Brown v. Tucker

Larry Douglass BROWN v. Jim Guy TUCKER

96-1379                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 6, 1997


1.   Appeal & error -- motion to dismiss -- standard of review. -- In
     reviewing the denial of a dismissal granted pursuant to Ark.
     R. Civ. P. 12(b)(6), the supreme court treats the facts
     alleged in the complaint as true and views them in the light
     most favorable to the party who filed the complaint; when the
     trial court decides Rule 12(b)(6) motions, it must look only
     to the complaint.

2.   Pleading -- fact pleading required -- dismissal for failure to state facts.
     -- Arkansas has adopted a clear standard to require fact
     pleading; Ark. R. Civ. P. 8(a)(1) requires that a pleading
     setting forth a claim for relief contain a statement in
     ordinary and concise language of facts showing that the
     pleader is entitled to relief; Ark. R. Civ. P. 12(b)(6)
     provides for the dismissal of a complaint for "failure to
     state facts upon which relief can be granted"; these two rules
     must be read together in testing the sufficiency of the
     complaint; facts, not mere conclusions, must be alleged.

3.   Motions -- motion to dismiss -- test for sufficiency of complaint. -- In
     testing the sufficiency of the complaint on a motion to
     dismiss, all reasonable inferences must be resolved in favor
     of the complaint, and pleadings are to be liberally construed;
     where the complaint states only conclusions without facts, the
     appellate court will affirm the trial court's decision to
     dismiss the complaint pursuant to Ark. R. Civ. P. 12(b)(6).

4.   Appeal & error -- abstracting requirement. -- The supreme court's
     rules require the abstracting of such material parts of the
     pleadings, proceedings, facts, documents, and other matters in
     the record as are necessary to an understanding of each issue
     presented to the court for review.

5.   Appeal & error -- record -- appellant's burden. -- It is the
     appellant's burden to demonstrate reversible error and to
     present a record evidencing such error.

6.   Appeal & error -- record -- restrictions on use. -- It is fundamental
     that the record on appeal is confined to that which is
     abstracted and cannot be contradicted or supplemented by
     statements made in the argument portions of the brief. 

7.   Appeal & error -- record -- impractical to require seven justices to
     examine one transcript. -- A citation in an argument to the place
     in the record where all the factual allegations can be found
     is not an adequate substitute for a complete abstract; it is
     impractical to require all seven members of the supreme court
     to examine one transcript in order to decide an issue on
     appeal.

8.   Torts -- interference with contractual relationship -- elements. -- The
     elements of tortious interference that must be proved are (1)
     the existence of a valid contractual relationship or a
     business expectancy; (2) knowledge of the relationship or
     expectancy on the part of the interfering party; (3)
     intentional interference inducing or causing a breach or
     termination of the relationship or expectancy; and (4)
     resultant damage to the party whose relationship or expectancy
     has been disrupted.

9.   Torts -- defamation -- elements. -- The following elements must be
     proven to support a claim of defamation, whether it be by the
     spoken word (slander) or the written word (libel): (1) the
     defamatory nature of the statement of fact; (2) that
     statement's identification of or reference to the plaintiff;
     (3) publication of the statement by the defendant; (4) the
     defendant's fault in the publication; (5) the statement's
     falsity; and (6) damages.

10.  Torts -- defamation -- statement implying assertion of fact -- factors. --
     To determine whether a statement may be viewed as implying an
     assertion of fact, the following factors must be weighed:  (1)
     whether the author used figurative or hyperbolic language that
     would negate the impression that he or she was seriously
     maintaining implied fact; (2) whether the general tenor of the
     publication negates this impression; and (3) whether the
     published assertion is susceptible of being proved true or
     false.

11.  Torts -- outrage -- elements. -- To establish an outrage claim, it
     must be shown that (1) the actor 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, was beyond all possible bounds of
     decency, and was utterly intolerable in a civilized community;
     (3) the actions of the defendant were 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.

12.  Appeal & error -- appellant failed to state sufficient facts for relief --
     trial court did not err in dismissing complaint. -- Construing the
     complaint liberally, the supreme court concluded that
     appellant had failed to state sufficient facts upon which any
     relief could be granted and that the trial court did not err
     in dismissing the complaint pursuant to Ark. R. Civ. P.
     12(b)(6); the supreme court modified the trial court's ruling
     to be a dismissal with prejudice.

     Appeal from Pulaski Circuit Court, Third Division; John Ward,
Judge; affirmed as modified.
     Tona M. DeMers, for appellant.
     Winston Bryant, Att'y Gen., by:  Kay J. Jackson DeMailly,
Asst. Att'y Gen., for appellee.

