author: Annabelle Clinton Imber, Justice.

text:
    COCA-COLA BOTTLING COMPANY of Memphis, Tennessee v. Terry PRIDDY
    96-657
    945 S.W.2d 355
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      Friday, Eldredge & Clark, by: Donald H. Bacon, for appellant.

      J.R. Nash, for appellee.
   Annabelle Clinton Imber, Justice.

A jury awarded Terry Priddy $50,000 in damages for an injury negligently inflicted by an employee of Coca-Cola Bottling Company of Memphis, Tennessee (Coca-Cola). On appeal, Coca-Cola argues that the trial court erred when it refused to instruct the jury on Priddy’s duty to use ordinary care to mitigate her damages. We affirm the trial court’s ruling.

On February 1, 1993, Terry Priddy was shopping at a grocery store when her left ankle and foot were struck by an empty stacking container thrown by one of Coca-Cola’s employees. Although Coca-Cola contested liability for Priddy’s injuries, it conceded on appeal that the main issue at trial was the amount of damages to which Priddy was entitled.

During the trial, Priddy testified that the blow almost knocked her down, and that her ankle immediately began to swell. Priddy sought medical treatment for her injuries, and a doctor prescribed an anti-inflammatory agent and pain medication. Over the next two and a half years, Priddy saw four different doctors and tried a variety of treatments to eliminate the persistent swelling and pain in her ankle and foot. According to Priddy, none of these treatments alleviated the throbbing pain, and she was unable to stand or walk on her foot for extended periods of time. Thus, Priddy claimed, she was forced to quit her job that required a great deal of walking and take a different job where she could sit for most of the day.

On July 27, 1995, Priddy was referred to Dr. Ruth Thomas, who is an orthopedic surgeon specializing in the treatment of ankles and feet. Dr. Thomas determined that Priddy suffered from sural nerve neuritis. To confirm her diagnosis, Dr. Thomas injected a nerve blocking agent into Priddy’s foot. Priddy testified that after receiving the nerve block she no longer felt pain and was able to jog up and down her street. The injection, however, caused Priddy’s foot to become numb for twenty-four hours, instead of five hours as predicted by Dr. Thomas.

In August of 1995, Dr. Thomas suggested that Priddy undergo an outpatient surgical procedure where the sural nerve is cut and inserted into a nearby muscle. Dr. Thomas predicted that immediately after the surgery Priddy would have complete relief from the pain without any additional treatments. Furthermore, after a six-week-healing period, Priddy would be able to return to the activities that she was no longer able to do as a result of her injury. Although the procedure would cause topical numbness on the side, bottom, and heel of Priddy’s foot, Dr. Thomas believed that Priddy would retain full mobility of her foot and ankle.

After discussing the surgery with Dr. Thomas, Priddy decided not to undergo the procedure at that time. Priddy explained that, despite Dr. Thomas’s assurances, she was afraid her entire foot would become “dead” or useless. In addition, Priddy was skeptical of the surgery because the pain was in her ankle and the top portion of her foot, while the procedure would numb the bottom, side, and heel of her foot. Finally, Priddy testified that she was still considering the surgery, and that she might undergo the procedure in the future if the pain did not subside.

Based on this testimony, Coca-Cola requested that the jury be given the following instruction that is based on AMI Civ. 3d 2214:

If it becomes necessary for you to assess damages, then in fixing the amount of money which will reasonably and fairly compensate Terry Priddy, you are to consider that an injured person must use ordinary care to follow the instructions of her physician, and that any damages resulting from a failure to use such care cannot be recovered.

(Emphasis added.) The trial court refused to give this instruction. Likewise, the trial court refused to give Priddy’s proffered instruction on future medical expenses. The trial court did, however, instruct the jury on damages for future pain and suffering and for lost earning capacity.

The jury returned with a general verdict for Priddy and awarded her $50,000 in damages. Coca-Cola filed a motion for a new trial based on the trial court’s refusal to give the instruction on Priddy’s duty to use ordinary care to mitigate her damages. The trial court denied the motion, and Coca-Cola appeals. For its sole argument on appeal, Coca-Cola asserts that the trial court committed reversible error when it refused to give AMI Civ. 3d 2214 on Priddy’s duty to use ordinary care to mitigate her damages.

I. Preservation

First, Priddy argues that this issue is not preserved for appeal because Coca-Cola failed to assert below that the verdict was excessive. This argument misconstrues Ark. R. Civ. P. 59(a), and thus we find that it has no merit.

Arkansas Rule of Civil Procedure 59(a) provides in relevant part that:

A new trial may be granted. . .for any of the following grounds materially affecting the substantial rights of such party: . . .(4) excessive damages appearing to have been given under the influence of passion or prejudice; (5) error in the assessment of the amount of recovery, whether too large or too small; . . .(8) error of law occurring at the trial and objected to by the party making the application.

(Emphasis added.) A motion for new trial based on Rule 59(a)(4) or (a)(5) challenges the sufficiency of the evidence to support a jury’s factual determination of damages. Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994); National Bank of Commerce v. McNeill Trucking Co., 309 Ark. 80, 828 S.W.2d 584 (1992). In contrast, a Rule 59(a)(8) motion may be used to determine if it was an error of law to refuse to give a proffered instruction. See Crowder v. Flippo, 263 Ark. 433, 565 S.W.2d 138 (1978); Security Life & Trust Co. v. First Nat’l Bank, 249 Ark. 572, 460 S.W.2d 94 (1970). As mentioned in the rule, these are separate and distinct grounds for granting a new trial. An appellant is simply not required to raise one argument in order to preserve the other.

On appeal, Coca-Cola only contests the trial court’s refusal to give the proffered jury instruction on mitigation; it does not challenge the sufficiency of the evidence to support the amount of damages awarded. Therefore, we find no merit to Priddy’s argument that Coca-Cola has not properly preserved the issue for appeal.

II. Failure to Give AMI Civ. 3d 2214

The next issue is whether the trial court committed reversible error when it refused to give AMI Civ. 3d 2214 regarding the plaintiffs duty to use ordinary care to mitigate damages. We have consistently held that a party is entitled to a jury instruction when it is a correct statement of the law, and there is some basis in the evidence to support the giving of the instruction. Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996); Parker v. Holder, 315 Ark. 307, 867 S.W.2d 436 (1993). Moreover, we will not reverse a trial court’s refusal to give a proffered instruction unless there was an abuse of discretion. Barnes, Quinn, Flake & Anderson, Inc. v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993); Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991).

The relevant inquiry presented by this case is whether there was some evidence that Priddy failed to use ordinary care to follow “the instructions” of her physician as specified in AMI Civ. 3d 2214. During the trial, Dr. Thomas testified as follows:

ATTORNEY: Is it still up in the air whether she is to go through with the operation?
DR. THOMAS: It could be done at anytime.
ATTORNEY: I mean, as far as her decision, did you invite her to think about it for a period of time?
DR. THOMAS: I certainly did.
ATTORNEY: Did you put any deadline on her thinking about what to do?
DR. THOMAS: No, sir, because the procedure would not change. It would be the same procedure a year from now. It’s a matter of deciding whether the pain is getting better over that period of tíme, and whether it’s become more tolerable. And if that is so, then I wouldn’t consider the surgery. If the pain gets worse, or if it remains at the same level and it’s felt to be intolerable, then that’s a surgical option that can be done.
ATTORNEY: So it’s really up to her whether she wants to risk—
DR. THOMAS: That’s correct.
ATTORNEY: —-the surgery, or to just try to put up with the pain?
DR. THOMAS: That’s correct.
ATTORNEY: Can you say with a reasonable degree of medical certainty that the surgery you have suggested is necessary?
DR. THOMAS: I don’t consider it necessary unless the patient feels that her pain is not controlled. If she feels it’s intolerable, then I think it’s an option. I don’t consider it necessary.

Based on these facts, we agree with the trial court that there was no evidence that Priddy was ever given “instructions” by Dr. Thomas as required by AMI Civ. 3d 2214. Instead, it appears that Dr. Thomas merely gave Priddy the option to have the surgery when and if the pain became so severe that the benefits of the surgery outweighed the possible negative side effects. Additionally, Dr. Thomas refused to characterize the surgery as “necessary.” Thus, we find that the trial court did not abuse its discretion when it concluded that there was not enough evidence in this case to support the giving of AMI Civ. 3d 2214.

Affirmed.


source: Caselaw Access Project

author: Bay Thornton, Justice. Robert L. Brown, Justice,

license: Public Domain

text:
    Judy F. SCARLETT v. ROSE CARE, INC.
    97-68
    944 S.W.2d 545
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      Trotter & Skelton, by: Rick W. Skelton, for appellants.

      Mitchell, Williams, Selig, Gates & Woodyard PLLC, by: JR.. T. Beard, III and L. Kyle Hejfley, for appellees.
   Bay Thornton, Justice.

Mrs. Judy F. Scarlett, appellant, brought this action for wrongful death as the result of the alleged medical negligence of Rose Care, Inc., and other appellees who were the medical care providers responsible, until May 10, 1993, for the care and treatment of Mrs. Daisey Idell Perry, appellant’s mother. Ms. Perry died on June 12, 1993.

Mrs. Scarlett filed this action in the trial court on June 11, 1996. The trial court ruled that the complaint was barred by the two-year statute of limitations applicable to medical malpractice and granted appellee’s motion to dismiss. Appellant urges us to reverse the decisions relied upon by the trial court that all claims for medical injury, even those resulting in death, must be brought within the two-year limitations period provided in the Arkansas Medical Malpractice Act at Ark. Code Ann. § 16-114-203 (Supp. 1995). Alternatively, she asks that we find error in the trial court’s failure to apply the doctrine of equitable estoppel or equitable tolling of the statute of limitations. We affirm the decision of the trial court.

