Page:McQuay v. Guntharp.pdf/4

Rh   fondled" their breasts during their physical examinations. In an amended complaint filed on April 25, 1996, Appellants Sam McQuay and Dennis Rowe alleged a loss of consortium of their wives based upon Dr. Guntharp's outrageous conduct.

Appellees filed a motion to dismiss the complaint on April 3, 1996, stating that the allegations of wrongful touching constituted a battery, and were thus barred by the one-year statute of limitations, as provided in Ark. Code Ann. § 16-56-104 (Supp. 1995). Attached to the motion as Exhibit 2 was Dr. Guntharp's affidavit, which merely set out the last dates on which he had seen each of the Appellants in his office. Appellees alternatively moved to dismiss the complaint on their theory that the allegations of distress arising from Dr. Guntharp's professional services constituted a medical injury, which therefore barred the claims of Rachel Keech and Charman Rowe through the two-year statute of limitations. See Ark. Code Ann. § 16-114-203 (Supp. 1997).

The trial court dismissed the complaint with prejudice, hold.ing that Appellants' claims constituted a battery and was therefore barred by the one-year statute of limitations sapplicable to such action. At the dismissal hearing, the trial court stated that the facts pleaded in the case did not rise to the level of outrage and added, "it's got to be terrible in order for outrage to occur." On appeal, Appellants do not dispute that the initial complaint was filed more than one year after Dr. Guntharp had any contact with each of them. Instead, they argue that the trial court erred by finding that the complaint described claims for battery instead of outrage.

[1, 2] Ordinarily, when matters outside the pleadings are presented and not excluded by the trial court in connection with a motion to dismiss under ARCP Rule 12(b)(6), we treat the motion as one for summary judgment under ARCP Rule 56. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). The matters to be considered in summary judgment proceedings are limited to affidavits, depositions, admissions, and answers to interrogatories. Id. Here, the trial court considered Dr. Guntharp's affidavit in support of Appellees' assertion that the claim was barred by the one-year statute of limitations for battery or, alternatively, the two-year statute of limitations for medical injuries.