This opinion is uncorrected and subject to revision before publication in the printed official reporter.
APPEAL FROM THE POPE COUNTY CIRCUIT COURT. NO. CV-2010-578. HONORABLE DENNIS CHARLES SUTTERFIELD, JUDGE.
The Boyd Law Firm, by: Charles Phillip Boyd, Jr., for appellant.
Kutak Rock LLP, by: Jess Askew III and Teresa Wineland, for appellee Bastesville Casket Company, Inc.
The Streett Law Firm, P.A., by: Alex G. Streett, James A. Street, and Robert M. Veach, for appellee Humphrey Funeral Service, Inc.
BRANDON J. HARRISON, Judge. GRUBER and VAUGHT, JJ., agree.
BRANDON J. HARRISON, Judge
A casket bearing the remains of Frank Clayton lies buried in a Newton County cemetery, where it has been interred for almost twenty years. The casket was manufactured by appellee Batesville Casket Company and was sold in 1996 to Frank's widow, appellant Zelma Magby, and his son, appellant Garry Clayton, by appellee Humphrey Funeral Service.
In 2010, Clayton and Magby sued Batesville and Humphrey based on a belief tat the casket's seal had been breached by water. Their complaint contained over a dozen counts and alleged similar problems with other Batesville caskets. Batesville and Humphrey moved to dismiss, citing the statute of limitation and the complaint's failure to plead damages caused by a defect in the Clayton casket. The circuit court dismissed all causes of action with prejudice. We affirm.
In reviewing the grant of a motion to dismiss, we focus on the content of the pleadings and treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Hall v. Jones, 2015 Ark. 2, 453 S.W.3d 674. We will not reverse unless the circuit court abused its discretion in granting the motion to dismiss. See id.
The relevant pleadings in this case began in January 2008 when Clayton joined a class-action suit that had been filed in federal court against Batesville. The case pled that Batesville had guaranteed its caskets to resist penetration by water and other gravesite substances and that, because that guarantee was false, Batesville had violated the Arkansas Deceptive Trade Practices Act (ADTPA), breached warranties and contracts, committed fraud, and been unjustly enriched. On 1 October 2009, Clayton voluntarily nonsuited his federal-court case.
Less than a year later, on 30 September 2010, Clayton and Magby sued Batesville and Humphrey in Pope County Circuit Court, pleading most of the same counts that had been raised in the dismissed class-action suit--violation of the ADTPA, breach of warranty, breach of contract, and fraud. They also added several other causes of action: negligent design; negligent manufacturing; strict liability; outrage; violation of property rights involving a corpse (which was part of the strict-liability count); violation of a Federal Trade Commission (FTC) order; violation of " the funeral rule," a federal regulation aimed at funeral providers; and civil action by a crime victim, pursuant to Arkansas Code Annotated section 16-118-107 (Supp. 2013). Their complaint essentially alleged that they had purchased a Batesville casket from Humphrey in 1996, that the casket was warranted not to leak for forty years after interment, and that they " learned that they may have been defrauded" in 2005 after becoming aware of other incidents involving Batesville's caskets.
Because the Clayton casket was purchased in 1996 and the state-court complaint was not filed until 2010, Batesville and Humphrey moved to dismiss based on the statutes of limitation--which ranged from three to five years on the claims pled in the complaint. Clayton and Magby responded that they could not have discovered their claims until 2006 (a date set forth in an amended complaint) given Batesville's and Humphrey's fraudulent concealment. See Hipp v. Vernon L. Smith & Assocs., Inc., 2011 Ark.App. 611, 386 S.W.3d 526 (holding that fraudulent concealment suspends ...