Mrs. Perry was admitted to appellee Rose Care as a resident on February 10, 1993, and appellee Dr. Benny Green became her attending physician on that date. Prior to her admission to Rose Care, she had been prescribed a diuretic drug on a “take as needed” basis. After her admission to Rose Care, Dr. Green changed her medication order, requiring three scheduled doses of the diuretic drug per week, which were administered by employees of Rose Care.

On May 3, 1993, after receiving her scheduled dose of the diuretic, Mrs. Perry became nauseated and began vomiting. She continued to receive the scheduled doses through May 10, 1993. Thereafter, she suffered from prolonged nausea and vomiting, and became severely dehydrated. She died on June 12, 1993.

In 1994, Mrs. Scarlett contacted an attorney and was eventually appointed personal representative of her mother’s estate. She also asked the attorney to investigate the events surrounding her mother’s death. After the investigation, in June of 1994, she asked the attorney how much time she had to bring a lawsuit against her mother’s health care providers based on the events surrounding her mother’s death.

Mrs. Scarlett’s attorney researched the law and advised her that there was a two-year limitations period for medical malpractice and a three-year limitations period for wrongful death. The attorney further advised her that this court had decided that the three-year period of the wrongful-death statute applied to cases of medical negligence resulting in the death of the patient. Based on this advice, she waited until June 11, 1996, to file her action.

Appellees filed a motion to dismiss, arguing that the limitations period had run on the claim, as it was one for medical negligence. The trial court granted the motion, relying upon our decision in Hertlein v. St. Paul Fire & Marine Inc. Co., 323 Ark. 283, 914 S.W.2d 303 (1996), in which we held that the two-year limitations period of Ark. Code Ann. § 16-114-203(a) applies to suits for death resulting from a medical injury.

Clearly, Mrs. Scarlett’s complaint stated a cause of action for medical malpractice, as it asserted that appellant died as a result of the treatment she received from Dr. Green and Rose Care in administering the diuretic. In Bailey v. Rose Care, 307 Ark. 14, 817 S.W.2d 412 (1991), we said that a medical injury takes place when the circumstances involve a professional service, as opposed to a situation where there was merely a failure to supervise the patient. Our case law is now clear that when a death results from a medical injury, a resulting lawsuit must be filed within the two-year limitations period of the Medical Malpractice Act.

In Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), we noted that after Bailey, “the question of whether a wrongful death resulting from medical injury was subject to the period of limitations of the Medical Malpractice Act was an open question.” Id. at 179, 853 S.W.2d at 877. We recognized in Ruffins that the Medical Malpractice Act was enacted long after the wrongful death statute was enacted, and that it expressly states that it applies to all causes of action for medical injury and that it supersedes any inconsistent provision of law. We have consistently applied this reasoning in the cases following Ruffins. We adhere to this position, and decline to overrule these cases.

Alternatively, Mrs. Scarlett asks that we apply the doctrines of equitable estoppel to toll the statute of limitations. See Pope County v. Friday, Eldredge & Clark, 313 Ark. 83, 852 S.W.2d 114 (1993); Kitchens v. Evans, 45 Ark. App. 19, 870 S.W.2d 767 (1994). In order to successfully assert the defense of equitable estoppel, the following must be shown: (1) conduct by one party who knows the facts and intends that his conduct be relied upon by the second party; (2) the party relying on the first party’s conduct must be ignorant of the facts; (3) the party relying on the first party’s conduct must do so to his detriment. Moore v. Moore, 21 Ark. App. 165, 731 S.W.2d 215 (1987); McEntire v. McEntire, 267 Ark. 169, 590 S.W.2d 241 (1979).

Mrs. Scarlett is unable to make such a showing. Her argument is that she relied upon the advice of her attorney in waiting to file the action under the three-year statute of limitations of the Wrongful Death Act; therefore, the applicable statute should be equitably tolled. However, it is well settled that the acts of an attorney are equivalent to the acts of the client. Self v. Self, 319 Ark. 632, 893 S.W.2d 775 (1995). Absent fraud, a client is bound, according to the ordinary rules of agency, by the acts of her attorney within the scope of his authority, even if these acts are negligent. Id. Mrs. Scarlett does not claim that her attorney committed fraud, or even that he was negligent. Nevertheless, because his actions, as her agent, are equivalent to hers, she cannot show that she detrimentally relied upon the actions of another party.

We find no error, and affirm.

Glaze, J., concurring.

Arnold C.J., and Brown, J., dissenting.

Robert L. Brown, Justice,

dissenting. I dissent for the reasons set out in my dissent in Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997) (Brown, J., dissenting).

Arnold, C.J., joins.


author: Per Curiam.

text:
    Andrew AKINS v. STATE of Arkansas
    CR 96-352
    945 S.W.2d 362
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      Russell J. Byrne, for appellant.
    No response.
   Per Curiam.

Appellant Andrew Akins filed a motion to supplement the record in this case on August 1, 1996. We granted the motion and issued a writ of certiorari directed to the court reporter of the Chicot County Circuit Court, returnable on October 9, 1996. Pursuant to the writ, a supplement to the record was filed together with a letter from the court reporter, which noted that the record could not be completed from the tapes of the court reporter who transcribed the hearing. Noticeably missing from the record is a transcription of a June 1, 1991 probable cause hearing.

Appellant now moves this court to grant his motion to direct the trial court to appoint a court reporter and to locate and transcribe the record. Appellant asserts that the record of that June 1991 proceeding is necessary to the issues on appeal. Attached to Appellant’s motion is an affidavit filed by the Drew County Circuit Clerk, Kay Craig, stating that she personally searched through several boxes of tapes from the five counties, including Chicot County, that comprise the Tenth Judicial District, and discovered that there are several hundred tapes in storage. Ms. Craig stated that most of those tapes indicate which county they are from and have some numerical indication of the year in which they were heard. The tapes do not, however, contain case numbers or the names of defendants. Ms. Craig stated that there are approximately 500 tapes for Chicot County, which are stored in an old unlighted jail cell.

We hereby grant appellant’s motion and we remand this case back to the trial court and order the current court reporter to search through the tapes in storage until the recording of the June 1, 1991 hearing is discovered. If the tape sought cannot be located, the trial court is directed to conduct a hearing to attempt to settle the record on this issue. In the event either of these options is not possible, the only recourse will be to grant appellant a new trial. The trial court court reporter and counsel are directed to accomplish these matters within thirty days and the trial court report its findings and conclusions regarding these matters on or before ten days from the expiration of the designated thirty-day period.


text:
    Darnell BURKS v. STATE of Arkansas
    CR 97-468
    945 S.W.2d 367
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      Deborah R. Sailings, Deputy Public Defender, for appellant.
    No response.
   Per Curiam.

Darnell Burks, by his attorney Deborah R. Sailings, Deputy Public Defender for the Sixth Judicial District, has filed a motion for belated appeal.

On October 2, 1996, Burks was sentenced to twenty years’ imprisonment on a petition to revoke probation. Mr. Ed Webb represented Burks at the revocation and sentencing hearings. On October 24, 1996, Burks filed a pro se motion for appeal. The record does not reflect that Mr. Webb was served with a copy of the motion. However, on November 1, 1996, Mr. Webb filed a notice of appeal from the revocation. On November 22, 1996, Burks filed a second pro se notice of appeal. Once again, the record does not reflect that Mr. Webb was served with a copy of this notice. On November 27, 1996, an amended judgment and commitment order was filed, although no earlier judgment appears in the record.

No notice of appeal was filed by Burks or his attorney, Mr. Webb, within thirty days of the amended judgment and commitment order. On January 24, 1997, the trial court relieved Mr. Webb as counsel and appointed the public defender to represent Burks. Shortly thereafter, on January 30, 1997, the public defender filed a notice of appeal on behalf of Burks.

The record reflects that Burks desired an appeal from the revocation of his probation. The record further reflects that his attorney, Mr. Webb, was aware of his desire to appeal, having filed a notice of appeal on November 1, 1996. However, Mr. Webb did not file a notice of appeal from the amended judgment.

Counsel is charged with knowledge of when a final order is entered in a case, and is responsible for filing a timely notice of appeal from the final judgment. Higgins v. State, 326 Ark. 1030, 936 S.W.2d 740 (1996). The failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal constitutes a denial of effective assistance of counsel and is good cause for granting a belated appeal. Blakely v. State, 279 Ark. 141, 649 S.W.2d 187 (1983); Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). As Mr. Webb failed to properly perfect the appeal, the motion for belated appeal is hereby granted. Deborah R. Sailings, Deputy Public Defender for the Sixth Judicial District, is appointed to represent Burks in this appeal and the record tendered on April 28, 1997, shall be lodged by the Clerk of the Supreme Court.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Robert CAPLE v. STATE of Arkansas, County of Van Buren
    CR 96-799
    945 S.W.2d 363
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      Mel A. Jackson, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Senior App. Advocate, for appellee.
   Per Curiam.

On May 18, 1995, Robert Caple was convicted of crimes in Van Burén County. Timely notices of appeal were filed on June 18, 1995, and on June 19, 1995. Four attorneys have served as Caple’s counsel in this cause. They requested and were granted continuance motions in order to perfect Caple’s appeal; nevertheless, the appeal transcript was not lodged in the case. Therefore, attorneys Steve Kirk, George Stephens, Ralph Blagg, and Mel A. Jackson, by per curiam order of February 17, 1997, were ordered to appear on March 3, 1997, to show cause why any one or all of them should not be held in contempt of court for failure to perfect the appeal in this case.

