2015 Ark. App. 333
Ark. Ct. App.2015Background
- Appellants Hurst and Morrisey were attorneys who previously represented Dr. Kremp and Arkansas Radiology Affiliates (ARA) in a contract dispute with Hot Spring County Medical Center (HSCMC).
- Dr. Kremp and ARA had a Professional Services Agreement with HSCMC for radiology services and invoked an arbitration clause when disputes arose.
- In 2008, this court held the arbitration clause enforceable for breach-of-contract claims but immunity for tort claims; the breach claims were ordered to arbitration.
- After prior Garland County proceedings, in 2012–2013 Hurst and Morrisey refiled related claims in Garland County, which were dismissed as time-barred, and Dr. Kremp switched counsel.
- In October 2013 Dr. Kremp filed suit in Hot Spring County (CV-2013-199-2) seeking to compel arbitration for breach-of-contract and alleging malpractice by Hurst and Morrisey for failing to pursue arbitration.
- The Hot Spring County court granted all motions to dismiss, holding Kremp waived arbitration and that Garland County litigation pending barred the action; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of arbitral-waiver issue | Hurst/Morrisey: should review waiver/arbitration issues. | HSCMC (and circuit court) did not decide waiver/arbitration issues; relied on other grounds. | Issue not preserved; affirm. |
| Whether the circuit court properly held Kremp waived his right to arbitrate | Waiver should be decided by arbitrator, not court. | Waiver supported by delay and prejudice; court can enforce waiver. | Waiver supported; dismissal affirmed on waiver grounds. |
| Whether pendency of Garland County case barred Hot Spring County action | Pendency should not bar Hot Spring case; arbitration focus remains. | Pending Garland County suit justifies dismissal. | Pendency justified dismissal; affirmed. |
Key Cases Cited
- TEMCO Construction, LLC v. Gann, 2013 Ark. 202 (Ark. 2013) (court will not review unruled issues; must have ruling on appeal)
- Meador v. Total Compliance Consultants, Inc., 425 S.W.3d 718 (Ark. 2013) (appellant must obtain rulings on issues to be reviewed)
- Ghegan & Ghegan v. Barclay, 49 S.W.3d 652 (Ark. 2001) (we will not presume a ruling from trial court’s silence)
- Arkansas Lottery Commission v. Alpha Marketing, 386 S.W.3d 400 (Ark. 2012) (preservation/rulings standard for review)
- Ground Zero Construction, Inc. v. Walnut Creek LLC, 410 S.W.3d 579 (Ark. 2012) (preservation and review limits in appeal)