MANUEL BAIL BOND CO., INC. APPELLANT
HOSTO & BUCHAN, PLLC, D/B/A HOSTO, BUCHAN, PRATER & LAWRENCE, PLLC APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, SECOND DIVISION [NO.
60CV-15-5368] HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE
McCutchen and Sexton, by: Sam Sexton III, for appellant.
Law Firm PLLC, by: Robert L. Henry III, for appellee.
Manuel Bail Bond Co., Inc. (Manuel) appeals from the Pulaski
County Circuit Court's order granting the
summary-judgment motion of appellee Hosto & Buchan, PLLC
(the law firm), which was entered on November 7, 2017. Manuel
also appeals from the December 12, 2017 order denying its
motion for reconsideration and to vacate, alter, and amend
judgment. On appeal, Manuel argues that the circuit court
erred in (1) granting summary judgment in favor of the law
firm, (2) dismissing Manuel's complaint for an
accounting, and (3) granting summary judgment on Manuel's
claim for declaratory judgment. We affirm.
Procedural History and Background
November 2010, Manuel, which was formerly in the business of
writing bail bonds, entered into a debt-collection-service
agreement with the law firm, a firm that provides debt
collection services. The law firm filed numerous lawsuits on
behalf of Manuel and obtained default judgments. Manuel
notified the law firm by email that it wished to terminate
the services of the law firm on November 12, 2013. The law
firm responded by email that it would prepare the files, and
it notified Manuel of a $15, 000 balance due the firm for the
advancement of court costs by the law firm to file the cases
on behalf of Manuel. Manuel never received the judgments
collected by the law firm, but the firm assured Manuel that
the money collected on was used as a credit toward
Manuel's account with the firm.
April 23, 2015, the Arkansas Supreme Court decided Earls
v. Harvest Credit Management VI-B, LLC, 2015 Ark. 175,
460 S.W.3d 795. Earls involved the law firm as a
party. There, the supreme court explained that the summons
form the law firm had been using was defective because it
incorrectly stated that an incarcerated person in the state
had thirty days, instead of sixty days, to file an answer.
The law firm had been using the same summons form at issue in
Earls in pursuing debts on behalf of Manuel. In a
deposition, Bryan Hosto (a partner in the law firm) testified
that of 318 judgments obtained in Arkansas on behalf of
Manuel he could only exclude eighteen judgments from being
affected by the Earls decision. In an affidavit,
Hosto stated that the last defective summons used by the law
firm was filed on July 25, 2011.
November 1, 2015, Manuel filed suit stemming from the law
firm's service of voidable summonses on Manuel's
behalf.  Manuel specifically sued for breach of
contract and negligence and sought damages in the amount of
the default judgments and for costs. Manuel also demanded an
accounting for all amounts expended and received by the law
firm. Lastly, Manuel sought declaratory judgment for
indemnity for any future claim against it arising from the
defective summonses used and void judgments obtained. The law
firm answered and following discovery, filed a motion for
summary judgment based on statute-of-limitations grounds. The
motion explained that the claim against the law firm was
based on an allegation that the law firm had filed defective
summonses on behalf of Manuel. The law firm argued the suit
is untimely because the time in the statute of limitations
should have started running from the date the last defective
summons was used, which was on July 25, 2011. Manuel argued
that the April 23, 2015 holding of Earls should be
the proper date. A hearing on the motion was conducted on
October 31, 2017.
November 7, 2017, the circuit court entered summary judgment
in favor of the law firm finding that all of Manuel's
claims were barred by the controlling statute of limitations
and that there was no tolling of the statute. Manuel filed a
timely motion for reconsideration and to vacate, alter, and
amend judgment, and it was denied by court order. Manuel then
filed a timely notice of appeal.
Standard of Review
is well settled regarding the standard of review used by this
court in reviewing a grant of summary judgment. Crockett
v. C.A.G. Invs., Inc., 2011 Ark. 208, at 7, 381 S.W.3d
793, 798. A circuit court will grant summary judgment only
when it is apparent that no genuine issues of material fact
exist requiring litigation and that the moving party is
entitled to judgment as a matter of law. Id. The
burden of proof shifts to the opposing party once the moving
party establishes a prima facie entitlement to summary
judgment; the opposing party must demonstrate the existence
of a material issue of fact. Id. After reviewing the
undisputed facts, the circuit court should deny summary
judgment if, under the evidence, reasonable minds might reach
different conclusions from the same undisputed facts.
Id. On appeal, this court determines if summary
judgment was appropriate based on whether the evidentiary
items presented by the moving party leave a material question
of fact unanswered. Id. This court views the
evidence in the light most favorable to the party against
whom the motion was filed, resolving all doubts and
inferences against the moving party. Id. This review
is not limited to the pleadings but also includes the
affidavits and other documents filed by the parties.
Summary Judgment for Negligence
prove negligence in Arkansas, the plaintiff must show that he
or she suffered damages proximately caused by the
defendant's negligence. Callahan v. Clark, 321
Ark. 376, 386, 901 S.W.2d 842, 847 (1995). To show damages
and proximate cause in a legal-malpractice action, the
plaintiff must show that but for the alleged negligence, the
result would have been different in the underlying action.
Hearst v. Newcomb, 2018 Ark.App. 573. In ...