Renfro v. Adkins

Janet RENFRO, Individually and as Mother and
Next Friend of Brandee L. Hodges, a Minor v.
Jerry Eugene ADKINS and Juanita C. Adkins,
Individually and as Executrix of the Estate
of Frederick Earl Adkins, Jr., Deceased;
Frederick Earl Adkins; and Rebecca E. Adkins

95-500                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 5, 1996


1.   Civil procedure -- voluntary nonsuit of a claim distinguished
     from voluntary nonsuit with respect to an opposing party --
     nonsuit here involved a party and so was appealable. -- A
     voluntary nonsuit of a claim by a party prevents an order
     which decides the remaining claims of that party from being
     final for purposes of an appeal; however, the taking of a
     voluntary nonsuit with respect to an opposing party, as
     opposed to a claim, does not adversely affect the finality of
     an order regarding the remaining parties; where appellant's
     nonsuit involved a party rather than a claim, the orders
     appealed from were final and appealable. 

2.   Civil procedure -- service of process -- Nonresident Motorists
     Act allowed service of process on the Secretary of State --
     trial court had in personam jurisdiction over appellee. -- The
     Nonresident Motorist Act permits service of process on a
     nonresident owner of a vehicle by designating the Secretary of
     State as the nonresident owner's agent for service of process
     in exchange for the privilege of operating a vehicle owned by
     the nonresident on Arkansas highways; since the nonresident
     owner's "agent" can be personally served within the state
     under the Act, the trial court was able to obtain in personam
     jurisdiction over appellee Juanita Adkins by service on the
     Arkansas Secretary of State. 

3.   Civil procedure -- service perfected under the Nonresident
     Motorist Act -- trial court had personal jurisdiction over
     appellee. -- Where service was perfected on Juanita Adkins by
     serving the Secretary of State pursuant to the Nonresident
     Motorist Act, and where Juanita Adkins referred to the pickup
     truck which she turned over to appellee Jerry Adkins as "my
     Ford Truck"; and where the certificate of title reflected that
     12 days after the accident she transferred title as executrix
     from her deceased husband's estate to herself, the appellate
     court determined that service on appellee Juanita Adkins was
     proper under the Nonresident Motorist Act and reversed the
     trial court on this point.

4.   Judgment -- standards for summary judgment -- factors on
     review. -- On review, the court need only decide if the
     granting of summary judgment was appropriate based on whether
     the evidentiary items presented by the moving party in support
     of the motion left a material question of fact unanswered; the
     burden of sustaining a motion for summary judgment is always
     the responsibility of the moving party; all proof submitted
     must be viewed in a light most favorable to the party
     resisting the motion, and any doubts and inferences must be
     resolved against the moving party; summary judgment is proper
     when a claiming party fails to show that there is a genuine
     issue as to a material fact and when the moving party is
     entitled to summary judgment as a matter of law. 

5.   Judgment -- summary judgment -- once prima facie entitlement
     to summary judgment established, burden shifts to opposing
     party. -- Once the moving party establishes a prima facie
     entitlement to summary judgment by affidavits or other
     supporting documents or depositions, the opposing party must
     meet proof with proof and demonstrate the existence of a
     material issue of fact. 

6.   Negligence -- negligent entrustment -- necessary elements of
     proof. -- Proof regarding the following elements is necessary
     to establish a case of negligent entrustment: (1) the
     entrustee was incompetent, inexperienced or reckless; (2) the
     entrustor knew or had reason to know of the entrustee's
     condition or proclivities; (3) there was an entrustment of the
     chattel; (4) the entrustment created an appreciable risk of
     harm to the plaintiff and a relational duty on the part of the
     defendant; and (5) the harm to the plaintiff was proximately
     or legally caused by the negligence of the defendant.

7.   Judgment -- several material issues of fact existed as to
     appellee Juanita Adkins -- trial court erred in granting
     summary judgment as to this negligent entrustment issue. -- 
     Where, viewing the evidence in the light most favorable to 
     appellee Juanita Adkins, there were several genuine issues of
     material fact including:  an issue as to who actually owned
     the pickup truck in question, whether appellee Juanita Adkins
     had any knowledge of appellee Jerry Adkins's propensity to
     drive while intoxicated, and the existence of conflicting
     affidavits concerning the extent of her knowledge on this
     point, a genuine issue of material fact existed, and the trial
     court erred in granting summary judgment in favor of appellee
     Juanita Adkins on the negligent entrustment count.

