author: DONALD L. Corbin, Justice.

text:
    Paul R. PARKER, Petitioner v. Sharon PRIEST, In Her Official Capacity of Secretary of State of the State of Arkansas, Respondent; Gerald J. Crochet, Jr., Intervenor; Craig Douglass, On Behalf of Arkansans for Amendment 4, Intervenor; Elizabeth Farris, et al., On Behalf of Give Hot Springs the Right to Vote Committee, Intervenors
    96-779
    930 S.W.2d 322
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996
    [Petition for rehearing denied October 21, 1996.]

      Wright & Burke, by: William Randal Wright, for petitioner.

      Winston Bryant, Att’y Gen., by: Kay J Jackson DeMailly, Asst. Att’y Gen., for respondent.
    Intervenor Gerald J. Crochet, Jr., pro se.

      Friday, Eldredge & Clark, by: James M. Simpson and Walter M. Ebel III, for intervenor Craig Douglass.

      Richard L. Henry, for intervenors Elizabeth Farris, et al.
   DONALD L. Corbin, Justice.

Petitioner, Paul R. Parker, and Intervenor, Gerald J. Crochet, Jr., ask us to enjoin Respondent, Secretary of State Sharon Priest, from placing proposed Amendment 4 to the Arkansas Constitution on the ballot for the general election to be held November 5, 1996. Petitioner requests that if the election ballots are printed before this court has a chance to rule on the petition, we enjoin Respondent from counting and canvassing the votes cast with respect to the proposed Amendment 4. We allowed the intervention of two additional parties in this original action, which was filed pursuant to Amendment 7 to the Arkansas Constitution of 1874: Craig Douglass on behalf of “Arkansans For Amendment 4,” the sponsors of the proposed amendment, and Elizabeth Farris and others on behalf of “Give Hot Springs the Right to Vote Committee.” Petitioner and Intervenor Crochet challenge both the ballot tide and the popular name of the proposed amendment. We find no merit to their challenges and deny the petition and request for injunctive relief.

On June 12, 1996, Respondent certified as sufficient the popular name and ballot title of the proposed Amendment 4. As certified by both Respondent and the Arkansas Attorney General, the popular name of the proposed amendment reads as follows:

AN AMENDMENT TO ESTABLISH A STATE LOTTERY; TO PERMIT CHARITABLE BINGO GAMES AND RAFFLES CONDUCTED BY NONPROFIT ORGANIZATIONS; AND TO ALLOW VOTERS IN HOT SPRINGS TO DECIDE WHETHER OR NOT TO AUTHORIZE CASINO GAMBLING AT OR ADJACENT TO THE OAKLAWN RACETRACK AND AT TWO OTHER CASINO ESTABLISHMENTS IN HOT SPRINGS LOCATED AT SITES TO BE APPROVED BY THE GOVERNING BODY OF HOT SPRINGS

The complete text of the ballot tide as certified by both Respondent and the Arkansas Attorney General is appended to this opinion. Relevant portions of the ballot tide are reproduced as needed in our discussion below. Petitioner filed this original action on July 3, 1996. We granted Intervenor Douglass’s motion to expedite this case on September 9, 1996, and heard oral argument on September 23, 1996.

ORIGINAL ACTION PETITION

Petitioner initiated this original action by filing a petition in this court pursuant to Amendment 7 to the Arkansas Constitution of 1874 and Ark. Sup. Ct. R. 6-5. In his petition, Petitioner raises five points for injunctive relief, arguing that the popular name and ballot title are insufficient and misleading because: (1) there is no definition of “state lottery;” (2) there is no geographical location for “voters in Hot Springs;” (3) they are unclear as to whether one or two issues will be decided in the Hot Springs local election on the location of casino gambling; (4) voters will not be able to ascertain in the five minutes they are allotted in the voting booth that the purpose of the proposed amendment is to give Oaklawn Racetrack a constitutionally sanctioned monopoly on for-profit gambling; and (5) they are lengthy, complex, and confusing as they relate to casino gambling. In oral argument, Petitioner’s counsel abandoned the first two of these points. The third point is raised in Intervenor Crochet’s brief and is addressed below. The last two points are raised in Petitioner’s brief and will be addressed below.

In his supporting brief, Petitioner’s challenge has four grounds as to the ballot tide only: (1) the ballot tide is not sufficient to enable a voter to make an intelligent decision as to whether to vote for or against the proposed law; (2) the length, design, and complexity of the ballot tide will prevent the voter from comprehending what choice he is being asked to make in the time allotted a voter; (3) the design of the ballot tide does not enable the voter to comprehend the consequences of voting to approve the proposal as it applies to casino gambling and pari-mutuel wagering at Oaklawn Racetrack; and (4) the ballot tide does not uphold the very purpose of the initiative process.

Intervenor Crochet raises the following four challenges to the ballot tide in his brief: (1) the ballot tide sets a date certain for commencement of casino gambling at Oaklawn, but does not disclose whether and when casino gambling will commence at the other two casinos; (2) the ballot tide does not inform voters that Oaklawn Racetrack is the only pari-mutuel franchisee in Hot Springs; (3) the ballot title misleads voters into thinking more than three casinos will be authorized — an unlimited number at or adjacent to Oaklawn and two elsewhere; and (4) the ballot title does not inform voters of a significant change in the law that it would allegedly achieve — changing the source of the right to conduct dog racing from statutory law to constitutional law. We consider all arguments separately below.

STANDARD OF REVIEW SUFFICIENCY OF POPULAR NAME AND BALLOT TITLE

The popular name is primarily a useful legislative device that need not contain the same detailed information or include exceptions that might be required of a ballot title. Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976) (citing Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)). Ballot titles must include an impartial summary of the proposed amendment that will give voters a fair understanding of the issues presented and of the scope and significance of the proposed changes in the law; they cannot omit material information that would give the voter serious ground for reflection; they must be free from misleading tendencies that, whether by amplification, omission, or fallacy, thwart a fair understanding of the issues presented. Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994); Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994). The popular name is to be considered with the ballot title in determining its sufficiency. Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958).

It is axiomatic that the majority of voters will derive their information about a proposed measure from the ballot title immediately before exercising the right of suffrage. Christian Civic Action Comm., 318 Ark. 241, 884 S.W.2d 605. Thus, it is this court’s duty and responsibility to ensure that when that right of suffrage is exercised as to a proposed amendment to our state’s constitution, the voters are allowed to make an intelligent choice, fully aware of the consequences of their vote. Id.

PETITIONER’S BRIEF

I. INSUFFICIENT TO ENABLE VOTER TO MAKE INTELLIGENT DECISION

Here, Petitioner makes no specific allegation of insufficiency of the ballot tide; he does not identify any specific language as misleading or omitted. Rather, Petitioner merely makes a conclusory allegation that the ballot title is insufficient, cites the applicable standard for our review, and identifies the issue before us as whether the voter, while in the voting booth, will be able to make an intelligent decision as to whether to vote for or against the proposed amendment based on the ballot title alone. Petitioner does not make a legal argument in support of this point, and we will not address the bare allegation any further. Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996).

II. LENGTH, COMPLEXITY, AND DESIGN

Petitioner acknowledges that the length of a ballot tide alone is not a sufficient basis to invalidate it, but contends that length becomes a critical factor when combined with other factors. Specifically, Petitioner contends that the length and manner in which this ballot tide is written places before the voter several considerations such as whether to approve four types of gambling not currently authorized by Arkansas law and the various taxes and distribution of revenues associated with each. Consequently, Petitioner argues that the length, design, and complexity of this ballot title cannot be read and comprehended in the five minutes a voter is permitted to remain in the voting booth pursuant to Arkansas Code Annotated § 7-5-522 (Repl. 1993) and that the ballot title therefore does not adequately inform the voter of the changes in the law that he is asked to make.

When previously considering a proposed amendment with objectives similar to the current one, this court quoted its earlier statement to the effect that while neither length nor complexity of the ballot title should be a controlling factor, they are considerations in determining whether a voter can make an intelligent decision based on the ballot title. Christian Civic Action Comm., 318 Ark. 241, 247, 884 S.W.2d 605, 608 (quoting Dust v. Riviere, 277 Ark. 1, 6, 638 S.W.2d 663, 666 (1982)). This court concluded in Christian Civic Action Committee that the ballot title had a fatal misleading tendency due to the combination of its length of 709 words, its use of specialized terminology that obscured meaning, and its artful amplifications and omissions that concealed the proposed amendment’s potential effect. See id. at 250, 884 S.W.2d at 610.

In considering Petitioner’s argument, we find it significant that he does not suggest that the language of the ballot title misrepresents the text of the proposed amendment or that any material language is omitted from the ballot title. Rather, he contends that the voter will be confused by the presence of multiple considerations in the ballot tide, specifically the consideration of four types of gambling along with the considerations that each form of gambling has a different taxation formula with nonuniform distribution of revenues generated.

According to Petitioner, the length of the entire ballot tide at issue here is 482 words. The portions of the ballot tide relevant to this argument are as follows:

A PROPOSED AMENDMENT TO THE ARKANSAS CONSTITUTION TO ESTABLISH A STATE-OWNED LOTTERY, TO BE REGULATED BY THE GENERAL ASSEMBLY; REQUIRING ALL STATE LOTTERY PROCEEDS, LESS EXPENSES AND PRIZES, TO BE APPROPRIATED AS FOLLOWS: 50% FOR LAW ENFORCEMENT, AND 50% TO LOCAL PUBLIC SCHOOL DISTRICTS (ALLOCATED BY AVERAGE DAILY ATTENDANCE); . . . PROVIDING BINGO GAMES AND RAFFLES MAY BE CONDUCTED FOR CHARITABLE PURPOSES BY NONPROFIT ORGANIZATIONS, AND SHALL BE REGULATED BY THE GENERAL ASSEMBLY; PROVIDING IF AUTHORIZED BY VOTERS IN THE CITY OF HOT SPRINGS, CASINO GAMBLING SHALL BE LAWFUL ... IN HOT SPRINGS . . . REQUIRING THE GENERAL ASSEMBLY TO LEVY A PRIVILEGE TAX ON CASINO OPERATORS OF 14% TO 18% OF NET CASINO GAMBLING REVENUES; PROHIBITING OTHER SPECIAL TAXES OR FEES WITH RESPECT TO CASINO GAMBLING OR RELATED ACTIVITIES; ALLOCATING SUCH PRIVILEGE TAX 85% TO THE STATE, 10% TO HOT SPRINGS, AND 5% TO GARLAND COUNTY[.]

