author: ANNABELLE CLINTON IMBER, Justice.

text:
    Bruce JUNKIN, M.D. v. NORTHEAST ARKANSAS INTERNAL MEDICINE CLINIC,P.A., an Arkansas Professional Association; PhyCor of Northeast Arkansas, Inc., a Tennessee Corporation; and PhyCor, Inc., a Tennessee Corporation
    00-434
    42 S.W.3d 432
    Supreme Court of Arkansas
    Opinion delivered April 26, 2001

      Jim A. McLarty, and Robinson, Staley, Marshall & Duke, PA., by: William T. Marshall and Robert L. Robinson, Jr., for appellant.

      Lyons, Emerson & Cone, P.L.C., by: Scott Emerson, for appellees.
   ANNABELLE CLINTON IMBER, Justice.

The appellant, Bruce Junkin, is a licensed physician and has been practicing medicine in Newport since the 1970’s. In 1993, he began negotiating a contract with Appellee Northeast Arkansas Internal Medicine Clinic for the sale of his medical practice to the Clinic. On December 31, 1993, Dr. Junkin and the Clinic executed a merger agreement to that effect, and Dr. Junkin became a shareholder in the Clinic. Pursuant to an employment agreement executed on the same day, the Clinic agreed to retain Dr. Junkin as an employee physician in Newport. This employment agreement did not contain a covenant not to compete. Thereafter, Dr. Junkin continued to practice medicine in Newport as an employee, stockholder, and director of the Clinic.

On March 1, 1995, the Clinic entered into an agreement with Appellee PhyCor, Inc. (PhyCor), a Tennessee corporation, whereby the Clinic agreed to sell, and PhyCor agreed to buy, a majority of the Clinic’s assets. At the time the agreement between the Clinic and PhyCor was executed, Dr. Junkin was a shareholder in the Clinic and a member of the Clinic’s board of directors. Pursuant to the Asset Purchase Agreement, the Clinic agreed to enter into a Service Agreement with a subsidiary of PhyCor. Additionally, the Asset Purchase Agreement provided that all physicians employed by the Clinic “shall have executed non-competition covenants with [the Clinic]” as a condition precedent to the obligations of PhyCor. As consideration for the sale of the Clinic’s assets to PhyCor, Dr. Junkin received a pro rata share of the Clinic’s proceeds from the sale in the amount of $174,388.

Also on March 1, 1995, the Clinic entered into the Service Agreement with PhyCor of Northeast Arkansas, Inc. (PhyCorArk.), a Tennessee corporation and subsidiary of PhyCor. According to Article 7.2 of the Service Agreement, the Clinic was required to obtain and enforce formal employment agreements with its current physician stockholders and employees, whereby the physicians would covenant not to compete with the Clinic within a certain geographic area for eighteen months after termination of their employment with the Clinic. Article 7.4 stated that the employment agreement with each physician could provide for the physician’s release from his or her covenant not to compete upon payment of certain liquidated damages.

Pursuant to the terms of the Asset Purchase Agreement and the Service Agreement, the Clinic and Dr. Junkin entered into a new employment agreement on March 31, 1995, whereby Dr. Junkin was employed by the Clinic to practice medicine in Newport. This Agreement of Employment contained the following provisions for a covenant not to compete and liquidated damages:

8.1 Covenant Not to Compete. The Physician acknowledges that, during the term of this agreement, the Physician will acquire certain confidential information about the Clinic’s practice of medicine and patients and establish relationships with patients on behalf of the Clinic. Therefore:
(a) During the term of this Agreement and for a period of eighteen months immediately after termination of the Physician’s employment, however such termination may occur and whether by the will of Physician or Clinic and with or without cause, the Physician shall not, either directly or indirectly, establish, operate, or provide physician services at any medical office, clinic, or outpatient and/or ambulatory treatment or diagnostic facility providing services substantially similar to those provided by the Clinic within the geographic area identified on Schedule “A” hereto, which is expressly incorporated by reference herein. The geographic area described in Schedule “A” may be amended from time to time by action of the Clinic to accord with actual or planned expansion of the Clinic’s scope of operations, and such amendment, made in writing and attached hereto, shall be effective without further action of the Physician or Clinic.
(b) The parties intend that the restrictions described in sub-part (a) above are intended to restrict the Physician from competing directly or indirectly with any of the Clinic’s practice, however any termination of employment is effected.
(c) Physician agrees that competition shall include, but not be limited to, engaging in any competitive activity, including the practice of medicine either as an individual, as a partner, or as an employee, agent or representative or any other person or entity, or otherwise being associated in any competitive activity with any business entity which directly or indirectly competes with the Clinic.
(d) Physician further agrees that Physician shall not directly or indirectly solicit or attempt to solicit, for the Physician’s own account or for the account of any other person or entity, any patient of the Clinic whom the Physician has treated during the term of this Agreement, for a period of 18 months from the date of termination of Physician’s employment, however such termination is effected.
8.2 Liquidated Damages. Upon the termination of the Physician’s employment for any reason, the Physician may obtain a written release from the restrictive covenants described in Section 8.1 by paying to the Clinic an amount of money equal to the greater of (a) the Physician’s average annual income as shown on the W-2 forms prepared by the Clinic for the two (2) most recent years, or (b) the Physician’s allocable share of the proceeds received by the Clinic from the sale of assets to PhyCor, Inc. under agreement dated March 27, 1995, as specifically set forth in a letter of even date herewith from the Clinic Administrator to the Physician. Such payment shall be made by the Physician to the Clinic at the time the Clinic formally releases the Physician from the covenant herein.

The geographic area described in Schedule “A” included not only Newport and Jackson County, but also Cross, Independence, Poinsett, Craighead, Mississippi, Green, Lawrence, Sharp, Fulton, Randolph, and Clay counties. Dr. Junkin’s allocable share of the proceeds received by the Clinic from the sale of assets to PhyCor was $174,388, as evidenced by a letter from the Clinic to Dr. Junkin.

Finally, Dr. Junkin entered into an agreement (Management Agreement) with PhyCor and PhyCor-Ark. on March 31, 1995, which provided in relevant part:

In consideration of the benefit received by the undersigned under the Asset Purchase Agreement and the Service Agreement, and in order to induce PhyCor and Sub [PhyCor-Ark.] to enter into such agreements, the undersigned agrees that in the event the employment of the undersigned with [the Clinic] terminates for any reason and in the event within a period of 18 months of the effective date of termination the undersigned, either directly or indirectly, establishes, operates, or provides physician services at any medical office, clinic, or outpatient and/or ambulatory treatment or diagnostic facility providing services substantially similar to those provided by [the Clinic] within the geographic area set forth on Exhibit I hereto, then Sub shall be entitled to provide, and is hereby engaged by the undersigned to provide, the practice management and other services set forth in the Service Agreement to the undersigned in his or her new practice, whether or not the undersigned is engaged in private practice by himself or herself or with others. Accordingly, Sub shall provide the services and be paid a fee as set forth in the Service Agreement for a period of 15 years as if the Service Agreement were a separate agreement between the undersigned and the Sub.
***
The undersigned may be released from the covenants contained herein by paying liquidated damages in an amount equal to the lesser of (1) $174,388.00 or (2) the product of (a) the remaining term of the Service Agreement and (b) 15% of the difference between (i) net clinic revenue (as defined in the Service Agreement) generated by or otherwise resulting from the work of the undersigned during the previous 24 months (divided by two) and (ii) Clinic Expenses (as defined in the Service Agreement) allocable to the undersigned or otherwise resulting from the work of the undersigned during the previous 24 months (divided by two). The amount of the liquidated damages shall be reduced by any amounts paid by the undersigned to [the Clinic] in connection with the restrictive covenant contained in the undersigned’s employment agreement with [the Clinic]. Such payment shall be made in cash to PhyCor simultaneously with the undersigned’s departure from [the Clinic].
The undersigned acknowledges that the undersigned is a shareholder and/or employee of [the Clinic] and that consummation of the transactions contemplated under the Asset Purchase Agreement and the Service Agreement are conditioned upon the undersigned and other physician employees of [the Clinic] executing agreements identical to this Agreement.

The geographic area referred to in this agreement was the same twelve-county area described in the Schedule “A” attachment to the Agreement of Employment.

In December 1998, Dr. Junkin filed a complaint for declaratory relief and cancellation in Jackson County Chancery Court. In that complaint, Dr. Junkin stated that he desired to separate from the Clinic, PhyCor, and PhyCor-Ark. and to be free from any post-employment restrictions or obligations to those entities. He further stated that he wished to continue practicing medicine in Newport following his separation from the Clinic. Dr. Junkin asked the chancellor to declare the restrictive covenants and liquidated-damages provisions in the Agreement of Employment and the Management Agreement void and unenforceable, and he asked the chancellor to enjoin the Clinic, PhyCor, and PhyCor-Ark. from taking any action to enforce those agreements. Finally, Dr. Junkin sought to have all four contracts (namely the Asset Purchase Agreement, the Service Agreement, the Agreement of Employment, and the Management Agreement) canceled by the chancellor based upon an allegation in the complaint that those contracts collectively violated Arkansas’s corporate-practice-of-medicine doctrine.

