*1 104 care, hospital’s the extent was to prove relevant
provide HMO as to when the determinations the doctors’ control over Medi-Stat, See As the supra. discharged. be should patients abuse of discretion we discern no agency dispute, issue new trial. the denial of the motion Affirmed. Maidlene Harvison CHARLES
James HARVISON and ASSOCIATES, INC., Davis & AND E. DAVIS a/k/a P.A., Jeff Watson Associates, E. Davis and H. Charles 284 S.W.2d 91-286 Court Arkansas Supreme 29, 1992 delivered June Opinion *3 Bowman, Firm, R. Gregory appellants. Arens Law by: Davis, E. B. Cox and Tim & Walter Wright, by: Cox Howell, for appellees. James and Justice. Appellants, Corbin, L.
Donald Harvison, Circuit Washington an order of Maidlene appeal their com- dismissing and entering judgment Court conversion, fraud, legal and malpractice plaint Associates, Inc., Davis & E. and Charles Davis appellees, a/k/a P.A., Davis, Associates, E. and Jeff H. Watson. Charles and of action arose from Davis’ allege their causes drafting in the of the Harvisons Watson’s representation six contract. The Harvisons assert enforcement of a land sales below, of which concern their in the all of error points proceedings error and affirm. We find no legal claim for malpractice. com- Davis and Watson alleged The Harvisons’ complaint of their land rather a foreclosure by obtaining mitted malpractice for them. the land following than their instructions repossess on the judgment grounds moved for summary Davis and Watson was not but forfeiture achieve they attempted an Harvisons. The trial court entered an available to the of material fact and there was no issue concluding genuine order a matter of were entitled to as judgment that Davis and Watson law. first, second, and fourth Harvisons’
We address the
the same
together
essentially
of error
are
assignments
— that the trial court erred in
argument
granting summary
because
judgment
Davis Watson did not meet their burden of
an absence of a
showing
genuine issue material fact or that review,
were entitled to
as a matter
of law. On appellate
we need
to decide if the
only
granting
summary judgment
based on whether the
appropriate
items
evidentiary
presented by
the moving
of the motion left
party
support
a material question
Co.,
of fact
154, 818
unanswered. Nixon v. H & C Elec.
307 Ark.
S.W.2d 251 (1991). The burden of sustaining a motion for
summary judgment is
always
responsibility
moving
Center, Inc.,
Cordes v.
party.
Outdoor Living
301 Ark.
S.W.2d 31 (1989). All
submitted
proof
must be viewed in a light
most favorable to the
party resisting
motion and
doubts
any
and inferences must be resolved against
the moving party.
Reagan v. City
of Piggott,
The Harvisons hired Davis to draft the in contract question. They also hired Davis to handle the collection of the Howards’ occasions, default on two once in 1984 or 1985 again and in 1986. occasions, On both Davis advised the Harvisons of their right to enforce the forfeiture occasions, clause. On both the Harvisons chose Instead, not to seek a forfeiture. chose to they the accept Howards’ late and to payments under proceed the contract. The And the again, 1989. again in January
Howards defaulted handling the default. for advice on consulted Davis Harvisons Watson. to his associate the matter assigned Davis the latest concerning Watson The Harvisons consulted of to retake they wanted possession default and informed Watson 23, 1989, contract, on February land. the the As required them a letter notice to the Howards notifying Watson drafted in that the entire balance be demanding paid their default and twenty days. 22, 1989, the Watson informed dated March letter
By the back desired to make all up Harvisons that the Howards make in advance. The Harvisons and one payments payment accept that did not want to the Howards’ they instructed Watson clause of rather wanted to enforce the forfeiture payments, 10, 1989, filed a on the the contract. On Watson April complaint Court first a seeking in Washington Chancery Harvisons’ behalf contract, under in the forfeiture of the lands sold the and alternative, On a lien and foreclosure. October judgment order that the Howards stating the chancellor entered an that had an interest in the acquired equitable property a a sale of the to a third because abhors equity $115,000.00 order the for distributed party approved. received the balance from the sale so that Harvisons proceeds $24,801.48, including due them under principal, interest, costs, addition, were fees. In the proceeds and attorneys’ $72,594.75 totaling that income tax liens distributed so federal lien workers against the Howards’ interest and interest benefits of the Howards’ compensation were satisfied.
