David A. Couch, PLLC v. Grayson & Grayson, P.A.

• Court: Arkansas Court of Appeals
• Writing for the Court: KENNETH S. HIXSON, Judge
• Citation: David A. Couch, PLLC v. Grayson & Grayson, P.A., 2020 Ark. App. 108, 594 S.W.3d 892 (Ark. App. 2020)
• Decision Date: 12 February 2020
• Docket Number: No. CV-19-213,CV-19-213
• Parties: DAVID A. COUCH, PLLC, Appellant v. GRAYSON AND GRAYSON, P.A., Appellee

2020 Ark. App. 108

594 S.W.3d 892

DAVID A. COUCH, PLLC, Appellant

v.GRAYSON AND GRAYSON, P.A., Appellee

No. CV-19-213

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: February 12, 2020

Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.

Health Law Associates, Little Rock, by: Charles R. Hicks, for appellee.

KENNETH S. HIXSON, Judge

This is a breach-of-contract case between two law firms. Appellant David A. Couch, PLLC (Couch), filed a complaint against appellee Grayson & Grayson, P.A. (Grayson), in the Cleburne County Circuit Court, alleging a breach of contract and requesting damages against Grayson for its alleged failure to pay Couch one-half of the attorney’s fees collected by Grayson in connection with the settlement of a nursing-home case. The Cleburne County Circuit Court ultimately dismissed Couch’s complaint for want of prosecution pursuant to Rule 41(b) of the Arkansas Rules of Civil Procedure. Because this was the second dismissal of Couch’s action, it operated as a dismissal with prejudice. Couch now appeals from the Cleburne County Circuit Court’s dismissal of his complaint, arguing that it was an abuse of discretion. We agree that the trial court abused its discretion in dismissing Couch’s complaint, and we reverse and remand for further proceedings.

The prior dismissal of Couch’s action against Grayson occurred in a separate proceeding in the Pulaski County Circuit Court. In a case instituted in 2006, Grayson filed a complaint against Couch alleging breach of contract and unjust enrichment in connection with Couch’s alleged failure to split fees collected in settling numerous lawsuits.¹ Couch filed a counterclaim against Grayson in the Pulaski County case. On April 4, 2009, the Pulaski County Circuit Court dismissed Grayson’s complaint against Couch for want of service, and in that order the Pulaski County Circuit Court also dismissed Couch’s counterclaim against Grayson without prejudice.

Couch refiled its allegations in its previously dismissed counterclaim in the form of a complaint against Grayson in the Cleburne County Circuit Court on April 21, 2009.² The case was assigned to Judge Tim Weaver. In its complaint, Couch alleged that Couch and Grayson had entered into an agreement whereby they would, on a case-by-case basis, work together on or jointly refer certain cases to other attorneys to handle. Couch asserted that one such case was a nursing-home case, Leister Dewey v. Beverly Enterprises , which the parties agreed to refer to another attorney. Couch alleged that after the other attorney settled the matter and paid Grayson the agreed-upon share of the attorney fee for the referral, Grayson breached their contract by failing to pay Couch one-half of the fee.³

On July 20, 2011, Couch filed a motion for summary judgment. In its motion Couch contended that, based on Grayson’s responses to discovery in the Pulaski County case, it was undisputed that Grayson had received a $135,000 fee in the Leister Dewey v. Beverly Enterprises case. Couch claimed that it was entitled to summary judgment for $67,500 plus interest. In Grayson’s response to Couch’s summary-judgment motion, it alleged that Couch was not entitled to judgment because Grayson’s fee-splitting agreement was between only Grayson and David A. Couch in his individual capacity.

On September 4, 2013, the trial court held a hearing on Couch’s summary-judgment motion. After hearing arguments of counsel, the trial court announced that it was denying Couch’s motion because there was a genuine issue of material fact as to whether there was an agreement between Grayson and Couch or whether the agreement was exclusively between Grayson and David A. Couch individually.⁴ At the conclusion of the summary-judgment hearing, the trial court admonished the parties to get the case set for trial.

On April 8, 2014, the trial court entered a notice to Couch to report the present status of the case. On April 11, 2014, Couch filed a status report, wherein Couch set forth its efforts to set the case for trial. Couch asserted in the status report that it had communicated with Grayson in an attempt to agree on a trial date but that Grayson was at first unresponsive and then unagreeable to any of the proposed dates due to conflicts. Couch asked that, when the trial court’s 2015 trial calendar is published in August, the trial court direct that the parties agree on a trial date at the parties’ earliest availability. Apparently, the trial court took no action, and the case was not set for trial during the 2015 trial-calendar period.

On May 31, 2016, the trial court again ordered the parties, by June 6, 2016, to provide a statement of how this case should proceed to bring the case to a resolution. Couch did so promptly on June 3, 2016, by filing a status report and statement of intent to proceed as ordered by the court. In that status report, Couch stated its intent to proceed:

The method for resolution of this case is simple: It should be set for trial. The issues are basic and quite easily tried. After the summary-judgment hearing, it appears to Plaintiff that the only question is whether Defendant contracted with Plaintiff or with David A. Couch individually. Trying that question of fact should take no more than a day.

Thus, Plaintiff proposes that the Court order the parties and their counsels to forward to it every day in which they are available for a one-day trial in Cleburne County for the months of August and September 2016. The case can then be tried on the first day that intersects all calendars. If no day intersects, the Court can seek additional dates.

In Grayson’s response to Couch’s status report and statement of intent to proceed, Grayson denied that the matter may be tried in a day and asserted that the trial would take four or five days. Grayson also asked the trial court to dismiss Couch’s complaint pursuant to Rule 41(b). Again, apparently, the trial court took no action.

The case was subsequently transferred to Judge Maureen Harrod. On November 5, 2018, without prior notice to either party, the trial court entered an order of dismissal. In the trial court’s order, it stated that there had been no action of record in the case for the past twelve months, and it dismissed Couch’s case without prejudice pursuant to Arkansas Rule of Civil Procedure 41(b), which provides:

(b) Involuntary Dismissal. In any case in which there has been a failure of the plaintiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court’s docket. A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.

Although the trial court’s order indicated that Couch’s action was dismissed without prejudice, it was in fact dismissed with prejudice under Rule 41(b) because there had been a prior dismissal of the action in the 2009 Pulaski County Circuit Court proceeding.

On November 14, 2018, Couch filed a motion under Arkansas Rule of Civil Procedure 60(a) to set aside the order of dismissal to prevent a miscarriage of justice. Couch’s posttrial motion was denied, and Couch now appeals from the trial court’s order of dismissal as well as the denial of its posttrial motion.

Couch’s primary argument on appeal is that the trial court abused its discretion in dismissing its complaint pursuant to Rule 41(b). Our standard of...