text:
    NATIONAL UNION FIRE INSURANCE v. TRI-STATE IRON AND METAL
    94-1435
    914 S.W.2d 301
    Supreme Court of Arkansas
    Opinion delivered February 5, 1996

      Huckabay, Munson, Rowlett & Tilley, P.A., by: James E. Tilley and Julia L. Busjield, for appellant.

      Smith, Stroud, McClerkin, Dunn & Nutter, by: Nelson V. Shaw, for appellee.
   Tom Glaze, Justice.

This case arose initially from a workers’ compensation injury claim by Victor Cox against his employer Express Temporary Services (Express). Express had assigned Cox as temporary contract help to Tri-State Iron and Metal Company (Tri-State) to perform duties as a tire stripper. However, Cox was operating a forklift for Tri-State when he was injured, so Express and its workers’ compensation insurance carrier, National Union Fire Insurance Company (National), brought Tri-State into the action, alleging Tri-State was the actual employer and liable for Cox’s claim. Eventually, an administrative law judge and the Workers’ Compensation Commission held Express was Cox’s general employer and therefore liable for his workers’ compensation claim.

During the pendency of Cox’s workers’ compensation claim, he filed a negligence suit against Tri-State in the Miller County Circuit Court. Because National had paid Cox over $20,000 in workers’ compensation benefits, it intervened in this action to preserve its statutory lien rights under Ark. Code Ann. § 11-9-410 (Supp. 1993). Tri-State moved to dismiss this negligence action, contending Cox’s rights and remedies were exclusively covered under the Workers’ Compensation Act as provided under that act’s exclusivity statute, Ark. Code Ann. § 11-9-105 (1987). The circuit court agreed with Tri-State and dismissed the negligence suit. Before the trial court’s dismissal order was filed, National amended its complaint-in-intervention, asserting Tri-State had breached its contract with Express because TriState had worked Cox as a forklift operator rather than a tire stripper. Cox did not join National’s amended complaint which the trial court dismissed as untimely, nor does he participate in National’s appeal of the trial court’s rulings.

National’s primary point for reversal of the Miller County Circuit Court’s decisions is that the court erred in holding § 11-9-105, the exclusivity provision of the Workers’ Compensation Act, barred suit against Tri-State. National argues that, under Ark. Code Ann. § 11-9-410 (Supp. 1993), the act does not affect the right of an employee to bring an action against a third party who is not an employer. In sum, National submits that, because the commission found Express to be Cox’s employer for purposes of paying his workers’ compensation benefits, Tri-State was not an employer within the meaning of the act’s exclusivity provision, and Tri-State was collaterally estopped from arguing it was in the circuit court negligence action.

The flaw in National’s argument is the commission did not find Tri-State was not an employer. Instead, the commission found that Tri-State was a “special employer,” but under the facts of this case, Tri-State was not liable for workers’ compensation coverage. The commission analyzed Express’s and TriState’s status under the dual-employment doctrine, and in doing so relied on Daniels v. Riley’s Health and Fitness Centers, 310 Ark. 756, 840 S.W.2d 177 (1992), where this court stated the following:

When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if
(a) The employee has made a contract for hire, express or implied, with the special employer;
(b) The work being done is essentially that of the special employer, and
(c) The special employer has the right to control the details of the work.

When all three of the above conditions are satisfied in relation to both the general and special employers, both employers are liable for workers’ compensation. See, IB Larson, The Law of Workmen’s Compensation, § 48.00 (1995).

Obviously, in analyzing both Express’s and Tri-State’s status under the Workers’ Compensation dual-employment doctrine, both very well could have been liable under the act for Cox’s on-the-job injuries; however, that did not happen here. There simply was no separate contract for hire between Cox and his special employer, Tri-State, so Tri-State did not have to share in paying Cox’s workers’ compensation benefits. Additionally, nothing in the act reflects that its exclusivity provision is not applicable to Tri-State as a “special employer,” since Tri-State might well be liable for workers’ compensation claims if the three conditions in Daniels are met. See also Cash v. Carter, 312 Ark. 41, 847 S.W.2d 18 (1993) (implied contract found to meet first “contract for hire” criteria of the dual employment doctrine).

The present case is similar to Beaver v. Jacuzzi Brothers, Inc., 454 F.2d 284 (8th Cir. 1972), and that case is helpful in analyzing the factual situation. There, Joyce Beaver worked for Kelly Girl, Inc., a company whose business was supplying temporary workers to other businesses. While on temporary assignment to Jacuzzi Brothers, Beaver slipped and fell, sustaining injuries. She claimed and received workers’ compensation benefits from Kelly Girl, but also filed a diversity, negligence action in federal court against Jacuzzi Brothers. The federal district court held Beaver’s sole remedy was under the Arkansas Workers’ Compensation Act. Although the Eighth Circuit Court of Appeals never specifically mentioned the dual-employment doctrine by name, it stated the following:

As a matter of common experience and of present business practices in our economy, it is clear that an employee may be employed by more than one employer even while doing the same work. Biggart v. Texas Eastern Transportation Corp., 235 So.2d 443 (Miss. 1970).
As Jacuzzi Brothers was an employer within the meaning of the statute, plaintiff’s sole remedy is that provided by the Workers’ Compensation Law.

Although in Beaver, the court never discussed Jacuzzi Brothers in terms of “special employer,” other jurisdictions have. For example, the court in Thompson v. Grumann Aerospace Corp., 578 N.Y.S.2d 106 (Ct. App. 1991), considered a situation where the plaintiff’s general employer assigned plaintiff to work for Grumann. One year later, the plaintiff was injured while working for Grumann. The Beaver court ultimately held that the plaintiff’s receipt of workers’ compensation benefits from his general employer was his exclusive remedy and barred her bringing a negligence action against special employer Grumann. See also Sorenson v. Colibri Corp., 650 A.2d 125 (R.I. 1994); Supp v. Erie Ins. Exchange, 479 A.2d 1037 (Pa. Super. 1984).

In concluding the trial court correctly dismissed National’s negligence action against Tri-State as being barred by the Arkansas Workers’ Compensation Act, National’s second argument must fail as well. In that argument, National urges the trial court erred in dismissing its amended complaint below which alleged Tri-State had breached its contract with Express since Tri-State used Cox as a forklift operator, not a tire stripper. Because we hold Tri-State was a special employer and falls within the exclusivity provision of the Worker’s Compensation Act, neither a negligence nor contract action can be filed against Tri-State by Cox or National as a subrogee because the exclusivity provision makes no exceptions for contract actions. Gullett v. Brown, 307 Ark. 385, 820 S.W.2d 457 (1991). Moreover, National may not bring an action under § 11-9-410(b) because that section only provides for a carrier liable for compensation to maintain an action in tort, not contract, and then, only against a third party, not an employer. Finally, National may not bring a contract action as subrogee of its insured, Express, because Express never brought a contract action.

Affirmed.

Jesson, C.J., not participating.


source: Caselaw Access Project

author: Donald L. Corbin, Justice. Robert H. Dudley, Justice,

license: Public Domain

text:
    Roger HAASE v. C. Wayne STARNES, M.D.
    95-892
    915 S.W.2d 675
    Supreme Court of Arkansas
    Opinion delivered February 5, 1996

      Hartsfield, Almand & Grisham, by: Larry J. Hartsfield, for appellant/cross-appellee.

      The Trammell Law Firm, by: Thomas F. Meeks and Robert Trammell, for appellee/cross-appellant.
   Donald L. Corbin, Justice.

Appellant, Roger Haase, appeals an order of the Pulaski County Circuit Court granting summary judgment to appellee, C. Wayne Starnes, M.D., and dismissing without prejudice appellant’s complaint for negligence and. breach of express warranty. Thereafter, appellant filed a motion for reconsideration, which included a request for rulings on the constitutional challenges he made to the Arkansas Medical Malpractice Act, Ark. Code Ann. §§ 16-114-201 to -209 (1987 and Supp. 1995). Appellee filed a motion to correct the judgment to reflect that the dismissal of the complaint was with prejudice. The trial court entered an order denying both motions. From that order, appellant also appeals and appellee cross-appeals. This case was certified to this court as one involving a question about the law of torts. Ark. Sup. Ct. R. 1-2(a)(16). We find error in the part of the order granting summary judgment of the claim for expressed warranty and therefore affirm in part and reverse and remand in part. On cross-appeal, we modify the judgment to reflect that the dismissal of the complaint as to the claim for negligence was with prejudice.

Appellant filed a complaint against appellee alleging negligence and breach of express warranty arising from appellee’s treatment of appellant for a series of hair transplants. Appellant alleged that appellee placed advertisements stating “We guarantee you a full, growing head of hair for the rest of your life,” and “Transplants guaranteed to grow for the rest of your life.” Appellant asserted that he relied on such advertisements when he agreed to undergo a year-long series of hair transplants, grafts, and scalp reductions performed by appellee. Appellant further alleged that he suffered a severe infection during the course of appellee’s treatment that resulted in a scar which is incapable of sustaining hair transplants.