8.   Judgment -- summary judgment properly granted -- no evidence
     that either party supplied truck to appellee. -- The trial
     court did not err in granting summary judgment in favor of
     appellees Frederick and Rebecca Adkins on the claim of
     negligent entrustment where there was no proof to suggest that
     either Frederick or Rebecca Adkins was acting as an agent of
     the estate or of Juanita Adkins, nor was there evidence that
     either party "supplied" the truck to appellee Jerry Adkins,
     directly or indirectly, or even exercised any control over it.
     
9.   Torts -- tort of outrage discussed. -- The supreme court has
     taken a very narrow view of claims of outrage; one is subject
     to liability for outrage if he or she willfully or wantonly
     causes severe emotional distress to another by extreme and
     outrageous conduct -- conduct that is so outrageous in
     character and so extreme in degree as to go beyond all
     possible bounds of decency, and to be regarded as atrocious,
     and utterly intolerable in civilized society; the emotional
     distress for which damages may be sought must be so severe
     that no reasonable person could be expected to endure it; in
     addition, the tort of outrage requires clear-cut proof, merely
     describing the conduct as outrageous does not make it so.

10.  Torts -- tort of outrage claim correctly dismissed -- claim
     not supported by the proof. -- The trial court correctly
     granted the motion for summary judgment on the outrage claim
     where the negligent entrustment claim against appellee
     Frederick Adkins was correctly dismissed and the remaining
     allegations fell woefully short of supporting a claim of
     outrage.

11.  Judgment -- propriety of summary judgment in favor of
     appellees Frederick and Rebecca Adkins not addressed -- no
     basis existed for a claim against them. -- Whether the trial
     court erred in granting summary judgment in favor of appellees
     Frederick and Rebecca Adkins on the issue of fraudulent
     transfer was not addressed because appellant voluntarily
     dismissed appellee Jerry Adkins from the lawsuit; without a
     claim that Jerry Adkins made the fraudulent transfer, that is,
     had some ownership interest in the assets and made the
     transfer with intent to defraud, the court could discern no
     basis for a claim against his brother and sister.


     Appeal from Saline Circuit Court; Phillip Shirron, Judge;
affirmed in part; reversed in part and remanded.
     Boswell, Tucker & Brewster, by:  Ted Boswell and John T.
Holleman, for appellant.
     Warford, Revels & McCallister, by:  Bobby D. McCallister, for
appellee Juanita C. Adkins.
     Huckabay, Munson, Rowlett & Tilley, P.A., for appellee
Frederick Earl Adkins.
     Matthews, Sanders, & Sayes, by: Margaret M. Newton and Roy
Gene Sanders, for appellee Rebecca E. Adkins.

     Robert L. Brown, Justice.  
     Associate Justice Robert L. Brown
February 5, 1996  *ADVREP7*



JANET RENFRO, INDIVIDUALLY AND
AS MOTHER AND NEXT FRIEND OF
BRANDEE L. HODGES, A MINOR,
                    APPELLANT,

V.

JERRY EUGENE ADKINS AND JUANITA
C. ADKINS, INDIVIDUALLY AND AS
EXECUTRIX OF THE ESTATE OF
FREDERICK EARL ADKINS, JR.,
DECEASED; FREDERICK EARL
ADKINS; AND REBECCA E. ADKINS,
                    APPELLEES,

95-500




APPEAL FROM THE SALINE COUNTY
CIRCUIT COURT,
NO. 92-708-1,
HON. PHILLIP SHIRRON, JUDGE,




AFFIRMED IN PART; REVERSED IN
PART AND REMANDED.





