{ "id": 1906089, "name": "Thomas GOLDSBY, Jr., Sandra Goldsby, and Mid-South Mortgage Company v. Lindsey FAIRLEY", "name_abbreviation": "Goldsby v. Fairley", "decision_date": "1992-05-18", "docket_number": "92-13", "first_page": "380", "last_page": "385", "citations": [ { "type": "official", "cite": "309 Ark. 380" }, { "type": "parallel", "cite": "831 S.W.2d 142" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 16-56-126", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "284 Ark. 5", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878581 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/284/0005-01" ] }, { "cite": "297 Ark. 617", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891357 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/297/0617-01" ] }, { "cite": "297 Ark. 472", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891425 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/297/0472-01" ] }, { "cite": "283 Ark. 148", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879991 ], "weight": 4, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/283/0148-01" ] }, { "cite": "307 Ark. 87", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902387 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0087-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-56-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 } ], "analysis": { "cardinality": 465, "char_count": 8247, "ocr_confidence": 0.888, "pagerank": { "raw": 4.121116194339376e-07, "percentile": 0.9104291408495244 }, "sha256": "6b0fd8a19476000e3a9bb127ac4141d52e3dae2ba095b1d1557b9cf75471ae87", "simhash": "1:9bfed755536433f8", "word_count": 1343 }, "last_updated": "2023-07-14T19:13:54.665869+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Thomas GOLDSBY, Jr., Sandra Goldsby, and Mid-South Mortgage Company v. Lindsey FAIRLEY" ], "opinions": [ { "text": "Tom Glaze, Justice.\nThis appeal involves the procedural question of whether the appellants\u2019 cause of action against appellee for attorney negligence was barred by the three-year statute of limitations. The trial court granted attorney Lindsey Fairley\u2019s motion for summary judgment on the basis that the appellants\u2019 cause of action was barred by the statute of limitations. Appellants argue that the trial court erred in holding that the attorney\u2019s negligence accrued at the time of the negligent act and in holding that appellants\u2019 initial chancery action had not tolled the running of the statute of limitations. We affirm the summary judgement.\nThe following facts are relevant. Appellants Thomas and Sandra Goldsby owned certain lands in St. Francis County which were mortgaged to the Equitable Life Insurance Society of the Unites States (Equitable). In 1978, the Goldsbys contacted Fairley to handle the selling of this land. The land was sold in three different parcels to a corporation, Triple G. Investments. Attorney Fairley prepared warranty deeds on two of the parcels on March 1, 1979, and a warranty deed for the third parcel on June 2, 1980. The Goldsbys allege that Fairley represented to them that they had a first lien on the lands and that the first mortgage in favor of Equitable had been released.\nIn 1985, Thomas Goldsby wanted to liquidate his interest in the note and had a real estate agent, Robert McGinnis\u2019 check with Fairley to make sure he had good title. On January 21,1985, Fairley wrote McGinnis a letter reflecting that title in all three parcels was vested in Triple G Investments; his letter made no mention of Equitable\u2019s mortgage. Thomas Goldsby then worked out a deal with First Commercial Bank where Goldsby would assign the Triple G note to First Commercial in complete satisfaction of indebtedness in the amount of $439,131.00. Before the deal was closed, First Commercial discovered that Equitable had a first lien on the lands and backed out of the deal. Equitable then filed a foreclosure complaint against Triple G and the Goldsbys in St. Francis Chancery Court. On June 19, 1987, the Goldsbys filed a third-party complaint against Fairley, alleging attorney malpractice. This third-party complaint was dismissed without prejudice on May 27,1988. On September 19,1988, the Goldsbys filed an action against Fairley in the Crittenden County Circuit Court, and the trial judge ruled that this action was barred by the statute of limitations.\nUndisputedly, the three-year statute of limitations applies to actions against attorneys for negligence. Ark. Code Ann. \u00a7 16-56-105 (1987). The question is when did the Goldsbys\u2019 cause of action accrue. Appellants contend that their cause of action accrued in December 1985 because that is when they sustained damages from Fairley\u2019s negligence. In other words, appellants had a deal with First Commercial based upon Fairley\u2019s January 21,1985 \u201ctitle opinion letter,\u201d but the deal fell through in December 1985 when the bank discovered Equitable\u2019s lien on the lands.