Pounders v. Reif
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Cite as 2009 Ark. 581
SUPREME COURT OF ARKANSAS
No.
LISA POUNDERS,
09-55
Opinion Delivered
APPELLANT,
VS.
MIKE REIF;
DOVER, DIXON, & HORNE, PLLC,
APPELLEES,
November 19, 2009
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
NO. CV2008-5296,
HON. CHRISTOPHER CHARLES
PIAZZA, JUDGE,
AFFIRMED.
PAUL E. DANIELSON, Associate Justice
Appellant Lisa Pounders appeals from the order of the Pulaski County Circuit Court
dismissing her complaint with prejudice. Her sole point on appeal is that the court erred in
applying the three-year statute of limitations that governs legal-malpractice claims to her
complaint rather than the five-year statute of limitations applicable to a breach-of-contract
claim. This case was certified to our court on September 1, 2009, as an appeal involving the
power of the Arkansas Supreme Court to regulate the practice of law. See Ark. Sup. Ct. R.
1-2(a)(5) (2009). We affirm the order of the circuit court.
Pounders signed a prenuptial agreement on May 16, 2003, before her marriage to
David Pounders. Appellee Mike Reif represented her in conjunction with her execution of
that document. Pounders filed for a divorce from her husband in June 2007. The prenuptial
Cite as 2009 Ark. 581
agreement was held valid by the divorce court.
On May 15, 2008, Pounders filed a complaint against Reif; Dover, Dixon, and Horne,
PLLC; and John Doe defendants one through ten.1 Her complaint alleged one count of
breach of contract and a second count of professional malpractice, including breach of
fiduciary duty. Pounders alleged that Reif failed to properly explain the prenuptial agreement
to her, failed to obtain certain financial information, and pressured her into signing the
agreement.
Appellees filed a motion to dismiss on June 3, 2008, claiming that all of Pounders’s
claims were time barred by the applicable three-year statute of limitations. The circuit court
agreed and dismissed the complaint with prejudice on September 24, 2008, finding that
Pounders’s complaint sounded in negligence rather than contract and was barred by the
three-year statute of limitations. It is from that order that Pounders now appeals.
Pounders argues that the circuit court erred in dismissing her complaint because it
wrongly applied the three-year statute of limitations for legal-malpractice claims, Ark. Code
Ann. § 16-56-105 (Repl. 2005), to her complaint instead of the five-year statute of limitations
for a breach of a written contract, Ark. Code Ann. § 16-56-111 (Repl. 2005). In reviewing
the circuit court’s decision on a motion to dismiss, this court must treat the facts alleged in
While Pounders’s complaint included John Doe defendants, one through ten, Rule
54(b)(5) of the Arkansas Rules of Civil Procedure instructs that “[a]ny claim against a named but
unserved defendant, including a ‘John Doe’ defendant, is dismissed by the circuit court’s final
judgment or decree.” Ark. R. Civ. P. 54(b)(5) (2009).
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the complaint as true and view them in a light most favorable to the plaintiff. See Davenport
v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002). In testing the sufficiency of a complaint on a
motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and
all pleadings are to be liberally construed. See id.
It is well established that the three-year statute of limitations applies to legalmalpractice actions. See Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998) (citing Ragar
v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998)). However, Pounders alleges that there was
a writing in this case, a certification attached to the prenuptial agreement that was signed by
Reif, that was sufficient to make her claim an action to enforce a written obligation, duty, or
right, subject to a five-year statute of limitations pursuant to section 16-56-111. Furthermore,
she contends that the certification included specific promises made by Reif that he then
breached.
When making a determination about what statute of limitations applies in a case, the
court must look to the facts alleged in the complaint itself to ascertain the area of law in which
they sound. See Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998); O’Bryant v. Horn, 297
Ark. 617, 764 S.W.2d 445 (1989). If two or more statutes of limitation apply to a cause of
action, generally the statute with the longest limitation will be applied. See Sturgis, supra.
However, we look to the gist of the action to determine which statute of limitations to apply.
See O’Bryant, supra.
This court recently held in Kassees v. Satterfield, 2009 Ark. 91, ___ S.W.3d ___, that
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although the appellant claimed that his complaint alleged a breach of contract by his attorney
for failing to file a proper appeal in his case, the gist of the complaint was that his attorney had
not acted diligently and, therefore, the action sounded in negligence and was properly
dismissed pursuant to the three-year statute of limitations. In Kassees, the appellant specifically
alleged in his complaint that there had been a written agreement between the parties that his
attorney would appeal his case. In the instant case, Pounders does not allege that there was
a written employment contract between her and Reif. However, Pounders does claim that
the certification attached to the prenuptial agreement that was signed by Reif contained
specific promises that transformed her claim from one for negligence into one for breach of
a written agreement.
The certification attached to the prenuptial agreement, signed by Reif, stated:
I, William Michael Reif, Attorney At Law, have consulted with Lisa Nicole
Kirk and advised her of her legal rights and the legal effect of this Agreement
between she and David Pounders, dated on this 16th day of May, 2003;
specifically, I have gone over the contractual agreement with her, clause by
clause, explaining it to her and answering any question that she may have
concerning it prior to her execution thereof; furthermore, I have explained to
her what her legal rights and obligations would be absent this contractual
agreement and under this contractual agreement.
Pounders asserts that the language in that certification constituted specific promises that
Reif breached. However, Pounders ignores the fact that this document is simply an
acknowledgment of actions Reif claimed to have already taken. It does not include specific
promises made to Pounders by Reif and certainly does not contain evidence of an offer,
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acceptance, and consideration, the very basic elements of a contract. The certification was
clearly not a written agreement or contract between the parties. Rather, the certification is
simply a document commonly included by attorneys in prenuptial agreements to evidence
that a premarital agreement is valid and enforceable.2 Therefore, we do not find that this
writing conveys written obligations, duties, or rights required under the statute of limitations
provided by Ark. Code Ann. § 16-56-111.
When we look at the gist of Pounders’s complaint, her basic allegation is that Reif
failed to properly advise her on the signing of a prenuptial agreement, which is a failure to act
diligently and, if true, negligence on the part of Reif as an attorney. As we held in Sturgis:
The obligation to act diligently is present in every lawyer-client relationship.
The violation of that obligation is, by definition, nothing more than
negligence.
335 Ark. at 49, 977 S.W.2d at 221. Even had there been a breach of an implied contract, as
this court allowed in Lemon v. Laws, 313 Ark. 11, 852 S.W.2d 127 (1993), the three-year
statute of limitations would have applied because there was not a written contractual
agreement that would bring Pounders’s claim under the five-year statute of limitations.
Therefore, the circuit court was correct in applying the three-year statute of
limitations. Pounders does not argue on appeal that her complaint was timely pursuant to that
Arkansas Code Annotated 9-11-406 § (Repl. 2006) instructs that a premarital agreement
is not enforceable if the party against whom enforcement is sought did not, amongst other things,
“voluntarily and expressly waive after consulting with legal counsel, in writing, any right to
disclosure of the property or financial obligations of the other party beyond the disclosure
provided.”
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statute. For these reasons, we affirm the order of the circuit court.
Affirmed.
IMBER, J., not participating.
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