Pugh v. Griggs

Joy PUGH, Individually and as Administratrix
of the Estate of John Pugh v. Ronald L.
GRIGGS and Stephen R. Crane

96-402                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 17, 1997


1.   Judgment -- summary judgment -- when granted. -- Summary judgment is
     to be granted by a trial court only when it is clear that
     there are no genuine issues of material fact to be litigated
     and the moving party is entitled to judgment as a matter of
     law; once the moving party has established a prima facie
     entitlement to summary judgment, the opposing party must meet
     proof with proof and demonstrate the existence of a material
     issue of fact. 

2.   Judgment -- summary judgment -- standard of review. -- On review, the
     appellate court determines if summary judgment was appropriate
     based on whether the evidentiary items presented by the moving
     party in support of the motion leave a material question of
     fact unanswered; the appellate 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.

3.   Judgment -- summary judgment -- may be appropriate in legal malpractice
     suit. -- The granting of summary judgment may be appropriate in
     a legal malpractice suit.

4.   Attorney & client -- legal malpractice -- controlling principles. -- An
     attorney is negligent if he or she fails to exercise
     reasonable diligence and skill on behalf of the client; to
     prevail on a claim of legal malpractice, a plaintiff must
     prove that the attorney's conduct fell below the generally
     accepted standard of practice and that such conduct
     proximately caused the plaintiff damages; 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. 

5.   Attorney & client -- legal malpractice -- when attorney is not liable. --
     An attorney is not liable to a client when, acting in good
     faith, he or she makes mere errors of judgment; moreover, an
     attorney is not, as a matter of law, liable for a mistaken
     opinion on a point of law that has not been settled by a court
     of highest jurisdiction and on which reasonable attorneys may
     differ.

6.   Attorney & client -- legal malpractice -- trial court did not err in
     deferring to appellees' decision to seek voluntary dismissal of appellant's
     case -- matter within counsel's discretion. -- The supreme court held
     that it was not error for the trial court to defer to
     appellees' decision to seek a voluntary dismissal or nonsuit
     of appellant's case because such matters were within counsel's
     discretion; ARCP Rule 41(a) clearly allows a plaintiff to
     nonsuit a claim, and the supreme court has recognized that the
     rule creates an absolute right to a nonsuit; appellant does
     not claim that the nonsuit was taken without her consent or
     that she did not understand the concept of taking a nonsuit. 
     

7.   Attorney & client -- legal malpractice -- appellant's continued retainment
     of appellees as counsel constituted waiver of negligence claim. -- The
     supreme court concluded that by continuing her retainment of
     appellees as counsel well into the filing of her second
     complaint, appellant effectively waived any claim that she may
     have had against appellees for any alleged negligence
     committed in the prosecution of the first suit.

8.   Judgment -- trial court's grant of summary judgment in favor of appellees
     was proper. -- Noting that while it might not have approved of
     appellees' lack of due diligence in the handling of
     appellant's cases, the supreme court held that because the
     area of the law concerning the timely refiling of a complaint
     after taking a nonsuit was not settled and had not been
     addressed by the court until the first appeal in this matter,
     the trial court's grant of summary judgment was proper, and
     appellees were entitled to judgment on the issue as a matter
     of law. 

9.   Appeal & error -- denial of motion for summary judgment -- not reviewable
     on appeal. -- The denial of a motion for summary judgment is not
     reviewable on appeal.


     Appeal from Union Circuit Court, Second Division; David F.
Guthrie, Judge; affirmed.
     Steven R. Smith, for appellant.
     R. Gary Nutter, for appellees.