Following a trial on the merits, the chancellor entered an order and found, in relevant part, as follows:

19. The covenant not to compete of Section 8.1 of Plaintiffs Employment Agreement #2 was ancillary to and entered into in connection with a business or sale transaction, and is not applicable to a mere employer-employee relationship. However, specific enforcement of the restrictive covenant as to prohibiting Plaintiff’s continued practice in the geographic area designated in the agreement would be detrimental to the patients affected and should not be required.
20. As to the enforceability of the liquidated damages provision of Employment Agreement #2, the Plaintiff was fully aware of all the terms of the agreement. The liquidated damages clause of Section 8.2 of the Plaintiffs Employment Agreement #2 is reasonable and enforceable, thus requiring the Plaintiff to pay the liquidated damages as specified in the clause to relieve himself of the restrictive covenant obligations. ... The amount of liquidated damages as calculated in Section 8.2 does bear a reasonable relationship to the actual damages that may flow [sic] the Plaintiffs breach of the covenant not to compete, it being reasonable for the parties to stipulate that the sale proceeds distributed by [the Clinic] to Plaintiff would adequately compensate [the Clinic] for its unascertainable loss in the event plaintiff violated the covenant not to compete. The case of Duffher v. Alberty, 19 Ark. App. 137, 718, S.W.2d 111 (1986) is distinguishable from this case ....
21. Based on the terms of the damages provision and financial benefits conferred to Plaintiff under the agreement, Plaintiff should be required to pay to [the Clinic] the sum of $174,388 in order to be released from his non-complete [sic] obligations.
22. The Plaintiff read and was fully aware of the contents of the Management Agreement prior to singing it. The Management Agreement contains no covenant prohibiting competition on the part of the Plaintiff The damages provision contained in the Management Agreement is reasonable and enforceable.
23. Based on the terms of the damages provision and financial benefits conferred to Plaintiff under the Management Agreement, Plaintiff should be required to pay to [sic] the sum of $174,388.00 to PhyCor, or be required to engage PhyCor of Northeast Arkansas, Inc. to manage his practice in the time and manner specified in that Agreement in order to be released from his obligations contained in that Agreement.
24. Because the Management Agreement provides that payment of any sums to [the Clinic] under its liquidated damages provision shall also serve as credit and satisfaction for the complete release of the Plaintiffs obligations under the Management Agreement with PhyCor and PhyCor of Northeast Arkansas, Inc., PhyCor shall be required to so provide any such credit.
25. Plaintiff does not have standing to challenge the validity of the Asset Purchase Agreement and Service Agreement between [the Clinic] and PhyCor, and Plaintiff has not provided this court with any evidence that such agreements violated the federal anti-kickback statutes or Arkansas’ corporate practice of medicine doctrine.

(Emphasis added.) Dr. Junkin appeals from that portion of the Chancellor’s decree ordering him to pay liquidated damages in the amount of $174,388.

For his first point on appeal, Dr. Junkin contends that the covenant not to compete contained in Section 8.1 of his Agreement of Employment with the Clinic is void and unenforceable because it violates public policy and the geographical area is excessive and unreasonable. We need not address this point, as the trial court’s ruling on the issue was favorable to Dr. Junkin, and the Clinic has not cross-appealed from that ruling. Paragraph 19 of the trial court’s order clearly states that the covenant not to compete contained in the Agreement of Employment is not enforceable. It is well settled that a party cannot appeal from a trial court’s ruling in his favor. Goff v. State, 341 Ark. 567, 19 S.W.3d 579 (2000); Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); Arkansas Dep’t of Fin. and Admin. v. Pharmacy Assoc., Inc., 333 Ark. 451, 970 S.W.2d 217 (1998);

In a second point, Dr. Junkin argues that the liquidated-damages provision contained at Section 8.2 of the Agreement of Employment is unenforceable. That provision provides that Dr. Junkin “may obtain a written release from the restrictive covenants described in Section 8.1” by paying the Clinic a certain amount of liquidated damages. As it relates to this case, the amount of liquidated damages is $174,388, or Dr. Junkin’s allocable share of the proceeds received by the Clinic from the sale of assets to PhyCor. Section 8.2 also states:

The parties further acknowledge and agree that since a remedy at law for any breach or attempted breach of the provisions of this covenant shall be inadequate, either party shall be entitled to specific enforcement and injunctive or other equitable relief in case of any such breach or attempted breach in addition to whatever other remedies may exist at law.

(Emphasis added.) Although the trial court found that “specific enforcement of the restrictive covenant as to prohibiting [Dr. Jun-kin’s] continued practice in the geographic area designated in the agreement would be detrimental to the patients affected and should not be required[,]” it nevertheless found that Dr. Junkin “should be required to pay to [the Clinic] the sum of $174,388 in order to be released from his non-complete [sic] obligations.” (Emphasis added.) Dr. Junkin contends that this latter finding was erroneous. We agree.

Common sense dictates that if a restrictive covenant cannot be specifically enforced because it violates public policy, then a related liquidated-damages provision also cannot be enforced. It is clear from the plain wording of Section 8.2 of the Agreement of Employment that the payment of liquidated damages is required of the physician only to obtain his release from the specific enforcement of the restrictive covenants. However, the physician should not have to pay such liquidated damages if the covenant cannot be enforced, i.e., by specific enforcement or injunction. Accordingly, we reverse the trial court’s finding in paragraph 21 of its order that Dr. Junkin should be required to pay the Clinic $174,388 in order to be released from his non-compete obligations.

Dr. Junkin makes the following arguments for his next two points on appeal: the covenant not to compete and the corresponding liquidated-damages provision are not enforceable because (1) the Asset Purchase Agreement and Service Agreement violate the Federal Anti-Kickback Act, 42 U.S.C. § 1320a-7b(b) (Supp. 1998), and (2) PhyCor did not purchase Dr. Junkin’s goodwill. We need not address the merits of either of these issues. Both arguments are attempts to show this court that the covenant not to compete and its ancillary liquidated-damages provision are unenforceable. As previously stated, the trial court held in Dr. Junkin’s favor with regard to the enforceability of the covenant not to compete, and he cannot appeal from a ruling in his favor. Furthermore, as stated in the preceding paragraph, if the covenant not to compete is not specifically enforceable, then the related liquidated-damages provision is also unenforceable.

Next, Dr. Junkin contends that the Asset Purchase Agreement, the Service Agreement, the Agreement of Employment, and the Management Agreement should not be enforced because they violate the corporate-practice-of-medicine doctrine in Arkansas. See the Arkansas Medical Corporation Act at Ark. Code Ann. § 4-29-301 et seq. (Repl. 1996). Once again, we need not address the merits of this argument. That part of the trial court’s order finding that Dr. Junkin did not provide any evidence that “such agreements” violated the corporate-practice-of-medicine doctrine was limited to the Asset Purchase Agreement and the Service Agreement. The trial court made no ruling with regard to whether the Agreement of Employment and the Management Agreement violated the corporate-practice-of-medicine doctrine. Issues not ruled on below will not be considered on appeal. Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). Moreover, Dr. Junkin has not appealed from the trial court’s finding that he lacked standing to challenge the validity of the Asset Purchase Agreement and Service Agreement between the Clinic and PhyCor. Thus, for purposes of this appeal, we are bound by the trial court’s ruling that Dr. Junkin does not have standing to challenge those agreements. In any event, his complaint only sought a declaratory judgment that the covenant not to compete and the liquidated-damages provisions contained in the Agreement of Employment and the Management Agreement were unenforceable. Dr. Junkin raised the issue of the validity of all four agreements under the Arkansas Medical Corporation Act only to the extent that it bolstered his contention that the covenant and damages provisions were unenforceable.

Lastly, Dr. Junkin asserts that the agreements are illegal and should not be enforced at all because they violate federal and state law. It is unclear from his brief whether this argument refers to the liquidated-damages provision contained in the Agreement of Employment or a similar provision contained in the Management Agreement. To the extent that this argument can be construed as pertaining to the appropriateness of liquidated damages under the Agreement of Employment, that issue has been fully addressed above. However, if the argument can be taken as challenging the trial court’s ruling that Dr. Junkin must pay liquidated damages to be released from his Management Agreement obligations, we must reject the argument for lack of convincing argument or citation to relevant authority. See Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000).

The Management Agreement was a separate agreement that required Dr. Junkin to retain the management services of PhyCorArk. in the event that he terminated his employment with the Clinic and started his own practice in the same geographic area. Alternatively, the agreement allowed Dr. Junkin to be released from the requirement to retain PhyCor-Ark. ’s management services upon payment of liquidated damages in the amount of the lesser of (1) his allocable share of the proceeds of the sale of assets from the Clinic to PhyCor ($174,388), or (2) a sum equal to 15% of the difference between net clinic revenues and clinic expenses allocable to Dr. Junkin, as averaged over the preceding two years.

The chancellor distinguished the Management Agreement from the Agreement of Employment on that ground that the former contained no covenant prohibiting competition on the part of Dr. Junkin. The chancellor also found that the damages provision contained in the Management Agreement was both reasonable and enforceable. The chancellor specifically relied on that fact that Dr. Junkin read and was fully aware of the contents of the Management Agreement prior to signing it.

Dr. Junkin has offered no convincing argument or authority to support the contention that he should be allowed to be released from his Management Agreement with PhyCor-Ark. without having to pay liquidated damages. The Management Agreement contains no covenant not to compete. Dr. Junkin has thus failed to demonstrate that the chancellor’s findings on this issue are clearly erroneous.

