Bomar v. Moser, 369 Ark. 123

Summary

The Arkansas Supreme Court reviewed summary judgment in a legal-malpractice action against attorneys arising from failed negotiations involving a software company. The court held that genuine issues of material fact remained regarding the plaintiff's individual standing and whether fraudulent concealment tolled the statute of limitations, but affirmed the denial of a motion to strike based on the defendants' Fifth Amendment assertions and declined to review an adverse-inference issue that lacked a trial-court ruling. The judgment was affirmed in part, reversed in part, and remanded.

Holdings

1. A shareholder may bring an individual action only for an injury distinct and separate from the harm caused to the corporation. Because the evidence could support either a personal injury to Bomar through lost employment and royalties or an injury primarily suffered by STI, genuine issues of material fact remained concerning standing, making summary judgment improper.
2. Summary judgment was improper because Bomar presented evidence creating a genuine issue of material fact as to whether the appellees committed fraudulent concealment that tolled the statute of limitations.
3. The circuit court properly denied Bomar's motion to strike because the appellees did not make blanket Fifth Amendment assertions; they answered some interrogatories, asserted the privilege only as to matters involving the Boeing transaction, and gave reasons for withholding testimony.
4. The court could not consider Bomar's argument for an adverse inference because the circuit court had not ruled on the issue.
5. The court could not address Jewell's derivative-liability argument because he had not obtained a ruling on that issue from the circuit court.

Questions Presented

1. Whether genuine issues of material fact existed concerning Bomar's standing to assert individual claims based on the failed Boeing transaction.
2. Whether genuine issues of material fact existed concerning fraudulent concealment sufficient to toll the statute of limitations for Bomar's legal-malpractice claims.
3. Whether the circuit court properly denied Bomar's motion to strike the appellees' statute-of-limitations defense because they asserted the Fifth Amendment privilege during discovery.
4. Whether the appellate court could consider Bomar's request for an adverse inference based on the appellees' Fifth Amendment assertions when the circuit court had not ruled on that issue.
5. Whether the appellate court could consider Jewell's argument that he was not derivatively liable for Moser's conduct when the circuit court had not ruled on it.

Disposition

reversed_and_remanded