{ "id": 1892734, "name": "R.C. PINKSTON, Jr. v. John F. LOVELL, Jr.", "name_abbreviation": "Pinkston v. Lovell", "decision_date": "1988-10-24", "docket_number": "88-67", "first_page": "543", "last_page": "550", "citations": [ { "type": "official", "cite": "296 Ark. 543" }, { "type": "parallel", "cite": "759 S.W.2d 20" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "289 Ark. 491", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875330 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0491-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-56-104", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "291 Ark. 56", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872642 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0056-01" ] }, { "cite": "290 Ark. 304", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873773 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0304-01" ] }, { "cite": "291 Ark. 4", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872685 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0004-01" ] } ], "analysis": { "cardinality": 546, "char_count": 11113, "ocr_confidence": 0.857, "pagerank": { "raw": 5.130075477589689e-07, "percentile": 0.9389223078256687 }, "sha256": "06cb0cb68e17c8ed1e32558af9b77f6df4be159d3f4146e515065fcc2603b6d8", "simhash": "1:174a17320440bd75", "word_count": 1789 }, "last_updated": "2023-07-14T19:25:51.901471+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "R.C. PINKSTON, Jr. v. John F. LOVELL, Jr." ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThe appellant, attorney R.C. Pinkston, Jr., brought an action for slander against the appellee, attorney John F. Lovell, Jr. This appeal is from an order dismissing Pinkston\u2019s suit on motion for summary judgment by Lovell. On appeal, Pinkston contends the court erred: (1) in denying his request for a continuance; (2) in failing to recuse; (3) in granting Lovell\u2019s motion for summary judgment; and (4) in concluding that certain documents would be inadmissible at the hearing on the motion for summary judgment. We find no error and affirm.\nThe suit by Pinkston centered around statements made by Lovell on two occasions. The first statement was made sometime shortly before January 24,1986, to a Mr. and Mrs. Caldarera \u2014 Pinkston\u2019s clients in a probate proceeding. The Caldareras came to see Lovell for his legal opinion on Pinkston\u2019s handling of the Caldareras\u2019 probate matters, Pinkston\u2019s charges for his services, and a divorce which the Caldareras were contemplating. On this occasion, Lovell\u2019s statements reflected his opinion as to Pinkston\u2019s competency with regard to the Caldareras\u2019 questions.\nThe second incident took place sometime in February 1987. By this time the Caldareras had divorced. Along with her present husband, Mrs. McKee, formerly Caldarera, sought an opinion from Lovell on the advisability of a malpractice action against Pinkston for overcharging her and her former husband and failing to protect their interests in the probate litigation. On this occasion, according to affidavits introduced at the hearing on the summary judgment motion, Lovell had agreed with Mrs. McKee\u2019s sentiments that Pinkston was not competent as an attorney. Lovell also stated that he had heard Pinkston testify to that effect under oath during trial proceedings in an unrelated criminal matter.\nSuit by Pinkston was filed on March 20, 1987. Lovell\u2019s motion for summary judgment was filed on August 5. In his response to the motion for summary judgment, Pinkston requested a continuance in order to conduct further discovery. At a hearing on October 5,1987, the trial court denied the motion for a continuance, denied a motion to recuse, excluded certain documents offered by Pinkston, and granted the motion for summary judgment on the grounds that \u201c[a] 11 of the statements . . . allegedly made by defendant about plaintiff are either barred by the statute of limitations, constitute mere opinion, or constituted advice given to a client within the course and scope of the attorney-client relationship.\u201d\nCONTINUANCE\nRule 56 of the Arkansas Rules of Civil Procedure governs summary judgments and subsection (f) provides:\nShould it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.\nSubsection (f) makes evident that the decision to grant a continuance is within the discretion of the trial court. Pinkston acknowledges our rule that the refusal to grant a continuance will not be reversed absent an abuse of the trial court\u2019s discretion. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987).\nWe are not convinced from Pinkston\u2019s brief that additional discovery would have changed the outcome of the summary judgment proceedings and generally find Pinkston\u2019s arguments on this issue unpersuasive. Under the circumstances, we cannot say that the trial court abused its discretion.\nRECUSAL\nThe primary thrust of Pinkston\u2019s argument on this point is that the trial judge should have recused when it became clear that Pinkston might call the judge as a witness during trial of the slander suit inasmuch as the judge had previously presided over the unrelated criminal trial at which, according to Lovell, Pinkston had testified under oath concerning his competency to handle a particular criminal proceeding. Pinkston also asserts that the impartiality of the trial judge had been brought into question.\nIn his order granting summary judgment, the judge ruled:\nPlaintiff\u2019s Motion for Recusal should be denied. . . . That the trial judge may be a witness in the trial of this action has not been sufficiently shown, and in any event, is moot, inasmuch as. . .there are no issues of fact subject to proof by oral testimony of any witness, the trial judge included.\nIn effect, the judge determined: (1) the facts did not support the conclusion that he would have been called as a witness in the event the case went to trial; and (2) the issue was moot as the suit was being dismissed on motion for summary judgment. The trial court was correct.