For these reasons, we reverse the trial court’s finding that Dr. Junkin should pay liquidated damages to the Clinic in order to be released from his non-compete obligations. We affirm the trial court in all other respects, including the finding that Dr. Junkin should be required to pay the sum of $174,388 to PhyCor in order to be released from his obligations under the Management Agreement.

Affirmed in part, reversed in part.


source: Caselaw Access Project

author: JIM HANNAH, Justice.

license: Public Domain

text:
    Carlos ELAM v. HARTFORD FIRE INSURANCE COMPANY
    00-900
    42 S.W.3d 443
    Supreme Court of Arkansas
    Opinion delivered April 26, 2001
    [Petition for rehearing denied May 24, 2001.]

      William A. Hill, P.A., by: William A. Hill, for appellant.

      Kilpatrick, Aud & Williams, by: Gene Williams, for appellee.
   JIM HANNAH, Justice.

Appellants Carlos and Arbra Elam appeal the Franklin County Circuit Court’s grant of summary judgment to Elam’s employer’s commercial automobile insurance carrier, Appellee Hartford Fire Insurance Company (Hartford), denying underinsured motorist insurance (UIM) coverage to Elam for injuries he sustained during his employment with Fred Dorwart d/b/a Mountain Ridge Farms. We reverse and remand.

Facts

On November 3, 1995, Carlos Elam, a now sixty-three-year-old farm manager for Mountain Ridge Farms, was injured when he was struck by a trailer pulled by a truck as it was pulling away from Elam. According to Elam’s various accounts of the incident, he was washing one of his employer’s farm trucks when John Milam of Milam Heating and Air Conditioning Company drove up in his work truck and stopped to talk to Elam about installing some equipment on the farm. Milam remained in his truck while speaking with Elam, who was standing between Milam’s truck and the farm truck. The trucks were close enough for Elam to touch both trucks at the same time. The men discussed the work to be done, and then, according to Elam, he turned back to the farm truck to continue washing it and Milam pulled away quickly. In doing so, Elam was hit by Milam’s attached trailer that Elam did not see being pulled behind Milam’s truck. However, as Hartford notes in its brief, Elam testified in his May 1999 deposition that he was actually reaching for the truck’s door pull to get in when he was hit by Milam’s trailer. Elam also argues in his brief that he was reaching for the door pull to get in the truck when he was hit.

Elam sustained injuries from the accident, and was treated by numerous doctors through his workers’ compensation claim. While the doctors found that had sustained a work-related injury, he received differing disability ratings, one as high as 40 percent to the body as a whole, and one as low as 10 percent to the body as a whole. One of the treating physicians found him totally disabled from working, while another determined that with retraining, he could go back to some type of lighter work. Notably, all of the treating doctors found that, although not problematic before the injury, Elam suffered from spinal stenosis, or narrowing of the spine, and perhaps degenerative disc disease brought on by aging, which contributed to his post-injury back problems. He made a workers’ compensation claim and received medical and indemnity benefits before settling his workers’ compensation claim against Mountain Ridge Farms and its workers’ compensation insurance carrier on January 29, 1997, for $30,000 plus an additional $5,987.60 for related expenses. The workers’ compensation carrier, ITT Hartford Insurance Company (a different insurance division from Hartford, the appellee), also agreed to waive its subrogation rights. On December 10, 1997, Elam settled a third-party claim against Milam and his insurance carrier for $50,000, which represented the total available insurance from Milam, after providing the required notice to Hartford. Elam and his wife also setded a third-party claim under their own UIM policy with Southern Farm Bureau Casualty Insurance Company for $10,000 on April 23, 1998. Finally, Elam was found to be disabled by the Social Security Administration due to his injuries as he has been unable to work since the injury.

On November 2, 1998, Elam filed a complaint against his employer’s farm vehicle insurance carrier, Hartford, requesting payment under the UIM policy, taking into account the $50,000 and $10,000 already paid by the other automobile policies. He also alleged that workers’ compensation and social security benefits could not be offset because they were collateral resources. Hartford had $1,000,000 in available coverage under the policy. Hartford answered on November 24, 1998, and denied coverage under the UIM policy, claiming that the policy specifically excludes coverage to employees who also recover workers’ compensation benefits.

On August 26, 1999, Hartford filed its first motion for summary judgment, arguing several points. First, Hartford asserted that Elam’s claim was barred under the exclusive-remedy doctrine of Arkansas’s Workers’ Compensation Act. Hartford next argued that the workers’ compensation statutes do not allow claims by employees against their employer’s UIM policies. Hartford further argued that Elam’s claims were not covered under the UIM policy. Finally, Hartford argued that there was no evidence of fault by Milam as required to recover under the UIM policy.

Elam responded by filing his first amended complaint on September 24, 1999, adding an additional claim of bad faith against Hartford. Elam also filed a motion to compel discovery on that date, arguing that Hartford had refused to provide copies of Elam’s claim file and other requested documentation, claiming privilege in declining to produce those documents. Finally, also on September 24, 1999, Elam filed a motion for summary judgment and a response to Hartford’s motion for summary judgment. In his motion, Elam countered Hartford’s allegations in its motion. Elam argued that the Arkansas Workers’ Compensation Act does not bar a claim for UIM coverage under an employer’s policy where workers’ compensation benefits have already been paid. Elam notes that the claim against the UIM carrier is not a claim against an “employer” as barred by the act. Elam also asserts that he fell within the policy requirements to be covered as an “occupier” of the farm truck because he was “using” the vehicle at the time of his injury. Elam also argued that evidence of Milam’s negligence was overwhelming.

Hartford filed its answer to Elam’s first amended complaint on September 30, 1999, again denying coverage under the policy. On October 11, 1999, Hartford filed a motion for summary judgment on Elam’s first amended complaint, incorporating its previous motion for summary judgment and adding the additional arguments for summary judgment on the bad-faith claim. Hartford contended that Elam could not prevail on the bad-faith claim without any facts in support, and that Elam’s motion for discovery to “discover” facts to support the bad-faith claim was not a proper use of discovery where there were no other facts other than denial of coverage to support the bad-faith claim. Hartford also filed a response to Elam’s motion for discovery.

On October 13, 1999, Hartford responded to Elam’s motion for summary judgment and on November 1, 1999, Elam responded to Hartford’s motion for summary judgment on Elam’s first amended complaint. On that same date, Elam filed his second amended complaint, apparently clarifying two terms of the first amended complaint regarding any good-faith denial of Elam’s claim. Hartford again denied the allegations in the second amended complaint on November 4, 1999, and filed a motion for summary judgment on the second amended complaint that same day.

On February 4, 2000, the trial court heard oral arguments from the attorneys on the motions for summary judgment and the motion to compel discovery. On April 13, 2000, the trial court issued its order denying Elam’s motion for summary judgment and granting Hartford’s motion for summary judgment. The trial court did not include any discussion about the basis for its decision, and it did not rule on Elam’s motion to compel discovery. Elam filed his notice of appeal on May 10, 2000.

Standard of Review

The parties filed opposing motions for summary judgment, agreeing that there are no genuine issues of material fact remaining. As we have oft stated, summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entided to judgment as a matter of law. Mashburn v. Meeker Sharkey Fin. Group, Inc., 339 Ark. 411, 5 S.W.3d 469 (1999). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. The moving party is entided to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56; Estate of R. Donley v. Pace Indus., 336 Ark. 101, 984 S.W.2d 421 (1999). It is well settled that a trial court has wide discretion in matters pertaining to discovery, and thus we will reverse a trial court’s ruling only when there has been an abuse of discretion. Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998); Parker v. Southern Farm Bureau Cas. Ins. Co., 326 Ark. 1073, 935 S.W.2d 556 (1996); Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992).

Elam argues five points on appeal. Elam first argues that the exclusive-remedy provision of the Arkansas Workers’ Compensation Act, found at Ark. Code Ann. § 11-9-105(a) (Repl. 1996), does not bar his claim because he is not asserting a liability claim against his employer or workers’ compensation insurance carrier as precluded under that statute, and case law from other jurisdictions that have faced this issue support allowing the UIM claim. Second, Elam argues that the Arkansas Workers’ Compensation Act at Ark. Code Ann. § 11-9-410(13) (Repl. 1996), does not impliedly preclude UIM claims by an employee against his employer’s UIM carrier. Next, Elam argues that his claims are covered under the UIM commercial automobile policy as specifically noted in the language of the policy and impliedly through the function of the policy. Elam also argues that there was ample evidence of the third-party tortfeasor’s negligence as required to be shown under the UIM policy. Finally, Elam argues that Hartford’s summary-judgment motion should not have been granted before the court ruled on Elam’s motion to compel discovery because the motion to compel discovery raised issues of material fact that made summary judgment improper.

In response, Hartford counters Elam’s claims point for point. Hartford argues that summary judgment was proper because, as a matter of law either under the Arkansas Workers’ Compensation Act or under the terms of the policy, Elam could not recover UIM benefits. Furthermore, Hartford contends that the trial court did not err in failing to rule on the motion to compel discovery because Elam only added the claim for bad faith and sought the discovery in dispute after Hartford filed its original motion for summary judgment. Furthermore, Elam failed to plead facts in his first and second amended complaints sufficient to support a claim of bad faith or to trigger the requirements allowing discovery.

