McAdams v. Faulk

• Court: Arkansas Court of Appeals
• Decision Date: 24 April 2002
• Docket Number: 01-1350
• Citation: McAdams v. Faulk (Ark. App. 2002)
• Parties: NOT DESIGNATED FOR PUBLICATION BOB J. MCADAMS APPELLANT V. W. KENDALL FAULK, DVM; VETS and PETS APPELLEES CA01-1350 ARKANSAS COURT OF APPEALS DIVISION IV

NOT DESIGNATED FOR PUBLICATION

BOB J. MCADAMS APPELLANT

V.

W. KENDALL FAULK, DVM; VETS and PETS APPELLEES

CA01-1350

ARKANSAS COURT OF APPEALS DIVISION IV

APRIL 24, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, [NO. CV2001-4694], HONORABLE JOHN C. WARD, CIRCUIT JUDGE

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

KAREN R. BAKER, JUDGE

This is an appeal from the trial court's granting without prejudice a motion to dismiss pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure. We affirm in part and reverse and remand in part.

Appellant, Bob J. McAdams, filed his complaint pro se on May 11, 2001. The complaint is titled "Complaint for Malpractice and Negligence." Appellant filed the complaint naming both himself and his dog as plaintiffs. The pleading incorporated by reference correspondence which was attached to the complaint. The complaint alleged that the facts and circumstances giving rise to appellant's action against appellees, W. Kendall Faulk, DVM, and Vets & Pets, arose from Dr. Faulk's treatment of appellant's dog, Mr. T, on February 14, 2000.

Standard of Review

Appellees moved for dismissal for failure to state facts upon which relief can be granted. Arkansas Rule of Civil Procedure 12(b)(6) provides the authority for the trial court to grant such a dismissal. Rule 12(b)(6) provides for the dismissal of a complaint and must be read in conjunction with Rule 8, which sets out the requirements of a complaint. Spires v. Members of Election Comm'n, 302 Ark. 407, 790 S.W.2d 167 (1990). Arkansas Rule of Civil Procedure 8(a) provides that a pleading "shall contain (1) a statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the pleader is entitled to relief, and (2) a demand for the relief to which the pleader considers himself entitled." In addition, it is well recognized that pleadings are to be liberally construed and are sufficient if they advise a party of its obligations and allege a breach of them. Deitsch v. Tillery, 309 Ark. 401, 405, 833 S.W.2d 760 (1992); Bethel Baptist Church v. Church Mut. Ins. Co., 54 Ark. App. 262, 924 S.W.2d 494 (1996).

In order to properly dismiss the complaint, the trial court must find that appellant either (1) failed to state general facts upon which relief could have been granted or (2) failed to include specific facts pertaining to one or more of the elements of its claims after accepting all facts contained in the complaint as true and in the light most favorable to the non-moving party. See Perrodin v. Rooker, 322 Ark. 117, 908 S.W.2d 85 (1995).

Factual Allegations of Complaint

The relevant factual allegations as set forth in the complaint, including the referenced correspondence, are accepted as true and can be summarized as follows:

Appellant took his pet dog to Dr. Faulk's veterinarian office on the morning of February 14, 2000, for a steroid shot. Appellant periodically took his dog to Dr. Faulk when the dog's regular vet was unavailable. The dog walked into Dr. Faulk's office. The doctor refused to treat the dog until appellant agreed to let Dr. Faulk perform an x-ray, even though appellant explained that the dog had just had an x-ray. Appellant left the dog for the procedure, expecting to pick him up in approximately one hour.

Despite appellant's attempts to retrieve his dog, the doctor's employees refused to return his pet until six and half hours later. When appellant reclaimed his dog, the animal could not walk and never walked again. Not only could the dog not walk, but he began experiencing diarrhea. Appellant took the dog to Dr. Faulk for treatment two more times that week. The diarrhea continued and resulted in a serious bleeding problem for which appellant sought treatment at the Animal Emergency Clinic in Little Rock. Dr. Faulk's administering of medicine to the dog on the initial visit was the cause of the diarrhea.

