Cite as 2023 Ark. 97

SUPREME COURT OF ARKANSAS

No. CV-21-417

REBECCA NICHOLS

APPELLANT

V.

JAMES SWINDOLL AND CHUCK 

GIBSON

APPELLEES

Opinion Delivered: June 8, 2023

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT

[NO. 60CV-21-1321]

HONORABLE WENDELL GRIFFEN, 

JUDGE

AFFIRMED; COURT OF APPEALS’

OPINION VACATED.

KAREN R. BAKER, Associate Justice

Appellant Rebecca Nichols appeals from the Pulaski County Circuit Court’s dismissal 

of her legal-malpractice complaint against her attorneys, appellees James Swindoll and Chuck 

Gibson (collectively, the “Attorneys”). On appeal, Nichols argues that the circuit court 

abused its discretion in granting the Attorneys’ motion to dismiss and finding that there 

were no facts in the complaint sufficient to toll the running of the statute of limitations 

based on fraudulent concealment. We affirm. 

Nichols is a tractor-trailer driver. On or about November 23, 2014, Nichols was 

dispatched to Jonesboro, Arkansas, to pick up a trailer containing steel coils for 

transportation to Arkansas City, Kansas. Nichols attached the trailer to her truck and 

proceeded to Arkansas City. When Nichols entered the highway, the trailer swayed, causing 
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the tractor trailer to overturn. According to Nichols, the cargo was not properly loaded and 

secured, which caused the cargo to dislodge and pull the trailer into a turnover wreck. 

Nichols hired the Attorneys to represent her in her personal-injury lawsuit. On September 

21, 2017, her Attorneys filed her personal-injury complaint against John Does in the Baxter 

County Circuit Court. According to Nichols, the Attorneys were aware that they had until 

January 19, 2018, which was 120 days from the filing of the complaint, to serve the lawsuit 

or request an extension of service. The Attorneys failed to accomplish service or request an 

extension, and as a result, the statute-of-limitations period for the personal-injury claim 

expired. It is Nichols’s position that although her personal-injury claim was barred by the 

statute of limitations, her Attorneys continued her litigation despite knowing it was useless. 

Specifically, the Attorneys filed amended complaints against named parties in August 2018 

and April 2019. Nichols alleged that, due to the Attorneys’ failure to complete service, the 

malpractice occurred on January 19, 2018.1From this date, Nichols had three years—until 

January 2021—to file her legal-malpractice claim against her Attorneys. However, Nichols 

did not file her malpractice complaint until February 22, 2021. On April 7, 2021, Nichols 

filed her first amended complaint, which incorporated her original complaint. Nichols 

alleged that, in order to prevent her from discovering her claim for malpractice, the Attorneys 

maliciously, willfully, and purposefully attempted to conceal the fact that she could no longer 

 

1

In her amended complaint, Nichols asserts that the malpractice occurred in March 

2018. However, on appeal, Nichols states that the malpractice actually occurred on January 

19, 2018. 
3

successfully litigate her personal-injury claim. Nichols alleged that her Attorneys were 

negligent and breached their fiduciary duty by fraudulently and maliciously hiding their 

malpractice from Nichols. Further, Nichols asserted that in March 2020, Swindoll informed 

her that he and Gibson had committed a separate malpractice in May 2019.2 However, 

Swindoll assured Nichols that the judge might excuse their malpractice and allow her to 

continue with her lawsuit. 

On March 31, 2021, Swindoll filed his motion to dismiss, and on April 16, 2021, he 

filed his motion to dismiss the amended complaint. Swindoll argued that the malpractice 

claim was barred by the statute of limitations. Swindoll asserted that Nichols’s accident 

occurred on November 23, 2014, and therefore, the three-year statute-of-limitations period

for her personal-injury claims expired on November 23, 2017. Therefore, Swindoll argued 

that Nichols was required to bring her legal-malpractice claim on or before November 23, 

