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Filat v. Rand

Court of Appeals of Arkansas, Division II

May 13, 2015

NASSER KHAIRI FILAT, APPELLANT
v.
JIM RAND; RAND PROPERTIES I, LLC; SUBWAY REAL ESTATE CORPORATION; DOCTORS ASSOCIATES, INC.; AND FRANK AND LISA GARDNER, APPELLEES

Editorial Note:

This opinion is uncorrected and subject to revision before publication in the printed official reporter.

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT. NO. CV-2011-805. HONORABLE CRAIG HANNAH, JUDGE.

The Henry Firm, P.A., by: Matthew Henry, for appellant.

Simpson, Simpson & Mercer, by: James A. Simpson, Jr., for appellee.

OPINION

Page 302

DAVID M. GLOVER, Judge

This case involves the installation of an air conditioner by a heat-and-air company hired by the sublessee, appellant Nasser Filat, in breach of the terms of his lease, on the seamless metal roof of property owned by appellees Jim Rand and Rand Properties I, LLC (" Rand" ). Rand leased the property to Subway Real Estate Corporation & Doctors Associates, Inc. (" Subway" ) pursuant to a master lease, and those parties then subleased the property to Filat in October 2002.

Rand notified Subway in July 2009 that installation of the unit represented a breach of the master lease. Subway withheld $37,000[1] from Filat when Filat terminated his relationship with Subway in November 2009. The amount withheld was roughly based on an estimate Rand received as the cost to replace the roof because repair was not considered possible.

In December 2011, Filat brought a replevin, interpleader, and declaratory-judgment action against Rand and Subway, claiming that the funds withheld by Subway belonged to him. Rand counterclaimed against Filat, alleging negligence in the damage to the roof, and cross-claimed against Subway, alleging breach of contract. The heat-and-air company was not named as a party by anyone. Frank Gardner and Lisa Gardner were joined as necessary parties by order entered May 23, 2013, because they had subsequently subleased the premises where the air conditioner was located. Art Rand, Jim Rand's brother, was initially involved in the leased premises but was never named as a party because Jim acquired Art's ownership interest in the premises.

Filat asserted that any action against him by Rand was barred because the statute of limitations had begun to run when

Page 303

the unit was installed in March 2003 and had expired long before suit was filed. Rand, on the other hand, contended that the statute of limitations on the tort action against Filat did not begin to accrue until Rand knew or by the exercise of reasonable diligence should have discovered the cause of injury, and he did not know, nor could he have reasonably known, about the roof damage until 2009. Filat moved for summary judgment, which was denied, and the case went to a bench trial, where Rand was awarded $36,000 of the amount held in escrow, and Filat was awarded the remaining $1,000.

Filat appeals, contending that the trial court erred in holding that the case was not barred by the statute of limitations because it sounded in tort, rather than in contract. He further contends that, even if Rand's claim sounded in tort, the trial court erred in applying the " discovery rule" to toll the running of the statute. We hold that this action sounded in contract and that it was barred by the applicable five-year statute ...


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