I. The Exclusive Remedy Provision of the Arkansas Workers’ Compensation Act and the Third-Party Liability Provision of the Arkansas Workers’ Compensation Act

The first issue on appeal is whether Elam’s workers’ compensation claim was his exclusive remedy, barring any additional claims for insurance coverage involving his employer. The exclusive-remedy provision of the Act is found at Ark. Code Ann. § 11-9-105, which states in part:

(a) The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer, or any principal, officer, director, stockholder, or partner acting in his capacity as an employer, or prime contractor of the employer, on account of the injury or death, and the negligent acts of a coemployee shall not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have.

This provision clearly indicates that any claim for injury or death against an employer may only be brought under the Act, thus eliminating an employer’s tort liability. According to the Act, an employee’s remedy against his employer for injuries sustained on the job is to file a workers’ compensation claim, and this remedy is exclusive as to the employer, as stated in the statute, and has only been extended by this court to the employer’s workers’ compensation insurance carrier. Cherry v. Tanda, 327 Ark. 600, 940 S.W.2d 457 (1997). The exclusivity provision of the Act mirrors the general purpose of the Act, which was to change the common law by shifting the burden of all work-related injuries from employers and employees and placing it on the consuming public, thus eliminating any need to prove fault. Brown v. Finney, 326 Ark. 691, 932 S.W.2d 769 (1996). This exclusive remedy favors both employers and employees. Id.

Hartford argues that it is immune from suit because a workers’ compensation claim is Elam’s exclusive remedy for this work-related injury. While it is clear that Hartford was not the workers’ compensation carrier, thus making that extension of the exclusive-remedy statute inapplicable here, the question turns on whether a suit against the employer’s UIM carrier qualifies as a suit against the employer and, thus, is precluded under the statute. Elam notes that while the workers’ compensation statute has an exclusive-remedy provision against an employer and workers’ compensation carrier, it was not intended to be the exclusive source of compensation as evidenced by other provisions in the Act. Elam argues that here, Hartford actually stands in the shoes of the third-party tortfeasor against whom Elam may make a claim under the Act. He argues that he is not claiming that his employer was hable but instead, as required in a UIM case, he is claiming that a third party was liable.

Elam cites Philadelphia Indemnity Ins. Co. v. Morris, 990 S.W.2d 621 (Ky. 1999), in which the Kentucky Supreme Court held that an injured employee may make a claim for UIM benefits under a policy secured by his employer where the employee is an included insured, despite the exclusive-remedy provision of the Kentucky workers’ compensation statute. That statute is quite similar to Arkansas’s exclusive-remedy statute.

In Morris, the Kentucky Supreme Court found that a worker’s UIM claim was not precluded where the worker’s damages exceeded both the workers’ compensation benefits he received and the policy-limit amounts he was paid by the third party’s liability insurance. The Kentucky court found that the suit was a direct action against the UIM carrier as opposed to an action against the employer, and declined to extend the exclusive-remedy protection to anyone other than the employer or its workers’ compensation carrier. The Kentucky court further found that payment made in performance of a contractual obligation is not payment of “damages,” as it was voluntarily purchased by the employer to cover situations such as the one in this case. Other jurisdictions also recognize that UIM and UM (uninsured motorist) coverage purchased by an employer and claimed by an employee in a work-related accident is valid despite the language of exlusive-remedy statutes. See Levasseur v. Lowery, 533 S.E.2d 511 (N.C. 2000); Lieber v. ITT Hartford Insurance Center, Inc., 15 P.3d 1030 (Utah 2000). In Lieber, for example, the Utah Supreme Court found that an employee could make a claim for uninsured motorist (UM) benefits provided in a policy purchased by his employer despite tbe exclusive-remedy provision of Utah’s workers’ compensation statute. The Utah court reasoned that the exclusive-remedy doctrine applies only to an employee who has no viable claim that can be reduced to a judgment in a court of law or, in other words, against a third party who is not the employer or workers’ compensation carrier. The Utah court found that because a UM claim could only be made where a viable claim existed against a third party, a UM claim was not a claim against the employer as excluded under the workers’ compensation act. Any distinction between UM and UIM coverage on this issue is irrelevant.

Arkansas’s appellate courts have not direcdy addressed this issue. The court of appeals has determined, however, that an employee may make a claim against his own UIM/UM carrier without bar by the exclusive-remedy provision of the Act. See Southern Farm Bureau Cas. Ins. Co. v. Pettie, 54 Ark. App. 79 (1996). This court has also held that it is against public policy to preclude recovery or allow a setoff of UIM/UM benefits to workers who have also received workers’ compensation benefits. See Travelers Ins. Co. v. National Farmers Union Prop. & Cas. Co., 252 Ark. 624, 480 S.W.2d 585 (1972) (court held that a provision of UM coverage was invalid where it provided that any amount payable under that coverage because of bodily injury would be reduced by the amount paid, and the present value of all amounts payable, on account of such injury under any workers’ compensation law); Shepherd v. State Auto Prop. & Cas. Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993) (court held that a provision of UIM policy calling for setoff for workers’ compensation benefits was against public policy); see also, O’Bar v. MFA Mutual Ins. Co., 215 Ark. 247, 628 S.W.2d 561 (1982) (court held that a clause in a policy denying accidental death benefits where an insured’s beneficiaries also received workers’ compensation payment for the insured’s death is a violation of public policy).

The reasoning for such holdings is evident in Travelers Ins., where this court stated:

The uninsured motorist legislation was passed long after adoption of the Workmen’s Compensation Act. When we consider the basic purposes of the latter act, our belief that the legislature did not intend that the Uninsured Motorist Act be the means of discrimination against working people protected under the workmen’s compensation laws is strengthened. . . . The right claimed by the [company issuing the policy providing for uninsured motorist coverage] would simply provide it with a windfall in the case of one covered by the workmen’s compensation laws. The purpose of the Uninsured Motorist Act was to protect the insured, not the insurer.

Travelers Ins., 252 Ark. at 631-32. The court again in Shepherd noted the purpose behind UIM benefits, stating:

Underinsured motorist coverage was enacted in this state in 1987 to supplement benefits recovered from a tortfeasor’s liability carrier. Ark. Code Ann. § 23-89-209 (1987). We have stated its purpose to be “to provide compensation to the extent of the injury, subject to the policy limit.” Clampit v. State, 309 Ark. 107, 110, 828 S.W.2d 593, 595 (1992).
Shepherd, 312 Ark. at 513-14.

This court, however, has denied recovery in a UM claim where the employee received workers’ compensation benefits from a self-insured employer. In Gullet v. Brown, 307 Ark. 385, 820 S.W.2d 487 (1991), this court held that workers’ compensation benefits were the exclusive remedy of an employee injured in the course of his employment by an uninsured motorist where the UM coverage was provided by the employer’s self-insurance program. In Gullet, the deciding factor for this court was that the employer, Pulaski County, maintained a self-insured UM policy administered by Gallagher-Bassett Services, Inc., and that although such a claim sounded more in contract than in tort, our workers’ compensation exclusive-remedy statute makes no exception for contractual claims.

However, Gullett is distinguishable from the present case by virtue of the fact Elam’s employer was not self-insured. Here, Elam’s UIM claim was not one against a self-insured employer and, thus, a claim against his “employer” as precluded under the workers’ compensation exclusive-remedy doctrine. Instead, it was a claim against a third-party insurance carrier.

The General Assembly recognizes this distinction as indicated in its structure of the third-party liability provision of the Act, found at Ark. Code Ann. § 11-9-410. This statutory provision allows an injured employee to make a claim against a third party who is not the employer or workers’ compensation carrier for injuries sustained on the job. The Arkansas Supreme Court has defined a third party under Ark. Code Ann. § 11-9-410 as “some person or entity other than the first and second parties involved, and the first and second parties can only mean the injured employee and the employer or one liable under the compensation act.” Zenith Ins. Co. v. VNE, Inc., 61 Ark. App. 165, 965 S.W.2d 805 (1998); Wilson v. Rebsamen Ins., 330 Ark. 687, 957 S.W.2d 678 (1997); Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969). Thus, under Ark. Code Ann. § 11-9-410, neither a workers’ compensation carrier nor an employer can be a third party. Hartford argues that the only mention of UIM coverage in Ark. Code Ann. § 11-9-410 appears in the “subrogation” section of the statute, and that it only applies to the employer’s or workers’ compensation carrier’s ability to make a claim against the employer’s UM or UIM carrier. This section of Ark. Code Ann. § 11-9-410 states:

(4) An employer or carrier who is liable for compensation under this chapter on account of injury or death of an employee shah be entitled to maintain a third party action against the employer’s uninsured motorist coverage or underinsured motorist coverage.
(5) The purpose and intent of this subsection is to prevent double payment to the employee.

Despite Hartford’s argument that this section impliedly precludes Elam’s claim because it only mentions an employer’s or workers’ compensation carrier’s ability to make a claim for UM or UIM benefits, the entire third-party liability statute indicates otherwise. First, in looking at Ark. Code Ann. § 11-9-410, it should be noted that the statute is split into three sections: (a) Liability Unaffected; (b) Subrogation; and (c) Settlement of Claims. The first section deals with the employee’s ability and right to make a third-party claim and his employer’s or carrier’s right to subrogation. While this section does not specifically mention an employee’s ability to make a UM or UIM claim against his employer’s or any other UM or UIM policy, it also does not specifically preclude it. The second section, “Subrogation,” deals with the employer’s or workers’ compensation carrier’s right to pursue a subrogation claim against any third parties whether the claimant pursues a separate claim. Most notable in this section is the language that an employer or carrier who is liable for workers’ compensation benefits paid to an injured employee may maintain a “third party action” against the employer’s UM or UIM coverage. This language alone indicates that the legislature recognized that an employer’s UM or UIM carrier is a “third party” in these types of claims. As such, it is only reasonable that the employer’s UM or UIM carrier is also a “third party” in an injured employee’s UM or UIM claim against that same carrier.

