Rush v. Fieldcrest Cannon, Inc.

• Decision Date: 16 December 1996
• Docket Number: No. 96-127,96-127
• Citation: Rush v. Fieldcrest Cannon, Inc., 934 S.W.2d 512, 326 Ark. 849 (Ark. 1996)
• Court: Arkansas Supreme Court
• Parties: Sandra RUSH, Appellant, v. FIELDCREST CANNON, INC., a North Carolina corporation; Allied-Signal, Inc., a Virginia corporation; Brandon Furniture Company, Inc., an Arkansas corporation, d/b/a Brandon House Furniture; Congoleum Corporation, a New Jersey corporation; Brinkman, L.D. & Co., a Texas corporation, d/b/a L.D. Brinkman Co.; Crest-Foam Corporation, a subsidiary of Leggett & Platt Incorporated, a Missouri corporation; Jamison, Jim, Inc., d/b/a Jim Jamison Pest Control, a Tennessee corporation; Central Termite & Pest Control, Inc., an Arkansas corporation; Stanley Steamer International, Inc., d/b/a Stanley Steamer Carpet Cleaner; Bill Jones, a citizen and resident of Arkansas; Dowelanco, d/b/a Elanco Products Co., a division of Eli Lilly Co., an Indiana corporation; Velsicol Chemical Corporation, a Delaware corporation and The Dow Chemical Company, a Delaware corporation, Appellees.

Page 512

934 S.W.2d 512

326 Ark. 849

Sandra RUSH, Appellant, v.FIELDCREST CANNON, INC., a North Carolina corporationAllied-Signal, Inc., a Virginia corporation; Brandon Furniture Company, Inc., an Arkansas corporation, d/b/a Brandon House Furniture; Congoleum Corporation, a New Jersey corporation; Brinkman, L.D. & Co., a Texas corporation, d/b/a L.D. Brinkman Co.; Crest-Foam Corporation, a subsidiary of Leggett & Platt Incorporated, a Missouri corporation; Jamison, Jim, Inc., d/b/a Jim Jamison Pest Control, a Tennessee corporation; Central Termite &amp Pest Control, Inc., an Arkansas corporation; Stanley Steamer International, Inc., d/b/a Stanley Steamer Carpet Cleaner; Bill Jones, a citizen and resident of ArkansasDowelanco, d/b/a Elanco Products Co., a division of Eli Lilly Co., an Indiana corporation; Velsicol Chemical Corporation, a Delaware corporation and The Dow Chemical Company, a Delaware corporation, Appellees.

No. 96-127.

Supreme Court of Arkansas.

Dec. 16, 1996.

David A. Couch, Little Rock, for Appellant.

James M. Simpson, David N. Laser, Little Rock, for Appellees.

JESSON, Chief Justice.

This appeal arises from the dismissal of appellantSandra Rush's products-liability complaint.The trial court dismissed her case with prejudice for her "pattern of intentional, willful and deliberate delay" and for her "failure to narrow her case and ready it for trial."On appeal, appellant asserts that the trial court erred in allowing her second attorney to withdraw in violation of ARCP Rule 64(b), and in failing to give her third attorney adequate time to prepare her case for trial.We disagree that the trial court abused its discretion and affirm.

Appellant initiated this lawsuit on October 18, 1991, alleging that she developed multiple-chemical-sensitivity syndrome as a result of her alleged exposure to certain carpeting products installed at her Little Rock residence.Represented by Little Rock attorney James F. Swindoll, appellant filed her complaint against Fieldcrest Cannon, Inc., a carpet manufacturer, Allied Fibers, a carpet-component manufacturer, and Brandon Furniture Company, Inc., a carpet installer.On September 8, 1992, appellant amended her complaint to add ten additional defendants, among which included carpet cleaners, vinyl-flooring manufacturers and wholesalers, and pesticide manufacturers and applicators.She claimed that she became chemically sensitive sometime between the time her house was built in 1978 and when pesticides were applied to her home in 1989.Her case was assigned to the Seventh Division of Pulaski County Circuit Court.Appellant was ordered to provide medical authorization so that appellees could obtain her medical records.Appellant nonsuited her case on December 31, 1992, and, thereafter, attorney Swindoll discontinued his representation of appellant.

After obtaining a new attorney, Robert A. Krause of the Wyoming firm of Spence, Moriarity and Schuster, appellant refiled her case on December 28, 1993, against the present thirteen appellees.The case was assigned to the Second Division of Pulaski County Circuit Court.On May 25, 1994, the trial court entered a scheduling order providing that appellant was to identify her expert witnesses by February 21, 1995, and setting a trial date of September 5, 1995, over one year away.Appellant did not designate her expert witnesses by the due date.Instead, on February 25, 1995, she filed a motion under seal for an extension to identify experts.Accompanying this motion was a motion by attorney Krause to withdraw as counsel.