     The appellants, Janet Renfro and Brandee L. Hodges, appeal an
order granting summary judgment in favor of the appellees,
Frederick Earl Adkins, III, Rebecca Adkins, and Juanita Adkins,
individually and as executrix of the estate of Frederick Earl
Adkins, Jr.  They contend that summary judgment was inappropriate
because genuine issues of material fact remain to be decided.  They
further urge that the trial court erred in finding that it did not
have personal jurisdiction over Juanita Adkins.  
     On November 12, 1992, Jerry Adkins was driving a pickup truck
that was titled to his deceased father, Frederick Adkins, Jr., when
he collided with a car in which Brandee L. Hodges was a passenger. 
Hodges was seriously injured as a result of the accident.  It was
later determined that Jerry Adkins was intoxicated at the time of
the accident.    
     Janet Renfro (both individually and on behalf of her daughter,
Brandee Hodges) filed a negligence claim against Jerry Adkins. 
Renfro later amended her complaint to include a negligent
entrustment action against Juanita Adkins, who was Jerry Adkins's
stepmother, and sued her in her individual capacity and as
executrix of the estate of Frederick Adkins, Jr.  Juanita Adkins
was sued as an individual because the will of Frederick Adkins, Jr.
left the pickup truck to her.  Renfro alleged that Juanita Adkins,
as a resident of Louisiana, entrusted the pickup truck to Jerry
Adkins in Louisiana with knowledge of his past history of reckless
operation of automobiles and with knowledge that the vehicle would
be driven in Arkansas without liability insurance.
     Juanita Adkins answered and moved to dismiss Renfro's
complaint on grounds that the Arkansas trial court lacked personal
jurisdiction over her because she resided in Louisiana.  She later
moved for summary judgment on the negligent entrustment claim and
contended that ownership in the vehicle had never vested in her and
that ownership of the vehicle had been transferred to Jerry Adkins
prior to the accident.  She further asserted that there was no
evidence that she knew or had reason to know of Jerry Adkins's
driving record.  
     On July 22, 1992, Renfro filed a second amended complaint.  In
this complaint, she added allegations of negligent entrustment,
tort of outrage, and fraudulent conveyance against Frederick
Adkins, III, and Rebecca Adkins, brother and sister of Jerry
Adkins.  The new allegations were based on a "jailhouse" letter
written by Jerry Adkins to his wife, Phyllis.  The letter stated
that he had "stashed" money with Frederick and Rebecca Adkins.
     Frederick and Rebecca Adkins answered the amended complaint
and later moved for summary judgment, claiming that the complaint
failed to state a cause of action for any of the claims alleged. 
Attached to their motions were their affidavits and an affidavit by
Jerry Adkins.  Jerry Adkins's affidavit stated that the reference
that he had "stashed" moneys referred to the disclaimer he had made
to his grandmother's inheritance in the probate of her estate prior
to the accident.  The money disclaimed went to Frederick and
Rebecca Adkins under their grandmother's will.  He further averred
that they were the legal owners of the money and that there were no
other funds to be transferred.  He added that he took possession
and ownership of the pickup truck when he went to Louisiana and
that neither Frederick nor Rebecca Adkins ever had an interest in
it.  His brother's and sister's affidavits confirmed the sworn
statements in Jerry Adkins's affidavit.
     On February 9, 1995, the trial court granted Juanita Adkins's
motion for summary judgment on the negligent entrustment claims. 
The trial court also granted summary judgment on all the claims
asserted against Frederick and Rebecca Adkins.  Finally, the trial
court granted Juanita Adkins's motion to dismiss on the grounds of
lack of personal jurisdiction.  Also on February 9, 1995, Renfro
moved to voluntarily dismiss her claims against Jerry Adkins, the
remaining party to the lawsuit.  The trial court granted the motion
and dismissed the action against Jerry Adkins without prejudice.
     Although no issue concerning the finality of the order has
been raised by the parties, our recent decision in Driggers v.
Locke, ___ Ark. ___, ___ S.W.2d ___ (Jan. 16, 1996), deserves
mention.  In Driggers, we distinguished Haile v. Arkansas Power &
Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995), where we held that
a voluntary nonsuit of a claim by a party prevented an order which
decided the remaining claims of that party from being final for
purposes of an appeal.  In Driggers, we held that the taking of a
voluntary nonsuit with respect to an opposing party, as opposed to
a claim, did not adversely affect the finality of an order
regarding the remaining parties.  As Renfro's nonsuit in the
instant case involved a party rather than a claim, the orders
appealed from are final and appealable, and we will address the
merits of this appeal.

