concurring. I concur with the result reached by the majority. However, I write this separate opinion to bring attention to an earlier error of this court. Here, the most troubling allegation made by appellants relates to their prior lender-liability claim. See Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991). Appellants contend that the appel-lees, acting as their attorneys, failed to amend their complaint in the lender-liability case to allege a separate cause of action on behalf of the Schmidts as guarantors of the notes of Aero Corporation.
In Schmidt v. McIlroy Bank, the appellees herein represented appellants in a lender-liability action against Mcllroy Bank. In their complaint appellees alleged damages on behalf of Aero Corporation and damages for the Schmidts as stockholders, but did not ask relief for the Schmidts as guarantors of the notes owed by Aero Corporation. The trial court granted summary judgment against Aero Corporation on the ground that its charter had been revoked for failure to pay franchise taxes. Mcllroy Bank filed a subsequent motion for summary judgment against the Schmidts individually. In their response to the second motion for summary judgment the appellee attorneys stated, “The plaintiffi should be allowed to amend their complaint to permit the real parties to prosecute the action.” At the hearing on the second motion for summary judgment, the appellee attorneys sought to amend their complaint. “We ask the court to allow the plaintiffi to amend the complaint for the sole purpose to include the individuals as guarantors and state a cause of action that would not leave any question . . .” The trial court recognized the appellee attorneys’ request to amend the complaint, however, the trial court stated that it would deny the oral motion to amend the complaint as being untimely. The trial court then granted summary judgment against the Schmidts. This court affirmed the decision of the trial court in Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991).
In the current appeal, the appellants contend that their attorneys were negligent in the lender-liability action in requesting permission to amend their complaint to state a separate cause of action for the Schmidts as guarantors, as opposed to simply going forward and filing an amended complaint. ARCP 15(a) allows a party to amend its pleadings at any time without permission of the court. The corresponding federal rule requires leave of the court before an amended complaint can be filed under similar circumstances. See FRCP 15. The point that is most troubling to me, irrespective of this technical distinction, is that the trial court, in ruling on the motion for summary judgment, recognized that the appellee attorneys had requested permission to amend their complaint, yet denied the oral motion to do so. The supreme court affirmed, holding that the oral motion to amend the complaint was unnecessary and the trial court ruling was invited error. See Schmidt v. McIlroy Bank & Trust. The dissent by Justice Brown in Schmidt v. McIlroy Bank & Trust states -with greater eloquence than I am able to muster the problems attendant in following this strict interpretation of ARCP 15 regarding amendment of pleadings. The decision in Schmidt v. Mcflroy Bank & Trust is bad law. This court should take its earliest opportunity to reverse that decision, and adopt the position of Justice Brown’s dissent in that case.
In spite of the fact that the appellee attorneys could have simply filed an amended complaint in the lender-liability action, without asking permission of the court, I do not find this sufficient basis to support a finding of legal malpractice. Schmidt v. Mcflroy Bank & Trust was a case of first impression, with two justices of the supreme court, including the chief justice, dissenting. As stated earlier in the majority opinion, an attorney is not liable for a mistaken opinion on a point of law that has not been setded by the court of highest jurisdiction, and on which reasonable attorneys may differ. Here, not only was the issue regarding a request to amend the complaint under ARCP 15 not a settled issue in this jurisdiction, even the supreme court justices, the ultimate legal experts in this jurisdiction, were unable to agree upon the final resolution of this issue. If two supreme court justices disagree as to the outcome of a particular issue, it seems implausible to hold a practicing attorney to a higher standard.