KENNY QUARLES, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF BENNIE JEAN QUARLES, DECEASED, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF BENNIE JEAN QUARLES, DECEASED v. COURTYARD GARDENS HEALTH AND REHABILITATION, LLC A/K/A COURTYARD GARDENS HEALTH AND REHABILITATION; ARKADELPHIA HOLDINGS, LLC; SLC OPERATIONS MASTER TENANT, LLC; SLC OPERATIONS, LLC; SLC PROFESSIONALS OF ARKANSAS, LLC; SLC ADMINISTRATIVE SERVICES OF ARKANSAS, LLC; CAPITAL SENIORCARE VENTURES, LLC; SLC PROPERTIES, LLC; 2701 TWIN RIVERS DRIVE, LLC; SENIOR VANTAGE POINT, LLC; SENIOR LIVING COMMUNITIES OF ARKANSAS, LLC; EOR GROUP, LTD; EOR, LLC; EOR-ARK, LLC; VAJ, LLC; QUALITY REVIEW, LLC; ANGELA MARLAR, IN HER CAPACITY AS ADMINISTRATOR/EXECUTIVE DIRECTOR OF GOLDEN LIVINGCENTER - ARKADELPHIA N/K/A COURTYARD GARDENS HEALTH AND REHABILITATION, LLC; AND DEBORAH THORNTON, IN HER CAPACITY AS ADMINISTRATOR OF COURTYARD GARDENS HEALTH AND REHABILITATION, LLC F/K/A GOLDEN LIVINGCENTER - ARKADELPHIA
No. CV-15-711
SUPREME COURT OF ARKANSAS
March 17, 2016
2016 Ark. 112
HONORABLE ROBERT MCCALLUM, JUDGE
APPEAL FROM THE CLARK COUNTY CIRCUIT COURT [CV-2011-11]
AFFIRMED.
COURTNEY HUDSON GOODSON, Associate Justice
I. Factual Background
The record reflects that Bennie Jean Quarles, the decedent, was a resident of Courtyard Gardens, a long-term-care facility in Arkadelphia, from June 2009 to March 2010, when she transferred to another nursing home. On June 4, 2010, Bennie Jean purportedly executed a durable power of attorney in favor of her son, Kenny Quarles. On January 27, 2011, Kenny, as “Power of Attorney for Bennie Jean Quarles, an incapacitated person,” filed suit against Courtyard Gardens alleging claims of negligenсe, medical malpractice, and violations of the Arkansas Long-Term Care Residents’ Rights Act.1 Kenny filed an amended complaint in that same capacity on May 3, 2011.
On June 27, 2011, Courtyard Gardens filed a motion to compel arbitration of the claims contained in the amended complaint. Subsequently, on July 8, 2011, Kenny filed a
On July 6, 2012, the circuit court issued an order denying Courtyard Gardens’ motion to compel arbitration. Courtyard Gardens appealed that decision, and the Estate also filed a cross-appeal of the circuit court‘s order. This court affirmed on direct appeal and considered the cross-appeal moot. Courtyard Gardens Health & Rehab., LLC v. Quarles, 2013 Ark. 228, 428 S.W.3d 437. We held that the arbitration agreement failed because the evidence did not establish that Bennie Jean‘s son, Ronald Quarles, who had signed the agreement, had the actual authority to bind her to arbitration.
Following our decision, the parties engaged in discovery, and the circuit court set trial dates but granted several continuances. The court entered a scheduling order on August 27, 2014, setting a two-week trial to begin on June 22, 2015. In addition, this order required the parties to participate in mediation. The record also reflects that Courtyard Gardens deposed Kenny and his wife, Oleater Quarles, on October 9, 2014. It also took the deposition of Dr. Ferdinand Roda, Bennie Jean‘s treating physician, on December 22, 2014.
On January 30, 2015, the day scheduled for mediation, Courtyard Gardens filed the motion for summary judgment that is the subject of this appeal. Citing Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004), Courtyard Gardens asserted that the complaint and the amended complaint filed by Kenny under the power of attorney given to him by Bennie
In response, the Estate argued that the provisions of
In reply, Courtyard Gardens argued that the substitution of Kenny as the special administrator was of no consequence because
The circuit court held a hearing on April 30, 2015. On May 6, 2015, the circuit court entered its order granting Courtyard Gardens’ motion for summary judgment. The order recites,
On April 30, 2015, counsel presented oral arguments regarding the Defendants’ Motion for Summary Judgment. Based upon the argument of cоunsel, the pleadings, submitted briefs and exhibits, the court finds that the Defendants’ arguments are persuasive and correct. Defendants’ Motion for Summary Judgment is granted.
