Malone v. Trans-States Lines, Inc.

Thomas E. MALONE v. TRANS-STATES LINES, INC.

95-1116                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 15, 1996


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 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..."; 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.   Pleading -- 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.

4.   Pleading -- failure to plead facts -- dismissal without
     prejudice proper -- order modified. -- The supreme court,
     noting that appellant's complaint stated only conclusions
     without facts, agreed with the trial court's dismissal for
     failure to plead facts under Ark. R. Civ. P. 12(b)(6) but did
     not agree that such a dismissal was with prejudice; a
     dismissal under Ark. R. Civ. P. 12(b)(6) is to be without
     prejudice so that the plaintiff may elect whether to plead
     further or appeal; in this case, appellant was not afforded
     that election because the dismissal was with prejudice;
     accordingly, the supreme court affirmed the trial court's
     order but modified it to reflect that the dismissal be without
     prejudice.

5.   Appeal & error -- part of order dismissing complaint for lack
     of subject-matter jurisdiction reversed. -- Appellant's
     failure to plead sufficient facts and the lack of explanation
     in the trial court's order rendered any meaningful further
     appellate review a practical impossibility; because, however,
     appellant asserted a cause of action in circuit court based in
     part on the Arkansas Civil Rights Act of 1993, the supreme
     court reversed and dismissed that part of the order dismissing
     the complaint for lack of subject-matter jurisdiction.


     Appeal from Sebastian Circuit Court; Floyd G. Rogers, Judge;
reversed and dismissed in part; affirmed as modified in part.
     Walker Law Firm, by: R. Scott Zuerker, for appellant.
     David B. Vandergriff, for appellee.

     Donald L. Corbin, Justice.Associate Justice Donald L. Corbin, 7-15-96
*ADVREP*SC10*





THOMAS E. MALONE,
                    APPELLANT,

V.

TRANS-STATES LINES, INC.,
                    APPELLEE,


95-1116



APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
NO. CIV-95-320(I),
HON. FLOYD G. ROGERS, JUDGE,




REVERSED AND DISMISSED IN PART;
AFFIRMED AS MODIFIED IN PART.




     Appellant, Thomas E. Malone, appeals the judgment of the
Sebastian County Circuit Court dismissing with prejudice his
complaint against appellee, Trans-States Lines, Incorporated, for
retaliatory discharge under the Workers' Compensation Law, Ark.
Code Ann.  11-9-101 to -1001 (Repl. 1996), and for discrimination
in violation of the Arkansas Civil Rights Act of 1993, Ark. Code
Ann.  16-123-101 to -108 (Supp. 1995).  The trial court dismissed
appellant's complaint for lack of subject-matter jurisdiction and
failure to state a claim upon which relief could be granted. 
Appellant asserts two points for reversal of the order of
dismissal.  Resolution of these arguments requires interpretation
of the two aforementioned legislative acts.  Jurisdiction is
therefore properly in this court pursuant to Ark. Sup. Ct. R. 1-
2(a)(3).  We reverse and dismiss in part and affirm as modified in
part.
     Appellant began employment with appellee as a truck driver in
January 1990 and was first diagnosed with bilateral carpal tunnel
syndrome in March 1993.  He had surgery on his right hand in March
1994 and on his left hand in April 1994.  Appellant was released to
return to work in August 1994 with restrictions that he not load or
unload his truck.  Appellee refused to return appellant to work
with these restrictions.  A dispute arose between appellee and
appellant, and appellee terminated appellant.  Appellant received
a full release to return to work in November 1994 with a five
percent permanent physical impairment rating in each hand. 
Appellant filed a claim for workers' compensation benefits relating
to the carpal tunnel syndrome.  In addition to the aforementioned
facts, the administrative law judge found that the carpal tunnel
syndrome arose out of appellant's employment with appellee and that
appellant was entitled to temporary total disability benefits for
the period March 5, 1994, through August 18, 1994.  
     Appellant initiated the present action by filing a two-count
complaint in circuit court.  Count one of the complaint alleged a
cause of action under the Arkansas Civil Rights Act of 1993. 
Specifically, appellant alleged that appellee discriminated against
him in the terms and conditions of his employment on the basis of
appellant's physical disability.  Count two of the complaint
alleged a cause of action for retaliatory discharge based on
appellant's filing of the workers' compensation claim.  
     Appellee relied on section 11-9-107 and moved to dismiss the
complaint for lack of subject-matter jurisdiction and failure to
state facts upon which relief can be granted.  The trial court
entered an order granting without explanation appellee's motion on
both grounds.  This appeal followed.
     Appellant asserts two points for reversal.  First, he argues
the trial court erred in dismissing count one of his complaint
because the exclusive remedy doctrine of section 11-9-107 does not
apply to a claim of discrimination based on physical disability. 
Second, he argues alternatively that section 11-9-107 is
unconstitutional in that it bars a civil rights action pursuant to
the Arkansas Civil Rights Act of 1993.  Appellant correctly
concedes that count two of his complaint was properly dismissed due
to section 11-9-107 and this court's decision in Tackett v. Crain
Automotive, 321 Ark. 36, 899 S.W.2d 839 (1995), that section 11-9-
107's annulment of a cause of action in tort for retaliatory
discharge is applicable to cases in which the date of discharge is
after July 1, 1993.  The administrative law judge found that
appellant was discharged after July 1, 1993.  Thus, in this opinion
we are only concerned with count one of appellant's complaint --
the claim under the Arkansas Civil Rights Act of 1993.  Because we
agree with the trial court's ruling that the complaint does not
state facts upon which relief can be granted, we do not reach the
merits of appellant's arguments.
     In reviewing the denial of a dismissal granted pursuant to
Ark. R. Civ. P. 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.  Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994).  When the trial court decides Rule 12(b)(6)
motions, it must look only to the complaint.  Id.  This court has
summarized Arkansas' 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).