The ballot tide accurately summarizes the text of the proposed amendment with respect to each type of gambling authorized and the respective distribution of proceeds and tax revenues. There is nothing so complex about this ballot tide that a voter could not understand. The language is plain and organized in a coherent manner with the respective provisions relating to proceeds and revenue distributions following each type of gambling authorized. We find that no material omissions have been made and that the ballot tide is not misleading so as to thwart a fair understanding of these issues. Likewise, we find the ballot tide is not so complex as to be beyond the voter’s comprehension. Although for purposes of reviewing the particulars of this argument the foregoing quotation shortens the ballot tide considerably, we find the total length of 482 words to be of no consequence, especially when considered in fight of the absence of any misleading tendencies.

We note that some of the specific terminology used in this ballot tide was tacidy approved in Christian Civic Action Committee, 318 Ark. 241, 248, 884 S.W.2d 605, 609, where this court stated that most voters could readily understand the use of words such as “state lottery,” “charitable bingo and raffles,” and “pari-mutuel wagering.” It was, among other things, the use of the words “additional racetrack wagering” to mean casino-style gambling that created the misleading tendency in that case. The current ballot tide clearly refers to casino gambling as casino gambling.

In short, we are unwilling to hold this ballot tide misleading simply because it presents multiple considerations to the voters. Our duty is to ensure that those considerations are presented to the voters in an impartial ballot title so that voters can make intelligent choices. Dust, 277 Ark. 1, 638 S.W.2d 663. We are convinced that such has been done in this case.

III. MONOPOLY ON CASINO GAMBLING AND PARIMUTUEL WAGERING

Petitioner contends that the primary purpose in the design of the ballot tide is to disguise the true focus of the proposed amendment — casino gambling at Oaklawn Racetrack. While it is not disputed that Oaklawn Racetrack supports this proposed amendment, Petitioner offers no evidence that casino gambling at Oaklawn is the “true focus” of the proposal. To the contrary, we find no merit to this contention since the proposal also establishes a state lottery, charitable bingo and raffles, and casino gambling at two sites in Hot Springs other than Oaklawn Racetrack. Moreover, the ballot title is very clear in its terms that casino gambling will be authorized “at or adjacent to Oaklawn Racetrack.” Thus, even if this were the “true focus” of the proposal, it is clearly disclosed in the ballot title and popular name.

Petitioner contends further that the effect of the proposed amendment is to grant the pari-mutuel franchisee at Oaklawn Racetrack a constitutionally sanctioned monopoly inasmuch as it will be the only entity to provide both pari-mutuel wagering and casino gambling in Hot Springs. Even assuming arguendo that the proposed amendment will achieve the effect Petitioner alleges it will, that effect is clearly stated in the ballot title for the reasons expressed below in addressing Intervenor Crochet’s second point. Additionally, to call the combination of two types of gambling a “monopoly” is a stretch of that word’s definition when four types of gambling would actually be legalized if the proposal passes: state-owned lottery, charitable bingo and raffles, casino gambling, and pari-mutuel wagering.

IV PURPOSE OF INITIATIVE PROCESS

Petitioner contends that, as used by the drafters of the proposed amendment, the initiative power reserved by the people in Amendment 7 to the Arkansas Constitution of 1874 will be manipulated to promote the financial gain of a few. Petitioner argues that the proposed amendment will thereby defeat the purpose of the initiative process, which is, Petitioner contends, to permit the people to exercise some control over the policies of this state. Conversely, the responsive argument is that the initiative process is undermined when a few persons act to prevent the voters from receiving the opportunity to exercise their votes.

Initially, we perceive at least three purposes of the proposed amendment: (1) to establish a state-owned lottery; (2) to establish charitable bingo and raffles; and (3) to establish casino gambling at three locations in Hot Springs. Thus, it is questionable whether the sole benefit of this proposal would be the financial gain of a few.

There can be no doubt that the power reserved to the people in the Initiative and Referendum Amendment, Amendment 7 to the Arkansas Constitution of 1874, is a cornerstone of our state’s democratic government. When considering the Initiative and Referendum Amendment, this court has said, “the voters of this state essentially have, within constitutional limits, a right to change any law or any provision of our Constitution they deem appropriate through Amendment 7 to the Constitution.” Dust, 277 Ark. at 4, 638 S.W.2d at 665. That is indeed the purpose of the initiative process. It follows that this court’s sole function in such a process is to ensure that the ballot tide represents the proposed amendment in an honest, impartial, and intelligible manner. Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952). It is not our fimction to express our view on, or to determine the merits of, a proposed measure — that power is expressly reserved to the people. The purpose of the initiative process is not undermined by the presentation to the voters of an issue that directly benefits a relative few of the people so long as the benefits to the few were not concealed from the voters. Once the initiated proposal is put to a vote, the people then have their say — they may either accept or reject the proposal with a majority vote. The initiative process is not undermined when the people vote on an issue that was presented to them in a fair and intelligible manner.

As evidence that the ballot tide manipulates the initiative process, Petitioner contends that it is designed so that easily understood concepts appear at the beginning, with the more complex concepts appearing near the end. Counsel for Intervenor Douglass explained during oral argument that, although the proposal was not drafted in any particular order, there was a decision to place the lottery first due to the current prohibition of lotteries in our constitution, art. 19, § 14, Ark. Const, of 1874. We find nothing misleading about this decision given our state’s historical constitutional prohibition of lotteries since statehood. See Christian Civic Action Comm., 318 Ark. at 254, 884 S.W.2d at 612 (Dudley, J., dissenting). Finally, we note that this argument is nothing more than a repeat of Petitioner’s Point II, which we have already rejected.

INTERVENOR CROCHETS BRIEF I. DATES CASINO GAMBLING WILL BEGIN

Intervenor Crochet contends that the proposed amendment provides a date certain and immediate upon which casino gambling will be begin at Oaklawn Racetrack, but does not provide a date certain upon which casino gambling will begin at the other two casinos, or if casino gambling will begin there at all. Intervenor Crochet argues that the ballot tide omits this alleged advantage to Oaklawn Racetrack and is therefore tainted with partisan coloring.

The ballot tide does not mention any date upon which casino gambling may begin in Hot Springs, whether it be at Oaklawn or the other two sites. However, neither does the proposed amendment. Intervenor Crochet’s argument is therefore based upon a false premise.

As Respondent points out, the ballot title accurately describes a two-step process that would determine when gambling at casinos could begin in Hot Springs. First, the voters of Hot Springs must vote to approve the basic issue of whether to allow casino gambling in their city. Second, following approval by Hot Springs voters, casino gambling may not begin at any of the three locations until a casino operator’s license is obtained from the state. Thus, the commencement dates for any and all casino gambling in Hot Springs are subject to voter approval and state licensing requirements. Quite simply, there is no date certain set for casino gambling at Oaklawn Racetrack.

It is true that, as Intervenor Crochet contends, Oak-lawn would immediately be an approved site for a casino while the location of the two other sites would be subject to local approval in Hot Springs. However, that difference is clearly disclosed in the ballot tide as follows:

IF AUTHORIZED BY VOTERS IN THE CITY OF HOT SPRINGS, CASINO GAMBLING SHALL BE LAWFUL AT OR ADJACENT TO THE OAKLAWN RACETRACK, WHEN CONDUCTED BY A PARIMUTUEL FRANCHISEE, AND AT TWO OTHER CASINO ESTABLISHMENTS IN HOT SPRINGS LOCATED AT SITES TO BE APPROVED BY THE GOVERNING BODY OF HOT SPRINGS . . . PROVIDING THE GENERAL ASSEMBLY SHALL REGULATE SUCH CASINO GAMBLING AND PRESCRIBE PROCEDURES FOR ISSUING CASINO OPERATOR LICENSES TO A PARI-MUTUEL FRANCHISEE AND TWO OTHER PERSONS OR ENTITIES [.]

We do not perceive the difference as being advantageous to Oak-lawn Racetrack because the ultimate authority to determine when casino gambling will begin at all three locations rests with the state’s licensing agency. That fact, too, is disclosed in the ballot title. Although a ballot tide need not disclose every detail of the proposed law, it is sufficient if it conveys the scope and import of the proposed law. Bradley, 220 Ark. 925, 251 S.W.2d 470. The ballot tide, as quoted in part above, adequately summarizes the proposed law.

II. PARI-MUTUEL FRANCHISEE IS OAKLAWN

Intervenor Crochet contends that the ballot title is misleading because it states that casino gambling at Oaklawn Racetrack will be conducted by a pari-mutuel franchisee but does not inform the voters that there is only one pari-mutuel franchisee in Hot Springs, namely the entity that operates Oaklawn Racetrack. Conversely, Respondent contends that the ballot title contains all the information necessary for voters to identify the pari-mutuel franchisee. We agree with Respondent.

The current ballot tide defines “pari-mutuel franchisee” as “a person or entity that holds a pari-mutuel franchise and conducts pari-mutuel wagering on horse racing at Oaklawn Racetrack^]” The current ballot tide also defines “Oaklawn Racetrack” as “the Oaklawn Racetrack site in Hot Springs where pari-mutuel wagering on horse racing was conducted in 1995[.]” Thus, when the ballot title states that “casino gambling shall be lawful at or adjacent to Oaklawn Racetrack, when conducted by a pari-mutuel franchisee,” there can be no doubt that the pari-mutuel franchisee is indeed Oaklawn Racetrack and no other entity. We find nothing misleading about this language. Intervenor Crochet argues that this language is misleading because it refers to Oaklawn as “a” parimutuel franchisee instead of “the” pari-mutuel franchise. We are convinced that voters will understand that “a” pari-mutuel franchisee refers to Oaklawn Racetrack. Moreover, Intervenor Crochet is not entided to a ballot tide that pleases him personally, as this court has previously recognized the impossibility of drafting a ballot tide that would suit everyone. Hogan v. Hall, 198 Ark. 681, 130 S.W.2d 716 (1939), cited with approval in Bradley, 220 Ark. 925, 251 S.W.2d 470.

