Cite as 2015 Ark. App. 361
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-13-819
Opinion Delivered June 3, 2015
GARRY CLAYTON AND ZELMA APPEAL FROM THE POPE COUNTY
MAGBY CIRCUIT COURT
APPELLANTS [NO. CV-2010-578]
V. HONORABLE DENNIS CHARLES
SUTTERFIELD, JUDGE
BATESVILLE CASKET COMPANY,
INC., AND HUMPHREY FUNERAL
SERVICE, INC. AFFIRMED
APPELLEES
BRANDON J. HARRISON, Judge
A casket bearing the remains of Frank Clayton lies buried in a Newton County
cemetery, where it has been interred for almost twenty years. The casket was
manufactured by appellee Batesville Casket Company and was sold in 1996 to Frank’s
widow, appellant Zelma Magby, and his son, appellant Garry Clayton, by appellee
Humphrey Funeral Service.
In 2010, Clayton and Magby sued Batesville and Humphrey based on a belief that
the casket’s seal had been breached by water. Their complaint contained over a dozen
counts and alleged similar problems with other Batesville caskets. Batesville and
Humphrey moved to dismiss, citing the statute of limitation and the complaint’s failure to
plead damages caused by a defect in the Clayton casket. The circuit court dismissed all
causes of action with prejudice. We affirm.
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In reviewing the grant of a motion to dismiss, we focus on the content of the
pleadings and treat the facts alleged in the complaint as true and view them in the light
most favorable to the plaintiff. Hall v. Jones, 2015 Ark. 2, 453 S.W.3d 674. We will not
reverse unless the circuit court abused its discretion in granting the motion to dismiss. See
id.
The relevant pleadings in this case began in January 2008 when Clayton joined a
class-action suit that had been filed in federal court against Batesville. The case pled that
Batesville had guaranteed its caskets to resist penetration by water and other gravesite
substances and that, because that guarantee was false, Batesville had violated the Arkansas
Deceptive Trade Practices Act (ADTPA), breached warranties and contracts, committed
fraud, and been unjustly enriched. On 1 October 2009, Clayton voluntarily nonsuited his
federal-court case.
Less than a year later, on 30 September 2010, Clayton and Magby sued Batesville
and Humphrey in Pope County Circuit Court, pleading most of the same counts that had
been raised in the dismissed class-action suit—violation of the ADTPA, breach of
warranty, breach of contract, and fraud. They also added several other causes of action:
negligent design; negligent manufacturing; strict liability; outrage; violation of property
rights involving a corpse (which was part of the strict-liability count); violation of a
Federal Trade Commission (FTC) order; violation of “the funeral rule,” a federal
regulation aimed at funeral providers; and civil action by a crime victim, pursuant to
Arkansas Code Annotated section 16-118-107 (Supp. 2013). Their complaint essentially
alleged that they had purchased a Batesville casket from Humphrey in 1996, that the
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casket was warranted not to leak for forty years after interment, and that they “learned that
they may have been defrauded” in 2005 after becoming aware of other incidents involving
Batesville’s caskets.
Because the Clayton casket was purchased in 1996 and the state-court complaint
was not filed until 2010, Batesville and Humphrey moved to dismiss based on the statutes
of limitation—which ranged from three to five years on the claims pled in the complaint.
Clayton and Magby responded that they could not have discovered their claims until 2006
(a date set forth in an amended complaint) given Batesville’s and Humphrey’s fraudulent
concealment. See Hipp v. Vernon L. Smith & Assocs., Inc., 2011 Ark. App. 611, 386
S.W.3d 526 (holding that fraudulent concealment suspends the running of the statute of
limitation until such time as the plaintiff discovers the fraud or should have discovered it
by reasonable diligence).
The circuit court took up the issues and immediately trimmed three counts from
Clayton and Magby’s complaint: violation of the FTC order for want of a private cause of
action; violation of the funeral rule for want of a private cause of action; and civil action
by a crime victim for want of conduct that constituted a crime. Clayton and Magby do
not challenge these dismissals on appeal, so we affirm them without further discussion.
The circuit court then turned to the statute-of-limitation questions and ruled that
Clayton and Magby failed to plead facts showing fraudulent concealment by Batesville and
Humphrey. Consequently, in orders dated 30 March 2012, the court dismissed most of
Clayton and Magby’s claims as time-barred. The only exceptions were the claims that
Clayton had voluntarily dismissed in his federal-court case—violation of the ADTPA,
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breach of warranty, breach of contract, and fraud. The court reasoned that Clayton’s
refiling of those claims within one year after their being nonsuited saved them from being
dismissed. See Ark. Code Ann. § 16-56-126 (Repl. 2005) (the Arkansas Savings Statute).
