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

The Arkansas Supreme Court reversed a grant of summary judgment in Benton County, Arkansas v. Overland Development Co., Inc. 07-613 (11/29/07).

Overland wants to operate a red-dirt mine close to Cross Hollows, the historic site where the Confederate Army camped before the Battle of Pea Ridge. Overland submitted an application to the Benton County Planning Board along with an archaeological survey performed by Randall Guendling. The Guendling report found no Civil War artifacts on the proposed site but did find some 19th century artifacts.

The Planning Board denied the application, which was affirmed by the Benton County Appeal Review Board. Overland appealed to the circuit court, the remedy provided in A.C.A. 14-17-211. At the circuit court, Benton County submitted an affidavit of Jerry Hilliard. He concluded the red-dirt mine would adversely impact Cross Hollows. The trial court granted summary judgment to Overland.

The supreme court reversed because the Guendling report did not entitle Overland to summary judgment. The report did not discuss the effects of the red-dirt mine on Cross Hollows, which was the main issue, and the Hilliard affidavit showed an issue of fact exists for trial. A jury will determine if a red-dirt mine can exist near Cross Hollows.

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The Arkansas Supreme Court dismissed an appeal as moot in Honeycutt v. Foster, No. 07-665 (11/29/07).

In 2004, Honeycutt filed a lawsuit against Stone Timber Co. in Union County District Court. The case was dismissed for improper venue. On October 6, 2004, Honeycutt re-filed the suit in Ouachita County District Court (Judge Phillip Foster). On March 24, 2005, Honeycutt filed a motion to transfer the case to Union County. Honeycutt's lawyer sent numerous letters, but Judge Foster never ruled on the motion.

On November 21, 2006, Honeycutt filed a petition with the Ouachita County Circuit Court to compel a decision from Judge Foster. On December 6, 2006, Judge Foster denied the motion to transfer. The circuit court then denied the petition, and Honeycutt voluntarily nonsuited the petition. Nevertheless, he filed this appeal. The supreme court denied the appeal as moot. The petition only sought to compel a decision by Judge Foster, which he rendered on December 6, 2006.

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The Arkansas Supreme Court reversed a grant of summary judgment in Zulpo v. Farm Bureau Mut. Ins. Co. of Arkansas, Inc., No. 07-421 (11/29/07).

The Zulpos had a homeowner's insurance policy with Farm Bureau, which excluded "business pursuits." The policy defined business as a trade, occupation or full-time occupation. Ms. Zulpo worked two 12-hour shifts each weekend as a nursing assistant. During the week she stayed at home with her child and would babysit other children. One of the children died, and Farm Bureau denied coverage under the business pursuits exception. The trial court granted summary judgment to Farm Bureau, and the Court of Appeals affirmed (previously posted 4/12/07).

The supreme court reversed, holding that a jury must decide if Ms. Zulpo's babysitting activities are a "business pursuit." The parties had presented conflicting evidence which could be interpreted either way. Ms. Zulpo considered herself a nurse, but she often spent more hours per week babysitting than working as a nurse. Her tax records show she earned more money as a nurse than a babysitter. The jury will have to determine if babysitting was a full-time or part-time business venture for Ms. Zulpo.

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The Western District of Arkansas dismissed some of the counts in the counterclaim in Cook v. Illumination Station, Inc., 2007 WL 4166215 (W.D. Ark. 11/20/07) (most recently posted 8/1/07).

Cook based her claim for fraud and deceptive trade practices on an employment contract which turned up during the litigation. Cook claimed her signature on this contract was forged. The court held the fraud claim must fail because Cook could not establish detrimental reliance if she did not know about the signature. The deceptive trade practices claim failed because that law protects consumers; it does not regulate the conduct of litigants.

Both sides have now dismissed some of the other side's claims. (Cook's dismissal of various claims previously posted 6/15/07)

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The Arkansas Court of Appeals dismissed a case for failure to reconstruct a record in Turner v. Brandt, No. 07-88 (11/28/07).

Turner was engaged in a property boundary dispute with the Brandts, but she failed to appear at the trial. The trial court entered judgment for the Brandts and stated that Turner had twice violated earlier orders. The trial court ruled that, if Turner fails to comply with the judgment, she will be jailed at least 180 days and pay whatever fine the court seems fit. Turner raised 2 points on appeal:
(1) the trial court failed to create a record of the trial; and (2) the trial court improperly preset a minimum punishment.

The court of appeals dismissed both arguments. When a trial court fails to make a record, the party is required to reconstruct the record at the trial court before filing an appeal. See Ark. R. App. P.
6(d). Turner failed to follow any of these procedures. As to the preset punishment, that issue is not ripe for appeal if and until the trial court actually imposes the punishment.  

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The Arkansas Court of Appeals dismissed an appeal for lack of a final, appealable order in Follett v. Fitzsimmons, No. 06-1409 (11/28/07).

The Fitzsimmons' filed suit against Follett claiming they owned certain property by adverse possession. Follett had purchased the property from First Methodist Church, and she brought a third-party indemnity action against the church. The trial court dismissed the Fitzsimmons' claim but did not address the third-party claim. A judgment is not final and appealable until it dispenses of all claims and all parties. A trial court can make a judgment final by finding that injustice will occur without an immediate appeal. See Ark. R. Civ. P. 54(b).

