Southern Farm Bureau Cas. Ins. v. Daggett

• Decision Date: 25 September 2003
• Docket Number: No. 02-804.,02-804.
• Citation: 118 S.W.3d 525,354 Ark. 112
• Parties: SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY and Farm Bureau Mutual Insurance Company of Arkansas, Inc. v. Jesse B. DAGGETT.
• Court: Arkansas Supreme Court

118 S.W.3d 525

354 Ark. 112

SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY and Farm Bureau Mutual Insurance Company of Arkansas, Inc. v. Jesse B. DAGGETT.

No. 02-804.

Supreme Court of Arkansas.

September 25, 2003.

David Hodges, Little Rock, for appellants.

Wright, Lindsey & Jennings LLP, by: Edwin L. Lowther, Jr., Troy A. Price, and Justin T. Allen, Little Rock, for appellee.

TOM GLAZE, Justice.

In this legal malpractice lawsuit, appellants Southern Farm Bureau Casualty Insurance Company and Farm Bureau Mutual Insurance Company of Arkansas ("Farm Bureau") sued appellee, attorney Jesse Daggett, in Pulaski County Circuit Court, alleging that Daggett failed to perfect an appeal in an earlier Phillips County negligence lawsuit brought by Alfred Gammon against his employers, James H. Knight, Vaughn Knight, and M.H. Knight Farms, Inc. (hereinafter "the Knights" or "Knight Farms"). Daggett represented the Knights, and Gammon obtained an $800,000 jury verdict against the Knights. The Knights had filed a timely notice of appeal from the Phillips County judgment, but Daggett later failed to lodge the record in the appeal, causing the appellate court to dismiss the Knights' appeal. This dismissal required the Knights' insurance carrier, Farm Bureau, to pay Gammon's Phillips County judgment. Farm Bureau subsequently filed this legal malpractice suit against Daggett in Pulaski County, alleging that Daggett's failure to perfect the Knights' appeal of Gammon's $800,000 judgment was the result of Daggett's negligence. Farm Bureau also alleged Daggett breached his contract with Farm Bureau because Farm Bureau had hired Daggett to render services to Farm Bureau, including the timely filing of the transcript with the appellate court.

Daggett moved for a summary judgment, contending that the only issue in Farm Bureau's malpractice suit against Daggett was a purely legal question— whether a properly perfected appeal of the judgment in Gammon's favor would have resulted in the reversal of that judgment. Farm Bureau responded, arguing that Daggett had admitted to being negligent in failing to perfect the Knights' appeal, and Farm Bureau had demonstrated that Daggett's malpractice was the proximate cause of Farm Bureau's damages, resulting in its having to satisfy Gammon's judgment. Farm Bureau also filed its summary judgment motion, asserting Daggett had not addressed Farm Bureau's allegations of breach of contract, and it asked the Pulaski County Circuit Judge, John Ward, to find Daggett had breached his contract with the Farm Bureau when he failed to timely lodge the Knights' appeal. Judge Ward granted Daggett's motion for summary judgment, concluding that, in a legal malpractice case, he must resolve the issue as one of law by deciding how the appellate court would have held if Daggett had properly docketed the Knights' appeal. Judge Ward ruled that the court of appeals would have affirmed Gammon's judgment against the Knights on appeal; thus, as a matter of law, Daggett's failure to docket the record on appeal was not the proximate cause of damages allegedly sustained by Farm Bureau. The judge further denied Farm Bureau's request for summary judgment on its breach of contract claim against Daggett. Judge Ward ruled that proof of damages was an essential element of a breach of contract claim, and Farm Bureau could not show it sustained damages as a result of Daggett's breach. The judge dismissed Farm Bureau's complaint with prejudice, and Farm Bureau brings this appeal.

For its first point on appeal, Farm Bureau suggests that the Pulaski County Circuit Court applied the wrong standard when considering Daggett's motion for summary judgment. Specifically, Farm Bureau takes issue with the court's reliance on Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998), and argues that the trial court should have applied traditional summary-judgment standards, such as the standard found in Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998) (a party is entitled to summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to summary judgment as a matter of law).