2020. As to Nichols’s assertion of fraudulent concealment, Swindoll contended that Nichols 

asserted conclusory and insufficient allegations to toll the three-year statute-of-limitations 

period for the malpractice claim against Swindoll. He contended that the February 2021

malpractice complaint was therefore time-barred by the statute of limitations and should be 

dismissed. Swindoll moved for dismissal pursuant to Rule 12(b)(6) of the Arkansas Rules of 

 

2The May 2019 malpractice claim was based on the Attorneys’ failure to serve her 

complaint on a named defendant. Below, Nichols asserted that despite informing her of the 

May 2019 malpractice, her Attorneys did not inform her of the January 2018 malpractice.
4

Civil Procedure for failure to state a claim upon which relief can be granted. On April 2, 

2021, Gibson filed a motion to dismiss asserting similar grounds.

During a May 21, 2021 hearing, the circuit court examined portions of the amended 

complaint and noted that it had not seen a specific date on which Nichols alleged that the 

Attorneys had taken any action to conceal the expiration of the limitations period. In 

reading portions of the complaint, the circuit court commented that Nichols alleged 

conclusions but did not cite any facts. The circuit court remarked that there is nothing to 

suggest that any of the Attorneys’ filings after January 2018—the last time the statute of 

limitations could have run—were intended to deceive Nichols. In closing, the circuit court 

granted the motion to dismiss based on the statute of limitations.

On June 7, 2021, the circuit court entered its written order granting the Attorneys’ 

motion to dismiss and dismissing Nichols’s malpractice complaint with prejudice. The 

circuit court found that Nichols’s claims for malpractice against her Attorneys are barred by 

the three-year legal-malpractice statute of limitations. Even if the proposed date for the 

Attorneys’ malpractice is applied—January 19, 2018—the three-year limitations period expired 

more than one month before she filed her February 2021 malpractice complaint. The circuit 

court further found that there were no facts in Nichols’s complaint or amended complaint 

sufficient to toll the running of the statute of limitations based on fraudulent concealment. 

Specifically, the circuit court found that there were no facts stated showing the elements of 

fraud, and there were no facts stated showing that the alleged fraud was furtively planned 

and secretively executed. 
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Nichols timely appealed the circuit court’s dismissal of her malpractice complaint to 

the Arkansas Court of Appeals. The court of appeals affirmed the circuit court’s dismissal 

of her legal-malpractice lawsuit. Nichols v. Swindoll, 2022 Ark. App. 233, opinion supplemented 

on reh’g, 2022 Ark. App. 399. Nichols petitioned this court for review, which we granted on 

January 26, 2023. When we grant a petition for review, we treat the appeal as if it had been 

originally filed in this court. Nalley v. Adams, 2021 Ark. 191, 632 S.W.3d 297.

Point on Appeal

On appeal, Nichols argues that the circuit court abused its discretion in granting the 

Attorneys’ motion to dismiss and finding that there were no facts contained in the complaint 

sufficient to toll the running of the statute of limitations based on fraudulent concealment. 

She contends, as she did below, that her attorneys fraudulently concealed their malpractice 

and therefore prevented her from learning that they had committed malpractice until March 

2020. Nichols also asserts that her Attorneys had a duty to speak rather than to remain silent 

with respect to their malpractice. Stated differently, it is Nichols’s position that, because of

the Attorneys’ fraudulent concealment, the statute of limitations was tolled until March 

2020—the date that she was informed of the malpractice. According to Nichols, she had 

three years from March 2020 to bring her malpractice lawsuit against her Attorneys. She 

therefore contends that she timely filed her malpractice complaint on February 22, 2021. 

The granting of a Rule 12(b)(6) dismissal is reviewed under the abuse-of-discretion 

standard. Ballard Grp., Inc. v. BP Lubricants USA, Inc., 2014 Ark. 276, 436 S.W.3d 445. “In 

order to prevail on a motion to dismiss a complaint on the basis of a statute-of-limitations 
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defense, it must be barred on its face.” Hutcherson v. Rutledge, 2017 Ark. 359, at 3, 533 S.W.3d 

77, 79. Once a defendant has affirmatively raised a statute-of-limitations defense, and it is 

clear from the face of the complaint that the action is barred by the applicable limitations 

period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that 

the statute of limitations was in fact tolled. Id. at 4, 533 S.W.3d at 80. The statute-oflimitations period for legal-malpractice actions is three years. Ark. Code Ann. § 16-56-105(3)

(Repl. 2005). Absent concealment, it begins to run upon the occurrence of the wrong. 

