Full Opinion

Cite as 2026 Ark. App. 449 ARKANSAS COURT OF APPEALS DIVISION I No. CV-25-606 LLOYD W. “TRE” KITCHENS; AND Opinion Delivered September 30, 2026 BRAD HENDRICKS, PA, D/B/A THE BRAD HENDRICKS LAW FIRM APPEAL FROM THE PULASKI APPELLANTS COUNTY CIRCUIT COURT, FOURTEENTH DIVISION [NO. 60CV-22-5070] V. HONORABLE SHAWN J. JOHNSON, CARROLL “DON” JOHNSON JUDGE APPELLEE AFFIRMED STEPHANIE POTTER BARRETT, Judge This appeal arises from a legal-malpractice action brought by Dr. Carroll “Don” Johnson (“Johnson”) against his former attorneys, Lloyd W. “Tre” Kitchens (“Kitchens”) and The Brad Hendricks Law Firm (collectively referred to as “the attorneys”). The attorneys represented Johnson in litigation against Pope Emergency Group, Schumacher Group of Arkansas, and St. Mary’s Regional Medical Center. Johnson’s original claims were nonsuited on September 9, 2016, due to a defective summons. A counterclaim filed by Pope Emergency Group, which related to a $30,000 bonus payment Johnson received, remained.1 1 Pope’s counterclaim, CV-18-511, was affirmed by this court in Johnson v. Pope Emergency Group, LLC (Johnson I), 2019 Ark. App. 544, 589 S.W.3d 462 . Johnson’s claims were refiled on November 21, 2016, but ultimately dismissed2 because the summons failed to comply with then-existing Arkansas Rule of Civil Procedure 4.3 Johnson thereafter sued his attorneys for malpractice. At trial, the dispute centered on whether Johnson could prove the “case within the case”—specifically, whether he would have prevailed on his tortious-interference claim against St. Mary’s but for the attorneys’ negligence. The jury found for Johnson and awarded him $400,000. On appeal, Kitchens argues (1) he is entitled to reversal because Johnson failed to prove the case within the case; (2) this court’s ruling in Johnson I would have prevented Johnson from prevailing under the law-of-the-case and collateral-estoppel doctrines; and (3) Johnson’s failure to put on any proof at trial that a judgment recovered would have been collectible is fatal to his case. We affirm. I. Relevant Background This case arises from attorney Kitchens’s representation of Johnson in litigation stemming from the termination of Johnson’s work as an emergency-room physician at St. Mary’s Regional Medical Center in Russellville. Johnson previously worked at St. Mary’s for approximately nine years before leaving in 2009 and practicing at St. Bernards in Jonesboro. In 2014, Schumacher Group recruited Johnson to return to St. Mary’s, where 2 The dismissal of Johnson’s refiled action, CV-18-509, was affirmed by this court in Johnson v. Schumacher Group of Arkansas, Inc. (Johnson II), 2019 Ark. App. 470, 589 S.W.3d 470. 3 The version of Arkansas Rule of Civil Procedure 4 relied on during the pendency of this case is not the current version. However, it will be applied to our analysis in this appeal because it was the governing law at that time. 2 he provided emergency-room services pursuant to an agreement with Pope Emergency Group, a Schumacher-related entity. Under the physician agreement, Johnson was not required to follow a policy or direction concerning the practice of medicine that he in good faith considered contrary to a patient’s best medical interests or reasonably believed violated applicable law, regulation, or medical ethics. The agreement also permitted Pope to terminate Johnson immediately and without written notice if hospital administration requested his removal or reported that he was disruptive, unprofessional, or unreasonably uncooperative with hospital staff. After returning to St. Mary’s, Johnson became concerned about the hospital’s use of nurse-initiated order sets. Johnson testified that nurses were able to select computerized order sets and initiate testing and medication in his name before he examined the patient or approved the orders. He described one instance in which a nurse administered ketamine to a patient before Johnson was present to conduct and monitor the planned conscious sedation. Johnson testified that such practices concerned him because of the potential risk to patients. Johnson noted his objections first to the nurses and then to Dr. McLane Simpson, the Schumacher physician serving as medical director of St. Mary’s emergency department. Johnson testified that because he contracted through Schumacher, concerns regarding the emergency department were to be taken to Schumacher rather than directly to the administration at St. Mary’s. Simpson testified that nurses had complained to him that Johnson did not want them using nurse-initiated order sets, including protocols involving EKGs and the administration of Tylenol. Simpson explained the order sets permitted nurses, on the basis of a patient’s 3 presenting complaint, to initiate specified tests or medications before a physician examined the patient, with the physician later approving the resulting orders. Simpson considered the order sets a standard emergency-room practice intended to promote prompt patient care and testified the other emergency physicians at St. Mary’s did not object to their use. After Johnson expressed his objections, however, Simpson agreed to a trial period during which the