Moore Inv. Co. v. MICHELL, WILLIAMS, SELIG

208 S.W.3d 803, 91 Ark. App. 102
CourtCourt of Appeals of Arkansas
DecidedMay 18, 2005
DocketCA 04-54
StatusPublished
Cited by5 cases

This text of 208 S.W.3d 803 (Moore Inv. Co. v. MICHELL, WILLIAMS, SELIG) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore Inv. Co. v. MICHELL, WILLIAMS, SELIG, 208 S.W.3d 803, 91 Ark. App. 102 (Ark. Ct. App. 2005).

Opinion

Terry Crabtree, Judge.

This is a legal-malpractice case. On October 20, 2003, the Pulaski County Circuit Court granted summary judgment in favor of the appellee, Mitchell, Williams, Selig, Gates & Woodyard, finding that no material issue of fact existed and that the three-year statute of limitations barred the claims made by the appellant, Moore’s Investment Company, in its complaint. The sole issue on appeal is whether summary judgment was appropriate. We hold that it was and affirm the trial court’s ruling.

The facts surrounding the limitation issue are as follows. Appellant engaged appellee to effectuate a sale of its life insurance company, Old Southwest Life Insurance Company [Old Southwest], to Franklin America Life Insurance Company [Franklin America], Ultimately, on December 11, 1998, appellant entered into an acquisition agreement with Franklin America for the sale and transfer of Old Southwest. The terms of the entire sale transaction and closing procedures were set forth in the agreement. Jimmie Lee Moore Jaye, President of Old Southwest and President of Moore’s Investment Company, reviewed various drafts of the acquisition agreement and signed the final agreement on December 11, 1998. Under the terms of that agreement, appellant sold all of the issued and outstanding shares of common stock of Old Southwest effective March 1, 1999. The agreement was subject to the condition that it be approved by shareholders of Old Southwest and the Arkansas Insurance Commissioner.

Pursuant to the agreement, Franklin America first tendered eighty percent of the purchase price, $1,392,237.92, to appellant. However, in May 1999, Franklin America went into receivership and the balance of the purchase price, $329,213.00, which was due at that time, was not paid to appellant. As a result, appellant filed a complaint against appellee alleging that appellee committed malpractice by failing to advise it that under the terms of the agreement, twenty percent of the payment price was unsecured. Specifically, appellant alleged (1) legal malpractice, (2) breach of fiduciary duty, and (3) breach of contract. Later, appellee filed a motion for summary judgment asserting the affirmative defense of statute of limitations. After a hearing on the matter, the circuit court granted appellee’s motion.

On appeal, appellant argues that the trial court erred in granting summary judgment to appellee. We have ceased referring to summary judgment as a drastic remedy. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). We now regard it simply as one of the tools in a trial court’s efficiency arsenal. Id. The moving party always bears the burden of sustaining a motion for summary judgment. Renfro v. Adkins, 323 Ark. 288, 295, 914 S.W.2d 306, 309-10 (1996). All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. Curley v. Old Reliable Casualty Co., 85 Ark. App. 395, 155 S.W.3d 711 (2004). Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Mount Olive Water Ass’n v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993). The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (2004); Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 453, 966 S.W.2d 241, 243 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

On January 4, 2002, appellant filed its complaint alleging that appellee committed legal malpractice, conflict of interest or breach of fiduciary duty, and a breach of contract in regard to the sale of Old Southwest. On July 28, 2003, appellee filed a motion for summary judgment asserting the affirmative defense of the statute oflimitations. Along with its motion and brief in support, appellee attached (1) the pleadings on file including the complaint, (2) answers to interrogatories and requests for production from appellant, (3) excerpts from the deposition of Jimmie Lee Moore Jaye, and (4) a copy of the December 11, 1998, acquisition agreement. Appellee argued that the statute oflimitations began to run on December 11, 1998, at the time the acquisition agreement was executed.

As this is a legal-malpractice action, Ark. Code Ann. § 16-56-105 (Repl. 1996) is the applicable statute oflimitations. The statute requires a claim for malpractice to be filed within three years of “when the negligence occurs.” Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998). Since 1877, it has been the law in Arkansas that the statute of limitations in an action against an attorney for negligence begins to run, in the absence of conceal ment of the wrong, when the negligence occurs, not when it is discovered by the client. Goldsby v. Failley, 309 Ark. 380, 831 S.W.2d 142 (1992); Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991); Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). While other jurisdictions use different approaches in determining when the cause of action accrues, we have stated that if such a marked change is to be made in the interpretation of statutes that have long been the law, it should be done prospectively by the legislature and not retrospectively by the courts. Goldsby, supra; Riggs, supra.

The triggering event for the statute of limitations in the present case is the date the acquisition agreement was signed by the parties on December 11, 1998. On that date, Franklin America and appellant finalized the entire agreement, set all procedures for closing, and agreed to all terms of the sale. Appellant, represented by Jimmie Lee Moore Jaye, read and signed the agreement, which included terms for a secured transaction in regard to eighty percent of the purchase price. All of the events following the December 11, 1998, execution served to effectuate the terms of the acquisition agreement. Any complaints or issues about the fairness of the transaction, the terms of the agreement, the purchase price, the steps for the closing process, and the manner of payment, including the unsecured balance, were established on December 11, 1998, and were known to appellant at that time.

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208 S.W.3d 803, 91 Ark. App. 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-inv-co-v-michell-williams-selig-arkctapp-2005.