III. MORE THAN THREE CASINOS

Intervenor Crochet contends that, while the proposed amendment limits the number of locations where casino gambling is authorized to three, the language of the ballot tide will mislead voters into thinking that more than three casino locations are authorized — two at sites other than Oaklawn Racetrack and an unlimited number at or adjacent to Oaklawn Racetrack. Intervenor Crochet contends that the proposal will authorize as many casinos as there are tracts of land adjacent to Oaklawn Racetrack.

We find nothing misleading about the following language of the ballot tide: “If authorized by voters . . . casino gambling shall be lawful at or adjacent to the Oaklawn Racetrack . . . and at two other casino establishments in Hot Springs located at sites to be approved by the governing body of Hot Springs[.]” We have no hesitancy in concluding that the voter will be able to understand that the words “two other casino establishments” mean that a total of only three casino locations will be authorized. We are confident that any potential abuse resulting from the use of the term “casino establishments” would be remedied through regulation by the state as provided in the proposed amendment.

IV. PARI-MUTUEL WAGERING ON DOG RACING

Intervenor Crochet contends that the ballot title is misleading because it does not inform voters of a substantial change in the law, namely that the proposed amendment will now constitutionally authorize pari-mutuel wagering on dog races. This argument is based upon an entirely false premise and is therefore wholly without merit.

It is true that pari-mutuel wagering on dog racing is currently allowed in this state not by way of constitutional law but by way of statutory law. Ark. Code Ann. §§ 23-111-101 to -515 (Repl. 1992 & Supp. 1995); Scott v. Dunaway, 228 Ark. 943, 311 S.W.2d 305 (1958). However, it is not true that the proposed amendment would change the law so that pari-mutuel wagering on dog races would be constitutionally authorized.

The ballot tide and proposed amendment prohibit wagering activities, including lotteries, casinos, and gambling activities other than pari-mutuel wagering on horses and dogs, that are not authorized in this proposal or other proposals passed in the November 5, 1996, election. While this language does not prohibit parimutuel wagering on dog racing, it does not expressly authorize it via the proposed constitutional amendment either. Moreover, this language does not change Arkansas law; it simply preserves the status quo. The fact that pari-mutuel wagering on dog racing is not prohibited by our current constitution or the proposed amendment simply does not mean that such wagering would be constitutionally authorized if the proposed amendment passes.

All arguments presented are without merit. Accordingly, we deny the petition for injunction.

ADDENDUM

The following is the complete text of the ballot title of proposed Amendment 4:

A PROPOSED AMENDMENT TO THE ARKANSAS CONSTITUTION TO ESTABLISH A STATE-OWNED LOTTERY, TO BE REGULATED BY THE GENERAL ASSEMBLY; REQUIRING ALL STATE LOTTERY PROCEEDS, LESS EXPENSES AND PRIZES, TO BE APPROPRIATED AS FOLLOWS: 50% FOR LAW ENFORCEMENT, AND 50% TO LOCAL PUBLIC SCHOOL DISTRICTS (ALLOCATED BY AVERAGE DAILY ATTENDANCE); EXPRESSING INTENT THAT SUCH APPROPRIATIONS BE IN ADDITION TO AND NOT A SUBSTITUTE FOR FUNDS OTHERWISE APPROPRIATED FOR SUCH PURPOSES; PROHIBITING SALE OF LOTTERY TICKETS TO MINORS OR THROUGH PURCHASER-OPERATED DEVICES; PROVIDING BINGO GAMES AND RAFFLES MAY BE CONDUCTED FOR CHARITABLE PURPOSES BY NONPROFIT ORGANIZATIONS, AND SHALL BE REGULATED BY THE GENERAL ASSEMBLY; PROVIDING IF AUTHORIZED BY VOTERS IN THE CITY OF HOT SPRINGS, CASINO GAMBLING SHALL BE LAWFUL AT OR ADJACENT TO THE OAKLAWN RACETRACK, WHEN CONDUCTED BY A PARI-MUTUEL FRANCHISEE, AND AT TWO OTHER CASINO ESTABLISHMENTS IN HOT SPRINGS LOCATED AT SITES TO BE APPROVED BY THE GOVERNING BODY OF HOT SPRINGS; DEFINING CASINO GAMBLING AS WAGERING ON GAMES PLAYED WITH CARDS, DICE, OR ANY MECHANICAL, ELECTRICAL, ELECTRONIC, ELECTROMECHANICAL OR COMPUTER DEVICE; DEFINING OAKLAWN RACETRACK AS THE OAKLAWN RACETRACK SITE IN HOT SPRINGS WHERE PARI-MUTUEL WAGERING ON HORSE RACING WAS CONDUCTED IN 1995; DEFINING PARI-MUTUEL FRANCHISEE AS A PERSON OR ENTITY THAT HOLDS A PARI-MUTUEL FRANCHISE AND CONDUCTS PARI-MUTUEL WAGERING ON HORSE RACING AT OAKLAWN RACETRACK; PROVIDING FOR A LOCAL ELECTION IN HOT SPRINGS 90 TO 150 DAYS AFTER PASSAGE OF THE AMENDMENT AND FOR FUTURE ELECTIONS IN HOT SPRINGS REGARDING AUTHORIZATION OF CASINO GAMBLING AT THE LOCATIONS SET FORTH ABOVE; PROVIDING THE FORM OF BALLOT QUESTION FOR ANY SUCH LOCAL ELECTION; PROVIDING IF CASINO GAMBLING IS AUTHORIZED BY HOT SPRINGS VOTERS, SUCH AUTHORIZATION MAY NOT BE AMENDED OR REPEALED EXCEPT AT A SUBSEQUENT LOCAL ELECTION HELD NO EARLIER THAN FIVE YEARS THEREAFTER; PROVIDING THE GENERAL ASSEMBLY SHALL REGULATE SUCH CASINO GAMBLING AND PRESCRIBE PROCEDURES FOR ISSUING CASINO OPERATOR LICENSES TO A PARI-MUTUEL FRANCHISEE AND TWO OTHER PERSONS OR ENTITIES; PROVIDING CASINO GAMBLING AT OR ADJACENT TO OAKLAWN RACETRACK SHALL NOT BE LIMITED TO TIMES WHEN PARI-MUTUEL WAGERING IS CONDUCTED; REQUIRING THE GENERAL ASSEMBLY TO LEVY A PRIVILEGE TAX ON CASINO OPERATORS OF 14% TO 18% OF NET CASINO GAMBLING REVENUES; PROHIBITING OTHER SPECIAL TAXES OR FEES WITH RESPECT TO CASINO GAMBLING OR RELATED ACTIVITIES; ALLOCATING SUCH PRIVILEGE TAX 85% TO THE STATE, 10% TO HOT SPRINGS, AND 5% TO GARLAND COUNTY; PROHIBITING PERSONS UNDER AGE 21 FROM PARTICIPATING IN CASINO GAMBLING; PROHIBITING WAGERING ACTIVITIES OTHER THAN PARI-MUTUEL WAGERING ON HORSES AND GREYHOUNDS AND THOSE ACTIVITIES AUTHORIZED BY THE AMENDMENT OR ANY OTHER AMENDMENT(S) TO THE ARKANSAS CONSTITUTION APPROVED BY VOTERS AT THE NOVEMBER 5, 1996 GENERAL ELECTION; REPEALING ALL CONSTITUTIONAL PROVISIONS AND LAWS TO THE EXTENT THEY CONFLICT WITH THE AMENDMENT; RETAINING THE EXISTING CONSTITUTIONAL PROVISION MAKING HORSE RACING AND PARI-MUTUEL WAGERING THEREON LAWFUL IN HOT SPRINGS; RENDERING THE PROVISIONS OF THE AMENDMENT SEV-ERABLE; AND DECLARING THE AMENDMENT OPERATIVE UPON PASSAGE.

       Petitioner identifies the four types of gambling as (1) a state-owned lottery, (2) bingo games and raffles, (3) casino gambling at or adjacent to Oaklawn Racetrack, and (4) casino gambling at two other locations in Hot Springs.


source: Caselaw Access Project

author: Donald L. CORBIN, Justice. ROBERT L. Brown, Justice, DAVID Newbern, Justice,

license: Public Domain

text:
    Lorine PASTCHOL v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, as Insurer of Magnolia Hospital; Scott McMahen, M.D., P. A.; Dan Bocan, C.R.N.A.; P. Clark, R.N.; K. Whitehead, R.N.; and R. Canterbury, R.N.
    95-1167
    929 S.W.2d 713
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996

      David J Potter, for appellant.

      Anderson & Kilpatrick, by; Overton S. Anderson and Mariam T. Hopkins, for appellee St. Paul Fire & Marine Ins. Co. as insurer of Magnolia Hospital; Dan Bocan, C.R.N.A.; K. Whitehead, R.N.; and R. Canterbury, R.N.

      Shackleford, Shackleford & Phillips, by: Dennis Shackleford, for appellee Scott McMahen, M.D.

      Dunn, Nutter, Morgan & Shaw, by; Gary Nutter, for appellee P. Clark, R.N.
   Donald L. CORBIN, Justice.

Appellant, Lorine Pastchol, appeals the order of the Columbia County Circuit Court granting summary judgment to appellees, St. Paul Fire & Marine Insurance Company, Scott McMahen, Dan Bocan, P. Clark, K. Whitehead, and R. Canterbury, on the ground that the statute of limitations expired prior to the filing of this medical malpractice claim involving the death of her brother. Jurisdiction is properly had in this court pursuant to Ark. Sup. Ct. R. l-2(a)(3) and (16). In support of this appeal, appellant contends the trial court erred in granting summary judgment in applying the wrong statute of limitations; in disregarding the doctrine of continuous treatment; and in refusing to allow appellant to substitute herself as decedent’s administratrix as the real party in interest to this action pursuant to Ark. Code Ann. § 16-62-101 (1987). We affirm the judgment of the trial court.

