments on the Hendricks Law Firm's summary-judgment motion, the circuit court heard arguments on the recusal motion, and the following colloquy took place between counsel for the Mr. Nash and the circuit court:

THE COURT: Well, you had indicated that you had some request for an evidentiary hearing. I'm not sure what you are requesting because I think it's my understanding that the first time that my father's involvement in this case would have come to your attention would have been October of '04, in response to interrogatories.

COUNSEL: That's correct.

THE COURT: So we're a year and some months later. And so I'm prepared for you to put on your record whatever you want to put on, to bring something that's not in the pleadings to my attention regarding the recusal. Are you prepared to do that at this time?

COUNSEL: I'm not — I didn't bring any witnesses with me today, your Honor. But I think that Mr. Nash is entitled to take the deposition of Mr. Lamar Porter and anyone else in that law firm as to who was representing them during this period of time.

THE COURT: Well, Mr. Wallace, I would agree. But you've had a year — over a year to do that. And I don't think it's appropriate to bring up that issue on the eve of a motion for summary judgment to delay those proceedings when you've had ample time to do that, because I'm not aware of anything new that's come up in your pleadings since the response in, I believe, October of 2004 that my father had previously represented Mr. Porter.

COUNSEL: That's correct, your Honor.

THE COURT: And so I guess my question is, why haven't you done something before?

COUNSEL: Because we haven't been before this Court on a motion for summary judgment until today.

THE COURT: I understand that. But you knew I was going to be the judge in this case on the day you filed the lawsuit.

COUNSEL: Your Honor, Mr. Nash has no problem, and he would waive any question about you serving as judge if we were not here today at this hour on their motion for summary judgment. They're asking you to rule on a matter of fact.

THE COURT: Well, I am going to give you an opportunity to put on whatever evidence you have today, but I'm not going to postpone this hearing pending discovery that you might make on an issue that you've been aware of for a year and a half. So I will give you that opportunity to do that now, and I...