Van Dyke v. Glover

Jerry VAN DYKE and Shirley Van Dyke v. Dorsey
D. GLOVER, Robert Ward, Nature Estates, Inc.,
Phinis Warnex, and Sparks Brothers Realty

95-1348                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 25, 1996


1.   Appeal & error -- motion to dismiss -- standard of review. --
     In considering a motion to dismiss under ARCP Rule 12(b)(6),
     the facts in the complaint are treated as true and are viewed
     in the light most favorable to the plaintiff.

2.   Contracts -- offer and acceptance -- offer may be accepted by
     spoken words or conduct  -- question for trier of fact. --
     Oral acceptance of a written offer by a party sought to be
     charged meets the requirements of the statute of frauds;
     generally speaking, an offer may be accepted by spoken words
     or conduct; whether there was an acceptance is a question for
     the trier of fact.

3.   Statute of frauds -- land-sale contract -- essential terms
     must be ascertainable from writing itself or reference to
     something else. -- Unless the essential terms of a land sale
     can be ascertained from the writing itself, or by reference in
     it to something else, the writing is not in compliance with
     the statute of frauds; if the writing is defective, it cannot
     be supplied by parol proof, for that would at once introduce
     all the mischiefs that the statute was intended to prevent.

4.   Statute of frauds -- land-sale contract -- terms and
     conditions, price to be paid, and time for payment must be
     shown. -- A contract for the sale of land that fails to show
     the terms and conditions of the sale, the price to be paid,
     and the time for payment is not sufficient to satisfy the
     requirements of the statute of frauds.

5.   Statute of frauds -- land-sale contract -- land must be
     sufficiently described. -- A writing may not satisfy the
     requirements of the statute of frauds when it does not
     sufficiently describe the land to be sold; in this case, the
     land was adequately described because there was not only a
     letter giving the acreage in each tract but also a color-coded
     map accompanying the letter that illustrated the tracts of
     land at issue.  

6.   Statute of frauds -- land-sale contract -- time and method of
     payment must be set forth. -- A writing may also fail to
     comply with the statute of frauds because the time and method
     of payment are not set forth; in this case, the purchase price
     per acre per tract of land was adequately set out, together
     with down payments and option payments as well as the terms
     for financing the balance due.

7.   Contracts -- offer and acceptance -- acceptance and payment
     plan became questions of fact and matters of proof in trial
     court. -- The supreme court concluded that whether an
     acceptance was actually made on the part of appellants to
     purchase one tract of land and to preserve an option to
     purchase the remaining three tracts and the precise payment
     plan agreed to became questions of fact and matters of proof
     in the trial court.

8.   Estoppel -- promissory estoppel -- when it arises. -- A
     promise that the promisor should reasonably expect to induce
     action or forbearance on the part of the promisee or a third
     person and that does induce such action or forbearance is
     binding if injustice can be avoided only by enforcement of the
     promise; the remedy granted for breach may be limited as
     justice requires.

9.   Estoppel -- promissory estoppel -- reasonable detrimental
     reliance may defeat statute-of-frauds defense. -- Whether
     there was actual reliance by appellants and whether it was
     reasonable was a question for the trier of fact, but at the
     pleading stage, the allegation must be sufficiently stated;
     reasonable detrimental reliance may be raised to defeat the
     defense of statute of frauds.

10.  Estoppel -- promissory estoppel -- appellants sufficiently
     stated cause for promissory estoppel or detrimental reliance -
     - reversed and remanded. -- Where appellants alleged that they
     relied on the existence of the contract to their detriment and
     that they incurred expenses while investigating timber values,
     water service on the property, and the feasibility of building
     a lake on the property, they sufficiently stated a cause of
     action for promissory estoppel or detrimental reliance; the
     supreme court, concluding that appellants adequately stated
     facts to withstand a motion to dismiss on their five counts
     for relief, reversed and remanded the matter.


     Appeal from Hot Spring Chancery Court; Robert Garrett,
Chancellor; reversed and remanded.
     Friday, Eldredge & Clark, by:  John Dewey Watson and Allison
Graves, for appellants.
     Glover, Glover & Roberts, by: David M. Glover and Mark
Roberts, for appellees Dorsey D. Glover and Robert Ward.
     Ellis Law Firm, by: George D. Ellis, for appellees Nature
Estates, Inc., Phinis Warnex, and Sparks Brothers Realty.