Rule 56(c) of the Arkansas Rules of Civil Procedure provides that summary judgment is to be rendered only in those instances where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The burden of sustaining a motion for summary judgment is the responsibility of the moving party. Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (1993). All proof submitted must be viewed in a light most favorable to the non-moving party and any doubts or infer-enees must be resolved against the moving party. Green v. National Health Labs., Inc., 316 Ark. 5, 870 S.W.2d 707 (1994).

PROCEDURAL HISTORY

Appellant filed her original complaint on September 7, 1993, alleging a cause of action against appellees for medical malpractice and the wrongful death of her brother Idell Burton. Two amended complaints were subsequendy filed. According to those complaints, Mr. Burton was admitted to the Magnolia Hospital in Magnolia, Arkansas, on August 25, 1991, complaining of abdominal pain, nausea, and vomiting. The following day, surgery was performed on Mr. Burton to repair a perforated duodenal ulcer. While he was receiving anesthesia, but before the surgery had begun, Mr. Burton vomited and aspirated the contents of his stomach, depositing said contents into his lungs. Appellant alleges that as a result, Mr. Burton’s lungs were severely damaged and that the aspiration of the stomach contents into his lungs was the result of the negligent conduct of the appellees. Mr. Burton died during transport to Baptist Medical Center in Little Rock, Arkansas, on September 5, 1991.

Appellees subsequently filed motions for summary judgment and dismissal on the basis that appellant’s claim was barred by the statute of limitations and that appellant had no standing to bring suit. The trial court granted appellees’ motions and dismissed the case based on its findings that appellant’s claim was filed after the expiration of the two-year statute of limitations period provided in the Medical Malpractice Act at Ark. Code Ann. § 16-114-203 (1987). The trial court reasoned that because appellant alleged a medical injury to the decedent, the suit was one of medical malpractice, rather than wrongful death, and that the date the cause of action accrued was the date the decedent underwent surgery, August 26, 1991. Additionally, the trial court determined that appellant had no standing to pursue a claim of survival pursuant to section 16-62-101, as she was not the executor nor administrator of the decedent’s estate and therefore not a proper party to bring suit.

I. STATUTE OF LIMITATIONS

Appellant argues that this case is one of wrongful death, not medical malpractice, and as such the trial court should have applied the three-year statute of limitations for wrongful-death actions as provided in Ark. Code Ann. § 16-62-102 (1987), instead of the two-year period for medical malpractice actions found in section 16-114-203. Appellant asserts that these two causes of action are separate and distinct even though the cause of death in this case is alleged to have resulted from a medical injury. Our case law does not support appellant’s position.

In the recent case of Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996), we reaffirmed our holding in Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), and recognized that the Medical Malpractice Act applies to all causes of actions for medical injury arising after April 2, 1979, and that it supersedes any inconsistent provision of law. Ark. Code Ann. § 16-114-202 (1987). In an effort to resolve the conflict between the two actions and their respective statutes of limitations, we concluded in Hertlein that any medical injury, even one resulting in the death of a person, is governed by the Medical Malpractice Act and not the wrongful-death statute. Thus, the controlling statute of limitations is the two-year period found in section 16-114-203(a), which provides that, “[a]ll actions for medical injury shall be commenced within two (2) years after the cause of action accrues.” Ark. Code Ann. § 16-114-201(3) (1987) defines medical injury as:

any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.

Clearly, the case at hand involves a medical injury; thus, appellant’s cause of action is one of medical malpractice, which must have been filed within two years after the cause of action accrued. We therefore conclude the trial court was correct in applying a two-year statute of limitations period. Given that, our inquiry must now focus on the more complicated issue of when this cause of action accrued.

II. ACCRUAL OF THE CAUSE OF ACTION

Section 16-114-203(b) provides that the date a cause of action for medical malpractice accrues is “the date of the wrongful act complained of and no other time.” (Emphasis added.) Appellant argues that this cause of action accrued on the date of the decedent’s death, September 5, 1991, based on the common-law doctrine of continuous treatment. Appellees argue that the applicable date in this case is August 26, 1991, the date the decedent underwent surgery and the date on which the alleged wrongful act complained of occurred. Appellees further argue that the doctrine of continuous treatment does not apply in this case because the only act or wrong complained of was the single, isolated incident which occurred during surgery. Appellees support this position by pointing out that appellant does not allege any acts of malpractice occurring during any treatment after the surgery. Moreover, during oral argument before this court, counsel for appellees stated, and counsel for appellant did not contest on rebuttal, that appellees did not even participate in the post-surgery treatment of the decedent.

Appellant concedes that the only act of negligence alleged is that which occurred during the induction of anesthesia before the decedent’s surgery on August 26, 1991. Appellant also admits that the post-surgery treatment of the decedent was proper; however, she maintains that because the decedent was continually under medical treatment until his death, the cause of action did not accrue until the date of the decedent’s death. We believe appellant’s reb-anee on the doctrine of continuous treatment is misplaced, as that doctrine was not designed to extend the statute of limitations period in cases where only a single, isolated act of malpractice or negligence is alleged.

This court adopted the continuous treatment doctrine in Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988). In that case, Dr. Lane had given narcotic injections to his wife over the course of many years to treat her migraine headaches. As a result of the injections, Ms. Lane suffered scarring and drug addiction. Dr. Lane moved for summary judgment and a directed verdict on the ground that the statute of Hmitations barred the claim, but the trial court denied his motion even though the initial injurious treatment occurred more than two years before suit was filed. In recognition of the vahdity of the continuous treatment doctrine, we held that:

In contrast to the so-called continuing tort theory, based on a single negligent act, the continuous treatment doctrine becomes relevant when the medical negligence consists of a series of negligent acts, or a continuing course of improper treatment.

Id. at 675, 752 S.W.2d at 27 (emphasis added).

We further concluded that the doctrine’s application is proper in situations where a patient receives a series of treatments for which no single treatment caused the harm; rather the harm resulted from the cumulative effect of the multiple treatments. In such a situation it would be unfair to require the patient to pinpoint the one particular treatment which caused the injury. That is clearly not the situation before us. In the case at hand, there was no series of improper or negligent treatments which would make it difficult for appellant to identify the act which caused the medical injury. To the contrary, appellant points to but one act of negligence, namely the decedent’s aspiration during the administration of anesthesia. The facts of this case are thus distinguishable from those present in the Lane case.

Similarly, in Taylor v. Phillips, 304 Ark. 285, 801 S.W.2d 303 (1990), this court applied the continuous-treatment doctrine. In that case, Dr. Phillips had performed oral surgery on Mr. Taylor, placing a brace in his jaw on September 8, 1987. During subsequent follow-up visits with Dr. Phillips, Mr. Taylor complained of various problems with the brace. At one point during the course of the treatment, Dr. Phillips repositioned the jaw bones and advised Mr. Taylor to continue to wear the brace. Approximately one month later, Mr. Taylor again complained about the jaw, and this time Dr. Phillips advised that further surgery would be needed. In the meantime, on December 8, 1987, Mr. Taylor consulted with Dr. Phillips’s partner who took x-rays of the jaw and manually repositioned the jaw bones after cutting the brace. On December 9, 1987, Dr. Phillips consulted with his partner and both agreed that further surgery in the form of a bone graft operation was needed. Mr. Taylor filed suit on October 16, 1989, alleging that Dr. Phillips was negligent in his care and treatment of Mr. Taylor. Based upon those facts, this court held that the application of the continuous-treatment doctrine was proper based upon our prior ruling in Lane as well as the holdings of various cases in other jurisdictions.

One of the cases relied upon by the majority in Taylor, was Farley v. Goode, 252 S.E.2d 594 (1979). In Farley, the appellant was treated by a dentist over a period of years and she alleged that his diagnosis and treatment of her was negligent. The Supreme Court of Virginia held that when malpractice is alleged to have occurred during a continuous and substantially uninterrupted course of examination and treatment, the cause of action accrues and the statute of limitations begins to run when the improper course of examination and treatment for the particular malady terminates. In a concurring opinion in Taylor, it was pointed out that the Virginia court in Farley noted that where the alleged malpractice constitutes a single, isolated act, the continuous-treatment doctrine would not apply. Taylor, 304 Ark. 285, 801 S.W.2d 303 (Newbern, J., concurring), (citing Farley, 252 S.E.2d 594).

The facts of this case differ considerably from the facts present in Taylor, 304 Ark. 285, 801 S.W.2d 303. Unlike the situation in Taylor, appellant concedes that the treatment of the decedent following surgery was entirely proper. In the Taylor case, the complaint alleged that Dr. Phillips was negligent in his overall care and treatment of Mr. Taylor; the complaint did not allege any negligence in the surgery performed on September 8, 1987. In other words, the complaint in Taylor can be distinguished on the bases that there was no allegation that a single, isolated act of negligence caused Mr. Taylor’s injury; rather, the complaint alleged his injury stemmed from the entire series of negligent treatments of his jaw injury.

In our most recent application of this doctrine, Tullock, 311 Ark. 564, 845 S.W.2d 517, we upheld the trial court’s granting summary judgment to Dr. Eck on the grounds that Ms. Tullock’s claim was barred by the two-year statute of limitations. In that case, Ms. Tullock alleged that on November 30, 1987, Dr. Eck negligently prescribed an estrogen supplement to her knowing that she had a mass in her breast and that she had not had a biopsy performed. Ms. Tullock refilled the prescription on June 9, 1988, and again on November 10, 1988, providing her with medication until May 1989. When Ms. Tullock saw a different doctor in June of 1989, she discovered that the mass in her breast was malignant and that the cancer was estrogen dependent. She filed suit against Dr. Eck in December of 1990, approximately three years and one month following the alleged negligent act of prescribing the estrogen. This court concluded that because the negligent act or conduct occurred on November 30, 1987, when Dr. Eck prescribed the estrogen, and because Ms. Tullock had no further contact with Dr. Eck, other than refilling the prescription, the continuous treatment doctrine did not apply. The factual situation in Tullock is comparable to this case in that Ms. Tullock was able to identify the single act of negligence, the initial prescription of estrogen. Ms. Tullock was not placed in the awkward and often impossible position of trying to identify the harmful act amongst a series of otherwise unharmful acts.

