Rowland v. Gastroenterology Associates, P.A.

• Decision Date: 26 September 1983
• Docket Number: No. 83-59,83-59
• Citation: 280 Ark. 278,657 S.W.2d 536
• Parties: Charles ROWLAND and Verna Rowland, Appellants, v. GASTROENTEROLOGY ASSOCIATES, P.A., Appellee.
• Court: Arkansas Supreme Court

Page 536

657 S.W.2d 536

280 Ark. 278

Charles ROWLAND and Verna Rowland, Appellants, v. GASTROENTEROLOGY ASSOCIATES, P.A., Appellee.

No. 83-59.

Supreme Court of Arkansas.

Sept. 26, 1983.

David Hodges, Little Rock, for appellants.

Friday, Eldredge & Clark by Laura A. Hensley and William M. Griffin, III, Little Rock, for appellee.

HOLT, Justice.

The issue presented is whether an attorney's client, the appellee, is liable to another party, the appellants, for the alleged tortious acts of the attorney. The court granted appellee's motion for a summary judgment on the basis that the appellee's attorney was an independent contractor and, therefore, appellee was not liable for his action. Hence this appeal.

Appellant, Verna Rowland, received medical services from the appellee. The appellee referred her delinquent account for collection to Josh McHughes, an attorney. When attempts at collection failed, a suit to recover $468.39 was filed against the appellants by McHughes on behalf of the appellee. Appellants contend that during the pendency of the action they reached a settlement agreement with appellee's attorney which was binding on appellee and that they paid $453.38 in full settlement by check to the attorney. The appellee disputes appellants' version of the purported settlement contending there was no settlement agreement and, even if there was, it did not include the court costs and the agreement was not binding on it. The $453.38 check tendered by appellants and accepted by appellee's attorney was marked "Paid in Full." After the receipt of the check, a default judgment on the debt was rendered in favor of appellee in the amount of $468.39 plus costs. When no payment was made by the appellants to cover the court costs, McHughes garnished the appellants' bank account for $39.20 for court costs plus the costs of the garnishment which were $14. The bank responded by paying into the court registry $172.02, the entire balance of the appellants' account, and then closing the account. McHughes subtracted $53.20 ($39.20 plus $14 as costs for the writ of garnishment) and the balance of $118.82 was sent to the appellants. The closing of appellants' account by the bank resulted in several of appellants' checks to third parties being returned because of insufficient funds. The appellants filed suit against the appellee, the creditor, on the theory that the damages suffered by them were caused by the "agents, servants, and employees of" appellee, alleging abuse of process and tort of outrage. They sought compensatory and punitive damages based upon appellee's negligence. As indicated, the trial court made a determination that the appellee's attorney represented it in the capacity of an independent contractor and, therefore, granted appellee's motion for summary judgment. We reverse.

Summary judgment is appropriate only when the pleadings, depositions, and answers to interrogatories, together with the affidavits, show there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. ARCP Rule 56; Davis, Adm'x v. Lingl Corp., 277 Ark. 303, 641 S.W.2d 27 (1982). Evidence submitted in support of the motion must be viewed most favorably to the party resisting the motion. Dodrill v. Ark. Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979). The...