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Chapman v. Alexander

Supreme Court of Arkansas
Oct 28, 1991
307 Ark. 87 (Ark. 1991)

Summary

upholding limitations period in legal malpractice actions

Summary of this case from Davis v. Parham

Opinion

No. 91-33

Opinion delivered October 28, 1991

1. LIMITATION OF ACTIONS — MALPRACTICE ACTIONS — TRADITIONAL RULE APPLIED — COURT DECLINED TO CHANGE RULE. — The court applied the traditional rule, applicable since 1877, that the statute of limitations applicable to malpractice actions began to run, in the absence of concealment of the wrong, when the last element essential to the cause of action occurred, and not when the negligence was discovered; any change, especially a retroactive one, will have to be made by the legislature. 2. STATUTES — EFFECT OF LEGISLATIVE SILENCE. — Legislative silence after 114 years gives rise to an arguable inference of acquiescence or passive approval of our construction of the statute.

Appeal from Pulaski Circuit Court; Perry V. Whitmore, Judge; affirmed.

Gill and Elrod, by: Victor A. Fleming, for appellant.

Barber, McCaskill, Amsler, Jones Hale, P.A., by: Stephen Bingham, for appellee.


In June of 1986, Hubert Alexander, an attorney, represented Jerry Chapman in the sale of a business. In July of 1990, more than three (3) years after the sale had been completed, Chapman sued Alexander for an alleged act of legal malpractice which concealed the negligent act. Chapman did not allege Alexander concealed the negligent act. Alexander pleaded the statute of limitations as a bar to the action. The trial court granted summary judgment in favor of Alexander. We affirm the summary judgment.

Since 1877, it has been our rule that the statute of limitations applicable to a malpractice action begins to run, in the absence of concealment of the wrong, when the negligence occurs, and not when it is discovered. Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). Appellant Chapman acknowledges our long line of cases so holding and that they constitute the "general rule." Even so, he asks us to abandon the general rule and retroactively adopt one of the "current trend" cases. Those cases primarily adopt one of three (3) approaches. First, is the "discovery rule." Under this approach, the statute of limitations does not begin to run until the negligent act is discovered or should have been discovered. Second, is the "date of injury" rule. Under this view, the statute of limitations begins to run, not from the occurrence of the negligent act, but rather from the time damage resulted from the negligent act. Third, is the "termination of employment" rule. Under it, the statute of limitations does not begin to run until the attorney-client, doctor-patient, or other professional-client relationship has ended. See Annotation, When Statute Of Limitations Begins To Run Upon Action Against Attorney For Malpractice, 32 A.L.R. 4th 260 (1984). Some of the aforementioned "rules" are based upon statutes rather than case law. See id. at 266-67.

In ordinary tort and contract actions, the statute of limitations begins to run upon the occurrence of the last element essential to the cause of action. This is also the case under our traditional rule. The "other rules" postpone the running of the statute of limitations in professional malpractice, that is, give the client a longer period of time in which to sue, because of the special nature of the relationship between the professional and his client. While each of the other approaches has some appeal, we found the most meritorious of the other rules to be the "discovery rule" adopted by the Supreme Court of California Neel v. Magana, 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421 (1971). Still we do not abandon our traditional rule and adopt the "discovery rule."

Our traditional rule has a countervailing fairness about it. First, everyone is treated in the same manner. Second, an abstractor, accountant, architect, attorney, escrow agent, financial advisor, insurance agent, medical doctor, stockbroker or other such person will not be forced to defend some alleged act of malpractice which occurred many years ago. The problem with the delay is that his or her records or witnesses may no longer be available. For example, in the oral argument of this case, it was developed that under the "discovery rule" an attorney could be forced to defend the validity of a mortgage 25 to 30 years after the preparation of the instrument, long after his records and witnesses are no longer available.

If this case were limited to deciding which rule was the most fair it would be a much closer case, but there is a good deal more to the issue. In a case identical to the one now at bar, we wrote:

Counsel for the appellants concede that it has long 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. White v. Reagan, 32 Ark. 281, (1877); Wright v. Langdon, 274 Ark. 258, 623 S.W.2d 823 (1981). The same rule applies to an action brought against an abstractor for damages resulting from an omission in the abstract of title. St. Paul Fire Marine Ins. Co. v. Crittenden Abstract Title Co., 255 Ark. 706, 502 S.W.2d 100 (1973). Counsel argue that we should overrule our prior cases, because an injustice occurs when the statute has run before the error is discovered. That may be true, but a countervailing consideration is that the contrary rule would permit the plaintiff to bring suit many years after the damage had actually occurred and at a time when witnesses might no longer be available. 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, not retrospectively by the courts. [Emphasis added.]

Riggs v. Thomas, 283 Ark. 148, 149, 671 S.W.2d 756, 757 (1984).

In another identical case, with the exception that it involved an accountant, we wrote:

Our decisions have settled this limitation question in professional malpractice actions, and our rule is considerably more restrictive than any of the cases cited and relied on by appellant. In Arkansas malpractice cases, concerning attorneys and physicians, we have consistently held that the statute of limitations begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when it is discovered. Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989); Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988); Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). In fact, Arkansas courts have followed this rule, as it pertains to professional malpractice actions, for well over one hundred years. See White v. Reagan, 32 Ark. 281 (1877) (quoting from Howell v. Young, 5 Barn. Cress. 259). That being so, we see no compelling reason why we should adopt a different rule to be used in accounting malpractice cases. Accordingly, since appellee's erroneous advice or negligent conduct occurred in August 1974, appellants' suit filed on September 8, 1981, was clearly beyond the three-year limitation statute. We observed in Riggs v. Thomas, supra, that if such a marked change is to be made in statutes that have long been the law, it should be done by the legislature, not the courts. [Emphasis added.]