Hartford argues that the “strict construction” requirements of the act require that the legislature’s failure to mention UM or UIM recovery by the claimant impliedly precludes such claims. However, this court recognizes its duty to strictly construe workers’ compensation statutes pursuant to Ark. Code Ann. § 11-9-704(c)(3) (Repl. 1996). See Hapney v. Rheem Mfg. Co., 341 Ark. 548, 26 S.W.3d 771 (2000); Lawhon Farm Servs., 335 Ark. 272, 984 S.W.2d 1. Strict construction means narrow construction and requires that nothing be taken as intended that is not clearly expressed. Id. (citing Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993)). The doctrine of strict construction requires this court to use the plain meaning of the language employed. Holaday v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996). Arkansas Code Annotated § 11-9-101 (Repl. 1996) states that the purpose of the workers’ compensation law is to provide benefits “to all legitimately injured workers who suffer an injury or disease arising out of and in the course of their employment. ...” Taken at face value, Hartford’s argument would require this court to find that there has been no specific exclusion against a claim by an employee against his employer’s UM or UIM carrier, and further this court would have to find that the legislature recognized in the “subrogation” section of Ark. Code Ann. § 11-9-410 that a claim against an employer’s UM or UIM carrier was a “third party” claim. This not only defeats Hartford’s argument under this section of the Act, but also under the exclusive-remedy provision of the Act.

Furthermore, the underlying purpose for UM/UIM benefits remains the same whether purchased by the employer for the benefit of its employees or by the employee for his own personal benefit —• UIM coverage was enacted to supplement benefits recovered from a tortfeasor’s liability carrier, and to find that an employee could not benefit from the policy under which he is a recognized insured would result in “discrimination” against a workers’ compensation claimant and a windfall to the UIM or UM carrier who received benefits on a policy under which it would not have to pay. Also, the viability of a workers’ compensation case may be harder to prove, as here, where the claimant had some pre-existing injuries for which workers’ compensation would not pay, but which could be covered by the third party, and thus the UIM or UM insurance, if shown to be aggravated by the accident due to the third party’s negligence.

This is a direct action against Hartford, the UIM carrier, a third-party insurance carrier and not an action against the employer. We hold that this claim for UIM benefits from the employer’s UM/ UIM insurance carrier is not barred by the exclusive-remedy provision of the Arkansas Workers’ Compensation Act, and we decliné to extend the exclusive-remedy protection in this situation. We also hold that the third-party liability provision of the Act, found at Ark. Code Ann. § 11-9-410, does not preclude a claim by Elam against Hartford.

II. The Terms of the UIM Policy

Because the Arkansas Workers’ Compensation Act is not a bar to Elam’s claim for UIM coverage under his employer’s UIM policy with Hartford, the court must next consider whether Elam qualified as an insured under the policy and whether he is entitled to UIM benefits pursuant to the provision of the policy. First at issue is whether Elam was an insured covered under the policy. If so, the second issue is whether there was sufficient evidence of Milam’s “negligence” to trigger coverage of an insured under the policy.

A. Elam’s Status as an Insured

First at issue is whether Elam is considered an insured under the terms of the UIM provision of the Hartford insurance policy. While Hartford argues that it is excused from payment under the liability section of the policy in cases in which the insured must pay workers’ compensation benefits, Hartford ignores the fact that this is not a claim for liability insurance against the employer, but is a direct claim against Hartford as the insurer for a UIM claim by one of its insured. As such, the only applicable section for a determination of coverage is the specific section entitled “Arkansas Uninsured and Underinsured Motorists Coverage.” This section of the policy specifically notes that “this endorsement modifies insurance provided under the following: business auto coverage form....” This is of particular note because the Arkansas UIM and UM coverage section changes the definition regarding who qualifies as an insured from that mentioned previously in the general business auto coverage form for liability insurance for the employer.

Section B of the UM/UIM policy states:

B. Who is an insured?
1. You
2. If you are an individual, any “family member”.
3. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto”. The covered “auto” must be out of service because of its breakdown, repair, servicing, loss or destruction.
4. Anyone for damages he or she is entitled to recover because of “bodily injury” sustained by another “insured”.

Elam may qualify as an “insured” who is defined as “anyone else” occupying a “covered auto” under section B(3).” Under this provision, Elam must show that he was “occupying” the vehicle. “Occupying” is defined on the third page of the UM/UIM policy as meaning “in, upon, getting in, on, out or off.” In this case, an issue argued by Hartford was whether Elam’s act of washing the vehicle qualifies as “in, upon, getting in, on, out or off.” Certainly, Elam’s varying testimony as noted above indicates that he was at least washing the vehicle, and perhaps even attempting to get into the vehicle to move it when he was injured. At the very least, Elam’s activities when he was hit centered on washing the truck as he was directed to do by his employer. While Elam argues that case law would support a finding that working around the vehicle was sufficient to qualify under this definition of “occupying,” the fact that he gave somewhat differing accounts of the accident could create an issue of fact for a jury, thus rendering summary judgment improper in this case. Certainly, Elam impliedly argues that by law he is entitled to recovery because his actions have qualified, at least in other jurisdictions, as “occupying” the vehicle. Hartford responds that the plain language of the “occupying” definition would exclude coverage to Elam. Because this matter leaves a question of fact open for interpretation, this matter was not proper for summary judgment.

B. Evidence of Milam’s Negligence

Next, in order to recover under the UIM policy, Elam has to show that he was “legally entitled to recover from the owner or operator of’ an underinsured vehicle. Ark. Code Ann. § 23-89-209(a)(3) (Repl. 1999). In Hettel v. Rye, 251 Ark. 868, 475 S.W.2d 536 (1972), this court held that the policy requirement that an insured must be legally entitled to recover from an uninsured motorist is intended only to require a showing of fault on the part of the uninsured motorist. This is particularly true in such a case where the tortfeasor’s insurance company settled the case without any court finding of liability.

Again, summary judgment was improper because the UIM carrier certainly has the right to litigate the tortfeasor’s negligence in order to attempt to reduce or eliminate its liability Hartford argues that Elam alleged no facts to show that Milam was negligent. However, Elam did allege that Milam pulled his truck and trailer up very close to Elam and that he pulled away in a rushed manner. These allegations alone present a genuine issue of fact for the jury to determine whether Milam was negligent and whether Elam was contributorily negligent in this case.

C. Implication that the Policy is Available even in Workers’ Compensation Cases

Finally, it should be noted that the UIM/UM policy in section D “Limit of Insurance” notes that Hartford specifically claims the right of reduction of payments for “all sums paid or payable under a workers’ compensation, disability benefits or similar law....” Whether this clause is valid under Arkansas law is not at issue here, but clearly, Hartford anticipated that a workers’ compensation claimant or employee of the named insured employer may make a claim under the UIM/UM provision of the policy

III. The Motion to Compel Discovery

On this final issue, Elam argues that the trial court erred in fading to grant its discovery request to compel Hartford to produce certain documents, including Elam’s claim file, before granting summary judgment. Because this court has found that summary judgment was not proper, the trial court’s failure to address Elam’s motion to compel discovery is moot at this time.

Reversed and remanded.


author: JIM HANNAH, Justice. Annabelle Clinton Imber, Justice,

text:
    Kenneth G. MIDDLETON, and Lynn Carl Middleton v. Geraldine LOCKHART, Mildred M. Anderson, Joyce M. Henson, and Jessie J. Brewer
    99-1331
    43 S.W.3d 113
    Supreme Court of Arkansas
    Opinion delivered April 26, 2001
    [Petition for rehearing (Lynn Carl Middleton) denied June 7, 2001; petition for rehearing (Kenneth G. Middleton) denied June 21, 2001.]

      Appellant, pro se.

      Martin Law Firm, P.A., by: Thomas A. Martin, for appellants.

      Davis & Goldie, by: Steven B. Davis, for appellees.
   JIM HANNAH, Justice.

This appeal arises from an action under the Fraudulent Conveyance Act and an attempt to execute on a judgment appellees received in Missouri against appellant Kenneth G. Middleton for the murder of his wife, Katherine Middleton. The action in Arkansas was begun here before the judgment was obtained in Missouri in an apparent attempt to preserve the Arkansas assets until the judgment was obtained. Appellants filed several motions to dismiss under Ark. R. Civ. P. 12. The trial court granted two motions to dismiss under Ark. R. Civ. P. 12(b). The complaint was amended several times, and the case reached trial on March 25, 1999. Appellants allege the trial court erred in failing to dismiss under Ark. R. Civ. P. 41(b) when they prevailed under two successive motions to dismiss under Ark. R. Civ. P. 12(b)(6). Appellants also allege res judicata barred the trial of this matter because certain issues decided at trial had already been decided against plaintiffs in the Rule 12 motions. Appellants additionally assert error in finding Kenneth abandoned his homestead right when he murdered his wife. Finally, appellants assert it was error to tax Kenneth’s attorney’s fees as costs against Kenneth and his brother, Lynn Carl Middleton. The issue as to taxing Kenneth’s attorney’s fees as cost against Kenneth and Lynn is reversed and remanded to the trial court for further consideration of costs consistent with this opinion. The case is affirmed in all other respects.

