                               Cite as 2015 Ark. App. 361

                ARKANSAS COURT OF APPEALS
                                      DIVISION II
                                    No. CV-13-819


                                                  Opinion Delivered   June 3, 2015

 GARRY CLAYTON AND ZELMA    APPEAL FROM THE POPE COUNTY
 MAGBY                      CIRCUIT COURT
                 APPELLANTS [NO. CV-2010-578]

 V.                                               HONORABLE DENNIS CHARLES
                                                  SUTTERFIELD, JUDGE
 BATESVILLE CASKET COMPANY,
 INC., AND HUMPHREY FUNERAL
 SERVICE, INC.                 AFFIRMED
                     APPELLEES

                         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 that

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.

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       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

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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 the running of the statute of

limitation until such time as the plaintiff discovers the fraud or should have discovered it

by reasonable diligence).

       The circuit court took up the issues and immediately trimmed three counts from

Clayton and Magby’s complaint: violation of the FTC order for want of a private cause of

action; violation of the funeral rule for want of a private cause of action; and civil action

by a crime victim for want of conduct that constituted a crime. Clayton and Magby do

not challenge these dismissals on appeal, so we affirm them without further discussion.

       The circuit court then turned to the statute-of-limitation questions and ruled that

Clayton and Magby failed to plead facts showing fraudulent concealment by Batesville and

Humphrey. Consequently, in orders dated 30 March 2012, the court dismissed most of

Clayton and Magby’s claims as time-barred. The only exceptions were the claims that

Clayton had voluntarily dismissed in his federal-court case—violation of the ADTPA,

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breach of warranty, breach of contract, and fraud. The court reasoned that Clayton’s

refiling of those claims within one year after their being nonsuited saved them from being

dismissed. See Ark. Code Ann. § 16-56-126 (Repl. 2005) (the Arkansas Savings Statute).

       Clayton and Magby asked for reconsideration and a chance to amend their

complaint, despite having already amended it at least twice.        The court allowed yet

another amendment and emphasized that, if Clayton and Magby were to avoid a time-bar,

they must plead facts showing Batesville’s and Humphrey’s fraudulent concealment.

Clayton and Magby filed a third amended complaint, which stated that, due to fraudulent

concealment, Clayton had not learned of his claims until 2006. The complaint did not say

when Magby learned of her causes of action.

       The court was generally satisfied that Clayton and Magby’s amendment made a

case for fraudulent concealment. Nevertheless, in an order entered on 14 January 2013,

the court dismissed most of their claims. The court ruled that, because Clayton had pled

that he learned of his claims in 2006, the September 2010 complaint was too late to

preserve his counts for negligent design, negligent manufacturing, breach of warranty,

strict liability, fraud, outrage, and violation of property rights involving a corpse, all of

which carried either three-year or four-year statutes of limitation. The court left standing

Clayton’s claims for breach of contract and violation of the ADTPA, which were subject

to five-year statutes of limitation. As to Magby, the court dismissed all of her claims

because the complaint did not specify when she became aware of them.

       At this point, the presiding judge, Judge Kenneth Coker, transferred the case to

Judge Dennis Sutterfield for administrative reasons. Judge Sutterfield reviewed the entire

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case and entered an order on 24 May 2013 that dismissed all of Clayton and Magby’s

claims with prejudice. Judge Sutterfield stated that he agreed with the earlier, partial

dismissal by Judge Coker but that, in addition, “none of the causes of action should

survive because sufficient facts have not been plead to establish actual injury or damages to

the plaintiffs.” More precisely, he ruled that “there have been no facts set forth in the

plaintiffs’ pleadings which establish any actual defects or failure of the casket involved in

this lawsuit which resulted in any harm, injury or recoverable damages to the plaintiffs.”

Clayton and Magby appealed.

       We begin with Judge Sutterfield’s ruling that Clayton and Magby failed to plead

facts showing any harm from a defect or failure in the casket they purchased.            The

essential law of pleading is that a plaintiff’s complaint must contain a statement in ordinary

and concise language of facts showing the pleader is entitled to relief. Dockery v. Morgan,

2011 Ark. 94, 380 S.W.3d 377; Ark. R. Civ. P. 8(a) (2014). A complaint must state facts,

not mere conclusions, and is subject to dismissal for failure to state facts on which relief

can be granted. Hall, supra; Ark. R. Civ. P. 12(b)(6) (2014).

       The original complaint in this case (which was incorporated into all amended

complaints) scattered various allegations against Batesville and Humphrey throughout its

twenty-four pages and ninety-one paragraphs. It alleged that the Clayton casket had

“defects” and that Batesville and Humphrey misrepresented the casket’s resistance to

water. Also, the complaint referenced what may be termed general design flaws found in

Batesville caskets, stating that: “Plaintiffs became aware that other ‘leak-proof’ caskets

marketed, sold, and distributed by the Defendants under warranties and/or with

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representations similar to, if not identical to, those made to them . . . did in fact leak”; the

defective caskets caused “tremendous emotional pain and suffering and financial loss to the

families of those buried therein”; and “it was widespread knowledge throughout the

casket/funeral industry that these so-called ‘sealer’ caskets did in fact begin to leak almost

immediately” and “hastened the natural decomposition of the human body.”                    The

damages pled by Clayton and Magby included mental anguish, mutilation of a corpse, and

the difference between the value of the casket they were promised and the value of the

casket they actually purchased.

