Rebecca Nichols v. James Swindoll and Chuck Gibson
2022 Ark. App. 233
| Ark. Ct. App. | 2022Background:
- Nichols suffered injuries in a tractor-trailer rollover in November 2014. The three-year limitations period for tort claims from that accident ran in November 2017.
- Nichols retained attorneys Swindoll and Gibson, who filed a negligence suit in September 2017 but failed to effect service on proper defendants within 120 days or obtain an extension; the underlying claim became time-barred.
- Nichols identified the attorneys' initial act of malpractice as January 19, 2018 (failure to obtain service/extension). The three-year limitations period for malpractice thus ran in January 2021.
- Nichols filed her malpractice complaint in February 2021 and an amended complaint in April 2021—after the three-year malpractice limitations period expired.
- Nichols alleged the attorneys fraudulently concealed their malpractice (wrongful silence; delayed disclosure), arguing concealment tolled the limitations period until March 2020 when she learned of an admitted error.
- The circuit court dismissed for failure to timely file and for failure to plead specific, furtive acts of fraudulent concealment; the Court of Appeals affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nichols's malpractice claim is time-barred by the three-year statute of limitations | Nichols: malpractice began Jan 2018, so limitations ran Jan 2021; her Feb/Apr 2021 filings were timely if tolling applied | Defendants: malpractice claim on its face is filed after three years and is barred | Held: Claim is time-barred; filings were after the limitations period absent tolling |
| Whether Nichols sufficiently pleaded fraudulent concealment to toll the limitations period | Nichols: attorneys knowingly concealed malpractice through wrongful silence and delay, tolling limitations until she discovered in Mar 2020 | Defendants: allegations are conclusory; no facts showing furtive, affirmative acts of concealment | Held: Pleading insufficient—no specific furtive/secret acts alleged; concealment not established, so tolling denied |
Key Cases Cited
- Delanno v. Peace, 366 Ark. 542 (fraud to toll limitations must be "furtively planned and secretly executed")
- Rice v. Ragsdale, 104 Ark. App. 364 (attorneys not automatically required to advise clients about running limitations once malpractice is revealed)
- Goldsby v. Fairley, 309 Ark. 380 (limitations begins to run upon occurrence of wrong absent concealment)
- Martin v. Arthur, 339 Ark. 149 (fraud suspends limitations until discovery by plaintiff)
- Shelton v. Fiser, 340 Ark. 89 (fraudulent concealment requires positive, furtive acts that keep cause of action hidden)
- Hutcherson v. Rutledge, 2017 Ark. 359 (to defeat limitations on motion to dismiss, plaintiff must allege specific fraudulent acts)
- Steinbuch v. Univ. of Arkansas, 2019 Ark. 356 (standard of review for dismissal is abuse of discretion)
- Hutchinson v. McArty, 2020 Ark. 190 (conclusory allegations insufficient in Arkansas fact-pleading system)