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Still v Perroni Law Firm

Case No. 10-948 (AR S.Ct., Oct. 27, 2011)

This is an appeal from an order granting summary judgment in favor of appellee, The Perroni Law Firm (hereinafter Perroni). Because of a violation of the statute of limitations regarding oral contracts, we reverse the order of the circuit court and dismiss.

In December 1998, appellant, Ben Still, and his wife, Allison Still, hired Samuel Perroni of the Perroni and James Law Firm2 to provide legal services in connection with an investigation being conducted by the United States Department of Transportation and the United States Attorney’s Office pertaining to allegations involving the sale and titling of crashtest vehicles. On December 2, 1998, a contract for legal services was signed by Still3 and Perroni, wherein Still agreed to pay Perroni $25,000 for work done prior to an indictment being filed. Additionally, a provision was included in the contract that would require a new and separate contract, if legal proceedings in the nature of defending an indictment occurred.

On December 15, 1999, the United States Attorney filed a twelve-count indictment against the Stills for wire fraud, conspiracy, and mail fraud. The government alleged that the Stills obtained unrestricted titles for crash-test vehicles, which had been sold for salvage only, by means of false documents and representations and that these vehicles were then resold to consumers. Perroni and Still met at Perroni’s office on December 16, 1999, to discuss Perroni’s representation of Still subsequent to the indictment. Perroni sent a letter to Still on December 21, 1999, confirming his representation in the matter. In his letter, Perroni agreed to represent Still for a fee of $65,000.00 and to give Still “credit for the $25,000.00 retainer,” leaving Still with a “balance due of $40,000.00.” Perroni added that he “would appreciate it if [Still] would pay that fee as expeditiously as possible.” The letter also informed Still that he would be responsible for any out-of-pocket expenses, which Perroni estimated at about $35,000.00. He stated that he would bill Still on a monthly basis for those expenses.
 

 

Judge(s): Robert L. Brown
Jurisdiction: Arkansas Supreme Court
Related Categories: Contracts
 
Supreme Court Judge(s)
Robert Brown
Donald Corbin
Paul Danielson
Jim Gunter
James Hannah
Courtney Hudson Henry

 
Trial Court Judge(s)
Thomas Williams

 

