Kennedy v. Ferguson
LETTER ORDER re 7 MOTION to Dismiss filed by Gibbs Ferguson. The pltf is directed to provide a letter brief on the standing issue by 5 p.m., Thuesday, August 30, 2011. Signed by Judge Billy Roy Wilson on 8/24/11. (kpr)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
RICHARD SHEPPARD ARNOLD UNITED STATES COURTHOUSE
500 W. CAPITOL, ROOM 403
LITTLE ROCK, ARKANSAS 72201-3325
Facsimile (501) 604-5149
August 24, 2011
Mr. J. Ray Baxter
Post Office Box 1038
Benton, AR 72018
RE: Motion to Dismiss, Kennedy v. Ferguson, 5:11cv00184-BRW
Dear Mr. Baxter,
While evaluating Defendant’s Motion to Dismiss, it struck me that there is likely a standing
issue that was not discussed in Defendant’s Motion to Dismiss. It is my understanding that to be
liable for professional negligence there must be privity of contract between the attorney and the
party bringing the suit.1 Arkansas has not recognized the third-party beneficiary theory for
professional negligence actions arising out of an attorney’s preparation of a will and representation
of an estate.2 It appears that John Kennedy wasn’t in privity of contract with Gibbs Ferguson. If this
is so, then he would not have standing to sue Mr. Ferguson. There is an exception to the privity
requirement for intentional fraud, but this has not been expanded to include constructive fraud.3
Please provide a succinct letter brief on the standing issue by 5 p.m., Tuesday, August 30,
/s/Bill R. Wilson
cc: Charles S. Gibson
Original to James McCormack, Clerk of the Court
Ark. Code Ann. § 16-22-310.
See Howard W. Brill, Arkansas Law of Damages § 26:2 (5th ed. 2010) (“[T]he children
of a deceased client have no standing to sue the attorney who drafted the will for the client.”)
Nielsen v. Berger-Nielsen, 347 Ark. 996, 1008 (2002).
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