Rebecca Nichols v. James Swindoll and Chuck Gibson

Cite as 2022 Ark. App. 400
ARKANSAS COURT OF APPEALS
DIVISIONS II & III
No. CV-21-417

Opinion Delivered October 5, 2022
REBECCA NICHOLS
APPELLANT APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT, FIFTH
DIVISION
JAMES SWINDOLL AND CHUCK [NO. 60CV-21-1321]
GIBSON
HONORABLE WENDELL GRIFFEN,
APPELLEES JUDGE

DISSENTING OPINION ON GRANT
OF PETITION FOR REHEARING

BRANDON HARRISON, Chief Judge, dissenting. I respectfully dissent from the

majority opinion and would reverse the circuit court’s dismissal of Nichols’s amended

complaint against her former lawyers. This case should be reviewed by the Arkansas

Supreme Court so that it can correct core mistakes that leached into this case and

otherwise settle an important, but unsettled, issue touching the practice of law and the law

of torts.

I.

Nichols sued her former lawyers for legal malpractice in circuit court when they

allegedly failed to properly commence her personal-injury case against some defendants.

The failure, which became incurable in January 2018, caused her personal-injury

complaint to be dismissed with prejudice three years (and a couple of days) later. When
Nichols sued the lawyers the following month, they moved to dismiss her amended

complaint under Ark. R. Civ. P. 12(b)(6), citing the three-year statute of limitations that

applies in legal-malpractice cases. Nichols opposed the defense, arguing that she adequately

pleaded that the limitations period was tolled by fraudulent concealment—the

concealment being her lawyers’ failure to disclose that they had stumbled over the

“commencement” requirements in Ark. R. Civ. P. 3 & 4 when attempting to begin her

personal-injury case. Specifically, Nichols argued that her lawyers realized but never told

her that they had failed to timely commence her tort suit against unnamed John Does,

parties that were later (untimely) identified and named.

At the Rule 12(b)(6) stage of the case, Nichols’s allegations are deemed true.

Because her allegations are deemed true, and accounting for the fiduciary relationship

between attorneys and their clients—which includes the duty to speak up on material

points—the circuit court erred by dismissing Nichols’s amended complaint (in the

malpractice suit) based on the lawyers’ motion to dismiss.

I express no opinion on the merit of the legal-malpractice case. This appeal is not

about that. I would only hold, on this record, that the amended complaint should have

survived the defendants’ motion.

The primary issue here is whether, for Rule 12(b)(6) purposes, an attorney can, by

remaining silent, fraudulently conceal an act of legal malpractice from a client by

prolonging a lawsuit the lawyer knows cannot succeed until the statute runs under

Arkansas’s occurrence rule. And if there might be a claim on those facts, can the circuit

2
court dismiss a complaint with prejudice when the client alleges the lawyer acted with that

purpose and includes facts from which we might reasonably infer that the client is right?

I also touch on what standard of review on appeal we should apply when judging

an order that dismisses the tolling-related allegations in this case’s context.

Arkansas is one of few jurisdictions that times the accrual of a legal-malpractice

claim to the occurrence of the negligent act. The Arkansas Supreme Court has recognized

that the discovery rule might apply instead if the client demonstrates fraudulent

concealment. E.g., Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007). But in Rice v.

Ragsdale, where the alleged fraudulent concealment was a lawyer’s failure to disclose that

the client might have a claim against him, this court held that the plaintiffs could not toll

the limitations period by alleging that the lawyer had a duty to alert the client to possible

legal malpractice. 104 Ark. App. 364, 292 S.W.3d 856 (2009). The majority leans hard on

Rice here. In my view, Rice does not adequately support the majority opinion and should

otherwise be reconsidered.

Rice v. Ragsdale, the Attorney-Client Relationship, and the
Fiduciary’s Duty to Speak of Legal Malpractice

Here is the essential procedural background in Rice, where former clients sued

attorneys for messing up their medical-malpractice case:

[Clients] sued [lawyers] for legal malpractice in this action on May 3,
2006, asserting claims for negligence and under Ark. Code Ann. § 16-22-
306 (Repl. 1999), which states that, if a lawsuit is dismissed on account of
the negligence of an attorney, the attorney shall be liable for all damages his
client may have sustained by the dismissal or any other neglect of duty by
the attorney. [The lawyers] moved to dismiss on the basis of the three-year
statute of limitations, Ark. Code Ann. § 16-56-105 (Repl. 2005). [Clients]
filed an amended complaint adding a claim for breach of fiduciary duty and
alleging that [the lawyers’] fraudulent concealment had tolled the limitations

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period. [The lawyers] then filed motions for judgment on the pleadings on
the basis of the statute of limitations.

On November 5, 2007, the circuit court granted the motion for
judgment on the pleadings, making the following findings:

4. The Court finds that the claim of negligence asserted in
Count I of the complaint is governed by the three-year statute of
limitations, which statute ran no later than June 29, 2005, three years
after the last day upon which the underlying action could have been
timely commenced. The Court therefore finds, based upon the
allegations of Plaintiff's First Amended Complaint, that Defendants
are entitled as a matter of law to a judgment on the claim of
negligence asserted in Count I of Plaintiffs’ First Amended
Complaint.

....

6. The Court finds that Plaintiffs’ cause of action under Ark.
Code Ann. § 16-22-306 is governed by the three-year, rather than
the five-year, statute of limitations and that the statute of limitations
as to Defendants’ statutory liability under Ark. Code Ann. § 16-22-
306 ran no later than June 29, 2005, three years after the last day the
medical malpractice action could have been properly instituted.