                    I. Personal Jurisdiction
     Renfro takes issue with the trial court's finding that it did
not have personal jurisdiction over Juanita Adkins, who resides in
Louisiana, and we address this matter of jurisdiction first. 
Renfro claims that the trial court had personal jurisdiction over
Adkins pursuant to the long-arm statute, Ark. Code Ann.  16-4-101
(1987) and pursuant to the Nonresident Motorist Act, Ark. Code
Ann.  16-58-121 (1987).  Apparently, service was first had on
Juanita Adkins under the long-arm statute.  She was later served
under the Nonresident Motorist Act.  We agree that personal
jurisdiction was appropriately obtained against Juanita Adkins
under the Nonresident Motorist Act.  Thus, we hold that the trial
court did have personal jurisdiction over Juanita Adkins, both
individually and as executrix of the estate of Frederick Adkins,
Jr.
     The Nonresident Motorist Act permits service of process on a
nonresident owner of a vehicle by designating the Secretary of
State as the nonresident owner's agent for service of process in
exchange for the privilege of operating a vehicle owned by the
nonresident on Arkansas highways.  Since the nonresident owner's
"agent" can be personally served within the state under the Act,
the trial court was able to obtain in personam jurisdiction over
Juanita Adkins by service on the Arkansas Secretary of State.  See
Shaffer v. Heitner, 433 U.S. 186, 202 (1977) (citing Hess v.
Pawloski, 274 U.S. 352 (1927)).
     At oral argument, counsel for Renfro asserted that service was
perfected on the Secretary of State pursuant to the Nonresident
Motorist Act, and the record confirms that counsel for Renfro
similarly confirmed that fact before the trial court.  We note that
the record does not contain a return of service as proof that
service was accomplished under the Act. However, perfection of
service under the Nonresident Motorist Act was never contested by
Juanita Adkins.  What she does contend is that she was not the
owner of the pickup truck at the time of the accident and, thus,
the Act does not apply.  In a statement signed by her on August 2,
1992, which was before the accident, she refers to the pickup truck
which she turned over to Jerry Adkins as "my Ford Truck."  In
addition, she concedes in her brief on appeal that an inference
could be made that title was in her name, as executrix of the
estate, at the time of the accident.  In fact, the certificate of
title reflects that on November 24, 1992 -- 12 days after the
accident -- she transferred title from her deceased husband's
estate to herself.  We are of the opinion that service on Juanita
Adkins was proper under the Nonresident Motorist Act, and we
reverse the trial court on this point.

                      II. Summary Judgment
     Renfro next claims that the trial court erred in granting
summary judgment in favor of each appellee on the issues of
negligent entrustment, fraudulent conveyance, and tort of outrage.
     This court has summarized its standards for summary judgment
review recently:
          In these cases, we need only decide if the granting
     of summary judgment was appropriate based on whether the
     evidentiary items presented by the moving party in
     support of the motion left a material question of fact
     unanswered.  Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991).  The burden of sustaining a motion for
     summary judgment is always the responsibility of the
     moving party.  Cordes v. Outdoor Living Center, Inc., 301
     Ark. 26, 781 S.W.2d 31 (1989).  All proof submitted must
     be viewed in a light most favorable to the party
     resisting the motion, and any doubts and inferences must
     be resolved against the moving party.  Lovell v. St. Paul
     Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222
     (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark.
     104, 835 S.W.2d 284 (1992); Reagan v. City of Piggott,
     305 Ark. 77, 805 S.W.2d 636 (1991).  Our rule states, and
     we have acknowledged, that summary judgment is proper
     when a claiming party fails to show that there is a
     genuine issue as to a material fact and when the moving
     party is entitled to summary judgment as a matter of law.
     Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc.,
     297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex
     Corp. v. Catrett, 477 U.S. 317 (1986).
Cash v. Lim, 322 Ark. 359, 360-362, 908 S.W.2d 655, 656-657 (1995);
Oglesby v. Baptist Medical Sys., 319 Ark. 280, 284, 891 S.W.2d 48,
50 (1995).
     It is further well-settled that once the moving party
establishes a prima facie entitlement to summary judgment by
affidavits or other supporting documents or depositions, the
opposing party must meet proof with proof and demonstrate the
existence of a material issue of fact.  See Ford Motor Credit Co.
v. Twin City Bank, 320 Ark. 231, 895 S.W.2d 545 (1995); Wyatt v. 
St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505
(1994).  With these standards in mind, we turn to the precise
claims upon which summary judgment was rendered.

