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ARKANSAS COURT OF APPEALS DIVISIONS II & III No. CV-21-417

Opinion Delivered October 5, 2022 REBECCA NICHOLS APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION V. [NO. 60CV-21-1321]

JAMES SWINDOLL AND CHUCK HONORABLE WENDELL GRIFFEN, GIBSON JUDGE

APPELLEES SUPPLEMENTAL OPINION ON GRANT OF REHEARING

N. MARK KLAPPENBACH, Judge

In May 2022, we affirmed the circuit court’s dismissal of the legal-malpractice lawsuit

that was filed by appellant Rebecca Nichols against her attorneys, appellees James Swindoll

and Chuck Gibson. See Nichols v. Swindoll,

. The circuit court had granted

the attorneys’ motion to dismiss, which asserted that any negligence claim was barred by the

applicable three-year statute of limitations and that Nichols failed to adequately plead that

the attorneys fraudulently concealed their malpractice. Nichols filed a petition for rehearing

following our original opinion.

We issue this supplemental opinion only to respond to the dissenting opinions.

Chief Judge Harrison contends that we used the wrong standard of review in this appeal and that a litany of cases from a multitude of federal and state courts show that the standard of

review must be “de novo.” We applied the “abuse of discretion” standard, which has been

recited numerous times over the years from this court, and more importantly, our supreme

court. See, e.g., Steinbuch v. Univ. of Ark.,

,

; Rhodes v. Kroger

Co.,

,

. We are bound by Arkansas Supreme Court precedent

and are powerless to overturn it. Nichols herself alleged in her point on appeal that the

standard of review is “abuse of discretion.” While we appreciate the research presented by

our dissenting colleague, his dissent presents arguments vigorously researched for the

appellant and presented for the first time on petition for rehearing. This is not a proper

basis for rehearing.

Both Chief Judge Harrison and Judge Hixson take issue with the level of duty placed

on lawyers to communicate potential legal errors and whether this complaint should have

survived the motion to dismiss. Chief Judge Harrison goes so far as to suggest that we revisit

Rice v. Ragsdale,

,

(2009), because it “overstepped” and

needs “correction.” Nichols cited Rice in her appellate brief and did not question its validity

as precedent. The Rice holding rejected the notion that an attorney’s fiduciary duty extended

to requiring disclosure of potential legal malpractice and rejected the idea that failure to

disclose that negative information was evidence of an intent to conceal for purposes of tolling

the statute of limitations. This court’s majority opinion followed Arkansas law as it stands

today. Again, while we appreciate the scholarly and informative dissenting opinions, they

make arguments for the appellant that were never raised by the appellant herself. 2 Arkansas law requires an appellant’s complaint to contain facts sufficient to support

the application of fraudulent concealment to toll the statute of limitations. Floyd v. Koenig,

,

(2008). We held that the circuit court did not err, and

we stand by that decision for the reasons previously stated. The dissenting judges simply

disagree with the majority’s assessment.

ABRAMSON, WHITEAKER, and BROWN, JJ., agree.

HARRISON, C.J., and HIXSON, J., dissent.

GRUBER, J., not participating.

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