....

8. The Court finds that Plaintiffs’ claim based upon the
allegation of breach of fiduciary duty is governed by the same statute
of limitations as that of a claim based upon Defendants’ alleged
negligence and that the statute of limitations on both claims expired
on the 29th day of June, 2005, or three years from the last date on
which the underlying medical action could have been commenced.

....

10. The Court finds that under the facts alleged in Count IV of
Plaintiffs’ First Amended Complaint, Plaintiffs had an independent duty to
investigate the accuracy of Defendants’ assurance, and that their failure to do
so bars their claim that the three-year statute of limitations was tolled by
Defendants’ alleged fraudulent concealment.

11. The Court further finds that on the face of Plaintiffs’ First
Amended Complaint, all claims against Defendants, arising out of

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 Defendants’ handling of the underlying medical malpractice case, ran
on June 29, 2005. Because Plaintiffs’ First Amended Complaint was
filed herein on May 3, 2006, it is time-barred. Accordingly,
Defendants’ motion for judgment on the pleadings is granted as to all
claims asserted in Plaintiffs’ First Amended Complaint and this case
should be and hereby is ordered dismissed with prejudice.

Appellants filed a timely appeal on November 28, 2007.

104 Ark. App. at 366–67, 292 S.W.3d at 859–60 (emphasis added).

I emphasized paragraph 10 of the circuit court’s order in Rice because it is the root

of that case’s holding and, subsequently, this case’s undesirable result. First, I question the

circuit court’s statement in Rice that clients have “an independent duty to investigate the

accuracy of” their own lawyers’ assurances when those assurances are made during an

ongoing attorney-client relationship. Id. at 367, 292 S.W.3d at 860. Surely a client is not

required to maintain a double layer of lawyers to ensure that the fiduciary responsibilities

of the primary lawyer are being honored. (And is a third lawyer needed to ensure the

second lawyer properly monitors the first one? And so on. #Matryoshkadoll.)

Here, the circuit court made no such “overwatch” finding, much less did it identify

a relevant rule of law supporting Rice’s proposition that clients have “an independent duty

to investigate the accuracy of” their own lawyers’ assurances. Id. The majority opinion

likewise does not hold that a second lawyer must oversee a primary lawyer before a client

may assert fraudulent concealment to oppose a motion to dismiss a legal-malpractice claim

because the claim is time-barred. No, this appeal is solely about whether lawyers have a

duty to speak about potential (perhaps the bar is set at probable, not possible) malpractice

to their clients. And when they do not, may the lawyers use that silence to fuel a Rule

12(b)(6) motion and defeat, at the pleading stage and before discovery, a former client’s

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allegations that the lawyers should have spoken up but did not so that they could benefit

from the occurrence rule? The majority’s answer falls on the wrong side of fiduciary law,

and perhaps soon, history.

As I understand Rice, an issue of first impression was presented. Despite the

important questions raised in that case, Rice provided no analysis to support the holding on

a key question that intersected the law of fraud, pleading, and fiduciary relationships. Here

is more from Rice:

In their third point, appellants contend that, as their attorneys,
appellees had a fiduciary duty to advise them that the statute of limitations
was running on any claims they had against appellees after the “fatal flaw in
the medical case came to light . . . .” Appellants contend that appellees’
failure to do so, when the lack-of-capacity issue was raised in the medical
malpractice case on May 10, 2004, amounted to self-dealing. They also
argue that appellees’ failure to disclose this information was evidence of an
intent to conceal, which would toll the statute of limitations. We will
address the tolling question in the next point.

A person standing in a fiduciary relationship with another is subject
to liability to the other for harm resulting from a breach of the duty imposed
by the relationship. See Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761
(1996). There is no dispute that appellees stood in that capacity when
representing appellants in the previous lawsuit. See Allen v. Allison, 356 Ark.
403, 155 S.W.3d 682 (2004). However, appellants have not cited any
authority that supports their position nor have we found any that would
expand the scope of an attorney’s fiduciary duty to his client in such a way.
We therefore affirm on this point.

104 Ark. App. at 372, 292 S.W.3d at 863–64.

We then said that the appellants had not cited any authority on the duty-to-speak

issue; nor had this court “found any [authority] that would expand the scope of an

attorney’s fiduciary duty to his client in such a way.” Id. at 373, 292 S.W.3d at 864. The

more supportable position, even when Rice was decided, is that a duty to speak is inherent

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to the attorney-client relationship itself, so this court was not really asked to expand

anything. We were tasked only to give the fiduciary relationship full force. Simply put:

this court overstepped in Rice, and a correction is warranted.

A federal district court has recently summarized its view regarding the law on the

Rice question, though it did not decide the ultimate issue one way or the other because it

did not have to in the circumstances:

It’s unclear whether Arkansas law required Cossey to disclose the
potential malpractice claim. The Arkansas Supreme Court has not spoken on
the point. In a limitations case, the Arkansas Court of Appeals has held that
the lawyer had no fiduciary duty to disclose a possible legal error, and did
not fraudulently conceal any error by continuing to litigate an issue. Rice v.
Ragsdale, 104 Ark. App. 364, 372–75, 292 S.W.3d 856, 863–65 (2009). The
Restatement says in a comment that the lawyer has a duty to speak in these
circumstances. Restatement (Third) of the Law Governing Lawyers § 20
cmt. c (2000 & Supp. 2021). The commentary to the applicable Arkansas
ethics rule provides that a lawyer can’t withhold information from the client
to serve the lawyer’s own interests. Ark R. Prof’l Conduct 1.4 cmt. 7. A
comprehensive Court of Appeals decision, in similar circumstances,
predicted that the Minnesota Supreme Court would hold that a duty to
disclose arises only if a disqualifying conflict of interest is presented. Leonard
v. Dorsey & Whitney LLP, 553 F.3d 609, 628–29 (8th Cir. 2009).