     Robert L. Brown, Justice. 
     Appellants Jerry Van Dyke and Shirley Van Dyke appeal a
dismissal of their complaint against appellees Dorsey D. Glover,
Robert Ward, Nature Estates, Inc., Phinis Warnex, and Sparks
Brothers Realty.  They contend that the trial court erred in
finding that they did not state facts upon which relief can be
granted under Ark. R. Civ. P. 12(b)(6).  We agree with the
appellants, and we reverse the order of dismissal and remand the
matter.
     On May 26, 1995, the Van Dykes filed their complaint against
Glover, Ward, Nature Estates, Warnex, and Sparks Brothers.  The
history of the dealings among the parties, according to the Van
Dykes, is set out in the allegations of the complaint.  They first
alleged that Glover and Ward owned four tracts of land in Hot
Spring County.  The Van Dykes owned land near those tracts and
approached Ward and Glover about purchasing the tracts.  On or
about June 20, 1994, Glover on behalf of himself and Ward hand-
delivered an offer of sale to Shirley Van Dyke with a color-coded
map of the four tracts.  (The map was Exhibit A and the Glover
offer was Exhibit B to the complaint.)  Shirley Van Dyke then went
to Glover's office on June 21, 1994, and orally accepted the terms
of the written offer.  Shirley Van Dyke also offered to make a down
payment on the tract to be purchased and option payments on the
three tracts to be optioned and to pay earnest money as well, but
Glover told her that was not necessary at that time to consummate
the contract because he did not want to receive payment until after
the first of the year.  The Van Dykes left for California with the
belief that they had a contract, and Glover left for Europe. 
Shirley Van Dyke later began pursuing information on timber values
on the tracts, water service, and the feasibility of constructing
a lake.
     The Van Dykes asserted in their complaint that Shirley's
actions informed Nature Estates, Warnex, and Sparks Brothers of
their contract with Glover and Ward and that Nature Estates,
Warnex, and Sparks Brothers offered Ward and Glover a higher price
for the land.  The Van Dykes further assert that Nature Estates,
Warnex, and Sparks Brothers were engaged in subdividing the
property for mobile home/trailer sites, and they had entered into
purchase agreements to sell some of the subdivided tracts.  The Van
Dykes sought (1) cancellation of the Glover/Ward contract with
Nature Estates, Warnex, and Sparks Brothers as well as any
contracts to third persons; (2) specific performance of their
contract with Glover and Ward; (3) a preliminary injunction to
prevent any further transfer or sale of the property by Nature
Estates, Warnex, and Sparks Brothers; and (4) recovery from Nature
Estates, Warnex, and Sparks Brothers for tortious interference with
their contract.
     The letter from Glover to the Shirley Van Dyke was attached to
the complaint as Exhibit B and reads:
          The purpose of this letter is to set forth in
     writing for your convenience the terms Robert Ward and I
     discussed with you here in my office on Friday regarding
     a tract of land you are interested in purchasing, and to
     make a proposal to you regarding options on three
     additional tracts of land you have indicated that you and
     Jerry might be interested in purchasing.
          I will hand you with this letter a copy of an
     ownership map with the various tracts of land marked with
     a different color for easy identification.  The land you
     have expressed an interest in buying now is marked in
     pink and contains approximately 109 acres.  At $675.00
     per acre, the total purchase price on this tract will be
     $73,575.00.  With a 20% down payment ($14,715.00) we
     would agree to finance the $58,860.00 balance of the
     purchase price for a period of five years with interest
     at 8% per annum, which would make your monthly payments
     approximately $1,200.00.  Obviously, if you want to pay
     more down there would [be] less to finance and your
     payments would be reduced accordingly.  You let us know
     what you are comfortable with and we will put the figures
     together for you.
          The tracts you have indicated you would like an
     option to purchase are the area marked in blue on your
     map containing 77 acres, which we will refer to as Tract
     1, the area marked in yellow containing 57 acres, which
     we will refer to as Tract 2 and the area marked in green
     containing 100 acres, which we will refer to as Tract 3. 
     We value Tract 1 and 2 at $800.00 an acre and Tract 3 at
     $900.00 an acre.  We feel that this land, by virtue of
     timber growth, etc., is increasing in value at the rate
     of 10% a year.  We would grant you a two year option to
     purchase either or all option tracts of land in exchange
     for your payment of 5% of the current value as option
     money (all of which would be credited back against the
     purchase price if you elect to buy) and an amount equal
     to 10% per annum to your date of purchase if you elect to
     buy, which we feel will offset the growth factor and
     increased value of the property.
          As an example, if you wanted to buy the 77 acre
     tract marked in blue, which we have referred to as Tract
     1 today, the price at $800.00 per acre would be
     $61,600.00.  If, instead of buying it today, you wanted
     a two year option to buy it, you would pay 5% of that
     value ($3,080.00) for that option with that amount to be
     credited against the purchase price if you elect to buy,
     otherwise to be forfeited.  Using that same example, if
     you decided to go ahead and buy the land one year after
     the option date, you would pay the purchase price of
     $61,600.00, plus the 10% growth factor of $6,160.00 for
     a total of $67,760.00, from which would be deducted the
     $3,080.00 option money payment, which would result in a
     total purchase price of $64,680.00, if my math is
     correct.
          We will go over all of this when you are here at the
     office again today, but I thought that Jerry might not
     come with you, and it would be beneficial to have
     something in writing to discuss with him.
The Van Dykes filed a notice of lis pendens against the four
tracts.
     On June 13, 1995, Glover and Ward moved to dismiss the
