City of Kingsport v. SCM Corporation
Decision Date | 01 November 1972 |
Docket Number | Civ. A. No. 2639. |
Parties | CITY OF KINGSPORT, etc., et al., Plaintiffs, v. SCM CORPORATION et al., Defendants. |
Court | U.S. District Court — Eastern District of Tennessee |
W. E. Weber, City Atty., H. E. Wilson, and Joe Worley, Kingsport, Tenn., for plaintiffs.
F. Allan Kelly, Kingsport, Tenn., Arthur G. Seymour, Knoxville, Tenn., John Peters, Cleveland, Ohio, M. Lacy West, Kingsport, Tenn., Christopher Christopher, Worcester, Mass., for defendants.
This is a removed, 28 U.S.C. § 1441 (a), diversity action, 28 U.S.C. §§ 1332 (a)(1), (c), for money damages for breach of a contract relating to the deficient construction of a roof on a school building. It was commenced on December 15, 1970.
Inter alia, the defendants claim that the plaintiffs' action is barred by the limitations of T.C.A. §§ 28-314, 28-315, 28-305, 47-2-725. The plaintiffs concede that this action was not commenced within three years after their cause of action accrued, but they contend that their action was commenced within four years after such accrual, and that the applicable statutes, T.C.A. §§ 28-314, 28-315, 47-2-725, allow four years for the commencement of this action.
The Court is submitting to the jury the factual issues, whether the plaintiffs were induced to delay the commencement of this action until after the applicable statute of limitation had run, and whether the benefits of the applicable statute were lost by the defendants by conduct involving the principles of estoppel. See memorandum opinion and order herein of March 17, 1972, D.C., 352 F.Supp. 287. Thus, it becomes material at this time to decide which limiting statute is, or statutes are, applicable in the premises.
It is the opinion of this Court that T.C.A. § 47-2-725 is inapplicable herein. Involved here is a contract for the construction of a roof of a structure. The cited statute relates to contracts of sale. Layman v. Keller Ladders, Inc. (1970), Tenn., 455 S.W.2d 594, 596 3.
The plaintiffs contend that T.C.A. § 28-305 is inapplicable, "* * * because superceded is sic: in a case of this class by T.C.A. § 28-314. * * *" Reply memorandum of plaintiffs of October 31, 1972 to SCM's memo on statute of limitations, page 2. The Court disagrees. To conclude that T.C.A. § 28-314 has superseded T.C.A. § 28-305 is to conclude that the Tennessee General Assembly has extended the time for bringing suit for property tort actions from three years from the accruing of the cause of action to four years in the situations covered by T.C.A. § 28-314.
In the only decision construing T.C.A. §§ 28-314-28-318 cited to or discovered by this Court, the Tennessee Court of Appeals considered the question, whether the General Assembly of Tennessee, by enacting those aforecited statutes, had extended the time for bringing an action for personal injuries. Judge Matherne stated for the Court:
Leyen v. Dunn, (1970), Tenn.App., 461 S.W.2d 41, 44, esp. 1, certiorari denied (1970).
To continue reading
Request your trial-
Street v. National Broadcasting Co.
...In the final analysis, this Court must anticipate the law which the Tennessee Supreme Court will apply. City of Kingsport v. SCM Corporation, D.C.Tenn. (1972), 352 F.Supp. 288, 2902; see also Orfield v. International Harvester Co., C.A. 6th (1976), 535 F.2d 959, The data provided by the Ten......
-
A. J. Aberman, Inc. v. Funk Bldg. Corp.
...1277 (1976). See also Walker Manufacturing Company v. Dickerson, Inc., 560 F.2d 1184 (4th Cir. 1977); City of Kingsport v. S.C.M. Corp., 352 F.Supp. 288 (E.D.Tenn.1972). Without reliance by the plaintiff upon the defendant's representations that his repairs will cure the defect, there is no......
-
Jones & Laughlin Steel v. Johns-Manville Sales
...this transaction because the present dispute is over a construction contract, and not a transaction in "goods". City of Kingsport v. SCM Corp., 352 F.Supp. 288 (E.D.Tenn. 1972); DeMatteo v. White, 233 Pa.Super. 339, 336 A.2d 355 Defendant J-M no doubt prefers the U.C.C. provision because it......
-
Burton v. Artery Co., Inc., 82
...can exist only if the same statute limits actions brought by both buyer and seller. To the same effect see City of Kingsport v. SCM Corporation, 352 F.Supp. 288, 289 (E.D.Tenn.1972); Hachten v. Stewart, 42 Cal.App.2d Supp. 1, 116 Cal.Rptr. 631, 632 (App.Dept., Super.Ct., Los Angeles Co. 197......