Delanno, Inc. v. Peace, 366 Ark. 542, 545, 237 S.W.3d 81, 84 (2006) (citing Goldsby v. Fairley, 

309 Ark. 380, 831 S.W.2d 142 (1992)). “Fraudulent concealment suspends the running of 

the statute of limitations, and the suspension remains in effect until the party having the 

cause of action discovers the fraud or should have discovered it by the exercise of due 

diligence.” Shelton v. Fiser, 340 Ark. 89, 96, 8 S.W.3d 557, 561 (2000).

In order to establish fraud, a plaintiff must prove five elements under Arkansas law: 

(1) that the defendant made a false representation of material fact; (2) that the defendant 

knew that the representation was false or that there was insufficient evidence upon which to 

make the representation; (3) that the defendant intended to induce action or inaction by the 

plaintiff in reliance upon the representation; (4) that the plaintiff justifiably relied on the 

representation; and (5) that the plaintiff suffered damage as a result of the false 

representation. Ark. Dev. Fin. Auth. v. Wiley, 2020 Ark. 395, 611 S.W.3d 493 (citing Muccio 

v. Hunt, 2016 Ark. 178, 490 S.W.3d 310).
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To show concealment, “not only must there be fraud, but the fraud must be furtively 

planned and secretly executed so as to keep the fraud concealed.” Delanno, 366 Ark. at 545, 

237 S.W.3d at 84. Though alleging fraud is necessary, it is not alone sufficient to toll the 

statute of limitations. Id. at 546, 237 S.W.3d at 85. In order to toll the statute of limitations,

the fraud perpetrated must be concealed. Id. at 545, 237 S.W.3d at 84. (citing Shelton v. Fiser, 

340 Ark. 89, 8 S.W.3d 557 (2000)). Fraudulent concealment consists of “some positive act 

of fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause 

of action concealed, or perpetrated in a way that conceals itself.” Shelton, 340 Ark. at 96, 8 

S.W.3d at 562.

Treating the facts alleged in the complaint as true, Nichols has failed to sufficiently 

plead fraudulent concealment. As set forth above, to sustain an action for fraud, one must 

plead the five elements of fraud. The first element is a false representation of material fact. 

Here, we cannot say that Nichols has sufficiently pleaded that the Attorneys made a false 

representation of material fact. The absence of any one element of fraud is a sufficient basis 

for the circuit court to dismiss a claim of fraud. See Anderson’s Taekwondo Ctr. Camp Positive, 

Inc. v. Landers Auto Grp. No. 1, Inc., 2015 Ark. 268, at 8 (affirming dismissal of fraud claim 

where plaintiff failed to satisfy the first element).

Further, even assuming that she did sufficiently plead the five elements of fraud, 

Nichols has failed to plead an act of fraud that was furtively planned and secretly executed 

by the Attorneys. As set forth above, “not only must there be fraud, but the fraud must be 

furtively planned and secretly executed so as to keep the fraud concealed.” Delanno, 366 Ark. 
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at 545, 237 S.W.3d at 84. In that case, Delanno’s attorneys were responsible for obtaining 

a tax-clearance letter from the State, which would absolve Delanno from any tax liability for 

a purchase that Delanno had made. The attorney assured Delanno that they had secured 

the tax-clearance letter and that he would be relieved of any tax liability that would have 

otherwise resulted from the purchase. Months later, the State notified Delanno that he was 

liable for taxes owed on the purchase. Delanno’s wife contacted the attorneys concerning 

the tax issue and was advised that the attorneys had a tax-clearance letter on file, that Delanno 

owed no taxes resulting from the purchase, and that the attorneys would take care of the 

matter. Three years later, Delanno was again notified by the State that he owed taxes as a 

result of his purchase. After a series of exchanges between Delanno and his attorneys, it 

became apparent that the attorneys had filed the tax-clearance letter with the wrong tax 

identification number and that, as a result of this oversight, Delanno owed the taxes as 

indicated by the State. Delanno filed a malpractice suit against his attorneys. In response, 

the attorneys moved for summary judgment, claiming that the action was barred by the 

statute of limitations. The circuit court granted the motion for summary judgment and 