On May 15, 2015, the Estate filed a motion for new trial and reconsideration. In this motion, the Estate reiterated its position that the proper party, Kenny, as the administrator of the estate, had been substituted as the party plaintiff before the statute of limitations had expired. In addition, it continued to argue that principles of equitable estoppel precluded Courtyard Gardens from asserting the lack of standing at this juncture. For the first time, the Estate also asserted that, pursuant to
The circuit court did not rule on the motion for reconsideration; therefore, it was deemed denied after a period of thirty days.
II. Standards of Review
This case comes to us from an order granting summary judgment. The law is well settled regarding the standard of review used by this court in reviewing a grant of summary judgment. Fed. Nat‘l Mortg. Ass‘n v. Taylor, 2015 Ark. 78, 455 S.W.3d 811. A circuit court will grant summary judgment only when it is apparent that no genuine issues of material
III. Material Question of Fact
The Estate first argues that the evidence is in material dispute regarding Bennie Jean‘s capacity at the time she executed the power of attorney. In support of this argument, the Estate relies on the deposition testimony of Kenny and Oleater indicating that they explained the power of attorney to Bennie Jean and that she both understood and agreed to sign it. This argument, however, ignores Courtyard Gardens’ alternative contention that the power of attorney was invalid as a matter of law because it was not properly acknowledged by the notary public. Although the Estate appears to be under the impression that the circuit court did not rule on the acknowledgment issue, it is mistaken. We have previously recognized that when a circuit court denies a summary-judgment motion
IV. Ark. R. Civ. P. 17(b)
In this point on appeal, the Estate argues that
The Estate‘s arguments are based on the provisions of
V. Waiver
Next, the Estate contends that Courtyard Gardens waived any question of Kenny‘s standing to file suit by not asserting this defense in its responsive pleading. Failing that, it also contends that Courtyard Gardens waived the issue of standing by waiting to assert this claim nearly four years after the lawsuit had commenced because it had reason to know from the available medical records that Bennie Jean may have lacked the capacity to execute the power of attorney.
The Estate‘s claim that the issue of standing is lost unless made in answer to the complaint was raised for the first time in its motion for new trial or reconsideration. As such, that precise issue is not properly before us, because an argument made for the first time in a nеw-trial motion is not timely. Switzer, supra. Although the Estate did not raise any issue of waiver in its response to the motion for summary judgment, it did assert the question of waiver generally, and briefly, at the hearing on the motion for summary judgment. Counsel for the Estate argued,
And I understand, appreciate that they said that in May 2013 [when we decided the arbitration appeal] is when they could‘ve filed this thing that well, they didn‘t do it then either. They still waited another year and a half as we went through litigation on all sorts of things when they had all the information about the caрacity as to Ms. Quarles. They had all the medical records. All that information was available back in May of 2013. They didn‘t do it. They
wait another year and a half to raise this issue. So I do think there‘s a waiver here. I think there is estoppel. And we make that argument in our brief. But I think that Your Honor can also find waiver of the argument.
Based on this argument, we are satisfied that the Estate‘s general assertion of waiver is preserved for appeal. However, the argument is not well taken.
Waiver is the voluntary abandonment or surrender by a capable person of a right known to him to exist, with the intent that he shall forever be deprived of its benefits, and it may occur when one, with full knowledge of the material facts, does something which is inconsistent with the right or his intention to rely upon it. Cochran v. Bentley, 369 Ark. 159, 251 S.W.3d 253 (2007). As we have mentioned, Courtyard Gardens asserted, and the circuit court found, that the power of attorney was invalid based on two independent grounds—Bennie Jean‘s lack of mental capacity and the absence of a proper acknowledgment. While the question whether Courtyard Gardens may have waived the issue of capacity is debatable, the same cannot be said regarding the issue of proper acknowledgment. Here, the record shows that Courtyard Gardens did not have full knowledge of the circumstances surrounding the execution of the power of attorney until the depositions of Kenny and Oleater were taken in October 2014, when it was learned that the notary public did not acknowledge Bennie Jean‘s signature in her presence. Thereafter, Courtyard Gardens promptly filed the motion for summary judgment on January 30, 2015. The Estate‘s claim of waiver is without merit.
For its final point on appeal, the Estate contends that the motion for summary judgment filed nearly four years after Courtyard Gardens learned of the relevant facts is precluded by the doctrine of laches and estoppel. Again, it argues that Courtyard Gardens knew that Bennie Jean‘s medical records indicated that she suffered from moderate to severe dementia a year before the power of attorney was signed.