In the case at hand, appellant complains of only one single, isolated act of negligence which occurred on August 26, 1991, during the induction of anesthesia immediately before the decedent’s surgery. No further acts of negligence occurred. Furthermore, appellees Dr. McMahen, the surgeon, Dan Bocan, the anesthetist, and the three nurses, P. Clark, K. Whitehead, and R. Canterbury had no further participation in the treatment of decedent up to the time of his death on September 5, 1991. The mere fact that the decedent remained in the hospital under a doctor’s care until his death does not demonstrate a continuing course of improper treatment which would toll the statute of limitations and, therefore, we decline to apply the doctrine to the facts of this case. Were we to hold otherwise, the statute of limitations would cease to exist in instances where a single act of malpractice is followed by the prolonged hospitalization and subsequent death of the patient, even though the hospitalization and subsequent treatment were completely appropriate. Further, were this court to reverse the trial court’s ruling, our decision would direcdy conflict with the General Assembly’s manifest intent to bar all medical malpractice claims not filed within two years from the date the wrongful act occurred.

We conclude that the trial court correcdy ruled that the date this cause of action accrued was August 26, 1991, the date the medical injury or wrongful act occurred. Because appellant did not file the initial complaint until September 7, 1993, her claim is barred by the statute of limitations, and as such, we conclude the appellees were entided to summary judgment as a matter of law.

III. SUBSTITUTION OF PARTIES

Lasdy, appellant argues that she should have been allowed to substitute herself as the decedent’s administratrix as the real party in interest in this action as provided in section 16-62-101. That section, which provides for the survival of actions the decedent may have brought on his own, also allows an executor or administrator of a decedent’s estate to sue on the decedent’s behalf for the pain and suffering experienced by the decedent prior to his death. Akin to the provisions for wrongful death found in section 16-62-102, section 16-62-101 provides for a three-year statute of limitations period within which to file survival claims. Appellant asserts her claim was one of medical malpractice, wrongful death, and survival, as she alleged damages for the pain and suffering of the decedent. Appellant argues that the trial court erred in not recognizing that, subsequent to this cause of action being filed, appellant had been named as administratrix of the decedent’s estate, and in refusing to allow her to substitute herself in that capacity as the real party in interest to the survival action. Based on our previous rulings in Ruffins, 313 Ark. 175, 853 S.W.2d 877, and Hertlein, 323 Ark. 283, 914 S.W.2d 303, that any claim involving an act of medical injury is encompassed in the provisions of the Medical Malpractice Act, it is not necessary to address this argument as we have already determined that this case is one of medical malpractice, and the applicable statute of limitations period is two years. Thus, any survival claim appellant may have had is similarly barred.

Affirmed.

Glaze and Brown, JJ., concur.

Newbern and Roaf, JJ., dissent.

Tom Glaze, Justice, concurring. I concur only because this court has held in two 4-3 decisions that the three-year statute of limitations for wrongful death is not applicable when a party’s death resulted from a medical injury. See Hertlein v. St. Paul Fire and Marine Insurance Co., 323 Ark. 283, 914 S.W.2d 303 (1996); Ruffins v. ER Arkansas, PA., 313 Ark. 175, 853 S.W.2d 877 (1993). I dissented in both Hertlein and Ruffins, but my position on this limitations issue is aptly and strongly stated in Justice Corbin’s dissent in Ruffins, as follows:

Without overruling Matthews or any of our subsequent cases, the majority attempts to distinguish our subsequent cases to reach the holding that an action for wrongful death resulting from medical injury is subject to the provisions of the Medical Malpractice Act enacted by Act 709 of 1979. This is the crux of my dissent. One only has to read Mat thews, Simmons First Nat’l Bank, Dawson, Brown I, Bailey, and Brown II to reach the inescapable conclusion that this court has recognized unwaveringly for a quarter of a century that an action for medical malpractice and an action for wrongful death are separate causes of action even though they may arise from the same negligent acts. For this court to “distinguish” these cases so as to reach an opposite conclusion is an intellectual feat that I suspect exceeds our profession’s ingenuity. While this issue will be moot in the future by virtue of our decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), we should follow the precedent which applies to this case.

While I remain of the view that this court reached the wrong holdings in Hertlein and Ruffins, there presently are not enough members of this court who would overrule those decisions. As a consequence, I am compelled to join the majority decision, but will do so by concurring and, at the same time, mentioning that I will be more than susceptible to overruling Hertlein and Ruffins if this court should decide to do so in the future.

ROBERT L. Brown, Justice,

concurring. I concur in the result.

One issue in this case raises the identical issue that this court confronted in Hertlein v. St. Paul Fire and Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996) — whether a general applicability clause in the Medical Malpractice Act operates to eliminate a separate cause of action for wrongful death which arises out of a medical injury. The relevant clause in the Medical Malpractice Act reads: “This subchapter applies to all causes of action for medical injury accruing after April 2, 1979, and, as to such causes of action, shall supersede any inconsistent provision of law.” Ark. Code Ann. § 16-114-202 (1987). It is clear to me that this clause must be read in the context of the Medical Malpractice Act (Ark. Code Ann. §§ 16-114-201 through 16-114-209 (1987 & Supp. 1995)), which relates to causes of action for medical negligence, and not as a repealer to our separate Wrongful Death Act (Ark. Code Ann. § 16-62-102 (Supp. 1995)).

I dissented in Hertlein and said:

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

The majority decision in Hertlein decides the issue in this case. I still maintain, though, that had the General Assembly intended to repeal the wrongful death cause of action for medical injuries, it could have clearly and specifically done so in 1979. It did not. It takes more, in my opinion, than a general applicability statement to eliminate a cause of action in Arkansas. I commend this matter to the General Assembly for renewed legislative scrutiny.

DAVID Newbern, Justice,

dissenting. In paragraph V of her second amended complaint, Lorine Pastchol alleges that Dr. Scott McMahen rendered medical care to Idell Burton in August and September, 1991. That allegation has not been rebutted by any affidavit or other evidence presented by Dr. McMahen or any other defendant. A material factual issue thus remains. Ark. R. Civ. P. 56(c).

The error made by the Trial Court in rendering summary judgment and perpetuated here is illustrated by this statement from the majority opinion:

We believe appellant’s reliance on the doctrine of continuous treatment is misplaced, as that doctrine was not designed to extend the statute of limitations period in cases where only a single, isolated act of malpractice or negligence is alleged.

That statement ignores one of the logical bases of the rule illustrated in these statements we made in Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (1993):

If a physician is negligent in treating a patient but the patient continues to be treated by the physician for the condition which was the object of the negligent act or treatment, the patient should not be required to interrupt the treatment to bring suit against the physician because a statute of limitations is about to run. That is the most often stated rationale for the “continuous treatment doctrine” which tolls the statute of limitations until treatment is discontinued. Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988); Rountree v. Hunsucker, 833 S.W.2d 103 (Tex. 1992).
***
[I]f the treatment by the doctor is a continuing course and the patient’s illness, injury, or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated.
***
[T]he continuous treatment doctrine becomes relevant when the medical negligence consists of a negligent act, followed by a continuous course of treatment for the malady which was the object of the negligent treatment or act.

While these statements may be regarded as obiter in view of our holding in the Tullock case that there had been no continuing treatment by the physician for the malady which was the subject of the initial treatment, the rationale stated there was clear. Here we ignore it. Summary judgment should not have been granted at least as to the complaint against Dr. McMahen.

I respectfully dissent.

ROAF, J., joins.


author: DONALD L. Corbin, Justice. Tom Glaze, Justice,

text:
    Patrick L. SHERMAN v. STATE of Arkansas
    CR 96-183
    931 S.W.2d 417
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996

      Benny M. Tucker, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellee.
   DONALD L. Corbin, Justice.

Appellant, Patrick L. Sherman, appeals the judgment of the Clark County Circuit Court convicting him of fleeing, first-degree assault, and two counts of first-degree battery, fining him $10.00, and sentencing him to a cumulative sentence of forty years in prison. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(2). Appellant’s four points for reversal of the judgment, which was entered pursuant to a jury verdict, relate to his claims of double jeopardy, res judicata, and collateral estoppel. We affirm.

All four felony charges at issue in this appeal were the result of a single incident occurring on April 4, 1995. While driving a stolen truck, Appellant tried to outrun the police, ultimately driving through a police road block and causing property damage to two vehicles and personal injuries to the driver of one of the vehicles and a pedestrian. As a result of this single incident, Appellant was not only charged by information with the four felonies at issue here, but he was first charged by citation with four misdemeanors to which he pleaded guilty in municipal court and was sentenced: driving while intoxicated, failure to yield to an emergency vehicle, driving without a license, and reckless driving.

Appellant filed a pretrial motion to dismiss the felony prosecutions on the basis that they were barred by the Double Jeopardy Clauses of the Arkansas and United States Constitutions and by the principles of res judicata and collateral estoppel. The trial court denied the motion to dismiss, and Appellant filed a notice of appeal from that denial. However, while recognizing that an order denying such a motion to dismiss is a final order for purposes of filing an interlocutory appeal, the trial court proceeded with Appellant’s jury trial. Appellant then filed this appeal from the judgment of conviction, asserting four points for reversal.

I. ERROR TO PROCEED WITH TRIAL

Appellant’s first point for reversal is that the trial court erred in requiring him to be tried after he filed a notice of appeal from the denial of his motion to dismiss based on grounds of double jeopardy, res judicata, and collateral estoppel. At a hearing on the day before trial, Appellant objected to his trial on the basis that he should be allowed to pursue an interlocutory appeal and that his filing a notice of appeal deprived the trial court of subject-matter jurisdiction. The trial court recognized that the denial of a motion to dismiss based on double jeopardy was an appealable order, but stated that Appellant’s motion for double jeopardy had no merit and that the court did indeed have jurisdiction to hold the trial because the transcript had not been lodged in an appellate court. The trial court also reasoned that, because the case had been set for trial the next day and Appellant had been a very unruly inmate causing damage to the jail facility, and because the jeopardy motion lacked merit, Appellant would not be prejudiced by going to trial.

