Temco Construction, LLC v. Gann
2013 Ark. 202
| Ark. | 2013Background
- TEMCO Construction, LLC contracted as general contractor with Sherry and Gregg Gann to build a residence in Mayflower, Arkansas.
- TEMCO asserted a materialman’s lien after completing construction; lien was discharged following the Ganns’ suit challenging it.
- TEMCO then sued the Ganns for breach of contract, unjust enrichment/quantum meruit, promissory estoppel, and fraud/misrepresentation based on allegedly inadequate financing disclosure.
- Ganns moved to dismiss on three grounds: res judicata, statutory bar for deficient lien notice (18-44-115(a)(4)), and failure to plead fraud; and alternative defenses including direct-sale exemption and constitutional challenges.
- Circuit Court granted dismissal solely on the statutory bar (a(4)) due to deficient notice, without expressly ruling on the other grounds.
- TEMCO appealed, arguing direct-sale exemption, constitutional challenges, res judicata, and fraud pleading; the court summarily affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Direct-sale exemption applicability | TEMCO: contract is direct sale; exemption applies | Ganns: no ruling on exemption; cannot review | Not reviewable; no express ruling on exemption |
| Constitutionality of 18-44-115 | TEMCO: statute unconstitutional (separation of powers, due process, equal protection) | Ganns: court need not review absent express ruling | Not reviewable; no express trial-court ruling on constitutional challenge |
| Res judicata and fraud pleading | TEMCO: defense independent of lien-issues; should be reviewable | Ganns: issues not addressed in order; res judicata and fraud arguments preserved for remand unlikely | Not reviewable; no ruling on these grounds in the order |
| Attorneys’ fees award | TEMCO: fees improper if case reversed | Ganns: prevailing party; fees proper | Affirmed based on summary affirmance; fees upheld as prevailing-party result |
Key Cases Cited
- Ground Zero Construction, Inc. v. Walnut Creek, LLC, 410 S.W.3d 579 (2012 Ark. 243) (trial court silence on issues means no review of those issues)
- Arkansas Lottery Commission v. Alpha Marketing, 386 S.W.3d 400 (2012 Ark. 23) (no interlocutory appeal without express ruling; preserve issues)
- Ghegan & Ghegan, Inc. v. Barclay, 49 S.W.3d 652 (2001 Ark. 345) (require express ruling on constitutional challenges)
- Gwin v. Daniels, 184 S.W.3d 28 (2004 Ark. ) (preservation of issues requires lower-court ruling)
- Books-A-Million, Inc. v. Arkansas Painting and Specialties Co., 10 S.W.3d 857 (2000 Ark.) (strict compliance with lien notice provisions)