{ "id": 1655526, "name": "Donald L. DUNN and Joe Cloud v. Craig WESTBROOK and Mitchell, Williams, Selig, Gates and Woodyard", "name_abbreviation": "Dunn v. Westbrook", "decision_date": "1998-07-09", "docket_number": "97-1218", "first_page": "83", "last_page": "87", "citations": [ { "type": "official", "cite": "334 Ark. 83" }, { "type": "parallel", "cite": "971 S.W.2d 252" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "327 Ark. 577", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922578 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "581" }, { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/ark/327/0577-01" ] }, { "cite": "279 Ark. 294", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1746948 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/279/0294-01" ] }, { "cite": "316 Ark. 69", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907772 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "71" }, { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/ark/316/0069-01" ] }, { "cite": "321 Ark. 210", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449556 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "213" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ark/321/0210-01" ] }, { "cite": "323 Ark. 188", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445774 ], "weight": 5, "year": 1996, "pin_cites": [ { "page": "196" }, { "page": "289" }, { "page": "p. 558" }, { "page": "pp. 561-62" } ], "opinion_index": 0, "case_paths": [ "/ark/323/0188-01" ] }, { "cite": "329 Ark. 367", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236182 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "373" }, { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/ark/329/0367-01" ] }, { "cite": "330 Ark. 802", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298637 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "807" }, { "page": "702" } ], "opinion_index": 0, "case_paths": [ "/ark/330/0802-01" ] }, { "cite": "323 Ark. 757", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445719 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "763" }, { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/ark/323/0757-01" ] }, { "cite": "309 Ark. 380", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906089 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "383" }, { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/ark/309/0380-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-56-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "315 Ark. 213", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910456 ], "weight": 2, "year": 1993, "opinion_index": 1, "case_paths": [ "/ark/315/0213-01" ] }, { "cite": "309 Ark. 380", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906089 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark/309/0380-01" ] } ], "analysis": { "cardinality": 505, "char_count": 8063, "ocr_confidence": 0.741, "pagerank": { "raw": 2.870616971827673e-07, "percentile": 0.842777513283593 }, "sha256": "070d0cb67c7de0adf99e6eb2ff15e944a5a45489fca14bb961d436d308a43f14", "simhash": "1:ff500db517479a44", "word_count": 1352 }, "last_updated": "2023-07-14T20:44:18.632081+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze and Brown, JJ., concur.", "Brown, J., joins this opinion." ], "parties": [ "Donald L. DUNN and Joe Cloud v. Craig WESTBROOK and Mitchell, Williams, Selig, Gates and Woodyard" ], "opinions": [ { "text": "David Newbern, Justice.\nThis is a legal-malpractice case. Drs. Donald L. Dunn and Joe Cloud, the appellants, were partners in a medical practice with Dr. Larry Battles. Attorney Craig Westbrook, the appellee, prepared a partnership agreement for the doctors in 1991 and made revisions to it on July 8, 1993. Dr. Battles sued Drs. Dunn and Cloud after they expelled him from the practice in 1995. Drs. Dunn and Cloud paid Dr. Battles $200,000 to settle the matter and then brought a malpractice action against Mr. Westbrook and his law firm, Mitchell, Williams, Selig, Gates & Woodyard (\u201cMitchell Firm\u201d).\nThe complaint, filed on July 5, 1996, alleged that Mr. West-brook was negligent for failing to include in the partnership agreement a \u201cbuy-out provision\u201d allowing members of the partnership to expel a fellow member and purchase his partnership interest upon set terms. Drs. Dunn and Cloud alleged that the cost of removing Dr. Battles from the practice would have been less had the buy-out provision been included. The Trial Court granted summary judgment to Mr. Westbrook and the Mitchell Firm on the ground that the complaint was filed beyond the three-year limitations period prescribed by Ark. Code Ann. \u00a7 16-56-105 (1987). We affirm.\nAs this is a legal-malpractice action, Ark. Code Ann. \u00a7 16-56-105 is the applicable statute of limitations. The statute requires a claim for malpractice to be filed within three years of \u201cwhen the negligence occurs.\u201d Goldsby v. Fairley, 309 Ark. 380, 383, 831 S.W.2d 142, 143 (1992). In their complaint, Drs. Dunn and Cloud alleged two separate \u201coccurrences\u201d of negligence. They first alleged that Mr. Westbrook was negligent in 1991 when he drafted the partnership agreement without including a buy-out provision. The complaint asserting that claim was filed on July 5, 1996, well beyond the three-year limitations period. Therefore, under \u00a7 16-56-105, Mr. Westbrook and the Mitchell Firm were entitled to summary judgment on the claim that Mr. Westbrook committed legal malpractice in 1991.\nDrs. Dunn and Cloud also alleged that Mr. Westbrook was negligent on July 8, 1993, when he revised the partnership agreement without including a buy-out provision. Thus, the complaint, filed on July 5, 1996, was timely in relationship to this second alleged \u201coccurrence\u201d of negligent conduct on Mr. West-brook\u2019s part. We therefore agree with Drs. Dunn and Cloud that \u00a7 16-56-105 did not entitle Mr. Westbrook and the Mitchell Firm to summary judgment on the separate claim that Mr. Westbrook committed legal malpractice on July 8, 1993.