Pugh v. Griggs

Decision Date17 March 1997
Docket NumberNo. 96-402,96-402
Citation940 S.W.2d 445,327 Ark. 577
PartiesJoy PUGH, Individually and as Administratrix of the Estate of John Pugh, Appellant, v. Ronald L. GRIGGS and Stephen R. Crane, Appellees,
CourtArkansas Supreme Court

Steven R. Smith, Little Rock, for appellant.

R. Gary Nutter, R. David Freeze, Texarkana, for appellee.

CORBIN, Justice.

This is an appeal from the order of the Union County Circuit Court granting summary judgment on the issue of attorney malpractice to Appellees Ronald L. Griggs and Stephen R. Crane and denying summary judgment on the issue of liability to Appellant Joy Pugh. As this appeal involves a question concerning the law of torts, jurisdiction is proper in this court. Ark.Sup.Ct.R. 1-2(a)(16) (as amended by per curiam July 15, 1996). On appeal, Appellant argues that the trial court erred in granting Appellees' motion for summary judgment as there were issues of material fact yet to be decided and that the trial court also erred in denying her motion for summary judgment. For the reasons outlined below, we affirm the trial court's judgment.

I. Facts and Procedural History

We have discerned the following facts from the pleadings and affidavits filed with the trial court. Appellant entered into a contract with Appellee Griggs on June 21, 1985, in which Griggs agreed to represent Appellant in her claim for damages, wrongful death, and medical malpractice for the death of her husband John Pugh. Thereafter, Appellee Griggs associated with Appellee Crane in the prosecution of Appellant's claim. Appellees continually represented Appellant through January 27, 1992.

On May 21, 1987, Appellees sent notice of intent to sue to the medical defendants, including Warner Brown Hospital and two doctors, James Weedman and Durwood Flournoy. On July 29, 1987, Appellees filed Appellant's suit against the medical defendants alleging negligence in the treatment of Appellant's husband, resulting in his death. The negligent acts complained of occurred on or about May 26, 1985. On September 29, 1989, Appellant, on the advice of Appellees, took a voluntary nonsuit.

On September 24, 1990, Appellees served the medical defendants with notice of intent to sue, pursuant to Ark.Code Ann. § 16-114-204 (1987) (repealed 1995). On November 29, 1990, Appellees refiled Appellant's complaint. The medical defendants moved for summary judgment on December 19, 1990, alleging that Appellant's action was barred by the one-year statute of limitations for filing a claim after nonsuit as provided in Ark.Code Ann. § 16-56-126 (1987). The motion was denied.

On February 25, 1993, approximately one year after Appellees had withdrawn from Appellant's case, the medical defendants filed a motion for reconsideration of summary judgment. This time the trial court granted the motion, applying this court's holding in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), which overruled Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984), and held that ARCP Rule 3 was in direct conflict with, and thus superseded, the requirement of notice of intent to sue in medical injury cases as provided in section 16-114-204. Appellant appealed the trial court's grant of summary judgment and this court affirmed. See Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994) ("Pugh I ").

Subsequent to this court's ruling in Pugh I, Appellant initiated the current litigation by filing a complaint against Appellees alleging that they were negligent in failing to prosecute the first medical malpractice lawsuit, which resulted in a nonsuit, and in failing to timely refile her complaint within the one-year time period allowed for refiling a claim after a nonsuit pursuant to section 16-56-126. Appellees filed a motion for summary judgment on both allegations. The trial court granted Appellees' motion. As to the first allegation of negligence, the trial court reasoned that the decision to take a nonsuit was a discretionary one and that it would defer to Appellees' judgment call on that issue. As for the allegation that Appellees failed to timely file the complaint after taking the nonsuit, the trial court found that Appellees exercised reasonable skill and diligence on behalf of their client and that the question of whether the one-year period provided for in section 16-56-126 was extended in medical malpractice cases, in which notice must first be given before suit is filed, was not settled law. Additionally, the trial court denied Appellant's motion for summary judgment on the issue of Appellees' liability for professional negligence. This appeal followed.

II. Summary Judgment

Summary judgment is to be granted by a 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. Tyson Foods, Inc. v. Adams, 326 Ark. 300, 930 S.W.2d 374 (1996); Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996). 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. Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996). On review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material question of fact unanswered. Tyson Foods, Inc., 326 Ark. 300, 930 S.W.2d 374. This court views 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. Cherepski, 323 Ark. 43, 913 S.W.2d 761. The granting of summary judgment may be appropriate in a legal malpractice suit. Tyson Foods, Inc., 326 Ark. 300, 930 S.W.2d 374; Anthony, 324 Ark. 52, 918 S.W.2d 174.

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 (1996). 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.

Appellant argues on appeal that the trial court erred in granting summary judgment to Appellees because there were issues of material fact left unresolved. The trial court ruled that Appellees exercised reasonable skill and diligence on behalf of their client and, thus, it did not reach the issues of proximate cause and damages. We discuss each allegation of negligence separately.

A. Negligence in Prosecution of First Lawsuit

Appellant initially argues that the trial court erred in granting the motion for summary judgment on the issue of Appellees' alleged negligent prosecution of the first lawsuit, which resulted in a voluntary nonsuit. Appellant asserts that Appellees' lack of preparation of the case left her no choice but to agree to a nonsuit. Appellant challenges the trial court's deference to Appellees' legal judgment in electing to take a nonsuit without looking beyond counsels' decision to the facts leading up to that decision. Appellees maintain that ARCP Rule 41 provides an absolute right to a voluntary dismissal and that Appellant consented to taking the nonsuit.

The trial court ruled that it was within Appellees' discretion as counsel for Appellant to take a voluntary nonsuit and that such decisions were frequently made by attorneys. The trial court stated:

Cases are dismissed for any number of reasons and as counsel has been given such discretion [pursuant to ARCP Rule 41], I'm not going to look behind that dismissal at this point and make a determination as to whether or not their development of the case up until that time was proper or improper. I think I must defer to counsel's judgment call on the case as it existed with the facts and issues known to counsel at the time.

We hold that it was not error for the trial court to defer to Appellees' decision to seek a voluntary dismissal or nonsuit of Appellant's case, as such matters were within counsel's discretion. Rule 41(a) clearly allows a plaintiff to nonsuit a claim, and this court has recognized that the rule creates an absolute right to a nonsuit. Whetstone v. Chadduck, 316 Ark. 330, 871 S.W.2d 583 (1994); Jenkins v. Goldsby, 307 Ark. 558, 822 S.W.2d 842 (1992). Appellant does not claim that the nonsuit was taken without her consent or that she did not understand the concept of taking a nonsuit. Additionally, we conclude that by continuing her retainment of Appellees as her attorneys well into the filing of the second complaint, Appellant effectively waived any claim she may have had against Appellees for any alleged negligence committed in the prosecution of the first suit.

B. Negligence in Failing to Timely Refile Case after Nonsuit

Appellant also argues that Appellees were negligent in failing to timely refile her lawsuit within the one-year period provided for in section 16-56-126. Appellant contends that there are remaining issues of material fact concerning Appellees' reliance on existing law in effect in 1990. In support of this contention, Appellant relies on a letter written by Appellee Griggs to Appellee Crane on September 21, 1990, and an office memo completed by a member of Appellee Crane's staff on December 20, 1990. The letter states in pertinent part:

The...

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