complaint on grounds that the Glover letter did not comply with the
statute of frauds -- Ark. Code Ann.  4-59-101(a)(4) (Repl. 1996). 
Glover and Ward also argued that the complaint otherwise failed to
state sufficient facts to satisfy the statute of frauds for an oral
contract.  Nature Estates, Warnex, and Sparks Brothers filed their
separate answer and affirmatively pled that the complaint should be
dismissed because the statute of frauds had not been satisfied.  In
addition, they filed a counterclaim for slander of title and
interference with contractual relations and business expectancy.
     On July 18, 1995, a hearing was held on the motion to dismiss. 
Counsel for the Van Dykes maintained that all of the essential
elements of an agreement were contained in the Glover letter.  At
the conclusion of the hearing the trial court informed the parties
that its letter opinion would be forthcoming after it had reviewed
the law.  In a letter dated July 21, 1995, the trial court advised
the attorneys that it had decided to grant the motion to dismiss
for failure to comply with the statute of frauds.
     On August 21, 1995, the Van Dykes filed an amended and
substituted complaint in which they added a fifth count for
promissory estoppel or detrimental reliance against Glover and
Ward.  Also on August 21, 1995, the Van Dykes filed a motion for
the trial court to reconsider its ruling to dismiss the original
claims in their complaint.  The order of dismissal had not yet been
entered.
     On September 5, 1995, a hearing was held on the motion for
reconsideration and the amended complaint.  On September 19, 1995,
the trial court entered its order of dismissal.  The trial court
stated in its order that it had considered "the pleadings, the
briefs, the arguments of counsel and the cases cited to the court"
and specifically found that the Glover letter did not comply with
the statute of frauds and, therefore, was not an enforceable
contract:
     The [C]ourt thinks the letter is an offer but the letter
     has options in it.  The Court cannot find an acceptance
     because to the document on its face one cannot say, "I
     accept."  There are too many options in there to just
     accept it.  It takes a specific acceptance of option one,
     two or three.  The Court thinks that could have been
     done.  There were sufficient items there (sic) it could
     constitute an offer; but the Court finds no acceptance. 
     Likewise for the above reasons, the court finds the
     amended and substituted complaint does not state facts
     upon which relief may be granted on the doctrine of
     detrimental reliance or promissory estoppel.  Defendants'
     counterclaims are pending and are transferred to circuit
     court.
The trial court dismissed the Van Dykes' original complaint and
their amended and substituted complaint and granted a Rule 54(b)
certification for purposes of appeal because the counterclaim
against the Van Dykes was still pending.  See Ark. R. Civ. P.
54(b).
     The Van Dykes urge on appeal that they did plead sufficient
facts on which relief could be granted, including facts sufficient
to satisfy the statute of frauds.  In considering a motion to
dismiss under Arkansas Rule of Civil Procedure 12(b)(6), the facts
alleged in the complaint are treated as true and are viewed in the
light most favorable to the plaintiff -- in this case, the Van
Dykes.  Malone v. Trans-States Lines, Inc., 325 Ark. 383, ___
S.W.2d ___ (1996); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760
(1992).  Though counsel for appellees contended at oral argument
that the trial court considered matters outside the pleadings in
deciding to grant a dismissal, there is nothing in the abstract to
substantiate that claim.  Indeed, the order of dismissal
specifically states to the contrary.
     The issue then is whether the Glover letter was a sufficient
memorandum to satisfy the statute of frauds, which reads:
          (a) Unless the agreement, promise, or contract, or
     some memorandum or note thereof, upon which an action is
     brought is made in writing and signed by the party to be
     charged therewith, or signed by some other person
     properly authorized by the person sought to be charged,
     no action shall be brought to charge any:
                              ....
          (4) Person, upon any contract for the sale of lands,
     tenements, or hereditaments, or any interest in or
     concerning them;
Ark. Code Ann.  4-59-101(a)(4) (Repl. 1996).  The Van Dykes
initially contend that oral acceptance of a written offer by a
party sought to be charged meets the requirements of the statute of
frauds.  This precise issue has been addressed in Arkansas, and,
generally speaking, an offer may be accepted by spoken words or
conduct.  Childs v. Adams, 322 Ark. 424, 909 S.W.2d 641 (1995);
Baker v. Taylor & Co., 218 Ark. 538, 237 S.W.2d 471 (1951); Jones
v. School Dist. No. 48, 137 Ark. 414, 208 S.W.2d 798 (1919); ERC
Mortgage Group, Inc. v. Luper, 32 Ark. App. 19, 795 S.W.2d 362
(1990); see also E. LeFevre, Oral Acceptance of A Written Offer by
a Party Sought to be Charged as Satisfying Statute of Frauds, 30
A.L.R.2d 972 (1953).  Whether there was an acceptance is a question
for the trier of fact.  Robertson v. Ceola, 255 Ark. 703, 501 S.W.2d 764 (1973); James v. P.B. Price Constr. Co., 240 Ark. 628,
401 S.W.2d 206 (1966).
     The next question to be addressed is whether the Glover letter
contained all the essential terms of a contract in order to comply
with the statute of frauds.  The general rule has been stated in
this fashion:
     Unless the essential terms of the sale can be ascertained
     from the writing itself, or by reference in it to
     something else, the writing is not [in] compliance with
     the statute; and if the writing be thus defective, it
     cannot be supplied by parol proof, for that would at once
     introduce all the mischiefs which the statute was
     intended to prevent.
Sorrells v. Bailey Cattle Co. , 268 Ark. 800, 811-12, 595 S.W.2d 950, 955 (Ark. App. 1980), quoting Williams v. Morris, 95 U.S. 444
(1877).
     As an initial matter, it is undisputed that the writing was
signed by the party to be charged, as the statute of frauds
requires, because Glover signed the document.  From the allegations
in the complaint, he had the authority to bind Ward.  However, "[a]
