Ball v. Foehner

Ross BALL and Ramona Ball v. 
   Charles E. FOEHNER III, Attorney at Law,   
 d/b/a Foehner and Associates, and 
George H. Bailey, Attorney at Law

95-1251                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 28, 1996


1.   Appeal & error -- denial of motion for summary judgment -- not
     reviewable on appeal. -- Appellant's contention that the trial
     court erred in denying the plaintiffs' motion for partial
     summary judgment on the issue that appellants had settled
     their personal claims against the hospital was not reviewable
     on appeal; the denial of a motion for summary judgment is not
     reviewable on appeal; such review is not available even after
     a trial on the merits; a final judgment should be tested upon
     the record as it exists at the time it is rendered rather than
     at the time the motion for summary judgment is denied because
     further evidence may be supplied at trial. 

2.   Appeal & error -- ruling that would not have affected verdict
     will not be used as basis for reversal. -- Four of appellants'
     points for reversal were not addressed because, when the jury
     found that appellants' claims were settled, it did not
     consider evidence of negligence; the four points involved
     evidentiary rulings about negligence, and, even if erroneous,
     they would not have affected the verdict; the appellate court
     will not reverse in a case in which a ruling would not have
     affected the verdict. 

3.   Appeal & error -- party cannot appeal from favorable ruling --
     issue not reached. -- Appellants' final point for reversal was
     not reached where they received all the relief they had sought
     on appellee's alleged misconduct; a party cannot appeal from
     a favorable ruling; except for rare instances, the appellate
     court only reverses a trial court for making a ruling that
     constituted prejudicial error; here, appellants did not allege
     that the trial court had made an erroneous ruling.

4.   Appeal & error -- party may not change arguments on appeal. -- 
     A party cannot change arguments on appeal. 


     Appeal from Pulaski Circuit Court; Morris Thompson, Judge;
affirmed.
     Hartsfield, Almand, & Grisham, by:  Larry J. Hartsfield, for
appellants.
     Wright, Lindsey & Jennings, by:  Bettina E. Brownstein and Don
S. McKinney and Matthews, Sanders, Liles & Sayes, by:  Roy Gene
Sanders, for appellees.


