Sluder v. Steak & Ale of Little Rock, Inc.

• Decision Date: 14 December 2006
• Docket Number: No. 06-638.,06-638.
• Citation: Sluder v. Steak & Ale of Little Rock, Inc., 368 Ark. 293, 245 S.W.3d 115 (Ark. 2006)
• Court: Arkansas Supreme Court
• Parties: Charles SLUDER and Misty Sluder, Appellants, v. STEAK & ALE OF LITTLE ROCK, INC., d/b/a Bennigan's Grill & Tavern of Texarkana and MRS Management Company, LP, Appellees.

245 S.W.3d 115

368 Ark. 293

Charles SLUDER and Misty Sluder, Appellants, v.STEAK & ALE OF LITTLE ROCK, INC., d/b/a Bennigan's Grill & Tavern of Texarkana and MRS Management Company, LP, Appellees.

No. 06-638.

Supreme Court of Arkansas.

December 14, 2006.

Mercy Carter Tidwell, LLP, by: John R. Mercy and W. David Carter, Texarkana, TX, for appellants.

Atchley, Russell, Waldrop & Hlavinka, LLP, by: Jeffery C. Lewis, Texarkana, TX, for appellees.

DONALD L. CORBIN, Justice.

Appellants Charles and Misty Sluder appeal the order of the Miller County Circuit Court dismissing their complaint against AppelleesSteak & Ale of Little Rock, Inc., d/b/a Bennigan's Grill & Tavern of Texarkana, and MRS Management Company, LP(collectively referred to as Bennigan's).On appeal, the Sluders argue that it was error for the trial court to dismiss their complaint as it stated a viable cause of action and that the trial court further erred in ignoring the law of the case as established in Sluder v. Steak & Ale,361 Ark. 267, 206 S.W.3d 213(2005)(Sluder I).As this is a second appeal, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(7).We affirm.

As the facts are sufficiently set forth in Sluder I, it is unnecessary to discuss the underlying details of the instant action.Suffice it to say, the issue in Sluder I was whether or not the Sluders' complaint stated a cause of action under the Arkansas Dramshop Act, codified at Ark. Code Ann. §§ 16-126-101-106(Supp.2003), for injuries sustained by Charles Sluder in a one-car accident that occurred after he and his wife Misty left Bennigan's in Texarkana.¹In affirming the trial court's dismissal of the Sluders' complaint pursuant to Ark. R. Civ. P. 12(b)(6), this court held that the Sluders' pleadings failed to establish a connection between the sale of alcohol by Bennigan's and the subsequent injury to another person.The court reasoned that section 16-126-104 contained a specific requirement that a causal link must exist between the intoxicated person and the injured third party.In discussing the fact that the Sluders' complaint did not state a cause of action, this court stated:

Appellants allege the following facts regarding Bennigan's vis-á-vis Mr. Beck: (1) that Bennigan's knew that Mr. Beck was clearly intoxicated at the time of the sale, and (2) that Bennigan's reasonably should have known that Mr. Beck was clearly intoxicated at the time of the sale.However, appellants' complaint is deficient in that it fails to establish a sufficient nexus between the sale to Mr. Beck and the injury to Mr. Sluder.To establish a prima facie case under section 16-126-104, the plaintiff must allege that the intoxicated person, i.e., Mr. Beck, caused the injury.Appellants in this case failed to do so.

Id. at 275, 206 S.W.3d at 217.The court elaborated, explaining:

We have said that proximate cause is that cause which, "in a natural and continuous sequence, produces damage."Here, the statute adds a specific requirement that the "natural and continuous sequence" include a causal link between the intoxicated person and the injured third-party.Because appellants failed to plead the elements in that "natural and continuous sequence," which is required by the statute, we conclude that appellants' complaint is insufficient.

Id.(citations omitted).