In the Skokos case, however, this court was presented with a case procedurally similar to the one now before us. Skokos was a legal malpractice action where it was alleged that an attorney was negligent for failing to file an appeal, and the matter was decided by the trial court on summary judgment. This court agreed with the trial court's approach, holding that the matter of proximate cause for failure to file an appeal is a question of law to be determined by a judge, not a jury. Skokos, 335 Ark. at 51, 977 S.W.2d 217. Further, the Skokos court quoted the Washington Supreme Court's statement that "the determination of what decision would have followed if the attorney had timely filed the [appeal] is a question of law for the judge, irrespective of whether the facts are undisputed." Id. (citing Daugert v. Pappas, 104 Wash.2d 254, 704 P.2d 600 (1985)). See also Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996); Tyson Foods, Inc. v. Adams, 326 Ark. 300, 930 S.W.2d 374 (1996); Restatement (Third) of the Law Governing Lawyers § 53, Reporter's Note (2000).

Here, the Pulaski County court granted Daggett's motion for summary judgment once it determined that Daggett's negligence in failing to timely tender the appellate record was not the proximate cause of Farm Bureau's damages. Stated another way, the court found that, even if Daggett had properly and timely filed the record, Knight Farms would still have lost on appeal. Under the cases cited above, the trial court was entirely correct to dispose of this matter through the vehicle of summary judgment. However, as will be discussed below, the trial court erred in granting Daggett's motion for summary judgment.

Before leaving this point, we note that Farm Bureau argues that the Pulaski County court failed to enter specific findings of fact in response to Farm Bureau's request and this case should be remanded so the trial court can do so. Farm Bureau asserts that Ark. R. Civ. P. 52(a) requires the court to find the facts specifically, if requested by a party. However, other than its reference to Rule 52, Farm Bureau cites no authority in support of its argument. We have held that we will not consider a point raised on appeal where the appellant fails to cite authority or any convincing argument supporting the point. See Southeast Arkansas Landfill, Inc. v. State, 313 Ark. 669, 858 S.W.2d 665 (1993); Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992). Moreover, Farm Bureau does not allege any specific flaws or omissions in the trial court's order; Farm Bureau merely relates its dissatisfaction with the trial court's findings. In Miles v. Southern, 297 Ark. 274, 280-B, 760 S.W.2d 868 (1988), we stated that the trial court is not required to give detailed reasons for its action. Here, Judge Ward's order reflected that he had "considered each ground identified by the parties, and found that the Arkansas court of appeals would have affirmed the judgment in the underlying [Gammon v. Knight] case on appeal." For these reasons, we reject Farm Bureau's request to remand this case for further findings.

We turn now to the heart of Farm Bureau's appeal—the question of whether the Pulaski County court correctly found that the underlying Phillips County case between Gammon and the Knights would have been affirmed if Daggett had timely filed the Knights' appeal. We begin our discussion of this point by setting out the appropriate standard of review in legal malpractice cases. An attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of his or her client. In order to prevail under a claim of legal malpractice, a plaintiff must prove that the attorney's conduct fell below the generally accepted standard of practice and that this conduct proximately caused the plaintiff damages. Anthony v. Kaplan, supra; Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995). 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. Anthony, supra; Callahan, supra. See also Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 30.44, at 614 (5th ed. 2000) ("At a minimum, the client must allege that the judgment would have been appealed ... and would have been reversed but for the attorney's negligence."). In reviewing this issue, it was incumbent on the trial court to act as an appellate court would act and review the decision under the same standard the appellate court would use. Skokos, 335 Ark. at 52, 977 S.W.2d 217.

In support of Farm Bureau's argument that the outcome of the underlying case would have been different, Farm Bureau urges this court to conclude that the Phillips County Circuit Court's verdict in Gammon's favor would have been reversed on appeal. Farm Bureau urges that it would have prevailed on appeal based upon the following five alleged errors of law by the trial court: 1) refusing to permit testimony from the Knights' mechanic expert, Leon Mallard; 2) refusing to allow the Knights to call their accident reconstruction expert witness, Larry Williams; 3) giving AMI 903 over Knight Farms' objections, and refusing to give AMI 901 to the jury; 4) declining to excuse a juror for cause; and 5) causing prejudice due to cumulative error. We address each of these points in turn.

In support of its first argument that it would have prevailed on appeal, Farm Bureau asserts that the Phillips County Circuit Court, Judge L.T. Simes presiding, erred in refusing to permit Leon Mallard to testify on behalf of Knight Farms. We review evidentiary errors under an abuse-of-discretion standard. Arkansas Department of Human Services v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002); Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998). The trial...