Jenkins v. City of Little Rock

Jeff JENKINS, d/b/a Asher Wrecker Service v.
CITY of LITTLE ROCK

CA 95-67                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
               Opinion delivered February 21, 1996


1.   Judgment -- when summary judgment should be granted -- factors
     on review. -- Summary judgment should be granted only when a
     review of the pleadings, depositions, and other filings
     reveals that there is no genuine issue as to any material
     fact, and the moving party is entitled to judgment as a matter
     of law; all proof submitted must be considered in the light
     most favorable to the non-moving party, and any doubts or
     inferences must be resolved against the moving party; on
     appeal, the court determines whether the evidence presented by
     the movant leaves a material question of fact unanswered. 

2.   Judgment -- appellee was entitled to summary judgment as a
     matter of law -- trial court's determination not in error. --
     The appellate court found no error in the trial court's
     determination that no genuine issues of material fact existed
     and that the appellee was entitled to judgment as a matter of
     law where a plain reading of the city's written resolution
     indicated that the city had not contractually bound itself in
     writing, rather, it only authorized the City Manager to award
     a contract to appellant; there was no evidence that the City
     Manager signed a written contract with appellant as authorized
     by the resolution; therefore, if the parties were
     contractually bound at all, it was pursuant to an oral
     contract and appellant's attempt to bring an action five years
     later was barred by the applicable three-year statute of
     limitations.


     Appeal from Pulaski Circuit Court; Chris Piazza, Judge;
affirmed.
     The Cortinez Law Firm, P.A., by:  Robert S. Tschiemer and
Robert R. Cortinez, for appellant.
     Thomas M. Carpenter, Little Rock City Att'y and Paul D. White,
Ass't City Att'y, for appellee.

     John B. Robbins, Judge.*CA*ADVREP4*              DIVISION III









JEFF JENKINS, d/b/a ASHER
WRECKER SERVICE
                     APPELLANT

V.


CITY OF LITTLE ROCK
                      APPELLEE



CA 95-67

                                                FEBRUARY 21, 1996


APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT


HONORABLE CHRIS PIAZZA,
CIRCUIT JUDGE


AFFIRMED




                     John B. Robbins, Judge.


     On June 8, 1992, appellant Jeff Jenkins, d/b/a Asher Wrecker
Service, filed an action against the City of Little Rock for breach
of contract.  After a hearing, the circuit court granted the city's
motion for summary judgment.  Specifically, the circuit court found
that appellant's claim was barred by the statute of limitations. 
Appellant now seeks reversal, arguing that the trial court erred in
applying a three-year, rather than a five-year, limitations period. 
We find no error and affirm.
     Summary judgment should be granted only when a review of the
pleadings, depositions, and other filings reveals that there is no
genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law.  Arkansas Blue Cross and
Blue Shield v. Hicky, 50 Ark. App. 173, 900 S.W.2d 598 (1995).  All
proof submitted must be considered in the light most favorable to
the non-moving party, and any doubts or inferences must be resolved
against the moving party.  Wozniak v. Colonial Ins. Co., 46 Ark.
App. 331, 885 S.W.2d 902 (1994).  On appeal, we determine whether
the evidence presented by the movant leaves a material question of
fact unanswered.  Bellanca v. Arkansas Power and Light Co., 316
Ark. 80, 870 S.W.2d 735 (1994).
     The evidence in the instant case shows that in April 1987 the
City of Little Rock published a request for bids for the rendition
of towing and vehicle-storage services to the city.  Among the bids
received was one submitted by Jeff Jenkins, owner of Asher Wrecker
Service.  After reviewing all bids, the city's Board of Directors
adopted a resolution authorizing the City Manager to award a
contract to Asher Wrecker Service.  This resolution was adopted on
June 2, 1987, at which time appellant began towing for the city.
     A dispute arose over, what appellant now characterizes as,
additional terms that were being imposed by the City of Little
Rock, and on June 8, 1987, appellant withdrew his bid.  Routh
Wrecker Service was then awarded the contract.  On June 8, 1992
(exactly five years after the alleged breach), appellant filed this
action against the City of Little Rock.
     In granting the city's motion for summary judgment, the trial
court noted that the parties never entered into a written agreement
and that, at most, only an oral contract existed.  The trial court
then cited Ark. Code Ann.  16-56-105 (1987), which provides in
pertinent part:

     16-56-105.  Actions with limitation of three years.
       The following actions shall be commenced within three
     (3) years after the cause of action accrues:
       (1)  All actions founded upon any contract, obligation,
     or liability not under seal and not in writing, excepting
     such as are brought upon the judgment or decree of some
     court of record of the United States or of this or some
     other state[.]...
Pursuant to this statute, appellant's action was held to be time-
barred.
     For reversal, appellant contends that the trial court erred in
finding that no written contract existed, and that the applicable
statute of limitations should have been five years, as provided by
Ark. Code Ann.  16-56-111 (1987).  Specifically, appellant argues
that his signed bid to perform services constituted an offer, and
that the City of Little Rock accepted this offer in writing when
it adopted a resolution awarding the contract to Asher Wrecker
Services.
     We find no error in the trial court's determination that no
genuine issues of material fact existed and that the City of Little
Rock was entitled to judgment as a matter of law.  The contents of
the city's written resolution are not in dispute.  The resolution
states:
     In compliance with Section 2-44 of the Code of Ordinances
     of the City of Little Rock, the City Manager is hereby
     authorized to award a contract for the granting of a
     franchise to operate a wrecker service within the City of
     Little Rock to Asher Wrecker Service.
A plain reading of the above resolution indicates that the city
had not contractually bound itself in writing.  Rather, it only
authorized the City Manager to award a contract to Asher Wrecker
Service.  There is no evidence, nor is it contended, that the City
Manager signed a written contract with Asher Wrecker Service as
authorized by the resolution.  Therefore, if the parties were
contractually bound at all, it was pursuant to an oral contract. 
Appellant's attempt to bring an action five years later was barred
by the applicable three-year statute of limitations.
     Affirmed.
     Pittman and Rogers, JJ., agree.