Delanno appealed. The issue on appeal was whether the circuit court erred in granting 

summary judgment to the attorneys on the ground that the statute of limitations barred the 

action when Delanno pleaded fraudulent concealment. We affirmed the circuit court’s 

order granting summary judgment in favor of the attorneys, holding that Delanno failed to 

show that the attorneys’ inaccurate statements were furtively planned and executed, or 

concealed. 
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We find Delanno to be dispositive of the present case and hold that Nichols has failed 

to plead fraudulent concealment. A close review of Nichols’s complaint demonstrates that 

she failed to allege “something so furtively planned and secretly executed as to keep the 

plaintiff’s cause of action concealed, or perpetrated in a way that conceals itself.” Delanno, 

366 Ark. at 545, 237 S.W.3d at 84 (citing Shelton, 340 Ark. at 96, 8 S.W.3d at 562). Absent 

fraudulent concealment, the statute of limitations was not tolled until March 2020. Instead, 

it began to run on January 19, 2018 and expired three years later on January 19, 2021.3 On

this basis, Nichols’s February 2021 malpractice complaint was untimely filed. Accordingly, 

the circuit court did not abuse its discretion in dismissing her untimely filed malpractice 

complaint.

Affirmed; court of appeals’ opinion vacated.

WOOD, WOMACK, and WEBB, JJ., dissent.

SHAWN A. WOMACK, Justice, dissenting. We have an opportunity to hold attorneys 

to the same standard as other fiduciary and confidential relationships.1 Yet we extend 

protection and favoritism to our own profession, while rightly withholding it from others.2 

 

3We note that Swindoll takes the position that the statute of limitation for the

malpractice claims expired on November 23, 2020. However, Swindoll acknowledges that 

even if we apply the more generous date of January 19, 2021, Nichols’s malpractice claim is 

still time barred because it was not filed until February 2021. 

1Howard v. Nw. Ark. Surgical Clinic, P.A., 324 Ark. 375, 383, 921 S.W.2d 596, 600 

(1996) (explaining that a physician “had an obvious professional, positive duty to speak if he 

knew he had negligently left a foreign object in his patient[,]” and his failure to do so 

amounted to fraudulent concealment).

2

See id.
10

Unlike the majority, I would hold that Rebecca Nichols pled sufficient facts to establish 

fraudulent concealment because silence amounts to a positive act of fraud when there is a

confidential or fiduciary relationship.3 

“A fiduciary relationship exists between attorney and client, and the confidence 

which the relationship begets between the parties makes it necessary for the attorney to act 

in utmost good faith.”4 An attorney “must not only not misrepresent any fact to his client, 

but there must be an entire absence of concealment or suppression of any facts within his 

knowledge which might influence the client, and the burden of establishing the fairness of 

the transaction is upon the attorney.”5

When such a relationship exists, the duty to speak arises.6 The Restatement (Third) 

of the Law Governing Lawyers7succinctly explains why. 

A lawyer must keep a client reasonably informed about the status of a matter 

entrusted to the lawyer, including the progress, prospects, problems, and costs 

of the representation. . . . If the lawyer’s conduct of the matter gives the client 

a substantial 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 

 

3Ward v. Worthen Bank & Tr. Co., 284 Ark. 355, 359, 681 S.W.2d 365, 368 (1984)

(noting that “[f]ailure to speak is the equivalent of fraudulent concealment only in 

circumstances involving a confidential relationship when a duty to speak rises where one 

party knows another is relying on misinformation to his detriment”).