       We construe the complaint liberally, resolving all reasonable inferences in its favor.

Ballard Group, Inc. v. BP Lubricants USA, Inc., 2014 Ark. 276, 436 S.W.3d 445. Yet, even

under this lenient standard, the complaint here does not meet Arkansas’s fact-pleading

standard.

       A complaint is subject to dismissal if it fails to state general facts on which relief can

be granted, or fails to include specific facts pertaining to one or more of the elements of

the plaintiff’s claim (after accepting all facts in the complaint as true and viewing them in

the light most favorable to the plaintiff). See Smith v. Eisen, 97 Ark. App. 130, 245

S.W.3d 160 (2006). We must look to the underlying facts supporting an alleged cause of

action to determine whether the matter has been sufficiently pled—specific facts are

required. Dockery v. Morgan, 2011 Ark. 94, 380 S.W.3d 377.

       Clayton and Magby’s complaint is devoid of specific facts showing that an

identifiable defect existed in the particular casket that they purchased and that the defect

caused their alleged damages. A conclusory statement that a product is defective is not

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sufficient; some factual support is required. See West v. Searle & Co., 305 Ark. 33, 806

S.W.2d 608 (1991). If a plaintiff asserts that he has been damaged, then his complaint

must state facts that link his damages to the conduct of, or product supplied by, the

defendant. That link was not established in this case.

       The complaint also fails to include facts pertaining to all elements of the causes

pled. An essential element of Clayton and Magby’s tort claims is that their damages were

the result of a defect in the specific casket that holds the remains of their decedent. See

Pace v. Davis, 2012 Ark. App. 193, 394 S.W.3d 859 (causation is an element of

negligence); Ark. Code Ann. § 4-86-102 (Repl. 2011) (same for strict liability); Ark.

Code Ann. § 4-88-113(f) (Repl. 2011) (violation of the ADTPA); Overturff v. Read, 2014

Ark. App. 473, 442 S.W.3d 862 (fraud); Coombs v. J.B. Hunt Transp., Inc., 2012 Ark. App.

24, 388 S.W.3d 456 (outrage). Similarly, an essential element of Clayton and Magby’s

breach-of-contract and breach-of-warranty claims is that the sellers’ performance or the

condition of the particular casket sold to them did not conform to the warranty or

contract. See Forever Green Ath. Fields, Inc. v. Lasiter Constr. Co., 2011 Ark. App. 347, 384

S.W.3d 540; AMI Civ. 2401 (2014) (breach of contract); F.L. Davis Bldrs. Supply, Inc. v.

Knapp, 42 Ark. App. 52, 853 S.W.2d 288 (1993) (breach of implied warranties); Ark.

Code Ann. § 4-2-714 (Repl. 2001); AMI Civ. 1012 (2014) (breach of express warranty).

       Clayton and Magby’s complaint states no facts that connect a defect in the

particular casket they purchased to any damages they alleged. This is due, in no small part,

to the fact that they have no way of knowing the condition of the casket they purchased;

it has not been disinterred or inspected since its burial in 1996. Facts in a complaint are

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treated as true, but a plaintiff’s theories or speculation are not. Hamby v. Health Mgmt.

Assocs., Inc., 2015 Ark. App. 298, ___ S.W.3d ___. The circuit court did not abuse its

discretion in dismissing the complaint as factually deficient.

       We turn now to Clayton and Magby’s claim that the circuit court erred in

dismissing their complaint without allowing them to plead further.          Rule 15 of the

Arkansas Rules of Civil Procedure encourages liberal amendment of pleadings, although

an amendment may be denied where the court determines that prejudice would result to

the other party or that the disposition of the cause would be unduly delayed. Ark. R.

Civ. P. 15(a).    Similarly, Arkansas Rule of Civil Procedure 12(j) provides that “if

appropriate” a party will be given a chance to plead further following a dismissal. Still, the

circuit court is vested with broad discretion in allowing or denying amendments.

Deer/Mt. Judea Sch. Dist. v. Kimbrell, 2013 Ark. 393, 430 S.W.3d 29.

       Clayton and Magby filed their original complaint, plus other amended complaints,

before suffering significant dismissals on 30 March 2012. Thereafter, they were given a

final chance to amend their complaint to avoid dismissal.             They duly made the

amendment but still were unable to fully remedy their pleading deficiencies. Given these

circumstances, Clayton and Magby were not deprived of a chance to amend their

complaint and avoid a dismissal.

       Along this same line, Clayton and Magby contend that Judge Sutterfield’s dismissal

should have been without prejudice. But the two-dismissal rule, Arkansas Rule of Civil

Procedure 41, works against them. When Judge Sutterfield dismissed the case, each of

Clayton and Magby’s claims had previously been dismissed, either through a voluntary

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nonsuit or for failure to state a cause of action or plead facts to avoid the statute of

limitation. A second dismissal operates as an adjudication on the merits and is with

prejudice. See Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120

S.W.3d 525 (2003); Ark. R. Civ. P. 41(b). Some causes of action in this case had actually

been dismissed more than once, and could have been dismissed with prejudice earlier. In

any event, Judge Sutterfield’s final dismissal with prejudice was correct under the two-

dismissal rule. See Ballard, supra; Smith, supra.

       Our decision makes it unnecessary to address the parties’ arguments regarding the

statute of limitation or the alternate reasons for affirmance put forth by Batesville and

Humphrey.

       Affirmed.

       GRUBER and VAUGHT, JJ., agree.

       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.




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