At the show-cause hearing, Mel A. Jackson accepted responsibility for his part; the other three attorneys pled not guilty, and requested a hearing. Thus, by per curiam order of this court, dated March 12, 1997, the Honorable Jack Holt, Jr., was appointed master to conduct a hearing and make findings of fact as to whether George Stephens, Steve Kirk, and Ralph Blagg had a meritorious defense to their failure to perfect the appeal of Caple’s convictions as prescribed by Ark. Sup. Ct. R. 4-3. It was determined that a substitute master was necessary, and, on March 24, 1997, Honorable Jack Lessenberry, was appointed to conduct the hearing and make findings of fact.

The hearing was conducted on April 21, 1997, at which time Mr. Stephens was present and represented by counsel, and Messrs. Kirk and Blagg appeared without counsel. After hearing testimony of witnesses and considering the evidence, the master made the following findings of fact:

Judge Karen Baker was the public defender in Van Burén County. She represented Caple when he was convicted. Judge Baker filed a notice of appeal on June 18, 1995. Shortly after-wards, Ms. Baker received notice that she would be appointed to fill the vacancy created by the untimely death of Judge Watson Villines.

Judge Baker worked as rapidly as she could completing two briefs which were due in the Court of Appeals, and notifying defendants and courts of the change which was to come about. Ms. Baker learned that Steve Kirk had also filed a notice of appeal on behalf of Caple. She telephoned Mr. Kirk’s office and talked with someone there on two occasions about the Caple matter. Ms. Baker conferred with the county judge and he agreed that she could assign to George Stephens her contract with Van Burén County.

Judge Baker took office on July 14, 1995. She did not recall receiving a copy of Sue Newbery’s letter to George Stephens dated March 12, 1996. (Kirk Ex. 2)

Attorney Steve Kirk was contacted by Caple after his conviction desiring to obtain a bond reduction and an appeal. A person on behalf of Caple paid Kirk a portion of the fee. Kirk filed a notice of appeal on June 19, 1995. On September 14, 1995, the time to file the appeal record was extended 120 days by order of Judge David L. Reynolds.

Kirk advised Caple that the court reporter required a deposit of $1,500 to prepare a transcript of the proceedings. A letter bearing a postmark of January 8, 1996 from Caple to Kirk stated that Caple had no means to pay the expense of the transcript and that he, Caple would proceed pro se.

Kirk received a copy of a letter dated March 12, 1996, from Sue Newbery, Criminal Justice Coordinator, to George Stephens stating that Caple had tendered a pro se pleading. The letter said parenthetically that Kirk had filed a notice of appeal, but that was ineffective. Ms. Newbery concluded that the responsibility of the appeal was with Stephens. (Kirk Ex. 2)

Based upon the letter, and Caple’s letter, Kirk believed that he had no further responsibility regarding the appeal.

Deborah Whillock is the court reporter for the Van Burén Circuit Court. She wrote to Kirk on June 26, 1995, to advise him of the approximate cost of the appeal transcript. She wrote a reminder letter to him on August 10, 1995.

Attorney George Stephens was assigned the contract of Karen Baker when she became judge and he became the Public Defender for Van Burén County. He said that he was not aware of the Caple appeal. Stephens remembers talking with Sue Newbery on the telephone about the Caple appeal, but denies having ever seen her letter to him dated March 12, 1996. Stephens resigned as public defender on April 9, 1996, twenty-eight days after the date of Newbery’s letter.

Attorney Ralph Blagg became the public defender on April 20, 1996, after the resignation of George Stephens. He received a telephone call from Sue Newbery, who he unintentionally identified as a member of the supreme court clerk’s staff. Ms. Newbery asked that he file a motion for rule on the clerk. As a favor or accommodation, Blagg directed that his deputy, Mel Jackson, prepare and file the motion. This was done on July 8, 1996. Later, the transcript was ordered from the court reporter.

The Van Burén County Judge decided to award the public defender contract to Bruce Bennett, terminating Blagg’s contract on December 31, 1996.

Even though he no longer was a deputy public defender, Jackson lodged the appeal transcript in January 1997. A motion to be relieved was filed.

Maurice B. Whillock is the County and Circuit Clerk of Van Burén County. The county judge approved a contract with Bruce Bennett, who became public defender on January 1, 1997.

Deputy Public Defender Mel Jackson filed a motion for rule on the clerk at the direction of Blagg.

On April 30, 1997, copies of the Report and Findings of Fact of Master were provided to the parties and their counsel. They were advised that, pursuant to Ark. R. Civ. P. 53(e)(2), they had twenty days in which to file objections. None has filed objections with this court.

Based upon the findings of fact, we conclude that Stephens, Blagg, and Jackson are in contempt for failing to comply with the directives of this court. Because of the rather unusual changes in offices, counsels’ respective shared responsibility in filing Caple’s record, and other mitigating circumstances, we impose a fine of only $100.00 each. Because Mr. Kirk’s notice of appeal was second and ineffective, and because the record reflects he had been otherwise relieved of any appellate responsibilities in this cause, he is not in contempt of this court.

We direct that a copy of this opinion be forwarded to the Committee on Professional Conduct. See Fellows v. State, 308 Ark. 258, 823 S.W.2d 893 (1992).

Corbin, J., dissents.

       The transcript was tendered on January 24, 1997, not lodged. The court granted Caple’s motion for rule on clerk on March 24, 1997, and Caple’s brief, by an extension, is due on July 2, 1997.


text:
    Christine M. JONES v. Jerry A. JONES
    97-212
    944 S.W.2d 121
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      McNutt Law Firm, by: Mona J. McNutt, for petitioner.

      Lueken Law Firm, by: Patty Lueken and Helen Rice Grinder, for respondent.
   Per Curiam.

The parties’ actions in this continuing custody battle have become repetitive and frivolous. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996) (Jones I); Jones v. Jones, 326 Ark. 828, 923 S.W.2d 810 (1996) (Jones II); Jones v. Jones, 327 Ark. 195, 938 S.W.2d 228 (1997) Jones III); Jones v. Jones, 328 Ark. 97, 940 S.W.2d 881 (1997) Jones IV). Although Ms. Jones requested sanctions against Dr. Jones in Jones III, we denied granting them, but did award her $8,000.00 in attorneys’ fees. Considering Dr. Jones’s and his counsel’s most recent actions, we are of the opinion that Dr. Jones and his counsel should be ordered to show cause why sanctions should not be imposed on them.

In Jones IV, Ms. Jones filed a petition for writ of prohibition, stating Dr. Jones was attempting to retry the same custody issue previously decided in Jones I. Because the chancellor indicated he might permit Dr. Jones to do so, Ms. Jones asked this court to declare that the chancery court was without jurisdiction to proceed in such a retrial. We denied Ms. Jones’s request, but in doing so, we handed down a per curiam opinion that clearly emphasized the parties’ custody dispute had been decided in Jones I, and instructed the chancellor that he should only consider facts indicating a material change in circumstances, arising since the last custody order. In the Jones IV opinion, we made it clear that, while we were holding that the chancery court did have jurisdiction of the parties’ case, we were not countenancing relitigation of the custody issue decided in Jones I. Some examples of this court’s instructions and admonitions to the parties and counsel in Jones IV are noteworthy and read as follows:

While we deny Ms. Jones’s petition, we are obliged to underscore certain matters contained in this court’s previous decision handed down on November 6, 1996, especially since this court had to take the extraordinary step to enforce its mandate by a subsequent per curiam. That per curiam was necessary because, for whatever reason, the chancery court failed to reinstate the parties’ original custody order. Because we believed that this court’s opinion and instructions were perfectly clear, we issued a simple “forthwith” order directing the chancery court’s compliance. The chancery court then complied.
Because of the continuing controversies involving this matter, we reiterate the well-established rule that when this court remands a case to chancery court with directions, the chancery court has no power to enter any decree except that directed, and it has no power to change or extend this court’s mandate. See Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). In this same vein, we remind the parties that, in the appeal decided November 4, 1996, this court conducted a de novo review of the chancellor’s custody decision, and in doing so, the court specifically stated that child custody is determined by what is in the “best interests” of the child, and it is not altered absent a material change in circumstances. In deciding the child custody issue, this court reviewed in lengthy detail the evidence offered at trial, including Ms. Jones’s move to Little Rock, Dr. Jones’s remarriage, and the child’s emotional needs. In considering the child’s emotional needs, the opinion related the competing views and opinions of four expert witnesses, concerning Ms. Jones’s mental and emotional stability. After a full discussion of the parties’ respective evidence, this court concluded [in Jones I\ as follows:
In sum, when viewing together the repeated entry of ex parte orders, the erroneous shift of the burden to Christine Jones to prove her emotional stability, and the chancellor’s faulty reliance on her move to Little Rock and Dr. Jones’s remarriage as material changes in circumstances, we must conclude that the chancellor’s decision to change custody to Dr. Jones was clearly erroneous.
Simply put, this court [in Jones I¡ held the chancellor was clearly wrong in ruling Dr. Jones had proven that a material change of circumstances existed, and a transfer in custody was warranted.
Having given the foregoing salutary statements, we remain of the opinion that evidence regarding Dr. Jones’s petition for modification must first be appropriately addressed below. In deciding the modification question, we emphasize that the chancellor should only consider Jacts arising since the last custody order, or evidence that has not been previously presented to the chancellor. See Jones, 326 Ark. at 491; Stamps v. Rowlins, 297 Ark. 370, 761 S.W.2d 933 (1988). We deny Ms. Jones’s petition. (Emphasis added.)