Eventually, appellant stipulated that he would not offer expert testimony to show appellee failed to maintain the applicable standard of care. Thereafter, appellee moved for summary judgment, arguing that he was entitled to judgment as a matter of law due to the absence of expert testimony. Appellant responded to the motion, arguing that expert testimony was not necessary on the facts of this case and that proof of the applicable standard of care and breach thereof is not necessary to a claim predicated on breach of express warranty.

The trial court granted appellee’s motion for summary judgment, ruling that, regardless of whether the “medical injury” resulted from negligence or breach of warranty, as long as it resulted from professional services rendered by a medical-care provider, the proof was governed by the Arkansas Medical Malpractice Act, and specifically section 16-114-206. Appellant asserts six arguments for reversal of that order.

I. BREACH OF EXPRESS WARRANTY BURDEN OF PROOF

The facts are not in dispute. As the trial court stated in its order, the question before it was one of law. On appellate review of such a case, we simply determine whether appellee was entitled to judgment as a matter of law. National Park Medical Ctr., Inc. v. Arkansas Dep’t of Human Servs., 322 Ark. 595, 911 S.W.2d 250 (1995).

As his first point for reversal, appellant argues that expert testimony is not necessary to establish a cause of action based on breach of express warranty where the breach can be proven from evidence that is within a jury’s common knowledge. Appellant acknowledges that he seeks recovery for a “medical injury” as defined by section 16-114-201(3), and that his burden of proof is therefore governed by section 16-114-206. He argues, however, that when section 16-114-206 is applied to his breach-of-warranty claim, he is placed in the ridiculous posture of being required to offer proof that appellee was negligent in order to prove that appellee breached an express warranty. In summary, appellant’s first point has two components: one, he should not be required to prove negligence in this case in order to sustain a cause of action for breach of express warranty; two, expert testimony is not required in his case for breach of express warranty because the contract issue is within the common knowledge of lay persons.

Appellee responds that expert testimony is required regardless of whether a medical-malpractice plaintiff’s claim is for negligence or breach of warranty, essentially because the general public is not knowledgeable regarding techniques and procedures for hair-transplant surgery. Appellee responds further that regardless of appellant’s argument on this point, he is entitled to summary judgment because appellant did not plead nor offer proof of an express warranty made by him to appellant.

The trial court ruled that, if the injury complained of is a “medical injury,” expert testimony is necessary to establish the standard of care and breach thereof and that proof is governed by section 16-114-206 regardless of whether the claim is for negligence or breach of warranty. Because appellant stipulated he would not offer expert testimony on the standard of care and breach thereof, the trial court ruled appellee was entitled to judgment as a matter of law.

The trial court’s ruling was in error for two reasons. First, expert testimony is not necessary per se in every medical malpractice case. Our law is well-settled that expert testimony is required only when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, when the applicable standard of care is not a matter of common knowledge, and when the jury must have the assistance of experts to decide the issue of negligence. Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995) (citing Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987)). To emphasize that expert testimony is not required in every medical-malpractice case per se, we repeat a statement from Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970), that was quoted in Davis v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972):

The necessity for the introduction of expert medical testimony in malpractice cases was exhaustively considered in Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944). There we held that expert testimony is not required when the asserted negligence lies within the comprehension of a jury of laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it. On the other hand, when the applicable standard of care is not a matter of common knowledge the jury must have the assistance of expert witnesses in coming to a conclusion upon the issue of negligence.

Id. at 926, 481 S.W.2d 712-13. This court has consistently applied this rule of law from the landmark case of Lanier to cases arising under the Arkansas Medical Malpractice Act. See, e.g., Robson, 322 Ark. 605, 911 S.W.2d 246.

The second reason the trial court’s order was erroneous is because section 16-114-206 does not apply to actions for medical injury based on breach of express warranty when the issue is whether the medical-care provider guaranteed the results. To so apply section 16-114-206 would defy common sense and produce absurd results, and this court does not interpret statutes in that manner. Rosario v. State, 319 Ark. 764, 894 S.W.2d 888 (1995). There is no doubt that, as appellant concedes, his claim for breach of warranty is included in section 16-114-201’s definitions of “action for medical injury” and “medical injury”:

(1) “Action for medical injury” means any action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury;
(3) “Medical injury” or “injury” means any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services. [Emphasis added.]

And it is true that section 16-114-206(a) purports to establish the burden of proof in any action for medical injury:

(a) In any action for medical injury, the plaintiff shall have the burden of proving:
(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality;
(2) That the medical care provider failed to act in accordance with that standard; and
(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

However, the three requirements of section 16-114-206(a), namely the “degree of skill and learning ordinarily possessed and used by members of the profession,” failure to “act in accordance with that standard,” and “proximate result,” typify three requirements of a cause of action sounding in tort: duty, breach, and cause. These three requirements have no relevance in a contract-based cause of action arising out of a guarantee of specific, favorable results. The standard of care used by medical-care providers in similar communities and situations simply has no relevance in a case where the sole issue is whether a medical-care provider breached this particular express warranty. Plainly, the trial court’s construction of sections 16-114-201 and -206 achieves an absurd result that was not intended by the General Assembly. It would defy common sense to conclude that the General Assembly, by recognizing claims for breach of warranty and contract in its definition of “medical injury,” intended to establish a burden of proof consisting solely of tort-based elements in a warranty case based on a guarantee.

When stating the rule of law as to a physician’s duty to his patient, courts have said that in the absence of a special contract or express warranty, the physician does not warrant the success of his treatment but only that he or she will follow the applicable standard of care. See generally Jack W. Shaw, Jr., Annotation, Recovery Against Physicians on Basis of Breach of Contract to Achieve Particular Result or Cure, 43 A.L.R.3d 1221, § 5 (1972 & Supp. 1994). However, when courts have been presented with an allegation that a special agreement or express warranty was made and breached, such as we have here, the contract actions were allowed and analyzed on contract law rather than negligence law. See, id. (citing Compasano v. Claiborn, 2 Conn. Cir. 135, 196 A.2d 129 (1963)).

We therefore conclude there is merit in appellant’s argument that the trial court’s application of section 16-114-206 to his claim for breach of express warranty put him in the ridiculous posture of having to prove negligence in order to sustain his contract claim for breach of express warranty regarding the results and therefore was error. Accordingly, we reverse and remand that part of the trial court’s order granting summary judgment to appellee on the breach-of-warranty claim due to appellant’s failure to satisfy section 16-114-206.

We noted earlier that, as an alternative means of affirming the summary judgment in his favor, appellee contends that appellant failed to allege or prove appellee made an express warranty. In support of this contention, appellee cites Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995), a case in which we recently affirmed a summary judgment in favor of a physician who was sued for breach of contract. Brumley is distinguished from the present case on two bases: one, Brumley involved a breach-of-contract claim rather than a breach-of-express-warranty claim; and two, Brumley did not involve advertisements espousing guarantees as does the present case. While it is true that appellant stated in his deposition that appellee made no other representations to him than those in the advertisements that appellant observed in a men’s restroom and in the telephone directory’s yellow pages, appellee nevertheless made the representations in the advertisements and appellee does not dispute this. Attached to appellant’s response to the motion for summary judgment was appellee’s deposition wherein he stated he placed the alleged advertisements in the yellow pages and in men’s rooms and ladies’ rooms in restaurants in Little Rock, Conway, Hot Springs, Jacksonville, and Shreveport. Copies of the alleged advertisements were also attached to the response. Appellant stated in his deposition, which was also attached to his response, that he discussed the advertisements with appellee and that they discussed the particular procedures appellee performed on the man depicted in the advertisements as similar to the procedures appellee would perform on appellant. Moreover, appellant alleged in his complaint that he relied on the advertisements.

Due to the erroneous ruling on the application of section 16-114-206 to appellant’s breach-of-warranty claim, the trial court did not rule on the issue of whether the advertisements were express warranties made by appellee. While we are not aware of any Arkansas law directly on point, we are well aware that it has long been the law in this state that physicians may make an express contract with a patient whereby the physician makes a special agreement with the patient or promises to cure the patient. Guild v. Whitlow, 162 Ark. 108, 257 S.W. 383 (1924). The General Assembly was no doubt aware of this rule of law when it included breach of warranty and contract in the definitions of actions for medical injury. Likewise, we are aware that under the Uniform Commercial Code, which we acknowledge is not applicable to a contract for services by a physician but nevertheless provides guidance on contract principles by analogy, this court could not say as a matter of law that no express warranty had been made when a seller of goods placed advertisements of his goods relating to their quality. Little Rock School Dist. v. Celotex Corp., 264 Ark. 757, 574 S.W.2d 669 (1978). Consequently, because appellant did indeed plead and offer some proof of an express warranty made by appellee, and because appellant alleged by complaint that he relied on the advertisements in receiving treatment, we cannot affirm the summary judgment on the basis that appellant failed to plead or prove that a contract or express warranty existed.

In summary, the trial court erred in concluding as a matter of law that expert testimony is required per se in every action for medical injury. It erred further by applying section 16-114-206 to the claim for breach of express warranty and thereby terminating the breach-of-warrranty claim without considering and applying principles of contract and warranty law.