nurses would not use the order sets during Johnson’s shifts. Simpson testified he did so to allow Johnson to practice medicine as he saw fit, although Simpson remained concerned about whether Johnson could see patients and initiate necessary treatment promptly without the order sets. Dr. Thomas Tobin, an emergency physician and hospital chief medical officer, testified as Johnson’s expert regarding the nurse-initiated order sets. Tobin had approximately twenty years of experience practicing emergency medicine and had developed and worked with nurse-initiated protocols himself. He explained that nurse- initiated order sets are not inherently inappropriate and may expedite patient care when properly limited. After reviewing the order sets used at St. Mary’s in 2014, however, Tobin described them as the most extensive he had encountered and opined that their breadth permitted nurses to make decisions that normally required physician evaluation. He further opined that the extent of the testing suggested a revenue-generating purpose, and after-the- fact physician approval of orders already implemented by nurses was inappropriate. On cross-examination, Tobin acknowledged nurse-initiated order sets are widely used, that professional emergency-medicine organizations recognize their use, and he had not communicated with the administration at St. Mary’s regarding Johnson or the order sets. 4 He also was unaware the nursing staff had been instructed not to use the order sets during Johnson’s shifts. Within approximately one or two weeks after Simpson implemented the trial period, an incident occurred between Johnson and Jayme Smalley, the director of emergency services at St. Mary’s. Smalley testified that, before June 27, 2014, she had little interaction with Johnson, had no particular opinion of him, and regarded him as a competent emergency physician. On June 27, a nurse asked Smalley to address concerns raised by a patient and the patient’s family regarding Johnson’s decision to discharge the patient, to administer medication intramuscularly rather than through an existing IV, and not to send certain blood work. Smalley told the family those were physician decisions and went to ask Johnson to return to the room and explain his treatment decisions. According to Smalley, Johnson’s tone became louder as their conversation continued. She testified he declined to return to the patient’s room, told her she was not a doctor, and refused her requests to move their discussion into a private room. Smalley testified Johnson eventually moved closer to her and pointed a finger toward her chest without touching her. She described the encounter as intimidating and uncomfortable but specifically testified Johnson did not threaten her. She further clarified Johnson did not yell or scream, although his voice became louder than normal and she considered his tone condescending. Johnson disputed Smalley’s characterization of the confrontation. He acknowledged the interaction occurred publicly in the emergency department but denied the allegations that he acted aggressively toward Smalley. Johnson testified that, after the incident, he 5 expected to meet with Simpson and Smalley to discuss both the encounter and the nurse- initiated order sets. Instead, he learned the following Tuesday that Schumacher intended to conduct a corporate telephone conference. Johnson then contacted Kitchens because he believed he needed legal representation and acknowledged he thought he might be terminated. Smalley reported the incident to the administration at St. Mary’s. She testified she told the chief nursing officer the interaction had been inappropriate and also expressed concern about the care Johnson provided to the patient. Smalley acknowledged that, in light of her nursing experience, she disagreed with both the treatment provided and Johnson’s refusal to return to explain his decisions to the patient and family. She then spoke with the chief executive officer at St. Mary’s, Donnie Frederic, who told her she would not have to deal with the situation again and instructed her to report the matter in detail to the St. Mary’s chief operating officer, Mike McCoy. Smalley stated that by the time she spoke to McCoy, she personally preferred that Johnson no longer provide care in the St. Mary’s emergency department. She testified, however, that she did not know the ultimate reason Johnson was terminated. Smalley also acknowledged Johnson did not yell at her, use profanity, or threaten her. Simpson likewise received competing accounts of the June 27 encounter. Smalley reported Johnson raised his voice during an argument in the emergency department and refused to move the conversation to a private room. She also told Simpson that McCoy wanted Johnson to be terminated. Johnson, by contrast, told Simpson that Smalley had raised her voice and been disrespectful and denied he raised his own voice. Johnson 6 requested a meeting with Simpson and Smalley to address the situation. Simpson testified he did not necessarily believe one account over the other and concluded only that the two had gotten into an argument. On June 30, Simpson received an email from McCoy stating that, “as [they] discussed,” St. Mary’s did not want Johnson working in its emergency room because his conduct the preceding Friday was unacceptable. Simpson testified he had not personally discussed the matter with McCoy before receiving that email. Simpson explained he instead reported the matter to Schumacher’s regional vice president, Dan Newhaller, who later told Simpson he had spoken with McCoy and Schumacher’s legal team, and St. Mary’s wanted Johnson terminated. Simpson ultimately testified that, in his opinion, Johnson was terminated because of the Smalley incident and because the administration at St. Mary’s wanted him removed. Johnson’s contract was thereafter terminated. Johnson retained Kitchens to represent him in litigation against Pope, Schumacher, and St. Mary’s. Kitchens filed an action in 2014 asserting claims arising from the termination, including a tortious-interference claim against St. Mary’s. Kitchens later nonsuited that action and refiled substantially similar claims in November 2016. The summonses used in the refiled case stated that a default judgment “will” be entered if the defendants failed to respond rather than stating that a default judgment “may” be entered as required by then existing Arkansas Rule of Civil Procedure 4. The circuit court dismissed the refiled case because of the defective summonses, and the dismissal was affirmed on appeal. 7 Attorney Mark Riable testified as Johnson’s expert on the applicable standard of care. Riable, an Arkansas attorney licensed since 1981, reviewed the underlying litigation, the appellate decisions, and the summonses. He opined that use of the fatally defective summonses fell below the standard of care required of an Arkansas attorney, and counsel bore responsibility for ensuring the summonses complied with Arkansas law. He further testified the defect could have been corrected within the applicable time by obtaining and serving proper summonses. On cross-examination, Riable acknowledged his longstanding personal and professional relationship with Kitchens and acknowledged he could not say he personally had reread every word of every summons in every case. He nevertheless maintained that responsibility for serving a correct summons rests with the lawyer and explained his office used summons forms that had first been checked against the governing rules. Kitchens testified in his own defense. He explained he withdrew from Johnson’s representation before the defendants ultimately moved to dismiss the refiled case due to the distinction between “will” and “may” in the summonses. He testified that no defendant had previously indicated confusion concerning the summons language. Kitchens disagreed with Riable’s standard-of-care opinion and testified that, in his view, failing to catch the one- word discrepancy did not constitute negligence. He also maintained that, as the underlying litigation progressed, he believed Johnson’s claims became weaker. After the parties rested, the circuit court instructed the jury that Johnson was required to prove damages, negligence by Kitchens and the Hendricks firm, and proximate cause. In deciding proximate cause, the jury was instructed to consider whether Johnson would have 8 prevailed against St. Mary’s, the damages or probable settlement he would have recovered, and the extent to which a judgment against St. Mary’s would have been collectible. The jury was further instructed that the underlying tortious-interference claim required Johnson to prove St. Mary’s intentionally and improperly caused disruption or termination of his contractual relationship and that Johnson contended the conduct of St. Mary’s was improper because it retaliated against him for objecting to the nurse-initiated order sets. On April 17, 2025, the jury returned a unanimous verdict in favor of Johnson and against Kitchens and the Brad Hendricks Law Firm, awarding Johnson $400,000 in damages. II. Discussion Kitchens challenges the denial of his motions for a directed verdict and judgment notwithstanding the verdict (“JNOV”). We review the denial of either motion by asking whether substantial evidence supports the jury’s verdict. S. Farm Bureau Cas. Co. v. Spears, 360 Ark. 200, 200 S.W.3d 436 (2004). We view the evidence and all reasonable inferences in the light most favorable to Johnson, the party against whom the motions were sought, and we do not weigh witness credibility. Id. Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty and to move the mind to pass beyond suspicion or conjecture. Id. A. Law of the Case and Collateral Estoppel Although Kitchens raises it as his second point, we first address his threshold argument that law of the case and collateral estoppel precluded Johnson from proving the underlying tortious-interference claim. We hold neither doctrine applies. 