In
Davis and Watson
summary judgment,
their motion
as
argued
negligent
seeking
were not
foreclosure
not an
an
to forfeiture
forfeiture was
remedy
alternative
because
available
Harvisons. The
remedy
opposed
if
was not
motion
on
arguing,
they argue
appeal,
of their
actions
available
them it was
because
own
or
drafting
but
of Davis’ Watson’s
negligence
because
claim that a
enforcing the contract.
the Harvisons
Specifically,
*5
the
in a land
is enforceable unless
clause
sales contract
seller acts
as to waive
to forfeiture and that
right
appellees
so
the
in this
that waiver exists
case.
evidence
produce
did
their burden
met
of sus
clearly
Davis and Watson
evidence was
foregoing
the
The
taining
judgment.
either
Those
from facts which were not disputed
party.
recited
available
facts reveal
forfeiture was not
to
material
First, the Howards had
Harvisons for a number of reasons.
the
the
almost seven years
made
under
contract
payments
60% of the
The
amounting
purchase price.
approximately
whether
these
or
always accepted
payments,
timely
result,
the
filed
As a
time suit was
for the 1989
untimely.
default, the
had
interest in the
acquired
Howards
an equitable
abhor
of
equity
of
a forfeiture
the Howards’
property. Principles
circumstances,
interest under these
even when
equitable
the
for the
forfeiture.
expressly
right of
Humke v.
provides
Davis,
Taylor,
282 Ark.
The Harvisons too place great an on the emphasis issue of however, waiver. We do not ignore, argument their that Davis and Watson never informed them that conduct in their accepting late payments would amount to a of their waiver right forfeiture. Whether or not such a failure was a breach of Davis’ and Watson’s did duty, it not cause the Harvisons any damages because the trial court’s of the sale and approval denial of forfeiture was not based on entirely the Harvisons’ conduct in involved, late accepting There were other factors payments. most significant factor being liens property. chancellor these considered liens at the on the hearing motion. From the bench he stated his ruling as follows:
Gentlemen, I think all of in agreement are you *6 forfeiture clauses are and it’s to the proper, strictly up And, course, of Court. abhors a an old equity sometimes, maxim that or often called chancellors by when case, lien, In the occasion arises. this with this particular lien, lien, IRS against the I don’t think property, Judge in the State of Arkansas would allow a forfeiture any under those circumstances. I see no particular genuine fact, issue of material and I’m granting defendant summary judgment.
Thus, waiver, even in the absence of forfeiture would not have been a available to the Harvisons.
For the Harvisons to assert that should principles equity have awarded them of the repossession land now valued at $115,000.00 and allowed them to keep paid by contract, Howards under the while simultaneously ignoring Howards, Service, interests of the the Internal Revenue and Ron McCann, is to assert that should have been awarded a windfall at the complete expense other interests in the windfall, property. Principles would never award such a equity when especially with an presented opportunity to completely all satisfy interests the property.
Davis and Watson met their burden of establishing a lack of genuine issue of material fact and entitlement judgment as a matter of law. The Harvisons did not meet this proof genuine issue of material fact exists. Dillard v. Resolution Trust Corp., S.W.2d 387 (1992). Therefore, we cannot the trial court erred say in granting summary judgment. reversal,
As another point the Harvisons claim it was se for malpractice per Davis and Watson to not follow their instructions to retake the and to end the contract. Harvisons cite us to the Model Rules of Professional Conduct as that Davis and authority Watson committed not malpractice by their abiding clients’ objectives Rule representation, 1.2(a), clients, with consulting their Rule 1.2(e), or explaining them, the matter to 1.4(b). Rule argue also Davis They Watson violated Rule 1.4(a) by failing them informed of keep the status of the case.
Ill brief, is based in the Harvisons’ argument, This phrased Watson did not follow their that Davis and on the false premise and end the contract. Our to retake the property instructions and Watson followed the of the record reveals that Davis review Harvisons’ instructions precisely. *7 instead of to retake argue initiating steps
The Harvisons that the Watson wrote a demand letter to the Howards and property, unanswered, went filed a foreclosure when the demand letter action in This is not what occurred. It is true that equity. simply a demand to the Howards before taking Watson wrote letter steps however, the a to such demand was repossess property, required contract, the terms of the as well as The principles equity. was first in demand letter to seek a step required attempt unanswered, forfeiture. It is also true that when the demand went foreclosure; however, Watson filed a for complaint same first a A complaint requested forfeiture. foreclosure was re- as an alternative to forfeiture. quested only Davis and Watson followed the Harvisons’ instructions to retake the and end the A contract. for complaint court, forfeiture was filed and the trial rejected which instead approved foreclosure sale. The Harvisons received the balance due them under the in addition to attorneys’ fees and costs. The contract was ended. We are to unwilling say because Davis and Watson to but did not achieve attempted result the particular Harvisons requested, they committed mal practice se. per reversal,
As
another
yet
the Harvisons
point
claim
the chancellor’s affidavit was immaterial and the trial court’s
failure to strike it from the record was reversible error. The
chancellor who denied the Harvisons’
for forfeiture
request
sale,
approved the
John
Judge
Lineberger, did state in an affidavit
filed in
of the motion for
support
judgment that he
“would not
permit
under the facts of the case.”