Ford's Inc. v. Russell Brown Co., 299 Ark. 426, 773 S.W.2d 90, 92-93 (1989).

We have made it clear that we are not going to retroactively change our rule, and that, if it is to be changed, that change must come from the General Assembly. It would be incongruous for us, rather than the legislature, to now change it. More importantly, the issue one of statutory construction and, since 1877, we have construed our statute under the "traditional rule." Legislative silence after such a long period gives rise to an arguable inference of acquiescence or passive approval of our construction of the statute. Actually, we find an even stronger legislative approval. In 1979 the General Assembly amended the medical malpractice statute to provide: "The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time." The statute further provides that the above sentence shall control unless the doctor conceals a foreign substance in the patient's body, and then the statute of limitations begins to run when the foreign substance is discovered or should have been discovered. Ark. Code Ann. 16-114-203 (b) (1987). This legislative expression in the medical malpractice statute is consistent with the way we have long construed the malpractice statute of limitations. We can only conclude we are interpreting the statute as the Legislature intends.

There is yet another significant reason we do not retroactively adopt the "discovery rule," "date of injury rule," or "termination of employment rule." Many abstractors, accountants, architects, attorneys, and other similar professionals surely have relied on our traditional and longstanding rule. In doing so, they had no reason to keep records for longer than three (3) years. As a consequence, if we retroactively changed the rule, they might easily have no materials to use in their defense. Similarly, most professional people insure themselves against malpractice suits. The terms of malpractice insurance policies may have changed over the last 25 years, so that a professional person who was insured years ago might not be covered today under a retroactive application of the statute of limitations. The General Assembly is best suited to hold hearings on such issues and determine whether a change, if any, should be made and whether it should be made retroactively, prospectively from the date of the change, or prospectively from some future date which would give all professional people time to acquire adequate insurance under a different statute of limitations.

Accordingly, we decline to retroactively overrule our cases construing the statute of limitations in malpractice actions. Affirmed.

BROWN, J., not participating.


Summaries of

Chapman v. Alexander

Supreme Court of Arkansas
Oct 28, 1991
307 Ark. 87 (Ark. 1991)

upholding limitations period in legal malpractice actions

Summary of this case from Davis v. Parham

upholding limitations period in legal malpractice actions

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rejecting termination of employment rule to avoid having individuals defend themselves from stale malpractice claims with the possibility that records or witnesses may no longer be available, and deeming a change in the statute of limitations rule more appropriate for legislative action

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discussing policy considerations in malpractice cases; "[t]he problem with delay is that [the defendant's] records or witnesses may no longer be available"

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stating that it would be "incongruous" for the court, rather than the legislature, to now change its application of the statute of limitations

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In Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991), which was a legal malpractice case, the court twice listed professionals against whom the statute of limitations would begin to run in a professional malpractice claim when the negligent act occurred, and in both instances, architects were listed.

Summary of this case from Sentell v. RPM Management Company, Inc.

In Chapman, the Supreme Court of Arkansas listed architects, along with contractors, accountants, attorneys, and other professionals who, because of the rule that the statute of limitations begins to run when the negligence occurs, "will not be forced to defend some alleged act of malpractice which occurred many years ago" and who "surely have relied on our traditional and longstanding rule."

Summary of this case from Sentell v. RPM Management Company, Inc.

stating that in ordinary tort actions, the statute of limitations begins to run upon the occurrence of the last element essential to the cause of action

Summary of this case from Efird v. King

noting "[l]egislative silence after such a long period gives rise to an arguable inference of acquiescence or passive approval"

Summary of this case from Tomey v. S. Farm Bureau Cas. Ins. Co.

In Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991), this court stated that it has been the rule since 1877 that the statute of limitations applicable to malpractice actions begins to run, in the absence of concealment of the wrong, when the negligence occurs, and not when it is discovered.

Summary of this case from Stoltz v. Friday

In Chapman, we noted that one "current trend" in such actions is the "termination of employment" rule, which provides that the statute of limitations does not begin to run until the attorney-client, doctor-patient, or other professional-client relationship has ended.

Summary of this case from Stoltz v. Friday

In Chapman, we discussed the "current trend" cases from other jurisdictions, which have adopted several approaches more favorable to the injured party — the "discovery rule," the "date of injury rule," and the "termination of employment rule."

Summary of this case from Flemens v. Harris

In Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991), we made it clear that the limitation period begins to run in malpractice cases upon the occurrence of the last element essential to the cause of action.

Summary of this case from Wright v. Compton, Prewett, Thomas Hickey

In Chapman, our supreme court explained the application of the commencement of the SOL in legal malpractice (negligence) actions, stating that it is when the negligent act occurs and not when it is discovered; it declined to adopt the "discovery rule" or "date of injury rule."

Summary of this case from Hill v. Hartness

stating that in ordinary tort and contract actions, the statute of limitations begins to run upon the occurrence of the last element essential to the cause of action

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In Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991), the Arkansas Supreme Court specifically enumerated abstracters in its list of professionals which were affected by its decision whether to apply the discovery rule to professional malpractice cases.

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Case details for

Chapman v. Alexander

Case Details

Full title:Jerry C. CHAPMAN v. Hubert ALEXANDER

Court:Supreme Court of Arkansas

Date published: Oct 28, 1991

Citations

307 Ark. 87 (Ark. 1991)
817 S.W.2d 425

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