# City of Malvern v. Jenkins

> Supreme Court of Arkansas · January 31, 2013 · 425 S.W.3d 711

URL: https://www.frixlaw.com/law-library/cases/5115292

## Case

- **Full name:** CITY OF MALVERN v. Leon JENKINS and Patsy Jenkins
- **Court:** Supreme Court of Arkansas
- **Decided:** January 31, 2013
- **Citations:** 425 S.W.3d 711; 2013 Ark. 24; 2013 Ark. LEXIS 31
- **Precedential status:** Published
- **Opinion:** Dissent by Hart
- **Judges:** Baker, Hart, Hoofman
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5115292

## Opinion text

JOSEPHINE LINKER HART, Justice, dissenting.
The majority reverses a ruling that the circuit court did not make and addresses issues not properly before this court. Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure-Civil allows an interlocutory appeal from an “order denying ... summary judgment based on the defense of sovereign immunity.” Here, the circuit court denied the City of Malvern’s motion for summary judgment, finding that “the question of fact as to whether [Malvern] fulfilled its obligations under the terms and conditions of the written easement is a matter of contract, not of tort, and therefore not barred by the immunity statute.” It is evident that the court did not deny Malvern’s motion for summary judgment based on a defense of sovereign immunity to tort. Instead, the court ruled that there were questions of fact sounding in contract to be tried. Consequently, there was no ruling on tort immunity, and the appeal should be dismissed. Arkansas Lottery Comm’n v. Alpha Mktg., 2012 Ark. 23, at 5-6 , 386 S.W.3d 400, 403-04 . By addressing the issues raised by Malvern, the majority exceeds the bounds of Rule 2(a)(10) and renders an opinion that is advisory.
BAKER, J., joins.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5115292. Public record. Not legal advice.