The elements of estoppel are (1) the party to be estopped knew the facts; (2) the party to be estopped intended that the conduct be acted on; (3) the party asserting the estoppel was ignorant of the facts; and (4) the party asserting the estoppel relied on the other‘s conduct and was injured by that reliance. Here, the estoppel argument fails for the very simple reason that the third element is not satisfiеd. As with the previous issue, we need only focus on the acknowledgment issue. On this record, we cannot conclude that the Estate was ignorant of the facts because all of the evidence comes from sources to which the Estate had superior access, such as the witnesses to the execution of the power of attorney.
The defense of laches is based on the equitable principle that an unreasonable delay by the party seeking relief precludes recovery when the circumstances are such as to make it inequitable or unjust for the party to seek relief. Royal Oaks Vista, LLC v. Maddox, 372 Ark. 119, 271 S.W.3d 479 (2008). The laches defense requires a detrimental change in position of the one asserting the doctrine, as well as an unreasonable delay by the one asserting his rights against whom laches is invoked. Summit Mall Co., LLC v. Lemond, 355 Ark. 190, 132 S.W.3d 725 (2003). Considering, once again, only the issue of
Affirmed.
BRILL, C.J., DANIELSON and HART, JJ., concur.
KENNY QUARLES, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF BENNIE JEAN QUARLES, DECEASED, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF BENNIE JEAN QUARLES, DECEASED v. COURTYARD GARDENS HEALTH AND REHABILITATION, LLC A/K/A COURTYARD GARDENS HEALTH AND REHABILITATION; ET AL.
No. CV-15-711
SUPREME COURT OF ARKANSAS
March 17, 2016
2016 Ark. 112
The doctrine of laches is based on a number of equitable principles that are premised on some detrimental change in position made in reliance upon the action or inaction of the other party. See, e.g., Cochran v. Bentley, 369 Ark. 159, 251 S.W.3d 253 (2007). It is based on the assumption that the party to whom laches is imputed has knowledge of his rights and the opportunity to assert them, that by reason of his delay some adverse party has good reason to believe that those rights are worthless or have been abаndoned, and that because of a change of conditions during this delay it would be unjust to the latter to permit him to assert them. See id. The laches defense requires a detrimental change in the position of the one asserting the doctrine, as well as an unreasonable delay by the one asserting his rights against whom laches is invoked. See, e.g., Felton v. Rebsamen Med. Ctr., Inc., 373 Ark. 472, 284 S.W.3d 486 (2008). The application of the doctrine to each case depends on its
Kenny Quarles initiated this litigation on January 27, 2011, when he filed his initial complaint as power of attorney for his mother, who was incapacitated at that time. Courtyard Gardens proceeded to litigate the matter for four years before it finally filed its motion for summary judgment on January 30, 2015, asserting for the first time that Kenny Quarles did not have standing because his mother lacked capacity to execute the power of attorney. During those four years, the parties engaged in discovery, scheduled trial dates and mediation, and litigated Courtyard Gardens’ motion to compel arbitration. Courtyard Gardens pursued an appeal on the issue of arbitration, and we issued an opinion holding that there was no valid arbitration agreement. Courtyard Gardens Health & Rehab., LLC v. Quarles, 2013 Ark. 228, 428 S.W.3d 437. In addition, upon his mother‘s death, Kenny Quarles filed a motion seeking to be substituted as party plaintiff in his capacity as special administrator of her estate, which the circuit court granted without objection from Courtyard Gardens. Still, during all of that time, Courtyard Gardens never asserted or pursued the threshold defense of standing in spite of the fact that it had access to Bennie Jean Quarles‘s medical records, which called into question her capacity at the relevant time. See Grand Valley Ridge, LLC v. Metro. Nat‘l Bank, 2012 Ark. 121, at 9, 388 S.W.3d 24, 31 (stating that “[w]e treat the question of standing to sue as a threshold issue“). During the long pendency of this litigation, Courtyard Gardens never argued that Kenny Quarles was not the proper person to bring suit.
However, in light of the fact that Courtyard Gardens raised an alternative, independent ground to support summary judgment—namely, that the power of attorney was invalid because it had not been properly acknowledged—and because laches does not apply on that issue, I must concur in the result reached by the majority.
Brill, C.J., and Hart, J., join in this concurrence.
Wilkes & McHugh, P.A., by: Carl R. Wilander, John V. O‘Grady, and William P. Murracy III; and Appellate Solutions, PLLC d/b/a Riordan Law Firm, by: Deborah Truby Riordan, for appellant.
Kutak Rock LLP, by: Mark W. Dossett, Scott Jackson, and Samantha B. Leflar, for appellees.