II. WAIVER OF DEFENSES

Appellant’s second point on appeal is his contention that a medical-care provider waives the protection afforded by the Arkansas Medical Malpractice Act when the medical-care provider makes an express warranty with respect to the success or results of a particular treatment. We do not address the merits of this point due to appellant’s failure to obtain a ruling on this issue from the trial court thereby waiving the issue on appeal. Brumley, 320 Ark. 310, 896 S.W.2d 860.

Appellant’s remaining arguments for reversal raise constitutional challenges to the Arkansas Medical Malpractice Act. It is well-settled that no constitutional issues are decided except those that are necessary to a decision in the specific case at hand. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983). The burden-of-proof provision, section 16-114-206, is the only provision of the Act that the trial court applied to appellant’s detriment in this case. Therefore, section 16-114-206 is the only part of the Act that appellant has standing to challenge. Furthermore, our decision that the trial court erred in applying section 16-114-206 to appellant’s breach-of-warranty claim, however, limits our review of appellant’s remaining arguments to the negligence claim.

Ill FEDERAL CONTRACT CLAUSE

Appellant’s third argument for reversal is that the Arkansas Medical Malpractice Act impairs his right to contract and therefore violates the United States Constitution, art. 1, § 10, cl. 1, the so-called “contract clause.” It is well-settled that the contract clause is not to be construed literally, rather it is construed to allow a state to exercise its police powers. See, e.g., Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978). However, the contract clause does “impose some limits upon the power of a State to abridge existing contractual relationships, even in the exercise of its otherwise legitimate police power.” Id. at 242 (emphasis added). The operative facts of this case occurred well after the passage of the Arkansas Medical Malpractice Act in 1979. Thus, even assuming arguendo, that appellant and appellee had a contract, it was not an existing contract when the General Assembly enacted the Arkansas Medical Malpractice Act and section 16-114-206. Accordingly, we cannot say section 16-114-206 violated the contract clause in this case.

IV. EQUAL PROTECTION.

Appellant’s fourth argument for reversal is that the Arkansas Medical Malpractice Act violates the equal-protection clauses of the United States and Arkansas Constitutions. U.S. Const, amend. 14; Ark. Const, art. II, § 18. Appellant contends the Act, in its entirety, denies equal protection of the laws to medical-malpractice plaintiffs because it, among many other things, grants medical-care providers immunity from civil “self-incrimination,” imposes a standard of proof far above that required for other professionals, adopts the shortest statute of limitations for medical-care providers than for any other professional malpractice claims, and establishes a scheme for the payment of damages that is not available to other professionals.

The only argument appellant articulates under this point that could relate to section 16-114-206 is that the Act adopts “a standard of proof well far and above that required of other professionals in our societyf.]” Appellant does not make any convincing argument for such a contention, and because section 16-114-206 does no more than state the common-law elements of a claim for negligence in the medical-malpractice context, it is not apparent to us without further research that the argument is well-founded. We do not address such arguments. Equity Fire and Cas. Co. v. Needham, 323 Ark. 22, 912 S.W.2d 926 (1996).

V. SPECIAL LEGISLATION

Appellant’s fifth argument for reversal is that the Arkansas Medical Malpractice Act violates the prohibition against special legislation as stated in the Arkansas Constitution, art. 5, § 25. Appellant does not rely on Amendment 14 to the Arkansas Constitution. The clause at issue here prohibits the General Assembly from enacting a special law where a general law can be made applicable. It is well-settled that the clause at issue here is not mandatory, rather it is directory or merely cautionary as applied to the General Assembly. See, e.g., Greer v. Merchants & Mechanics Bank, 114 Ark. 212, 169 S.W. 802 (1914). In other words, this clause is classified as one that leaves compliance to the discretion of the General Assembly. Id. Therefore, appellant’s fifth point is entirely without merit.

VI. SEPARATION OF POWERS

Appellant maintains that section 16-114-206(a) is in direct conflict with Ark. R. Evid. 702. He phrases the issue as one of the rule’s permissible expert testimony versus the state’s mandatory expert testimony and contends that the rule must be held to have superseded the statute.

Appellant’s argument is based on a false premise. There is no provision of section 16-114-206(a) that mandates the presentation of expert testimony. Rather, it is the facts of any given case that determine whether expert testimony is required in a medical-malpractice claim for negligence. Accordingly, appellant’s sixth point for reversal is without merit.

CROSS-APPEAL

As cross-appellant, appellee argues the trial court erred in denying his motion to correct the judgment so that appellant’s complaint would be dismissed with prejudice. The trial court’s order denying appellee’s motion specifically states that the complaint does indeed state a cause of action, but must fail because of a failure of proof. The order also states that it is within the trial court’s discretion to enter summary judgment either with or without prejudice. In that respect, the order is erroneous.

The questions of whether a complaint states a cause of action and whether a plaintiff has failed to offer sufficient proof of a cause of action to survive a defendant’s motion for summary judgment are questions of law with respect to which trial courts have no discretion. This court has discussed the effect of a summary-judgment dismissal on a plaintiff’s ability to re-file a complaint:

[S]ummary judgment based upon a failure to state a claim upon which relief can be granted is different from a summary judgment based upon a lack of disputed material facts, which results in a party’s entitlement to the judgment as a matter of law. The first is the failure to state a claim, the second is the failure to have a claim. When summary judgment is granted upon failure to have a claim, and the ruling is affirmed on that basis, the matter is ended with prejudice. However, when summary judgment is granted in the trial court because of failure to have a claim, but is affirmed on the basis of failure to state a claim, we modify to make the dismissal without prejudice in order to afford the plaintiff-appellant a chance to plead further. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984); ARCP Rule 12(j).

West v. Searle & Co., 305 Ark. 33, 36, 806 S.W.2d 608, 610 (1991) (citations omitted). The trial court’s order specifically states that it granted appellee’s motion for summary judgment because appellant had not proven his case. In other words, appellant did not have a case. Consistent with West, the summary judgment should have been granted with prejudice, and we modify the judgment to so reflect.

On direct appeal, the part of the order granting summary judgment as to the claim for negligence is affirmed; the part of the order granting summary judgment as to the claim for breach of warranty is reversed and remanded. On cross-appeal, the order is affirmed as modified to reflect that the complaint be dismissed with prejudice as to the negligence claim.

Dudley and Glaze, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. Roger Haase filed a medical malpractice action, which sounds in both tort and contract, against Dr. C. Wayne Starnes. Starnes holds himself out to be a specialist in hair transplant and scalp reduction surgery. In his complaint, Haase alleged that Starnes advertised, “We guarantee you a full, growing head of hair for the rest of your life” and “Transplants guaranteed to grow for the rest of your life.” Haase alleged that, as a result of his reliance on the advertisements, he contracted with Starnes to perform a series of hair transplants, grafts, and scalp reductions, and that during the course of the treatments, his scalp became infected, which caused a “permanent scar on his head which is incapable of sustaining hair transplants.” He concluded by alleging that Starnes breached the “representations and warranties” contained in his advertisements.

The complaint sounds in both tort and contract. Both the tort and the contract allegations are for a “medical injury.” “Action for medical injury” means any action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury. Ark. Code Ann. § 16-114-201(1) (1987). “Medical injury” means any adverse consequence sustained in the course of professional services being rendered by a medical doctor, “whether resulting from negligence, error, or omission in the performance of such services; ... or in breach of warranty or in violation of contract.” Id. § 16-114-201(3).

The Medical Malpractice Act provides that it “applies to all causes of action for medical injury accruing after April 2, 1979, and as to such causes of action, it shall supersede any inconsistent provision of law.” Id. § 16-114-202. Section 16-114-206(a) of the Arkansas Code Annotated provides the party having the burden of proof in “any” action for medical injury “shall” prove that the doctor failed to act in accordance with the degree of skill and learning used by other doctors in the same type of practice in the same or similar locality. Id. § 16-114-206(a)(1).

The trial court ruled that this was a suit for a medical injury and that it would be necessary for Haase to comply with the Medical Malpractice Act. Ark. Code Ann. §§ 16-114-201 to -209. Haase stipulated that at trial he would not offer expert testimony to prove that Starnes failed to maintain the proper standard of care of a doctor in the same or similar community. The trial court dismissed Haase’s complaint without prejudice. The majority opinion then holds that the trial court erred in dismissing the contract claim. I dissent from that part of the holding.

1.

We have often said that when the language of an act is clear and contains no ambiguity, we will interpret it to mean only what it provides. E.g., Arkansas Bank & Trust Co. v. Douglas, 318 Ark. 457, 885 S.W.2d 863 (1994). We have often written that the cardinal rule of statutory construction to which all other interpretive guides must yield is to give effect to the legislative intent. Graham v. Forrest City Hous. Auth., 304 Ark. 632, 803 S.W.2d 923 (1991). In determining legislative intent, we have said that we look to the language of the act, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate matters. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

The language contained in the act at issue is clear and certain. It provides that the Medical Malpractice Act “shall” apply to “any” and “all” actions for medical injury “whether based in tort, contract, or otherwise” and it shall apply to actions for “breach of warranty or .. . violation of contract.” The majority opinion construes the act to mean that a contract action is not subject to the burden-of-proof provision.

