Smothers v. Clouette

Joe SMOTHERS v. James CLOUETTE

96-324                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 23, 1996


1.   Motions -- matters outside pleadings considered -- motion
     treated as one for summary judgment. -- Where the trial
     court's order reflected that the trial judge considered the
     pleadings and all other things and matters before the court,
     and it was clear from the abstract that the parties presented
     affidavits and other matters outside the pleadings to the
     trial court on the motion to dismiss, the motion was treated
     as one for summary judgment.

2.   Motions -- summary judgment discussed -- factors on review. --
     Summary judgment should only be granted when there are no
     genuine issues of material fact and the moving party is
     entitled to judgment as a matter of law; the court views the
     evidence in a light most favorable to the party against whom
     the motion was filed, resolving all doubts and inferences
     against the moving party; review is limited to an examination
     of the evidentiary items presented below in order to determine
     whether the trial court correctly ruled that those items left
     no material factor in dispute. 

3.   Limitation of actions -- three-year limitation applies to
     actions against attorney for negligence -- when statute begins
     to run. -- The three-year statute of limitations applies to
     actions against an attorney for negligence; the statute of
     limitations in such actions begins to run, in the absence of
     concealment of the wrong, when the negligence occurs, not when
     the negligence is discovered; where affirmative acts of
     concealment by the person charged with fraud prevent the
     discovery of that person's misrepresentations, the statute of
     limitations will be tolled until the fraud is discovered or
     should have been discovered with the exercise of reasonable
     diligence; although the question of fraudulent concealment is
     normally a question of fact that is not suited for summary
     judgment, when the evidence leaves no room for a reasonable
     difference of opinion, a trial court may resolve fact issues
     as a matter of law.

4.   Appeal & error -- fact question existed as to whether statute
     of limitations was tolled and as to when negligent act
     occurred -- trial court reversed. -- The evidence submitted at
     trial, primarily in the form of appellant's affidavit, did
     leave room for a reasonable difference of opinion, and there
     was a fact question as to whether the statute of limitations
     was tolled by any affirmative acts of fraud or concealment on
     the part of appellee; there was also a fact question as to
     when the negligent act occurred, and consequently, as to when
     the statute of limitations began to run; thus the decision of
     the trial court dismissing the cause of action was reversed
     and the case remanded. 


     Appeal from Lincoln Circuit Court; Fred D. Davis, III, Judge;
reversed and remanded.
     Kathy A. Cruz and Donald R. Roberts, for appellant.
     Appellee, pro se.