Facts

On February 22, 1991, Kenneth G. Middleton was convicted of the first-degree murder of his wife, Katherine, and sentenced to life without parole for the murder plus 200 years for armed criminal action. On February 27, 1991, Kenneth entered into a contract to convey a tract of land known as the Middleton homeplace to Lynn Carl Middleton, Kenneth’s brother. On March 7, 1991, a warranty deed conveying the land was filed. Additional transactions around this same time make it clear Kenneth was liquidating his assets. On March 11, 1991, Kenneth sold his cattle for $19,000. On March 26, 1991, Kenneth conveyed 265 acres of land to Rocky Lee McCutcheon and Sheila Marie McCutcheon.

Prior to these transfers, Kenneth had been sued on July 19, 1990, by Katherine’s siblings in a wrongful-death action. Trial of the wrongful-death action in Missouri was set for May 26, 1992. On the day of trial, no one appeared on behalf of Kenneth, which resulted in a judgment against him for $1,350,000. Lockhart v. Middleton, 863 S.W.2d 367 (Mo. Ct. App. 1993).

The trial court concluded there was ample evidence Kenneth transferred or conveyed all or substantially all of his assets as of early 1991, and that due to Kenneth’s refusal to comply with discovery, the record did not reflect what, if any, assets he might have retained. The court then considered the transfers and found the conveyance of the 265 acres was for a reasonably equivalent value. Thus no claim of resulting insolvency could be made as to this transfer. However, the trial court found that the Middleton homeplace was not transferred for a reasonably equivalent value. The trial court then found Kenneth abandoned any homestead right he claimed when he murdered his wife and ordered the Middleton homeplace sold at execution sale.

Both Kenneth and his brother, Lynn, raise an asserted marriage-homestead exemption of Kenneth and Katherine as a defense to execution on the Middleton homeplace. Kenneth and Katherine were married in April of 1974. At that time, Kenneth already owned the tract of land referred to as the Middleton homeplace, which is located in Newton County. When the land was conveyed to him in 1973, he noted on the deed that he would offer the land to a brother or sister before it would be sold to anyone else. This deed also contains a provision reserving the right to live in the house to Oshia Middleton for the remainder of her life. The land was in Kenneth’s name and remained so until Kenneth transferred it shortly after his conviction. During the marriage, a 1,663 square foot home and a 2,800 square foot metal budding were erected on the Middleton homeplace. In considering the claim of a homestead exemption, the trial court found a lack of evidence to show an exemption based upon head of household, and found there was conflicting evidence on whether the exemption might be based on marriage. The trial court concluded that whatever interest Kenneth had in the Middleton homeplace as a result of his marriage, he abandoned it when he terminated his marriage by the murder of his wife.

The trial court awarded Kenneth’s attorney a reasonable attorney’s fee pursuant to Ark. Code Ann. § 16-61-109 (1987) in the sum of $14,996.93, to be paid by appellees, and taxed the attorney’s fees as cost to Kenneth and Lynn.

Standard of Review

We review chancery cases de novo on the record, but we do not reverse a finding of fact by the trial court unless it is clearly erroneous. Simmons First Bank v. Bob Callahan Servs., Inc., 340 Ark. 692, 13 S.W.3d 570 (2000); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. Similarly, we review issues of statutory construction de novo, as it is for this court to decide what a statute means. Simmons First Bank, supra; Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this regard, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.; Stephens v. Arkansas School For The Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Buchbinder v. Bank of America, 342 Ark. 632, 30 S.W.3d 707 (2000).

Res Judicata and Arkansas Rule of Civil Procedure 41(b)

Appellants assert that because they prevailed on two motions to dismiss under Ark. R. Civ. P. 12(b)(6), the complaint should have been dismissed under Ark. R. Civ. P. 41(b), and that the trial court was in error when he allowed trial of the matter. Consistent with this assertion, appellants further allege that it was error for the trial court to allow trial on the issues decided in these motions because such consideration was barred by the doctrine of res judicata.

Res Judicata

Under the doctrine of res judicata or claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Francis v. Francis, 343 Ark. 104, 31 S.W.3d 841 (2000); Arkansas Louisiana Gas Co. v. Taylor, 314 Ark. 62, 858 S.W.2d 88 (1993).

As is evidenced by the orders, amended pleadings, and trial, the dismissals in this case were without prejudice. A dismissal without prejudice is not an adjudication on the merits. Benedict v Arbor Acres Farm, 265 Ark. 574, 579 S.W.2d 605 (1979). Res judicata bars relitigation of a subsequent suit when certain elements are met, including a prior judgment on the merits. National Bank of Commerce v. The Dow Chemical Company, 338 Ark. 752, 1 S.W.3d 443 (1999). There was no judgment on the merits and, therefore, res judicata is not applicable.

A review of the pleadings reveals that the appehees in their complaint were asking for the imposition of a constructive trust upon Kenneth’s assets. The amended complaint alleged that Kenneth was attempting to convey his real property for inadequate consideration with the fraudulent intent of depriving the plaintiff of recovery and asked for the imposition of a constructive trust in lieu of a prejudgment attachment. The complaint and amended complaint did not make Lynn a party defendant to this cause of action. On September 16, 1991, the trial judge granted a motion to dismiss under Rule 12(b)(6) and gave the appellee twenty days to plead further to show a property interest upon which a constructive trust might rest.

The appellees filed their second amended complaint, and among other things, made Lynn a party defendant alleging Lynn had actual or constructive possession of personal property belonging to Katherine, and a portion of Katherine’s personal property had been sold, transferred, or assigned by defendants subsequent to Katherine’s death. The second amended complaint did not allege that Kenneth had conveyed real property to Lynn. The issue of whether Kenneth’s transfer of the Middleton homeplace to Lynn was in fraud of creditors under the Fraudulent Conveyance Act was not before the trial court when it considered appellant’s second motion to dismiss. The trial court on May 26, 1992, granted a motion to dismiss under Rule 12(b)(6) except that a constructive trust would be placed on the Middleton homeplace and certain personal property. On the same day, May 26, 1992, the appellees received a judgment against Kenneth in their Missouri wrongful-death case.

On June 12, 1992, the appellees filed their third amended complaint alleging Kenneth’s transfers of the real property to Lynn and to the McCutcheons were fraudulent conveyances in fraud of creditors under the Fraudulent Conveyance Act and should be set aside. The issue of fraudulent conveyance in fraud of creditors under the Fraudulent Conveyance Act was not considered or adjudicated by the trial court in the two dismissals under Rule 12(b)(6). In fact, a cause of action under the Fraudulent Conveyance Act could not have been brought by the appellees until after the Missouri judgment was entered on May 26, 1992, the same date as the second dismissal. Res judicata is not applicable in this case.

Arkansas Rule of Civil Procedure 41(b)

Under Rule 41(b), a plaintiff may suffer an involuntary dismissal for failure to comply with the court’s orders, the court rules, or for inaction in the case. Such a dismissal is with prejudice where the action has been previously dismissed, whether voluntarily or involuntarily. Appellants allege that because they prevailed on two motions to dismiss under Rule 12(b)(6), then Rule 41(b) requires that the cause of action be dismissed.

Appellants cite Bakker v. Ralston, 326 Ark 575, 932 S.W.2d 325 (1996), and Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997), as support for their position. In Bakker, there was a voluntary dismissal under Rule 41(a)(1) followed by a refiling of the suit and a dismissal for failure to obtain service under Ark. R. Civ. P. 4(i), and the court found that Rule 41(b) required the second dismissal to operate as an adjudication on the merits. In Brown, there was a voluntary nonsuit under Rule 41(a)(1) followed by a refiling of the suit and dismissal under Rule 12(b)(6), and this court held that the cause of action should be dismissed with prejudice pursuant to Bakker.

This case has never been dismissed voluntarily or involuntarily under Rule 41. In Bakker and Brown, the same cause of action was dismissed twice. In this case, the cause of action alleging a fraudulent conveyance in fraud of creditors under the Fraudulent Conveyance Act was not decided by the trial court when it granted the two motions to dismiss under Rule 12(b)(6). In fact, this cause of action could not have been filed until the date of the second dismissal. Thus, Bakker and Brown are not applicable to this case. Rule 41(b) is not applicable to this case.

Homestead

Kenneth asserts the Middleton homeplace passed to his brother Lynn free of any claim or lien because of his homestead rights that arose when he married Katherine. It is well established that as to a homestead there are no creditors. Arkansas S & L Ass’n v. Hayes, 276 Ark. 582, 637 S.W.2d 592 (1982); Jones v. Thompson, 204 Ark. 1085, 166 S.W.2d 1036 (1942). The homestead exemption is created by the Arkansas Constitution, Art. 9, § 3. It is neither an estate nor a vested interest, but rather an exemption from legal process. Sulcer v. Northwest Nat’l Ins. Co., 263 Ark. 583, 566 S.W.2d 397 (1978).