4Allen v. Allison, 356 Ark. 403, 415, 155 S.W.3d 682, 691 (2004). 

5Norfleet v. Stewart, 180 Ark. 161, 168, 20 S.W.2d 868, 870 (1929).

6

See Ward, 284 Ark. at 359, 681 S.W.2d at 368.

7

Section 20 cmt. c (2000 & Supp. 2021).
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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.

We have adopted rules of professional conduct that try to guard against the forewarned 

deception, namely that a “[l]awyer may not withhold information to serve the lawyer’s own 

interest or convenience or the interests or convenience of another person.”8 What better 

example of this is there than a lawyer maintaining a futile lawsuit to run out the statute of 

limitations on a legal-malpractice claim?

The relevant portions of Nichols’s amended complaint allege the following facts to 

support her allegations that Swindoll and Gibson fraudulently concealed their malpractice: 

Swindoll and Gibson:

c. purposefully and fraudulently and maliciously on March 22, 2018, and 

afterwards failed to advise Rebecca that by them failing to request an extension 

on or before March, 2018, to serve the John Doe defendants, Rebecca’s further 

litigation efforts were useless; had Defendants acted with a reasonable degree 

of care they would have immediately after March 22, 2018, informed Rebecca 

of their malpractice to put her on notice she needed to sue them;

d. purposefully and fraudulently and maliciously attempted to hide their 

malpractice from Rebecca because they incorrectly believed that she could not 

sue them for malpractice after November 23, 2020; had defendants acted with 

a reasonable degree of care they would have immediately after March 22, 2018, 

informed Rebecca of their malpractice to put her on notice she needed to sue 

them;

e. purposefully and fraudulently and maliciously continued to fruitlessly 

litigate Rebecca’s lawsuit against the John Doe defendants after March 22, 

2018, in order to hide their malpractice from Rebecca long enough so she 

would be barred by the three-year statute of limitations from suing them; had 

 

8Ark. R. Prof’l Conduct 1.4 cmt. 7. 
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defendants acted with a reasonable degree of care they would have 

immediately after March 22, 2018, informed Rebecca of their malpractice to 

put her on notice she needed to sue them;

f. purposefully and fraudulently and maliciously waited until after March 13, 

2020, to inform Rebecca they had technically committed malpractice and 

fraudulently advised her that the judge would forgive the technicality and 

allow her to continue her lawsuit;

g. willfully and maliciously disregarded their fiduciary duty to Rebecca;

h. were aware their above actions in representing Rebecca would naturally and

probably result in damage to her in excess of $75,000 and yet continued with 

malice or in reckless disregard of the consequences from which malice can be 

inferred.

At this stage, we presume these well-pled facts to be true.9 By doing so, neither we nor the 

circuit court can properly conclude that Nichols failed to allege facts to support a claim of 

fraudulent concealment when her attorneys had a duty to inform her of their malpractice 

when they learned of it.10

As Chief Judge Brandon Harrison presciently warned below, “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.”11 I share these concerns and worry that 

 

9Henson v. Cradduck, 2020 Ark. 24, at 4, 593 S.W.3d 10, 14.

10See Norfleet, 180 Ark. at 168, 20 S.W.2d at 870; see also Restatement (Third) of 

the Law Governing Lawyers § 20 cmt. c; see also Ark. R. Prof’l Conduct 1.4 cmt. 7. 

11Nichols v. Swindoll, 2022 Ark. App. 399, at 8 (Harrison, C.J., dissenting).
13

the majority has authored a playbook for attorneys to escape liability, cutting off innocent 

and unsuspecting clients from any chance at compensation they may be due. I have no 

opinion on the merits of Nichols’s malpractice claim; that is for a jury to decide. But because 

of today’s decision, Nichols will never have that opportunity. 

I respectfully dissent.

WOOD and WEBB, JJ., join.

Harry McDermott and Robert S. Tschiemer, for appellant.

Barber Law Firm, PLLC, by: G. Spence Fricke and Adam D. Franks, for separate appellee 

James Swindoll.