In support of his first argument for reversal, Appellant challenges the aforementioned proceedings on three bases. First, he claims that because the denial of a double-jeopardy-based motion is amenable to interlocutory appeal, the trial court was without subject-matter jurisdiction to proceed with his trial. Second, he claims that the trial court’s reliance on an alleged ex parte communication with the county sheriff about Appellant’s bad behavior in jail formed an improper basis for the trial court’s decision. Third, Appellant claims that the denial of a double-jeopardy-based motion to dismiss is not subject to harmless-error analysis, as the trial court stated, because of the very nature of the right — protection from subjection to a second, barred trial. We need not address the second contention because Appellant did not raise it below. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995). We consider the third contention together with Appellant’s second point for reversal as they are interrelated.

The law is well established that an order denying a motion to dismiss based on former-jeopardy considerations is an appealable decision. Abney v. United States, 431 U.S. 651 (1977); Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992) (citing Fariss v. State, 303 Ark. 541, 798 S.W.2d 103 (1990) and Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959)). Appellant argues that because the motion to dismiss was amenable to interlocutory appeal, the trial court was without subject-matter jurisdiction to try him. The State cites United States v. Land, 669 F.2d 391 (6th Cir.), cert. denied, 457 U.S. 1134 (1982), and responds that a defendant’s right to pursue an interlocutory appeal of the denial of a pretrial double-jeopardy-based motion to dismiss is conditioned upon a showing that there is a “colorable foundation” for the former-jeopardy issue.

It is the filing of the transcript in an appellate court or the placing of the sentence into execution that deprives a trial court of jurisdiction, not the filing of the notice of appeal. Glick v. State, 283 Ark. 412, 677 S.W.2d 844 (1984). After the notice of appeal has been filed and the transcript has been lodged with the appellate court, the trial court loses jurisdiction of the case except for matters such as appointing defense counsel or correcting its judgment to speak the truth. Id.; Fletcher v. State, 198 Ark. 376, 128 S.W.2d 997 (1939). In this case, the trial court stated that because the transcript had not been lodged in this court, the trial court had jurisdiction to proceed with Appellant’s trial. While the trial court accurately stated a rule of law, we are not convinced that rule is applicable to a situation like the current one where the propriety of an interlocutory appeal is at issue.

The foregoing rules cited from Glick and Fletcher only address the transfer of jurisdiction from a trial court to an appellate court in the context of a case that has been tried to completion or otherwise ended in a final judgment. The foregoing rules do not address the transfer of jurisdiction from a trial court to an appellate court in the context of an interlocutory appeal, i.e., when there has been no final judgment on the case, but only a judgment as to a separable part of a case. Relating to the latter type of appeals, this court has said:

The rule that an appeal divests the trial court of jurisdiction applies only to matters necessarily or directly involved in the matter under review. It does not stay further proceedings with respect to rights not passed on or affected by the judgment or decree from which the appeal is taken. Matters which are independent of, or collateral or supplemental, are left within the jurisdiction and control of the trial court, notwithstanding the appeal.

Bleidt v. 555, Inc., 253 Ark. 348, 350-51, 485 S.W.2d 721, 723 (1972) (per curiam) (citations omitted). In stating the foregoing rule of law, this court relied upon 4A C.J.S. 399, 413, Appeal and Error, §§ 608 and 618, which in their current forms are found at 4 C.J.S. Appeal and Error §§ 396 and 405 (1993). As applied to this case, we find the following particularly relevant:

Jurisdiction as to the entire cause is not transferred in an appellate proceeding for the review of an incidental or interlocutory matter, but the trial court or parties may still proceed in matters not involved in the appeal and which are entirely collateral to the part of the case taken up.
The trial court, even when it has the jurisdiction to proceed in the main case, after an appeal or writ of error from an incidental or interlocutory matter may in its discretion decide to await the determination of the appellate proceeding. Furthermore, the lower court cannot proceed in such manner as to lead to a decision, pending the appeal, of the very question involved on the appeal, or of a question which cannot properly arise or be determined until after the determination of the appeal; nor may it so dispose of the cause as to interfere with the jurisdiction or orders of the appellate court; and, the proceedings had in the lower court pending appeal are subject to be set aside if they are inconsistent with the order or decision of the appellate court.

4 C.J.S. Appeal and Error § 397 (1993) (footnotes omitted).

When the rule from the Bleidt case is strictly applied in a criminal case in the particular context of double jeopardy, it could be said that the question of the defendant’s guilt or innocence on the charges is independent of the question of whether the defendant’s trial on the charges is jeopardy-barred. Under such a strict construction, a trial court would retain jurisdiction of the question of a defendant’s guilt while the double-jeopardy question is addressed on interlocutory appeal. While such a strict construction would result in placing form over substance as far as a defendant’s double-jeopardy rights are concerned, it would not be doing so as far as the trial court’s jurisdiction is concerned. Thus, we conclude that when a defendant has filed an interlocutory appeal of a denial of a motion to dismiss based on double jeopardy, ¿though the trial court has jurisdiction to determine the defendant’s guilt, to do so erroneously risks violation of the defendant’s double-jeopardy rights. In other words, it is a matter of protection of the defendant’s double-jeopardy rights and not a matter of jurisdiction that requires a trial court to refrain from proceeding to determine guilt.

We are sympathetic to the State’s argument that a defendant’s right to pursue an interlocutory appeal of the denial of a pretrial jeopardy-based motion to dismiss is conditioned upon a showing that there is a “colorable foundation” for the former jeopardy issue and find some support for it in the above-cited cases from this court, see, e.g., Jones, 230 Ark. at 24-25, 320 S.W.2d at 650. We cannot agree that a defendant’s right to appeal is so conditioned because of the following language authored by Mr. Chief Justice Burger:

[T]he rights conferred in a criminal accused by the Double Jeopardy Clause would be significandy undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. To be sure, the Double Jeopardy Clause protects an individual against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on an appeal following final judgment, as the Government suggests. However, this Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense. . . . Because of this focus on the “risk” of conviction, the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense. It thus protects interests wholly unrelated to the propriety of any subsequent conviction. . . . Obviously, these aspects of the guarantee’s protections would be lost if the accused were forced to “run the gauntlet” a second time before an appeal could be taken; even if the accused is acquitted, or if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.

Abney, 431 U.S. at 660-62 (citations and footnotes omitted).

While we are sympathetic to the State’s view, we do not adopt it for the reasons expressed by the Supreme Court in footnote 8 of the Abney decision:

Admittedly, our holding may encourage some defendants to engage in dilatory appeals as the Solicitor General fears. However, we believe that such problems of delay can be obviated by rules or policies giving such appeals expedited treatment. It is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims of former jeopardy.

Abney, 431 U.S. at 662.

Based on the above-quoted principles, we conclude that the trial court erred in proceeding with Appellant’s trial in circuit court. The question of the effect of this error, however, remains for our consideration.

The United States Supreme Court has indicated that when an accused was forced to stand trial over a valid jeopardy-based objection, it was not error for the state appellate court to reduce the conviction to a non-barred lesser-included offense because the defendant had not demonstrated prejudice. See Morris v. Mathews, 475 U.S. 237 (1986). Prejudice cannot be shown when the forced trial was for a charge that was not jeopardy-barred. Id. In Morris, the accused had pleaded guilty to aggravated robbery, was sentenced, and then tried and convicted for aggravated murder based on the robbery; on appeal, the aggravated murder conviction was reduced to murder, a lesser-included offense of aggravated murder. The Supreme Court concluded that because it was clear that the jury found all the elements of the lesser offense, it would be poindess to order a new trial to cure the double jeopardy violation. The Supreme Court thus affirmed the trial and sentence on the lesser-included offense of murder. Thus, in the present case, deciding whether Appellant was prejudiced such that reversal of the trial court’s error is required, we first determine whether Appellant’s trial in circuit court is jeopardy-barred; and that is precisely the issue Appellant raises as his second point for reversal.

II. FELONY PROSECUTIONS ARE BARRED BY DOUBLE JEOPARDY

Appellant contends that his pleas of guilt and resulting sentences entered in municipal court to the misdemeanor charges of driving while intoxicated, reckless driving, failure to yield to an emergency vehicle, and driving without a license bar the subsequent prosecution in circuit court for the felony charges of fleeing, first-degree assault, and first-degree battery. Appellant argues that under the test enunciated in Blockburger v. United States, 284 U.S. 299 (1932), reckless driving contains the same elements as do aggravated assault and first-degree battery. Likewise, he claims that failure to yield encompasses the same elements as fleeing.

The State intimates that we need not conduct a Blockburger analysis because of the “jurisdictional exception” to the double jeopardy bar. The “jurisdictional exception” was stated in Diaz v. United States, 223 U.S. 442, 449 (1912), as follows:

[T]he justice of the peace, although possessed of jurisdiction to try the accused for assault and battery, was without jurisdiction to try him fiar homicide; and, of course, the jeopardy incident to the trial before the justice did not extend to an offense beyond his jurisdiction. All that could be claimed for that jeopardy was that it protected the accused from being again prosecuted for the assault and battery, and therefore required that the latter be not treated as included, as a lesser offense, in the charge of homicide .... It follows that the plea of former jeopardy disclosed no obstacle to the prosecution for homicide.

In support of its claim that the “jurisdictional exception” applies to eliminate any bar by Appellant’s former jeopardy plea, the State cites Ark. Code Ann. § 5-l-113(l)(a) (Repl. 1993), which states that a former prosecution is an affirmative defense to a subsequent prosecution for a different offense when the former prosecution results in a conviction and the subsequent prosecution is for any offense of which the defendant could have been convicted in the first prosecution. The State maintains that Appellant could not have been convicted of the felonies in municipal court because municipal courts lack jurisdiction of felonies; and therefore, the felony prosecutions in circuit court were not barred by the municipal court convictions.

Because Appellant was charged in both municipal court and circuit court and pleaded guilty and was sentenced concerning the municipal-court charges, we agree that the facts of this case appear within the “jurisdictional exception” to the bar of double jeopardy. However, the “jurisdictional exception” does not apply when lesser-included offenses are involved. Diaz, 223 U.S. 442. Therefore, we must conduct a Blockburger analysis to determine if these offenses are the same or included offenses such that they are barred by the Double Jeopardy Clauses.

The Blockburger test is as follows:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: “A single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”

Blockburger, 284 U.S. at 304.

Following are the elements of the crimes at issue here as provided in the Arkansas Code of 1987 Annotated (Repl. 1993, Repl. 1994, and Supp. 1995):

27-50-308. Reckless driving.