Despite this court’s patience and best efforts to explain that Dr. Jones and counsel cannot retry the custody issue decided in Jones I, Jones’s counsel continue their argument that this court has never decided the substantive issue of custody, and this court in Jones IV was wrong in declaring that it had. Considering this court’s clear decision in Jones IV, it is this last argument offered by counsel that appears frivolous and without legal basis.

This court has allowed Dr. Jones and his counsel considerable latitude in presenting and arguing their case, but counsel’s past actions and especially the present argument set out in Dr. Jones’s petition exhibit a clear reluctance to comply with this court’s decisions and mandates, and instead offer what appear to be frivolous and argumentative assertions. Accordingly, we feel obliged to invoke Rule 11 of our Arkansas Rules of Appellate Procedure — Civil and in doing so, order Dr. Jones and his counsel to show cause why sanctions should not be imposed against them. Dr. Jones’s and counsels’ written response(s) shall be filed with the clerk of this court within ten days of this per curiam.

        We note that, while the concurring opinion suggests this court did not consider the parties’ child’s emotional needs, the court thoroughly dealt with this 'issue in its original opinion under the caption "Cameron’s emotional needs.” See Jones, 326 Ark. at 491, 931 S.W.2d at 772. (Emphasis added.)


text:
    Earl SKILES v. STATE of Arkansas
    CR 97-515
    945 S.W.2d 368
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      Keith Watkins, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Per Curiam.

Earl Skiles, by his attorney, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and that it was no fault of the appellant.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

The present motion for rule on the clerk is denied.


author:
W.H. “Dub” Arnold, Chief Justice.
      Tom Glaze, Justice,

text:
    TB of BLYTHEVILLE, INC., and Interested Underwriters at Lloyd’s, London, Signatory Policy No. 1772 v. LITTLE ROCK SIGN & EMBLEM, INC.
    96-562
    946 S.W.2d 930
    Supreme Court of Arkansas
    Opinion delivered June 2, 1997

      Reid, Burge, Prevallet & Coleman, by: Robert L. Coleman, for appellants.

      Rieves & Mayton, by: Martin W. Bowen, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

This appeal involves an action brought by TB of Blytheville, Inc. (Taco Bell), seeking damages against Little Rock Sign & Emblem (LR Sign) for two allegedly defective signs sold by LR Sign. Taco Bell initiated this action under the theories of negligence, breach of warranty, and strict product liability. A trial was held in which a jury rendered a verdict for Taco Bell for $3,892.19. Taco Bell appeals asserting several trial court errors and requests a new trial. We agree that the trial court erred in several of its rulings and therefore, we vacate judgment and remand this action for a new trial.

In October 1991, Taco Bell purchased a one-hundred-foot sign from LR Sign that was installed on its restaurant premises. Taco Bell paid $28,269.36 for the sign. On March 18, 1992, the sign fell to the ground, and it was destroyed.

Taco Bell contacted its insurer Interested Underwriter’s at Lloyds, London (Lloyd’s). Lloyd’s then began an investigation which was joined by LR Sign’s insurer, Travelers, to determine the reason for the sign’s falling. Lloyd’s hired an adjusting firm, Gay & Taylor. Lloyd’s and Travelers’ jointly hired a metallurgist to determine the cause of the sign’s falling.

Approximately six weeks after the first sign falling, LR Sign installed a second sign on the premises. An invoice for $25,086.85 for this sign was sent to Gay & Taylor. The invoice was resubmitted to Edmondson Management, Inc., the financial management firm for Taco Bell, and it was paid. Around this time, Lloyd’s issued a check to Taco Bell as an insurance payment for the damage of the first sign for $24,086.85, the cost of the second sign, minus Taco Bell’s $1000 deductible.

In March of 1993 during a wind storm, the second sign began to lean and shake; Taco Bell hired Hinson Display & Sign Service of Blytheville to immediately make temporary repairs so that the sign would not fall. These repairs cost $1,068.19. Hinson determined that the post of the sign was not sturdy enough to support the sign’s height, so they permanently lowered the sign to a height of sixty feet to ensure that it would not fall. The costs of the permanent repairs were $5,281.35.

Taco Bell initiated suit against LR Sign seeking damages sustained in the failure of both the first and second signs. Taco Bell sought damages which included reimbursement for the $1000 for its deductible and for the expenditures for the temporary and permanent repairs of the second sign, and also, for other damages to its property caused when the first sign fell. Additionally, Taco Bell sought repayment of the $24,086.85 on behalf of Lloyd’s for the claim it paid arising out of the falling of the first sign.

A jury trial was held. The jury returned a verdict awarding Taco Bell the sum of $3,892.19 and dismissing Lloyd’s claim. Taco Bell and Lloyd’s appeal various rulings of the trial court and request a new trial.

Taco Bell asserts six points of error on appeal. First, Taco Bell asserts that the trial court erred in ruling that the common law voluntary-payment rule governs the transaction for the second sign and bars recovery absent instances of fraud or duress. Second, Taco Bell contends that the trial court erred in submitting an interrogatory to the jury which stated that Mr. Glenn Norwood, an employee of the adjusting firm Gay & Taylor was an agent of Lloyd’s of London. Third, Taco Bell asserts error in the trial court’s ruling that Lloyd’s was the real party in interest. Fourth, Taco Bell contends that the trial court erred in excluding evidence regarding the costs of permanent repairs to the second sign. Fifth, Taco Bell asserts error in the trial court’s failure to award pre- and postjudgment interest. And lastly, Taco Bell appeals the denial of its motion for a new trial because the jury’s verdict was against the undisputed evidence.

I. Voluntary Payment Rule

The trial court ruled that Taco Bell was barred from recovery for the amount paid for the second sign because of the common-law voluntary-payment rule. Appellant requests that we find that the voluntary-payment rule has been displaced by the enactment of the Uniform Commercial Code and is not controlling in instances involving the sale of goods.

In Boswell v. Gillett, 226 Ark. 935, 940, 295 S.W.2d 758, (1956), we applied the common-law voluntary-payment rule and noted, “When one pays money on demand that is not legally enforceable, the payment is deemed voluntary. Absent fraud, duress, mistake of fact, coercion, or extortion, voluntary payments cannot be recovered.” According to the UCC, common-law principles of law and equity are given full effect unless displaced by particular provisions of the UCC. Ark. Code Ann. § 4-1-103 (Repl. 1991) (emphasis supplied). While the UCC has given buyers and sellers specific remedies for breach of sales contracts and the warranties therein, we find no support for the contention that the common-law voluntary-payment rule is inconsistent with the application of the UCC; therefore, the voluntary-payment rule has not been displaced by the enactment of the UCC.

Despite the fact that the voluntary-payment rule can apply in situations involving a sale of goods, it is not applicable to the facts of this case. It is obvious that the UCC apphes to the contract for the sale of the first sign; likewise, the sale of the second sign also was a transaction governed by the UCC. As the trial court found, the purchase of the second sign was an independent transaction and a second contract between Little Rock Sign and Taco Bell. The contract for the second sign was evidenced by the invoice that required Taco Bell to pay $25,086.85 for the “new unit.” In testimony at trial, the second sign was referred to as a “new” unit.

Appellee contends that the sale of the second sign was merely a repair of the first faulty sign that is not governed by the UCC. The UCC applies to original goods; therefore, if the second sign is a repair, then the UCC does not apply. We do not think that the purchase of the second sign was a “repair.”

The definition of “repair” from Black’s Law Dictionary is “to mend, remedy, restore, renovate, to restore to a sound or good state after decay, injury, dilapidation, or partial destruction.” It is our interpretation that the word repair “contemplates an existing structure . . . which has become imperfect and means ... to restore the existing structure to a condition in which it originally existed, or as near as can be attained.” Black’s Law Dictionary 1298 (6th ed. 1990), citing Childers v. Speer, 63 Ga. App. 848, 12 S.E.2d 439, 440 (1940). See also, Kuras v. Kope, 533 A.2d 1202, 1209 (Conn. 1987); Wroblewski v. Grand Trunk W. Ry. Co., 276 N.E.2d 567, 574 (Ind. 1971).

When the first sign fell, it was completely destroyed; only a small portion of the post remained. There was no possible way to repair that sign. At that time, Taco Bell had the option to pursue an action for damages based upon the insufficiency of that sign. In fact, during this time both parties’ insurance carriers became involved and were trying to determine fault. At the moment the sign fell, Taco Bell was faced with the possibility of lost profits due to the fact that there was no sign to advertise its presence in that location. Despite the possibility of pursuing an action regarding the first sign, Taco Bell mitigated its damages by procuring a second sign. This sign was not purchased as a repair to the first sign but as a new sign that was needed to sustain business. The fact that the first sign fell gave rise to the need for the second sign; however, the purchase of the second sign was not a subsidiary action to the first contract but a second, independent contract between the parties.

Because the contract for the second sign was an independent contract for the sale of goods, that transaction is also governed by the UCC. Therefore, upon the execution of the sales contract, all the duties of buyers and sellers under the UCC governed the parties. Upon acceptance of the second sign, Taco Bell had a duty under the UCC to pay LR Sign pursuant to the contract. According to Ark. Code Ann. § 4-2-607(1) (1991), the effect of Taco Bell’s acceptance of the sign is the obligation to pay “the contract rate for any goods accepted.” This legal duty to pay renders the voluntary-payment rule inapplicable to the second contract. In order for the voluntary-payment rule to apply, Taco Bell must not have had such a duty. Therefore, the trial court erred in holding that the voluntary-payment rule applied.

II. Agency of Claims Adjuster

Appellant also contends that the trial court erred in submitting an interrogatory to the jury regarding the voluntary-payment rule, which states: “Glenn Norwood was acting within the scope of his authority as an agent of Interested Underwriter’s at Lloyd’s, London, and while acting within the scope of his authority as an agent . . . had prior knowledge of (and) (or) consented to the payment. ...”

