Glenn Mechanical, Inc. v. Lucy Gibney
Annotate this Case
Download PDF
Judge Miller’s unpublished opinion for May 30, 2007
DIVISION I
CA06-1169
May 30, 2007
GLENN MECHANICAL, INC.
APPELLANT
v.
AN APPEAL FROM THE UNION
COUNTY CIRCUIT COURT
[CV2003-528-4]
LUCY GIBNEY
HONORABLE CAROL CRAFTON ANTHONY,
JUDGE
APPELLEE
AFFIRMED
Appellant Glenn Mechanical challenges the trial court’s dismissal of its breach-ofcontract claim against appellee Lucy Gibney because the claim was barred by the three-year
statute of limitations. We affirm.
In 1998, Gibney hired Glenn to perform plumbing, heating, and air services for the new
home she was constructing. She later hired Glenn to perform excavation and cement work for
the same property. The parties’ agreements were never reduced to writing.
On October 28, 1999, Glenn completed its work on the project for Gibney. The total
bill for Glenn’s work was $88,598.66 and Gibney began paying Glenn in monthly installments.
She eventually reduced the amount owed on her account to $38,753.87.
On December 5, 2003, after Gibney failed to make several payments on her account,
Glenn filed suit against Gibney for breach of an oral contract. Soon thereafter, Glenn amended
the complaint and attached the affidavit of its president, Ricky McDiarmid. The affidavit
stated that the last payment was made on the account on September 4, 2002, leaving an
outstanding balance of $38,753.87. In her answer, Gibney affirmatively pled that the statute
of limitations had run on Glenn’s claim.
At the November 4, 2005, bench trial, conflicting testimony was given regarding the
date on which Glenn received the last payment on the account. Jason McDiarmid, Glenn’s
vice-president, testified that he performed an accounting of Gibney’s account. On direct
examination, he testified that the last payment made by Gibney was on August 1, 2001. On
cross-examination, however, while reviewing the account invoices, he testified that the last
payment on the account was received on October 4, 2000.
The trial court’s order was entered on May 31, 2006. It found that the last payment was
made to Glenn on October 4, 2000, and therefore, Glenn’s breach of contract claim was time
barred because the three-year statute of limitations on the oral contract had run on October 4,
2003. Glenn moved for reconsideration and the trial court failed to rule on the motion within
thirty days. The motion was, therefore, deemed denied. Glenn now appeals.
Our standard of review on appeals from bench trials is whether the trial court’s findings
are clearly erroneous or clearly against the preponderance of the evidence. Pablo v. Crowder,
95 Ark. App. 268,
S.W.3d
(2006). A finding is clearly erroneous when, although there
is evidence to support it, the reviewing court, on the entire evidence, is left with the firm
conviction that a mistake has been committed. Hot Spring County Solid Waste Auth. v. Hot
2
Spring County, 96 Ark. App. 230,
S.W.3d
(2006). Disputed facts and determinations
of the credibility of witnesses are within the province of the fact finder. Newton v. Tidd, 94
Ark. App. 368, 196 S.W.3d 488 (2006).
Glenn argues that the trial court erred when it ruled that its claim was barred by the
running of the three-year statute of limitations. In Glenn’s original complaint and in the
amended complaint, Glenn described its agreement with Gibney as an oral contract. Actions
founded upon an oral contract must be commenced within three years after the cause of action
accrues. Ark. Code Ann. § 16-56-105(1) (Repl. 2005). The running of the statute of
limitations is largely a question of fact. Northwest Ark. Recovery, Inc. v. Davis, 89 Ark. App.
62, 200 S.W.3d 481 (2004).
A cause of action for breach of contract accrues the moment the right to commence an
action comes into existence, and occurs when one party has, by words or conduct, indicated
to the other that the agreement is being repudiated or breached. Helms v. Univ. of MO-KS
City, 65 Ark. App. 155, 986 S.W.2d 419 (1999). In ordinary contract actions, the statute of
limitations begins to run upon the occurrence of the last element essential to the cause of action.
Id. However, the law is well settled that a voluntary partial payment tolls the running of the
statute of limitations, and forms a new period from which the statute must be computed. Id.
Three different dates were given as the date of the final payment, October 4, 2000;
August 1, 2001; and September 4, 2002. Glenn argues that the testimony clearly established
September 4, 2002, as the date of the last payment. It ignores the fact that Jason McDiarmid
3
offered testimony contradicting its present assertion. During direct examination, he testified
that August 1, 2001, was the date of the last payment; however, while consulting the invoices,
he later testified that the last payment was received on October 4, 2000. When the testimony
is conflicting a fact question arises that is to be determined by the trial court. Ward v.
Williams, 80 Ark. App. 69, 91 S.W.3d 102 (2002). We do not reverse on a factual issue as
long as there is evidence to support the trial court’s finding and the finding is not clearly against
the preponderance of the evidence. Id.
The question of when the final payment was made is a question of fact. The trial court
resolved that October 4, 2000, was the date of the last payment. Because issues of disputed
fact were within the province of the trial court, we are unable to say that the trial court’s
decision was clearly erroneous. Accordingly, we affirm the trial court’s finding that Glenn’s
cause of action was barred by the running of the three-year statute of limitations.
Affirmed.
B AKER, J., agrees.
GLOVER, J., concurs.
4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