(a) Any person who drives any vehicle in such a manner as to indicate a wanton disregard for the safety of persons or property is guilty of reckless driving.
(b)(1)(A) If physical injury to a person results, every person convicted of reckless driving shall be punished upon a first conviction by imprisonment for a period of not less than thirty (30) days nor more than ninety (90) days or by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), or by both such fine and imprisonment.

5-13-201. Battery in the first degree.

(a) A person commits battery in the first degree if:

(1) With the purpose of causing serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon; or
(2) With the purpose of seriously and permanently disfiguring another person or of destroying, amputating, or permanendy disabling a member or organ of his body, he causes such an injury to any person; or
(3) He causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life[.]

5-13-204. Aggravated assault.

(a) A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person.

27-51-901. Operation of vehicles and streetcars on approach of authorized emergency vehicles.

(a) Upon the immediate approach of an authorized emergency vehicle, when the driver is giving audible signal by siren, exhaust whisde, or bell, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to the right-hand edge or curb of the highway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.

5-54-125. Fleeing.

(a) If a person knows that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer, it is the lawful duty of such person to refrain from fleeing, either on foot or by means of any vehicle or conveyance.
(b) Fleeing is a separate offense and shall not be considered a lesser included offense or component offense with relation to other offenses which may occur simultaneously with the fleeing.

The offense of reckless driving requires proof of the actual driving of a vehicle; the offenses of assault and battery do not. The offense of first-degree battery requires proof of actual physical injury to another person; the offense of reckless driving does not. The offense of aggravated assault requires proof of creating danger of serious physical injury to another; the offense of reckless driving does not. Reckless driving requires proof of elements that first-degree battery and aggravated assault do not, and first-degree battery and aggravated assault require' proof of elements that reckless driving does not. Therefore, we conclude that first-degree battery and aggravated assault are not lesser-included offenses of reckless driving and that they are not considered the same offenses for double jeopardy purposes.

The fleeing statute specifically provides that it is a separate offense and is not to be considered a component offense with other offenses occurring simultaneously. Section 5-54-125(b). The United States Supreme Court has stated that legislatures are free under the Double Jeopardy Clause to define crimes and fix punishments, but that courts may not impose more than one punishment for the same offense. Brown v. Ohio, 432 U.S. 161 (1977). That Court has further stated that, “Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, . . ., the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intentf.]” Ohio v. Johnson, 467 U.S. 493, 499 (1984). Given the clear legislative intent expressed in section 5-54-125(b) that fleeing is to be considered a separate offense, we have no doubt in concluding that the Double Jeopardy Clause does not bar Appellant’s trial or punishment therefor. Therefore, we conclude that under the Block-burger rule and the Double Jeopardy Clauses the felony prosecutions and punishments for first-degree battery, aggravated and first-degree assault, and fleeing were not barred.

In summary, we conclude that, with respect to all felonies, Appellant’s jeopardy plea had no merit and that, consequently, Appellant cannot demonstrate any prejudice from having endured the trial in circuit court. Thus, although the trial court erred in proceeding with Appellant’s trial without allowing for an interlocutory appeal, reversal is not required because Appellant has not demonstrated that the trial was for a jeopardy-barred offense. See Morris, 457 U.S. 237.

Finally, we note the State’s argument that we should overrule Craig v. State, 314 Ark. 585, 863 S.W.2d 825 (1993). This argument is without merit because it overlooks the fact that Craig involved a subsequent conviction for a lesser-included offense and multiple punishment was therefore barred on that basis. Craig is not, as the State fears, precedent for defendants to intentionally plead guilty in municipal court with the purpose of creating a double jeopardy bar to a subsequent felony prosecution.

III. ARKANSAS FORMER JEOPARDY STATUTES

In addition to the Double Jeopardy Clauses of both the Arkansas and United States Constitutions, Appellant relied on sections 5-1-110, 5-1-112, and 5-1-113 of the Arkansas Code of 1987 Annotated in his motion to dismiss below. On appeal, he relies on the same statutes as requiring reversal. The cited statutes encompass the principles of double jeopardy that we have previously discussed in this opinion. We need not consider this argument any further as we concluded that Appellant’s trial and punishments are not precluded by such principles. It matters not whether the principles are founded in constitutional, statutory, or judge-made law.

IV COLLATERAL ESTOPPEL AND RES JUDICATA

“Two factors must be present for collateral estoppel to bar a criminal prosection: (1) both adjudicatory entities must be arms of the same sovereign and (2) a factual issue essential to the first verdict must be an essential element of the second charge.” Fariss v. State, 303 Ark. 541, 798 S.W.2d 103 (1990) (citing United States v. Kills Plenty, 466 F.2d 240 (8th Cir.1972), cert. denied, 410 U.S. 916 (1973)). As the State argues, the doctrine of collateral estoppel is not applicable to the facts of this case because the second element above has riot been satisfied. Such a favorable finding of fact is essential to a collateral-estoppel defense. Dowling v. United States, 493 U.S. 342, 347-49 (1990); Fariss, 303 Ark. 541, 798 S.W.2d 103.

One of the five elements of a res judicata defense is that both proceedings involve the same claim or cause of action that was litigated or could have been litigated but was not. Id. Here, the felony charges could not have been tried in municipal court because municipal court lacks jurisdiction of felony charges. Thus, Appellant’s prosecutions and sentences for the felonies are not precluded by the doctrine of res judicata.

The judgment of conviction is affirmed.

GLAZE, J., dissents.

Tom Glaze, Justice,

dissenting. I dissent. The trial court erred in forcing appellant to trial. Everyone agrees that appellant had a right to appeal when the trial court denied appellant’s motion to dismiss on the grounds of double jeopardy. Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992). By sanctioning what the trial court did here, we are holding that even though a losing party is by law entided to the right to file an interlocutory appeal, a trial court can nullify that appeal right by forcing the party to trial before he or she is able to perfect the appeal.

On Friday, July 21, 1995, the trial court denied appellant’s motion, and appellant immediately informed the trial court that he would appeal. In an attempt to expedite matters, appellant filed his notice the same day. On the following Monday, July 24, 1995, the trial court related to appellant’s counsel that the court had been informed that appellant had been a problem in jail, and directed that appellant’s case would proceed to trial the next day on Tuesday, July 25, 1995.

Appellant’s counsel was placed in the position of trying to perfect an appeal during the balance of the day, Monday, or prepare for the next day’s trial. Defense counsel contacted the Supreme Court Clerk’s Office and discovered that he could get no temporary stay because the Supreme Court was in recess.

Obviously, defense counsel was left with a Hobson’s choice. If he tried to perfect an appeal in the remaining part of the day, July 24, he would have had great difficulty in obtaining even a partial transcript in the few hours he was allowed, and being in Clarksville, he had no assurance he could timely file it. Also, if he opted to chance an appeal, he would have little or no time to prepare for trial the next day.

Our 1995 Arkansas Rules of Criminal Procedure, Rule 36.9, allowed appellant thirty days from the trial court’s order to perfect an appeal, and he should have been allowed that time. In my opinion, the trial court abused its discretion in forcing appellant to stand trial over defense counsel’s legitimate objections. The trial court should have entered its order and allowed appellant thirty days to perfect his appeal. While I might well agree with the majority opinion in rejecting appellant’s double jeopardy argument, this case should be reversed for a new trial for the reasons discussed above.

       Appellant was charged with aggravated assault, although the jury convicted him of the lesser-included offense of first-degree assault. Thus, it is aggravated assault that is the relevant offense for our analysis.


author: Andree Layton Roaf, Justice.

text:
    Mary HOLLOMON v. Dr. W.R. KEADLE
    95-1231
    931 S.W.2d 413
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996

      William T. Mathis II, for appellant.

      Wright, Chaney, Berry & Daniel, P.A., by: Edward M. Slaughter, for appellee.
   Andree Layton Roaf, Justice.

This case involves a claim for the tort of outrage brought by Appellant Mary Hollomon against her former employer, Dr. W. R. Keadle. Hollomon alleges that Keadle repeatedly insulted her and subjected her to veiled threats of bodily harm. The trial court found that Hollomon’s allegations were insufficient as a matter of law to state a claim for the tort of outrage, and further, that the First Amendment protected Keadle’s statements; the trial court accordingly granted Keadle’s motion for summary judgment. We affirm.

Mary Hollomon worked for Dr. Keadle, a sixty-eight-year-old physician, for approximately two years before she voluntarily left his employ. Hollomon alleges that during her employment, Keadle repeatedly cursed her and referred to her with offensive terms, such as “white nigger,” “slut,” “whore,” and “the ignorance of Glen-wood, Arkansas.” Hollomon contends that Keadle frequently made, in her presence, degrading remarks about women such as: “women should be at home, not working, and if they are out there working they are whores and prostitutes...only whores and prostitutes work” and “any time a woman wears rings [other than wedding rings], she is a whore and a slut.” In addition, Hollomon claims that Keadle frequently directed profanity at her in front of patients and other employees. In her deposition, Hollomon stated that she became aware that Keadle was a “grouch” by the second day of her employment with him and that he constandy yelled and cursed and used the “F” word almost every day. She stated that he cursed and belittled his wife and other women in his office.

According to Hollomon’s deposition, Keadle also told her that he had connections with the mob in California and could pay one of his schizophrenic patients $500.00 to “take care of” anyone he chose. As an example of these “connections,” Hollomon stated that Keadle told her that one of his former female employees “supposedly” died in an automobile accident in California. Finally, Hollo-mon states that Keadle told her that he carried a gun and that he had recentiy pulled the gun on a patient who angered him. Hollo-mon asserts that Keadle told her these stories to intimidate her and to suggest that he would have her killed if she quit or caused trouble.

Hollomon contends that she did not resign earlier because she feared Keadle would have her killed. In addition, Hollomon asserts that her status as a single parent and her dire financial condition, of which Keadle was aware, prevented her from leaving the job. Hol-lomon claims that Keadle’s comments caused her stomach problems, loss of sleep, loss of self-esteem, anxiety attacks, and embarrassment. In her deposition, Hollomon stated that she told Jim Buder, a counselor, about the constant ridicule by Keadle but admitted that she did not go to his office or seek counseling services from him. She further stated that Keadle’s cursing upset her stomach and that Keadle and a Dr. Jansen gave her medication for her stomach problems. After two years and three months of working for Keadle, Hollomon alleges that she resigned because of his cursing. In his deposition, Keadle denied all of Hollomon’s allegations.

