Cite as 2022 Ark. App. 399

ARKANSAS COURT OF APPEALS

DIVISIONS II & III

No. CV-21-417

REBECCA NICHOLS

APPELLANT

V.

JAMES SWINDOLL AND CHUCK 

GIBSON

APPELLEES

Opinion Delivered October 5, 2022

APPEAL FROM THE PULASKI 

COUNTY CIRCUIT COURT, FIFTH 

DIVISION

[NO. 60CV-21-1321]

HONORABLE WENDELL GRIFFEN, 

JUDGE

SUPPLEMENTAL OPINION ON 

GRANT OF REHEARING

N. MARK KLAPPENBACH, Judge

In May 2022, we affirmed the circuit court’s dismissal of the legal-malpractice lawsuit 

that was filed by appellant Rebecca Nichols against her attorneys, appellees James Swindoll 

and Chuck Gibson. See Nichols v. Swindoll, 2022 Ark. App. 233. The circuit court had granted 

the attorneys’ motion to dismiss, which asserted that any negligence claim was barred by the 

applicable three-year statute of limitations and that Nichols failed to adequately plead that 

the attorneys fraudulently concealed their malpractice. Nichols filed a petition for rehearing

following our original opinion.

We issue this supplemental opinion only to respond to the dissenting opinions.

Chief Judge Harrison contends that we used the wrong standard of review in this appeal and 
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that a litany of cases from a multitude of federal and state courts show that the standard of 

review must be “de novo.” We applied the “abuse of discretion” standard, which has been 

recited numerous times over the years from this court, and more importantly, our supreme 

court. See, e.g., Steinbuch v. Univ. of Ark., 2019 Ark. 356, 589 S.W.3d 350; Rhodes v. Kroger 

Co., 2019 Ark. 174, 575 S.W.3d 387. We are bound by Arkansas Supreme Court precedent 

and are powerless to overturn it. Nichols herself alleged in her point on appeal that the 

standard of review is “abuse of discretion.” While we appreciate the research presented by 

our dissenting colleague, his dissent presents arguments vigorously researched for the 

appellant and presented for the first time on petition for rehearing. This is not a proper 

basis for rehearing. 

Both Chief Judge Harrison and Judge Hixson take issue with the level of duty placed 

on lawyers to communicate potential legal errors and whether this complaint should have 

survived the motion to dismiss. Chief Judge Harrison goes so far as to suggest that we revisit 

Rice v. Ragsdale, 104 Ark. App. 364, 292 S.W.3d 856 (2009), because it “overstepped” and 

needs “correction.” Nichols cited Rice in her appellate brief and did not question its validity 

as precedent. The Rice holding rejected the notion that an attorney’s fiduciary duty extended 

to requiring disclosure of potential legal malpractice and rejected the idea that failure to 

disclose that negative information was evidence of an intent to conceal for purposes of tolling 

the statute of limitations. This court’s majority opinion followed Arkansas law as it stands 

today. Again, while we appreciate the scholarly and informative dissenting opinions, they 

make arguments for the appellant that were never raised by the appellant herself. 
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Arkansas law requires an appellant’s complaint to contain facts sufficient to support 

the application of fraudulent concealment to toll the statute of limitations. Floyd v. Koenig, 

101 Ark. App. 230, 274 S.W.3d 339 (2008). We held that the circuit court did not err, and

we stand by that decision for the reasons previously stated. The dissenting judges simply 

disagree with the majority’s assessment. 

ABRAMSON, WHITEAKER, and BROWN, JJ., agree. 

HARRISON, C.J., and HIXSON, J., dissent.

GRUBER, J., not participating.