     Robert H. Dudley, Justice.
     This is a legal malpractice action.  Ross and Ramona Ball are
the parents of Jeremy, who was born prematurely at Doctors Hospital
in Little Rock on December 16, 1989, and was given the drug
Theophylline.  On December 29, 1989, he began to have unusual
symptoms.  Now he is partially blind, mentally retarded, and has
cerebral palsy.  In August of 1990, the Balls retained George
Bailey, a Little Rock attorney, to investigate the advisability of
a medical negligence action.  In February 1991, Bailey asked
Charles Foehner, a St. Louis attorney, to assist him in obtaining
expert witnesses.  Nine months later, on November 12, 1991, the
Balls entered into a written contract with Bailey which provided,
in pertinent part, that Bailey would represent the Balls "as
natural parents, natural guardians, and Guardians of the Estate of
Jeremy Ball" against "Neonatology-Cardiology Associates, P.A., Dr.
Gregory A. Franklin, Dr. Richard M. Nestrud, Dr. Ricardo Sotomora,
Doctors Hospital, and all others including pharmaceutical
manufacturers and distributors." 
     On November 10, 1991, Bailey sent a notice of intent to sue to
Neonatology-Cardiology Associates, P.A., Dr. Gregory A. Franklin,
Dr. Richard M. Nestrud, Dr. Ricardo Sotomora, Doctors Hospital, and
HCA Health Services of Midwest, Inc., the corporation that manages
Doctors Hospital.  The notice stated that both the Balls and Jeremy
would claim all compensatory damages. 
     On March 10, 1992, which was more than two years after the
drug was administered, Bailey filed the underlying medical
malpractice suit in circuit court.  It was removed to federal
district court.  Doctors Hospital moved for partial summary
judgment on the Balls' claims for parents' damages on the ground
that the parents' action was barred by the two-year statute of
limitations.  After a lengthy discussion of the types of claims
that are recoverable by children and the types of claims that are
recoverable by parents for the children's injuries and the
different applications of the medical malpractice statute of
limitations for parents and children, the federal district court
ruled that the parents' claims were time-barred and entered an
order granting the hospital's motion for partial summary judgment
on July 15, 1993.  Trial was set on Jeremy's claims. 
     Before the deadline to appeal the district judge's ruling
passed, the parties entered into mediation.  On October 25, 1993,
the Probate Court of Pulaski County issued an order approving a 
settlement of "the tort claim of Jeremy Ball."  The order provided
that "Jeremy Ball, by his natural guardians and next friends,
Ramona and Ross Ball," agreed to "settle all claims and all causes
of action against the Defendants [in exchange for the recited
consideration]" and agreed to "file and serve a dismissal, with
prejudice, of all claims and causes of action asserted and
assertable" in the case.   On November 8, 1993, settlement was
reached.  Doctors Hospital's insurance carrier paid a lump sum of
$1,000,097 and agreed to make future payments of slightly more than
$5,000,000, for a total, structured settlement of $6,200,000.  In
the written settlement agreement the "plaintiff" released Doctors
Hospital from all future claims in consideration of the payments to
the Balls as co-guardians of Jeremy Ball's estate.  The named
"plaintiff" in the agreement was "Jeremy Ball, by and through his
court-appointed guardians, Ross Ball and Ramona Ball."  The
agreement stated that the Balls, as co-guardians, had "been
authorized and directed by [the Pulaski County Probate Court] to
execute all documents necessary to consummate the settlement of
their individual claims and the claims of Jeremy Ball."  The
settlement agreement stated that all of the parties assented to the
case pending in federal district court being dismissed with
prejudice.
     A few weeks later, the Balls contacted their present attorney
and filed this legal malpractice action against Bailey and Foehner
in the Circuit Court of Pulaski County.  The complaint alleged that
Bailey and Foehner negligently failed to file the parents' cause of
action within the period of limitations, and that, as a result, the
Balls lost their recovery as parents.  The Balls filed a motion for
partial summary judgment in which they stated that Bailey and
Foehner claimed the settlement was of both the parents' claim and
Jeremy's claim, but that there was no genuine issue of material
fact with respect to that issue because they had settled only
Jeremy's claim.  In response, Bailey and Foehner contended that
there was a genuine issue of material fact about the scope of
settlement.  The trial court ruled that there were matters in the
record placing in dispute the question of whether the settlement
was to cover all claims, including those of the parents.    The
case went to trial.  The Balls contended that the settlement did
not include the parents' claims because those claims were dismissed
with prejudice by the federal district court.  Bailey and Foehner
contended that the federal district court's order granting summary
judgment was not a final order because it could have been appealed;
they also contended that the Balls' claims were included in the
settlement.  An attorney for Doctors Hospital testified that the
settlement included the Balls' claim.   After a trial lasting
several days, the jury answered "yes" to the first interrogatory,
which read:
     Do you find from a preponderance of the evidence that there
     was a settlement of the individual claims of Ross and Ramona
     Ball included in the settlement which occurred on October 13,
     1993?
In so answering the first interrogatory, the jury rendered a
defendant's verdict.  The jury did not answer the remaining
interrogatories about negligence and damages.
     The Balls appeal and in their opening brief contend that the
trial court "erred in denying the plaintiffs' motion for partial
summary judgment on the issue that Ross Ball and Ramona Ball had
settled their personal claims against Doctor's Hospital."  Bailey
and Foehner respond that the denial of a motion for summary
judgment is not reviewable.  The response is correct.  We have
often written that the denial of a motion for summary judgment is
not reviewable on appeal.  McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991); Rick's Pro Dive 'N Ski Shop v. Jennings-Lemon,
