Dunlap v. McCarty, 84-112
| Citation | 284 Ark. 5,678 S.W.2d 361 |
| Decision Date | 05 November 1984 |
| Docket Number | No. 84-112,84-112 |
| Parties | John DUNLAP and Margaret Dunlap, Appellants, v. Joe K. McCARTY and Bobbye S. McCarty, Appellees. |
| Court | Supreme Court of Arkansas |
Guy Jones, Jr., Conway, for appellants.
House, Wallace & Jewell, P.A. by David M. Hargis, Little Rock, for appellees.
This appeal concerns a family dispute. Joe McCarty sued his former brother-in-law and his wife, John and Margaret Dunlap, alleging invasion of privacy. McCarty based his lawsuit on two phone calls which occurred in July, 1980. The calls were made by Margaret Dunlap to McCarty's present wife, Bobbye. Bobbye was subsequently joined as a plaintiff. McCarty alleged that several things were said that invaded his privacy. The parties filed numerous pleadings which raised different causes of action and various defenses. Ultimately, it was tried to a Pulaski County jury. The jury returned a finding for the McCartys but assessed no damages. The McCartys did not object to that finding, and it is the Dunlaps who appeal.
The Dunlaps make three arguments: first, that the court was without jurisdiction; second, that there was no substantial evidence to support the jury's verdict; and third, that the suit should have been barred by the statute of limitations. We only address the statute of limitations argument and hold that the action is barred.
In a motion to dismiss, the Dunlaps specifically raised the limitation set forth in Ark.Stat.Ann. § 37-201 (Supp.1983) which provides:
The following actions shall be commenced within one (1) year after the cause of action shall accrue, and not after: first, all special actions on the case, actions for criminal conversation, alienation of affection, assault and battery and false imprisonment; second, all actions for words spoken slandering the character of another; third, all words spoken whereby special damages are sustained.
The trial court ruled that the cause of action was not barred by this statute undoubtedly because he considered the action to be one for the tort of invasion of privacy and covered by the three year limitation in Ark.Stat.Ann. § 37-206 (Repl.1962), which provides for torts not enumerated by § 37-201.
Our rule is that in order to prevail on a motion to dismiss the complaint on the basis of limitations, it must be barred on its face. McKim v. McLiney, 250 Ark. 423, 465 S.W.2d 911 (1971). Furthermore, we strictly construe the statute, and if there is any reasonable doubt, we will resolve the question in favor of the complaint standing and against the challenge. See Jefferson v. Nero, 225 Ark. 302, 280 S.W.2d 884 (1955).
In Arkansas we do not recognize "notice pleadings" only "fact pleadings." ARCP Rule 8. Simply because the complaint said that the action was one for "invasion of privacy" would not make it so; we must look to the alleged facts. See Bankston v. Pulaski County School Dist., 281 Ark. 476, 665 S.W.2d 859 (1984).
To determine then whether the action is barred, we look to the complaint itself. The answer is not easy because of the state of the pleadings. The original complaint, filed in August of 1981, alleged only oral communications. The Dunlaps moved to dismiss, raising the defense of the statute of limitations in October of 1981. In February of 1982 the judge denied the motion. On July 28, 1982, the McCartys filed an amended complaint which added Bobbye McCarty as a party and added an allegation of civil conspiracy. The conduct alleged was the two telephone calls and the failure of the Dunlaps to pick up Joe McCarty's son after a visit with McCarty on January 9, 1982. The Dunlaps moved to strike the amended complaint. The judge's ruling on that motion is unclear. In an order he stated:
In reference to the "Motion to Strike Amended Complaint: filed herein in behalf of the Defendants, and in reference to the "Motion for Leave to Add Party" filed herein in behalf of the Plaintiff, the Court, having offered the Plaintiff an election between proceeding to the currently scheduled trial (July 12, 1982) with existing parties or continuing and resetting trial of this matter following addition of a new party, understands that the Plaintiff will file herein an amended complaint which will contain an expressed incorporation of the allegations made in earlier complaints and, therefore, both the "Motion for Leave to Add Party" and the "Motion to Strike Amended Complaint" should be granted; ....
At trial the judge stated that he would allow evidence of the conspiracy but he only instructed the jury on invasion of privacy. Evidence regarding the visit of McCarty's son was presented to the jury. We cannot discern from the record or the parties' briefs whether the amended complaint as to the new allegations was allowed. No argument is made that the amendment relates back to the original complaint, thus tolling the statute of limitations. See ARCP Rule 15(c).
The Dunlaps were entitled to a ruling on their motion to dismiss at the point where the statute of limitations was first raised. The pleadings then in existence must be the basis of that ruling. Since the original complaint alleged only oral communications, it should have been barred. In order to arrive at that decision, we have had to examine the nature of the causes of action for defamation and invasion of privacy.
The basis for the claim for invasion of privacy alleged in the original complaint is two telephone calls made in late July 1980 by the Dunlaps to Bobbye McCarty in which the following things were said: Joe McCarty was not given notice of divorce filed against him by his former wife because Joe McCarty was transferring assets out of his former wife's name; the Dunlaps "had something" on Joe McCarty which they would tell Bobbye; and Joe McCarty's retarded son would be delivered to Little Rock and left on his door step. The complaint further alleged that the statements were made maliciously, invaded the McCartys' right to privacy, destroyed his personal life, humiliated him and exposed him to ridicule and contempt.
There are four kinds of invasion of privacy that are actionable: (1) appropriation which consists of the use of the plaintiff's name or likeness for the defendant's benefit; (2) intrusion, which is the invasion by one defendant upon the plaintiff's solitude or seclusion; (3) public disclosure of private facts, which is the publicity of a highly objectionable kind, given to private information about the plaintiff, even...
To continue reading
Request your trial
-
Jones v. Clinton
...that a complaint simply saying that the lawsuit is one for a particular cause of action does not make it so. See Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361, 363 (1984). In cases raising questions regarding the nature of the cause of action, the Court must look to the facts alleged in the......
-
Kolbek v. Twenty First Century Holiness Tabernacle Church, Inc.
...a claim to proceed." Highland Indus. Park, Inc. v. BEI Def. Sys. Co., 357 F.3d 794, 797 (8th Cir. 2004) (citing Dunlap v. McCarty, 284 Ark. 5, 7, 678 S.W.2d 361, 363 (Ark. 1984)). Defendant Jeanne Estates notes that Plaintiffs "testified, with varying descriptions, to the effect that it was......
-
Looney v. Bolt
...statutory period in these circumstances, the estate argues its entitlement to the three-year limitations period. See Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). To support the estate's argument that this court's foregoing decisions should not apply to her injury, the estate cites ......
-
In re Packaged Seafood Prods. Antitrust Litig.
...is any reasonable doubt,...resolve the question in favor of the complaint standing and against the challenge." Dunlap v. McCarty , 284 Ark. 5, 678 S.W.2d 361, 363 (1984). Accordingly, the Court here concludes that the discovery rule governs all Plaintiffs' claims under Arkansas law. See Har......