The purpose of the act and the object to be accomplished by the Medical Malpractice Act and the legislative history are set out in the act’s emergency clause, as follows:

It is hereby found, determined and declared by the General Assembly that the threats of legal actions for medical injury have resulted in increased rates for malpractice insurance which in turn causes and contributes to an increase in health care costs placing a heavy burden on those who can least afford such increases and that the threat of such actions contributes to expensive medical procedures to be performed by physicians and others which otherwise would not be considered necessary and that this Act should be given effect immediately to help control the spiraling cost of health care.

Act 709 of 1979, § 11 (emergency clause). We have said the statute serves a valid purpose because it was enacted to prevent doctors from practicing “defensive medicine” and to help control the spiraling cost of medical care. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983).

Statutes treating medical malpractice actions in both tort and contract together are not new. Earlier medical malpractice limitations acts discussed contract actions and tort actions in the same statute. Section 37-205 of the Arkansas Statutes Annotated provided that “all actions of contract or tort for malpractice . . . against physicians [and] surgeons . . . shall be commenced within two years.”

We have often written that, in enacting statutes, the General Assembly is presumed to have known of court decisions on the same subject and is presumed to have acted with reference to those decisions.J. L. McEntire & Sons, Inc. v. Hart Cotton Co., Inc., 256 Ark. 937, 511 S.W.2d 179 (1974). In enacting the Medical Malpractice Act and making it applicable to actions in both tort and contract, the General Assembly and the drafters of the act are presumed to have acted in reliance on our case of Helton v. Sisters of Mercy of St. Joseph’s Hospital, 234 Ark. 76, 351 S.W.2d 129 (1961). There, the plaintiff filed a tort malpractice action against a hospital and then separately filed a breach of contract malpractice action against the same hospital. The tort and contract actions were consolidated. In the tort action, we held that the hospital was a public charity and therefore not liable. In the contract action, we wrote:

We next come to the proposition of whether the hospital can be liable for the injuries sustained by the little girl on the theory that there was a breach of contract. There was no express contract setting out the duties and the obligations of the parties. Mr. Helton delivered his little girl to the hospital for the examination. At that time he signed an authorization for an examination to be made. In this written document neither party agrees to do anything, and it cannot be called a contract in any sense of the word. In order to invoke the doctrine that it was the duty of the hospital to use due care, and liability on its part for the failure to use such care, resort must be had to operation of law. In ordinary circumstances, no charitable institution being involved, the law would imply that it was the duty of the hospital to use due care, and there could be liability for the failure to use such care. But the law does not imply something that is against public policy. How can it be said that the law implies an obligation to use due care, and liability for the failure to use such care, where the public policy of the state imposes no duty and liability in that respect? The Cabbiness case clearly points out that immunity of a charitable corporation for liability for negligence is so thoroughly established in this State that the doctrine has become a rule of property. In these circumstances we cannot say that the law implies that it is the duty of the hospital to use due care, and liability for not doing so. It would appear that if there is any implication supplied by law it would be that there is no liability for the failure to use due care. “The law never implies an agreement against its own restrictions and prohibitions.” Los Angeles Warehouse Co. v. Los Angeles County, 139 Cal. App. 368, 33 P.2d 1058.

Helton v. Sisters of Mercy of St. Joseph’s Hosp., 234 Ark. at 81-82, 351 S.W.2d at 131-32 (emphasis added).

The General Assembly presumably read the foregoing to mean that a malpractice action is subject to the public policy of this state regardless of whether it is labeled an action in tort or a contract. The members of the General Assembly likely understood that a Medical Malpractice Act that was designed to limit the increase in medical care costs could, as a matter of public policy, be applied to both tort and contract causes of action. The General Assembly has the authority to limit malpractice actions for a legitimate state purpose. Simpson v. Fuller, 281 Ark. 471, 665 S.W.2d 269 (1984). As an additional factor, the General Assembly presumably considered all of the issues involved, and in addition to limiting costs of medical care, sought to avert personal financial disaster for physicians since a suit for breach of contract is usually not covered by malpractice insurance. Jack W. Shaw, Jr., Annotation, Recovery Against Physician On Basis of Breach of Contract To Achieve Particular Result or Cure, 43 A.L.R.3d 1221, 1227 (1972 & Supp. 1994).

In summary, the words “any action against a medical care provider, whether based in tort, contract or otherwise,” have a clear meaning. The legislative intent was for compliance with the act whether the malpractice action was filed in contract or tort. It should be presumed that in drafting the act, the General Assembly was aware that our prior case law treats medical malpractice actions with a single public policy, regardless of whether the action is labeled tort or contract. Our case law provides that, while contract warranties may be implied by law, they should never be implied when it is against public policy to do so.

2.

From the foregoing, it seems undisputed that the burden-of-proof section of the Medical Malpractice Act, section 16-114-206, must be complied with in malpractice actions sounding in tort. In addition, when a person goes to a physician for medical services and the physician accepts that person as a patient, a contract is implied in law. This implied contract is governed by the Medical Malpractice Act. It would seem to be beyond any real dispute that, to apply the public policy and standard of care expressed in the Medical Malpractice Act, the same burden-of-proof section, 16-114-206, must be complied with in a malpractice action grounded on an a breach of a warranty implied by law. This is because the law should never imply a warranty that is contrary to public policy. The issue in this case, however, is whether the burden-of-proof section must be complied with in malpractice actions based on an express contact.

The majority opinion holds that a physician may bind himself to a specific result by express contract and when the physician breaches that contract, it is not necessary for the injured party to comply with the burden-of-proof section of the Medical Malpractice Act. There is no real dispute that ordinarily a physician may by express contract bind himself to perform a specific result with an operation. See Annotation, Physician’s or Surgeon’s Warranty of Success of Treatment or Operation, 27 A.L.R. 1250, 1255 (1923).

The first question is whether such a contract is contrary to the public policy expressed in the Medical Malpractice Act. Without discussing the matter in any of the myriad of possible details, it seems that the better policy is to hold that a physician should be able to enter into an express contract for specified results. It appears that all jurisdictions hold that, without an express contract, a physician does not contract to achieve a particular result. See Annotation, 43 A.L.R.3d at 1230. In addition, a number of jurisdictions have held that such an express contract will not be supported by the consideration paid for the physidan’s normal undertaking to use ordinary skill, but must be supported by a separate consideration. 43 A.L.R.3d at 1233. Haase did not plead any special consideration in this case, and the majority opinion tacitly rejects special consideration as an element of a contract for specified results.

The majority opinion holds, without meaningful discussion, that Haase’s reliance on an advertisement constitutes an express contract for a particular result. As authority, it cites a warranty-of-goods case that involved the Uniform Commercial Code, Little Rock School District v. Celotex Corp., 264 Ark. 757, 574 S.W.2d 669 (1978). However, other jurisdictions treat contracts for personal services of a physician as being different from ordinary goods. In light of the Medical Malpractice Act, it would seem reasonable to hold, as many other jurisdictions have done, that in order for there to be a valid express contract it must be supported by a separate consideration. See, e.g., Sard v. Hardy, 367 A.2d 525 (Md. App. 1976). Some jurisdictions require such a contract to be in writing. See, e.g., Zapata v. Rosenfeld, 811 S.W.2d 182 (Tex. App. 1991). The underlying reason for a written contract is obvious. A physician should, as a part of the treatment, reassure the patient that he or she will be all right and will get well, and because such statements are therapeutic they should not be discouraged by law. If such statements might form the basis of an express contract, they will not be made and their value will be lost.

Even when one accepts the majority opinion’s holding that the reliance on an advertisement, without more, can constitute an express contract, the trial court was correct in dismissing this case. The express contract, as upheld in the majority opinion, was for a “full, growing head of hair for the rest of your life” and for transplants “to grow for the rest of your life.” Starnes did not advertise, and therefore did not expressly contract, that the patient would not become infected. The alleged warranty did not mention infection. The allegation sounds in tort and comes within the purview of the Medical Malpractice Act. Haase next alleged that, as a result of the infection, he had a scar and that the scar is incapable of sustaining hair transplants. The advertisement assured that transplants would grow a full and growing head of hair for the rest of the patient’s life. Haase does not allege that the transplants have not grown, nor does he allege that he does not have a full head of hair. He alleges that he has a scar and that the scar will not sustain transplants. Thus, the trial court correctly dismissed the cause of action without prejudice, and left Haase free to plead further if, in fact, he has a valid cause of action based upon an express contract.

As an alternate ground for reversal, the majority opinion holds that, even if the burden-of-proof section of the Medical Malpractice Act should be applicable to this case, the trial court erred in ruling that expert testimony is necessary to prove Haase’s case. The holding is simply incorrect. Surgical scalp reduction, hair transplantation, and infections as a result of such procedures, are not matters that lie within the common knowledge of jurors. Thus, expert testimony is necessary. Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995).


author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    Brenda HERTLEIN, Administratrix of the Estate of Edward Hertlein v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY and Philip Tippin, M.D.
    95-407
    914 S.W.2d 303
    Supreme Court of Arkansas
    Opinion delivered February 5, 1996
    [Petition for Rehearing denied March 11, 1996.]