Bedwell v. Cossey, No. 2:18-CV-108-DPM, 2021 WL 3827084, at *4 (E.D. Ark. 26 Aug.

2021) (Marshall, C.J.).

Note Chief Judge Marshall’s citation to the comment to section 20 in Restatement

(Third) of the Law Governing Lawyers. Here is what the comment says in material part,

with my emphasis:

Important events might affect the objectives of the client, such as the
assertion or dismissal of claims against or by the client, or they might
significantly affect the client-lawyer relationship, for example issues
concerning the scope of the representation, the lawyer’s change of address,
the dissolution of the lawyer’s firm, the lawyer’s serious illness, or a conflict
of interest. If the lawyer’s conduct of the matter gives the client a substantial

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 malpractice claim against the lawyer, the lawyer must disclose that to the client. For
example, a lawyer who fails to file suit for a client within the limitations period must
so inform the client, pointing out the possibility of a malpractice suit and the resulting
conflict of interest that may require the lawyer to withdraw.

Restatement (Third) of the Law Governing Lawyers § 20 cmt. c (2000).

The majority opinion provides no analysis, no reason, no statement why the

Restatement rule is unfair, unjust, unwarranted, or antithetical to fiduciary law in general

or the attorney-client relationship specifically. The Restatement rule is none of those

things. That rule, instead, does what the majority opinion does not: it recognizes the

knowledge imbalance and trust that naturally inheres in the attorney-client relationship.

If knowledge is power, then an attorney is Goliath to the client’s David—minus

the slingshot and divine plans on human affairs. No client will know every potentially

important fact the lawyer learns during litigation. (Indeed, most lawyers would fire clients

who demanded to know that much. The horror . . . of the all-too-curious client!) Nor

will the typical client have the training and experience required to judge or assess the true

significance of events as they unfold, especially in matters of practice and procedure.

Since Rice was decided, the American Bar Association has issued a formal ethics

opinion that a lawyer’s duty to speak includes a duty to disclose material negligent acts or

omissions to current clients. A Lawyer’s Duty to Inform a Current or Former Client of

the Lawyer’s Material Error, ABA Comm’n on Ethics & Prof’l Responsibility, Formal Op.

18-481 (2018). The South Dakota Supreme Court was persuaded by those authorities and

recognized a duty to disclose that is actionable as a breach of fiduciary duty when it causes

the client to lose the right to sue for legal malpractice. Robinson-Podoll v. Harmelink, Fox &

Ravnsborg Law Office, 939 N.W.2d 32, 48 (S.D. 2020). The majority, however, chooses a

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different path. (If you fully appreciate the circuit court order that Rice affirmed, then that

case may also be read to support the proposition that a lawyer’s failure to speak up on legal

malpractice cannot support a breach-of-fiduciary-duty claim.)

A lawyer’s duty to speak on a material issue that affects a client’s interests is

inherent in the attorney-client relationship. As it stands, Rice foreclosed the ability of a

former personal-injury client—turned malpractice plaintiff—to determine, at a minimum,

the timeliness of a malpractice claim under the discovery rule by demonstrating fraudulent

concealment through the lawyer’s failure to speak. The majority opinion missteps by

applying Rice because it reinvigorates a misguided categorical rule in the law of fraud,

pleading, and attorney-client relations. The time to issue a course correction is now given

the record before us, one that easily supports a reversal for the reasons Nichols has argued.

As Justice Cardozo observed, “[A fiduciary] is held to something stricter than the

morals of the market place. Not honesty alone, but the punctilio of an honor the most

sensitive, is then the standard of behavior.” Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y.

1928). Does the majority’s opinion exact this standard from Arkansawyers?

Given this case’s facts (as pleaded and presumed true), a reasonable attorney would

have known—when 120 days had passed after the complaint was filed and having made

no service on any defendant, and no extension of the time to serve them was on record—

that the cause was procedurally hopeless. As pleaded in the amended complaint, Nichols’s

attorneys slow-played the litigation, with fitful attempts to serve new defendants, for

nearly three years. Nichols says they never disclosed the lapse of the 120-days service

window and confessed to committing malpractice in a later (and necessarily harmless) act.

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 A plaintiff like Nichols will always have to plead certain allegations in good faith,

ones that can and should be challenged when illegitimate ones are raised. Discovery and

summary-judgment motions are always available to test a complaint’s allegations in

general, and fraudulent-concealment allegations specifically, before a trial ensues.

Remember, too, that fraudulent concealment is usually a fact question, Adams v. Arthur,

333 Ark. 53, 63, 969 S.W.2d 598, 603 (1998), so even if a case goes to a jury, a special

interrogatory related to fraudulent concealment can be presented to the jury to answer. A

“no” on a concealment-related interrogatory at trial could permit a limitations argument

to win late in the day, if not earlier, say on summary judgment after discovery has been

permitted to a reasonable degree.