a. Negligent Entrustment
     Renfro contends that the trial court erred in granting summary
judgment on the negligent entrustment claims.  We have held that
proof regarding the following elements is necessary to establish a
case of negligent entrustment:
          (1)  the entrustee was incompetent, inexperienced or
     reckless;
          (2)  the entrustor knew or had reason to know of the
     entrustee's condition or proclivities;
          (3)  there was an entrustment of the chattel;
          (4)  the entrustment created an appreciable risk of harm
     to the plaintiff and a relational duty on the part of the
     defendant; and
          (5)  the harm to the plaintiff was proximately or legally
     caused by the negligence of the defendant.
Arkansas Bank & Trust Co. V. Erwin, 300 Ark. 599, 781 S.W.2d 21
(1989).
     We first examine the negligent entrustment claim as asserted
against Juanita Adkins.  Viewing the evidence in the light most
favorable to her, there appear to be several genuine issues of
material fact.  Initially, there is an issue as to who actually
owned the pickup truck in question.  At the time of the accident,
the title was still in the name of Jerry Adkins's deceased father,
and Juanita Adkins was the executrix of his estate.  The will,
however, left the truck to Juanita Adkins.  While she maintains
that she gave the truck to Jerry Adkins and that title could not be
transferred while the estate was still in probate, the title and
the will were evidence that the truck was, in fact, still held by
the estate and, thus, by Juanita Adkins as executrix at the time of
the accident.  As previously mentioned, on August 2, 1992, Juanita
Adkins signed a document stating that Jerry and Phyllis Adkins have
"my permission to use my Ford Truck," thereby admitting her
ownership.  Twelve days after the accident she transferred title to
the vehicle from the estate to herself.  At the very least, a
material question of fact remains to be resolved concerning this
matter.
     Further, a genuine issue of material fact exists on whether
Juanita Adkins had any knowledge of Jerry Adkins's propensity to
drive while intoxicated.  In her deposition, Juanita Adkins stated
that she knew Jerry had been drinking at his father's funeral,
which, of course, occurred before she turned the pickup truck over
to him.  Also, Phyllis Adkins's affidavit stated that the entire
family, including Juanita Adkins, knew of Jerry Adkins's history of
driving while intoxicated.  Juanita Adkins contested this in her
own affidavit and stated that she did not know that Jerry Adkins
had a history of driving while intoxicated, and her affidavit was
corroborated by the affidavits of Frederick Adkins and Rebecca
Adkins.  But the conflicting affidavits present a patent issue of
material fact.
     Juanita Adkins cites McDonalds v. Eubanks, 292 Ark. 533, 731 S.W.2d 769 (1987), and urges that this court should not consider
the affidavit of Phyllis Adkins because it was merely conclusory. 
That affidavit read:
          I, Phyllis Adkins, do state under oath, that Juanita
     Adkins, stepmother of Jerry Eugene Adkins, knew that
     Jerry Eugene Adkins frequently drove while intoxicated. 
     She also knew that Jerry Eugene Adkins had a large number
     of traffic tickets, and was an incompetent and reckless
     driver.
          Moreover, his entire family, including his brother
     and sister, knew of his terrible driving record.
     The Eubanks case is distinguishable, however.  In that case,
the affidavits dealt with an expert's opinion on the ultimate issue
of whether the appellee was negligent, and they failed to include
facts in support of the expert's conclusions.  In this case, a lay
opinion was offered by Phyllis Adkins regarding her knowledge about
what Juanita Adkins knew.  Hence, the Adkins affidavit did not
require the factual support that the expert opinion in Eubanks did. 
Finally, the Adkins affidavit is not construed against Renfro as it
is not an affidavit in support of a motion for summary judgment;
rather, the affidavit must be taken in the light most favorable to
her.  Hughes Western World v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W.2d 826 (1980).  Thus, a genuine issue of material fact existed,
and the trial court erred in granting summary judgment in favor of
Juanita Adkins on the negligent entrustment count.
     We next address whether the trial court erred in granting
summary judgment in favor of Frederick and Rebecca Adkins on the
claim of negligent entrustment.  Renfro asserts that Frederick and
Rebecca Adkins embarked on a course of conduct that permitted Jerry
Adkins to secure possession of the vehicle from his stepmother and
that they approved his taking possession of the truck from Juanita
Adkins and from the estate.  We hold the trial court did not err in
this regard.
     While it is true, as Renfro asserts, that an entrustment need
not be made by the owner and can be made through a third person
such as an employee or an agent, there is no proof to suggest that
either Frederick or Rebecca Adkins was acting as an agent of the
estate or of Juanita Adkins.  Frederick Adkins gave Jerry Adkins a
ride to Louisiana on his way to Florida.  He also provided his
stepmother with a form so that she could protect herself and the
estate from any liability that might arise from Jerry Adkins's
driving of the vehicle.  Those actions do not support a negligent
entrustment claim against him.  Rebecca Adkins did even less.  We
conclude that there is no evidence that either party "supplied" the
truck to Jerry, directly or indirectly, or even exercised any
control over it.  See Arkansas Bank & Trust, Co. v. Erwin, supra. 
We affirm the trial court with regard to the claims against
Frederick and Rebecca Adkins.

