Hearst v. Newcomb
Hearst v. Newcomb
Opinion of the Court
Jason Hearst appeals the Pulaski County Circuit Court's order granting summary judgment to appellee Robert Newcomb and dismissing Hearst's legal-malpractice lawsuit against Newcomb. We affirm.
*311On June 13, 2010, Hearst was arrested in Faulkner County after Mayflower police officer
Baker filed a motion for summary judgment on December 12, 2012. Newcomb failed to file a response on behalf of Hearst. On February 6, 2013, Hearst filed a motion under Rule 41 of the Arkansas Rules of Civil Procedure requesting that his suit be dismissed without prejudice. Hearst states that Newcomb told him that he was voluntarily nonsuiting the case in order to obtain a new judge. An order was entered the same day granting Hearst's motion to voluntarily nonsuit the case without prejudice. Also on February 6, 2013, Baker responded to the dismissal motion, arguing that it should be denied and that summary judgment should be granted in his favor based on Hearst's failure to respond to Baker's summary-judgment motion. In the alternative, Baker requested that Hearst be required to reimburse him for all costs associated with the case and that any refiling be stayed until such costs were paid. On March 25, 2013, the court entered an amended order of dismissal vacating its earlier dismissal order and denying Hearst's motion. The court then granted Baker's summary-judgment motion and dismissed the suit with prejudice.
On April 18, 2013, Hearst filed a timely notice of appeal. On appeal he argued that the court erred in vacating his dismissal order and dismissing his suit with prejudice. We found no error and affirmed in Hearst v. Baker ,
Hearst then filed a legal-malpractice lawsuit against Newcomb on March 10, 2016, alleging negligent representation in the civil-rights claim. After conducting discovery,
The law is well settled regarding the standard of review used by this court in reviewing a grant of summary judgment. Crockett v. C.A.G. Invs., Inc. ,
To prevail on an attorney-malpractice claim in Arkansas, the plaintiff must show that he or she suffered damages proximately caused by the defendant's negligence, meaning that the plaintiff must show that but for the attorney's alleged negligence, the result would have been different in the underlying action. Callahan v. Clark ,
On appeal, Hearst argues that the circuit court erred in granting summary judgment in favor of Newcomb based on its finding that his claim was filed after the statute of limitations had expired because there were questions of fact as to whether Newcomb's actions should have tolled the statute of limitations. The statute of limitations for attorney-negligence cases is three years. Parkerson v. Lincoln ,
Hearst has not demonstrated that this finding was erroneous; he has not cited any evidence that Newcomb knew that the date he provided to Hearst was incorrect and did so with the intent to mislead Hearst into missing the filing deadline for his malpractice suit. Moreover, we note that Hearst cannot prove that he justifiably relied on Newcomb's statement as to the exact date on which the statute of limitations would expire because justifiable reliance requires proof that Hearst exercised reasonable diligence in relying on Newcomb's assertion. Here, Hearst asserts that it was reasonable for him to have relied exclusively on Newcomb's off-the-cuff statement as to the deadline for filing his malpractice claim despite the fact that the lawsuit hinged entirely on Hearst's contention that Newcomb is a negligent lawyer who egregiously erred by missing an important filing deadline. Finally, Hearst admitted in a response to an interrogatory propounded by Newcomb that by late January 2014, Hearst had consulted a second attorney, James Lane, who reviewed Hearst's civil-rights suit, explained to him why it was dismissed, and further explained that this court had denied his request for appellate relief.
In Delanno , the Arkansas Supreme Court held that even in cases where fraud is found, the plaintiff has the burden to "prove that the fraud would not have been detected by the exercise of reasonable diligence."
Hearst next argues that the statute of limitations should be tolled for the forty-one-day period during which the circuit court's order granting Hearst's motion for voluntary dismissal without prejudice was in effect. He relies on Stroud v. Ryan ,
The Arkansas Supreme Court distinguished Stroud in Goldsby and explained that the appellants' malpractice action in Goldsby had never ceased to exist from the time the appellee attorney had prepared a warranty deed in 1980 and misrepresented that the appellants had a first mortgage on the subject property.