     Donald L. Corbin, Justice.
     This is an appeal from the order of the Union County Circuit
Court granting summary judgment on the issue of attorney
malpractice to Appellees Ronald L. Griggs and Stephen R. Crane and
denying summary judgment on the issue of liability to Appellant Joy
Pugh.  As this appeal involves a question concerning the law of
torts, jurisdiction is proper in this court.  Ark. Sup. Ct. R. 1-
2(a)(16) (as amended by per curiam July 15, 1996).  On appeal,
Appellant argues that the trial court erred in granting Appellees'
motion for summary judgment as there were issues of material fact
yet to be decided and that the trial court also erred in denying
her motion for summary judgment.  For the reasons outlined below,
we affirm the trial court's judgment.
                I.  Facts and Procedural History
    We have discerned the following facts from the pleadings and
affidavits filed with the trial court.  Appellant entered into a
contract with Appellee Griggs on June 21, 1985, in which Griggs
agreed to represent Appellant in her claim for damages, wrongful
death, and medical malpractice for the death of her husband John
Pugh.  Thereafter, Appellee Griggs associated with Appellee Crane
in the prosecution of Appellant's claim.  Appellees continually
represented Appellant through January 27, 1992.
     On May 21, 1987, Appellees sent notice of intent to sue to the
medical defendants, including Warner Brown Hospital and two
doctors, James Weedman and Durwood Flournoy.  On July 29, 1987,
Appellees filed Appellant's suit against the medical defendants
alleging negligence in the treatment of Appellant's husband,
resulting in his death.  The negligent acts complained of occurred
on or about May 26, 1985.  On September 29, 1989, Appellant, on the
advice of Appellees, took a voluntary nonsuit.
     On September 24, 1990, Appellees served the medical defendants
with notice of intent to sue, pursuant to Ark. Code Ann.
 16-114-204 (1987) (repealed 1995).  On November 29, 1990,
Appellees refiled Appellant's complaint.  The medical defendants
moved for summary judgment on December 19, 1990, alleging that
Appellant's action was barred by the one-year statute of
limitations for filing a claim after nonsuit as provided in Ark.
Code Ann.  16-56-126 (1987).  The motion was denied.
     On February 25, 1993, approximately one year after Appellees
had withdrawn from Appellant's case, the medical defendants filed
a motion for reconsideration of summary judgment.  This time the
trial court granted the motion, applying this court's holding in
Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), which
overruled Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984),
and held that ARCP Rule 3 was in direct conflict with, and thus
superseded, the requirement of notice of intent to sue in medical
injury cases as provided in section 16-114-204.  Appellant appealed
the trial court's grant of summary judgment and this court
affirmed.  See Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark.
304, 877 S.W.2d 577 (1994) ("Pugh I").  
     Subsequent to this court's ruling in Pugh I, Appellant
initiated the current litigation by filing a complaint against
Appellees alleging that they were negligent in failing to prosecute
the first medical malpractice lawsuit, which resulted in a nonsuit,
and in failing to timely refile her complaint within the one-year
time period allowed for refiling a claim after a nonsuit pursuant
to section 16-56-126.  Appellees filed a motion for summary
judgment on both allegations.  The trial court granted Appellees'
motion.  As to the first allegation of negligence, the trial court
reasoned that the decision to take a nonsuit was a discretionary
one and that it would defer to Appellees' judgment call on that
issue.  As for the allegation that Appellees failed to timely file
the complaint after taking the nonsuit, the trial court found that
Appellees exercised reasonable skill and diligence on behalf of
their client and that the question of whether the one-year period
provided for in section 16-56-126 was extended in medical
malpractice cases, in which notice must first be given before suit
is filed, was not settled law.  Additionally, the trial court
denied Appellant's motion for summary judgment on the issue of
Appellees' liability for professional negligence.  This appeal
followed.
                      II.  Summary Judgment
     Summary judgment is to be granted by a trial court only when
it is clear that there are no genuine issues of material fact to be
litigated and the moving party is entitled to judgment as a matter
of law.  Tyson Foods, Inc. v. Adams, 326 Ark. 300, 930 S.W.2d 374
(1996); Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996). 
Once the moving party has established a prima facie entitlement to
summary judgment, the opposing party must meet proof with proof and
demonstrate the existence of a material issue of fact.  Anthony v.
Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996).  On review, this court
determines if summary judgment was appropriate based on whether the
evidentiary items presented by the moving party in support of the
motion leave a material question of fact unanswered.  Tyson Foods,
Inc., 326 Ark. 300, 930 S.W.2d 374.  This 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.  Cherepski, 323 Ark. 43, 913 S.W.2d 761.  The granting of
summary judgment may be appropriate in a legal malpractice suit. 
Tyson Foods, Inc., 326 Ark. 300, 930 S.W.2d 374; Anthony, 324 Ark.
52, 918 S.W.2d 174.
     An attorney is negligent if he or she fails to exercise
reasonable diligence and skill on behalf of the client.  Schmidt v.
Pearson, Evans, and Chadwick, 326 Ark. 499, 931 S.W.2d 774 (1996). 
In order to prevail on a claim of legal malpractice, a plaintiff
must prove that the attorney's conduct fell below the generally
accepted standard of practice and that such conduct proximately
caused the plaintiff damages.  Id.  In order 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.  Id.  An attorney is not liable to a
client when, acting in good faith, he or she makes mere errors of
judgment.  Id.  Moreover, attorneys are not, as a matter of law,
liable for a mistaken opinion on a point of law that has not been
settled by a court of highest jurisdiction and on which reasonable
attorneys may differ.  Id.
     Appellant argues on appeal that the trial court erred in
granting summary judgment to Appellees because there were issues of
material fact left unresolved.  The trial court ruled that
Appellees exercised reasonable skill and diligence on behalf of
their client and, thus, it did not reach the issues of proximate
cause and damages.  We discuss each allegation of negligence
separately.  
         A.  Negligence in Prosecution of First Lawsuit
     Appellant initially argues that the trial court erred in
granting the motion for summary judgment on the issue of Appellees'
alleged negligent prosecution of the first lawsuit, which resulted
in a voluntary nonsuit.  Appellant asserts that Appellees' lack of
preparation of the case left her no choice but to agree to a
nonsuit.  Appellant challenges the trial court's deference to
Appellees' legal judgment in electing to take a nonsuit without
looking beyond counsels' decision to the facts leading up to that
decision.  Appellees maintain that ARCP Rule 41 provides an
absolute right to a voluntary dismissal and that Appellant
consented to taking the nonsuit.      
     The trial court ruled that it was within Appellees' discretion
as counsel for Appellant to take a voluntary nonsuit and that such
decisions were frequently made by attorneys.  The trial court
stated:
          Cases are dismissed for any number of reasons and as
     counsel has been given such discretion [pursuant to ARCP
     Rule 41], I'm not going to look behind that dismissal at
     this point and make a determination as to whether or not
     their development of the case up until that time was
     proper or improper.  I think I must defer to counsel's
     judgment call on the case as it existed with the facts
     and issues known to counsel at the time.