The sole concern here is whether Nichols’ robust and well-pled narrative in her

amended complaint that former attorneys fraudulently concealed malpractice by

prolonging hopeless proceedings should be dismissed at a point when all her allegations are

presumed true—and we otherwise have the record that we do. Until and unless the

Arkansas Supreme Court speaks directly on the issue and forecloses the position for which

Nichols argues, I would hold that enough was pled to defeat the Rule 12(b)(6) motion to

dismiss that Messrs. Swindoll and Gibson filed, and that sufficient principles and sources of

law support reversing the circuit court’s order of dismissal. Consequently, the circuit court

erred when it dismissed the amended complaint.

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 II.

The standard of review: What is it? What should it be? It is a point worth taking

up; the parties cannot agree on what it is, and neither can this court. 1 The answer is that a

de novo review is warranted. It is a mistake to use the abuse-of-discretion standard in a

case like this.

To invoke Justice Cardozo a second time, law in the air will not do, meaning every

legal analysis applies the law to some set of facts. Rule 12(b)(6), the defense that a claim

“fails to state facts upon which relief can be granted,” is the Arkansas Rules of Civil

Procedure’s equivalent to the common-law general demurrer. 2 It has not changed since

Blackstone described it as a feature of English civil procedure in 1768: “An issue upon

matter of law is called a demurrer: and it confesses the facts to be true, as stated by the

opposite party; but denies that, by the law arising upon those facts, any injury is done to

the plaintiff.” 3 William Blackstone, Commentaries *314. In other words, a Rule 12(b)(6)

motion says to the court, “We can stop this lawsuit now, because even if the plaintiff

1
As the majority observes, Nichols argued in her point on appeal that the circuit
court abused its discretion in granting the motion to dismiss. Majority Supp. Op., at 2.
But she also noted the process of review was the same “whether it is called ‘a de novo’ or
‘an abuse of discretion’ review.” Appt’s Br. at 16; see also Appt’s Br. at 42. More
importantly, even when both parties urge the court to depart from the correct analysis on
appeal, the court should not do so. See Ark. Contractors Licensing Bd. v. Pegasus Renovation
Co., 347 Ark. 320, 328, 64 S.W.3d 241, 246 (2001) (ignoring parties’ arguments about the
circuit court’s decision, which were “completely incorrect” given that the court’s review
was “to the Board’s decision rather than the circuit court’s decision”).
2
Files v. Hill, 268 Ark. 106, 111 n.1, 594 S.W.2d 836, 839 n.1 (1980) (“Under the
Rules of Civil Procedure, effective July 1, 1979, demurrers were abolished but questions
theretofore reached by general demurrer may be raised by motion. See Rule 12(b)(6).”).

11
proved everything she alleges in the complaint, she has no remedy under our substantive

law.”

Every state has a procedural equivalent to the general demurrer. (See appendix.)

The process of review on appeal is essentially the same everywhere: the facts pleaded are

assumed true and construed in the pleader’s favor, and the appellate court decides—with

no deference to the trial court’s conclusion—whether they state a claim under the law.

That was, and should still be, how we review dismissals under Rule 12(b)(6) in Arkansas.

E.g., Faulkner v. Ark. Children’s Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002) (de novo

review when determining whether the circuit court erred by granting a Rule 12(b)(6)

motion on a question of law).

As best I can tell, (1) until 2010, review of a general demurrer had always been

understood, by everyone everywhere, to be de novo; and (2) it is still understood that way

everywhere else. Every federal court of appeals reviews a Rule 12(b)(6) dismissal de novo.

Although not every state’s appellate courts use the words “de novo,” they all apply the

same analysis the trial court used, to the same pleaded facts it reviewed, giving no

deference to the trial court’s conclusion whether they state a claim under law. (See

appendix.) 3

3
The majority states that this point was “vigorously researched for the appellant.”
Majority Supp. Op., at 2. I concede Nichols could not compel the court to survey the
American law merely by identifying a discrepancy in the standards of review. But the
supreme court has not explained how to conduct a discretionary review of a circuit court’s
conclusion that relief cannot be granted on stated facts. As the appendix reflects, I could
find no guidance elsewhere.

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 How did we come to this now-confused space? 4 In 2010, the supreme court

decided Doe v. Weiss, 2010 Ark. 150. The important facts were that (1) the appellants

were not lawfully present in the U.S.; (2) Doe was not their real name; and (3) the person

they sued argued that their complaint “should be dismissed pursuant to 12(b)(6) of the

Arkansas Rules of Civil Procedure because they failed to prosecute the action in the name

of the real parties in interest as required by Ark. R. Civ. P. 17(a) and failed to include

their names in the pleadings as required by Ark. R. Civ. P. 8(a) and 10(a).” Id. at 2. The

circuit court ordered the would-be plaintiffs to replead in their real names. The circuit

court dismissed—under Rule 12(b)(6)—when they refused. The Does appealed.

The supreme court noted that federal courts applied an abuse-of-discretion standard

when deciding whether to allow parties to use pseudonyms. Separately, it suggested that

“[o]ur standard of review for the granting of a motion to dismiss is whether the circuit

court abused its discretion.” Id. at 3. Even in Doe’s procedural setting, that statement is

curious. The embedded case cited in Doe was Arkansas Department of Environmental Quality

v. Oil Producers of Arkansas, 2009 Ark. 297, 318 S.W.3d 570. That case involved an order

4
The following standard-of-review excerpt is from Handling Appeals in Arkansas 9-
23 (Arkansas Bar Association) (Rev. 2022):

The standard of review for a circuit court’s decision to grant or deny a
12(b)(6) motion on the legal sufficiency of a complaint is de novo because the
question is a legal one. Faulkner, 347 Ark. 941, 69 S.W.3d 393 (2002) (conducting
a de novo review when determining whether the circuit court erred by granting a
Rule 12(b)(6) motion on a question of law). Or is it? The cases conflict on the
standard of review to be applied when reviewing the dismissal of a complaint
pursuant to ARCP 12(b)(6). Specifically, both the “abuse of discretion” and “de
novo” standards have appeared in opinions addressing Rule 12(b)(6) dismissals.
Compare Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324 (abuse of
discretion) with Faulkner, supra (de novo).

