APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT. NO. 60CV-10-1466. HONORABLE TIMOTHY DAVIS FOX, JUDGE.
Ronald G. Gillert, for appellants.
Cross, Gunter, Witherspoon & Galchus, P.C., by: J.E. Jess Sweere, for appellees.
KAREN R. BAKER, Associate Justice.
This appeal returns to this court for the third time. The lawsuit stems from the contracts and payments for services in delivering produce. The relevant parties are as follows. Hotfoot Logistics, LLC (" Hotfoot" ) is a regulated freight property broker with its principal place of business in Little Rock, Arkansas. Freight Ambulance, LLC (" Freight" ) is a regulated carrier with its principal place of business in Cabot, Arkansas. Western Brokerage, Inc., is a regulated property broker that arranges transportation of goods and is based in Phoenix, Arizona. Shipping Point Marketing, Inc. (" SPM" ) is a shipping company based in Phoenix, Arizona. David Fishgold is the president of SPM and Louis N. Fishgold is the president of Western Brokerage (collectively " the Fishgolds" ). We recounted the facts underlying this appeal in our most recent opinion, Hotfoot Logistics, LLC v. Shipping Point Marketing, Inc. (" Hotfoot II" ), 2013 Ark. 130, at 1-4, 426 S.W.3d 448, 449-50:
This case originally involved four independent shippers: (1) SPM, located in Phoenix, Arizona; (2) BoniPak Produce, Inc., located in Santa Maria, California; (3) Salyer American Fresh Foods, Inc., located in Salinas, California; and (4) Taylor Farms California, Inc., also located in Salinas, California. On November 25, 2008, these shippers engaged Western Brokerage, a transportation broker in Phoenix, Arizona, to arrange for the transportation of produce from Yuma, Arizona, to Scranton, Pennsylvania, and Albany, New York. Subsequently, Western
Brokerage requested carriers by posting a notice on Internet Truck Stock, an Internet load board used by the trucking industry to solicit trucking business. Responding to Western Brokerage's solicitation, Hotfoot, an Arkansas trucking company based in Little Rock, agreed to transport multiple loads for $5,700. According to Hotfoot, it obtains most of its freight contracts via the Internet load boards, and the majority of its freight contracts are one-time transactions. Hotfoot then engaged one of its dedicated carriers, Freight Ambulance, an Arkansas company based in Cabot, to deliver the produce to Pennsylvania and New York.
Freight Ambulance picked up the freight from four locations in Yuma, Arizona, for the shippers. Specifically, Freight Ambulance picked up a load from Dole/Skyview Cooker in Yuma on behalf of SPM for delivery to Eastern Produce in Scranton, Pennsylvania. Western Brokerage then faxed a six-page rate-confirmation contract to Hotfoot's home office in Little Rock. The rate-confirmation contract listed, among other things, the carrier rate for the cargo, as well as a description of the vegetable products to be picked up from each shipper. In this contract, Western Brokerage promised to pay Hotfoot $5,700 for transporting the loads. A Hotfoot representative signed the document and returned the rate confirmation to Western Brokerage by fax.
Freight Ambulance delivered a portion of the produce to Albany, New York, on November 29, 2008, and delivered the balance of the load to Scranton, Pennsylvania, on November 30, 2008. Freight Ambulance returned the bills of lading to Little Rock, where Hotfoot prepared the invoice for the freight charges. After these deliveries, Hotfoot made a demand on Western Brokerage for the payment of the unpaid balance but was unsuccessful in its collection efforts. Western Brokerage had closed its business, and Hotfoot shifted its efforts to collect the freight charges toward the shippers, who claimed they had already paid Western Brokerage. SPM claimed to have no knowledge of Western Brokerage's whereabouts, although the two companies allegedly shared facilities in Phoenix, Arizona, and the Fishgolds were the presidents of the respective companies.
[Hotfoot] originally filed suit in the Pulaski County District Court, but the case was later transferred to the Pulaski County Circuit Court. On April 14, 2010, Hotfoot filed an amended complaint against SPM, the other independent shippers, and Western Brokerage for breach of contract. In its complaint, Hotfoot alleged one count of breach of contract against the shippers for payment of the freight charges in the amount of $5,700; one count of breach of contract against Western Brokerage in the amount of $5,700; and one count of fraud against the Fishgolds for conspiring to commit fraud against Hotfoot to arrange the load and then refuse payment. [SPM] filed motions to dismiss, and the circuit court granted them for lack of personal jurisdiction. Subsequently, appellees filed a motion for attorney's fees, which the circuit court granted. An appeal followed. In Hotfoot Logistics, LLC v. Shipping Point Marketing, Inc., 2013 Ark. 72, [" Hotfoot I " ], we dismissed the appeal without prejudice for lack of a final order.
After receiving a final order, the parties returned to this court in Hotfoot II where we reversed and remanded the matter for development of factual issues. After our ...