Manuel Bail Bond Co. v. Hosto & Buchan, PLLC
Manuel Bail Bond Co. v. Hosto & Buchan, PLLC
Opinion of the Court
Appellant 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.
I. Procedural History and Background
In 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.
On April 23, 2015, the Arkansas Supreme Court decided Earls v. Harvest Credit Management VI-B, LLC ,
On November 1, 2015, Manuel filed suit stemming from the law firm's service of voidable summonses on Manuel's behalf.
*545
On 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.
II. Standard of Review
The law 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. ,
III. Summary Judgment for Negligence
To prove negligence in Arkansas, the plaintiff must show that he or she suffered damages proximately caused by the defendant's negligence. Callahan v. Clark ,
On appeal, Manuel argues that the circuit court erred in granting summary *546judgment in favor of the law firm based on its finding that Manuel's claim was filed after the statute of limitations had expired. Manuel asserts that there were questions of fact as to whether the statute should have been tolled. Arkansas Code Annotated section 16-56-105 (Repl. 2005) provides for a three-year statute-of-limitations period from the accrual of actions. Hill v. Hartness ,
In Pope County v. Friday, Eldredge & Clark ,
In Pope County , the supreme court relied primarily on Stroud v. Ryan ,
Manuel argues that under the rationale of Pope County and Stroud there is a tolling of the statute of limitations between the time that the judgments were obtained and the decision in the Earls case was handed down on April 23, 2015. Manuel asserts that the intervening event or court action that created this malpractice action against the law firm is the Earls case itself and that Manuel had no malpractice case to assert against the law firm *547prior to the Earls decision. Manuel is incorrect.
In the cases above, the tolling is from the circuit court's decision setting aside and eliminating the negligent act/malpractice event until it is reinstated by the appellate court mandate. Our case is more on par with Goldsby v. Fairley ,
This court distinguished Stroud when it decided Goldsby ,309 Ark. 380 ,831 S.W.2d 142 , and explained that the appellants' malpractice action in Goldsby had never ceased to exist from the time the appellee attorney had prepared a warranty deed in 1980 and misrepresented that the appellants had a first mortgage on the subject property. Appellants were not aware of the misrepresentation until 1985 when they suffered a business loss as a result of the alleged misrepresentation. This court held that the three-year statute of limitations barred appellants' 1986 malpractice suit and explicitly rejected the damage rule.
The distinguishing factor in both Stroud and Pope County was the judgment entered in favor of the appellant. Here, as in Goldsby , there was no intervening judgment in Appellant's favor; hence, her malpractice claim never ceased to exist. At a minimum, Appellant was alerted to her claims for actionable negligence when the bankruptcy court entered the disqualification and the fraudulent-conveyance against her. Unlike Stroud, there was no point where Appellant was prevented from bringing suit. We are therefore not persuaded by Appellant's argument that accrual of her action was delayed; her alleged damages were evident through the trial court's adverse rulings, affirmed on appeal, and thereby never ceased to exist.
Ragar ,332 Ark. at 221 ,964 S.W.2d at 375-76
Similarly, here, at no point was Manuel prevented from bringing suit because the defective-summonses claim was always there; the Earls case merely brought attention to the fact. As previously explained, Arkansas calculates statute-of-limitations onset as the date of the negligent act and not the date that the act was discovered. It was always negligent for the law firm to be using a defective summons, and Manuel's claim never ceased to exist. Manuel is wrong when it characterizes the action that created the malpractice suit as the Earls case itself-the action that created the malpractice claim was the use of the defective summonses that had not been approved for use since 2011.
IV. Summary Judgment for Breach of Contract
Next, Manuel alleges that the circuit court erred in finding that Manuel's claim sounded in negligence, and consequently, the cause of action was barred by the three-year statute of limitations. Rather, Manuel argues its claim sounded in contract and was thus subject to the five-year statute of limitations, making the cause of action timely. Manuel asserts that the law firm breached specific promises it made in the written debt-collection agreement. Manuel explains that the agreement it entered into with the law firm may have involved elements of legal representation, but it also involved services of a debt collector. Manuel states, "The specific promises made were promises made by a debt collection company and the breach of such promises were breaches by a debt collector." The law firm counters that Manuel is simply attempting to disguise his legal-malpractice claim as a contract *548claim when, in fact, the "gist" of the overall complaint is clearly a legal-malpractice claim.
When determining which statute of limitations to apply in a case, the court must look to the facts alleged in the complaint itself to ascertain the area of law in which they sound. Sturgis v. Skokos ,
Manuel tries to support its argument by relying on Farris v. Conger ,
Accordingly, we hold that the debt-collection agreement was an ancillary contract for representation and that the circuit court did not err in finding that (1) the three-year statute of limitations for legal malpractice applied and barred appellant's claim and (2) appellant failed to plead a viable cause of action regarding a breach of a separate and distinct written contract.
V. Dismissal of Complaint for Accounting
Next, Manuel asserts that the circuit court erred in dismissing its claim for an equitable accounting of sums due from the law firm to Manuel. An accounting is an equitable remedy designed to provide a means for compelling one, who because of a confidential or trust relationship has been entrusted with property of another, to render an account of his actions and for the recovery of any balance found to be due. A & P's Hole-In-One, Inc. v. Moskop ,
VI. Summary Judgment for Declaratory Judgment
Lastly, Manuel alleges that the circuit court erred in granting summary judgment on its claim for a declaratory judgment for indemnity. In its complaint, Manuel sought indemnity in the event of future claims brought for return of funds paid pursuant to an invalid judgment pursued and collected by the law firm. Manuel asserts that the statute of limitations cannot expire on a claim for declaratory judgment regarding a future potential claim. However, a cause of action for indemnity accrues only when the claiming party has suffered actual damages, including financial loss occasioned by the payment of money. C & L Rural Elec. Coop v. Am. Cas. Co. ,
Affirmed.
Whiteaker and Vaught, JJ., agree.
Manuel originally named Bryan Hosto individually as a party, but he was nonsuited.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.