Pinkston v. Lovell, 88-67
| Decision Date | 24 October 1988 |
| Docket Number | No. 88-67,88-67 |
| Citation | 759 S.W.2d 20,296 Ark. 543 |
| Parties | R.C. PINKSTON, Jr., Appellant, v. John F. LOVELL, Jr., Appellee. |
| Court | Arkansas Supreme Court |
Ray Baxter, George Ellis, Benton, for appellee.
The appellant, attorney R.C. Pinkston, Jr., brought an action for slander against the appellee, attorney John F. Lovell, Jr. This appeal is from an order dismissing Pinkston's suit on motion for summary judgment by Lovell. On appeal, Pinkston contends the court erred: (1) in denying his request for a continuance; (2) in failing to recuse; (3) in granting Lovell's motion for summary judgment; and (4) in concluding that certain documents would be inadmissible at the hearing on the motion for summary judgment. We find no error and affirm.
The suit by Pinkston centered around statements made by Lovell on two occasions. The first statement was made sometime shortly before January 24, 1986, to a Mr. and Mrs. Caldarera--Pinkston's clients in a probate proceeding. The Caldareras came to see Lovell for his legal opinion on Pinkston's handling of the Caldareras' probate matters, Pinkston's charges for his services, and a divorce which the Caldareras were contemplating. On this occasion, Lovell's statements reflected his opinion as to Pinkston's competency with regard to the Caldareras' questions.
The second incident took place sometime in February 1987. By this time the Caldareras had divorced. Along with her present husband, Mrs. McKee, formerly Caldarera, sought an opinion from Lovell on the advisability of a malpractice action against Pinkston for overcharging her and her former husband and failing to protect their interests in the probate litigation. On this occasion, according to affidavits introduced at the hearing on the summary judgment motion, Lovell had agreed with Mrs. McKee's sentiments that Pinkston was not competent as an attorney. Lovell also stated that he had heard Pinkston testify to that effect under oath during trial proceedings in an unrelated criminal matter.
Suit by Pinkston was filed on March 20, 1987. Lovell's motion for summary judgment was filed on August 5. In his response to the motion for summary judgment, Pinkston requested a continuance in order to conduct further discovery. At a hearing on October 5, 1987, the trial court denied the motion for a continuance, denied a motion to recuse, excluded certain documents offered by Pinkston, and granted the motion for summary judgment on the grounds that "[a]ll of the statements ... allegedly made by defendant about plaintiff are either barred by the statute of limitations, constitute mere opinion, or constituted advice given to a client within the course and scope of the attorney-client relationship."
Rule 56 of the Arkansas Rules of Civil Procedure governs summary judgments and subsection (f) provides:
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Subsection (f) makes evident that the decision to grant a continuance is within the discretion of the trial court. Pinkston acknowledges our rule that the refusal to grant a continuance will not be reversed absent an abuse of the trial court's discretion. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987).
We are not convinced from Pinkston's brief that additional discovery would have changed the outcome of the summary judgment proceedings and generally find Pinkston's arguments on this issue unpersuasive. Under the circumstances, we cannot say that the trial court abused its discretion.
The primary thrust of Pinkston's argument on this point is that the trial judge should have recused when it became clear that Pinkston might call the judge as a witness during trial of the slander suit inasmuch as the judge had previously presided over the unrelated criminal trial at which, according to Lovell, Pinkston had testified under oath concerning his competency to handle a particular criminal proceeding. Pinkston also asserts that the impartiality of the trial judge had been brought into question.
In his order granting summary judgment, the judge ruled:
Plaintiff's Motion for Recusal should be denied.... That the trial judge may be a witness in the trial of this action has not been sufficiently shown, and in any event, is moot, inasmuch as ... there are no issues of fact subject to proof by oral testimony of any witness, the trial judge included.
In effect, the judge determined: (1) the facts did not support the conclusion that he would have been called as a witness in the event the case went to trial; and (2) the issue was moot as the suit was being dismissed on motion for summary judgment. The trial court was correct.
First, any testimony taken at the earlier criminal proceeding was a matter of record. Thus, the judge's testimony would have been cumulative and unnecessary. Second, disposition of the slander suit by summary judgment obviated the need for addressing Pinkston's various grounds for the trial judge's recusal--with the exception of the impartiality issue, which we find to be without merit.
The matter of disqualification is one largely left to the discretion of the trial judge. Sloss v. Farmers Bank and Trust Co., 290 Ark. 304, 719 S.W.2d 273 (1986). We find no abuse in this regard.
Summary judgment, like a mistrial, is an extreme remedy. It will be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c) of the Arkansas Rules of Civil Procedure. The burden of proving that there is no genuine issue of material fact is upon the appellee in this case, and all proof submitted must be viewed in a light most favorable to the party resisting the motion--appellant Pinkston. Ford v. Cunningham, 291 Ark. 56, 722 S.W.2d 567 (1987). Any doubts and inferences must be resolved against the moving party--appellee Lovell.
Pinkston brought suit against Lovell in March 1987. The allegedly slanderous statements by...
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