-We agree that there was error in submitting this interrogatory. Foremost, this was error because the voluntary-payment rule is not applicable to the case before us. Additionally, the record does not contain any evidence establishing an agency relationship between Mr. Glenn Norwood, an employee of Gay & Taylor, and Interested Underwriter’s at Lloyd’s. There is nothing in the record to establish that an agency relationship existed between Mr. Norwood and Lloyd’s.

III. Real Party in Interest

On the morning of the trial, the trial court ruled that Lloyd’s was the real party in interest, not Taco Bell. Appellant argues that the trial court erred in this ruling. We agree.

Rule 17 of the Arkansas Rules of Civil Procedure provides that only a real party in interest may bring a cause of action. That party is generally considered the person “who can discharge the claim on which suit is brought, and not necessarily the person ultimately entitled to the benefit of recovery.” Childs v. Philpot, 253 Ark. 589, 487 S.W.2d 637 (1972).

In Farm Bureau Ins. Co. v. Case Corp., 317 Ark. 467, 878 S.W.2d 741 (1994), we held that the general rule is that where an insurance company has only partially reimbursed an insured for his loss, the insured is the real party in interest and can maintain the action in his own name for the complete amount of his loss. See also McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S.W.2d 566 (1950). Partial reimbursement includes instances when an insured has not been reimbursed for the amount of his deductible. This court has held that where the insured has a deductible interest, he is the real party in interest and the action must be brought in his name for his own benefit. Page v. Scott, 263 Ark. 684, 686, 567 S.W.2d 101 (1978); Washington Fire & Marine Ins. Co. v. Hammett, 237 Ark. 954, 377 S.W.2d 811 (1964); see also Thompson v. Brown, 5 Ark. App. 111, 633 S.W.2d 382 (1982). The insured stands as trustee to the insurer as to any amount recovered; the insurer is not a necessary party. Id.

In this case, it is undisputed that Taco Bell holds, at the very least, a deductible interest in the litigation. Following prior ruhngs of this court, Taco Bell is the real party in interest.

IV. Trial Court Rulings on Evidence

Appellant contends that the trial court erred in excluding evidence related to the costs of making permanent repairs to the second sign. Relevancy of evidence is within the trial court’s sound discretion, subject to reversal only if an abuse of discretion is demonstrated. Potlatch Corp. v. Missouri Pac. R.R. Co., 321 Ark. 314, 902 S.W.2d 217 (1995); Turner v. Lamitina, 297 Ark. 361, 761 S.W.2d 929 (1988).

We give deference to the judgment of the trial court in matters regarding the admissibility of evidence; however, in this instance, we think there was an abuse of discretion in excluding the evidence relating to the permanent repair of the second sign. As we have discussed supra, there were two separate contracts between the parties. Taco Bell is entitled to have a jury determine whether it should recover damages based upon the alleged defects in the first sign that fell; additionally, Taco Bell should be allowed to submit to the jury evidence regarding whether the second sign was faulty, and an important component of such evidence includes the amount of claimed damages. Costs expended to permanently repair the second sign are relevant to the jury’s determination of damages in these issues.

V. Pre- and Postjudgment Interest

Prejudgment interest is compensation for recoverable damages wrongfully withheld from the time of the loss until judgment. This interest must be allowed for any injury where, at the time of loss, damages are immediately ascertainable with reasonable certainty. Where prejudgment interest is collectible at all, the injured party is always entitled to it as a matter of law. Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981). We stated in Lovell v. Marianna Federal Savings & Loan Association, 267 Ark. 164, 589 S.W.2d 577 (1979): “The test in prejudgment interest cases is whether there is a method of determination of the value of the property at the time of the injury. If such method exists prejudgment interest should be allowed.”

We believe that the amount of property damage was ascertainable from the date of the sign falling and prejudgment interest should have been awarded in this case.

Postjudgment interest is governed by Ark. Code Ann. § 16-65-114(a) (1987), which states:

Interest on any judgment entered by any court or magistrate on any contract shall bear interest at the rate provided by the contract or ten percent (10%) per annum, whichever is greater, and on any other judgment ten percent (10%) per annum, but not more than the maximum rate permitted by the Arkansas Constitution ....

Postjudgment interest is to be awarded on the total amount of damages, including prejudgment interest, to compensate the recovering party for the loss of the use of money adjudged to be his. Hopper v. Denham, 281 Ark. 84, 661 S.W.2d 379 (1983). The purpose of awarding interest would be frustrated if a party were not compensated for the loss of use of ah of his money, both before and after judgment. The award of interest is necessary to fully compensate an injured party. Chambers v. Manning, 315 Ark. 369, 868 S.W.2d 64 (1993) See also, Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981).

The trial court erred by not granting prejudgment and postjudgment interest. Upon remand, interest should be awarded upon any jury determination of damages.

VI. Motion for New Trial

Taco Bell contends that the trial court erred in denying its motion for a new trial. This issue will not be addressed because it is moot in view of the discussion supra of errors which warrant the remand for a new trial.

For the foregoing reasons, we reverse and remand this action for a new trial consistent with this opinion.

Reversed and remanded.

Newbern, Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. First, Taco Bell, as I understand the record, argued that, if Glenn Norwood was Interested Underwriter’s agent, a fact issue existed whereby the jury could find (and did) that Norwood (and thereby Interest Underwriters) consented to Taco Bell’s voluntary payment for the second sign. Thus, I fail to see how this court can reverse based upon Ark. Code Ann. § 4-2-607(1) (Repl. 1991). In other words, if Taco Bell’s second sign is a repair, not an original good, the Uniform Commercial Code (§ 4-2-607) does not apply, and the trial court’s ruling was correct that the common-law voluntary-payment rule bars Taco Bell’s recovery.

While the majority attempts to recharacterize Taco Bell’s sign replacement as resulting from Little Rock Sign’s sale to Taco Bell of a new sign or original good governed by Ark. Code Ann. § 4-2-607(1), the evidence decidedly supports the view that the second sign resulted from repair work. In fact, the trial court, without objection as I read the record, instructed the jury that to assess Taco Bell’s damages, it must fix the amount of money which would reasonably and fairly compensate Taco Bell for the reasonable expense of necessary repairs to the area surrounding the fallen sign and expenses for necessary repairs to the second sign. In addition, by interrogatory number one, the jury was asked to determine if Norwood acted within the scope of his authority for Interested Underwriters and if Interested Underwriters consented to the payment of $25,086.85 for the second sign. The jury answered yes. Examples of the evidence supporting the jury’s decision are as follows:

• Láveme Lovette, Little Rock Sign’s officer manager, averred that, on March 18, 1992, the sign and support post broke and fell. She said Taco Bell requested Little Rock Sign repair the broken sign, and, as a result, Little Rock Sign repaired the sign and post. She further averred that Little Rock Sign sent a bill in the amount of $26,085.85 for the repair work it had performed.

• Glenn Norwood, General Adjuster, testified he saw Little Rock Sign’s itemization for what the sign replacement would be and determined the cost was in line for what a sign replacement should be. Norwood said he was advised that a sign had been put back in place, and he knew that Little Rock Sign was the one that put it back in place. He further said that he told Little Rock Sign the person they needed to bill was the person who had hired them to do the repairs. Norwood identified a proof of loss statement that the full cost of repair or replacement was $25,086.85.

• Darrell Glover, owner of Little Rock Sign, testified and identified the invoice for reinstallation of the damaged sign and said that immediately after the sign was damaged, “ We started repairing and building a new sign.” He further stated he replaced the parts that needed replaced and the amount of the bill was for all the work done in removing the damaged parts.

• Mark Turner, General Manager of Edmondson Management, said, “We told Glover that the sign fell and we wanted him to put the sign back up for us,” and he did that. According to Turner’s notes, the re-erection of the sign was completed on May 1, 1992. Turner later expressed that he had done enough for Glover by paying him twice for a sign that never was put up right. (Emphasis added.)

While other like repair evidence is dispersed throughout the record, the foregoing is sufficient to support the trial court’s ruling (and jury’s decision) that Taco Bell’s second sign was the result of repairs performed by Little Rock Sign, making the voluntary-payment rule, not the UCC, applicable to the facts of this case. That being so, I respectfully dissent and would affirm the trial court’s holding that the voluntary-payment rule applied. In sum, because the jury in considering interrogatory number one found that (1) Norwood was Interested Underwriters’ agent, and (2) Norwood acted within the scope of such authority when he consented to Taco Bell’s voluntary payment to Little Rock Sign for the repair of the second sign, this court, on review, is obliged to affirm those decisions.

Newbern, J., joins this dissent.

       The trial court ruling was limited to barring Taco Bell’s claim for its $1000 deductible amount. The trial court ruling that Lloyd’s was the real party in interest allowed Lloyd’s to pursue its claim for the additional $24,086.85 paid for the second sign.

       In a pretrial motion for partial summary judgment, the trial court ruled the Uniform Commercial Code provisions did not apply to the facts of this case, and as the trial developed, evidence was introduced without objection to support the trial court’s and later the jury’s decisions.


author: David Newbern, Justice.

text:
    Roger BRADFORD v. STATE of Arkansas
    CR 96-172
    947 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered June 2, 1997

      Tim R. Morris, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Senior Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Roger Bradford was arrested on January 15, 1992, and found to be in possession of almost 114 grams of rock cocaine as well as some cocaine in powdered form. Mr. Bradford was not tried until June 22, 1995. He was convicted of possession of a controlled substance with intent to deliver, Ark. Code Ann. § 5-64-401 (a)(ii) (Supp. 1995), and sentenced to life imprisonment.