      Dunham & Ramey, P.A., by: James Dunham, for appellant.

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: J. Michael Cogbill, for appellees.

      Glaze, Brown, and Roaf, JJ., would grant.

   Donald L. Corbin, Justice.

Appellant, Brenda Hertlein, as administratrix of the estate of Edward Hertlein, deceased, appeals the order of the Logan County Circuit Court granting summary judgment for appellee, Philip Tippin, M.D., on the ground that the statute of limitations expired prior to the commencement of this action for damages caused by medical injury to appellant’s decedent. In its order, the circuit court also granted summary judgment for St. Paul Fire and Marine Insurance Company, however, appellant raises no argument as to that part of the circuit court’s order. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3) and (16). Appellant’s sole point for reversal is that the trial court applied the wrong statute of limitations. We affirm the trial court’s judgment.

Where the operative facts of the case are undisputed, as here, we simply determine on appeal whether the appellee was entitled to summary judgment as a matter of law. National Park Medical Ctr., Inc. v. Arkansas Dep’t Human Servs., 322 Ark. 595, 911 S.W.2d 250 (1995).

This action was commenced by complaint filed in May 1994. The gravamen of the complaint against appellee is that he acted negligently in his medical treatment of the decedent, which was rendered on February 2, 1992, and that his negligence resulted in the decedent’s death on February 3, 1992. Appellant and her child are alleged to be the decedent’s surviving spouse and child. The complaint prayed for damages for the pecuniary injury and extreme mental anguish of appellant and her child, for appellant’s loss of consortium, for the decedent’s medical bills as a result of the alleged negligence, and for the decedent’s funeral expenses.

The issue, as framed by appellant, is whether the limitations period for a cause of action for wrongful death caused by a medical injury is three years from the decedent’s date of death, as provided by the Wrongful Death Act, Ark. Code Ann. § 16-62-102(c) (1987), or two years from the date of the wrongful act complained of, as provided by the Medical Malpractice Act, Ark. Code Ann. § 16-114-203(a) and (b) (Supp. 1995). It is undisputed that this action was commenced after the medical-malpractice two-year statute of limitations expired on February 2, 1994, but prior to the expiration of the wrongful-death three-year statute of limitations on February 3, 1995. Relying upon Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), the trial court ruled that the Medical Malpractice Act controlled and the action was not timely filed. The trial court’s order was entered on December 27, 1994, and this appeal arises therefrom.

Appellant relies in error upon Matthews v. Travelers Indem. Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968), and its progeny, for the proposition that the Wrongful Death Act governs the statute-of-limitations issue. In Ruffins, we affirmed the trial court’s dismissal of that wrongful-death case due to Ruffins’s failure to give the “notice of intent to sue” that was then required by the Medical Malpractice Act, and we held:

In sum, we have expressly reserved ruling on whether wrongful death resulting from medical malpractice is governed by the Medical Malpractice Act, and this is the first time we are squarely faced with the issue. The Medical Malpractice Act provides that it applies to “all causes of action for medical injury.” (Emphasis added.) The language is clear, and we are constrained to follow it. Accordingly, we hold that, under the then existing law, notice had to be given in compliance with the Medical Malpractice Act.

Id. at 180, 853 S.W.2d at 880.

The present case is undisputedly one for wrongful death resulting from medical malpractice. Consequently, the Medical Malpractice Act applies. Id. The Medical Malpractice Act expressly “applies to all causes of action for medical injury accruing after April 2, 1979, and, as to such causes of action, shall supersede any inconsistent provision of law.” Ark. Code Ann. § 16-114-202 (1987) (emphasis added). In the present case, the limitations period provided under the Medical Malpractice Act conflicts with the limitations period provided under the Wrongful Death Act. Pursuant to the Medical Malpractice Act, the Wrongful Death Act’s statute of limitations, as an inconsistent provision of law, is superseded by the Medical Malpractice Act’s statute of limitations. Section 16-114-202. Thus, the trial court did not err, as a matter of law, in granting the motion for summary judgment.

Affirmed.

Glaze, Brown, and Roaf, JJ., dissent.

Robert L. Brown, Justice,

dissenting. The majority opinion, in essence, does away with the cause of action for wrongful death in connection with medical injuries when the Medical Malpractice Act and the Wrongful Death Act conflict. In doing so, it construes a general repealer clause in the Medical Malpractice Act as repealing the Wrongful Death Act for such injuries. General repealer clauses are not favored unless there is plain conflict between the two statutes. See Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980); 1A Norman J. Singer, Sutherland Statutory Construction § 23.08, p. 334-335 (5th ed. 1993). The majority decision errs in deviating from this principle and in construing a repeal of the wrongful death cause of action under these circumstances without more explicit direction from the General Assembly.

Contrary to the majority’s conclusion, the case of Ruffins v. ER Arkansas P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), did not hold that the Wrongful Death Act, codified at Ark. Code Ann. § 16-62-102 (Supp. 1995), had been superseded in cases dealing with medical injuries. In Ruffins, we held that the notice provision of the Medical Malpractice Act had to be followed even in wrongful death actions. We noted that because of Weidrich v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), which eliminated the notice requirement as a condition for commencing medical malpractice actions, the Ruffins holding “has very little significance as a precedent.” Ruffins, 313 Ark. at 177, 853 S.W.2d at 878. We expressly did not decide which statute of limitations applied between the Medical Malpractice Act (two years) and wrongful death actions (three years). Indeed, we stated:

The issue here, regardless of which statute of limitations controls, is whether the then required notice provision of the Medical Malpractice Act ... is applicable. (Emphasis supplied.)

Ruffins, 313 Ark. at 178, 853 S.W.2d at 879. We clearly left the issue of limitations open. The Ruffins case simply cannot support the far-reaching holding of the instant case.

By striking down wrongful death actions for medical injuries on limitations grounds, the majority decision, without saying so, overrules two cases of this court — Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968) and Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987), overruled in part by Bailey v. Rose Care Ctr., 307 Ark. 14, 817 S.W.2d 412 (1992) (injury was not a medical injury). The Matthews case was decided before the enactment of the Medical Malpractice Act in 1979, but a two-year limitations period for medical malpractice was on the books. The Brown case was decided after the enactment of the 1979 Medical Malpractice Act. Both cases held that the 3-year statute of limitations under the Wrongful Death Act applied to deaths caused by medical injury. In fact, in Matthews, this court espoused the principle that when two statutes of limitations applied, public policy supported the longer statute. Whereas, the Ruffin decision left the Matthews and Brown decisions intact, today’s opinion casts them into oblivion without so much as a word. There should at least be an explanation as to why these cases have been put to rest.

Because of today’s opinion, the survivor of a person who dies two years after suffering a medical injury has no cause of action for wrongful death. Wrongful death actions have existed in this state since 1883. Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994) (citing Act 53 of 1883). Had the General Assembly desired to repeal the wrongful death cause of action for medical injuries in any respect, it could easily have done so in 1979 by a specific repealer in the Medical Malpractice Act. It did not. Nor did it do so after our decision in Brown v. St. Paul Mercury Ins. Co., supra, where we expressly affirmed use of the statute of limitations under the Wrongful Death Act for a medical injury. Now, almost 20 years after the enactment of the Medical Malpractice Act, we hold that a repeal was contemplated. I cannot make that interpretative leap.

I respectfully dissent.

Glaze and Roaf, JJ., join.


author: Robert L. Brown, Justice. Tom Glaze, Justice,

text:
    Janet RENFRO, Individually and as Mother and Next Friend of Brandee L. Hodges, a Minor v. Jerry Eugene ADKINS and Juanita C. Adkins, Individually and as Executrix of the Estate of Frederick Earl Adkins, Jr., Deceased; Frederick Earl Adkins; and Rebecca E. Adkins
    95-500
    914 S.W.2d 306
    Supreme Court of Arkansas
    Opinion delivered February 5, 1996

      Boswell, Tucker & Brewster, by: Ted Boswell and John T. Holleman, for appellant.

      Warford, Revels & McCallister, by: Bobby D. McCallister, for appellee Juanita C. Adkins.

      Huckabay, Munson, Rowlett & Tilley, P.A., for appellee Frederick Earl Adkins.

      Matthews, Sanders, & Sayes, by: Margaret M. Newton and Roy Gene Sanders, for appellee Rebecca E. Adkins.
   Robert L. Brown, Justice.

The appellants, Janet Renfro and Brandee L. Hodges, appeal an order granting summary judgment in favor of the appellees, Frederick Earl Adkins, III, Rebecca Adkins, and Juanita Adkins, individually and as executrix of the estate of Frederick Earl Adkins, Jr. They contend that summary judgment was inappropriate because genuine issues of material fact remain to be decided. They further urge that the trial court erred in finding that it did not have personal jurisdiction over Juanita Adkins.