contract for the sale of land which fails to show the terms and
conditions of the sale, the price to be paid, and the time for
payment is not sufficient to satisfy the requirements of the
statute of frauds."  Wyatt v. Yingling, 213 Ark. 160, 163, 210 S.W.2d 122, 123 (1948), quoting Tate v. Clark, 203 Ark. 231, 156 S.W.2d 218 (1941).
     Moreover, a writing may flunk the test of the statute of
frauds when it does not sufficiently describe the land to be sold. 
See, e.g., Richardson v. Stuberfield, 168 Ark. 713, 271 S.W. 345
(1925); Sossamon v. Davis, 271 Ark. 156, 607 S.W.2d 405 (Ark. App.
1980); Boensch v. Cornett, 267 Ark. 671, 590 S.W.2d 55 (Ark. App.
1979).  In the case at hand, the land was adequately described
because there was not only the Glover letter giving the acreage in
each tract but a color-coded map accompanying the letter that
illustrated the tracts of land at issue.  A writing may also fail
to comply with the statute of frauds because the time and method of
payment are not set forth.  See, e.g., Jonesboro Investment Corp.
v. Cherry, 239 Ark. 1035, 396 S.W.2d 284 (1965); Schuman v. Hughes,
203 Ark. 395, 156 S.W.2d 804 (1941); Tate v. Clark, supra.  That is
not a problem in the instant case.  The purchase price per acre per
tract of land was adequately set out together with down payments
and option payments as well as the terms for financing the balance
due.
     The ultimate issue to be decided is whether the Glover letter
is so indefinite with its alternative payment plans that the
essential terms of the agreement cannot be distilled from it.  To
be sure, the letter permitted the Van Dykes to pay more down on the
purchase price for the land to be bought and thereby finance less
of the balance owing.  It also provided that on the three "option"
tracts, the Van Dykes could pay a fixed option price for a two-year
option to purchase.  The Van Dykes could also purchase one or more
of the "option" tracts immediately, or at any time up to two years
subject to an adjustment in the payment plan.  The formula for the
purchase price for all four tracts and the credits, if applicable,
were set out in the letter.
     The circuit court found too many ways to proceed in the Glover
letter for it to be susceptible to an acceptance and concluded
dismissal was appropriate.  We disagree.  The allegations in the
complaint, which we must take as true for purposes of a motion to
dismiss are:
          7. After plaintiff Shirley Van Dyke discussed with
     plaintiff Jerry Van Dyke the Offer of defendants Dorsey
     D. Glover and Robert Ward to sell the Property, the Van
     Dykes agreed to accept the Offer.  On or about June 21,
     1994, plaintiff Shirley Van Dyke went to the office of
     defendant Dorsey D. Glover and orally informed him the
     Van Dykes accepted the terms of the Offer of defendants
     Dorsey D. Glover and Robert Ward.
          8. Plaintiff Shirley Van Dyke, upon accepting the
     Offer of defendants Dorsey D. Glover and Robert Ward,
     offered to pay the down payment and option payments, and
     also offered to pay an earnest money check to defendant
     Dorsey D. Glover to evidence the Van Dykes' good faith
     intention and ability to carry out the terms of the
     purchase contract.
Hence, the Van Dykes accepted the offer and then tendered a down
payment and option payments as well as earnest money.  We must
construe these allegations in the complaint in favor of the Van
Dykes, that is, that an acceptance was made to purchase the one
tract and to preserve an option to purchase the remaining three
tracts.  Whether an acceptance was actually made and the precise
payment plan agreed to become questions of fact and matters of
proof in the trial court.
     We reach the same result with respect to the Van Dykes' claim
of detrimental reliance and promissory estoppel.  The Van Dykes
argue that the statute of frauds has no bearing on the doctrine of
promissory estoppel.  Glover and Ward, on the other hand, argue
that the Van Dyke's reliance was not reasonable.
     The blackletter law on promissory estoppel is found in the
Restatement (Second) of Contracts:
     A promise which the promisor should reasonably expect to
     induce action or forbearance on the part of the promisee
     or a third person and which does induce such action or
     forbearance is binding if injustice can be avoided only
     by enforcement of the promise.  The remedy granted for
     breach may be limited as justice requires.
Restatement (Second) of Contracts,  90 (1981); Reynolds v.
Texarkana Constr. Co., 237 Ark. 583, 374 S.W.2d 818 (1964).  See
also Childress v. McManus, 282 Ark. 255, 668 S.W.2d 9 (1984). 
Whether there was actual reliance by the Van Dykes and whether it
was reasonable is a question for the trier of fact, but at the
pleading stage, the allegation must be sufficiently stated. 
Sanders v. Arkansas-Missouri Power Co., 267 Ark. 1009, 593 S.W.2d 56 (Ark. App. 1980).  The court of appeals has recognized that
reasonable detrimental reliance may be raised to defeat the defense
of statute of frauds.  See Country Corner Food & Drug, Inc. v.
Reiss, 22 Ark. App. 222, 737 S.W.2d 672 (1987); Ralston Purina Co.
v. McCollum, 271 Ark. 840, 611 S.W.2d 201 (Ark. App. 1981).
     Here, the Van Dykes alleged that they relied on the existence
of the contract to their detriment and that they incurred expenses
while investigating timber values, water service on the property,
and the feasibility of building a lake on the property.  This
sufficiently states a cause of action for promissory estoppel or
detrimental reliance.
     We conclude that the Van Dykes have adequately stated facts to
withstand a motion to dismiss on their five counts for relief.
     Reversed and remanded.
     Dudley and Newbern, JJ., dissent.
=================================================================
           David Newbern, Associate Justice, dissents.
     This is essentially a specific performance case.  The question
is whether the document alleged to have been an offer to sell land
was sufficiently definite to permit the formation of a contract
upon evidence of a general "acceptance."  The Chancellor correctly
held that it was not.  The dismissal pursuant to Ark. R. Civ. P.
12(b)(6) was correct because facts stating a claim upon which
relief could be granted were not stated in the complaint.