Arkansas R. Crim. P. 28.2 requires that one who has been continuously held in custody after arrest be tried within twelve months. Rule 28.3 provides excepted periods of time in calculating the twelve-month period. Mr. Bradford concedes that his acts, including motions for continuances having to do with changing counsel (two of whom he attacked physically, one in the courtroom in the jury’s presence) and an escape, resulted in sufficient excepted periods so as to bring the time charged to the State within twelve months. He argues, however, that none of the time between his arrest and June 28, 1994, should have been charged to him because until that date no information or amended information against him bore a clerk’s file mark.

Mr. Bradford also argues that he was improperly restrained at the outset of the trial, that the prosecutor referred improperly to his failure to testify, and that the Trial Court should have recused from the case. We conclude that the lack of a file mark on the information had no impact on the decision whether Mr. Bradford had been accorded a speedy trial pursuant to Rule 28, and we find no merit in the other points.

1. Speedy trial

During oral argument before us, Mr. Bradford’s counsel, who was appointed to represent him on appeal and did not represent him at the trial, explained his emphasis on the lack of a file mark on the information and amended information which appeared in the file prior to June 28, 1994. He aimed to convince us that none of the time which would ordinarily be charged to Mr. Bradford pursuant to Rule 28.3 should count against him because he had not been properly charged. His brief cites cases in which we have held that an indictment must be brought into open court, McKenzie v. State, 24 Ark. 636 (1867), and it is the return of the indictment that gives the court jurisdiction. Shinn v. State, 93 Ark. 290 (1910). The suggested analogue is that an information that may be in the file but not marked as having been filed on a certain date does not give a court jurisdiction to attribute to a defendant responsibility for the passage of time in considering a speedy-trial motion. No authority directly in support of that proposition is cited, and we have found none.

While we appreciate the ingenuity of counsel’s argument, we cannot agree with it. Mr. Bradford and his trial counsel were aware of the information charging Mr. Bradford with possession of cocaine with the intent to deliver. Indeed, some six days after he was arrested Mr. Bradford entered a plea of not guilty to that charge. As noted above, Rule 28.2 provides that the twelvemonth period runs from the date of arrest for a person who has been held in custody, and not from the date of the filing of the information. Whether or not the Trial Court had jurisdiction of Mr. Bradford at the time his actions were delaying the trial, it clearly had jurisdiction of him when his speedy-trial motion was denied. Absent authority to the contrary, we hold no error occurred.

2. Physical restraint

On the morning of his trial, Mr. Bradford launched a physical attack upon his attorney in the courtroom. After the two were separated, Mr. Bradford asked to address the Court. The Judge denied his request, but Mr. Bradford repeated it more than once. After two warnings, the bailiff was ordered to place tape upon Mr. Bradford’s mouth to restrain him from speaking. It was removed after voir dire was completed. Counsel moved to quash the jury panel on the ground that the jurors were tainted by having witnessed the incident. The motion was denied. The jurors were admonished to disregard the incident, and they were told that it had nothing to do with the guilt or innocence of the accused.

Restraint of a defendant is not prejudicial per se. The decision lies within the discretion of the Trial Court. Stanley v. State, 324 Ark. 310, 920 S.W.2d 835 (1996). See Illinois v. Allen, 397 U.S. 337 (1970). In this case, the Trial Court did no more than was appropriate to restrain the defendant, and there clearly was no abuse of discretion.

3. Prosecutor’s remark

In his closing argument to the jury, the prosecutor stated there was “no dispute” that Mr. Bradford was found with the drugs in his possession. Mr. Bradford’s counsel sought a mistrial on the ground that the remark called the jury’s attention to the fact that Mr. Bradford had exercised his right not to testify.

Mistrial was not justified. A prosecutor may refer to the undisputed nature of testimony when the State’s evidence could have been disputed by evidence other than the testimony of the accused. Richmond v. State, 320 Ark. 566, 899 S.W.2d 64 (1995); Beebe v. State, 301 Ark. 430, 784 S.W.2d 765 (1990).

4. Recusal

Mr. Bradford wrote a letter to the Trial Court in which he admitted to being in possession of cocaine but denied selling it. Mr. Bradford’s counsel moved the Trial Court to recuse on the ground that the Court would be prejudiced by the information that the accused had possessed the drug. The motion was denied.

The matter of recusal on the ground of alleged bias is left within the “conscience” or discretion of the judge in question. Noland v. Noland, 326 Ark. 617, 932 S.W.2d 341 (1996). The party seeking recusal must demonstrate the alleged bias. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). We hold no bias has been demonstrated here, and we have no reason to hold that recusal was required.

5. Rule 4-3(h) review

The record has been reviewed for errors resulting from rulings prejudicial to Mr. Bradford to which no reference has been made in the briefs, and no such ridings have been found.

Affirmed.


text:
    MATSON, INC. v. LAMB & ASSOCIATES PACKAGING, Inc., and Jerry Don LAMB
    96-606
    947 S.W.2d 324
    Supreme Court of Arkansas
    Opinion delivered June 2, 1997

      Jack East III, for appellant.

      David M. Hargis, for appellee.
   David Newbern, Justice.

Lamb & Associates Packaging, Inc., and Jerry Don Lamb (referred to collectively as Lamb) entered an agreement with Matson, Inc. (Matson), pursuant to which Matson constructed a commercial building for Lamb in exchange for $789,543. The construction contract contained a clause requiring arbitration of disputes relating to performance or breach of the contract. Matson purchased a performance bond from United States Fidelity and Guarantee Co. (USF&G). The bond agreement incorporated the construction contract by reference. Lamb sued USF&G on the bond, alleging defects in the building and thus breach of the contract. Matson sought to intervene to protect its interests, including enforcement of the arbitration clause.

The Trial Court allowed Matson to intervene, but only to the extent of protecting its rights in the event a judgment were entered against USF&G which might then claim against Matson. Matson appeals from the order and claims that intervention should have been allowed for the purpose of protecting all its interests in the contract, including its right to arbitration. An order denying intervention is appealable. Ark. R. App. P. 2(a); Cupples Farms Partnership v. Forrest City Prod. Credit Ass’n, 310 Ark. 597, 839 S.W.2d 187 (1992). We reverse and remand because intervention should have been allowed without the limitation imposed by the Trial Court.

Matson asserts its right to unlimited intervention pursuant to Ark. R. Civ. P. 24(a) and its right to arbitration on the ground that Lamb agreed to binding arbitration in the construction contract which was incorporated in the bond upon which Lamb has brought suit. Matson also argues it is entitled to arbitration in accordance with the Federal Arbitration Act, 9 U.S.C. §§ 1 through 307 (1994). Lamb asserts that the bond is a separate agreement giving rise to a separate obligation on the part of USF&G. Lamb argues it is entitled to a jury trial of its claim against USF&G and contends that the bond is an insurance agreement which, according to Ark. Code Ann. § 16-108-201 (b) (Supp. 1995), is not subject to arbitration.

As we hold that Matson is entitled to unlimited intervention in accordance with Rule 24(a), and that § 16-108-201 (b) does not apply to prevent arbitration, we need not address the federal law.

i. Intervention

In his letter opinion the Trial Court wrote the following:

It is true that the Matson [construction] contract was referred to and incorporated by reference into the performance bond, but the incorporation was not for the purpose of pulling in the arbitration clause found in the Matson contract. To find that the arbitration clause was incorporated would render the performance bond meaningless. Rather, the incorporation of the Matson contract was for the purpose of defining the terms of USF&G’s obligations under the performance bond. * * * This Court believes that to allow Matson to intervene for the purpose of demanding arbitration would deny Plaintiff the benefits of the performance bond and would allow USF&G to simply sit by and refuse to perform one of its two obligations that it signed its name to perform.

Ark. R. Civ. P. 24(a) states:

Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Thus, three requirements must be met for intervention as a matter of right: (1) a recognized interest in the subject matter of the primary litigation; (2) an interest that might be impaired by the disposition of the suit; and (3) an interest not adequately represented by existing parties. Pearson v. First Nat’l Bank, 325 Ark. 127, 924 S.W.2d 460 (1996); Billabong Prods., Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983).

Lamb does not dispute the existence of Matson’s interest in the subject matter or the possibility that Matson’s interest might be impaired. Lamb contends, however, that Matson’s interest is adequately represented. The burden of persuasion to demonstrate adequacy of representation falls on the party opposing intervention. SEC v. Dresser Indus., Inc., 628 F.2d 1368 (C.A.D.C. 1980), cert. denied, 449 U.S. 993 (1980). Liz Claiborne, Inc. v. Mademoiselle Knitware, Inc., 1996 WL 346352 (S.D.N.Y.); CBS, Inc. v. Snyder, 136 F.R.D. 364 (S.D.N.Y. 1991). See also Wright, Miller, and Kane, Federal Practice and Procedure, Civil 2d § 1909 (1986).

An interest of a litigant is adequately represented when it is identical to, or not significantly different from, that of the proposed intervenor. National Enterprises, Inc. v. Union Planters Nat’l Bank, 322 Ark. 590, 910 S.W.2d 691 (1995). A party’s interest in enforcing arbitration rights has been held to be a significant factor in determining whether to allow intervention as of right pursuant to the federal rule, which is identical to our Rule 24(a). See CBS, Inc. v. Snyder, supra.