On November 12, 1992, Jerry Adkins was driving a pickup truck that was titled to his deceased father, Frederick Adkins, Jr., when he collided with a car in which Brandee L. Hodges was a passenger. Hodges was seriously injured as a result of the accident. It was later determined that Jerry Adkins was intoxicated at the time of the accident.

Janet Renfro (both individually and on behalf of her daughter, Brandee Hodges) filed a negligence claim against Jerry Adkins. Renfro later amended her complaint to include a negligent entrustment action against Juanita Adkins, who was Jerry Adkins’s stepmother, and sued her in her individual capacity and as executrix of the estate of Frederick Adkins, Jr. Juanita Adkins was sued as an individual because the will of Frederick Adkins, Jr. left the pickup truck to her. Renfro alleged that Juanita Adkins, as a resident of Louisiana, entrusted the pickup truck to Jerry Adkins in Louisiana with knowledge of his past history of reckless operation of automobiles and with knowledge that the vehicle would be driven in Arkansas without liability insurance.

Juanita Adkins answered and moved to dismiss Renfro’s complaint on grounds that the Arkansas trial court lacked personal jurisdiction over her because she resided in Louisiana. She later moved for summary judgment on the negligent entrustment claim and contended that ownership in the vehicle had never vested in her and that ownership of the vehicle had been transferred to Jerry Adkins prior to the accident. She further asserted that there was no evidence that she knew or had reason to know of Jerry Adkins’s driving record.

On July 22, 1992, Renfro filed a second amended complaint. In this complaint, she added allegations of negligent entrustment, tort of outrage, and fraudulent conveyance against Frederick Adkins, III, and Rebecca Adkins, brother and sister of Jerry Adkins. The new allegations were based on a “jailhouse” letter written by Jerry Adkins to his wife, Phyllis. The letter stated that he had “stashed” money with Frederick and Rebecca Adkins.

Frederick and Rebecca Adkins answered the amended complaint and later moved for summary judgment, claiming that the complaint failed to state a cause of action for any of the claims alleged. Attached to their motions were their affidavits and an affidavit by Jerry Adkins. Jerry Adkins’s affidavit stated that the reference that he had “stashed” moneys referred to the disclaimer he had made to his grandmother’s inheritance in the probate of her estate prior to the accident. The money disclaimed went to Frederick and Rebecca Adkins under their grandmother’s will. He further averred that they were the legal owners of the money and that there were no other funds to be transferred. He added that he took possession and ownership of the pickup truck when he went to Louisiana and that neither Frederick nor Rebecca Adkins ever had an interest in it. His brother’s and sister’s affidavits confirmed the sworn statements in Jerry Adkins’s affidavit.

On February 9, 1995, the trial court granted Juanita Adkins’s motion for summary judgment on the negligent entrustment claims. The trial court also granted summary judgment on all the claims asserted against Frederick and Rebecca Adkins. Finally, the trial court granted Juanita Adkins’s motion to dismiss on the grounds of lack of personal jurisdiction. Also on February 9, 1995, Renfro moved to voluntarily dismiss her claims against Jerry Adkins, the remaining party to the lawsuit. The trial court granted the motion and dismissed the action against Jerry Adkins without prejudice.

Although no issue concerning the finality of the order has been raised by the parties, our recent decision in Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269 (1996), deserves mention. In Driggers, we distinguished Haile v. Arkansas Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995), where we held that a voluntary nonsuit of a claim by a party prevented an order which decided the remaining claims of that party from being final for purposes of an appeal. In Driggers, we held that the taking of a voluntary nonsuit with respect to an opposing party, as opposed to a claim, did not adversely affect the finality of an order regarding the remaining parties. As Renfro’s nonsuit in the instant case involved a party rather than a claim, the orders appealed from are final and appealable, and we will address the merits of this appeal.

I. Personal Jurisdiction

Renfro takes issue with the trial court’s finding that it did not have personal jurisdiction over Juanita Adkins, who resides in Louisiana, and we address this matter of jurisdiction first. Renfro claims that the trial court had personal jurisdiction over Adkins pursuant to the long-arm statute, Ark. Code Ann. § 16-4-101 (1987) and pursuant to the Nonresident Motorist Act, Ark. Code Ann. § 16-58-121 (1987). Apparently, service was first had on Juanita Adkins under the long-arm statute. She was later served under the Nonresident Motorist Act. We agree that personal jurisdiction was appropriately obtained against Juanita Adkins under the Nonresident Motorist Act. Thus, we hold that the trial court did have personal jurisdiction over Juanita Adkins, both individually and as executrix of the estate of Frederick Adkins, Jr.

The Nonresident Motorist Act permits service of process on a nonresident owner of a vehicle by designating the Secretary of State as the nonresident owner’s agent for service of process in exchange for the privilege of operating a vehicle owned by the nonresident on Arkansas highways. Since the nonresident owner’s “agent” can be personally served within the state under the Act, the trial court was able to obtain in personam, jurisdiction over Juanita Adkins by service on the Arkansas Secretary of State. See Shaffer v. Heitner, 433 U.S. 186, 202 (1977) (citing Hess v. Pawloski, 274 U.S. 352 (1927)).

At oral argument, counsel for Renfro asserted that service was perfected on the Secretary of State pursuant to the Nonresident Motorist Act, and the record confirms that counsel for Renfro similarly confirmed that fact before the trial court. We note that the record does not contain a return of service as proof that service was accomplished under the Act. However, perfection of service under the Nonresident Motorist Act was never contested by Juanita Adkins. What she does contend is that she was not the owner of the pickup truck at the time of the accident and, thus, the Act does not apply. In a statement signed by her on August 2, 1992, which was before the accident, she refers to the pickup truck which she turned over to Jerry Adkins as “my Ford Truck.” In addition, she concedes in her brief on appeal that an inference could be made that title was in her name, as executrix of the estate, at the time of the accident. In fact, the certificate of title reflects that on November 24, 1992 — 12 days after the accident — she transferred title from her deceased husband’s estate to herself. We are of the opinion that service on Juanita Adkins was proper under the Nonresident Motorist Act, and we reverse the trial court on this point.

II. Summary Judgment

Renfro next claims that the trial court erred in granting summary judgment in favor of each appellee on the issues of negligent entrustment, fraudulent conveyance, and tort of outrage.

This court has summarized its standards for summary judgment review recently:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. V. Catrett, 477 U.S. 317 (1986).

Cash v. Lim, 322 Ark. 359, 360-362, 908 S.W.2d 655, 656-657 (1995); Oglesby v. Baptist Medical Sys., 319 Ark. 280, 284, 891 S.W.2d 48, 50 (1995).

It is further well-settled that once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See Ford Motor Credit Co. v. Twin City Bank, 320 Ark. 231, 895 S.W.2d 545 (1995); Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994). With these standards in mind, we turn to the precise claims upon which summary judgment was rendered.

a. Negligent Entrustment

Renfro contends that the trial court erred in granting summary judgment on the negligent entrustment claims. We have held that proof regarding the following elements is necessary to establish a case of negligent entrustment:

(1) the entrustee was incompetent, inexperienced or reckless;
(2) the entrustor knew or had reason to know of the entrustee’s condition or proclivities;
(3) there was an entrustment of the chattel;
(4) the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the defendant; and
(5) the harm to the plaintiff was proximately or legally caused by the negligence of the defendant.

Arkansas Bank & Trust Co. v. Erwin, 300 Ark. 599, 781 S.W.2d 21 (1989).

We first examine the negligent entrustment claim as asserted against Juanita Adkins. Viewing the evidence in the light most favorable to her, there appear to be several genuine issues of material fact. Initially, there is an issue as to who actually owned the pickup truck in question. At the time of the accident, the title was still in the name of Jerry Adkins’s deceased father, and Juanita Adkins was the executrix of his estate. The will, however, left the truck to Juanita Adkins. While she maintains that she gave the truck to Jerry Adkins and that title could not be transferred while the estate was still in probate, the title and the will were evidence that the truck was, in fact, still held by the estate and, thus, by Juanita Adkins as executrix at the time of the accident. As previously mentioned, on August 2, 1992, Juanita Adkins signed a document stating that Jerry and Phyllis Adkins have “my permission to use my Ford Truck,” thereby admitting her ownership. Twelve days after the accident she transferred title to the vehicle from the estate to herself. At the very least, a material question of fact remains to be resolved concerning this matter.

Further, a genuine issue of material fact exists on whether Juanita Adkins had any knowledge of Jerry Adkins’s propensity to drive while intoxicated. In her deposition, Juanita Adkins stated that she knew Jerry had been drinking at his father’s funeral, which, of course, occurred before she turned the pickup truck over to him. Also, Phyllis Adkins’s affidavit stated that the entire family, including Juanita Adkins, knew of Jerry Adkins’s history of driving while intoxicated. Juanita Adkins contested this in her own affidavit and stated that she did not know that Jerry Adkins had a history of driving while intoxicated, and her affidavit was corroborated by the affidavits of Frederick Adkins and Rebecca Adkins. But the conflicting affidavits present a patent issue of material fact.