                   1. Formation of a contract
     With respect to the approximately 109 acres Shirley Van Dyke
had expressed an interest in buying immediately, the letter from
Dorsey D. Glover to Ms. Van Dyke gave a purchase price but proposed
a sliding payment scale based on the amount of down payment and
then said, "You let us know what you are comfortable with and we
will put the figures together for you."  
     As to the other tracts in which Mrs. Van Dyke had expressed an
interest, the letter stated current land values and then presented
an example of a kind of deal that might be entered: "As an example,
if you wanted to buy the 77 acre tract marked in blue. . . .  If,
instead of buying it today you wanted a two year option to buy. .
. .  Using that same example, if you decided to go ahead and buy
the land one year after the option date. . . ."  The letter
concluded by saying, "We will go over all of this when you are here
at the office today. . . ."  The complaint alleged simply that the
"offer" was "accepted" by Mrs. Van Dyke when she returned to the
office and offered earnest money.  
     As we held in Wyatt v. Yingling, 213 Ark. 160, 210 S.W.2d 122
(1948), to satisfy the statute of frauds, a writing must be such
that all of the contract can be collected from it.  To say that the
writing in this case formed a contract would leave unknown the
terms of financing and payment with respect to the 109-acre tract. 
It would also leave unknown the option durations and payment
options choices among those proposed with respect to the other
tracts in which Mrs. Van Dyke had expressed interest.  
     The Chancellor was correct in holding the writing was
insufficient to support a finding of a contract upon a general
acceptance.  To have formed a contract satisfying the statute of
frauds, the writing "must have embraced the terms and conditions of
the sale and it must have been a mutual contract."  Tate v. Clark,
203 Ark. 231, 156 S.W.2d 218 (1941).
      