On her first argument for reversal, Hollomon claims that the trial judge erred in granting summary judgment because genuine issues of material fact existed concerning whether or not Dr. Keadle made the alleged statements. Hollomon correctly argues that summary judgment is only appropriate when no issue of material fact exists, and the movant is entitled to judgment as a matter of law. See, Ark. R. Civ. P. 56 (c); Browning v. Browning, 319 Ark. 205, 890 S.W.2d 273 (1995). However, this court must first decide whether Hollomon’s accusations, taken as true, state a claim for the tort of outrage. Rainey v. Travis, 312 Ark. 460, 850 S.W.2d 839 (1993). As we explained in Rainey, if the appellant cannot state a claim for outrage then any unresolved factual issues are simply irrelevant. Id.

Hollomon next asserts that the trial court erred by holding that the facts she alleged did not support a cause of action for the tort of outrage or intentional infliction of emotional distress. We have said that to succeed on a tort-of-outrage claim, the plaintiff must prove: 1) the defendant 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, and was utterly intolerable in a civilized community; 3) the defendant’s conduct was the cause of the plaintiff’s distress; and 4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996); Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996).

Hollomon relies primarily on the case of Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984) to support her argument that the trial court erred when it found that her allegations, even if true, did not state a claim for the tort of outrage. Tandy also involved an action by an employee against an employer. Although this court reversed a jury verdict in favor of the plaintifTemployee based on an improper jury instruction and certain comments made by the trial court, we found that the evidence presented by Bone was sufficient to allow a jury to determine whether his employer was guilty of outrageous conduct that was the proximate cause of his emotional distress.

However, in Tandy, we stated that:

[w]e have taken a somewhat strict approach to this cause of action. Recognition of this new tort should not and does not open the doors of the courts to every slight insult or indignity one must endure in life. For example, abrasive profanity alone is not sufficient reason to have a cause of action.

Tandy, 283 Ark. at 405, 678 S.W.2d at 315.

Bone was the manager of a Radio Shack store who was questioned by his employer in the course of an investigation into thefts which took place at his store. Bone testified that he was questioned throughout an entire day, and was cursed and threatened by Tandy’s security personnel. He further alleged that he was twice refused permission to take a tranquilizer which had been prescribed to him by a psychiatrist for three years. It was the latter testimony by Bone which concerned this court, and we stated that:

The conduct on the part of the employer that does give us difficulty is the undisputed evidence that Bone was obviously undergoing a good deal of stress, requested his Valium or medication, and was denied that privilege. The employer was on notice at that point that Bone may not have been a person of ordinary temperament, able to endure a stressful situation such as he was placed in without injury... We emphasize that the notice to the employer of Bone’s condition is the only basis for a jury question of extreme outrage.

Tandy, 283 Ark. at 405-408, 678 S.W.2d at 316. (Emphasis added.)

Because of the holding in Tandy, we do not reach the question of whether Keadle’s conduct was “extreme and outrageous” and “utterly intolerable in a civilized community,” that is, whether “the recitation of the facts to an average member of their community would arouse his resentment against the actor and lead him to exclaim,’ outrageous.’ ” See Restatement (Second) of Torts § 46, cmt. d.

We conclude that Hollomon, unlike Bone, has failed to establish that her employer was made aware that she was “not a person of ordinary temperament” or that she was “peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity.” See Restatement of Torts (Second) § 46, cmt. f. In her brief filed in response to Keadle’s motion for summary judgment, Hollomon asserted that she was “assured that Keadle’s actions would cease.” She does not state in her abstract who assured her of this or whether she notified Keadle of any mental or physical condition which would make her peculiarly susceptible to stress. Although she claims that her status as a single parent caused her to remain in Keadle’s employment for over two years, we cannot say that this status is in any respect unique, or that it constitutes a physical or mental condition necessary under our holding in Tandy, supra.

We also cannot say that Hollomon has alleged that Keadle had notice of the alleged severity of the emotional distress. In her deposition, Hollomon stated that Keadle gave her Zantac for her stomach and that she also obtained medication from Dr. Jansen for her upset stomach. However, even if Hollomon’s general assertions of stomach problems, loss of sleep, anxiety, and embarrassment can be said to constitute distress “so severe that no reasonable man could be expected to endure it,” we cannot determine from her abstract that she ever made Keadle aware that he had inflicted such distress upon her. In fact, Hollomon stated that Keadle on occasion urged her to “[T]ake up for your God damn self!” but said that she was reluctant to let him know how upset she was with him and that she was afraid to voice her opinion to him because of her lack of self-esteem. She further stated that she filed the lawsuit against him because “I’m tired of him belittling women.” As to her allegations that Keadle made veiled threats to have her “taken care of,” Hollomon admitted that Keadle never directly threatened her and stated simply that she “didn’t put anything past the man.”

Keadle argues in response that even if Hollomon’s assertions are true, this court has established strict requirements for the tort of outrage, particularly in the context of employment; he is correct. We have considered this issue a number of times in cases of employee discharge; however, only in Tandy, supra, have we held that an employee has met the standard for proving the tort of outrage in such a case.

In City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 155 (1994), we reversed a jury verdict for unlawful discharge and for the tort of outrage. Morse was discharged as a policeman after he was involved in an accident during a high speed chase. Morse alleged in his outrage claim that the chief of police, during a fourteen-month employer-employee relationship, showed anger towards him, cursed him, asked whether he was paying his creditors and whether he held parties at which he served alcohol to minors, chastised him about drinking soft drinks in his patrol car, accused him of lying and of filing a false accident report, and told him that sheriffs in three counties would arrest him for making a false report. Morse claimed that he was constantly on edge during his employment. In reversing and dismissing Morse’s outrage claim, we said:

We have consistendy taken a narrow view in recognizing claims for the tort of outrage that arise out of the discharge of an employee. The reason is that an employer must be given considerable latitude in dealing with employees, and at the same time, an employee will ffequendy feel considerable insult when discharged.

Green Forest, 316 Ark. at 542, 873 S.W.2d at 156.

In Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991), we upheld the dismissal of an outrage claim in an employee-discharge context where the employee alleged that he was wrongfully terminated after his shift leader had hit him during a dispute, stating:

The type of conduct that meets the standard for an outrage cause of action must be determined on a case-by-case basis. We have taken a strict view in recognizing such a claim, especially in employment relationship situations. The extreme and outrageous character of the conduct may arise from the employer’s knowledge that the employee is peculiarly susceptible to emotional distress by reason of some physical or mental peculiarity. The conduct may become outrageous if the employer continues it in the face of such knowledge, where it would not be so if he did not know. The fact that an employer continues unjustifiable conduct over a long period of time can be an important factor weighing in favor of a finding that the employer’s conduct towards an employee was outrageous.

Smith, 304 Ark. at 602, 804 S.W.2d at 686. (Citations omitted.)

Likewise, in Sterling v. Upjohn Healthcare Servs. Inc., 299 Ark. 278, 772 S.W.2d 329 (1989), we upheld the granting of summary judgment in favor of the employer where an employee alleged that his supervisor took a dislike to him, undermined him in various ways, falsely told other employees that he was always drunk, falsely accused him of lying on his job application, cursed him, and became violent when discussing him with other employees. See also Mechanics Lumber Co. v. Smith, 296 Ark. 285, 752 S.W.2d 763 (1988); Ingram v. Pirelli Cable Corp., 295 Ark. 154, 747 S.W.2d 103 (1988); Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988); Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982).

Although Hollomon was not discharged, nor does she claim that she was constructively discharged, we have consistently stated that we will take a strict view in recognizing a claim for the tort of outrage in employment-relationship situations. The rationale for doing so holds true whether the employee bringing such a claim has been discharged or resigns. Here, Hollomon knew by the second day of her employment with Keadle that he was a singularly unpleasant man given to constandy yelling and cursing, yet she remained in his employment for more than two years. In Tandy, supra, we said that “abrasive profanity alone is not sufficient reason to bring a cause of action.” Absent a showing that the employer had knowledge that the employee was “peculiarly susceptible to emotional distress by reasons of some physical or mental condition or peculiarity” and “proceeds in the face of such knowledge,” we do not depart from that position. See Restatement of Torts (Second) §46.

Because we affirm the trial court’s finding that Hollomon’s allegations were insufficient as a matter of law to state a claim for the tort of outrage, we do not reach the issue of whether Keadle’s speech was protected by the First Amendment.

Affirmed.


author: PER CURIAM.

text:
    Alex BHATTI d/b/a ABCO Builders v. Timothy C. McCABE and Sheryl D. McCabe
    96-964
    928 S.W.2d 340
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996

      Frank J. Wills, for petitioner.

      William G. Almand, for respondents.
   PER CURIAM.

Petitioner tendered the record in this case and the Clerk of this court rejected it because, on its face, the record appeared to be outside the time allotted by our rules. On March 7, 1996, the Chancery Court of Pulaski County entered its Amended Order and Judgment. On March 19, by facsimile, petitioner filed a motion for reconsideration with the Pulaski County Chancery Court Clerk. The Chancery Clerk accepted the facsimile filing pursuant to Ark. Code Ann. § 16-20-109 (Repl. 1994). The facsimile copy received by the Chancery Clerk had a date and time received printed upon it by the Clerk’s facsimile machine, and since it already had a time and date on it, the Chancery Clerk did not separately file-stamp the copy with a time and date.

The Rules of Appellate Procedure do not provide for facsimile transmission; rather, they provide that the Clerk of this Court shall determine time and dates from the file-marks made by the clerk of the trial court. See Ark. R. App. P. 4 & 5. Consequently, applying the Rules of Appellate Procedure in the literal sense, petitioner tendered the record out of time. However, if the date and time shown by the Chancery Clerk’s facsimile machine are used, the record was tendered in a timely manner. Under these circumstances, we grant the Rule on the Clerk.

By this per curiam, we ask our Committee on Civil Practice to make a recommendation on whether our Rules of Appellate Procedure should be modified.