Rebecca Nichols v. James Swindoll and Chuck Gibson

Cite as 2022 Ark. App. 399ARKANSAS 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, 2022 Ark. App. 233. 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., 2019 Ark. 356, 589 S.W.3d 350; Rhodes v. Kroger
Co., 2019 Ark. 174, 575 S.W.3d 387. 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, 104 Ark. App. 364, 292 S.W.3d 856 (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.
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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,
101 Ark. App. 230, 274 S.W.3d 339 (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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