{
  "id": 1715353,
  "name": "DANCO CONSTRUCTION COMPANY, INC. v. CITY OF FORT SMITH, Arkansas et al",
  "name_abbreviation": "Danco Construction Co. v. City of Fort Smith",
  "decision_date": "1980-04-23",
  "docket_number": "CA 79-320",
  "first_page": "1053",
  "last_page": "1056",
  "citations": [
    {
      "type": "official",
      "cite": "268 Ark. 1053"
    },
    {
      "type": "parallel",
      "cite": "598 S.W.2d 437"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "256 Ark. 569",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8723020
      ],
      "weight": 2,
      "year": 1974,
      "opinion_index": 0,
      "case_paths": [
        "/ark/256/0569-01"
      ]
    }
  ],
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  "last_updated": "2023-07-14T19:03:10.426772+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "DANCO CONSTRUCTION COMPANY, INC. v. CITY OF FORT SMITH, Arkansas et al"
    ],
    "opinions": [
      {
        "text": "Ernie E. Wright, Chief Judge.\nThis is an appeal from an order of the circuit court denying the defendant\u2019s motion for summary judgment.\nThe City of Fort Smith on February 12, 1974, filed action against appellant claiming damages arising out of the construction of a sewer line by the appellant. The City alleged appellant was negligent in failing to comply with plans and specifications in the construction and breached express and implied warranties of fitness with reference to materials used.\nDanco answered the complaint denying the allegations and affirmatively interposing the five year statute of limitations, Ark. Stat. Ann. \u00a7 37-237 (Repl. 1962); and thereafter filed motion for summary judgment. Affidavits filed in support of the motion reflect that Danco completed the work under its contract with the City as of August 4, 1967, and the City paid the balance of the retainage on the contract to appellant on February 9, 1968. This was not disputed.\nThe City filed a response to the motion for summary judgment alleging there are genuine issues of material facts and affidavits showing the work performed by appellant was one phase of a sewer improvement project and the phase constructed by appellant was not connected for service until a necessary pump station, an integral part of the total improvement, was completed and functional. This did not occur until early 1970. An affidavit on behalf of the City stated any defect in the line constructed by appellant would not become manifest until the pump station was completed.\nThe action was commenced within five years from the time the line constructed by appellant was connected for service, but after five years had elapsed from the completion of appellant\u2019s portion of the sewer improvement project.\n\u2022 The court found there is a genuine issue of material fact and overruled appellant\u2019s motion for summary judgment. However, in the order the court stated a conclusion of law, \u201cThat the claim by the City of Fort Smith is not barred by the Statute of Limitations\u201d.\nAppellant contends the court erred by including in the order the finding or ruling the City is not barred by the statute of limitations, and in denying appellant\u2019s motion for summary judgment. The appellant further contends the only question presented by the motion is a question of statutory construction and that the court erred in finding a genuine issue of fact exists between the parties.\nThe rule is well settled that a denial of a summary judgment is deemed an interlocutory order and not a final order from which appeal may be taken. Rule 2, Rules of Appellate Procedure. Bawcom v. Allis-Chalmers Credit Corporation, 256 Ark. 569, 508 S.W. 2d 741 (1974). The appellant argues the part of the order holding the City is not barred by the statute of limitations had the effect of granting a summary judgment in favor of the City on the issue of the statute of limitations even though the City did not seek a summary judgment, but only filed a response to appellant\u2019s motion. It further argues the inclusion of this ruling will operate to bar the appellant from offering evidence at trial on the facts pertinent to the defense of the statute of limitations.\nWe agree the court\u2019s order should have been limited to the single issue as to whether there is a genuine issue of material fact, and when so limited the order is not appealable.\nWe reverse the portion of the order of the trial court finding or holding the City of Fort Smith is not barred by the statute of limitations. In doing so we make it clear we are not holding the City is not barred. In view of the determination by the court that there is a genuine issue of material fact, the motion for summary judgment should have been simply denied. The parties shall be permitted to introduce any further evidence they wish touching on the issue of the statute of limitations and on the date the statute began to run.\nWe do not review the court\u2019s denial of the motion for summary judgment since the order is interlocutory and not appealable. However, the part of the order ruling the City is not barred by the statute of limitations would operate to foreclose appellant from further asserting that defense and offering evidence at trial on that issue. That portion of the order is therefore a final disposition of that issue, and is therefore appealable.\nReversed in part and remanded.",
        "type": "majority",
        "author": "Ernie E. Wright, Chief Judge."
      }
    ],
    "attorneys": [
      "Tom Forest Lovett, P.A., for appellant.",
      "Daily, West, Core, Coffman & Canfield, for appellees."
    ],
    "corrections": "",
    "head_matter": "DANCO CONSTRUCTION COMPANY, INC. v. CITY OF FORT SMITH, Arkansas et al\nCA 79-320\n598 S.W. 2d 437\nCourt of Appeals of Arkansas\nOpinion delivered April 23, 1980\nReleased for publication May 14, 1980\nTom Forest Lovett, P.A., for appellant.\nDaily, West, Core, Coffman & Canfield, for appellees."
  },
  "file_name": "1053-01",
  "first_page_order": 1089,
  "last_page_order": 1092
}