Following the issuance of our mandate, the Sluders attempted to file an amended complaint in the case that was previously dismissed.²They also filed a new complaint on May 18, 2005, against the same defendants and alleging the same causes of action, but attempting to cure the deficiencies noted by this court in Sluder I.The new complaint alleged that Charles Sluder was impaired at the time that he left Bennigan's and that it was the sale of alcohol to John Beck that led to the accident that resulted in the injuries to Sluder.

In response to the new complaint, Bennigan's filed a motion to dismiss, denying the allegations as set forth in the complaint, and arguing that the complaint was barred by the statute of limitations and res judicata.In connection with its motion to dismiss, Bennigan's also submitted a memorandum of law.Therein, Bennigan's averred that despite the fact that the majority opinion in Sluder I failed to state whether the dismissal was with or without prejudice, Arkansas law requires that where a party elects to pursue an appeal following a dismissal under Rule 12(b)(6), and loses on appeal, the party waives the right to plead further and the appeal is to be dismissed with prejudice.Thus, according to Bennigan's, Sluder I was dismissed with prejudice and pursuant to the doctrine of res judicata, the Sluders' action had been finally adjudicated, and they were barred from filing the new complaint.Moreover, Bennigan's argued that in any event the statute of limitations had expired on the Sluders' claim and it could not be revived by either amendment or by instituting a new suit.

The Sluders responded to the motion to dismiss, arguing that the opinion in Sluder I was clearly a dismissal without prejudice, as evidenced by a statement in the dissent that the case should be dismissed with prejudice.Thus, according to the Sluders, they properly amended their original complaint and filed a new complaint.Moreover, they argued that the defense of statute of limitations was inapplicable in this case because the matters in their amended and new complaints arose out of the same transaction or occurrence as set forth in the original complaint that was timely filed.

A hearing on Bennigan's motion to dismiss was held on January 5, 2006.Bennigan's repeated its argument that the Sluders' complaint was barred on the basis that this court's affirmance of the previous dismissal operated as a dismissal with prejudice.Alternatively, Bennigan's argued that the Sluders' complaint still failed to state a cause of action and should be dismissed pursuant to Rule 12(b)(6).

The trial court subsequently issued a letter opinion, dated March 27, 2006.Therein, the court analyzed Bennigan's claim that the Sluders' complaint failed to state a cause of action.³The court concluded that the Sluders failed to provide a factual basis in their complaint that established they were entitled to recover under the Dramshop Act.In reaching this conclusion, the court noted:

The statute grants a cause of action to a person injured as a result of a retailer of alcoholic beverages selling alcohol to a clearly intoxicated person.The statute provides specifically that another person may have a cause of action against the retailer if the retailer sells alcohol to a clearly intoxicated person or one whom he should have known was clearly intoxicated.The Court is unable to discern any intent from the language of the statute that the legislature intended to provide a cause of action to a person who becomes voluntarily intoxicated and is himself involved in an accident.The Plaintiffs attempt to bootstrap themselves into the category of an "other person" because they received alcohol from a clearly intoxicated person (Beck), who was buying rounds of drinks for his guests.

The court further reasoned that the Sluders' failure to "allege that they were clearly intoxicated which is necessary to put the retailer or its employees on notice that they should not have been served alcohol" was a fatal defect, even if the Sluders could somehow argue that Bennigan's actions constituted a constructive sale to them.Finally, the court held that the res judicata defense was moot, because of its decision to dismiss the Sluders' complaint under Rule 12(b)(6).An order dismissing the Sluders' complaint was entered on April 7, 2006.From that order comes the instant appeal.

On appeal, the Sluders argue that the trial court erred in dismissing their complaint as it stated a prima facie cause of action under section 16-126-104.According to them, this court in Sluder I,361 Ark. 267, 206 S.W.3d 213, indicated that if they pled that Beck continued to order drinks and, in turn, provided them to Charles Sluder, such facts would satisfy the requirements of probable cause.Bennigan's counters that this court's prior dismissal of the Sluders' complaint was with prejudice...