Appellant sought further treatment of the dog from a specialist regarding his inability to walk. The specialist identified on sight the cause of the dog's inability to walk as a serious neck injury. The nature of the neck injury was shown by x-ray to be a ruptured neck disk. Based upon appellant's knowledge of his dog's tendency to bark and scratch when confined in a small area and upon his knowledge of choke holders, he believed that someone in Dr. Faulk's office inappropriately used a choke holder on his dog to make him be quiet and this inappropriate action caused the neck injury. The neck injury caused the dog's inability to walk. The dog's inability to walk resulted in premature failure of the animal's organs and resulted in the dog's premature death on December 5, 2000.

The process of the pet's death and the actual death of the pet were devastating to appellant. Appellant had raised the dog "since he was a baby." Appellant had always taken very good care of the dog, and the animal had been his constant companion. Over the nine months and twenty-one days leading to his death, the dog became incontinent and required twenty-four hour care. The appellant and his dog completely rearranged their lives and "[t]here was no night and day during this long nightmare . . .." Dr. Faulk's actions caused appellant and his dog pain, depression, and suffering from which appellant would never recover. Appellant had requested Dr. Faulk provide details of the dog's treatment to help explain this dog's inability to walk and eventual death. Instead, Dr. Faulk turned it over to his malpractice carrier who responded with correspondence that appellant deemed offensive.

Appellant's prayer for relief demanded a jury trial of all factual issues. In addition, he and his dog asked for judgment against the defendants in an amount of not less than $50,000 to be paid in the name of Mr. T to the Pulaski County Humane Society or any such greater amount as may be determined necessary to deter Dr. Faulk and others in the future for such malpractice and negligence.

Dismissal of the Complaint as to the Dog, Mr. T, as Plaintiff

Applying this standard, we first consider the dismissal of the complaint as it applies to the dog, Mr. T, as a plaintiff. An appellate court does not consider assignments of error that are unsupported by convincing legal authority or argument unless it is apparent without further research that the argument is well taken. Tyrone v. Dennis, 73 Ark. App. 209, 39 S.W.3d 800 (2001). Appellant's brief provides no argument regarding the trial court's dismissal without prejudice of the complaint regarding the dog, Mr. T, as plaintiff, and the proposed amended complaint no longer identified the dog as a plaintiff. Accordingly, we affirm the trial court's dismissal as to that point.

Dismissal of the Complaint as to Appellant, Bob J. McAdams

However, we hold that appellant's individual cause of action against appellees should be allowed to proceed. A liberal construction of appellant's complaint advises Dr. Faulk that he had a fiduciary obligation to appellant regarding the care of appellant's dog. See Ark. Code Ann. § 17-101-102(11) (Repl. 2002) (definition of veterinarian-client-patient relationship). Appellant entrusted the veterinarian care of his pet dog to Dr. Faulk who accepted responsibility for the care of appellant's dog.

The complaint further alleges that while the dog was within Dr. Faulk's care and control, one of Dr. Faulk's employees choked appellant's dog to get the dog to be quiet. Dr. Faulk is responsible for the acts of his employees regarding the care of animals entrusted to Dr. Faulk. See St. Joseph's Reg. Health Ctr. v. Munos, 326 Ark. 605, 934 S.W.2d 192 (1996) (holding that under doctrine of respondeat superior, employer may be held vicariously liable for tortious conduct of agent if evidence shows that such conduct was committed within scope of agent's employment).

The choking of a dog in an attempt to quiet the dog was not a method of medical care which would fall within the consent of appellant to Dr. Faulk regarding the veterinarian care of his pet. Because the choking of a dog would not qualify as veterinarian treatment, the act would fall within the arena of general tort law, not malpractice. See McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998) (allegations that a doctor improperly touched, examined, and otherwise fondled plaintiff's breasts during a physical examination stated cause of action for the tort of outrage). While the facts alleged may support a cause of action for a tort in addition to negligence, violation of a penal statute is itself evidence of negligence to be considered along with other facts and circumstances. See Prickett v. Farrell, 248 Ark. 996, 455 S.W.2d 74 (1970). Cruelty to animals is a Class A misdemeanor. Ark. Code Ann. § 5-62-101 (Supp. 2001). This criminal prohibition specifically includes subjecting any animal to cruel mistreatment and injuring any animal belonging to another without legal privilege or consent of the owner. Id. Therefore, the complaint alleges facts to support a tort claim and should not have been dismissed. If appellees meant to suggest that the complaint must be...