Crockett v. Essex, 341 Ark. 558

• Decision Date: 08 June 2000
• Citation: 19 S.W.3d 585,341 Ark. 558
• Court: Arkansas Supreme Court

341 Ark. 558

19 S.W.3d 585

Carl CROCKETT, Monica Crockett, and Michael Crockett v Stewart ESSEX and Turpin Funeral Home, Inc.

00-136

SUPREME COURT OF ARKANSAS

June 8, 2000, Opinion Delivered

Affirmed.

Gary Eubanks & Associates, by: James Gerard Schulze and J. Todd Jones, for appellants.

Kemp, Duckett Spradley, Curry & Arnold, by: James M. Duckett, for appellees.

Robert L. Brown, Justice.

Robert L. Brown

Robert L. Brown, Justice. This appeal is from an order granting summary judgment in favor of the appellees, Stewart Essex and Turpin Funeral Home. The appellants, Carl Crockett, Monica Crockett, and Michael Crockett ("the Crocketts"), who were the plaintiffs before the trial court, contended in their direct appeal that the trial court erred in granting summary judgment in favor of Essex and the funeral home. The court of appeals in a four-to-two decision agreed that the trial court's summary judgment order should be reversed. Crockett v. Essex, 69 Ark. App. 45, 9 S.W.3d 561 (2000). Essex and the funeral home petitioned this court for review pursuant to Ark. Sup. Ct. R. 2-4(c), and we granted the petition. When we grant a petition for review, we consider the matter as if the appeal had originally been filed in this court. See Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). We affirm the trial court and reverse the court of appeals.

On August 19, 1997, Dorothy Lee Baker Crockett died in Arkansas County. She was the wife of Carl Crockett and the mother of Monica and Michael Crockett. Carl Crockett contracted with Turpin Funeral Home in Stuttgart to provide funeral and burial services. Stewart Essex is the funeral director of Turpin Funeral Home. On August 21, 1997, the funeral service for Dorothy Crockett took place at the funeral home, followed by her burial.

On January 2, 1998, the Crocketts filed a second amended complaint against Essex and the funeral home. In that complaint, they alleged the following conduct by the defendants in connection with Dorothy Crockett's funeral:

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that Essex had urged participants to hurry and shorten the funeral service at the funeral home;

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that Essex hurried the hearse to the gravesite, leaving some mourners who would have been in the funeral procession behind and driving in excess of sixty-five miles per hour;

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that Essex and the employees and agents of the funeral home acted annoyed and hurried the burial service;

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that Essex, in an attempt to speed up the burial, put a disabled family member in another family member's car and drove the vehicle over graves and grave stones; and

that during the burial service, Essex got in his car and talked on his cellular telephone for an extended period of time.

The Crocketts claimed that these were negligent and intentional acts committed by Essex and the funeral home which were extreme and outrageous and resulted in emotional distress. They further claimed that the acts constituted a willful breach of contract. The Crocketts prayed for compensatory and punitive damages. Next, the Crocketts propounded interrogatories to Essex, which he answered under oath. According to the supplemental abstract filed by the appellees in this case, Essex gave the following answers:

INTERROGATORY NO. 22: Were you operating the hearse from Turpin Funeral Home to the Crockett gravesite on 8/21/97? If so, please state:

(a) Your best estimate of the top speed the hearse attained on the way to the Crockett gravesite?

(b) Whether the procession behind the hearse was orderly?

(c) The approximate distance between Turpin Funeral Home and the Crockett gravesite.

ANSWER: Yes.

(a) We try to maintain highway speed so not to interfere with other traffic.

(b) As far as I could tell.

(c) Twenty-Five (25) miles.

INTERROGATORY NO. 23: What is your best estimate of the time that elapsed between the time the Crockett service at Turpin Funeral Home ended and when the hearse departed for the gravesite?

ANSWER: Thirty (30) minutes.

Essex and the funeral home moved for summary judgment on the basis that the Crocketts had failed to establish any of their asserted causes of action, and they asked for dismissal of the complaint. Following arguments by counsel, the trial court entered an order granting the appellees' motion for summary judgment.

In their appeal, the Crocketts claim that the trial court erred in granting summary judgment because their complaint did state a cause of action for the tort of outrage. We begin by observing that counsel for the Crocketts waived any argument concerning breach of contract at the hearing before the trial court. We further observe that no argument regarding a negligence claim is made in this appeal, and we conclude that the Crocketts have abandoned any claim that summary judgment was erroneously granted for that cause of action as well. We, thus, consider the Crocketts' contention that their outrage claim should have survived a grant of summary judgment as their sole ground for reversal.

In this connection, the Crocketts maintain that the trial court granted a dismissal in its order because that is what the appellees asked for in their motion. Dismissal, they point out, is generally associated with a motion under Rule 12(b) of the Arkansas Rules of Civil Procedure. We disagree with the Crocketts' argument. The motion in this matter was styled as one for summary judgment, and the motion asserted that the Crocketts had failed to establish any of their causes of action; not that they had failed to state a claim for relief. In addition, we presume that the trial court considered matters outside the pleadings, such as Essex's answers to interrogatories, unless the court specifically excluded them. Martin v. Arthur, supra; Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). Consideration of matters outside the pleadings would convert a motion to dismiss into one for summary judgment in any event. Id. We conclude, accordingly, that the motion and subsequent order are for summary judgment, even though the motion sought "dismissal" of the Crocketts' complaint.

In the case of Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997), this court set forth our standards of review for summary judgment appeals:

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. 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. 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.

Renfro v. Adkins, 323 Ark. 288, 295, 914 S.W.2d 306, 309-10 (1996) (internal citations omitted); Cash v. Lim, 322 Ark. 359, 360-62, 908 S.W.2d 655, 656-57 (1995); Oglesby v. Baptist Medical Sys., 319 Ark. 280, 284, 891 S.W.2d 48, 50 (1995). Once a moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must demonstrate a genuine issue of material fact by meeting proof with proof. Renfro v. Adkins, supra.

Milam, 327 Ark. at 261-262, 937 S.W.2d at 656. Furthermore, the moving party may present pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, to support the burden of showing entitlement to summary judgment as a matter of law. See Stockton v. Sentry Ins., 337 Ark. 507, 989 S.W.2d 914 (1999); see also Ark. R. Civ. P. 56 (2000).

We turn then to the merits of this appeal and begin with a discussion of our caselaw relating to the tort of outrage. Two years ago, we described the elements of a tort-of-outrage claim:

To establish an outrage claim, a plaintiff must demonstrate the following elements: (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. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). The type of conduct that meets the standard for outrage must be determined on a case-by-case basis. Hollomon v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996). This court gives a narrow view to the tort of outrage, and requires clear-cut proof to establish the elements in outrage cases. Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996). Merely describing the conduct as outrageous does not make it so. Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996). Clear-cut proof, however, does not mean proof greater than a preponderance of the evidence. Croom, 323 Ark. 95, 913 S.W.2d 283.

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