Big A Warehouse Distributors, Inc. v. Rye Auto Supply, Inc., CA

• Decision Date: 03 December 1986
• Docket Number: No. CA,CA
• Citation: 719 S.W.2d 716,19 Ark. App. 286
• Parties: BIG A WAREHOUSE DISTRIBUTORS, INC., Appellant, v. RYE AUTO SUPPLY, INC., John Joplin and Martin Gipson, Appellees. 85-524.
• Court: Arkansas Court of Appeals

Page 716

719 S.W.2d 716

19 Ark.App. 286

BIG A WAREHOUSE DISTRIBUTORS, INC., Appellant, v.RYE AUTO SUPPLY, INC., John Joplin and Martin Gipson, Appellees.

No. CA 85-524.

Court of Appeals of Arkansas Division I.

Dec. 3, 1986.

Felver A. Rowell, Jr., Morrilton, for appellant.

Harold W. Madden, N. Little Rock, W.J. Walker and Frank A. Poff, Jr., Little Rock, and Zachary D. Wilson, N. Little Rock, for appellees.

COOPER, Judge.

This is an appeal from the trial court's dismissal of the appellant's third-party complaint with prejudice.On the morning of trial, the complaint was dismissed on the motion of the third-party defendants, appelleesJohn Joplin and Martin Gipson, for failure to state a cause of action.We affirm the court's decision, modifying the dismissal to be without prejudice.

On January 26, 1984, the appellant, Big A Warehouse Distributors, Inc., (Big A) was sued by the appelleeRye Auto Supply, Inc.(Rye) for $15,620.44, the sum Rye alleged was owed by Big A for goods, wares, and merchandise it received from Rye.Big A denied the indebtedness in its answer and on July 25, 1984, with leave of the court, filed a third-party complaint against Joplin and Martin.In granting Joplin and Martin's motion to dismiss, the trial court stated:

The record will reflect that this is occurring on the morning of the trial.That back in July, we had a pre-trial conference on this matter, at which time the Court expressed it's [sic] utter frustration at the State[sic] of the pleadings.That I have reviewed the pleadings just this morning, again, the third-party complaint, in particular, and the third-party complaint simply states a defense to the claim of Rye Auto, that, if, in fact, it believes, "the beliefs stated are true", they are not as allegations, as I understand it, but they are beliefs that Big A has, that there was some hanky-panky going on between the managers of these two firms, if they were true, and, as a result of which, Big A did not get the merchandise, Big A had an absolute defense to the claim of Rye.If, on the other hand, there was some hanky-panky, and, in spite of that, Big A got the merchandise, he owes for it.The burden is on Rye Auto to prove that Big A got the merchandise, Big A has an obligation to pay for it, it's that simple.

The allegations against these two managers does not state a cause of action against them, it just simply says that they were engaged in some kind of conspiracy.

Let the record reflect, very clearly, that the Court does not intend to inhibit the defendant from showing a conspiracy, or any hanky-panky, but, to make these two men parties to the action, there's no basis for it.If, in fact, Big A owes for the merchandise, it matters not whether these men were guilty of conspiracy; and, if they didn't get the merchandise, they can show it by the conspiracy, be evidence, but not as a cause of action.

Big A argues that it was entitled to maintain a third-party action because Joplin and Gipson were liable to it for all or part of Rye's claim against it, citing Ark.R.Civ.P. 14.However, Rule 14 also provides that the third-party defendants may raise defenses against the third-partyplaintiff as provided in Ark.R.Civ.P. 12.Joplin and Gipson did just that.They moved for a judgment on the pleadings under Rule 12(c), claiming that, under Rule 12(b)(6), the third-party complaint failed to state facts upon which relief could be granted.It is a settled rule of law that a pleading will be judged by its contents.Martin v. Citizens Bank of Beebe, 283 Ark. 145, 671 S.W.2d 754(1984).In considering a motion for judgment on the pleadings for failure to state facts upon which relief can be granted, under 12(b)(6), the facts alleged in the complaint are treated as true and are viewed in the light most favorable to the party seeking relief.McAllister v. Forrest City Street Improvement District, 274 Ark. 372, 626 S.W.2d 194(1981).A complaint or third party claim must contain a "statement ... of facts showing that the pleader is entitled to relief...."Ark.R.Civ.P. 8(a).Failure to do so is grounds for dismissal under Rule 12(b)(6);Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582(1981);Thompson-Holloway Agency v. Gribben, 3 Ark.App. 119, 623 S.W.2d 528(1981).The facts constituting the cause of action must be pled in direct and positive allegations, not by way of argument, inference, or belief.Kohlenberger v. Tyson's Foods, Inc., 256 Ark. 584, 510 S.W.2d 555(1974).Furthermore, statements of generalities and conclusions of law are not sufficient to state a cause of action.Files v. Hill, 268 Ark. 106, 594 S.W.2d 836(1980);Gribben, 3 Ark.App. at 123, 623 S.W.2d 528.

Upon examination of Big A's third-party complaint, we note that the action Big A is attempting to bring is an action in trover, for the conversion of personal property, in this case the merchandise that Rye claims to have delivered to Big A.To be sufficient, the complaint must state that the plaintiff had a property interest in the subject goods and that the defendant wrongfully converted them.Sevier v. Holliday, 2 Ark. 512, 576-7(1840).While a failure to plead either may be cured by a verdict, it is fatally defective upon a general demurrer, or in this case, a motion under Rule 12(b)(6).Id.¹The property interest may be shown by a possession or a present right to possession when the defendant cannot show a better right, since possession carries with it a presumption of ownership.Arkansas Airmotive Division of Currey Aerial Sprayers v. Arkansas Aviation Sales, 232 Ark. 354, 335 S.W.2d 813(1960).The act of conversion is "the exercise of dominion over property in violation of the rights of the owner or person entitled to possession."Quality Motors v. Hays, 216 Ark. 264, 268, 225 S.W.2d 326, 328(1949).The conversion need not be a manual taking or for the defendant's use: if the defendant exercises control over the goods in exclusion, or defiance, of the plaintiff's right, it is a conversion, whether it is for his own or another's use.Gentry v. Madden, 3 Ark. 127(1840).

The third-party complaint is full of inferences, beliefs and conclusions of law; however, after examining the facts alleged in the third-party complaint and taking them all to be true, we find it to fall short of stating a cause of action for trover.While the facts, if true, show that Joplin and Gipson exercised control over Rye's property, at no time does the pleading allege that Big A had any interest in, or right to possess, the property.As noted earlier, an allegation of an ownership interest or right to...