In Ragar v. Brown,
The distinguishing factor in both Stroud and Pope County [v. Friday, Eldredge & Clark ,313 Ark. 83 ,852 S.W.2d 114 (1993) ] was the judgment entered in favor of the appellant. Here, as in Goldsby , there was no intervening judgment in Appellant's favor; hence, her malpractice claim never ceased to exist. At a minimum, Appellant was alerted to her claims for actionable negligence when the bankruptcy court entered the disqualification and the fraudulent-conveyance orders against her. Unlike Stroud , there was no point where Appellant was prevented from bringing suit. We are therefore not persuaded by Appellant's argument that accrual of her action was delayed; her alleged damages were evident through the trial court's adverse rulings, affirmed on appeal, and thereby never ceased to exist.
Ragar ,
Newcomb argues that the statutory period should not be tolled during the forty-one-day period that the circuit court's voluntary-dismissal order was in place and that Stroud is distinguishable because the circuit court's voluntary-dismissal order in the present case was not akin to a "judgment entered in favor of the appellant," as was the case in Stroud , and did not prevent Hearst from bringing his attorney-malpractice claim during the pendency of that voluntary-dismissal order.
Both arguments miss the mark. Here, the circuit court applied Stroud and found that even if the statute of limitations had been tolled for the forty-one-day period, Hearst's malpractice claim was still untimely. Specifically, the court found that Newcomb's alleged negligence occurred on January 7, 2013, the date when Hearst's response to Baker's motion for summary judgment was due, and that even if the *315statutory period was tolled by the circuit court's voluntary-dismissal order, which was in effect between February 6 and March 19, 2013, Hearst's malpractice complaint, filed on March 10, 2016, was filed more than three years and forty-one days after the negligent act. Despite making numerous legal arguments on appeal as to why the statute of limitations should be tolled in this case, Hearst does not challenge the circuit court's simple mathematical calculation that, even if the statute of limitations had been tolled pursuant to Stroud , "Plaintiff should have brought his claim within three years and forty-one days" but "failed to bring his claim within the tolled statute of limitations period under Stroud analysis."
To the extent that Hearst also argues that the statute of limitations should be tolled for the full pendency of his appeal of the underlying civil-rights lawsuit, he cites no authority nor does he make any persuasive legal argument that would support this position. While the Stroud court held that the statute of limitations for filing an attorney-malpractice claim was tolled until an appellate court reversed the circuit court's nunc pro tunc order setting aside the default judgment, the operative issue was not the appeal process but the existence of the underlying nunc pro tunc order and subsequent legal judgment in the client's favor negating the attorney's negligence until the appellate court's reversal of those orders. In Ragar ,
Finally, in his last argument challenging the circuit court's finding that his claim was barred by the statute of limitations, Hearst argues that Newcomb should be estopped from raising the statute of limitations as a defense because Newcomb misinformed Hearst as to when the statute would expire. Because Hearst neither affirmatively pled estoppel pursuant to Rule 8 of the Arkansas Rules of Civil Procedure nor raised the issue to the circuit court in response to Newcomb's summary-judgment motion, we cannot address it on appeal. Electro-Air v. Villines ,
Affirmed.
Whiteaker and Murphy, JJ., agree.
Although the briefs repeatedly refer to Baker as the police chief, Baker's abstracted testimony simply describes him as the "arresting officer." Baker's rank at the time of the arrest is unclear from our record but is immaterial to the issues presented for our review.
There was conflicting testimony about whether and to what extent Hearst told Baker about his medical conditions and his susceptibility to infection.
Hearst claims that discovery was incomplete.
Hearst stated that Newcomb had incorrectly told him that he had until March 19, 2016, to file his malpractice claim. The court found that, even if true, Newcomb's actions did not amount to fraudulent concealment because there was no evidence of "secretive, furtive, or deceptive action designed to conceal."
We note that, as an appellee who filed neither a notice of appeal nor a notice of cross-appeal, Newcomb's argument that the circuit court erred in applying the tolling analysis in Stroud to the case at bar is not properly before us. Moreover, as the prevailing party below, he has already obtained relief in the form of dismissal of Hearst's malpractice lawsuit. See Banks v. Barton ,
The court was comparing the occurrence rule, under which the statute starts to run from the date of the negligent act, to the damage rule, under which the statute starts to run as soon as damages from the negligence accrue. Arkansas utilizes the occurrence rule.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.