At a March 15, 1995, ex parte hearing on the motion to withdraw, Krause informed the trial court that he was prepared to identify eight expert witnesses who would testify at trial.Krause showed the trial court a list of these witnesses, which included descriptions of their expected testimony.According to Krause, appellant would not permit him to disclose this list to the appellees.Rather, appellant insisted on a two-page list containing twenty-two additional experts with whom she could not claim she had spoken.At the conclusion of the hearing, the trial court announced that he was granting Krause's request to withdraw and gave appellant sixty days to hire a third attorney.The trial court entered a written order to this effect on March 28, 1995.

On May 26, 1995, Elizabeth Burkhardt of Houston entered her appearance as counsel for appellant.The trial court held a status conference on May 31, 1995.At this hearing, the trial court announced a new scheduling order calling for appellant to name her experts by July 5, 1995, and setting a November 8, 1995, trial date.The trial court cautioned appellant that she needed to "narrow the issues down and narrow the witness list down," and that "we are going to stick to those dates."

On July 5, 1995, appellant designated forty-two expert witnesses, not all of whom she planned to call at trial.The list included most, if not all of the witnesses on her previous list, the eight witnesses attorney Krause had wished to identify, plus additional expert witnesses.Thereafter, the appellees filed a joint motion to dismiss appellant's case with prejudice.Following a hearing on the motion, the trial court entered a detailed order on August 31, 1995, dismissing appellant's case with prejudice.

In its order, the trial court found that appellant had "insisted on identifying an excessive and unreasonable number of expert witnesses ... for the improper purpose of harassing the defendants and delaying the litigation."The trial court further determined that appellant's "pattern of intentional delay, her abuse of the legal system, her failure to narrow her case and ready it for trial, and her willful disregard of the rules of court and this court's orders" had resulted in "unfair prejudice and tremendous and unreasonable expense" to appellees.It is from this ruling that appellant appeals.

Withdrawal of counsel

Appellant first argues that the trial court erred in permitting Krause, her second attorney, to withdraw as counsel.This issue is governed by ARCP Rule 64(b), which provides that permission to withdraw may be granted for good cause if counsel demonstrates that he(1) has taken reasonable steps to avoid foreseeable prejudice to his client, including giving due notice to his client and allowing time for employment of other counsel; (2) has delivered or stands ready to tender to the client all papers and property to which the client is entitled; and (3) has refunded or stands ready to refund any unearned fees.In Jones-Blair Co. v. Hammett, 326 Ark. 74, 930 S.W.2d 335(1996), we explained that the rule's purpose was to protect the client's interests, and that the trial court, in considering an attorney's motion to withdraw, should examine the proposed withdrawal from the point of view of the client, not the attorney.

We have no reservation in concluding that Rule 64 was complied with in this case.Krause requested permission to withdraw for three reasons.First, he stated that he could not, in good faith, carry out appellant's instructions with respect to identifying expert witnesses.Second, he averred that appellant had given him settlement authority with respect to several of the appellees, but, after substantial settlement negotiations had taken place, suddenly withdrew authority to settle with any appellee.Finally, Krause reasoned that appellant had become irate and belligerent on the telephone with him and his staff.Appellant did not dispute these facts at the hearing or in her lengthy response to Krause's motion.To the contrary, appellant's response suggested an apparent hostility toward Krause and his representation of her in her case.Under these circumstances, we agree that Krause demonstrated good cause for being relieved as counsel.

Turning to the specific requirements of Rule 64, we observe that the trial court gave appellant sixty days to obtain new counsel, and she did so.Krause indicated his willingness to hand over all papers and literature to appellant's new attorney, and, at the May 31, 1995, hearing, attorney Burkhardt indicated that Krause had in fact sent her the twenty boxes of files relating to appellant's case.When the trial court announced its intention to conduct a pretrial conference in September or October of 1995, attorney Burkhardt offered, "If I can't do it in that time, Judge, I can't do it."Moreover, it was undisputed that appellant had not paid Krause any fees for his services.Considering these facts, we cannot see how appellant was prejudiced by Krause's withdrawal, and we must further conclude that the trial court properly followed Rule 64 in this case.

Dismissal with prejudice

We turn now to the question of whether the trial court abused its discretion in dismissing appellant's case with prejudice.In concluding that dismissal was the appropriate sanction, the trial court relied in part on ARCP Rule 37...