\nWe hold, however, that summary judgment on the claim pertaining to Mr. Westbrook\u2019s revising of the agreement in 1993 was properly granted for a different reason. As we have often said, \u201cwe will affirm the trial court where it reaches the right result, even though it may have announced the wrong reason.\u201d Marine Servs. Unlimited, Inc. v. Rakes, 323 Ark. 757, 763, 918 S.W.2d 132, 134 (1996). See Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802, 807, 957 S.W.2d 700, 702 (1997); Nettleton Sch. Dist. v. Owens, 329 Ark. 367, 373, 948 S.W.2d 94, 97 (1997). Here, even if \u00a7 16-56-105 did not bar the doctors\u2019 claim that Mr. Westbrook was negligent for failing to add the buy-out provision to the partnership agreement in the course of revising it in 1993, summary judgment was nonetheless proper on that claim because Mr. West-brook owed no duty to his clients in 1993 to render that particular service.\nAs commentators have observed, \u201can attorney cannot be negligent for failing to do what there was no duty to undertake.\u201d 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice \u00a7 8.2, at p. 556 (4th ed. 1996). \u201cIf no duty of care is owed, the negligence count is decided as a matter of law, and summary judgment is appropriate.\u201d Smith v. Hansen, 323 Ark. 188, 196, 914 S.W.2d 285, 289 (1996). See also First Commercial Trust Co. v. Lorcin Eng\u2019g, Inc., 321 Ark. 210, 213, 900 S.W.2d 202, 203 (1995); Lawhon Farm Supply, Inc. v. Hayes, 316 Ark. 69, 71, 870 S.W.2d 729, 730 (1994); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983).\nWe have admittedly few statements in our decisions describing in detail the duty owed by an attorney to his client. In very general terms, we have said that the attorney\u2019s duty is \u201cto exercise reasonable diligence and skill on behalf of the client.\u201d Pugh v. Griggs, 327 Ark. 577, 581, 940 S.W.2d 445, 447 (1997). According to the commentators, \u201c[t]he liability of the attorney depends on whether a duty was breached that was reasonably within the scope of the employment.\u201d Mallen & Smith, supra, at p. 558. The agreement, if any, and the \u201csubject matter of the retention\u201d are relevant in determining the existence or scope of the duty. Id. In addition, a duty may be implied: \u201cThe basic principle of an implied duty is that an attorney should do all things reasonably necessary to fulfill the objective of the employment.\u201d Id. at p. 559.\nThe undisputed facts in this case show that Mr. Westbrook was retained in late 1990 to draft the doctors\u2019 partnership agreement. The agreement was then executed in 1991. Over two years later, an accountant associated with the doctors\u2019 practice requested Mr. Westbrook to revise the partnership agreement, for tax-relief purposes, to reflect that the individual doctors, rather than the partnership, owned a life-insurance policy. Mr. West-brook completed that task on July 8, 1993. There is no dispute that Mr. Westbrook \u2014 both prior to the time that he drafted the partnership agreement in 1990-91, and prior to the time that he revised it in 1993 \u2014 was not requested by the doctors to include a buy-out provision in the partnership agreement.\nOn these facts, we cannot say that Mr. Westbrook owed any duty to Drs. Dunn and Cloud to add a buy-out provision to the partnership agreement in the course of revising it in 1993. Over two years had passed from the time of the agreement\u2019s initial drafting to the time that it was revised. Not once did Drs. Dunn and Cloud suggest to Mr. Westbrook that the agreement was incomplete or unsatisfactory in any way. The revision that Mr. Westbrook was requested to make in 1993 pertained only to the insurance policy mentioned above. The doctors did not direct Mr. Westbrook to review the entire agreement. Thus, although Mr. Westbrook might have been under a duty at the time of the agreement\u2019s initial drafting to include a buy-out provision, even in the absence of a specific request from his clients, we cannot say that such a duty existed in 1993 when his assigned task was merely to revise the agreement for the purpose of clarifying the ownership of a life-insurance policy.\nWe note in closing that courts in some jurisdictions have recognized a \u201cperipheral duty\u201d in the context of legal-malpractice cases. See Mallen & Smith, supra, at pp. 561-62. According to those courts\u2019 decisions, an attorney may have a duty to provide certain services to his client even \u201cif neither the lawyer nor the client intended the matter to be within the scope of the retention.\u201d Id. at p. 561. Drs. Dunn and Cloud neither cite those decisions nor urge us to adopt a \u201cperipheral duty\u201d rule. We therefore decline to adopt such a rule in this case. The question whether we should adopt the \u201cperipheral duty\u201d rule remains an open one, however, and we will reserve judgment on that issue until it is squarely before us.\nAffirmed.\nGlaze and Brown, JJ., concur.", "type": "majority", "author": "David Newbern, Justice." }, { "text": "Tom Glaze, Justice,\nconcurring. I agree with the majority opinion, but do so solely on the rationale contained in Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1982), and Wright v. Compton, Prewitt, Thomas & Hickey, 315 Ark. 213, 866 S.W.2d 387 (1993).\nBrown, J., joins this opinion.", "type": "concurrence", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Timothy O. Dudley, for appellants.", "Barber Law Firm, by: Robert L. Henry, III, for appellees." ], "corrections": "", "head_matter": "Donald L. DUNN and Joe Cloud v. Craig WESTBROOK and Mitchell, Williams, Selig, Gates and Woodyard\n97-1218\n971 S.W.2d 252\nSupreme Court of Arkansas\nOpinion delivered July 9, 1998\n[Petition for rehearing denied September 10, 1998.]\nTimothy O. Dudley, for appellants.\nBarber Law Firm, by: Robert L. Henry, III, for appellees." }, "file_name": "0083-01", "first_page_order": 109, "last_page_order": 113 }