HERBERT C. SOUTHERN, APPELLANT
HIGHLINE TECHNICAL INNOVATIONS, INC., AND ALTERNATIVE HYDROGEN SOLUTIONS, LLC, APPELLEES
APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. NO. CV-2013-467-7. HONORABLE JOANNA TAYLOR, JUDGE.
The Southern Law Firm, by: Herbert C. Southern, for appellant.
The Asa Hutchinson Law Group, PLC, by: W. Asa Hutchinson III, for appellees.
RITA W. GRUBER, Judge. WALMSLEY and HARRISON, JJ., agree.
RITA W. GRUBER, Judge
On February 25, 2013, Herbert C. Southern filed a complaint in the Circuit Court of Washington County to collect moneys owed him by two start-up companies: Highline Technical Innovations, Inc. (HTI), and Alternative Hydrogen Solutions, LLC (AHS). He prayed for judgment of $102,270 against AHS as the balance due for his services as its attorney from May 15, 2012, to January 12, 2013; judgment of $195,883.70 against HTI as the balance for his services as its attorney from October 28, 2010, to January 31, 2013, and for $347.28 in fees and costs; and prejudgment and postjudgment interest against each company. The separate defendants HTI and AHS, now appellees, filed a common answer to the complaint on March 28, 2013. On April 2, 2013, Mr. Southern filed a motion to strike the answer and a motion for default judgment, asserting that the answer was a nullity because it was filed by appellees' corporate CEO rather than by an attorney licensed to practice law in Arkansas, and that he was entitled to a default judgment in accord with the relief prayed for in his complaint.
At the hearing on his motion to strike and motion for default, Mr. Southern testified about his work for the companies, how he was paid, and what he was owed. The
circuit court announced its ruling from the bench, striking the March 28, 2013 answer as a nullity because it was not filed by a licensed attorney and finding that a second answer, which an attorney had filed on April 11, 2013, would have been proper but was untimely. At a damages hearing that immediately followed, testimony was given by Chad Coats, the CEO of HTI and AHS; Mr. Southern; and Harold Zeller, CFO of HTI. At the conclusion of the damages hearing, the court noted " conflicting testimony on a number of points" and announced extensive oral findings.
In the resultant written order and amended order, the circuit court granted Mr. Southern's motion to strike appellees' answer and his motion for default judgment, and entered judgment of $8,670.15 against HTI and $24,967.74 against AHS, plus pre- and post-judgment interest. Mr. Southern now appeals from these orders and his posttrial motions for clarification, reconsideration, and new trial, on which the circuit court took no action and were therefore deemed denied. He contends that the circuit court (1) improperly granted appellees the benefit of an affirmative defense that they had not pleaded, (2) erred by ruling that a spreadsheet he proffered as AHS's budget projection was hearsay, and (3) should have granted his motion for new trial under Ark. R. Civ. P. 59(a). We affirm.
I. Affirmative Defense
Mr. Southern contends that the circuit court, acting sua sponte, improperly inferred an affirmative defense of waiver and granted relief that appellees had not pleaded. He argues that HTI should be held to an alleged " letter agreement" of how he would be paid and that " the court erred when it found that the letter was superseded by an agreement of $5,000 per month." Appellees, agreeing that they did not plead waiver, respond that the circuit court made no ruling granting such an affirmative defense and made no ...