     Donald L. Corbin, Justice.
     Appellant Larry Douglass Brown appeals the order of the
Pulaski County Circuit Court dismissing his complaint against
Appellee Jim Guy Tucker for slander, tortious interference with
employment expectancy, and outrage.  Our jurisdiction of this
appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(15), as it presents
issues involving the law of torts.  Appellant argues on appeal that
the trial court erred in dismissing his complaint.  We find no
error and affirm.  
     From what little facts we have been provided, it appears that
Appellant filed suit against Appellee as a result of Appellant's
being removed from his position as an investigator with the
Arkansas State Police, and being reassigned to the position of
patrol officer.  In his motion to dismiss filed below, Appellee
raised the issues of sovereign immunity, individual immunity, and
the complaint's failure to state facts upon which relief could be
granted as provided in ARCP Rule 12(b)(6).  The order of the trial
court, however, reflects only that Appellee's motion to dismiss was
granted; there is no indication as to why the case was dismissed,
nor are there any factual findings or conclusions.  We affirm the
trial court's ruling on the basis that Appellant failed to state
sufficient facts in his complaint.
     In reviewing the denial of a dismissal granted pursuant to
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.  Malone v. Trans-States Lines, Inc., 325 Ark. 383,
926 S.W.2d 659 (1996).  When the trial court decides Rule 12(b)(6)
motions, it must look only to the complaint.  Id.  This court has
summarized the requirements for pleading facts as follows: 
          Arkansas has adopted a clear standard to require
     fact pleading:  "a pleading which sets forth a claim for
     relief . . . shall contain (1) a statement in ordinary
     and concise language of facts showing that the pleader is
     entitled to relief . . ."  ARCP Rule 8(a)(1).  Rule
     12(b)(6) provides for the dismissal of a complaint for
     "failure to state facts upon which relief can be
     granted."  This court has stated that these two rules
     must be read together in testing the sufficiency of the
     complaint; facts, not mere conclusions, must be alleged. 
     Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919
     (1985).  In testing the sufficiency of the complaint on
     a motion to dismiss, all reasonable inferences must be
     resolved in favor of the complaint, and pleadings are to
     be liberally construed.  Id.; ARCP Rule 8(f). 