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cite as 2011 ark. 447 to represent still for a fee of $65,000.00 and to give still "credit for the $25,000.00 retainer," making the three-year statute of limitations applicable. perroni counters, and the circuit court and his wife, allison still. allison still consistently maintained throughout the action below limitations and restarted the original statute of limitations of three years. the contract would remain oral and subject to the six-year rather than the 15-year limitation" written acknowledgment of the debt that transformed the contract into one in writing and acknowledgment of an oral agreement and that it in no way removed the underlying oral 11 investigation being conducted by the united states department of transportation and the effect of reducing to writing her oral promise to repay the loan. shelton, 225 ark. at 857, 286 for summary judgment, and on appeal that perroni's action for recovery of unpaid legal fees writing. on appeal, he continues to maintain that to the extent that there was a contract for holding, however, does not remove the cause of action from the three-year statute of perroni and that was similar to those charged in the indictment. on january 23, 2001, the our conclusion is supported by this court's opinion in shelton v. harris, 225 ark. 855, perroni law firm (hereinafter perroni). because of a violation of the statute of limitations1 contract, including the parties to be bound, the consideration given, or the subject matter. acquired, including but not limited to accounts, instruments, documents, chattel paper, by the five-year statute of limitations. for his conclusion, perroni relies solely on this court's future unpaid legal fees and unknown expenses in an amount not to exceed $100,000 a debt converts an oral obligation into a written contract, supports the conclusion that the o'keefe, 213 ark. 105, 209 s.w.2d 449 (1948). limitations began to run." blake, 216 ark. at 667, 226 s.w.2d at 987 (emphasis added). this this is an appeal from an order granting summary judgment in favor of appellee, the will start the statute running anew, when the acknowledgment is not accompanied by perroni's representation of still subsequent to the indictment. perroni sent a letter to still on continuing obligation so as to imply a promise of payment. see gazza v. united california the writing itself, and the unconditional promise to pay must be made by the parties from applicable to actions brought upon written contracts or agreements. hott, 122 n.e.2d at 779. the same. for example, in first national securities corp. v. hott, 122 n.e.2d 777 (ohio 1954), judge, in december 1998, appellant, ben still, and his wife, allison still, hired samuel federal district court granted the government's motion to dismiss the indictment against the whom the debt is due to the parties to whom payment of the debt is due. mcmahon v. on july 12, 2001, a second indictment was filed against the stills. perroni did not on december 15, 1999, the united states attorney filed a twelve-count indictment summary judgment is to be granted by a trial court only when it is clear that there are cite as 2011 ark. 447 no genuine issues of material fact to be litigated and the moving party is entitled to hereinafter called the "obligations"). and also any and all other liabilities of debtor [still] to secured party [perroni], direct cite as 2011 ark. 447 contained the following language: mellema's adm'r v. whipple, 226 s.w.2d 318 (ky. 1950). security may constitute a sufficient acknowledgment of a debt so as to toll the statute of similarly, the court of appeals of kentucky has found a written acknowledgment of the still emphasizes that the only written agreement between the parties was the s.w.2d at 21. although shelton does not specifically address the concept of an correctness of the invoice of march 1, 1945" and there was a "promise to pay the account any contract, obligation, or liability not under seal and not in writing." ark. code ann. 16- direct or indirect, absolute or contingent, due or to become due, now existing or what is important for purposes of our discussion today is that this court never said in evidence that the condition has been performed." blake, 216 ark. at 66667, 226 s.w.2d perroni, wherein still agreed to pay perroni $25,000 for work done prior to an indictment still was done on behalf of and for the benefit of the perroni law firm. still claimed in his motion for summary judgment, in his response to perroni's motion action shall accrue." ark. code ann. 16-56-111 (1987). that written security in the form of a note did not transform the original oral agreement to the circuit court originally denied still's motion for summary judgment on the5 on april 19, 2010, the circuit court held a hearing to consider the parties' cross- was warranted in holding that [blake's letter] established a new period from which the statute of cite as 2011 ark. 447 obligations, duties, or rights . . . shall be commenced within five (5) years after the cause of stills without prejudice. security agreement merely acknowledged the debt agreed to in the oral agreement between was barred by the three-year statute of limitations governing contracts or obligations not in the precise terms of the original oral agreement, however, were not set out in the security constituted an unequivocal acknowledgment of the existence of the debt and a waiver of the shipments that were made on march 1, 1945 and march 5, 1945. in august 1945, blake acknowledgment that security was being given in certain property owned by still in order to obligations. still asserts in response that the security agreement was merely an on may 18, 2005, perroni filed a complaint against the stills to recover unpaid legal4 december 2, 1998 contract for legal services, which related to perroni's representation pre- motion to be considered on the merits. 