     We hold that it was not error for the trial court to defer to
Appellees' decision to seek a voluntary dismissal or nonsuit of
Appellant's case, as such matters were within counsel's discretion. 
Rule 41(a) clearly allows a plaintiff to nonsuit a claim, and this
court has recognized that the rule creates an absolute right to a
nonsuit.  Whetstone v. Chadduck, 316 Ark. 330, 871 S.W.2d 583
(1994); Jenkins v. Goldsby, 307 Ark. 558, 822 S.W.2d 842 (1992). 
Appellant does not claim that the nonsuit was taken without her
consent or that she did not understand the concept of taking a
nonsuit.  Additionally, we conclude that by continuing her
retainment of Appellees as her attorneys well into the filing of
the second complaint, Appellant effectively waived any claim she
may have had against Appellees for any alleged negligence committed
in the prosecution of the first suit. 
  B.  Negligence in Failing to Timely Refile Case after Nonsuit
     Appellant also argues that Appellees were negligent in failing
to timely refile her lawsuit within the one-year period provided
for in section 16-56-126.  Appellant contends that there are
remaining issues of material fact concerning Appellees' reliance on
existing law in effect in 1990.  In support of this contention,
Appellant relies on a letter written by Appellee Griggs to Appellee
Crane on September 21, 1990, and an office memo completed by a
member of Appellee Crane's staff on December 20, 1990.  The letter
states in pertinent part:
     The last day to file this matter [Pugh v. Flournoy, et
     al.] is 28 September 1990.  I have not had a chance to
     check on whether or not we have to give a notice of
     intent to sue prior to filing or whether or not we simply
     file a lawsuit after a non-suit.
The memo to Appellee Crane from a member of his staff reads in
pertinent part:
          On this date I did some research on Joy Pugh.  The
     following appears to be the law.  According to the
     statute, you have one year after taking a non-suit to
     commence a new action.  The notice provision for
     malpractice cases is strictly construed.  The notice
     provision for malpractice cases is required to be filed
     after a non-suit.  If you are unable to comply with the
     notice provisions within the prescription period, then
     the period of time to commence your lawsuit is extended
     by 70 days.  We did file the lawsuit between 60 and 70
     days after the notice.  Therefore, the summary judgment
     motion is not applicable.
 
