dissenting. Because I believe that tice, complaint failed to allege facts that would establish that he was an intended third-party beneficiary to the services agreement between Baptist Health and Arkansas Trauma Surgeons, P.L.L.C., a limited-liability company, herein referred to as “Arkansas Trauma,” I would hold that the trial court properly dismissed appellant’s complaint. Accordingly, I must respectfully dissent.
In Country Corner Food & Drug, Inc. v. First State Bank, 332 Ark. 645, 966 S.W.2d 894 (1998), we outlined the standards to be applied when reviewing a dismissal order under Rule 12 (b)(6). We wrote:
In reviewing a trial court’s decision on a motion to dismiss under Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. In deciding dismissal motions, the trial court must look only to the allegations in the complaint. In order to state a cause of action, the complaint must allege facts and not mere conclusions. Ark. R. Civ. P. 8. When a complaint is dismissed without prejudice, the plaintiffhas the option of pleading further or appealing. If the plaintiff appeals, the option to plead further is waived in the event of an affirmance by the appellate court.
Id. (citing Hunt v. Riley, 322 Ark. 453, 909 S.W.2d 329 (1995)) (internal citations omitted).
This court has noted that Arkansas is a fact-pleading state, and we will look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Country Comer, supra. Conclusions without the necessary factual underpinnings to support them are not enough to state a cause of action. Hunt, supra.
In light of the applicable standard of review, I would conclude that appellant’s complaint was insufficient to survive a motion to dismiss. In his complaint, appellant asserted two causes of action. Appellant alleged that Baptist Health breached the services agreement entered into by Baptist Health and Arkansas Trauma. He further alleged that Baptist Health breached its implied duty of good faith and fair dealing in its performance of its obligations under the services agreement. However, appellant was not a party to the services agreement and had no contractual relationship with Baptist Health except as an incidental third-party beneficiary of that contract.
We have held that there is a presumption that parties contract only for themselves, and a contract will not be construed as having been made for the benefit of third parties unless it clearly appears that such was the intention of the parties. Little Rock Wastewater Utility v. Larry Moyer Trucking, 321 Ark. 303, 902 S.W.2d 760 (1995). A contract is actionable by a third party where there is substantial evidence of a clear intention to benefit that third party. Id; see also Carolus v. Arkansas Light & Power Co., 164 Ark. 507, 262 S.W. 330 (1924). The intention of the parties, so far as these may be determined, may be examined to gain understanding of the meaning of the parties by the language employed, and their conduct in relation thereto may help to clarify what might otherwise be doubtful. Howell v. Worth James Const. Co., 259 Ark. 627, 535 S.W.2d 826 (1976). A third party may not recover upon a contract in which he is a mere incidental beneficiary. Cook v. U.S. Fidelity & Guaranty Co., 216 Ark. 743, 227 S.W.2d 135 (1950).
In order to survive a motion to dismiss, appellant’s complaint must plead the factual basis for a determination that he was an intended third-party beneficiary to the services agreement entered into by Baptist Health and Arkansas Trauma. To meet this requirement, appellant must assert facts sufficient to establish more than that he received a benefit from the services agreement. Appellant’s allegations must also be supported by the “factual underpinnings” necessary to support his claim that he is an intended third-party beneficiary to the services agreement. Otherwise, as a nonparty to the services agreement, appellant lacked standing to pursue contractual claims against Baptist Health.
The factual allegations pleaded by appellant establish that Baptist Health entered into a services agreement with Arkansas Trauma.1 Pursuant to that agreement, Arkansas Trauma provided Baptist Health with a trauma-call schedule of qualified surgeons for the purpose of providing emergency care at Baptist Medical Center. Appellant was a member of the pool of surgeons who participated in the trauma-call schedule. Arkansas Trauma and Baptist Health used the services of surgeons, such as appellant, to provide trauma-call services. Through his performance of the services, appellant was compensated by Arkansas Trauma rather than by Baptist Health. Although appellant received benefits from his participation in the trauma-call schedule, in my view, the complaint clearly established that the benefits were merely incidental to the contract between Arkansas Trauma and Baptist Health. After reviewing the allegations in appellant’s complaint in the light most favorable to appellant, I am convinced that appellant failed to plead facts sufficient to establish that he was an intended third-party beneficiary to the services agreement entered into by Baptist Health and Arkansas Trauma. For that reason, I would conclude that the trial court properly dismissed the complaint.
I respectfully dissent.
I am authorized to state that Justice Corbin joins in this dissent.Arkansas Trauma was created by a group of surgeons through an operating agreement. The operating agreement, which is the only contract that appellant entered into, was not incorporated into his complaint. Thus, we do not know the nature of the agreement between Arkansas Trauma and appellant. It is probable that the operating agreement did not name appellant as an intended third-party beneficiary to the contract between Arkansas Trauma and Baptist Health because if that status was within the operating agreement, appellant would surely have presented it.