Even though USF&G and Matson are presently represented in this case by one attorney, Lamb has failed to show that USF&G’s interest is identical to or not significantly different from Matson’s. Although USF&G and Matson may have the same interest in disputing Lamb’s claim of breach of contract at this stage of the proceedings, it is apparent that their interests would diverge if Lamb were able to demonstrate that Matson breached the construction contract. To recover under the bond, Lamb must show that Matson has not performed or has not properly performed. It is ultimately the conduct of Matson in performance or failure to perform the construction contract which is at issue, and that is a matter Lamb agreed to arbitrate. As USF&G has a right to indemnity from Matson in the event Lamb recovers against USF&G, it is clear that USF&G may not have the same interest in arbitration that Matson does at this stage of the proceeding. Mat-son should have been allowed to intervene to protect its right to arbitration.

2. Arbitration

a. Contract interpretation

The performance bond states, “Contractor [Matson] has by written agreement dated October 31, 1991, entered into a contract with Owner [Lamb] for a new manufacturing building . . . which contract is by reference made a part hereof, and is hereinafter referred to as the Contract.” The bond then provides that “Any suit under this bond must be instituted before the expiration of two (2) years from the date on which final payment under the Contract falls due.”

Matson contends that the Trial Court should compel arbitration in accordance with the terms of the construction contract because that contract was specifically incorporated into the performance bond. Lamb submits that the arbitration clause is inapplicable because the performance bond specifically provides for the commencement of any “suit” within two years of the completion of the contract.

Initially, we note that other jurisdictions have not hesitated to enforce arbitration agreements incorporated by reference in performance bonds. See Commercial Union Ins. Co. v. Gilbane Bldg. Co., 992 F.2d 386 (1st Cir. 1993). See also Fireman’s Ins. Co. of Newark New Jersey v. Edgewater Bean Owner’s Assoc., Inc, 1996 WL 509270 (N.D. Fla.); City of Piqua v. Ohio Farmers Ins. Co., 617 N.E.2d 780 (Ohio App. 2 Dist. 1992). In our cases of Fausett Builders, Inc. v. Globe Indemnity Co., 220 Ark. 301, 247 S.W.2d 469 (1952), and American Ins. Co. v. Cazort, 316 Ark 314, 871 S.W.2d 575 (1994), we find support for incorporation and enforcement of arbitration agreements in suretyship agreements.

In Fausett Builders, Inc. v. Globe Indemnity Co., supra, we discussed the contractual relationship between surety and principal, quoting Stearns Law of Suretyship, Fifth Edition, pages 1, 13, 14 and 262: “The terms of the contract of which the surety promises performance must be read into his own contract. The principal’s contract and the bond or undertaking of the surety are to be construed together as one instrument.”

In American Ins. Co. v. Cazort, supra, Mr. Cazort opened a securities brokerage account through NAP Financial Corporation with Marc Berman, who was an employee of MJB Associates, Inc. Mr. Cazort signed an asset-management agreement with Mr. Berman and MJB, a letter of transmittal with NAP, and an asset-management agreement with First Southwest Company. Each of those documents contained a clause by which Mr. Cazort agreed to arbitrate all controversies between himself and NAP, Berman, and MJB.

American Insurance Company, the appellant, filed a corporate bond with the Arkansas Securities Department in which it agreed to be “liable to any and all persons who may suffer loss by reason of [NAP’s or Berman’s] failure to comply with the law of securities transactions.”

Mr. Cazort sued NAP, Mr. Berman, and American Insurance Co. NAP and Mr. Berman moved to compel arbitration and were voluntarily dismissed by Mr. Cazort from the litigation. American Insurance Co.’s motion to compel was denied.

On appeal, one of the issues was whether American could compel arbitration as Mr. Cazort did not sign an arbitration agreement with American Insurance Co. We held that even though the Federal Arbitration Act applied to the dispute because it involved interstate commerce, our state law contract principles determined whether Mr. Cazort was bound by the arbitration clause in the contract. In holding that Mr. Cazort was subject to the arbitration clause, we said:

Cazort’s allegation, in part, is that NAP and Berman breached their contract with him, and they are liable for that breach of contract. He relies on the contract for his breach of contract claim, but, at the same time, seeks to circumvent the arbitration provision of the same contract by dismissing his claims against the principals NAP and Berman. ... If this procedure were to be allowed, NAP and Berman would be denied the benefit of their arbitration agreement.

316 Ark. at 321-22, 871 S.W.2d at 579.

Like Mr. Cazort, Lamb is relying on the construction contract to prove its breach of contract claim but seeking to avoid the arbitration provision contained in that same contract. Further, unlike Mr. Cazort, Mr. Lamb signed the underlying contract containing the arbitration clause. We hold that Lamb is bound by the arbitration provision incorporated by reference in the performance bond.

b. Arkansas Arbitration Act

Section 16-108-201 is entitled “Agreement to arbitrate — Application” and provides:

(a) A written agreement to submit any existing controversy to arbitration arising between the parties bound by the terms of the writing is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.
(b) A written provision to submit to arbitration any controversy thereafter arising between the parties bound by the terms of the writing is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract; provided, that this subsection shall have no application to personal injury or tort matters, employer-employee disputes, nor to any insured or beneficiary under any insurance policy or annuity contract. [Emphasis added.]

Lamb contends that the Arkansas Insurance Code, particularly the provisions found in Ark. Code Ann. §§ 23-60-102 and 23-60-106 (1987), make it clear that a surety bond is a form of insurance. We concur in that contention to the extent of recognizing that companies offering surety bonds come within the regulatory provisions of the Code. We do not, however, agree that a surety bond is an “insurance policy” as contemplated by the Arbitration Act and § 16-108-201 (b).

In Fausett Builders v. Globe Indemnity Co., supra, we stated that suretyship may be defined as a contractual relation whereby one person engages to be answerable for the debt or default of another. In that case, we explained the concept of suretyship, by quoting the following language from Hall v. Equitable Surety Company, 126 Ark. 535, 191 S.W. 32 (1917): “Where the contract takes the form of ordinary suretyship, ‘the agreement of the surety is that he will do the thing which the principal has undertaken.’”

Lamb has not been insured against loss; rather, it has been assured performance of the contract with Matson. The surety bond on which Lamb has brought suit incorporates an agreement to the effect that questions of breach and performance are subject to arbitration. The Arkansas Arbitration Act does not prohibit the enforcement of that provision.

In conclusion, we understand the Trial Court’s remark that if Lamb is required to arbitrate the bond becomes meaningless, but we do not necessarily agree with it. That statement takes no account of the possibility that a remedy may remain against USF&G if it is determined through arbitration that Matson has not performed or has not properly performed the contract. We do not decide that issue here. Of course, it is equally logical to say that, if Lamb is allowed to sue USF&G with respect to whether Matson has performed, the arbitration clause in the construction contract becomes meaningless. Our view is that, at least at this juncture in the proceedings, there remains the possibility that effect may be given to both the arbitration clause and the performance bond.

We hold that Matson is entitled to intervene without limiting intervention to protection of its right to defend a claim for reimbursement from USF&G.

Reversed and remanded.


author: Tom Glaze, Justice.

text:
    Terry ANGLE, et al. v. Jerry ALEXANDER, et al.
    96-608
    945 S.W.2d 933
    Supreme Court of Arkansas
    Opinion delivered June 2, 1997
    [Petition for rehearing denied July 7, 1997.]

      Steven Napper and Robert McHenry, for appellants.

      Wright, Lindsey & Jennings, by: John G. Lile, for appellees.

      Davis, Cox & Wright, PLC, by: Paul H. Taylor, for appellee Copes Furnitureland, Inc.
   Tom Glaze, Justice.

Appellants represent (1) Concordia Care Center employees and (2) their family members who claim they were exposed to asbestos resulting from a 22,000 square-foot floor renovation project at the Center’s facility at Bella Vista. The project commenced before Thanksgiving in November of 1990, and lasted until on or about December 18, 1990.

On June 24, 1991, the employees and nonemployee family members subsequently brought suit against appellees, Concordia, its administrator, Jerry Alexander, and the contractor, Cope’s Fine Carpets, alleging causes of action of outrage, negligence, and fraud. In brief, appellants alleged that the appellees intentionally hid the truth concerning appellants’ exposure to asbestos which was caused from the removal of old carpet and asbestos-backed vinyl required before installation of new carpet. Appellants asserted that, as a result of this exposure, they suffered physical injury, an increased risk of serious illness, and mental distress, anguish, fear and phobias of asbestos-related disease.

Although sometimes disputed, the facts leading to this litigation generally are as follows. In November 1990, Concordia Care Center, after bids were let, hired Cope’s Fine Carpets to do a floor renovation at the Center’s facility located in Bella Vista. Cope’s employed a subcontractor, Mr. Dan Snowden, to remove the existing carpet and to lay new carpet. However, sometime after Snowden commenced work, it was learned that vinyl was under the old carpet, and the vinyl also had to be removed before placement of any new carpet. Shortly after removal of the vinyl began in November, Concordia’s administrator, Jerry Alexander, allegedly voiced concern to the Center’s maintenance man, Robert Greeley, that asbestos might possibly be in the vinyl. While Alexander denied any knowledge of an asbestos problem early in the project, he admitted that, on about December 14, 1990, he learned that such a problem existed when an employee’s spouse, Robert Hamilton, told him of it. Hamilton had taken a sample of the vinyl flooring, had it tested, and received a lab report verifying asbestos content was in the vinyl. Upon learning of Hamilton’s report, Alexander informed Vernon Fredrickson of Cope’s of the asbestos discovery, and Fredrickson contacted the manufacturer of the new vinyl. That company sent Cope’s a “tip sheet” on removing the old vinyl. Cope’s forwarded that information to Concordia and Snowden. Apparently the project had been temporarily stopped, but after receiving the information on asbestos removal, Snowden resumed work on about December 15th or 16th, and continued until the project’s completion on or about December 18th.

