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noting that if the parties involved have assumed conflicting postures regarding the facts and circumstances, the issue or question is generally a question of fact; however, if there is no conflict in the evidence and only one reasonable inference can be drawn from the evidence, the issue becomes one of law
Summary of this case from Greenway Equip., Inc. v. JohnsonOpinion
[264 Ark. 768-A] Supplemental Order on Petitions for Rehearing.
The petition for rehearing filed by the architects, Cromwell, Neyland, Truemper, Levy and Gatchell, Inc., is granted, for the reason that the only cause of action asserted against them is based upon negligent design, not breach of warranty, and that action is barred by the statute of limitations. The other petitions for rehearing are denied.
HARRIS, C. J., dissents.
BYRD, J., dissents.
GEORGE ROSE SMITH and FOGLEMAN, JJ., would grant rehearing as to all appellants.
[264 Ark. 768-B] BYRD, Justice, dissenting.
One of the troubles with per curiam orders is that like Mother Hubbard's dress, they cover everything and tell you nothing. The per curiam by the majority in holding that the statute, Ark.Stat.Ann. § 37-237 (Acts 1967, No. 42), has run against the architect, neglect to state that although the architect certified the building as complete in 1968 he continued to act on the roofing matter on the following dates, to-wit:
2-11-69
7-28-69
11-09-69
11-17-70
12-23-70
12-29-70
2-01-71
2-09-71
2-18-71
3-04-71
3-23-71
4-27-71
6-04-71
6-24-71
8-10-71
8-30-71
10-01-71
2-18-72
[264 Ark. 768-C] 11-02-73
12-15-73
1-04-74
1-08-74
1-18-74
2-22-74
2-27-75
3-18-75
3-26-75
As late as 11-2-73 the architect was "pleased with the general appearance of the roof and (Knox Gill's) concern for keeping the building watertight." It was not until 3-26-75 that the architect concluded that the roof had failed. It was only when the school board made demand upon Celotex that they learned of the fact that the roof may have been negligently designed.
Since the architect remained in the same fiduciary capacity to the school board at all times and consistently pointed the finger at Celotex and Knox Gill for the trouble with the leaks, I submit that such conduct in law amounts to concealment of the fact that there was anything wrong with the design. In such situations the courts of this nation almost universally hold that such conduct tolls the running of the statute of limitations. The reason for so holding is stated in 51 Am.Jur.2d Limitation of Actions § 147 as follows:
"The reasoning adopted in support of the general rule is that to hold that the statute of limitations ran in favor of a person who had concealed the cause of action under such circumstances would be to permit the defendant to take advantage of his own wrong and to sustain [264 Ark. 768-D] a defense of which in good conscience he ought not to be permitted to avail himself . . .."
With reference to whether or not there was a concealment, 51 Am.Jur.2d Limitation of Actions § 149 points out that where " . . . there are fiduciary or confidential relations between the parties, there needs to be no evidence of a fraudulent concealment other than that implied from the transaction itself."
For the reasons herein stated, I respectfully dissent from the majority's per curiam order stating that the statute had run against the architect.