Mark Hunter v. Patricia A. Keck

Reason: I attest to the
Cite as 2020 Ark. App. 233
accuracy and integrity of this
document ARKANSAS COURT OF APPEALS
Date: 2021-07-06 12:43:22
Foxit PhantomPDF Version: DIVISION I
9.7.5 No. CV-19-439

MARK HUNTER Opinion Delivered: April 15, 2020

APPELLANT APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
V. [NO. 72CV-16-607]

PATRICIA A. KECK; JASON HONORABLE DOUG MARTIN,
COATNEY; AND KECK & AUSTIN, JUDGE
LLC

APPELLEES AFFIRMED

MEREDITH B. SWITZER, Judge

In this legal malpractice lawsuit, Mark Hunter sued Patricia Keck, Jason Coatney,

and Keck & Austin, LLC (“Keck and Austin”), in the Washington County Circuit Court,

alleging that Keck and Austin failed to perfect an appeal in an underlying breach-of-contract

action in which Hunter was a party. The breach-of-contract action involved two car

dealerships and their respective owners. Jared Davis; J2R, LLC; and Impact 180, Inc., were

the plaintiffs (“Davis”). Mark Hunter, the appellant herein, Hunter Enterprises

Incorporated d/b/a Suzuki of Springfield, and the corporate bookkeeper were the

defendants (“Hunter”). The case was tried before a jury, which found in favor of Davis and

awarded multiple verdicts against Hunter on the breach of an option-to-purchase agreement

and the breach of an August 8, 2008 loan agreement and resulting conversion of property.

Hunter engaged Keck and Austin to represent him on appeal of the judgments entered

against him. It is undisputed that Keck and Austin did not perfect the appeal because it
failed to file the notice of appeal in a timely manner. Hunter therefore sued Keck and

Austin for legal malpractice.

Keck and Austin sought summary judgment on Hunter’s legal-malpractice claim

contending that even if the appeal had been timely filed, Hunter would not have succeeded

on his appeal. Hunter responded and filed his own motion for summary judgment. The

trial court granted Keck and Austin’s motion for summary judgment and denied Hunter’s.

This appeal followed, and we now affirm.

Our review of whether summary judgment was properly granted turns on whether

Hunter’s appeal would have been successful if the appeal had been perfected. To prevail on

a claim for legal malpractice, “a plaintiff must prove that the attorney’s conduct fell below

the generally accepted standard of practice and that this conduct proximately caused the

plaintiff damages.” S. Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112, 122, 118 S.W.3d

525, 530 (2003). Regarding proximate cause, the plaintiff must show that, but for the

attorney’s alleged negligence, “the result in the underlying action would have been

different.” Id. In this case, as in Daggett, the issue of proximate cause for failure to file an

appeal is a question of law to be decided by the judge, not the jury. This determination

requires the trial court to act as the appellate court would act, reviewing the decision in the

underlying lawsuit under the appropriate appellate standard of review. Sturgis v. Skokos,

335 Ark. 41, 977 S.W.2d 217 (1998).

In reviewing a jury’s verdict, our appellate courts determine whether it is supported

by substantial evidence. See, e.g., Roggasch v. Sims, 2016 Ark. App. 44, 481 S.W.3d 440.

Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to

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compel a conclusion one way or the other. Id. In determining whether there is substantial

evidence, we view the evidence and all reasonable inferences arising therefrom in the light

most favorable to the party on whose behalf judgment was entered. Id. We give that

evidence the highest probative value. D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94,

76 S.W.3d 254. It is not an appellate court’s province to try issues of fact; we simply

examine the record to determine if there is substantial evidence to support the jury verdict.

Id. The weight and value of testimony is a matter within the exclusive province of the jury.

Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997).

Our review of the merits of the underlying lawsuit reveals that the trial court did not

err in awarding summary judgment to Keck and Austin on the malpractice claim. An appeal

of the underlying lawsuit would not have been successful, even if timely filed. We therefore

affirm the grant of summary judgment.

Hunter makes three basic arguments to support his position that his appeal would

have been successful and the challenged verdicts reversed: (1) Keck and Austin breached

the standard of care by failing to file a timely appeal; (2) expert opinions (such as that allowed

by the circuit court from former Justice Robert Brown) are improper and should not be

considered by the trial court; and (3) there was insufficient evidence to support the

challenged verdicts.

First, it is undisputed that Keck and Austin breached the standard of practice by

missing the deadline for filing a notice of appeal, but that is not enough to establish legal

malpractice. Hunter must also show that Keck and Austin’s failure to file a timely notice of

appeal was the proximate cause of damages he sustained. Second, there is no real indication

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the trial court relied on Justice Brown’s letter, deposition, and affidavit about whether an

appeal would have been successful. Moreover, evidentiary rulings are reviewed under an

abuse-of-discretion standard, and we are not persuaded that the trial court abused its

discretion in allowing the introduction of this evidence. More importantly, we can resolve

the major issue presented in this case without considering Justice Brown’s opinion.

Our focus, therefore, lies on Hunter’s challenges to the sufficiency of the evidence

supporting the judgments he had intended to appeal. First, Hunter contends that the jury’s

finding that he breached the option-to-purchase agreement is not supported by the evidence

because (1) the agreement required Davis to exercise the option within one year or by May

31, 2009; (2) Davis admitted he failed to give notice of his intent to exercise the option to

purchase; and (3) Davis failed to give any reasonable or credible reason for failing to give

notice. Hunter argues, therefore, that his appeal from this verdict would have been

successful if it had been timely filed. We disagree.