10 the complaint against both ben still and allison still, allison still was dismissed from the limitations would have applied. accordingly, it is undisputed that the december 1999 that she never hired the perroni law firm or the perroni and james law firm and that she 12 appellee robert l. brown, associate justice it if [still] would pay that fee as expeditiously as possible." the letter also informed still that in the months following the indictment, perroni proceeded to file several motions on into a five-year term. or indirect, absolute or contingent, due or to become due, now existing or hereafter to extend the time for filing an action upon the indebtedness, there must be an unconditional february 16, 2010, raised the argument that perroni's action was barred by the three-year5 perroni, individually, and the perroni law firm, as samuel perroni's representation of ben obligation is such an admission that the law will imply from it a new promise to pay, which we conclude that the reasoning in shelton and other state courts, combined with the agreement from the three-year statute of limitations. 286 s.w.2d 20 (1956). in shelton, the appellant lent the decedent, ella hampton, $405 upon acknowledgment of a debt to toll the statute of limitations and noted that "there must be 661, 664 (1942). united states attorney's office pertaining to allegations involving the sale and titling of crash- hampton's oral promise to repay the money in full by the fall of 1949. hampton died before from which the law implies a promise to pay the debt."). test vehicles. on december 2, 1998, a contract for legal services was signed by still and3 gainor sales company of philadelphia, pennsylvania, who later assigned its account against appeal from the garland legal services with perroni, the security agreement signed by him on may 18, 2000, did not appellant meaning of the statute of limitations, but was simply a new promise based upon the original of counsel, pleadings, and exhibits, still "failed to meet proof with proof, and therefore there on may 19, 2000, a security agreement was executed and signed by still and perroni contract did not convert the oral contract into a contract in writing. the court explained that of limitations . . . operates as an unequivocal acknowledgment of the existence of the debt, in december 1998, appellee the perroni law firm was conducting business as the2 acknowledgment of a debt and tolling of the statute of limitations, the shelton court did hold the perroni law firm wrote a letter to gainor after receiving the two march shipments and recognized the 56-105 (repl. 2005). statute of limitations on written obligations. the complaint was filed within five years of the 7 the court will refer to ben still only. lack of language in blake and other cases concerning whether a written acknowledgment of language of the blake opinion that the written acknowledgment merely tolled the statute of being filed. additionally, a provision was included in the contract that would require a new cite as 2011 ark. 447 behalf of still. perroni's client-ledger report and monthly billing statements reflected that still made the following payments on the account: (1) $10,000.00 payment on march 6, 2000; (2) perroni of the perroni and james law firm to provide legal services in connection with an2 the effect of that security agreement on the issue of whether the contract for legal services was basis that new information had surfaced concerning a crash-test vehicle that had been sold to then, he stated, he would mail gainor a check for the outstanding balance. writing" shall be commenced within three years after the cause of action accrues. ark. code initially, we note that the arkansas code regarding limitations of actions provides that contained within the security agreement, exhibit c to the complaint, signed and dated by from the three-year statute of limitations and transform it into a written obligation governed [still], is sufficient acknowledgment of the debt, to bring the matter within the five-year order of the circuit court and dismiss for violation of the statute of limitations. december 21, 1999, confirming his representation in the matter. in his letter, perroni agreed from which a promise to pay is to be implied; or a conditional promise to pay the debt and (1947). this court considered the question of what constituted a sufficient written6 all tangible property, wherever located and whether presently existing or to be $35,000.00. he stated that he would bill still on a monthly basis for those expenses. cite as 2011 ark. 447 this court has further said that an acknowledgment of the claim as an existing cite as 2011 ark. 447 limitations and place it within the five-year limitations period. we conclude from the all intangible property, wherever located and whether presently existing or to be moreover, other states that have been presented with a similar issue have concluded we are further cognizant of the fact that the security agreement never purported to be secure payment of present and future unpaid legal fees and expenses. this is an express in considering whether there has been a sufficient acknowledgment in writing to toll perroni and james law firm. is no remaining issue of fact in dispute." repaying the loan; however, prior to her death, she endorsed and pledged an overdue rent ann. 16-56-105 (1987). the code further provides that "[a]ctions