The trial court granted Rule 54(b) certification, stating "there is no just reason for delay of the entry of a final judgment." The court of appeals held the trial court failed to comply with Rule 54(b), and the appeal was dismissed.

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Nelson Design Group (NDG) filed an architectural design copyright infringement lawsuit in the Eastern District of Arkansas. Nelson Design Group, LLC v. Puckett, No. 07-177 (filed 11/21/07). Puckett is a former employee of NDG. According to the Complaint, Puckett copied NDG's designs and gave them to defendants. The defendants used these designs to build houses in Jonesboro, Arkansas. 

The Complaint alleges eight counts of copyright infringement and breach of Puckett's employment contract. The Complaint is accompanied by a motion for preliminary injunction but does not include a count for computer fraud.

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The Western District of Arkansas found the defendant in civil contempt for violating a court order in Rotoworks Int'l Ltd. v. Grassworks USA, LLC, 2007 WL 3444261 (W.D. Ark. 11/8/07). The most interesting part of the ruling came from the court's frustration with the attorneys, which was already evident in the last order (previously posted 9/12/07).

The final straw came when the parties sent letters to the court without first getting permission to do so.  Aside from suffering service defects, these letters were "presumptuous and inappropriate." The court stated:

This is not the first time that personal feuding between the attorneys has disrupted the orderly progress of this case and wasted judicial resources, and the Court will have no more of such conduct

The court then stated it may hold a hearing to examine the conduct of the attorneys and concluded with this directive:

It may be that, after such a hearing, it will be appropriate to refer the entire matter to the Arkansas Supreme Court on Professional Conduct for a review of the conduct of the attorneys throughout the case. In the meantime, the Court will insist that the attorneys focus their efforts and energies on the issues which affect their respective clients, and cease bickering among themselves.  

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The Eastern District of Arkansas imposed sanctions in Kashlan v. TCBY Systems, LLC, 2007 WL 3309123 (E.D. Ark 11/6/07).

Kashlan sued TCBY for breach of contract and trademark infringement. Kashlan refused to comply with discovery requests and provided inadequate information to others. The Court was clearly most disturbed by Kashlan's counsel refusing to communicate with TCBY's counsel regarding discovery issues:

The Court notes that the majority of these discovery issues could have and should have been resolved without court intervention if Kashlan's counsel had taken the time to communicate. That Plaintiff's counsel refused to engage in any discussions regarding discovery, thereby necessitating the filing of a motion, supports an award of sanctions.

The Court will award reasonable expenses, including attorney's fees. Kashlan's counsel will be responsible for paying the expenses.  

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A recent trademark infringement case featured the seldom-used counterclaim-in-reply. Feed Management Systems, Inc. v. Brill, 2007 WL 3156282 (D. Minn. 10/30/07).

Feed Management filed suit for breach of contract and related claims. With permission from the court, Brill filed a counterclaim for trademark infringement after the deadline to amend pleadings. Feed Management filed a counterclaim-in-reply for trademark infringement, which Brill moved to dismiss as not permitted under Fed. R. Civ. P. 7(a).

The court stated a counterclaim-in-reply is a proper pleading if it is a compulsory reply to the counterclaim. The court determined that Feed Management's counterclaim-in-reply for trademark infringement was a compulsory reply to Brill's counterclaim and permitted the pleading.

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Coulson Oil has filed a declaratory action of no trademark infringement in the Eastern District of Arkansas. See Coulson Oil Co., Inc. v. Deweese Enterprises, Inc., No. 07-1102 (filed 11/9/07).

According to the Complaint, Coulson Oil operates gas stations under the trademark "SuperStop" (picture below, obviously a few years old from the gas prices). Deweese obtained a federal trademark registration in 1982 for "Super Stop." The Complaint alleges that Coulson obtained trademark rights in Arkansas before Deweese obtained its registration.

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Lindsey Management filed a trademark infringement action in the Eastern District of Arkansas. See Lindsey Management Co., Inc. v. The Links at Northcreek, LLC, No. 07-1076 (filed 11/1/07).

The main defendant is Hayden Properties, LLC, an Oregon company. The Complaint states that Hayden owns The Links at Northcreek, LLC. The dispute arises over an apartment community in Mississippi called The Links at Northcreek. Lindsey Management owns a federal trademark for "The Links" as applied to residential real estate development services.  

Two issues look interesting from reading the Complaint. First, it is unclear how Arkansas has jurisdiction over these defendants. The Complaint just makes a conclusory allegation that defendants conduct business and commit trademark infringement in Arkansas. Second, the word "links" seems to be common for apartments. A quick Google search shows one here in Georgia and one here in North Carolina; neither of these are Lindsey properties.

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The Arkansas Supreme Court reversed an order requiring disclosure of documents under the Arkansas Freedom of Information Act in Nabholz Construction Corp. v. Contractors for Public Protection Association, No. 07-843 (11/1/07).

The University of Arkansas hired Nabholz for construction work on its Fayetteville campus. The CFPPA submitted a FOIA request to the university related to the expenditure of public funds on various buildings. The university provided all the documents it had but responded that Nabholz had possession of documents regarding pricing and change orders. The CFPPA filed suit against Nabholz under FOIA, and the trial court directed Nabholz to produce the documents.

The supreme court reversed, but on narrow grounds. The court held that a private company alone cannot be sued under FOIA. The court refused to determine if the documents at issue are public records. More importantly, the court strongly hinted that FOIA could compel production of the documents if the university is included in the lawsuit.

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