Here, viewing the facts regarding the option-to-purchase agreement most favorably

to Davis as the prevailing party, it is undisputed that Davis paid Hunter the $75,000 required

by the option-to-purchase agreement. The agreement provided that Davis had the exclusive

right to purchase Hunter’s Suzuki of Springfield dealership between July 15, 2008, and

August 1, 2009, and it obligated Hunter to retain Davis’s services and Davis to provide

onsite management services. The agreement further provided that if Davis failed to exercise

his option prior to May 31, 2009, the option would expire, and Hunter could retain the

consideration. Davis and Hunter had a serious falling out on November 24, 2008. Hunter

had Davis escorted off the dealership property, changed all the locks, and severed all

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connection with Davis. Under these facts, the jury could reasonably weigh the evidence

and make credibility determinations to conclude that Hunter forcibly removed Davis and

severed all connections and, in doing so, that he breached the agreement and released Davis

from his obligations to perform those services. The jury specifically found that Hunter

breached the agreement and that Davis was entitled to $75,000 in damages, plus the interest

and fees awarded by the trial court. Our appellate courts would not have disturbed the

jury’s verdict under those facts because substantial evidence supports it.

Hunter further contends that the jury’s finding that he breached the August 8, 2008

loan agreement resulting in the conversion is not supported by the evidence because (1)

Davis admitted Hunter loaned him $325,000 to pay off certain automobiles; (2) the loan

required that the total balance of the loan be paid off and paid to Hunter by August 31,

2008; (3) Hunter was given titles to certain vehicles as collateral for the loan; (4) if the loan

was not paid by the deadline, the agreement required that the loan collateral become

Hunter’s property for him to do with as he wished; (5) Davis admitted that he failed to pay

off the loan by August 31, 2008, and further admitted he gave Hunter a check for $269,000,

which would have paid off the loan balance, but it bounced; (6) no reasonable juror could

find that the balance wasn’t really due because Davis and Hunter had “discussed” an

extension when Davis wrote a check attempting to pay the balance by the deadline, but the

check bounced; and (7) the vehicles therefore became Hunter’s property. Consequently,

he argues that his appeal of this verdict would have also been successful. Again, we disagree.

Viewing the facts most favorably to Davis with respect to the verdict regarding the

August 8, 2008 loan agreement and conversion, those facts support the verdicts. Davis

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arranged to purchase the Suzuki of Fayetteville dealership from a nonparty. Then, on

August 8, 2008, Davis borrowed $325,000 from Hunter to pay off the nonparty’s GMAC

obligation. Davis agreed to pay Hunter $355,000 before August 31, 2008, to reimburse

him for the August 8, 2008 loan. According to the August 8 agreement, Hunter was to

hold all vehicle titles and would release them as Davis paid back the associated loan amounts.

If the loan was not paid in full by August 31, 2008, Hunter would own all titles and

automobiles by default. A list of twenty used vehicles was prepared and signed by Davis.

The parties further agreed that in addition to the open titles on those twenty vehicles and

the written note securing the August 8 loan, a total of thirty-eight used vehicles from the

Suzuki of Fayetteville lot became part of the collateral for the loan, of which only thirty-

five were the primary subjects of the suit.

Davis alleged in his complaint that Hunter breached the August 8 agreement by

retaining profits above the loan repayment of $355,000. That allegation was supported at

trial by a spreadsheet prepared by Jeffrey Wood, who also testified about each of the vehicles

and demonstrated that Hunter received an amount that exceeded the amount of the loan

repayment. Wood’s testimony and spreadsheet support the jury’s verdict. Moreover, while

Davis did not dispute the fact that he could not repay Hunter the $355,000 by August 31,

2008, he testified that Hunter agreed to an extension of that deadline. It was within the

jury’s province to weigh and value the evidence on this issue. Esry, supra.

Here, the jury not only had before it Davis’s testimony about an agreed extension,

there was also evidence that Hunter never notified Davis he was in default; he never

threatened to sue Davis; Hunter and Davis took two trips together after the August 31

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deadline; and Davis testified that Hunter knew the $269,000 check would bounce before

he cashed it, but he insisted on the check as another means of security. Hunter and Davis

both testified that their working relationship continued after the August 31 deadline. In

addition, the jury heard testimony that for almost two months after the deadline, Hunter

and his bookkeeper continued to keep a separate record to account for the sales of the thirty-

five vehicles with the intention of applying those sales toward the loan repayment. Thirty-

four of the thirty-five vehicles were sold, and Hunter retained the proceeds. Hunter

acknowledged that before the November 21, 2008 falling out with Davis, he was treating

the sales as a credit toward the $355,000 debt. Several financial exhibits were also before

the jury.

Under these facts, the jury could reasonably conclude that the August 8 deadline was

extended by agreement and that Hunter therefore breached the agreement when he retained

the proceeds from the sale of Davis’s vehicles that exceeded the $355,000 loan amount.

Substantial evidence supported the jury’s verdicts concerning the August 8 loan and resulting

conversion. The judgments associated with these verdicts would not have been reversed

on appeal even if the notice of appeal had been timely filed.

The circuit court correctly found that the underlying case would have been affirmed

if the appeal had been timely filed. It therefore did not err in granting summary judgment

to appellees.1

1
In conjunction with this appeal, Keck and Austin seek reimbursement for fees and
costs associated with its preparation of the supplemental abstract and addendum. Extensive
supplementation was required in order to understand the points on appeal presented by
Hunter. Accordingly, we grant Keck and Austin's motion for attorneys' fees and costs in
the amount of $1857.16.
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Affirmed.

GLADWIN and MURPHY, JJ., agree.

Danny R. Crabtree, for appellant.

Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: David R. Matthews, Sara

L. Waddoups, and Scott Tidwell, for appellees.

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