b. Outrage
     The next point raised concerns the outrage claim brought
against Frederick and Rebecca Adkins but resolved against Renfro on
summary judgment.  Renfro claims that Frederick Adkins's conduct
(1) in transporting Jerry Adkins to Louisiana to pick up the truck,
(2) in providing the release form to Juanita Adkins, and (3) his
knowledge of Jerry Adkins's propensity to drive while intoxicated,
combined with his effort to fraudulently receive funds from Jerry
Adkins, amounted to the tort of outrage.  
     This court has taken a very narrow view of claims of outrage. 
See, e.g., Croom v. Younts, ___ Ark. ___, ___ S.W.2d ___ (1996);
Ross v. Patterson, 307 Ark. 68, 817 S.W.2d 418 (1991); Harris v.
Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41 (1985) (citing
Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982)).  In
Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988)
(citing M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681
(1980)), for example, this court stated that one is subject to
liability for outrage if he or she willfully or wantonly causes
severe emotional distress to another by extreme and outrageous
conduct -- conduct that is so outrageous in character and so
extreme in degree as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in
civilized society.  The emotional distress for which damages may be
sought must be so severe that no reasonable person could be
expected to endure it.  Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984).  In addition, the tort of outrage requires
clear-cut proof.  Croom v. Younts, supra.  Merely describing the
conduct as outrageous does not make it so.  Ross v. Patterson,
supra; Givens v. Hixson, supra.
     In the case at hand, the trial court correctly granted the
motion for summary judgment on the outrage claim.  As already
discussed, the negligent entrustment claim against Frederick Adkins
was correctly dismissed.  The remaining allegations fall woefully
short of supporting a claim of outrage.

c. Fraudulent Transfer
     The final point that must be addressed is whether the trial 
court erred in granting summary judgment in favor of Frederick and
Rebecca Adkins on the issue of fraudulent transfer.  We need not
address this issue because Renfro has voluntarily dismissed Jerry
Adkins from the lawsuit.  Without a claim that Jerry Adkins made
the fraudulent transfer, that is, had some ownership interest in
the assets and made the transfer with intent to defraud, we discern
no basis for a claim against his brother and sister.
     Affirmed in part.  Reversed in part and remanded.
     Glaze and Corbin, JJ., dissent.*ADVREP7-A*


JANET RENFRO, INDIVIDUALLY AND
AS MOTHER AND NEXT FRIEND OF
BRANDEE L. HODGES, A MINOR,
                    APPELLANT,

V.

JERRY EUGENE ADKINS AND JUANITA
C. ADKINS, INDIVIDUALLY AND AS
EXECUTRIX OF THE ESTATE OF
FREDERICK EARL ADKINS, JR.,
DECEASED; FREDERICK EARL
ADKINS; AND REBECCA E. ADKINS,
                    APPELLEES.



95-500

Opinion Delivered:  2-5-96










DISSENTING OPINION

                  TOM GLAZE, Associate Justice

     This appeal should be dismissed for the same reasons I
expressed in my dissent in Driggers v. Locke, 323 Ark. 63, ____
S.W.2d ____ (1996).  Eventually, this court will need to overrule
Driggers or amend Rule 54(b) so the rule will reflect the holding
in Driggers.  As matters stand now, the Driggers decision and Rule
54(b) are at odds.  
     Rule 54(b) is quite simple and will work if its provisions are
followed.  The rule provides that an interlocutory appeal may be
had from the dismissal of one party or one claim in a multi-party,
multi-claim lawsuit when the trial court enters the dismissal of
the party or claim as a final judgment, and makes express findings
that there is no just reason to delay the appeal.  Here, for
whatever reasons, the appellant simply circumvented Rule 54(b)'s
dictates and did not ask the trial court for an interlocutory
appeal.  Because she failed to comply with Rule 54(b)'s express
language, her appeal should be dismissed.  Instead, this court
awards appellant an interlocutory appeal.  I just "don't get it."