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denying sovereign-immunity dismissal where the plaintiff “assert[ed] that it pled sufficient

facts in its amended complaint to meet two recognized exceptions,” id. at 4, 318 S.W.3d

at 572, including the exception for ultra vires acts. The order denying a motion to dismiss

was not a final determination of liability or immunity, not even on the pleaded facts:

“Whether OPA will prevail on this claim remains to be seen. In any case, it is clear to this

court that the issue of ADEQ’s legal authority to act as it did needs further development

before the circuit court.” Id. at 11, 318 S.W.3d at 575.

Although the supreme court affirmed the dismissal in Doe under Rule 12(b)(6), the

decision had nothing to do with the substance of the complaint—whether, under the test

Rule 12(b)(6) sets out, the complaint “fail[ed] to state facts upon which relief can be

granted.” Rule 12(b)(6) was just a vehicle for handling defects in form under rules that did

not specify a penalty for noncompliance.

Because Doe arguably endorsed the use of Rule 12(b)(6) to dismiss for violating

other rules of civil procedure, it might have set up a sensible distinction in the standards of

review for dismissals under that rule: if dismissal is for legal insufficiency of the facts

material to the asserted claim, review is de novo. If dismissal is for some discretionary

determination under another rule, review is for abuse of that discretion.

The law has not, however, developed that way. In a cascade of opinions beginning

with Doe, both this court and the supreme court have unfortunately repeated that review

of a dismissal for “failure to state facts upon which relief can be granted” is for abuse of

discretion, without identifying what discretion the circuit court could have employed.

(Discretion to apply the law of Arkansas? Discretion to dismiss though relief can be

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granted?) Like other questions we review de novo and answer from the same pleaded

facts—whether there is personal jurisdiction, for example 5—whether relief can be granted

is a question of law that can be answered only one of two ways: yes or no.

This is not an academic’s question. Uniformity across Arkansas’s circuit courts and

therefore a more equal treatment under law is at stake, especially if a case comes to the

appellate level. Standards of review matter. If they did not, then we would have one

instead of many. Every claim, no matter how valuable or important, can, in theory, be

conclusively resolved by a Rule 12(b)(6) motion.

If the circuit courts have discretion to answer either yes or no on questions of law,

and if we review such decisions using an abuse-of-discretion standard, then we can have

no settled law. When we hold, on de novo review, that a circuit court does not err by

dismissing a claim alleging X, this court also communicates that another circuit court

would err by either denying a motion to dismiss that claim, or by granting relief if X were

proved at trial. When we hold that a circuit court did not “abuse its discretion” to dismiss

a claim alleging X, we do not come close to settling the question, even for identically

situated parties in the next case in the same court, much less different courts sitting in 75

counties. This is a prime reason why we should not defer to a circuit court’s Rule 12(b)(6)

dismissal like the one in this case. Here, the circuit court and the majority have decided,

for all practical purposes, that under the law related to pleadings, fraud, statutes of

limitation, and legal-malpractice claims, a lawyer has no duty to speak to a client and

5
Lawson v. Simmons Sporting Goods, Inc., 2019 Ark. 84, at 5, 569 S.W.3d 865, 869.

15
therefore can never fraudulently conceal a potential malpractice claim—so long as the

lawyer stays mum.

* * *

Whichever standard of review applies, the majority opinion does not appreciate the

gross imbalance of knowledge and therefore power in the attorney-client relationship or

the consequences that flow from it. Because I cannot agree with the majority opinion’s

reasoning or the result reached, I respectfully dissent.

HIXSON, J., concurs.

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 APPENDIX

I. Federal Cases
“[I]t is axiomatic that ‘[w]e give de novo Zell v. Ricci,
review to a Rule 12(b)(6) [failure to state a 957 F.3d 1, 7 (1st Cir. 2020)
claim] dismissal, using the same criteria as
the district judge.’”
“We review de novo a district court’s Alix v. McKinsey & Co.,
dismissal of a complaint pursuant to Rule 23 F.4th 196, 202 (2d Cir. 2022)
12(b)(6)[.]”
“We review the grant of a motion to Doe v. Princeton Univ.,
dismiss de novo.” 30 F.4th 335, 341 (3d Cir. 2022)
“We review de novo the district court’s Uncork & Create LLC v. Cincinnati Ins. Co.,
dismissal of the complaint under Rule 27 F.4th 926, 930 (4th Cir. 2022)
12(b)(6).”
“This court reviews a grant of a motion to Huynh v. Walmart Inc.,
dismiss [under Fed. R. Civ. P. 12(b)(6)] de 30 F.4th 448, 453 (5th Cir. 2022)
novo.”
“We review ‘de novo a district court’s Doe v. Mich. State Univ.,
dismissal of a complaint for failure to state 989 F.3d 418, 425 (6th Cir. 2021)
a claim.’”
“We review de novo the grant of a E. Coast Entm’t of Durham, LLC v.
motion to dismiss for failure to state a Houston Cas. Co., 31 F.4th 547, 550
claim.” (7th Cir. 2022)
“We review the grant of a motion to Hartman v. Bowles,
dismiss de novo.” 39 F.4th 544, 545 (8th Cir. 2022)
(quoting authority)
“We review de novo an order granting a Fort v. Washington,
motion to dismiss for failure to state a 41 F.4th 1141, 1144 (9th Cir. 2022)
claim under Fed. R. Civ. P. 12(b)(6).”
“We review de novo the dismissal of a Barnett v. Hall, Estill, Hardwick, Gable,
complaint under Rule 12(b)(6).” Golden & Nelson, P.C., 956 F.3d 1228,
1234 (10th Cir. 2020)
“We review de novo the district court’s Pincus v. Am. Traffic Sols., Inc.,
grant of a motion to dismiss for failure to 986 F.3d 1305, 1310 (11th Cir. 2021)
state a claim[.]”
“The court reviews de novo the dismissal of IMAPizza, LLC v. At Pizza Ltd.,
a complaint for failure to state a claim.” 965 F.3d 871, 875 (D.C. Cir. 2020)

