388 S.W.3d 96
Ark. Ct. App.2012Background
- Grayson & Grayson, P.A. alleged it entered into an of-counsel relationship with David A. Couch, and Couch formed David A. Couch, PLLC in 2003; Couch moved into Grayson & Grayson’s office and shared cases and fees in nursing-home matters.
- Engagements were filed in multiple clients; some pleadings and settlements were signed with Grayson & Grayson, P.A. or “Grayson & Grayson, P.A., by David A. Couch”; Grayson & Grayson later terminated the relationship in January 2006.
- Grayson & Grayson alleged breach of contract and unjust enrichment for improper fee-splitting on five nursing-home cases; Couch and his PLLC counterclaimed for fees in the Dewey case and other matters.
- Couch argued the agreements were with the PLLC, not Couch personally, and submitted evidence that he acted as president/employee of the PLLC; Grayson & Grayson asserted the agreements were with Couch individually.
- The circuit court granted partial summary judgment to the PLLC and later granted Couch’s summary judgment on some claims, with other claims against Couch remaining; this appeal and cross-appeal followed.
- The central issues concern agency/partnership between Grayson & Grayson and Couch or the PLLC, the existence and scope of an of-counsel agreement, accord and satisfaction, and statute-of-limitations defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who was party to the of-counsel agreement? | Grayson & Grayson asserts an agreement with Couch personally. | Couch asserts the agreement was with the PLLC and that he acted as its employee/agent. | Genuine issues of material fact precluded summary judgment on agency/contract formation. |
| Whether Couch was personally liable or protected as an agent of the PLLC | Liability can attach to Couch personally if the PLLC was not the true contracting party. | Couch argues he acted solely for the PLLC; no personal liability absent undisclosed agency. | Issues of fact about agency and contract formation prevent a definitive personal liability ruling. |
| Whether there was an accord and satisfaction ending all disputes | The fall 2005 meeting did not intend a full settlement; facts show ongoing fee disputes. | Capable of constituting accord and satisfaction if parties intended to settle for less. | Question of intent and terms for accord and satisfaction reserved for trial; not resolved by summary judgment. |
| Whether the statute of limitations bars Couch's counterclaims | Grayson & Grayson argues timely filing due to concealment; limitations began earlier. | Couch argues tolling due to fraudulent concealment by Grayson & Grayson. | Summary judgment on statute-of-limitations grounds reversed for direct appeal; cross-appeal affirmed on tolling issue? (see opinion) |
| Whether Couch's cross-appeal was timely | Grayson & Grayson contends cross-appeal timeliness. | Couch maintained timely cross-appeal under Rule 4(a) and 60. | Cross-appeal deemed timely under applicable appellate rules. |
Key Cases Cited
- Ferguson v. Huddleston, 208 Ark. 353 (Ark. 1945) (agency principles; disclosed principal liability defense)
- Ingersoll-Rand Co. v. El Dorado Chem. Co., 373 Ark. 226 (Ark. 2008) (contract formation questions for trier of fact)
- Cobren v. Anderson, 2011 Ark. App. 477 (Ark. App. 2011) (material-fact questions on contract intent)
- Worley v. City of Jonesboro, 2011 Ark. App. 594 (Ark. App. 2011) (summary judgment appropriate only when no genuine issues)
- IC Corp. v. Hoover Treated Wood Prods., Inc., 2011 Ark. App. 589 (Ark. App. 2011) (evidentiary view for summary-judgment standard)
- Downum v. Downum, 101 Ark.App. 243 (Ark. App. 2008) (constructive fraud and tolling doctrines)
- Parkerson v. Lincoln, 347 Ark. 29 (Ark. 2001) (accrual of contract actions; discovery not tolled absent concealment)
- Helms v. Univ. of Missouri-Kansas City, 65 Ark.App. 155 (Ark. App. 1999) (causes of action accrual and limitations)