     Donald L. Corbin, Justice.
     Appellant Joe Smothers appeals the order of the Lincoln County
Circuit Court dismissing with prejudice his cause of action against
Appellee James Clouette for legal malpractice on the ground that
the statute of limitations barred the claim.  Appellant contends on
appeal that the trial court erred in dismissing the action either
pursuant to ARCP Rule 12(b)(6) or ARCP Rule 56.  Because this
appeal involves a question on the law of torts, our jurisdiction is
pursuant to Ark. Sup. Ct. R. 1-2(a)(15).  We believe there were 
genuine issues of material fact to be resolved, and we reverse.
               I.  Facts and Procedural History  
     Appellant filed a complaint in the Lincoln County Circuit
Court on October 9, 1991, alleging that Appellee was professionally
negligent in his representation of Appellant on criminal charges of
rape, robbery, and kidnapping filed in the Pulaski County Circuit
Court.  The charges were alleged to have been committed by
Appellant on February 1, 1986, although Appellant did not retain
Appellee to represent him on the charges until November 1, 1986. 
The complaint reflects that on November 4, 1986, Appellant was
convicted of all three charges after a bench trial.  On
November 25, 1986, Appellant was sentenced to life imprisonment on
the charge of rape, forty years on the charge of kidnapping, and
twenty years on the charge of robbery.  
     The complaint reflects that in a letter dated February 12,
1987, Appellee notified Appellant that a notice of appeal had been
filed on his behalf.  Subsequently, Appellee notified Appellant
that there had been some difficulty in lodging the trial transcript
because the court reporter had been ill.  Appellee later notified
Appellant that the costs for the trial transcript had been paid and
that the transcript would be filed within fifteen days.  For
whatever reason, the trial transcript was never lodged, and no
motion for belated appeal was ever submitted to this court.  
     Appellant claimed that Appellee committed legal malpractice in
failing to perfect an appeal of the charges, and that his cause of
action was not barred by the statute of limitations because the
attorney-client relationship continued through February 2, 1990,
and because Appellee intentionally and fraudulently concealed his
negligence.  Appellee responded to Appellant's complaint by
asserting that Appellant terminated the attorney-client
relationship in a letter dated September 8, 1988, and that as a
result, Appellant's claim was barred by the statute of limitations
as it was filed three years and one month after the attorney-client
relationship was terminated.  Appellee filed both a motion to
dismiss pursuant to ARCP Rule 12(b)(6) and a motion for summary
judgment pursuant to ARCP Rule 56.  Appellee supported both motions
by arguing that Appellant's case was barred by the statute of
limitations.  The trial court ultimately agreed with Appellee and
dismissed the case on the ground that it was barred by the statute
of limitations.  This appeal resulted.
                      II.  Summary Judgment
     Appellant contends on appeal that the trial court erred in
granting summary judgment because there were two issues of material
fact yet to be resolved:  (1) The date on which the attorney-client
relationship was terminated; and (2) whether there were affirmative
acts of concealment and fraud by Appellee that prevented
Appellant's discovery that Appellee had not perfected the appeal. 
Additionally, Appellant points out that the trial court's order is
confusing in that it does not reflect whether the court was
granting Appellee's motion to dismiss pursuant to ARCP Rule
12(b)(6) or his motion for summary judgment pursuant to ARCP
Rule 56.    
     The trial court's order reflects that the trial judge
considered the pleadings and "all other things and matters before
the Court."  It is clear from the abstract provided to us that the
parties presented affidavits and other matters outside the
pleadings to the trial court on the motion to dismiss.  As such, we
will treat the motion as one for summary judgment.  See ARCP Rule
12(b)(6); Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996);
Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992).  Summary
judgment should only be granted when there are no genuine issues of
material fact and the moving party is entitled to judgment as a
matter of law.  Cherepski, 323 Ark. 43, 913 S.W.2d 761.  We view
the evidence in a light most favorable to the party against whom
the motion was filed, resolving all doubts and inferences against
the moving party.  Id.  Our review is limited to an examination of
the evidentiary items presented below in order to determine whether
the trial court correctly ruled that those items left no material
factor in dispute.  Id.  
     This court has consistently recognized that the three-year
statute of limitations applies to actions against an attorney for
negligence.  See Stoltz v. Friday, 325 Ark. 399, 926 S.W.2d 438
(1996); Smith v. Elder, 312 Ark. 384, 849 S.W.2d 513 (1993);
Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992); Chapman v.
Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991); Ark. Code Ann.  16-
56-105 (1987).  The statute of limitations in such actions begins
to run, in the absence of concealment of the wrong, when the
negligence occurs, not when the negligence is discovered.  Stoltz,
325 Ark. 399, 926 S.W.2d 438; Goldsby, 309 Ark. 380, 831 S.W.2d 142.  Where affirmative acts of concealment by the person charged
with fraud prevent the discovery of that person's
misrepresentations, the statute of limitations will be tolled until
the fraud is discovered or should have been discovered with the
exercise of reasonable diligence.  Wilson v. General Elec. Capital
Auto Lease, Inc., 311 Ark. 84, 841 S.W.2d 619 (1992).  This court
has previously held that "[a]lthough the question of fraudulent
concealment is normally a question of fact that is not suited for
summary judgment, when the evidence leaves no room for a reasonable
difference of opinion, a trial court may resolve fact issues as a
matter of law."  Alexander v. Flake, 322 Ark. 239, 241, 910 S.W.2d 190,191 (1995).  
     We conclude that the evidence submitted below, primarily in
the form of Appellant's affidavit, did leave room for a reasonable
difference of opinion, and that there was a fact question as to
whether the statute of limitations was tolled by any affirmative
acts of fraud or concealment on the part of Appellee.  Furthermore,
we conclude that there was a fact question as to when the negligent
act occurred, and consequently, as to when the statute of
limitations began to run.  We thus reverse the decision of the
trial court and remand the case so that these questions of fact may
be resolved.
     We note that because we treat the trial court's ruling as one
of summary judgment, which was limited to the statute of
limitations issue, we are not addressing the Rule 12(b)(6) issue
pertaining to any defects in the pleadings.  On remand, the parties
are not barred from raising this issue in the trial court.
     Reversed and remanded.
     DUDLEY and GLAZE, JJ., dissent.
     JESSON, C.J., not participating.
=================================================================
         Robert H. Dudley, Associate Justice, dissents.

     Joe Smothers employed James Clouette to represent him on three
criminal charges.  Smothers was convicted on each charge and
subsequently filed this legal malpractice suit against Clouette. 
Smothers alleged that Clouette was negligent in representing him
because he failed to timely perfect an appeal and then failed to
seek a belated appeal.  Smothers asked for $750,000 in damages for
mental anguish as a result of being incarcerated.  However,
Smothers did not plead alleging that, but for the failure to
perfect the appeal, the result in the underlying criminal charges
would have been different.
     In response to Smothers's complaint, Clouette filed a motion
to dismiss for failure to state a cause of action, see Ark. R. Civ.
P. 12(b)(6), and a motion for summary judgment because the statute
of limitations had run.  The trial court granted the motion to
dismiss without specifying whether it was based on 12(b)(6) or on
summary judgment.  
     The majority opinion holds that the granting of summary
judgment was in error, and I agree.  However, I would not reverse
and remand, because the trial court could have correctly granted
the motion based on Rule 12(b)(6).
     We have often held that we will affirm a trial court if the
trial court reached the right result, even though the trial court
may have given the wrong reason.  Marine Servs. Unlimited, Inc. v.
Rake, 323 Ark. 757, 918 S.W.2d 132 (1996).  Here, the trial court
reached the right result, because the case should have been
dismissed for failure to state a cause of action.  
     In order to state a cause of action for legal malpractice, the
plaintiff must show that but for the alleged negligence, the result
in the underlying action would have been different.  Schmidt v.
Pearson, Evans & Chadwick, 326 Ark. 499,   S.W.2d    (1996); Tyson
Foods, Inc. v. Adams, 326 Ark. 300,    S.W.2d    (1996); Anthony v.
Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996); Callahan v. Clark, 321
Ark. 376, 901 S.W.2d 842 (1995).  Smothers did not plead any facts
showing that, if the appeal had been perfected, the underlying
results would have been different.  Thus, the trial court should
have granted the motion to dismiss, but should have based the
dismissal on Smothers's failure to state a cause of action.
     The trial court granted a dismissal, but it should have
granted a dismissal without prejudice for failure to state a cause
of action.  We should affirm, but modify the dismissal to one
without prejudice.  The case of Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984), is squarely on point.    
     Glaze, J., joins in this dissent.