Bennett & DeLoney, P.C. v. State ex rel. McDaniel
388 S.W.3d 12
Ark.2012Background
- Appellants Bennett & DeLoney, P.C. and its owners appeal a circuit court order granting partial summary judgment to the State and denying cross-motions on ADTPA theory.
- Circuit court held that collection of dishonored-check fees beyond § 4-60-103 is an ADTPA violation and that § 4-60-103 exclusive remedy barred § 4-2-710 incidental-damages remedies.
- State alleged Bennett & DeLoney violated § 4-60-103 by over-collecting and by not sending certified mail, among other things.
- Circuit court found § 4-60-103 exclusive; § 4-2-710 remedies not permitted.
- This Court reverses and dismisses, holding ADTPA does not apply to the practice of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ADTPA apply to the practice of law by Bennett & DeLoney? | Bennett & DeLoney | State | ADTPA does not apply; reversed and dismissed. |
| Is § 4-60-103 the exclusive remedy for dishonored checks? | State | Bennett & DeLoney | Not reached; based on ADTPA exemption, the issue is moot. |
| Do overcollections under § 4-60-103 implicate ADTPA? | State | Bennett & DeLoney | ADTPA not applicable to the practice of law; overcollection claim not protected under ADTPA. |
Key Cases Cited
- Preston v. Stoops, 373 Ark. 591 (2008) (unauthorized practice of law not cognizable under ADTPA)
- Born v. Hosto & Buchan, PLLC, 2010 Ark. 292 (2010) (ADTPA not applicable to practice of law)
- Campbell v. Asbury Automotive, Inc., 2011 Ark. 157 (2011) (Stoops controls; nonlawyer ADTPA action distinguished)