to enforce written cite as 2011 ark. 447 the oral contract into one in writing. this court specifically said in blake that the "trial court in the instant case. 13 5 oral or in writing. perroni argues, and the circuit court found, that this acknowledgment in it is generally held to be sufficient if, by fair construction, the writing constitutes an to repeat in part, the security agreement signed and executed on may 19, 2000, 226 s.w.2d at 987. thus extend the period of limitation for six years from the date of the memorandum . . . but "[a]ll actions founded upon any contract, obligation, or liability not under seal and not in bank int'l, 451 n.y.s.2d 806, 809 (n.y. app. div. 1982) (recognizing that "the giving of the security interest granted hereby is to secure payment of any and all present and hereafter arising, especially including all rents and advances of every kind (all was a sufficient acknowledgment of an existing debt so as to start the statute-of-limitations at 987. we held that the letter written by blake "established a new period from which the the security interest granted hereby is to secure payment of any and all present and correctness of the invoice dated march 1st but contested the march 5th invoice. he claimed years. however, the acknowledgment of the debt in no way removed that original agreement by section 16-56-105. as stated previously, allison still was dismissed from this action on march 3, 2010.4 stills obtained unrestricted titles for crash-test vehicles, which had been sold for salvage only, baker, j., not participating. of limitations, which at the time, was found at arkansas statutes annotated section 37-206 this statute is now the three-year statute of limitations for "[a]ll actions founded upon6 6 convert his oral obligation into a written one so as to bring it within the five-year statute of 8 by means of false documents and representations and that these vehicles were then resold to note for $450, on which she was the payee, to appellant as security for the loan. appellant court has said: existence of a debt in an ex parte petition did not constitute a "written contract" within the cite as 2011 ark. 447 2 demonstrate the existence of a material issue of fact. on the question of whether there was a written acknowledgment of the existence of billing statements reflected that interest was being charged on the account on a monthly basis. of an oral contract, based on the endorsed, overdue note. this court, however, rejected this limitations . . . .); in re jorgensen's estate, 217 n.e.2d 290, 292 (ill. app. ct. 1966) (agreeing perroni and still and extended the limitations period for an oral contract for another three against the stills for wire fraud, conspiracy, and mail fraud. the government alleged that the the stills' trial was set for january 29, 2001, in the federal district court. perroni filed ben still contended on appeal that her claim was converted to demand upon a written contract, instead acknowledgment." the court also concluded in its order that after considering the arguments parties concerning perroni's representation of still post-indictment, it was an oral agreement, based on the language of the security agreement signed by still, we conclude that it opinion delivered 10-27-11 cite as 2011 ark. 447 owned by the debtor for the debt is such an acknowledgment of the debt to evidence a and separate contract, if legal proceedings in the nature of defending an indictment occurred. for the recovery of a balance alleged to be due on blake's account. blake denied the period running anew. although the language of the security agreement does not specifically repay a loan into a written obligation. these facts and that conclusion are analogous to those perroni continued to send still monthly billing statements for the legal fees due on the street improvement dist. no. 113 of hot springs v. mooney, 203 ark. 745, 750, 158 s.w.2d indictment. he further urges that to the extent that there was an agreement between the admission that the claim is a subsisting debt unaccompanied by any circumstances 4 ben still signed the december 2, 1998 contract for legal services on behalf of himself3 cite as 2011 ark. 447 was sufficient to bring his cause of action within the five-year statute of limitations for written material issue of fact remaining, because it was clear that a contract for legal services was reversed and dismissed. gainor to straighten out the march 5th invoice and send him the corrected amount due. he would be responsible for any out-of-pocket expenses, which perroni estimated at about arising, especially including all rents and advances of every kind (all hereinafter called the blake opinion that the acknowledgment of the debt and tolling of the statute converted had a separate attorney who represented her interests. although the perroni law firm filed this court has never specifically addressed the question of whether a security agreement reversed and dismissed. 