Malone, 325 Ark. at 385-86, 926 S.W.2d  at 661 (quoting
Hollingsworth v. First Nat'l Bank & Trust Co., 311 Ark. 637, 639,
846 S.W.2d 176, 178 (1993)).  Where the complaint states only
conclusions without facts, we will affirm the trial court's
decision to dismiss the complaint pursuant to Rule 12(b)(6).  Id.
     Appellant's abstract lends little support to his argument that
the trial court erred in dismissing his complaint.  The complaint
itself, which contains mostly legal conclusions, is abstracted as
follows:    
          Filed February 6, 1996.  Plaintiff alleges slander,
     tortious interference with employment expectancy, and
     tort of outrage.
          Plaintiff was an investigator with the Arkansas
     State Police who was assigned to investigate the school
     funding formula.  Plaintiff alleges tortious interference
     with business expectancy.  Plaintiff also alleges that
     defendant slandered him by referring to him as
     incompetent and unable to function in his position. 
     Plaintiff alleges that defendant forced Col[.] Tommy
     Goodwin to demote plaintiff with the hopeful end result
     of forcing plaintiff to resign.  Plaintiff alleges that
     defendant's actions exceeded all bounds of common
     decency, amounting to tort of outrage for plaintiff's
     emotional distress.
This summation tells us virtually nothing of the facts and
circumstances that form the bases of each of the three causes of
action alleged by Appellant.  
     Our rules require the abstracting of such material parts of
the pleadings, proceedings, facts, documents, and other matters in
the record as are necessary to an understanding of each issue
presented to this court for review.  Ark. Sup. Ct. R. 4-2(a)(6);
National Enters., Inc. v. Rea, 329 Ark. 332, 947 S.W.2d 378 (1997);
Kingsbury v. Robertson, 325 Ark. 12, 923 S.W.2d 273 (1996).  It is
Appellant's burden to demonstrate reversible error and to present
a record evidencing such error.  Qualls v. Ferritor, 329 Ark. 235,
947 S.W.2d 10 (1997).  Moreover, it is fundamental that the record
on appeal is confined to that which is abstracted and cannot be
contradicted or supplemented by statements made in the argument
portions of the brief.  National Enters., 329 Ark. 332, 947 S.W.2d 378.  Here, Appellant states in his argument that the trial court
erred in dismissing the case because the complaint was "more than
adequate in that it contained nine pages of facts supporting
appellant's claims, which were presented in chronological order
with dates and times."  Appellant then offers a citation to the
place in the record where all the factual allegations can be found. 
Such reference to the record is not an adequate substitute for a
complete abstract.  See Boren v. Worthen Nat'l Bank, 324 Ark. 416,
921 S.W.2d 934 (1996).  We have stated on occasions too numerous to
count that it is impractical to require all seven members of this
court to examine one transcript in order to decide an issue on
appeal.  See, e.g., National Enters., 329 Ark. 332, 947 S.W.2d 378;
Duque v. Oshman's Sporting Goods Servs., Inc., 327 Ark. 224, 937 S.W.2d 179 (1997); Kingsbury, 325 Ark. 12, 923 S.W.2d 273.  In
short, Appellant has failed to produce a record demonstrating
reversible error.  By way of illustration, we discuss below some of
the numerous factual deficiencies. 
     In the first instance, Appellant claims that Appellee
tortiously interfered with a business expectancy.  The elements of
tortious interference which must be proved are:  (1) the existence
of a valid contractual relationship or a business expectancy; (2)
knowledge of the relationship or expectancy on the part of the
interfering party; (3) intentional interference inducing or causing
a breach or termination of the relationship or expectancy; and (4)
resultant damage to the party whose relationship or expectancy has
been disrupted.  Cross v. Arkansas Livestock & Poultry Comm'n, 328
Ark. 255, 943 S.W.2d 230 (1997); United Bilt Homes, Inc. v.
Sampson, 310 Ark. 47, 832 S.W.2d 502 (1992).  The only facts
alleged in the complaint pertaining to this claim are that Appellee
forced Colonel Goodwin to demote Appellant with the hopeful end
result of forcing him to resign.  There are no facts demonstrating
that Appellant had a valid contractual relationship or business
expectancy in his job, or that he was damaged by Appellee's alleged
actions.  To the contrary, Appellee contends that Appellant was
merely reassigned to another position with the state police; he was
not demoted from his rank of corporal, nor was his pay reduced as
a result of his new job assignment.  
     In the second instance, Appellant claims that Appellee
slandered him.  The following elements must be proven to support a
claim of defamation, whether it be by the spoken word (slander) or
the written word (libel):  (1) the defamatory nature of the
statement of fact; (2) that statement's identification of or
reference to the plaintiff; (3) publication of the statement by the
defendant; (4) the defendant's fault in the publication; (5) the
statement's falsity; and (6) damages.  Minor v. Failla, 329 Ark.
274, 946 S.W.2d 954 (1997) (citing Mitchell v. Globe Int'l Pub.,
Inc., 773 F. Supp. 1235 (W.D. Ark. 1991)).  The only information
offered in the complaint on this cause of action is that Appellee 
slandered Appellant by referring to him as "incompetent and unable
to function in his position."  The defamatory nature of those
particular words is not evident, especially if Appellant was, in
fact, not competent to function in his position.  Nor is it evident
that the statement implies an assertion of an objective verifiable
fact.  In order to determine whether a statement may be viewed as
implying an assertion of fact, the following factors must be
weighed:  (1) whether the author used figurative or hyperbolic
language that would negate the impression that he or she was
seriously maintaining implied fact; (2) whether the general tenor
of the publication negates this impression; and (3) whether the
published assertion is susceptible of being proved true or false. 
Dodson v. Dicker, 306 Ark. 108, 812 S.W.2d 97 (1991) (citing Unelko
Corp. v. Rooney, 912 F.2d 1049 (9th Cir. 1990)).  The words
allegedly used by Appellee clearly possess the general tenor of an
opinion, as opposed to a verifiable statement of fact. 
Furthermore, as with the first claim, Appellant has offered no
factual assertion that he was damaged by the alleged slanderous
remarks.  
     In the third instance, Appellant claims that Appellee's
"actions exceeded all bounds of common decency, amounting to tort
of outrage for plaintiff's emotional distress."   In order to
establish an outrage claim, it must be shown:  (1) the actor
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," was "beyond all possible
bounds of decency," and was "utterly intolerable in a civilized
community"; (3) the actions of the defendant were the cause of the
plaintiff's distress; and (4) the emotional distress sustained by
the plaintiff was so severe that no reasonable man could be
expected to endure it.  Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997) (citing Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992)).  Appellant's complaint contains nothing more
than bare legal conclusions that Appellee's actions were extreme
and exceeded all bounds of common decency.  
     In sum, even construing the complaint liberally, Appellant has
failed to state sufficient facts upon which any relief can be
granted.  Accordingly, we conclude that the trial court did not err
in dismissing the complaint pursuant to Rule 12(b)(6).  We further
modify the trial court's ruling to be a dismissal with prejudice,
as Appellant has indicated that a prior suit was brought by him
against Appellee and that the action was voluntarily nonsuited by
him.  See Bakker v. Ralston, 326 Ark. 575, 932 S.W.2d 325 (1996). 
Because we affirm the trial court's ruling under Rule 12(b)(6), we
need not address the remaining issues pertaining to immunity.
     Affirmed as modified.
     Special Justices William Randall Wright, Michele Harrington, and
Richard Lusby join in this opinion.
     Brown, Imber, and Thornton, JJ., not participating.