Juanita Adkins cites McDonalds v. Eubanks, 292 Ark. 533, 731 S.W.2d 769 (1987), and urges that this court should not consider the affidavit of Phyllis Adkins because it was merely conclusory. That affidavit read.:

I, Phyllis Adkins, do state under oath, that Juanita Adkins, stepmother of Jerry Eugene Adkins, knew that Jerry Eugene Adkins frequently drove while intoxicated. She also knew that Jerry Eugene Adkins had a large number of traffic tickets, and was an incompetent and reckless driver.
Moreover, his entire family, including his brother and sister, knew of his terrible driving record.

The Eubanks case is distinguishable, however. In that case, the affidavits dealt with an expert’s opinion on the ultimate issue of whether the appellee was negligent, and they failed to include facts in support of the expert’s conclusions. In this case, a lay opinion was offered by Phyllis Adkins regarding her knowledge about what Juanita Adkins knew. Hence, the Adkins affidavit did not require the factual support that the expert opinion in Eubanks did. Finally, the Adkins affidavit is not construed against Renfro as it is not an affidavit in support of a motion for summary judgment; rather, the affidavit must be taken in the light most favorable to her. Hughes Western World v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W.2d 826 (1980). Thus, a genuine issue of material fact existed, and the trial court erred in granting summary judgment in favor of Juanita Adkins on the negligent entrustment count.

We next address whether the trial court erred in granting summary judgment in favor of Frederick and Rebecca Adkins on the claim of negligent entrustment. Renfro asserts that Frederick and Rebecca Adkins embarked on a course of conduct that permitted Jerry Adkins to secure possession of the vehicle from his stepmother and that they approved his taking possession of the truck from Juanita Adkins and from the estate. We hold the trial court did not err in this regard.

While it is true, as Renfro asserts, that an entrustment need not be made by the owner and can be made through a third person such as an employee or an agent, there is no proof to suggest that either Frederick or Rebecca Adkins was acting as an agent of the estate or of Juanita Adkins. Frederick Adkins gave Jerry Adkins a ride to Louisiana on his way to Florida. He also provided his stepmother with a form so that she could protect herself and the estate from any liability that might arise from Jerry Adkins’s driving of the vehicle. Those actions do not support a negligent entrustment claim against him. Rebecca Adkins did even less. We conclude that there is no evidence that either party “supplied” the truck to Jerry, directly or indirectly, or even exercised any control over it. See Arkansas Bank & Trust, Co. v. Erwin, supra. We affirm the trial court with regard to the claims against Frederick and Rebecca Adkins.

b. Outrage

The next point raised concerns the outrage claim brought against Frederick and Rebecca Adkins but resolved against Renfro on summary judgment. Renfro claims that Frederick Adkins's conduct (1) in transporting Jerry Adkins to Louisiana to pick up the truck, (2) in providing the release form to Juanita Adkins, and (3) his knowledge of Jerry Adkins’s propensity to drive while intoxicated, combined with his effort to fraudulently receive funds from Jerry Adkins, amounted to the tort of outrage.

This court has taken a very narrow view of claims of outrage. See, e.g., Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996); Ross v. Patterson, 307 Ark. 68, 817 S.W.2d 418 (1991); Harris v. Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41 (1985) (citing Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982)). In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988) (citing M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980)), for example, this court stated that one is subject to liability for outrage if he or she willfully or wantonly causes severe emotional distress to another by extreme and outrageous conduct — conduct that is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society. The emotional distress for which damages may be sought must be so severe that no reasonable person could be expected to endure it. Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). In addition, the tort of outrage requires clear-cut proof. Croom v. Younts, supra. Merely describing the conduct as outrageous does not make it so. Ross v. Patterson, supra; Givens v. Hixson, supra.

In the case at hand, the trial court correctly granted the motion for summary judgment on the outrage claim. As already discussed, the negligent entrustment claim against Frederick Adkins was correctly dismissed. The remaining allegations fall woefully short of supporting a claim of outrage.

c. Fraudulent Transfer

The final point that must be addressed is whether the trial court erred in granting summary judgment in favor of Frederick and Rebecca Adkins on the issue of fraudulent transfer. We need not address this issue because Renfro has voluntarily dismissed Jerry Adkins from the lawsuit. Without a claim that Jerry Adkins made the fraudulent transfer, that is, had some ownership interest in the assets and made the transfer with intent to defraud, we discern no basis for a claim against his brother and sister.

Affirmed in part. Reversed in part and remanded.

Glaze and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting. This appeal should be dismissed for the same reasons I expressed in my dissent in Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269 (1996). Eventually, this court will need to overrule Driggers or amend Rule 54(b) so the rule will reflect the holding in Driggers. As matters stand now, the Driggers decision and Rule 54(b) are at odds.

Rule 54(b) is quite simple and will work if its provisions are followed. The rule provides that an interlocutory appeal may be had from the dismissal of one party or one claim in a multiparty, multi-claim lawsuit when the trial court enters the dismissal of the party or claim as a final judgment, and makes express findings that there is no just reason to delay the appeal. Here, for whatever reasons, the appellant simply circumvented Rule 54(b)’s dictates and did not ask the trial court for an interlocutory appeal. Because she failed to comply with Rule 54(b)’s express language, her appeal should be dismissed. Instead, this court awards appellant an interlocutory appeal. I just “don’t get it.”

       As a result of the accident, Jerry Adkins’s probation for a previous battery conviction was revoked, and he was imprisoned.

       This long-arm statute was amended by Act 486 of 1995 to eliminate the basis for jurisdiction argued in this case but was in effect at the time of the accident at issue. Act 486 did not affect Ark. Code Ann. § 16-58-120 (1987).

       Renfro in her briefs concentrates on the conduct of Frederick Adkins. She does not argue that the trial court erred in finding that Rebecca Adkins’s conduct did not rise to the level of outrage. We further note that Juanita Adkins answered the outrage claim, though Renfro did not assert that Juanita Adkins committed the tort of outrage in her complaint.


author: Andree Layton Roaf, Justice.

text:
    Thomas Roy PASSLEY, Jr., a/k/a Douglas Lee Bolkema v. STATE of Arkansas
    CR 95-903
    915 S.W.2d 248
    Supreme Court of Arkansas
    Opinion delivered February 5, 1996

      Kent McLemore, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

Appellant Thomas Roy Passley, Jr., was convicted of eleven counts of residential burglary and nine counts of theft of property for crimes committed over a two day period. He was sentenced as an habitual offender to eighty years imprisonment. On appeal, Passley asserts that the trial court (1) abused its discretion in failing to sever the March 15, 1994, burglaries from the March 16, 1994, burglaries, (2) abused its discretion by allowing the introduction of a tape of a “911” call in violation of A.R.E. Rule 403, and (3) erred in failing to grant Passley’s motions for directed verdict. We affirm.

Ms. Peggy Swingel testified that at approximately 1:50 p.m. on March 16, 1994, someone began ringing her doorbell, but she did not answer the door. Subsequently, someone began kicking the back door. She entered her living room in order to reach a cordless telephone, and she could see that someone was in her kitchen. She called “911,” and the intruders left her home. She reported that two men just left her home in a gray or blue-gray car, possibly a Thunderbird. Jovey Marshall of the Washington County Sheriff’s Office testified that he received the “911” call at approximately 1:50 p.m. and a Thunderbird was stopped at approximately 1:54 p.m.

Morton Marshall, Farmington Chief of Police, was dispatched in response to the call and he encountered a blue Thunderbird. Chief Marshall pursued the vehicle and observed that there were two women and two men in the vehicle. After the vehicle stopped, the two men escaped. Co-defendants Michelle Vincent and Tammy Johnson a/k/a Lisa Faye Bradish were apprehended in the Thunderbird. The two men, the appellant and Warren (Morn) Franklin Passley III, were captured approximately ten minutes later.

The appellant a/k/a Douglas Lee Bolkema and the three co-defendants were charged by felony information with thirteen counts of burglary and twelve counts of theft of property. The crimes were allegedly committed on February 7, 1994, March 4, 1994, March 15, 1994, and March 16, 1994. The information alleged that the defendants entered homes on February 7 and March 4 and took property valued in excess of $2,500.00. The information provided that on March 15 the defendants burglarized six homes and on March 16 the defendants burglarized four homes. Further, the information alleged that the defendants took property valued in excess of $2,500.00 from five of the homes; property valued in excess of $200.00 from three of the homes; and property valued at less than $200.00 from two of the homes. Finally, the information charged the defendants with burglary for entering the home of Peggy Swingel on March 16.

The Thunderbird in which the defendants were riding was owned by Tammy Johnson, the appellant’s wife. A number of items from the burglaries committed on March 15 and March 16 were found either in pillow cases in the trunk of the car or in the possession of the defendants. A ring, watch, and knife were found on the appellant when he was apprehended. The ring was identified as one taken in a March 16th burglary, and the knife and watch were identified as taken in a March 15th burglary. Property taken on those dates from seven other homes was also recovered from either the Thunderbird or the co-defendants.