Appellees assert no homestead right could have arisen because Kenneth never held any possessory right in the land but rather only that of a remainderman, and such an interest will not support impressment of a homestead right. The assertion of law is correct. If someone holds a life estate, he is the one entitled to the homestead exemption, and the remainderman has no right to an exemption. Brooks v. Goodwin, 123 Ark. 607, 186 S.W. 67 (1916). The argument in this case rests upon an alleged life estate of Oshia Middleton in the Middleton homeplace that is alleged to reduce Kenneth’s right in the land to that of a remainder. However, the deed states, “Oshia Middleton reserves for herself the exclusive right to use and occupy the residence situated on said land for and during the remainder of her lifetime.” Thus, Oshia does not hold a life estate in the land at issue, but rather only in the residence. In White v. Avery, 227 Ark. 819, 822, 302 S.W.2d 88 (1957), this court found the privilege of living in a house does not amount to a grant of a life estate in all the land involved, but rather to the house and so much of the ground adjacent thereto as is reasonably necessary for domestic purposes. Kenneth held title to the remaining iand. Therefore we must further consider his claim of a homestead right.

The object of homestead laws is the protection of the family from dependence and want. Harbison v. Vaughan, 42 Ark. 539, (1884). It is intended to preserve the family home. Bank of Hoxie v. Graham, 184 Ark. 1065, 44 S.W.2d 1099 (1932). Further, the law is to be liberally construed in the interest of the family home. Id.

Any resident of this State of either sex, who is married, or who is the head of a family, is entitled to the homestead exemption under the constitution. Monroe v. Monroe, 250 Ark. 434, 465 S.W.2d 347 (1971). Kenneth asserted that his right to a homestead arose from his status as a married man and as head of household. The trial court correctly found there was an insufficient showing Kenneth’s illegitimate son lived on the homeplace or that Kenneth actually provided for him as a father and, as such, no right of homestead was found to arise as head of household. The trial court then found the evidence was in dispute as to whether Kenneth acquired a homestead as a result of his marriage, but further found that he abandoned any homestead interest he had when he murdered Katherine.

At marriage, Kenneth owned the Middleton homeplace. Pursuant to Art. 9, § 3, of the Arkansas Constitution, as a married man, Kenneth qualified to acquire a homestead in that property. Adams v. Planter’s Prod. Credit Assoc., 262 Ark. 734, 561 S.W.2d 80 (1978). For an impressment of the homestead character to arise, however, there also must be sufficient occupancy to establish a homestead. Prior to attachment of a lien or claim there must be actual occupancy, not a mere intention to occupy. Automotive Supply, Inc. v. Powell, 269 Ark. 255, 599 S.W.2d 735 (1980). There must be good faith occupancy to actually establish a home. Chastain v. Arkansas Bank & Trust Co., 157 Ark. 423, 249 S.W. 1 (1923).

Once the exemption is acquired, continuous occupancy is not required. Temporary removal is not fatal, so long as there is an intent to return. Monroe, supra. Further, the legal presumption is that the homestead right continues until it is clearly shown that it has been abandoned. Vesper v. Woolsey, 231 Ark. 782, 332 S.W.2d 602 (1960). Further, once acquired, a homestead right is not terminated by death of a spouse or departure of children by reaching the age of majority. Butt v. Walker, 177 Ark. 371, 6 S.W.2d 301 (1928); Gray v. Patterson, 65 Ark. 373, 46 S.W. 730 (1898); Stanley v. Snyder, 43 Ark. 432 (1884). Additionally, divorce will not terminate the homestead right in the head of household who continues to occupy the homestead. Jones, supra. Homestead laws are to be liberally construed in favor of the exemption. Rowe v. Gose, 240 Ark. 722, 401 S.W.2d 745 (1966).

The trial court in this case, however, found the evidence in dispute on whether Kenneth satisfied the requirements to establish his homestead rights, but that if he had such a right, he abandoned it when he murdered his wife. A homestead may be abandoned or forfeited. Gibson v. Gibson, 264 Ark. 420, 572 S.W.2d 148 (1978); Maloney v. McCullough, 215 Ark. 570, 221 S.W.2d 770 (1949). As the trial court found, if the evidence shows abandonment, the issue of whether the right was established is resolved as well.

The question of what, if any, effect the murder of one spouse by the other in the context of a homestead right arising from marriage has on a homestead has not been considered by this court. This court in Stanley v. Snyder, supra, stated, however, “The constitution, which contains our homestead statute, has not in express terms anticipated and provided for every possible phase of the question. It therefore devolves upon the courts to construe and apply the law to new cases as they arise.” This is such a case where this court must construe and apply the law to a new situation.

The protection of a homestead exemption that Kenneth now seeks to assert came to him only as a consequence of his marriage to Katherine. Ark. Const. art. 9, § 3. The existence of a family is necessary to the acquisition of a homestead. Stanley, supra. Additionally, apart from his family, a debtor seeking a homestead exemption is entitled to no special consideration. Harbison, supra. Further, a spouse will retain his or her homestead by marriage even if through no fault of his or her own he or she is deserted, or his or her children leave. Stanley, supra. When Kenneth murdered his wife, he was the sole reason the marriage giving rise to his homestead right was terminated. Upon his wife’s murder, all public policy reasons to uphold a homestead right evaporated. Also, Kenneth sought protection in a court of equity and now seeks protection in this court from a judgment arising from injuries caused by his act of murder.

We hold that where a person murders his or her spouse, any homestead rights that person enjoys personally by reason of the marriage to the murdered spouse are extinguished by the murder. The murder would not, however, affect any homestead rights arising from the murderer’s status as head of household where such rights are necessary to provide the homestead protections to children or other dependents of the murderer. See Hollis v. State, 59 Ark. 211 (1894), wherein this court noted that where a man was prosecuted in a criminal case and recovery of costs of prosecution were being sought against the man’s home, his family continued to enjoy the homestead exemption even though the father had escaped from prison and abandoned them.

This conclusion is reached based upon public policy underlying the homestead exemption, the cases cited, and on the general principles that a court of equity is a court of conscience wherein justice is done sometimes stripped of technicalities and red tape, and because a court of equity should consider the relative positions of the various parties and render a decree that does substantial justice to all. Whitaker & Co. v. Sewer Improvement Dist. No. 1, 229 Ark. 697, 318 S.W.2d 831 (1958). Further, courts of equity-are careful to deny any man the advantage of his own wrong. Sliman v. Moore, 198 Ark. 734, 131 S.W.2d 1 (1939). Additionally, it is a familiar principle of law that one who wrongfully kills another is not permitted to share in the other’s estate, to collect insurance on his life, or otherwise to profit by the crime. Horn v. Cole, 203 Ark. 361, 156 S.W.2d 787 (1941). Finally, one who wrongfully kills will not be allowed to profit by it. Luecke v. Mercantile Bank of Jonesboro, 286 Ark. 304, 691 S.W.2d 843 (1985).

Adverse Interest Arising From Refusal to Respond to Discovery

Kenneth asserts the trial court abused its discretion in ordering as a sanction for his refusal to respond to discovery that an inference was established that he transferred or conveyed all or substantially all of his assets and was thereby made insolvent. Kenneth fails to provide authority for his assertion that the trial court’s decision on the discovery was an abuse of discretion. The failure to cite authority is sufficient reason for affirmance of the trial court’s ruling on this point. Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000). However, in any event, Ark. R. Civ. P. 37(b)(2)(A) specifically provides for the sanction imposed.

Attorney’s Fees

Kenneth complains of fees assessed as costs against him by the trial court in an order dated May 24, 1999. Ark. R. Civ. P. 17(c) provides:

(c) Prisoners. No judgment shall be rendered against a prisoner in the penitentiary until after a defense made for him by his attorney, or, if there is none, by a person appointed by the court to defend for him.

Pursuant to this rule, Christopher O. Carter was appointed to represent Kenneth by an order dated February 14, 1997. Arkansas Code Annotated § 16-61-109 (1987) provides for payment of fees of appointed counsel:

A guardian or attorney appointed on the application of the plaintiff to defend for an infant, person of unsound mind, or prisoner shall be allowed a reasonable fee for his services, to be paid by the plaintiff, and taxed in the costs.

The trial court awarded reasonable fees pursuant to Ark. Code Ann. § 16-61-109 (1987), to be paid by the appellees, who were plaintiffs below, but taxed them as costs against appellants, who were defendants below. The statute must be interpreted. The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997).

The statute provides that the attorney appointed shall be allowed a reasonable fee. The word “shall” is now considered mandatory in spite of earlier cases that indicated otherwise. Ramirez v. White County Cir. Ct„ 343 Ark. 372, 38 S.W.3d 298 (2001). Thus, the attorney will receive reasonable fees. The statute further provides that the fees are to be paid by the plaintiff. The May 24, 1999, order stated that pursuant to Ark. Code Ann. § 16-61-109, the entire attorney fee awarded Carter is taxed as cost against Kenneth G. Middleton and Lynn Carl Middleton. The trial court’s decision to assess costs against the Middletons appears to be based at least in part upon their failure to provide an adequate response to requests for information on the sale of the Middleton homeplace. Thus, it appears this decision is based at least in part upon possible violations of Rule 37 of the Arkansas Rules of Civil Procedure rather just than on the cited statute. An award of costs is within the sound discretion of the trial court. Whorton v, Gaspard, 239 Ark. 715, 393 S.W.2d 773 (1965); Lyle v. Latourette, 209 Ark. 721, 192 S.W.2d 521 (1946); First Nat’l Bank of Clarksville v Scranton Coal, 178 Ark. 643, 12 S.W.2d 6 (1928). However, the statute indicates attorney’s fees shall be provided, shall be paid by the plaintiff, and taxed in the costs. This issue must be reversed and remanded for the trial court to determine what costs will be taxed against plaintiffs as a fee and what, if any, costs may otherwise be taxed against the Middletons under the trial court’s right of assessing costs in equity. First Nat’l Bank of Clarksville, supra.