17
 II. State Courts and the District of Columbia

“The parties agree that the appropriate Hendrix v. United Healthcare Ins. Co. of the
standard of review in this case is the River Valley, 327 So. 3d 191, 196 (Ala.
standard applicable to the granting of a 2020)
motion to dismiss under Rule 12(b)(6),
Ala. R. Civ. P. We review such dismissals
de novo.”
“We review de novo decisions granting DeRemer v. Turnbull,
motions to dismiss.” 453 P.3d 193, 196 (Alaska 2019)
“We review de novo the dismissal of a Shepherd v. Costco Wholesale Corp.,
complaint pursuant to Rule 12(b)(6)[.]” 482 P.3d 390, 392 (Ariz. 2021)
“In reviewing an order sustaining a Mathews v. Becerra,
demurrer, we examine the operative 455 P.3d 277, 285 (Cal. 2019)
complaint de novo to determine whether
it alleges facts sufficient to state a cause of
action under any legal theory.”
“We review de novo a district court’s People ex rel. Rein v. Meagher,
decision on a C.R.C.P. 12(b)(5) motion to 465 P.3d 554, 558 (Colo. 2020)
dismiss [for failure to state a claim upon
which relief can be granted].”
“Appellate review of a trial court’s U.S. Bank Nat’l Ass’n v. Blowers,
decision to grant a motion to strike is 212 A.3d 226, 234 (Conn. 2019)
plenary. This is because ‘a motion to strike (cleaned up)
challenges the legal sufficiency of a
pleading . . . and, consequently, requires
no factual findings by the trial court[.]’”
“The only issue on review of a dismissal Scott v. FedChoice Fed. Credit Union,
made pursuant to Rule 12(b)(6) is the legal 274 A.3d 318, 322 (D.C. 2022) (cleaned
sufficiency of the complaint. As a motion up)
to dismiss a complaint presents questions
of law, our standard of review is de novo.”
“We review the Superior Court’s grant of Page v. Oath Inc.,
a motion to dismiss under a de novo 270 A.3d 833, 842 (Del. 2022)
standard of review and apply the same
standard as the trial court.”
“A trial court’s ruling on a motion to Palm Beach Cnty. Sch. Bd. v. Doe,
dismiss is subject to de novo review.” 210 So. 3d 41, 43 (Fla. 2017)

18
“The appellate court ‘review[s] de novo Love v. Fulton Cnty. Bd. of Tax Assessors,
the trial court’s ruling on the [defendants’] 859 S.E.2d 33, 36 (Ga. 2021)
motion to dismiss, accepting as true all
well-pled material allegations in the
complaint and resolving any doubts in
favor of [the plaintiff].’”
“A circuit court order granting a motion Flores v. Logan,
to dismiss [for failure to state a claim] is 513 P.3d 423, 432 (Haw. 2022)
reviewed de novo.”
“This Court freely reviews Rule 12(b)(6) Munden v. Bannock Cnty.,
dismissals.” 504 P.3d 354, 363 (Idaho 2022) (citing
Paslay v. A&B Irrigation Dist., 406 P.3d
878, 880 (Idaho 2017) (“This Court
reviews de novo both Rule 12(b)(6)
dismissal orders and Rule 56 summary
judgment grants.”))
“A section 2-615 or section 2-619 motion Cahokia Unit Sch. Dist. No. 187 v. Pritzker,
to dismiss admits as true all well-pleaded 184 N.E.3d 233, 240 (Ill. 2021)
facts and all reasonable inferences from (citations omitted)
those facts. . . . Our review of a dismissal
under either section is de novo.”
“We review ‘a 12(B)(6) dismissal de novo, Collins Asset Grp., LLC v. Alialy,
giving no deference to the trial court’s 139 N.E.3d 712, 714 (Ind. 2020)
decision.’”
“On a motion to dismiss, we review for Weizberg v. City of Des Moines,
corrections of errors at law, unless the 923 N.W.2d 200, 211 (Iowa 2018) 6
motion to dismiss is on a constitutional
issue, in which case our review is de
novo.”

“An appellate court reviews de novo Kudlacik v. Johnny’s Shawnee, Inc.,
whether a petition states a valid claim for 440 P.3d 576, 579 (Kan. 2019)
relief.”

6
I interpret that “correction of errors at law” is de novo review, but only of the
errors the parties have assigned, whereas “de novo” review allows review of errors the
parties have not identified. See Goodsell v. State Auto. & Cas. Underwriters, 153 N.W.2d
458, 459 (Iowa 1967) (“This is a law action and we are limited to considering the errors
assigned on appeal.”).