Clayton and Magby asked for reconsideration and a chance to amend their
complaint, despite having already amended it at least twice. The court allowed yet
another amendment and emphasized that, if Clayton and Magby were to avoid a time-bar,
they must plead facts showing Batesville’s and Humphrey’s fraudulent concealment.
Clayton and Magby filed a third amended complaint, which stated that, due to fraudulent
concealment, Clayton had not learned of his claims until 2006. The complaint did not say
when Magby learned of her causes of action.
The court was generally satisfied that Clayton and Magby’s amendment made a
case for fraudulent concealment. Nevertheless, in an order entered on 14 January 2013,
the court dismissed most of their claims. The court ruled that, because Clayton had pled
that he learned of his claims in 2006, the September 2010 complaint was too late to
preserve his counts for negligent design, negligent manufacturing, breach of warranty,
strict liability, fraud, outrage, and violation of property rights involving a corpse, all of
which carried either three-year or four-year statutes of limitation. The court left standing
Clayton’s claims for breach of contract and violation of the ADTPA, which were subject
to five-year statutes of limitation. As to Magby, the court dismissed all of her claims
because the complaint did not specify when she became aware of them.
At this point, the presiding judge, Judge Kenneth Coker, transferred the case to
Judge Dennis Sutterfield for administrative reasons. Judge Sutterfield reviewed the entire
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case and entered an order on 24 May 2013 that dismissed all of Clayton and Magby’s
claims with prejudice. Judge Sutterfield stated that he agreed with the earlier, partial
dismissal by Judge Coker but that, in addition, “none of the causes of action should
survive because sufficient facts have not been plead to establish actual injury or damages to
the plaintiffs.” More precisely, he ruled that “there have been no facts set forth in the
plaintiffs’ pleadings which establish any actual defects or failure of the casket involved in
this lawsuit which resulted in any harm, injury or recoverable damages to the plaintiffs.”
Clayton and Magby appealed.
We begin with Judge Sutterfield’s ruling that Clayton and Magby failed to plead
facts showing any harm from a defect or failure in the casket they purchased. The
essential law of pleading is that a plaintiff’s complaint must contain a statement in ordinary
and concise language of facts showing the pleader is entitled to relief. Dockery v. Morgan,
2011 Ark. 94, 380 S.W.3d 377; Ark. R. Civ. P. 8(a) (2014). A complaint must state facts,
not mere conclusions, and is subject to dismissal for failure to state facts on which relief
can be granted. Hall, supra; Ark. R. Civ. P. 12(b)(6) (2014).
The original complaint in this case (which was incorporated into all amended
complaints) scattered various allegations against Batesville and Humphrey throughout its
twenty-four pages and ninety-one paragraphs. It alleged that the Clayton casket had
“defects” and that Batesville and Humphrey misrepresented the casket’s resistance to
water. Also, the complaint referenced what may be termed general design flaws found in
Batesville caskets, stating that: “Plaintiffs became aware that other ‘leak-proof’ caskets
marketed, sold, and distributed by the Defendants under warranties and/or with
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representations similar to, if not identical to, those made to them . . . did in fact leak”; the
defective caskets caused “tremendous emotional pain and suffering and financial loss to the
families of those buried therein”; and “it was widespread knowledge throughout the
casket/funeral industry that these so-called ‘sealer’ caskets did in fact begin to leak almost
immediately” and “hastened the natural decomposition of the human body.” The
damages pled by Clayton and Magby included mental anguish, mutilation of a corpse, and
the difference between the value of the casket they were promised and the value of the
casket they actually purchased.
We construe the complaint liberally, resolving all reasonable inferences in its favor.
Ballard Group, Inc. v. BP Lubricants USA, Inc., 2014 Ark. 276, 436 S.W.3d 445. Yet, even
under this lenient standard, the complaint here does not meet Arkansas’s fact-pleading
standard.
A complaint is subject to dismissal if it fails to state general facts on which relief can
be granted, or fails to include specific facts pertaining to one or more of the elements of
the plaintiff’s claim (after accepting all facts in the complaint as true and viewing them in
the light most favorable to the plaintiff). See Smith v. Eisen, 97 Ark. App. 130, 245
S.W.3d 160 (2006). We must look to the underlying facts supporting an alleged cause of
action to determine whether the matter has been sufficiently pled—specific facts are
required. Dockery v. Morgan, 2011 Ark. 94, 380 S.W.3d 377.
Clayton and Magby’s complaint is devoid of specific facts showing that an
identifiable defect existed in the particular casket that they purchased and that the defect
caused their alleged damages. A conclusory statement that a product is defective is not
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sufficient; some factual support is required. See West v. Searle & Co., 305 Ark. 33, 806
S.W.2d 608 (1991). If a plaintiff asserts that he has been damaged, then his complaint
must state facts that link his damages to the conduct of, or product supplied by, the
defendant. That link was not established in this case.