We affirm in part, and reverse and remand in part.

Imber, J. dissents.

Annabelle Clinton Imber, Justice,

dissenting. I write to my strong disagreement with the majority’s Rule 41 (b) holding in this case. Furthermore, although I concur with the majority’s conclusion that the res judicata doctrine is inapplicable because the trial court’s two dismissals pursuant to Ark. R. Civ. P. 12(b)(6) were not final judgments on the merits, I cannot agree with several statements made by the majority regarding the res judicata issue.

In support of its conclusion on the res judicata issue, the majority opinion states: “The issue of fraudulent conveyance in fraud of creditors under the Fraudulent Conveyance Act was not considered or adjudicated by the trial court in the two dismissals under Rule 12(b)(6).” According to the majority opinion, the appellees did not raise the fraudulent-transfer issue until they filed their third amended complaint on June 12, 1992. That statement, however, is not entirely accurate. Although the appellees did not make a fraudulent-transfer allegation in their original complaint, they filed an amended complaint on April 15, 1991, which contained the following allegations:

that following the murder of his spouse, defendant has attempted to divest himself of a portion of the real property at issue in this case to a family member for inadequate financial consideration, with the fraudulent intent of depriving plaintiffs of recovery.
* * *
that [the appellees] will be irreparably harmed if this court does not impose a constructive trust upon the defendant and his property, in that the defendant will render himself insolvent in order to deprive them of any recovery.

The amended complaint was filed after the warranty deed conveying the Middleton homeplace from Kenneth Middleton to Lynn Carl Middleton was recorded on March 7, 1991. Thus, the issue of a fraudulent transfer was raised for the first time in the amended complaint filed on April 15, 1991. The trial court entered its first order of dismissal pursuant to Rule 12(b)(6) on September 18, 1991. In that order, the trial court ruled that “the case should be dismissed under Rule 12b, 6 because it states no cause of action as the pleadings now stand.” (Emphasis added.) The order also provided that the dismissal be “subject to the right of the [appellees] to plead further within twenty days facts which show this court a property interest upon which a constructive trust might rest.” Thereafter, the appellees filed their second amended complaint against the appellants and realleged the allegations contained in their original and amended complaints. On May 26, 1992, the trial court granted a motion to dismiss under Rule 12(b)(6) and dismissed the appellees’ complaint as amended, except as to claims (1) that a trust should be placed on certain personal property and (2) that a constructive trust should be placed on the Middleton homeplace for the decedent’s interest therein that allegedly resulted from the use of marital funds to construct certain improvements on the property. It is therefore clear that the appellees’ fraudulent-transfer allegation was made twice and dismissed twice pursuant to Rule 12(b)(6) before the appellees filed their third amended complaint on June 12, 1992. The majority’s statement to the contrary is simply not supported by the pleadings in this case.

The majority also states that the appellees did not allege a fraudulent transfer in their amended complaint because they did not make Lynn Middleton a party. Likewise, the majority asserts that no allegation of a fraudulent transfer was made in the second amended complaint because, although Lynn was made a party, he was only made a party as to the appellees’ personal property claims. Each of these assertions merely reflects the basis for a Rule 12(b)(6) dismissal by the trial court, and, thus, is nothing more than a red herring. The appellees were attempting to bring a fraudulent-transfer claim in their amended and second amended complaints, but failed to sufficiently state the claim in both pleadings. That is precisely the reason the trial court dismissed the claim twice. By the majority’s reasoning, if a plaintiff attempts to bring a claim but fails to state sufficient facts or name the correct party, thus resulting in a dismissal of the claim, we should act as though the allegation was never made or dismissed. Such reasoning ignores the entire premise of a Rule 12(b)(6) dismissal.

The following statement by the majority raises yet another red herring: “In fact, a cause of action under the Fraudulent Conveyance Act could not have been brought by the appellees until after the Missouri judgment was entered on May 26, 1992, the same date as the second dismissal.” Whether or not the appellees could have brought the claim in their amended and second amended complaint is entirely irrelevant. The important fact is that they were attempting to bring the claim. When a party attempts to bring a claim but does so prematurely, the claim is subject to being dismissed under Rule 12(b)(6), which is exactly what happened here. I cannot agree with the majority that a Rule 12(b)(6) dismissal of a premature claim should simply be ignored.

In any event, the majority’s statement that a cause of action under the Fraudulent Conveyance Act could not have been brought by the appellees until after entry of the Missouri judgment on May 26, 1992, is not supported by law. The Arkansas Fraudulent Transfer Act, prohibits fraudulent transfers “as to present and future creditors.” Ark. Code Ann. § 4-59-204 (Repl. 1996) (emphasis added). Section 4-59-204(a) states, in relevant part: “A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred ...” (Emphasis added.) Furthermore, a “creditor” for purposes of the Act, is any person “who has a claim.” Ark. Code Ann. § 4-59-201(4) (Supp. 1999). Moreover, the term “claim” is defined as “a right to payment, whether or not the right is reduced to judgment, liquidated or unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured,' or unsecured.” Ark. Code Ann § 4-59-201(3)' (emphasis added). Pursuant to the provisions of the Arkansas Fraudulent. Transfer Act, the appellees need not have obtained a judgment in Missouri in order to bring a claim for fraudulent transfer. Their fraudulent-transfer claim could have been asserted when the appellees filed the amended and second amended complaints in this case.

My strongest disagreement, however, is with the majority’s analysis of the two-dismissal ride under Rule 41(b). The question presented is as follows: When there are two involuntary dismissals pursuant to Ark. R. Civ. P. 12(b)(6), does the second Rule 12(b)(6) dismissal operate as an adjudication on the merits pursuant to Rule 41(b)? Rule 41(b) states, in relevant part, that “[i]n any case in which there has been a failure of the plaintiff to comply with these rules [,]” the plaintiff’s case may be involuntarily dismissed. The rule further states: “A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.” Ark. R. Civ. P. 41(b). In Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997), the case was voluntarily nonsuited under Rule 41(a)(1), refiled, and then dismissed pursuant to Rule 12(b)(6). We held that the Rule 12(b)(6) dismissal should have been with prejudice pursuant to Rule 41(b). Id, Thus, a second dismissal of a case under Rule 12(b)(6) qualifies as an involuntary dismissal for Rule 41(b) purposes.

We still must determine whether, for purposes of Rule 41(b)’s two-dismissal rule, the first dismissal may also be a Rule 12(b)(6) dismissal; that is, whether two dismissals pursuant to Rule 12(b)(6) satisfy the requirements of Rule 41(b)’s two-dismissal rule so that the second Rule 12(b)(6) dismissal operates as an adjudication on the merits. The majority concludes that the first dismissal must be pursuant to Rule 41 instead of Rule 12(b)(6): “This case has never been dismissed voluntarily or involuntarily under Rule 41.” However, according to the plain language of Rule 41(b), the first dismissal may be any voluntary or involuntary dismissal. We held in Baker v. Ralston, 326 Ark. 575, 932 S.W.2d 325 (1996), that Rule 41(b) is expressly addressed to a situation similar to the one presented here where there has been more than one dismissal, whether voluntary or involuntary. Although Rule 41 provides that a plaintiff may take a voluntary nonsuit without prejudice, there is a limit to the number of times a case can be dismissed, regardless of whether the dismissals are voluntary or involuntary. Id.; See reporter’s notes to Rule 41.

In summary, pursuant to our holding in Brown v. Tucker, supra, the second dismissal may be a dismissal under Rule 12(b)(6), and pursuant to the plain language of Rule 41(b) and our holding in Baker v. Ralston, supra, the first dismissal may also be a dismissal under Rule 12(b)(6). It makes no sense to hold, as the majority does, that one dismissal for Rule 41(b) purposes may be under Rule 12(b)(6) but the other may not. The majority’s opinion effectively means that a claim may be filed and refiled an endless number of times, despite being repeatedly dismissed on Rule 12(b)(6) grounds, until the applicable statute of limitations expires.

For the above stated reasons, I respectfully dissent. The chancellor’s order denying appellants’ motion to dismiss should be reversed and this case should be dismissed.

       Although not cited by the parties, Rule 18(c) of the Arkansas Rules of Civil Procedure states, in relevant part: “In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to him, without first having obtained a judgment establishing the claim for money” (Emphasis added.)

       The majority opinion does not disagree with this court’s holding in Brown v. Tucker, supra; nor have we been asked to overrule that holding. The majority confuses a dismissal on the merits under the doctrine of res judicata with a Rule 12(b)(6) dismissal when it attempts to distinguish Brown v. Tucker by suggesting that the appellees’ fraudulent conveyance claim “was not decided by the trial court when it granted the two motions to dismiss under Rule 12(b)(6).”