304 Ark. 671, 803 S.W.2d 934 (1991); Malone & Hyde, Inc. v. West &
Co. of LA, Inc., 300 Ark. 435, 780 S.W.2d 13 (1989).  Such review
is not available even after a trial on the merits.  Rick's Pro Dive
'N Ski Shop, 304 Ark. at 672, 803 S.W.2d  at 935; Henslee v.
Kennedy, 262 Ark. 198, 555 S.W.2d 937 (1977); American Physicians
Ins. Co. v. Hruska, 244 Ark. 1176, 428 S.W.2d 622 (1968); Widmer v.
Ft. Smith Vehicle & Mach. Co., 244 Ark. 971, 429 S.W.2d 63 (1968). 
The rationale for this basic rule is that "a final judgment should
be tested upon the record as it exists at the time it is rendered,
rather than at the time the motion for summary judgment is denied,
since further evidence may be supplied at trial."  Rick's Pro Dive
'N Ski Shop, 304 Ark. at 673, 803 S.W.2d  at 935. 
     In their reply brief, the Balls "concede that the Arkansas
Supreme Court has stated that the denial of a motion for summary
judgment is not reviewable on appeal," but even so, they argue that
"the error on which appellants base their argument is subject to
review."   As authority, they cite the case of Henslee v. Kennedy,
262 Ark. 198, 555 S.W.2d 937 (1977).  That case does not support
their argument.   
     A review of the original briefs filed in Henslee reveals that
the plaintiffs filed suit against the defendants, who answered and
filed a counterclaim.  The defendant-counterclaimants propounded
two requests for admissions of fact.  The plaintiffs responded by
denying both requests for admissions, but the notary public's
affidavit under the denials provided only "subscribed and sworn to
before me."  It did not state the contents of a subscription or the
contents of an oath.  The defendants filed a motion for summary
judgment on the ground that the requests for admissions should be
deemed admitted because the notary did not properly "verify" the
denials as required by statute.  The trial court denied the motion
for summary judgment.  Then, at trial, the defendant-
counterclaimants moved the trial court to declare the requests
admitted and to preclude the plaintiffs from offering testimony
contradicting the admissions.  The trial court denied the motion. 
On appeal, the defendant-counterclaimants argued that the trial
court erred in denying the motion for summary judgment, but, in the
same argument, contended that the trial court additionally erred
because "[t]he appellants, during trial, moved the Court to declare
the requests admitted and to preclude appellant from offering
testimony contradicting the requests."  With those facts, we
refused to address the denial of the motion for summary judgment on
the counterclaim, but addressed the merits of the counterclaim.  We
wrote:
          There are certain preliminary points we must address
     before reaching the merits of appellants' counterclaim. 
     Appellants contend that the chancellor erred in denying their
     motion for summary judgment on the counterclaim.  The denial
     of a motion for summary judgment is not subject to review even
     after final judgment in a suit.  Widmer v. Ft. Smith Vehicle
     & Machinery Corp., 244 Ark. 971, 429 S.W.2d 63; Deposit
     Guaranty Nat. Bank v. River Valley Co., Inc., 247 Ark. 226,
     444 S.W.2d 880; Williams v. Varner, 253 Ark. 412, 486 S.W.2d 79.  However, the alleged error on which appellants base their
     argument is subject to review:  that is, that the trial court
     erred in finding that appellees' answers to requests for
     admission were sufficiently verified; therefore, the matters
     requested were admitted.
Henslee, 262 Ark. at 203, 555 S.W.2d  at 939 (emphasis added).  
     In sum, in Henslee, we reviewed the ruling made by the trial
court during the trial on the merits of the counterclaim.  We did
not review the denial of the motion for summary judgment.  In fact,
we have often cited Henslee for the proposition that the denial of
a motion for summary judgment is not subject to review, even after
final judgment in a suit.  See Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); Rick's Pro Dive 'N Ski Shop, 304 Ark. 671, 803 S.W.2d 934 (1991); Tillotson v. Farmers Ins. Co., 276 Ark. 450, 637 S.W.2d 541 (1982); and Sharp Co. v. Northeast Ark. Planning &
Consulting Co., 275 Ark. 172, 628 S.W.2d 559 (1982).  The court of
appeals has cited the case for the same proposition.  See State
Farm Fire & Casualty Co. v. Amos, 32 Ark. App. 164, 798 S.W.2d 440
(1990).  If we were to review the underlying basis of the denial of
a motion for summary judgment, as urged by the Balls, it would make
meaningless the settled law that we will not review a denial of a
motion for summary judgment.    
     The denial of a motion for summary judgment is not reviewable
on appeal; correspondingly, the Balls' first point for reversal is
not reviewable.  Since the Balls do not appeal from a ruling about
the sufficiency of the evidence, we make no determination of the
sufficiency of the evidence.
     We need not address the Balls' next four points for reversal
because, when the jury found that the Balls' claims were settled,
it did not consider evidence of negligence.  The four points
involve evidentiary rulings about negligence, and, even if
erroneous, they would not have affected the verdict.  We will not
reverse in a case in which a ruling would not have affected the
verdict.  National Bank of Commerce v. Beavers, 304 Ark. 81, 802 S.W.2d 164 (1990).
     The Balls' final point for reversal involves Foehner's
"testimonial misconduct"; again, we do not reach the issue.  The
Balls received all the relief they asked on Foehner's alleged
misconduct.  They received favorable rulings each time this issue
was raised at trial.  A party cannot appeal from a favorable
ruling.  Myers v. State, 317 Ark. 70, 876 S.W.2d 246 (1994). In
addition, we have often explained that, except for rare instances
not material to this case, we only reverse a trial court for making
a ruling that constituted prejudicial error.  Arkansas Dep't of
Human Servs. v. Harris, 322 Ark. 465, 910 S.W.2d 221 (1995).  Here,
the Balls do not allege that the trial court made an erroneous
ruling.  Rather, they contend on appeal that the trial court should
have given more relief than they asked.  It is a basic rule of
appellate procedure that a party cannot change arguments on appeal. 
Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996).
     Affirmed.