19
“The motion [under CR 12.02(f) to Lee v. Ky. Dep’t of Corr.,
dismiss for failure to state a claim] presents 610 S.W.3d 254, 257 (Ky. 2020)
‘a pure question of law’ and our review is
de novo.”
“An exception of no cause of action Kendrick v. Est. of Barre,
questions whether the law extends a 339 So. 3d 615, 617 (La. 2021) (citation
remedy against the defendant to anyone omitted)
under the factual allegations of the
petition. The exception is triable on the
face of the petition and each well-pleaded
fact in the petition must be accepted as
true. Appellate review is de novo. Because
the exception raises a question of law
based solely on the sufficiency of the
petition, an exception of no cause of
action should be granted only when it
appears beyond doubt that the plaintiff
cannot prove any set of facts which would
entitle him to relief.”
“We now turn to address whether the trial Anctil v. Cassese,
court erred when it dismissed Anctil’s 232 A.3d 245, 250 (Me. 2020)
complaint based on its conclusion that
Anctil had failed to state a claim upon
which relief could be granted. See M.R.
Civ. P. 12(b)(6). We review the legal
sufficiency of the complaint de novo[.]”
“A defendant may seek dismissal of a Chavis v. Blibaum & Assocs., P.A.,
complaint under Maryland Rule 2- 264 A.3d 1254, 1263 (Md. 2021)
322(b)(2) if the complaint ‘fail[s] to state a
claim upon which relief can be granted.’
Whether a motion to dismiss was properly
granted or not by a trial court is a question
of law we review de novo, with no
deference given to the trial court.”
“We review the allowance of a motion to Bostwick v. 44 Chestnut St., Wakefield,
dismiss de novo[.]” Mass., 176 N.E.3d 622, 625 (Mass.
2021)

20
“A motion [for summary disposition] Esurance Prop. & Cas. Ins. Co. v. Mich.
under MCR 2.116(C)(8) tests the legal Assigned Claims Plan, 968 N.W.2d 482,
sufficiency of a claim based on the factual 487–88 (Mich. 2021) (cleaned up)
allegations in the complaint. . . . We
review de novo a trial court’s decision on
a motion for summary disposition.”
“We review de novo dismissals under Poitra v. Short,
Minn. R. Civ. P. 12.02(e) for failure to 966 N.W.2d 819, 822 (Minn. 2021)
state a claim upon which relief can be
granted.”
“[A] motion to dismiss under Rule Moses v. Rankin Cnty.,
12(b)(6) of the Mississippi Rules of Civil 285 So. 3d 620, 623 (Miss. 2019)
Procedure raises an issue of law, which is (cleaned up)
reviewed under a de novo standard.”
“The circuit court’s decision to sustain a Schlafly v. Cori,
motion to dismiss [for failure to state a 647 S.W.3d 570, 573 (Mo. 2022) (en
claim upon which relief can be granted] is banc)
reviewed de novo.”
“We review de novo an order granting a Barthel v. Barretts Minerals, Inc.,
motion to dismiss under M. R. Civ. P. 496 P.3d 541, 543 (Mont. 2021)
12(b)(6).”
“A district court’s grant of a motion to Benjamin M. v. Jeri S.,
dismiss for failure to state a claim under 950 N.W.2d 381, 386 (Neb. 2020)
Neb. Ct. R. Pldg. § 6-1112(b)(6) is
reviewed de novo[.]”
“We review a dismissal for failure to state a Wilson v. Las Vegas Metro. Police Dep’t,
claim pursuant to NRCP 12(b)(5) de 498 P.3d 1278, 1280 (Nev. 2021)
novo.”
“We apply our traditional standard of Avery v. Comm’r, New Hampshire Dep’t of
review for motions to dismiss to the legal Corr., 248 A.3d 1179, 1183 (N.H. 2020)
issues presented. Specifically, we review
issues of law de novo.”
“Rule 4:6-2(e) motions to dismiss for Baskin v. P.C. Richard & Son, LLC,
failure to state a claim upon which relief 249 A.3d 461, 469 (N.J. 2021)
can be granted are reviewed de novo.”
“We review de novo a district court’s Nash v. Bd. of Cnty. Comm’rs of Catron
order granting or denying a motion to Cnty., 480 P.3d 842, 847 (N.M. 2021)
dismiss under Rule 1-012(B)(6) NMRA (quotation omitted)
for the failure to state a legally viable
claim.”

21
“When reviewing a pre-answer motion to Sassi v. Mobile Life Support Servs., Inc.,
dismiss the complaint for failure to state a 175 N.E.3d 1246, 1248 (N.Y. 2021)
cause of action, we must give the (cleaned up) 7
pleadings a liberal construction, accept the
allegations as true and accord the plaintiff
every possible favorable inference. Giving
plaintiff the benefit of all favorable
inferences which may be drawn from the
pleading, this Court determines only
whether the alleged facts fit within any
cognizable legal theory.”
“This Court reviews a trial court’s order Cheryl Lloyd Humphrey Land Inv. Co., LLC
on a motion to dismiss de novo[.]” v. Resco Prod., Inc., 858 S.E.2d 795, 798
(N.C. 2021)
“We review a district court’s decision Schmitz v. N.D. State Bd. of Chiropractic
granting a motion to dismiss under Exam’rs, 958 N.W.2d 496, 498 (N.D.
N.D.R.Civ.P. 12(b)(6) de novo on 2021) (quoting Krile v. Lawyer, 947
appeal.” N.W.2d 366, 373 (N.D. 2020) (cleaned
up))
“We review de novo a decision granting a State ex rel. Sands v. Coulson,
motion to dismiss under Civ. R. 169 N.E.3d 663, 665 (Ohio 2021)
12(B)(6).”
“This Court’s review of a dismissal for Hobson v. Cimarex Energy Co.,
failure to state a claim is conducted de 453 P.3d 482, 483 (Okla. 2019)
novo.”