Mrs. Marjie Million testified that Tammy Johnson is her niece. Mrs. Million further testified that Tammy Johnson, Thomas Roy Passley, Jr., Warren Franklin Passley III, and Michelle Vincent stayed in her home on March 15 and March 16, 1994. A Ford Mustang owned by Warren Passley was recovered from the Million residence. Property belonging to victims of both the March 15 and March 16 burglaries was recovered from either the Mustang or the Million’s residence.

Ms. Swingel identified Tammy Johnson’s Thunderbird as the vehicle that she observed the day her home was burglarized. She further testified that she could identify Warren Passley as one of the intruders, but she did not get a good look at the second person. Deputy Sheriff Charles Rexford testified that the tread patterns on the appellant’s shoes were similar to the print observed on the door of Ms. Swingel’s residence.

The jury found the appellant not guilty of the crimes allegedly committed on February 7 and March 4. Further, the trial court refused to instruct the jury regarding the theft of property charge arising out of the burglary of Kirk Cunningham’s residence. The jury, however, found the appellant guilty on the twenty remaining charges.

1. Sufficiency of the evidence

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995). Preservation of an appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995). Consequently, we address appellant’s challenge to the sufficiency of the evidence prior to considering his other assignments of trial error. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994).

On appeal, the appellant contends the “record is void of evidence physically placing him in any of the homes” and there is no evidence that he “knowingly possessed any of the victims’ property with the intent to deprive them thereof.” When reviewing the sufficiency of the evidence on appeal, we do not weigh the evidence but simply determine whether the evidence in support of the verdict is substantial. Williams v. State, supra. Substantial evidence is that which is forceful enough to compel a conclusion one way or the other and pass beyond mere suspicion and conjecture. Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995). In determining whether there is substantial evidence, we review the evidence in the light most favorable to the appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Williams, supra. Further, circumstantial evidence may constitute substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). Whether a reasonable hypothesis exists is for the trier of fact to resolve. Id.

The jury was given, without objection, an accomplice liability instruction. See AMCI 2d 401. Arkansas Code Annotated § 5-2-403(a) (Repl. 1993) provides that a person is an accomplice of another person in the commission of an offense if, with the requisite intent, he aids, agrees to aid, or attempts to aid the other person in commission of the offense. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). Under the accomplice liability statute, a defendant may properly be found guilty not only of his own conduct, but also by that conduct of his accomplice; when two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Id. Finally, there is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id.

Granted, we have stated that stolen goods recovered from a dwelling shared by an accomplice is not sufficient corroboration standing alone. Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992). However, possession of stolen property by the accused is a proper circumstance to consider in determining whether there was evidence tending to connect him with the crimes of burglary and grand larceny. Id. Further, the presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant facts in determining the connection of an accomplice with the crime. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993); see also Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979). Finally, we have held that a person’s flight to avoid arrest may be considered as corroboration of evidence tending to establish his guilt. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994); Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992).

The proof at trial was amply sufficient to establish the joint nature of appellant’s activities with the co-defendants. The appellant was apprehended with the three co-defendants, one of whom was his wife who admitted her involvement in the crimes. The appellant was apprehended a short time after the “911” call by Ms. Swingel, and Ms. Swingel identified the vehicle in which the appellant was riding. There was testimony that the tread patterns on the appellant’s shoes were similar to the print observed on the door of Ms. Swingel’s residence. The appellant was staying in the same home as the co-defendants. At the time of his arrest, the appellant was in possession of stolen property. Further, property taken in all the burglaries, with the exception of the burglary of the Swingel home, was recovered either on the appellant, in the Thunderbird, in the Mustang, or at the Million’s residence. Finally, the appellant attempted to flee when he was confronted by the police. In short, the State was not required to prove that the appellant physically entered the home of each victim with the intent to deprive them of their property.

2. Severance of offenses

Prior to trial, the appellant moved to sever the burglary offenses on the basis that they were joined solely because they were of similar character, but they were not part of a single scheme or plan. In denying the appellant’s motion, the trial court concluded the burglaries were part of a single scheme or plan. At trial, the appellant renewed his motion for severance prior to the introduction of any testimony and again at the conclusion of the State’s evidence. On appeal, the appellant contends that the trial court abused its discretion in failing to sever the March 15, 1994, burglaries from the March 16, 1994, burglaries in violation of Ark. R. Crim. P. 22.2.

Granting or refusing a severance is a matter within the discretion of the trial court. Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993). Rule 22.2 of the Rules of Criminal Procedure provides in part:

(a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.
(b) The court, on application of the . . . defendant other than under subsection (a), shall grant a severance of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(ii) if during trial, upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.

(Emphasis supplied.) Thus, a defendant has an absolute right to a severance of offenses joined solely on the ground that they are of same or similar character. Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994). However, in the instant case, the trial court concluded the burglaries were a part of a common scheme or plan.

The appellant contends that there is no evidence that the March 15 and March 16 burglaries were a part of a single plan or scheme. The appellant cites the cases of Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995), Clay v. State, supra, and Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979), where this Court held there was no evidence of a single scheme or plan. In Clay, we noted that a single scheme or plan is discussed in the 1987 Unofficial Supplementary Commentary to Rule 21.1 which provides:

One who burglarizes an office on January 1 and a home on February 1 may be charged in the same information with both offenses, since they are “of similar character.” He would be entitled to a severance under Rule 22.2(a), however, unless the offenses were part of a single scheme or plan or criminal episode. Even though roughly the same type of conduct might be argued to be involved in both burglaries, justifying joinder under Rule 21.1(b), the term “same conduct” in Rule 21.1(b) was probably intended to be read literally to refer to contemporaneous events and to permit joinder in a situation where, for example, a defendant robs three persons simultaneously.

The appellant contends that the burglaries committed on March 15 and March 16 were not contemporaneous events and there is no evidence that the burglaries committed on March 16 were planned as part of the burglaries committed on March 15.

We hold there is a sufficient basis for the trial court’s denial of the motion for severance. In Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990), the appellant was charged with the burglary of two convenience stores located in Fort Smith. The first burglary occurred at approximately 11:20 p.m. and the second thirty minutes later. This Court concluded the proximity in time and place provided an ample base for denial of severance. In Kimberly v. State, 315 Ark. 653, 869 S.W.2d 692 (1994), the appellant was charged with attempted rape, robbery, and theft arising out of an incident with Brenda George Reed. In the same information, he was charged with attempted sexual abuse of Kimberly Lutz. The testimony revealed that at approximately 11:25 a.m. Ms. Lutz was sitting in a park when the appellant attacked her. Ms. Reed testified that, on that same day, she was attacked several blocks from the park at approximately 11:50 a.m. Once again, we concluded the proximity in time and place provided an ample basis for denial of severance.

In the instant case, six burglaries occurred during the day on March 15 and five burglaries occurred prior to 2:00 p.m. on March 16. The burglaries occurred in the same locale and during the day, they were all residential burglaries, and in each case a door was forced open. The appellant’s wife provided evidence of a scheme or plan; she testified at trial that the burglaries were committed to raise money so that “we can go to Florida and pick up my kids.” Thus, the proximity in time and place and evidence of a single scheme or plan provided an ample basis for the denial of severance. See Kimberly v. State, 315 Ark. 653, 869 S.W.2d 692 (1994).

3. Admission of “911” tape

The appellant filed a motion in limine seeking to suppress the tape of Ms. Swingel’s “911” call. The appellant asserted that the tape was not accurate because when making the call Ms. Swingel stated there were two men entering her home, but since making the call, she has stated she only assumed it was two men. Consequently, the appellant contended the prejudicial nature of the tape outweighed any possible probative value.

At a suppression hearing, the appellant argued the tape was not an accurate portrayal of the facts because Ms. Swingel was not certain if the second intruder was a man. The appellant further argued the prejudicial effect of the tape far outweighed the probative value because Ms. Swingel “obviously sounds frightened and it’s scary to listen to it.” The trial court found that the tape was relevant because Ms. Swingel provided a description of the vehicle and the police stopped Tammy Johnson’s Thunderbird in response to the call. Two men fled from the vehicle, and the appellant was apprehended within minutes. Further, the trial court found that the relevancy of the tape strongly outweighed any prejudicial effect of the tape.

On appeal, the appellant asserts that the probative value of the evidence was substantially outweighed by the prejudicial effect (1) because of the frantic tone of Ms. Swingel’s voice and (2) because the tape had no probative value since there was no dispute that someone entered Ms. Swingel’s home, she confronted them, and she dialed “911.” The appellant further submits the “911” tape is not relevant because it does not state that he was involved. Rule 403 of the Arkansas Rules of Evidence allows a trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). This weighing is a matter left to the trial court’s sound discretion and will not be reversed absent a showing of manifest abuse. Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994).

Granted, the State had clear proof that someone entered Ms. Swingel’s home without resorting to the “911” call; however, the call served to explain why the police were in the area searching for a blue Thunderbird. Further, the appellant offers no authority for how Ms. Swingel’s alleged “frantic voice” inflamed the jury. Indeed, A.R.E. Rule 803(2), excited utterance, specifically contemplates the admission of statements relating to a startling event or condition made while the person was under the stress of excitement caused by the event. In short, the appellant has simply failed to establish that the trial court abused its discretion.

Affirmed.