\nFirst, any testimony taken at the earlier criminal proceeding was a matter of record. Thus, the judge\u2019s testimony would have been cumulative and unnecessary. Second, disposition of the slander suit by summary judgment obviated the need for addressing Pinkston\u2019s various grounds for the trial judge\u2019s recusal \u2014 with the exception of the impartiality issue, which we find to be without merit.\nThe matter of disqualification is one largely left to the discretion of the trial judge. Sloss v. Farmers Bank and Trust Co., 290 Ark. 304, 719 S.W.2d 273 (1986). We find no abuse in this regard.\nSUMMARY JUDGMENT\nSummary judgment, like a mistrial, is an extreme remedy. It will be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c) of the Arkansas Rules of Civil Procedure. The burden of proving that there is no genuine issue of material fact is upon the appellee in this case, and all proof submitted must be viewed in a light most favorable to the party resisting the motion \u2014 appellant Pinkston. Ford v. Cunningham, 291 Ark. 56, 722 S.W.2d 567 (1987). Any doubts and inferences must be resolved against the moving party \u2014 appellee Lovell.\nPinkston brought suit against Lovell in March 1987. The allegedly slanderous statements by Lovell occurred during meetings with the Caldareras in January 1986 and February 1987. Ark. Code Ann. \u00a7 16-56-104(4) (1987) provides that actions for slander shall be commenced within one year after the cause of action accrues, which is the time of publication. As such, part of the action [dealing with the statements made in 1986] was barred as a matter of law.\nAs to the remaining statements, made in February 1987, the trial court granted summary judgment on the grounds that they constituted opinion or were privileged. Under the circumstances, we hold that the statements made by Lovell were privileged, not because they were made in the course of the attorney-client relationship, but because of the privilege of an attorney to publish defamatory matter as set forth in Selby v. Burgess, 289 Ark. 491, 712 S.W.2d 898 (1986).\nIn Selby, this court discussed section 586 of the Restatement of Torts (Second), which provides:\nAn attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.\nAs concerns the statements by Lovell, two issues surface. Were the statements preliminary to a proposed judicial proceeding in which Lovell was to participate as counsel? Next, did the statements have some relation to the proceeding? In Selby, we focused on the meaning of \u201cpreliminary to a proposed judicial proceeding\u201d and quoted from subsection (e) of the Commentary to section 586:\nAs to communications preliminary to a proposed judicial proceeding the rule stated in this Section applies only when the communication has some relation to a proceeding that is contemplated in good faith and under serious consideration. The bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered.\nHaving reviewed the affidavits of Mrs. McKee and appellee Lovell, we have no difficulty in concluding that their discussions relating to a malpractice action against Pinkston reflected \u201ca proceeding that is contemplated in good faith and under serious consideration.\u201d\nWhether all the statements made by Lovell had some relation to the proceeding is of some concern, however. Our discussion in Selby provided the key. We said, \u201cAlthough the privilege is absolute where it applies, we consider it to be a privilege narrowed closely by the \u2018relevancy\u2019 and \u2018pertinency\u2019 requirements.\u201d Selby at 495. In this regard, subsection (c) of the Commentary to section 586 provides:\nRelation of statement to proceedings. The privilege stated in this Section ... is available only when the defamatory matter has some reference to the subject matter of the proposed or pending litigation, although it need not be strictly relevant to any issue involved in it. Thus the fact that the defamatory publication is an unwarranted inference from the evidence is not enough to deprive the attorney of his privilege .... [T] he privilege does not cover the attorney\u2019s publication of defamatory matter that has no connection whatever with the litigation.\nThe most troublesome question is as to whether Lovell\u2019s statements concerning Pinkston\u2019s testimony at an unrelated criminal proceeding had any relation to Mrs. McKee\u2019s concerns about Pinkston\u2019s ability to handle her affairs. The dominant theme of Mrs. McKee\u2019s visits to attorney Lovell dealt with Pinkston\u2019s competency as an attorney. It was that issue which suggested a possible malpractice action and which prompted Lovell\u2019s comments about Pinkston\u2019s prior statements under oath. Hence, while Lovell\u2019s comments may not have been \u201cstrictly relevant\u201d to some identifiable issue in the proposed malpractice suit, we cannot say that there was \u201cno connection whatever.\u201d\nAccordingly, we find no error in the trial court\u2019s dismissal of the suit on grounds that, as a matter of law, Lovell\u2019s statements were either privileged or barred by the applicable limitations period.\nINADMISSIBLE DOCUMENTS\nRule 56(c) provides that the motion for summary judgment shall be served at least 10 days before the time fixed for the hearing, and \u201c [t] he adverse party, prior to the day of hearing, may serve opposing affidavits.\u201d (Emphasis ours.) Pinkston sought to introduce several documents during the hearing on Lovell\u2019s motion for summary judgment. The record contains the proffered exhibits. We have reviewed them and do not find that their introduction would have altered the outcome of the proceedings. We find no abuse of discretion by the trial court in ruling that the materials should not be admitted for failure to comply with Rule 56(c).\nAffirmed.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Reuben \u201cJay\u201d Pinkston, pro se.", "Baxter, Eisele, Duncan & Jensen, for appellee." ], "corrections": "", "head_matter": "R.C. PINKSTON, Jr. v. John F. LOVELL, Jr.\n88-67\n759 S.W.2d 20\nSupreme Court of Arkansas\nOpinion delivered October 24, 1988\nReuben \u201cJay\u201d Pinkston, pro se.\nBaxter, Eisele, Duncan & Jensen, for appellee." }, "file_name": "0543-01", "first_page_order": 571, "last_page_order": 578 }