Gerace Design Group Inc v. Independence County, Arkansas

Filing 27

ORDER denying 7 Motion for Partial Summary Judgment. Signed by Judge James M. Moody on 6/18/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
GERACE DESIGN GROUP, INC., d/b/a
GERACE CONSTRUCTION
VS.

PLAINTIFF

NO. 1:11CV00106 JMM

INDEPENDENCE COUNTY,
ARKANSAS

DEFENDANT
THIRD-PARTY PLAINTIFF

VS.
ACA FINANCIAL GUARANTY
CORPORATION

THIRD-PARTY DEFENDANT
ORDER

Pending is Defendant, Independence County, Arkansas’ motion for partial summary
judgment. (Docket # 7). Plaintiff has filed a response and Defendant has filed a reply.
Plaintiff, Gerace Design Group, Inc., d/b/a Gerace Construction (“Gerace”) filed suit on
November 23, 2011 alleging causes of action for breach of contract, breach of duty under the
contract to deal fairly and in good faith and unjust enrichment. Gerace alleges that it installed a
three-foot concrete cap on a dam for Independence County, Arkansas (“the county”) pursuant to
a written contract between it and the county. Gerace alleges that it has not been paid in full for
the work done under the contract.
The county seeks partial summary judgment finding that the language of the contract
precludes recovery from the county and any judgments resulting from this cause of action cannot
be collected against the county. The county seeks a finding by the Court that Plaintiff can look
only to a construction fund or other funds available from the proceeds of the revenue bonds

issued to finance construction, for the payment of any judgment entered in this case.
The Court finds the motion premature. The parties have not had the opportunity to
conduct discovery and the liability of the parties, has not been decided. In fact, since filing the
motion for partial summary judgment, the county has filed a third party complaint against ACA
Financial Guaranty Corporation (“ACA”), alleging that the county is entitled to judgment over
and against ACA in the event it is adjudged liable to Gerace in the underlying action. The
parties may present these issues to the Court following the completion of discovery wherein the
responsibilities and liabilities of the parties has been explored.
Wherefore, the Defendant’s motion for partial summary judgment is DENIED.
IT IS SO ORDERED this 18th day of June, 2012.

_______________________________
James M. Moody
United States District Judge