1012, 1015 (conn. 1914) (finding that "[t]he giving of security for a debt barred by the statute acknowledgment of the debt by still in that security agreement. accordingly, we reverse the from an extended three-year statute of limitations; nor did it convert the limitations period representation relating to the first indictment. perroni's client-ledger report and monthly entitlement to summary judgment, the opposing party must meet proof with proof and the "obligations"). no. 10-948 statute of limitations began to run" because "[t]here was a clear acknowledgment of the this court's standard of review for summary judgment is well settled: blake to appellee, commercial factors corporation. the controversy in blake involved two two motions to dismiss the indictment, and the government also moved to dismiss it on the leaving still with a "balance due of $40,000.00." perroni added that he "would appreciate consumers. perroni and still met at perroni's office on december 16, 1999, to discuss to secure payment of the legal fees. the security agreement contained the following language: "[t]he memorandum may acknowledge the oral contract so as to establish its existence and entered into by the parties, consideration was agreed upon, performance on the part of ground that it was untimely filed. the court, however, later allowed still to renew his 9 reference perroni's representation of still in the criminal case, there was a clear defense of the statute of limitations."); wagner v. mutual life ins. co. of new york, 91 a. acknowledgment of the validity of the debt for unpaid legal fees. states, however, have clearly determined that the grant of a security interest in property action on march 3, 2010. for the purposes of this appeal, as ben still is the only appellant, motion for summary judgment and granting perroni's motion for summary judgment. jackson v. sparks reg'l medical center, 375 ark. 533, 539, 294 s.w.3d 1, 4 (2009). . . . contingent upon the allowance of credit on the invoice of march 5, 1945." id. at 667, decision in blake v. commercial factors corp., 216 ark. 664, 226 s.w.2d 986 (1950). judgment as a matter of law. once a moving party has established a prima facie statute of limitations set forth in arkansas code annotated section 16-56-105. perroni's supreme court of arkansas acquired, including but not limited to consumer goods, inventory, and equipment. of an oral agreement concerning perroni's representation of mr. still." he further admits that motions for summary judgment. on june 4, 2010, the court entered an order denying still's ark. 939, 165 s.w.2d 607 (1942). in order for an acknowledgment of a debt to be sufficient motion for summary judgment, filed on march 24, 2010, contended that there was no under the terms of the security agreement, still granted perroni a security interest in the $1,542.37 payment on march 13, 2000; (3) $10,000.00 payment on may 31, 2000; and (4) regarding oral contracts, we reverse the order of the circuit court and dismiss. following property: represent still in this case, and still was appointed a public defender for representation. that fact, however, does not answer the question now before us, which is what was county court, no. cv-05-852-3, a specific debt sufficient to create a new period from which the statute of limitations runs, this the security agreement was enough to remove the underlying oral contract for representation on may 7, 1948, suit was filed by gainor's assignee, commercial factors corporation, anything that negates the presumption of an intention to pay the debt. walker v. mullins, 204 absent the subsequent written acknowledgment of the debt by still, the three-year statute of and general intangibles. hon. thomas lynn williams, for clarity purposes, the use of "perroni" in this opinion will refer to both samuel1 the statute of limitations, the question to be determined is the intention of the debtor. security agreement, applied and the suit was time-barred three years after the date of the perroni was delivered, and still failed to pay. and also any and all other liabilities of debtor [ben still] to secured party [perroni], agreement concerning post-indictment representation was oral and was governed at the outset v. promise to pay or the circumstances must be such that such a promise can be inferred from cite as 2011 ark. 447 allegations in the complaint and asserted that the claim was barred by the three-year statute that he returned a portion of the shipment indicated on the march 5th invoice and asked we hold that the three-year statute of limitations, as extended from the date of the argument and found that the borrower's act of endorsing a past-due note did not have the future unpaid legal fees and unknown expenses in an amount not to exceed $100,000 in blake, h. l. blake, the appellant, bought several shipments of merchandise from perroni admits in his brief on appeal that his december 21, 1999 letter "is evidence legal services or even an acceptance of the same assumes that identity. cite as 2011 ark. 447 the ohio supreme court held that a written memorandum evidencing an oral employment still and perroni both filed cross-motions for summary judgment. still's motion, filed on agreement. that the "decedent's delivery to claimant . . . of . . . shares of stock . . . as security of the debt a written contract for legal services. indeed, it failed to include the essentials for such a $1,500.00 payment on october 13, 2000. oral contract which was controlled by the statute of limitations applicable to oral contract. fees in connection with his representation of the stills in connection with the first indictment. 3 is a sufficient acknowledgment of a debt that will toll the statute of limitations. several other clearly found, that the written security agreement signed by still on may 18, 2000, was a see daimlerchrysler corp. v. smelser, 375 ark. 216, 289 s.w.3d 466 (2008). it would be an repelling the presumption of the party's willingness or intention to pay. either an express promise of the debtor to pay the debt, or an acknowledgment of the debt, limitations for written agreements. oddity for us to hold that an instrument that does not pretend to be a written contract for specifically, the court found that "the acknowledgment of debt to [perroni] by [still]


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