Summary
holding that it was proper for the trial court to refuse to admit into evidence the model rules of professional conduct because such rules were meant as guidelines only and were not meant to establish a civil cause of action for malpractice
Summary of this case from Stender v. BlessumOpinion
M. Stephen Bingham, Little Rock, for appellant.
Patrick James, Little Rock, for appellee.
[310 Ark. 184-B] PER CURIAM.
The appellee, Larry Moyer Trucking, Inc. (Moyer), asserts an incorrect standard of review was applied in deciding an issue in its cross-appeal. While we agree the opinion incorrectly states the standard to be applied by a trial court in deciding whether to give an instruction, recognition of the error does not change the result, thus rehearing is denied. We write again to dispel confusion which may have been created by our opinion.
Moyer argued on appeal that the Trial Court erred by refusing to submit its conversion claim against Orsini to the jury. The claim was based upon Orsini's failure to return Moyer's legal files after Moyer terminated Orsini as his representative. Orsini claimed Moyer owed him $7,924.01 in unpaid legal fees, and he filed a counterclaim against Moyer for that amount. Orsini also asserted an attorney's lien over Moyer's files and materials which came into Orsini's possession during the employment relationship.
In our opinion we did not mention that, in its original Complaint, Moyer sought to replevy Moyer's files remaining in Orsini's possession. That aspect of the case was tried by the Trial Court without a jury, and nothing in the record suggests Moyer requested that the issue be submitted to a jury. The Trial Court found in favor of Orsini, recognizing Orsini's right to retain possession of the files until ownership could be determined by final judgment.
The jury refused to award Orsini any amount on his counterclaim for unpaid legal fees and essentially determined no fees were due. The final judgment also indicated that Moyer's legal files which were in Orsini's possession should be returned to Moyer.
Conversion is any distinct act of dominion wrongfully exerted over property in denial of, or inconsistent with, the owner's right. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991). The intent required for conversion is not that which accompanies a conscious wrongdoing, but rather an intent to exercise a dominion or control over goods in a manner inconsistent with the plaintiff's rights. Car Transp. v. Gardon Spot Distrib., 305 Ark. 82, 805 S.W.2d 632 (1991).
The Trial Court's decision in Moyer's replevin action that Orsini was entitled to assert an attorney's lien, and retain possession of the files until final judgment, precluded Moyer's conversion claim. The issue had already been decided, thus there was no need to submit it to the jury.
Our opinion in this case, 310 Ark. 179, 833 S.W.2d 366, however, stated "[t]he trial court did not abuse its discretion in refusing to submit to the jury the question of conversion...." Had there been a conversion issue remaining in the case at the conclusion of the trial, the Trial Court would have had to instruct the jury on that issue. Refusal to instruct on the conversion claim in the face of substantial evidence in support of it would have been tantamount to directing a verdict in favor of Orsini. The test for determining whether a verdict may be directed is whether there is substantial evidence in support of the claim. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991); Baucom v. City of North Little Rock, 249 Ark. 848, 462 S.W.2d 229 (1971). By suggesting the matter was within the Trial Court's discretion, our opinion was misleading. As explained above, there was no need to submit the issue to the jury in this case as it had already been decided.
Rehearing denied.
BROWN, J., not participating.