\nSome jurisdictions apply the \u201cdate of injury\u201d rule when determining when a cause of action for attorney negligence accrues. See generally Note, Professional Malpractice \u2014 Limitation of Actions, 13 UALR L. J. 115 (1990); 7 Am. Jur. 2d Attorneys At Law \u00a7 221 (1980). But, 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 concealment of the wrong, when the negligence occurs, not when it is discovered by the client. 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 this court has noted that 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. Riggs, 283 Ark. 148, 671 S.W.2d 756.\nAppellants rely on language contained in Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989), to suggest that this court has recognized the \u201cdate of injury\u201d approach. We thoroughly disagree. In that case, Stroud\u2019s attorney failed to file his client\u2019s response to a writ of garnishment, and as a result, Stroud was held liable on the garnishment by default judgment. However, upon Stroud\u2019s attorney\u2019s motion, the default judgment was set aside nunc pro tunc by court order dated December 4,1984. This order was in effect until it was reversed by the court of appeals on February 19, 1986, at which time the judgment creditor sought execution of the default judgment. Stroud subsequently filed a legal malpractice action against his attorney on December 18, 1986. While we recognized the rule that the statut\u00e9 of limitations begins to run when the act of malpractice occurs, we held that the running of the statute of limitations was tolled when the default judgment was set aside because during that time Stroud had no malpractice claim against his attorney and therefore could show no injury.\nIn the present case, appellants\u2019 cause of action for malpractice against their attorney accrued in 1980 and never ceased. In other words, unlike in Stroud, the appellants were not prevented for a period of time from beginning their cause of action against their attorney. Thus, we conclude that Stroud is not applicable to the present facts and does not stand for the proposition that Arkansas has adopted the \u201cdate of injury\u201d approach to determining when a cause of action for attorney negligence accrues. Under the facts of this case, we conclude the cause of action for attorney malpractice against Fairley accrued in March of 1979 and June of 1980, when he first warranted good title in the properties, indicating Equitable had no lien interest in them.\nEven if we accepted appellants\u2019 suggestion that the January 21, 1985 date of Fairley\u2019s \u201ctitle opinion letter\u201d started the running of the three-year statute of limitations, their cause of action is still barred. In sum, the appellants\u2019 third-party complaint filed on June 19,1987 never mentioned Fairley\u2019s letter, nor their theory that Fairley\u2019s negligence accrued in 1985.\nIn making a determination on application of statute of limitations, the court looks to the complaint itself. O\u2019Bryant v. Horn, 297 Ark. 617, 764 S.W.2d 445 (1989). Arkansas is a fact pleading state; we do not recognize notice pleadings. Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all averments of material matter. ARCP Rule 9(f). In addition, pleadings are to be drafted in such a manner as to give a party fair notice of what the claims and the grounds upon which it is based. ARCP Rule 8; Newbern, Arkansas Civil Practice and Procedure, \u00a7 8-2 (1985).\nIn appellants\u2019 1987 third-party complaint, the dates March 1979 and June 1980 are mentioned but not the January 21,1985 date. Without the 1985 date, the complaint and its cause of action filed in 1987 was well outside three years after the negligence occurred in 1980. Fairley\u2019s January 21, 1985 letter was never mentioned until appellants filed their new complaint in circuit court on September 19, 1988. Under the theory of their second complaint, appellants\u2019 cause of action was again outside the period of limitations by about eight months.\nWe briefly mention the appellants\u2019 suggestion that the savings statute, Ark. Code Ann. \u00a7 16-56-126 (1987), is relevant to this case. The savings statute plainly provides that the action must be commenced within the time limits of the statutes of limitations. Since the appellants\u2019 action was not brought within the three-year statute of limitations, the savings statute is inapplicable.\nFor the reasons stated above, we affirm.", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Butler, Hickey & Long, by: Fletcher Long, Jr., for appellants.", "Snell grove, Laser, Langley & Lovett, by: Glenn Lovett, Jr., for appellee." ], "corrections": "", "head_matter": "Thomas GOLDSBY, Jr., Sandra Goldsby, and Mid-South Mortgage Company v. Lindsey FAIRLEY\n92-13\n831 S.W.2d 142\nSupreme Court of Arkansas\nOpinion delivered May 18, 1992\nButler, Hickey & Long, by: Fletcher Long, Jr., for appellants.\nSnell grove, Laser, Langley & Lovett, by: Glenn Lovett, Jr., for appellee." }, "file_name": "0380-01", "first_page_order": 404, "last_page_order": 409 }