Appellant contends that these two documents are evidence of
Appellees' lack of knowledge of the law regarding refiling of a
medical malpractice claim after nonsuit rather than their alleged
good-faith reliance on existing law.  In addition, she argues that
it should have been clear to Appellees that pursuant to section 16-
114-204, notice of intent to sue for medical injury was required
after taking a nonsuit, but that pursuant to section 16-56-126 a
new action had to be commenced within one year from the date of
taking a nonsuit notwithstanding the notice requirement.
     At the time Appellant's claim was refiled, section 16-114-
204(b) provided:
          If the notice is served within sixty (60) days of
     the expiration of the period for bringing suit described
     in  16-114-203, the time for commencement of the action
     shall be extended seventy (70) days from the service of
     the notice.
     Section 16-56-126 provides in pertinent part:
          If any action is commenced within the time
     respectively prescribed in this act, in  16-116-101 --
     16-116-107, in  16-114-201 -- 16-114-209, or in any
     other act, and the plaintiff therein suffers a nonsuit,
     or after a verdict for him the judgment is arrested, or
     after judgment for him the judgment is reversed on appeal
     or writ of error, the plaintiff may commence a new action
     within one (1) year after the nonsuit suffered or
     judgment arrested or reversed.  
     Appellees maintain that they acted in good faith pursuant to
the relevant law in existence at the time they refiled the medical
negligence lawsuit and that because they followed the existing law,
they were not negligent in failing to timely refile Appellant's
complaint.  Appellees rely on this court's holdings in Ofili v.
Osco Drug, Inc., 300 Ark. 431, 780 S.W.2d 11 (1989), Dawson v.
Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986), Jackson, 283 Ark.
100, 671 S.W.2d 736, Simpson v. Fuller, 281 Ark. 471, 665 S.W.2d 269 (1984), and Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983). 
Although none of those cases directly supports Appellees' position
that the seventy-day extension of the limitations period provided
in section 16-114-204(b) applied to the one-year period provided
for filing a claim after taking a nonsuit, this court had not had
the opportunity to address the issue until the first appeal of
Appellant's case.  
     In Pugh I, 317 Ark. 304, 877 S.W.2d 577, this court held that
under the wording of the statute, the extension period found in
section 16-114-204(b) applied only to the two-year limitation in
section 16-114-203 and that the savings statute for refiling a
claim after nonsuit is not mentioned in section 16-114-204(b). 
Similarly, this court noted that the savings statute makes
reference to the medical malpractice act but expressly states a
one-year limitation and does not mention any time period of
extension.  Without resorting to the rules of statutory
construction or looking to the intent of the General Assembly, this
court stated that the plain language of section 16-56-126 does not
include the addition of the extension of time provided for in
section 16-114-204(b).  Based upon this construction of the two
statutes, this court concluded that Appellant's medical malpractice
claim was barred by the statute of limitations. 
     Appellant contends that the holding in Pugh I supports her
argument that the law on the issue of the time allowed in which to
refile a complaint after taking a nonsuit was well settled, and
that the Appellees were negligent in failing to timely refile her
lawsuit.  Appellees maintain that the law was not settled until
this court rendered its decision in Pugh I and that, therefore,
they should not be held accountable for a mistaken opinion of an
unsettled question of law.  We agree with Appellees.
     As noted above, this court recently held in Schmidt, 326 Ark.
499, 931 S.W.2d 774, that as a matter of law, attorneys are not
liable for a mistaken opinion on a point of law that has not been
settled by this court and on which reasonable attorneys may differ. 
Accordingly, while we may not approve of Appellees' lack of due
diligence in the handling of Appellant's cases, because this area
of the law was not settled and had not even been addressed by this
court until the decision in Pugh I, we conclude that the trial
court's grant of summary judgment was proper and that Appellees
were entitled to judgment on this issue as a matter of law. 
                III.  Denial of Summary Judgment
     Lastly, Appellant argues that it was error for the trial court
to deny her motion for summary judgment on the issue of Appellees'
liability for the alleged negligent handling of Appellant's medical
malpractice cases.  We decline to address this argument as this
court has repeatedly held that the denial of a motion for summary
judgment is not reviewable on appeal.  See, e.g., Ball v. Foehner,