The complaint also fails to include facts pertaining to all elements of the causes
pled. An essential element of Clayton and Magby’s tort claims is that their damages were
the result of a defect in the specific casket that holds the remains of their decedent. See
Pace v. Davis, 2012 Ark. App. 193, 394 S.W.3d 859 (causation is an element of
negligence); Ark. Code Ann. § 4-86-102 (Repl. 2011) (same for strict liability); Ark.
Code Ann. § 4-88-113(f) (Repl. 2011) (violation of the ADTPA); Overturff v. Read, 2014
Ark. App. 473, 442 S.W.3d 862 (fraud); Coombs v. J.B. Hunt Transp., Inc., 2012 Ark. App.
24, 388 S.W.3d 456 (outrage). Similarly, an essential element of Clayton and Magby’s
breach-of-contract and breach-of-warranty claims is that the sellers’ performance or the
condition of the particular casket sold to them did not conform to the warranty or
contract. See Forever Green Ath. Fields, Inc. v. Lasiter Constr. Co., 2011 Ark. App. 347, 384
S.W.3d 540; AMI Civ. 2401 (2014) (breach of contract); F.L. Davis Bldrs. Supply, Inc. v.
Knapp, 42 Ark. App. 52, 853 S.W.2d 288 (1993) (breach of implied warranties); Ark.
Code Ann. § 4-2-714 (Repl. 2001); AMI Civ. 1012 (2014) (breach of express warranty).
Clayton and Magby’s complaint states no facts that connect a defect in the
particular casket they purchased to any damages they alleged. This is due, in no small part,
to the fact that they have no way of knowing the condition of the casket they purchased;
it has not been disinterred or inspected since its burial in 1996. Facts in a complaint are
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treated as true, but a plaintiff’s theories or speculation are not. Hamby v. Health Mgmt.
Assocs., Inc., 2015 Ark. App. 298, ___ S.W.3d ___. The circuit court did not abuse its
discretion in dismissing the complaint as factually deficient.
We turn now to Clayton and Magby’s claim that the circuit court erred in
dismissing their complaint without allowing them to plead further. Rule 15 of the
Arkansas Rules of Civil Procedure encourages liberal amendment of pleadings, although
an amendment may be denied where the court determines that prejudice would result to
the other party or that the disposition of the cause would be unduly delayed. Ark. R.
Civ. P. 15(a). Similarly, Arkansas Rule of Civil Procedure 12(j) provides that “if
appropriate” a party will be given a chance to plead further following a dismissal. Still, the
circuit court is vested with broad discretion in allowing or denying amendments.
Deer/Mt. Judea Sch. Dist. v. Kimbrell, 2013 Ark. 393, 430 S.W.3d 29.
Clayton and Magby filed their original complaint, plus other amended complaints,
before suffering significant dismissals on 30 March 2012. Thereafter, they were given a
final chance to amend their complaint to avoid dismissal. They duly made the
amendment but still were unable to fully remedy their pleading deficiencies. Given these
circumstances, Clayton and Magby were not deprived of a chance to amend their
complaint and avoid a dismissal.
Along this same line, Clayton and Magby contend that Judge Sutterfield’s dismissal
should have been without prejudice. But the two-dismissal rule, Arkansas Rule of Civil
Procedure 41, works against them. When Judge Sutterfield dismissed the case, each of
Clayton and Magby’s claims had previously been dismissed, either through a voluntary
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nonsuit or for failure to state a cause of action or plead facts to avoid the statute of
limitation. A second dismissal operates as an adjudication on the merits and is with
prejudice. See Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120
S.W.3d 525 (2003); Ark. R. Civ. P. 41(b). Some causes of action in this case had actually
been dismissed more than once, and could have been dismissed with prejudice earlier. In
any event, Judge Sutterfield’s final dismissal with prejudice was correct under the two-
dismissal rule. See Ballard, supra; Smith, supra.
Our decision makes it unnecessary to address the parties’ arguments regarding the
statute of limitation or the alternate reasons for affirmance put forth by Batesville and
Humphrey.
Affirmed.
GRUBER and VAUGHT, JJ., agree.
The Boyd Law Firm, by: Charles Phillip Boyd, Jr., for appellant.
Kutak Rock LLP, by: Jess Askew III and Teresa Wineland, for appellee Bastesville
Casket Company, Inc.
The Streett Law Firm, P.A., by: Alex G. Streett, James A. Street, and Robert M. Veach,
for appellee Humphrey Funeral Service, Inc.
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