9 Law of the case prohibits reconsideration of issues decided in an earlier appeal and makes the appellate decision controlling on remand and in a later appeal of the same case. See Entergy Ark., Inc. v. Allen, 2021 Ark. App. 71, 618 S.W.3d 427. Its purpose is to maintain consistency during the course of a single, continuing lawsuit. Id. It therefore does not ordinarily extend to a separate action, even one involving overlapping facts or documents. Id. The prior appeal arose from Pope’s counterclaim for repayment of Johnson’s signing bonus. The present appeal arises from a later malpractice action against Johnson’s former attorneys and requires a case-within-a-case determination concerning the tort liability of St. Mary’s. Therefore, because this is neither a remand nor a subsequent appeal in the same continuing lawsuit, law of the case does not apply. See id. Collateral estoppel, by contrast, “may bar a party from relitigating an issue decided against it in a later and different case.” See id. at 18, 618 S.W.3d at 438 (quoting 1 Carmody- Wait, Cyclopedia of New York Practice § 2:358 (2d ed.)). It applies only when (1) the issue sought to be precluded is the same as that involved in the prior litigation; (2) the issue was actually litigated in the prior proceeding; (3) the issue was determined by a final and valid judgment; and (4) the determination was essential to the judgment. Winrock Grass Farm, Inc. v. Affiliated Real Estate Appraisers of Ark., Inc., 2010 Ark. App. 279, at 10, 373 S.W.3d 907, 914. Collateral estoppel also “does not require mutuality of parties”; therefore, it is possible for a stranger to the first decree to assert collateral estoppel in a subsequent action. Id. at 10, 373 S.W.3d at 913–14. 10 The fourth requirement is dispositive here. The prior appeal decided whether Pope was entitled to summary judgment on its contractual counterclaim. Johnson argued Pope breached first by terminating him in violation of public policy. That decision did not depend on a determination of the motive of St. Mary’s: the court held that Johnson, an independent contractor, could not pursue a wrongful-discharge theory reserved for at-will employees and, alternatively, that he had not identified an established public policy prohibiting the order sets. Any further discussion of why St. Mary’s requested his removal was therefore unnecessary to Pope’s judgment. Nor did the prior appeal adjudicate the nonsuited tortious- interference claim against St. Mary’s. Accordingly, because the asserted determination was not essential to the prior judgment, collateral estoppel does not apply. We therefore hold that neither law of the case nor collateral estoppel precluded the jury from deciding whether Johnson would have prevailed on his tortious-interference claim against St. Mary’s. B. Tortious Interference An attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of a client. Nash v. Hendricks, 369 Ark. 60, 250 S.W.3d 541 (2007). To prevail on a claim of attorney malpractice, a plaintiff must prove the attorney’s conduct fell below the generally accepted standard of practice and that such conduct proximately caused the plaintiff damages. Id. To prove damages and proximate cause, the plaintiff must show that, but for the alleged negligence of the attorney, the result in the underlying action would have been different. Id. In this respect, a plaintiff must prove a case within a case, since the plaintiff must prove the merits of the underlying case as part of the proof of the malpractice 11 case. Id. An attorney is liable to a client when, acting in good faith, that attorney makes mere errors of judgment. Id. Moreover, an attorney is not, as a matter of law, liable for a mistaken opinion on a point of law that has not been settled by the highest court of jurisdiction and on which reasonable attorneys may differ. Id. The underlying claim required proof (1) of a valid contractual relationship or a business expectancy; (2) St. Mary’s knew of that relationship or expectancy; (3) of intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) of resulting damage. Crockett v. C.A.G. Invs., Inc., 2010 Ark. 90, 361 S.W.3d 262. Our law requires the conduct of the defendants be at least “improper.” K.C. Props. of Nw. Ark., Inc. v. Lowell Inv. Partners, LLC, 373 Ark. 14, 26, 280 S.W.3d 1, 11 (2008). In assessing impropriety, courts consider, among other things, the nature and motive of the actor’s conduct, the interests affected and advanced, the proximity of the conduct to the interference, and the parties’ relationship. Baptist Health v. Murphy, 2010 Ark. 358, at 14–15, 373 S.W.3d 269, 281. Substantial evidence supports each element. First, Johnson had a valid physician agreement with Pope under which he provided emergency-room services at St. Mary’s. Second, the jury could readily infer St. Mary’s had knowledge of that agreement: Pope staffed the emergency department at St. Mary’s, and the physician agreement authorized Pope to terminate Johnson if St. Mary’s requested his removal. Third, the evidence established direct and intentional interference. McCoy told Simpson that St. Mary’s no longer wanted Johnson working in its emergency room; that request was relayed to Pope; and Pope terminated Johnson because St. Mary’s requested his 12 removal. Intent does not require proof that St. Mary’s acted with malice. It is enough that St. Mary’s desired the interference or knew the termination was substantially certain to result from the request. See Stewart Title Guar. Go. v. Am. Abstract & Title Co., 363 Ark. 530, 547, 215 S.W.3d 596, 606 (2005). Here, the agreement made that consequence express, and the requested termination followed. Fourth, the termination disrupted Johnson’s contractual relationship and ended the compensation he expected to earn under it. The jury found that disruption caused compensable loss and fixed the amount at $400,000. Thus, the evidence supported both resulting damage and the amount awarded. The remaining question is whether substantial evidence supported the jury’s finding that the interference by St. Mary’s was improper. Kitchens emphasizes evidence that St. Mary’s acted because of Johnson’s confrontation with Smalley and his prior reputation, but the jury was not required to accept that explanation. Johnson presented evidence that he objected to order sets that permitted nurses to initiate extensive testing and medication in a physician’s name before the physician examined the patient; Tobin opined the order sets exceeded those he had encountered and suggested a revenue-generating purpose; Johnson was the only emergency physician who objected; and the removal request closely followed his dispute with the nursing staff over the practice. The testimony about the Smalley incident also permitted a finding of pretext. Smalley acknowledged Johnson did not yell, use profanity, threaten her, or touch her. Simpson received conflicting accounts, did not credit one over the other, and understood only that an argument had occurred. Yet within days, St. Mary’s requested Johnson’s removal without 13 the meeting Johnson had sought to address the incident and the order sets. Viewed in Johnson’s favor, the nature, motive, and timing of Johnson’s termination by St. Mary’s permitted a reasonable jury to find the stated behavioral concerns masked retaliation for Johnson’s objections to a practice he believed jeopardized patient care. Retaliating against a physician for raising such concerns supplied a sufficient basis for the jury to find the interference improper. Kitchens’s competing explanation presented a credibility question, not a failure-of- proof question. Substantial evidence supports each element of the underlying tortious- interference claim, and the circuit court properly denied the directed-verdict and JNOV motions. We affirm. C. Collectability Finally, Kitchens argues Johnson’s failure to present affirmative proof of collectability requires reversal. We acknowledge that AMI 1511 provides that in deciding the issue of proximate cause in this case, there are a number of factors you must consider, including “to what extent a judgment against the putative defendant would have been collectible.” However, in the two leading cases discussing the requirements of proof in an attorney malpractice case, Southern Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112, 118 S.W.3d 525 (2003), and Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003), the Supreme Court of Arkansas has not required the plaintiff to present affirmative proof of collectability. Although the jury instruction requires the jury to consider collectability, it does not require that it be proven beyond a preponderance of the evidence. Therefore, we decline to adopt Kitchens’s argument under these circumstances. 14 Affirmed. BROWN, J., agrees. HARRISON, J., concurs. BRANDON J. HARRISON, Judge, concurring. In October 2025, Johnson moved to dismiss this appeal because the record was not timely filed under Ark. R. App. P.–Civ. 5. Kitchens responded, and in November 2025, a court majority denied the motion without opinion. I voted to dismiss the appeal at that time (with two other judges) based on my review of the record, the arguments made in the motion, and Kitchens’s strong opposition to it. Nothing meaningful has changed since then. Therefore, I would dismiss this appeal. The result is the same as my colleagues’ merit opinion—an affirmation of the decision below. * Kitchens might think that I am bound by the court majority’s denial of the motion and cannot act contrary to it. To that understandable point an explanation is owed. First, as mentioned, I and two additional judges concluded before this case was submitted that we lacked appellate jurisdiction and voted so. Second, and perhaps more to Kitchens’s (admittedly presumed) concern, one of this court’s internal rules permits a panel to revisit a motion to dismiss when a case is submitted. Internal Rule of the Court of Appeals 17 (revised February 2025).1 So my decision today mirrors a prior view on the same issue and 1 The rule states in full: MOTIONS TO DISMISS APPEALS. A motion by an appellee to dismiss an appeal will be submitted to the court at a regular opinions conference (Tuesdays). If the motion is denied, this denial does not preclude the division to which the 15 record; and it accords with an internal rule on point. A dismissal is oftentimes regrettable, as it is here, but in my view the law requires it. I respectfully concur. Gordon Rees Scully Mansukhani, LLP, by: Haley M. Heath, Samuel Wilson, and Matthew Haley, for appellants. Danny R. Crabtree, for appellee. appeal is subsequently submitted from dismissing the appeal if it finds, after a careful review of the record and briefs, that a dismissal is warranted. 16