326 Ark. 409, 931 S.W.2d 142 (1996); Nucor Holding Corp. v.
Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996).  Moreover, in this
particular case, we have, to a certain extent, already addressed
the merits of this argument by addressing the trial court's grant
of summary judgment in favor of Appellees on the issue of
professional negligence.  
     Affirmed.
     Special Justice M. Edward Morgan dissents.
     Newbern, J., not participating.
         M. Edward Morgan, Special Justice, dissenting.
     I disagree with that part of the majority opinion that affirms
the trial court's granting summary judgment in favor of Appellees
on the issue of negligence in failing to timely refile the case
after nonsuit was taken.  The Appellant entered into a contract
with Appellee Griggs on June 21, 1985, to represent her in her
claim for damages, wrongful death, and malpractice, resulting in
her husband's death.  Appellee Griggs associated with Appellee
Crane to assist him in prosecuting this case.  During the period of
time from July 29, 1987, the date in which the original complaint
was filed on behalf of the Appellant and the nonsuit of
September 29, 1989, the only discovery the Appellees initiated was
a set of Request for Production of Documents, submitted on
September 21, 1988.  The Appellees took no depositions and
propounded no Interrogatories or Requests for Admission to
Defendants.  The case was set for trial on October 23, 1989, and
the Appellant, on advise of Appellees, took a nonsuit.
     The record reflects that the Appellees waited until
September 21, 1990, five days prior to the expiration of the
statute of limitations to review whether the "notice of intent"
requirement to sue in the medical malpractice was applicable when
a nonsuit had been taken.  The letter states in pertinent part:
     The last day to file this matter, [Pugh v. Flournoy, et
     al.] is 28 September 1990.  I have not had a chance to
     check on  whether or not we have to give a notice of
     intent to sue prior to filing or whether or not we simply
     file a lawsuit after a non-suit. 
     It appears from the record that this issue was not researched
until a memo from a staff member on December 20, 1990, was provided
as summarized in the majority's opinion.  
     Summary judgment is an extreme remedy, and should be granted
only when there are no genuine issues of material fact left to be
determined and when the case can be decided as a matter of law,
Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996).  On
appellate review, this court determines if granting summary
judgment was appropriate based on whether the evidentiary items
presented by the moving party in support of the motion leave a
material question of fact unanswered.  Knowlton v. Ward, 318 Ark
867, 889 S.W.2d 721 (1994).
     The letter from Appellee Griggs to Appellee Crane, dated
September 21, 1990, a mere five days prior to the statute of
limitations expiring on the nonsuit, demonstrates that no previous
effort was made by the Appellees to determine whether the notice of
intent to sue was required before the malpractice case could be
refiled.  This appears to be reaffirmed by the Appellee Griggs'
staff memo of December 20, 1990. The September 21, 1990 letter,
memo, and lack of basic discovery by the Appellees leaves a
question of fact of whether the Appellees exercised reasonable
skills and diligence on behalf of their clients while they were
entrusted to prosecute this claim.
     The standard of review for summary of judgment is whether the 
evidentiary items presented by the moving party in support of the
motion leave a question of material fact unanswered, and if not,
whether the moving party is entitled to a summary judgment as a
matter of law.  All proof is viewed in the light most favorable to
the party opposing the motion, and all doubts and inferences are
resolved against the moving party.  McCaskill v. Fort Smith Pub.
Sch. Dist., 324 Ark. 488, 921 S.W.2d 945 (1996).
     From review of the record, there were no evidentiary items
presented in affidavits, discovery, or depositions in support of
summary judgment that this area of law was unsettled and reasonable
attorneys may differ.
     In Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994), this court in an unanimous decision, had no
difficulty in finding the statute relied on by Appellees was
clearly not applicable, and the Weidrick v. Arnold, 310 Ark. 138,
835 S.W.2d 843 (1992), change in the law did not apply.  Based upon
the rules set out in which all proof is to be viewed in the light
most favorable to the party opposing the motion and all doubts and
inferences are resolved against the moving party, the Appellant
should be given her opportunity to present her cause of action to
a jury and have her day in court.
     I would reverse the majority's opinion in part and remand the
case for further proceedings.