Arkansas Business Litigation Blog : Arkansas Business Litigation Lawyer & Attorney : Allen Law Firm : Serving Little Rock, Fort Smith, North Little Rock

An imporatnt question of procedure was answered in Rettig v. Ballard, 2009 Ark. 629.Rettig filed suit within the statute of limitations, although the summons was defective. When Ballard moved to dismiss for defective service, the statute of limitations had run. The trial court granted dismissal with prejudice. The issue on appeal was whether the Arkansas savings statute, Ark. Code Ann. § 16-56-126, required dismissal without prejudice.

The supreme court reversed, holding that the savings statute applies in this situation. The court held that, even though the summons was defective, the lawsuit was commenced within the limitations period. The savings statute applies, and Rettig will have one year to refile the case.

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Jones v. Turner, 2009 Ark. 545.

The plaintiff filed a properly signed complaint with the clerk. The plaintiff timely served a copy of the complaint and summons, but the defendant's copy of the complaint was not signed. The circuit court dismissed the complaint, holding that service was defective because of the missing signature.

The supreme court reversed, stating that Ark. R. Civ. P. 4 has no explicit requirement that the service copy must be signed. Following the strict compliance standard, service in this case was proper.

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The District Court of Minnesota denied a motion to dismiss for lack of jurisdiction in Tri-Marketing, Inc. v. Mainstream Marketing Services, Inc., 2009 U.S. Dist. LEXIS 42694 (5/19/09).

Tri-Marketing filed suit for copyright infringement. Tri-Marketing had submitted its copyright application and fees but had not yet received the registration. Mainstream moved to dismiss for lack of jurisdiction. The court noted the circuit split on this issue--some courts permit the lawsuit to proceed once the application is filed, while other courts require the plaintiff to get the registration first.

The court noted that the Eighth Circuit has not decided this issue. However, the Eighth Circuit cited language that indicated it would adopt the application approach in Action Tapes, Inc. v. Mattson, 462 F.3d 1010 (2006) (previously posted 1/10/07). The court adopted the application approach and denied the motion to dismiss.

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The Eighth Circuit affirmed summary judgment in American Boat Co., Inc. v. Unknown Sunken Barge, No. 08-2166 (6/4/09).

The district court granted summary judgment to the United States. Plaintiffs failed to timely appeal because they claim not to have received the ECF notice of the summary judgment. An evidentiary hearing was held, and both parties had a computer forensics expert investigate the computer of Plaintiffs' counsel. Plaintiffs' expert was unable to provide an opinion as to why the notice failed to reach plaintiffs.

Although there was no evidence of the notice on Plaintiffs' counsel's server, there was evidence that Plaintiffs' counsel used a POP account to remotely check email. The court affirmed summary judgment, holding that denial of receipt cannot overcome the presumption that an ECF notice is received.

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The Eighth Circuit affirmed denial of a preliminary injunction in CDI Energy Services, Inc. v. West River Pumps, Inc., No. 08-1031 (5/29/09).

CDI sells oilfield equipment. It had one location in North Dakota with three employees. Those employees left CDI to form West River, a competing business. CDI's customers went to West River, and the CDI office went out of business. After obtaining a TRO for trade secret misappropriation and other counts, the district court dissolved the TRO and denied the preliminary injunction.

The Eighth Circuit affirmed, with two interesting holdings. First it held the customer lists were not trade secrets. Because the potential CDI customers was a small number of local oilfield companies, the information would be readily obtainable. Second, the court held no irreparable harm because, since CDI's office was closed, an injunction would do nothing to help them. In other words, CDI had been harmed to such a degree that the harm was no longer irreparable.

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The Arkansas Court of Appeals affirmed creation of a tacit contract in Crown Custom Homes, Inc. v. Buchanan Services, Inc., No. 09-20 (5/27/09).

The parties had a long history where Crown would send a request for work via fax. Buchanan would perform the work and then send a bill. The parties had conducted over $100,000 of business in this manner. Crown brought Cunningham to a meeting at Buchanan's office regarding some work. Cunningham faxed a work order to Buchanan from Crown's office. Buchanan performed the work, but Crown refused to pay, arguing the contract for that work was with Cunningham.

The trial court held a contract existed between the parties and entered judgment for Buchanan. The court of appeals affirmed, stating that course of dealing is properly considered to determine if a tacit contract is created.

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The Arkansas Supreme Court made a drastic change to Rule 5-2 in In re: Arkansas Supreme Court and Court of Appeals Rule 5-2, No. 09-540 (5/28/09).

Effective July 1, 2009, the electronic version of appellate decisions posted on the Arkansas Judiciary website will be the official reports. See Rule 5-2(d) for proper citation format to these decisions Additionally, the Reporter of Decisions will create a searchable database for all opinions issued after February 14, 2009. We believe Arkansas is the first jurisdiction to adopt electronic official reports.

The new rule also abandons the distinction between published and unpublished opinions. Every opinion issued after July 1, 2009, will be precedent.

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The Arkansas Supreme Court reversed a $689,526 judgment in Western Sizzlin Corp. v. Parks Land Co., LLLP, No. 08-1199 (May 14, 2009).

Parks filed suit for claimed violations of a lease agreement. Western Sizzlin hired an expert to calculate the cost of repair to the property. Western Sizzlin decided not to call this expert to testify. During the trial, Parks' counsel questioned Western Sizzlin's CFO about this expert. During closing argument, Parks' counsel made reference to this non-testifying expert.

In its reversal, the court stated: "Reference to the original employment of the non-testifying expert constitutes prejudicial error and requires a new trial." The case was remanded for a new trial.

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An arbitration provision that prohibited a class action was upheld in Smith v. Comcast Corp., 2009 U.S. Dist. LEXIS 25348 (E.D. Ark. 3/17/09).

Plaintiff filed a class action alleging fraud and deceptive trade practices. However,  Plaintiff's contract contained an arbitration clause. The arbitration clause prohibited Plaintiff from bringing a class action claim. The court clearly had misgivings about the clause but found it was enforceable. The court granted Comcast's motion to compel arbitration.

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