7
The standard of review appears to be determined by how the New York appellate
courts are structured. Ordinarily, any questions involving factual findings or discretion are
decided by the appellate division, and the court of appeals can review only questions of
law, including the legal question of whether an exercise of discretion was an abuse of
discretion. In the appellate division opinion from which the court of appeals granted
review here, the court simply “agree[d] with the Supreme Court’s determination to grant
the defendant’s motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.” Sassi v.
Mobile Life Support Servs., Inc., 176 A.D.3d 886 (N.Y. App. Div. 2019), rev’d, 175 N.E.3d
1246 (N.Y. 2021).

22
“We review for legal error the trial court’s Hernandez v. Cath. Health Initiatives,
grant of an ORCP 21 A(8) motion. In 490 P.3d 166, 168 (Ore. 2021)
conducting our review, ‘we accept as true
the allegations in the complaint, and any
reasonable inferences that can be drawn
from those allegations, viewing them in
the light most favorable to the nonmoving
party[.]’”
“Where the appeal arises from an order Harrison v. Health Network Labs. Ltd.
sustaining preliminary objections due to P’ships, 232 A.3d 674, 678
legal insufficiency of the complaint, our (Pa. 2020)
well-settled standard of review is de novo.”
“When reviewing a motion to dismiss Nerney v. Town of Smithfield,
pursuant to Rule 12(b)(6) of the Superior 269 A.3d 753, 756 (R.I. 2022)
Court Rules of Civil Procedure, ‘this
Court applies the same standard as the
hearing justice[.]’”
“Rule 12(b)(6) permits a party to assert by Beverly v. Grand Strand Reg’l Med. Ctr.,
motion the defense that a claim ‘fail[s] to LLC, 869 S.E.2d 812, 815 (S.C. 2022)
state facts sufficient to constitute a cause of
action.’ . . . We review the decisions of
both [the circuit court and the court of
appeals] using the same standard they
used.”
“Motions to dismiss under SDCL 15-6- Rhines v. S.D. Dep’t of Corr.,
12(b)(5) . . . test the legal sufficiency of the 935 N.W.2d 541, 544 (S.D. 2019)
plaintiff’s claim and necessarily implicate (citation omitted)
questions of law. For this reason, we also
review de novo a circuit court’s
determination of a Rule 12(b)(5) motion
to dismiss.”
“Our review of the trial court’s decision Cooper v. Mandy,
[on a motion to dismiss under Rule 639 S.W.3d 29, 33 (Tenn. 2022)
12.02(6)] involves a question of law and is
de novo.”

23
“Under Rule 91a, a party may move for In re Farmers Texas Cnty. Mut. Ins. Co.,
dismissal on the ground that a cause of 621 S.W.3d 261, 266 (Tex. 2021) 8
action has no basis in law. . . . We review
the merits of a Rule 91a ruling de novo;
whether a defendant is entitled to dismissal
under the facts alleged is a legal question.”
“A motion to dismiss presents a question Rawcliffe v. Anciaux,
of law that is reviewed de novo, giving ‘no 416 P.3d 362, 367 (Utah 2017)
deference’ to the district court’s analysis.”
“We review motions to dismiss de novo Rodrigue v. Illuzzi,
and ‘will uphold a motion to dismiss for 278 A.3d 980, 991 (Vt. 2022)
failure to state a claim only if it is beyond (cleaned up)
doubt that there exist no facts or
circumstances that would entitle the
plaintiff to relief.’”
“A trial court’s decision sustaining a Young-Allen v. Bank of Am., N.A.,
demurrer presents a question of law which 839 S.E.2d 897, 900 (Va. 2020)
we review de novo.”
“Appellate review of a circuit court’s order Haught v. Fletcher,
granting a motion to dismiss a complaint is 874 S.E.2d 27, 31 (W. Va. 2022)
de novo[.]”
“We treat a CR 12(c) motion for Freedom Found. v. Teamsters Local 117
judgment on the pleadings identically to a Segregated Fund, 480 P.3d 1119, 1131
CR 12(b)(6) motion to dismiss for failure (Wash. 2021)
to state a claim . . . We review the
superior court’s judgment on the pleadings
de novo.”
“We review de novo the circuit court’s State ex rel. Kaul v. Prehn,
dismissal of a complaint for failure to state 976 N.W.2d 821, 824–25 (Wis. 2022)
a claim.”

8
Like our supreme court in Doe, the court reviews a denial of a motion to dismiss
for abuse of discretion: “Mandamus relief is appropriate when the trial court abuses its
discretion in denying a Rule 91a motion to dismiss.” Id. (citing In re Essex Ins. Co., 450
S.W.3d 524, 528 (Tex. 2014) (holding mandamus relief was appropriate where the trial
court had erroneously denied motion to dismiss a declaratory judgment action to “spare
private parties and the public the time and money utterly wasted enduring eventual
reversal of improperly conducted proceedings”)).

24
“We review orders granting a motion to Moses Inc. v. Moses,
dismiss under Rule 12(b)(6) de novo.” 509 P.3d 345, 349 (Wyo. 2022)
(quoting Dockter v. Lozano, 472 P.3d
362, 364 (Wyo. 2020))

25