Arkansas: Case involving Wrong legal advice

Link for opinion: http://courts.arkansas.gov/court_opinions/sc/2010a/20100311/Lindsey%20v.%20Gary%20Green.pdf

Citation: Lindsey v. Green, No. 09-453, 2010 Ark. 118 (Ark Sup Ct, March 11, 2010)


In October of 1999 Lindsey and Ellis the appellants filled a claim against their previous employers for sexual harassment. Diane Sexton and Kelli Cashion were their attorneys for the sexual harassment claim. A motion for summary judgment was granted because Lindsey and Ellis had failed to obtain and “right to sue letter” from the Equal Employment Opportunity Commission (EEOC).

In July of 2010 the appellants had filed a new complaint alleging that the legal advice given by their counsel was wrong and therefore was negligent. This is because it was claimed that Sexton and Cashion has assured the appellants that there was no need to file with the EEOC. In December of 2000 the complaint was amended to include Green and his law office. The amendment of the complaint was due to the fact that the appellants claims that following the filing of the complaint in federal court, but prior to the dismissal of the complaint, Sexton had become an employee of Green, and that during that time, the complaint could have been amended to include causes of action under state law, such as the tort of outrage, a claim for negligent hiring and retention, and a claim of discrimination under the Arkansas Civil Rights Act.

In response Green filed one motion which among other things claimed that it was the appellants own fault that they did not refill their claim with the state court before the statute of limitations had expired. The appellants asserted that green’s use of the law was incorrect and all other filings were barred due to res judicata. The courts granted a summary judgment to Green saying that the appellants failed to show causation.

The Arkansas Supreme Court is trying to decide is if under the doctrine of res judicata does the dismissal of the case, for failure to file with the EEOC, bar any state claims from being filed. Res judicata only applies in cases where the decision is based on the merits, or the essential facts of the case. Because this case was dismissed for failure to satisfy a precondition is it not considered on the merits and therefore not barred. Therefore the appellants did not refill the complaint with the state court before the statute of limitations had expired creating the actual causation for their damages, and the judgment was affirmed

This uses the case law from Criales v. Am. Airlines, Inc., 105 F.3d 93 (2d Cir. 1997) to find authority on the issue. This was an on point case in which res judicata was being looked at after a dismissal for failure to satisfy preconditions. Additionally, Restatement (Second) of Judgments § 20(2) (1982) was looked at when the Supreme Court was determining the relevance of a precondition in the merits of a action as it defines res judicata.