¶1dissenting. I respectfully dissent from the majority opinion. The appeal was dismissed because the majority decided that the order was not appealable. The appeal resulted from the action of the trial court in granting a summary judgment in favor of the appellee. The trial court dismissed the appellants’ claims for damages against attorney Harrod based on tort and contract.
¶2Both attorneys involved in the appeal agreed that the appeal was based upon an appealable order. Nevertheless the majority reached outside the abstract and briefs and decided the order was not appealable. It seems to me that important aspects to be considered in reaching a decision are the Rules of Appellate Procedure which this court promulgated and adopted. Rule 2 reads in part:
(a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:
1. A final judgment or decree entered by the trial court;
2. An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action;
3. . . .
4. An order which strikes out an answer, or any part of an answer, or any pleading in an action;
¶3It appears to me that Rule 2 plainly allows an appeal in the present case from the action of the trial court in dismissing appellants’ claims against attorney Dave Wisdom Harrod based upon tort or contract. The trial court’s decision and the majority decision today mean that appellants cannot present evidence that Harrod converted money to his own use which was paid to him to be delivered to the appellants. They may not even be able to argue that the attorney’s letter of March 29,1977 amounted to a contract in writing upon which they relied. We have held many times that a summary judgment, beingan extreme remedy, should only be granted when it is clear there is no issue of fact to be litigated. Trace X Chemical, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S.W.2d 89(1979). In the present case it is my opinion that there are factual matters upon which reasonable people could reach opposite decisions. I think the appellants should be granted a full opportunity to present their claims that an attorney has misappropriated their money. However, the majority opinion will allow the case to be tried without the right of the appellants to present any evidence that the attorney is responsible in either tort or contract except by proffer. When the case comes to us on the next appeal, I hope we will decide that this material constituted proper evidence and at that time reverse the case and return it for a new trial. Had we reached the merits of the present argument it would not be necessary to have the issue before us on a second appeal.