                                
                     2. Promissory estoppel
     As to the added alternative claim of promissory estoppel, the
Van Dykes' only allegation of detrimental reliance was as follows:

          In October, 1994, plaintiff Shirley Van Dyke, relying
     upon the aforementioned representations of Dorsey D. Glover,
     began pursuing information regarding timber values on the
     Property, water service to the Property, and the feasibility
     of constructing a man-made lake on the property, and in so
     doing incurred valuable expenditures of time and money.

     The Chancellor correctly held the allegation insufficient to
state facts upon which relief could be granted pursuant to the
detrimental-reliance theory.  In evaluating the allegation, the
Chancellor said he "had a difficult time finding detrimental
reliance of any significant nature at all on the part of the Van
Dykes."  The problem is that the allegation amounts to no more than
a conclusion which might be reached by a fact finder.  It does not
state facts.  The general rule is that claims of promissory
estoppel are questions for the fact finder.  See Country Corner
Food & Drug, Inc. v Reiss, 22 Ark. App. 222, 737 S.W.2d 672 (1987);
Dickson v. Delhi Seed Co., 26 Ark. App. 83, 737 S.W.2d 382 (1988). 
Specifically, in both cases, the Court of Appeals upheld denials of
motions to dismiss for failure to state a claim of detrimental
reliance and allowed the question to go to the jury.
     However, in the Dickson case, the complaint alleged specific
facts such as dates of meetings between the parties, and particular
secondary contracts entered into with other parties in reliance on
the promise.  Similarly, in the Country Corner case, the complaint
specifically alleged a detailed oral agreement and the additional
action of moving the complainant's family to a new town.  In the
case at bar, to say that the plaintiff "began pursuing information"
does not inform the reader of any facts constituting expenditure of
time and money.  To overcome a motion to dismiss pursuant to Ark.
R. Civ. P. 12(b)(6), the pleader must set forth more than mere
conclusions.  Perrodin v. Rooker, 322 Ark. 117, 908 S.W.2d 85
(1995); Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). 
     I respectfully dissent.
     Dudley, J., joins.