However, nowhere in the record is it revealed that the Harvisons
asked the trial court to strike the chancellor’s affidavit from the
record before it.
now it
By
should be obvious that we do not
address
raised
Shamlin v.
arguments
for the first time on
appeal.
Shuffield, 302 Ark.
787 S.W.2d
(1990).
reversal,
As their final
the Harvisons
point
assert they
in
engage
gather
have been allowed to
discovery
should
information to rebut the facts asserted in the chancel-
necessary
56(f).
The Harvisons
on ARCP Rule
rely
lor’s affidavit.
Rule
is matter
granted by
56(f)
continuance
within the trial court’s discretion and a refusal to
such a
grant
will not be reversed absent an abuse of that discre
continuance
Lovell,
tion. Pinkston
In their the Harvisons reply ask us to strike the abstract in Davis’ and supplemental Watson’s brief because it fails to with Ark. Ct. R. in9 that it is a verbatim comply Sup. record, not written in the first reproduction person, *8 contains matters that are not to an necessary understanding of the questions abstract does presented. Appellees’ supplemental con tain verbatim reproductions of some of some of the paragraphs However, the pleadings. abstract is nine-page supplemental nowhere near the of an equivalent extensive verbatim reproduc See tion of the entire Taylor, Widmer 308-page transcript. 296 337, 756 S.W.2d Ark. (1988). There is no included testimony abstract, in the therefore supplemental there is no need for the See Rule abstract to be written in the first There person. 9(d). is in the nothing abstract that is not supplemental to an necessary understanding of the The questions presented. Harvisons’ request to strike the abstract is supplemental denied.
Affirmed.
Hays JJ., Brown, dissent. J., not participating. Newbern, Brown, Justice, Robert L. dissenting. agree cannot with I that it was that majority forfeiture was unavaila- undisputed ble to the On the the Harvisons parties. contrary, submitted an Coleman, affidavit from an attorney, Randy which stated that forfeiture was an available under the facts of this case. remedy That affidavit as clearly qualifies the Harvisons’ proof position regarding of fact material issue establishes just clearly forfeiture. might prohibit facts that any underlying issues. factual underlying were two such In this case there right waived their the Harvisons had The first was whether late contract payments. habitual receipt due to an Howards, late over eight there were payments to the (According the Howards The second was whether liens seven years.) $78,000 equitable which attached to Howards’ totalling forfeiture. The trial in the land somehow prohibited interest his decision on the lien issue and found that the judge premised forfeiture. this is so was not Why liens were decisive in preventing stated the court.
The Coleman affidavit in of the forfeiture support matters in Whether the underlying these factual places dispute. waived their to forfeiture is implicitly right clearly See, of fact that should have been resolved at trial. question e.g., Smith, 340, 640 (1980); Moore Ford Co. v. 270 Ark. S.W.2d 943 220, 662 (1984). Freeman v. S.W.2d 479 King, App. issue of the liens is more troublesome. that the liens did Assuming land, attach to the the land could still have been forfeited to the Harvisons and the liens satisfied them. This subsequently Harvisons, would have left title in the who stood to more gain than the balance of due to in the land’s price appreciation value. is, too,
There the issue of whether the communi- appellees cated with their clients. The conclusion that this is majority’s irrelevant since the Harvisons got everything wanted does not simply hold water. The Harvisons made it very clear their affidavit wanted the land back. they got What — *9 $21,000 the balance of the contract about costs and price plus fees. But with could have retained title and $55,000 benefitted from the land’s (from value appreciation $115,000 in seven and the years) potential greater apprecia- tion in the future. admit appellees did not communicate the
circuit court’s decision denying forfeiture and the sale approving to the third to their clients. the time that the Harvisons party By it, were made aware of if the land had been sold. Even you accept judge’s the trial conclusion that an right available the Harvisons still had the to retain the remedy, sale. That was denied right land and refuse a foreclosure them of lack of communication from the The trial appellees. because however, without judge, granted making a summary finding on this pivotal point. that, trial, following
It well be forfeiture would ulti- may be unavailable in this case. But when critical mately issues of fact resolved, case, remain to be as was the situation in clearly this is I justice would reverse for a trial on the inappropriate. merits.
Hays, J., joins. IRVIN, Irvin and Kenny Doug Mike Irvin v. Bernice
JONES
91-331
Supreme Arkansas delivered Opinion June