Hollingsworth v. First Nat'l Bank & Trust Co., 311 Ark. 637, 639,
846 S.W.2d 176, 178 (1993).
     Even when we liberally construe Malone's complaint, it alleges
only conclusions.  No facts are pleaded whatsoever.  By way of
illustration, we point out that the complaint alleges this
conclusion:  "Plaintiff has a physical disability within the
meaning of the Arkansas Civil Rights Act of 1993."  "Disability" is
defined in the Act as "a physical or mental impairment that
substantially limits a major life function[.]" Section 16-123-
102(3).  There is no allegation of facts to support the conclusion
that appellant meets this definition of "disability."  This is but
one example of the insufficiency of the complaint due to the
pleading of conclusions rather than facts.  There are many others. 
     Because the complaint states only conclusions without facts,
we agree with the trial court that the complaint must be dismissed
for failure to plead facts under Rule 12(b)(6).  However, we cannot
agree that such a dismissal is with prejudice.  It is well-settled
that such a dismissal is to be without prejudice so that the
plaintiff may elect whether to plead further or appeal.  In this
case, appellant was not afforded that election because the
dismissal was with prejudice.  See Ratliff v. Moss, 284 Ark. 16,
678 S.W.2d 369 (1984).  Accordingly, we affirm the trial court's
order but modify it to reflect that the dismissal be without
prejudice.
     Appellant's failure to plead sufficient facts and the lack of
explanation in the trial court's order renders any meaningful
further appellate review a practical impossibility.  While we are
somewhat sympathetic to appellant's contention that he has asserted
two distinct causes of action based on two distinct statutes, on
this limited record we cannot fully discuss the merits of
appellant's arguments for reversal of the trial court's rulings
regarding subject-matter jurisdiction.  Suffice it to say that
because appellant has asserted a cause of action in circuit court
based in part on the Arkansas Civil Rights Act of 1993, we reverse
that part of the order dismissing the complaint for lack of
subject-matter jurisdiction.  
     That part of the order dismissing the complaint for lack of
subject-matter jurisdiction is reversed and dismissed.  That part
of the order dismissing the complaint for failure to plead facts is
affirmed as modified to be without prejudice.
     Reversed and dismissed in part; affirmed as modified in part.
     GLAZE, J., concurs.
     DUDLEY, J., not participating.*ADVREP*10-A*






THOMAS E. MALONE,
                    APPELLANT,

V.

TRANS-STATES LINES, INC.,
                    APPELLEE.



95-1116

Opinion Delivered:  7-15-96







CONCURRING OPINION





                  TOM GLAZE, Associate Justice

     I concur.  The first issue to be decided in this case is
whether the Workers' Compensation Exclusive Remedy Doctrine in Act
796 of 1993 (Ark. Code Ann.  11-19-107 (Repl. 1996)) bars a
statutory discrimination action based upon physical impairment
sought under Arkansas's Civil Rights Act (Ark. Code Ann.  16-123-
101, particularly -107).  The trial court said yes, and I presume
that is the reason it dismissed Malone's action with prejudice.  I
disagree with the trial court's decision on this legal point, but
I still would dismiss without prejudice under ARCP Rule 12(b)(6)
because I believe Malone's complaint fails to allege sufficient
facts to support his civil rights claim.
     Concerning whether Malone's civil rights claim in circuit
court can survive the Exclusive Remedy Doctrine of the workers'
compensation law, I would point out that  11-9-107 imposes a fine
against any employer who willfully discriminates regarding the
hiring or tenure of any worker on account of that worker's claim
for benefits under the chapter.  Here, Malone's complaint is not
based or couched in terms of his employer's retaliatory measure on
account of Malone having sought Workers' Compensation benefits. 
Instead, Malone seeks relief, alleging his employer terminated him
because of his physical disability.  It is also significant to me
that if Malone is precluded from pursuing an action under the
Arkansas Civil Rights Act, he has no real remedy.  Section 11-9-107
affords only remedies that penalize the employer and avail Malone
nothing.  In my view, the Exclusive Remedy Doctrine in no way
conflicts with or bars a properly established or alleged claim
under the Civil Rights Act.
     In sum, I conclude the trial court erred in deciding it had no
subject matter jurisdiction in this cause, and while I believe the
trial court therefore erred in dismissing Malone's action with
prejudice, I would dismiss Malone's complaint because it does not
contain sufficient facts to support his civil rights claim.