At trial, appellees moved for summary judgment. First, they asserted Concordia’s employees were covered under the Arkansas Workers’ Compensation Act, which barred any tort claims. Second, appellees claimed that both employees and the family-member nonemployees failed to state a cause of action for the tort of outrage or severe emotional distress, had no present compensable injuries, and had not shown entitlement to medical monitoring damages or damages resulting from the fear of increased risk of contracting asbestos-related disease.

The trial court granted appellees’ requests for summary judgment, and appellants appeal that ruling, raising the following three points for reversal: (1) Appellant-employees argue their tort claims were not barred by the Workers’ Compensation Act; (2) both employees and nonemployee family members had established that a material fact question existed showing appellees’ conduct amounted to outrage; and (3) such conduct resulted in all of the appellants’ injuries and justified their requests for medical monitoring damages and damages resulting from the fear of an increased risk of an asbestos-related disease.

We first consider the employees’ argument that the Workers’ Compensation Act does not bar their tort-of-outrage claim against appellees Concordia and its administrator, Alexander. In arguing the Act’s inapplicability, they contend (a) appellees intentionally exposed them to asbestos fibers and appellees’ conduct is outside the Workers’ Compensation Act; and (b) the exposure and injuries the appellants/employees suffered were not inherent risks expected to arise from their employment and intended to be covered under the Act. We disagree. In doing so, we first note that we must summarily dispose of the employees’ inherent risk theory because the abstract fails to reflect that that theory was presented to or ruled on by the trial court. See Scroggins v. City of Grubbs, 318 Ark. 648, 887 S.W.2d 283 (1994); see also Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995).

However, appellants/employees are still left with their theory that the Workers’ Compensation Act does not cover their injuries because appellees’, Concordia’s and Alexander’s, conduct in this matter was intentional and therefore outside the Act’s coverage. In this respect, appellants/employees point out that, while Ark. Code Ann. § ll-9-105(a) (Repl. 1993) establishes the exclusive remedy for work-related injuries under the Act, an employer’s intentional infliction of any injury upon an employee is an exception to that exclusivity provision. See Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993). The Hill court held that, before an employee can escape the exclusivity statute, § ll-9-105(a), his or her complaint must allege a deliberate act by the employer with a desire to bring about the consequence of the act.

The Hill decision cites the case of Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615 (1985), which we find controlling here. There, the employee, Miller, was employed in the material division of Ensco’s hazardous waste disposal facility. Miller claimed he sustained injuries from the exposure to polychlorinated biphenals (PCB’s) as a result of the unsafe work conditions at the facility. In suing Ensco in tort, Miller alleged the company violated governmental safety regulations and collective bargaining agreements, failed to provide a safe workplace and to warn him of all its attendant dangers. This court in Miller held that these activities alleged by the employer, even when alleged to be flagrant, concealed, and deliberate, do not constitute an intentional tort for purposes of escaping the exclusivity provision of the Workers’ Compensation Act. 286 Ark. at 461-62; see also Griffin v. George’s, Inc., 267 Ark. 91, 589 S.W.2d 24 (1979), and Heskett v. Fisher Laundry & Cleaners, Inc., 217 Ark. 350, 230 S.W.2d 28 (1950). The Miller court held that, before an employee is free to bring a tort action for damages against an employer, the facts must show the employer had a “desire” to bring about the consequences of the acts or that the acts were premeditated with the specific intent to injure the employee. 286 Ark. at 461. The court further observed that intentional torts involve consequences which the actor believes are substantially certain to follow his actions. See also Prosser, Torts, (4th ed.) § 8. An example of the type of activity that would fall outside the exclusivity provision would be in the nature of an intentional act by an employer who assaults his employee. See Heskett, 217 Ark. 350, 230 S.W.2d 28. To further illustrate the type of conduct that has been determined to fall within the Workers’ Compensation Act, the Miller court, citing Griffin v. George’s, Inc., quoted Larson’s Workmen’s Compensation Law, Vol. 2A, p. 13-18, § 68.13, as follows:

Even if the alleged conduct goes beyond aggravated negligence and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering a claimant to perform an extremely dangerous job, willfully failing to furnish a safe place to work, or even willfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injury that robs the injury of accidental character.

Thus, Concordia’s and Alexander’s conduct, even if intentional, still falls within the exclusivity provision of the Workers’ Compensation Act.

Even though the Center’s employees are limited to the rights and remedies granted them under the Workers’ Compensation Act, we must decide the tort-of-outrage claims asserted by the nonemployee family members. These plaintiffs are ones who had picked up family members who worked at the Center, who on occasion had visited the facility, or who had been exposed to the clothes of a family member employed at the Center.

The nonemployees rely primarily on the case of Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992), where the plaintiffs, parents of children who attended Westside Elementary School, and one employee of the school, filed suit against school employees, board members, and the school district, alleging those defendants knew or should have known of the presence of friable asbestos in the school building and failed and refused to correct the condition, and to protect the students and staff from the dangers of exposure. The Deitsch plaintiffs further alleged (1) the school defendants knew of federal and state regulations concerning the removal of asbestos, misrepresented and concealed the dangerous asbestos condition in order to induce employees and students to attend school, and as a result, (2) the plaintiffs sustained damages for emotional distress and fear, physical injury, and increased risk of serious injury in the future.

While the trial court in Deitsch had dismissed the plaintiffs’ complaint as failing to state a cause of action for the tort of outrage, this court disagreed on appeal. In doing so, the Deitsch court stated that to establish an outrage claim, it must be shown (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was “extreme and outrageous,” was “beyond all possible bounds of decency,” and was “utterly intolerable in a civilized community”; (3) the actions of the defendant were the cause of the plaintiffs’ distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable man could be expected to endure it. Although the Deitsch court declined to comment upon the merits of the pending action, it stated the following:

Taking the facts alleged in the complaint as true, and in the light most favorable to the appellants (plaintiffs), we hold sufficient facts were at least alleged to state a cause of action for the tort of outrage.

Unlike Deitsch, the present case comes to us by way of summary judgment, not by motion to dismiss. Thus, our review here focuses not only on the pleadings, but also on affidavits and other documents filed by the parties. Pyle v. Robertson, 313 Ark. 692, 858 S.W.2d 662 (1993). And if a moving party supports its motion for summary judgment by making a prima facie showing of an absence of factual issues and entitlement to judgment as a matter of law, and the adverse party fails to set forth specific facts showing a genuine issue of material fact, then this court will not say the trial judge erred in granting summary judgment. Id. at 694.

Here, although plaintiffs, including some nonemployees, offered their own testimony that they have experienced emotional distress, thoughts of death, fear, anger and worry, none of the plaintiffs have seen a physician or mental health professional for treatment for these concerns. We believe Professors Prosser’s and Keeton’s treatise is helpful when analyzing an outrage claim where no physical illness or harm is evident. In addressing this issue, they said the following:

[W]here physical harm is lacking the courts will properly tend to look for more in the way of extreme outrage as an assurance that the mental disturbance claimed is not fictitious, but that if the enormity of the outrage itself carries conviction that there has in fact been severe and serious mental distress which is neither feigned nor trivial, bodily harm is not required.
In the great majority of the cases allowing recovery the mental distress has been inflicted intentionally, the defendant either desiring to cause it or knowing that it was substantially certain to follow from the conduct. Prosser and Keeton on Torts, § 12, Fifth Ed. (1984). Cf. Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984); M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980).

From our review of the record pertaining to the non-employee plaintiffs, we can find nothing that shows the appellees’ conduct caused the nonemployees the type of extreme emotional distress required to prevail on an outrage claim. Although one of the plaintiffs medical experts indicated that the plaintiffs had incurred a physical injury as a result of inhaling asbestos from appellees’ conduct, neither that expert, nor appellants’ other physician, ever met, saw or examined any of the plaintiffs or reviewed plaintiffs’ medical records concerning their physical or mental state. Nor did the plaintiffs’ experts obtain the plaintiffs’ histories pertaining to any individual plaintiffs exposure to asbestos, the extent of exposure or health risks involved with such exposure. When considering appellees’ conduct as related to whether they intended to cause nonemployees severe mental distress or knew it was substantially certain to follow appellees’ conduct, we cannot, from the record provided, say either objective was met. Again, the nonemployees never showed their exposure or extent of exposure, much less that appellees intended or should have known nonemployees would experience mental distress from appellees’ decision to complete the renovation of the Center’s floor. Because appellants/nonemployees have failed to show appellees’ conduct caused the type of severe emotional distress needed to establish an outrage claim, we affirm the trial court’s ruling on this point as well.

In conclusion, we note appellants’ third point, which touches on damages. However, we do not discuss this issue, in view of our holding that appellants have failed to show that a material question of fact exists to support their tort-of-outrage claim or underlying claim of liability against appellees. That being so, we affirm the trial court’s decision because neither the plaintiff/ employees or nonemployees have provided proof of an outrage claim.

       While Greeley testified to this version, he signed an earlier affidavit that Alexander knew the tile had asbestos.

       In sum, appellant/employees advances the theory on appeal, by citing Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985), and J. & G. Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (1980), that before an employee’s injury is covered under the Workers’ Compensation Act, that injury must have resulted from some inherent risk a worker could have reasonably expected to arise in the course of his or her employment. On appeal, appellant/employees argue that, as nurses and support staff at a care facility, their exposure to asbestos was not an activity reasonably expected to be an incident of employment.

       Some plaintiffs have seen a doctor for a base-line reading for future reference. One plaintiff, on the advice of her attorney, spoke to a psychologist, and another discussed the incident with her counselor while being treated for an unrelated problem.

       One doctor opined the mean excess cancer risk for the Center employees is 5.7 cases per 1,000 exposed. He said that nonemployees would be a magnitude lower, but he refused to quantify that risk.