Lead Opinion
|¡Appellant -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 (the Estate) appeals the order entered by the Circuit Court of Clark County granting the motion for summary judgment filed by appellees Courtyard Gardens Health and Rehabilitation, LLC,' and others (Courtyard Gardens). For reversal, the Estate contends that the circuit court erred in granting summary judgment and by failing to grant its motion for reconsideration.. We affirm.
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 negligence, .medical malpracr tice, and violations,of the Arkansas.Long-Term Care Residents’ Rights Act.
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 | ¿‘Statement of Fact of Death” giving notice that Bennie Jean had died on May 17, 2011. On July 20, 2011, the circuit court entered an order substituting as the nominal plaintiff “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.”
On July 6, 2012, the circuit court issued an order denying Courtyard Garden^’ 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,
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, Oleatér 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,
In response, the Estate argued that the provisions of Rule 17(a) of the Arkansas Rules of Civil Procedure required that it be allowed a reasonable time to ratify the complaints or to substitute the real party in interest. It maintained that these things had already been accomplished when Kenny, as the duly appointed special administrator of the estate, had been substituted as the real party in interest prior to the expiration of the statute of limitations. Further, the Estate argued that Rhuland, supra, did not apply because it was based on the requirements of the wrongful-death statute as to who . could bring.suit, The Estate also argued that the doctrine of judicial estoppel was not applicable because it had not taken inconsistent positions. .■ Alternatively, the Estate asserted that the doctrine of equitable es-toppel barred Courtyard Gardens’ argument because it had waited four years to question Kenny’s standing to bring suit. In addition, it contended that the question whether Bennie Jean had sufficient capacity to execute the power of attorney was a disputed question of fact that was not suited for summary disposition.
In reply, Courtyard Gardens argued that the substitution of Kenny as the special administrator was of no consequence because Rule 17 does not apply to complaints that are nullities, citing Brewer v, Poole,
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 counsel, 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 Rule 17(b), it was the circuit court’s duty to ensure that a case brought on behalf of an incompetent person proceeds. Also based on Rule 17(b), it maintained that Bennie Jean was the real party in interest and that, regardless of the validity of the power of attorney, the court had an obligation to recognize Kenny as Bennie Jean’s 17next friend to prosecute the action. For these propositions, the Estate cited Missouri State Life Insurance Co. v. Holt,
The circuit court did not rule on the motion for reconsideration; therefore, it was deemed denied after a period of thirty days. Ark. R.App. P. Civ.-4(b)(l). The Estate filed timely notices of appeal from the summary-judgment order and from the deemed-denial of the motion to reconsider. This appeal followed.
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,
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 | gwithout expressly stating the basis for its ruling, that ruling encompasses the issues presented to the circuit court by the briefs and arguments of the parties. Asset Acceptance, LLC v. Newby,
. . IV. Ark. R. Civ. P. 17(b)
In this point on appeal, the Estate argues that Rule '17(b) and this court’s precedents recognize the ability of an incompetent • person to. file suit by and through a 'next friend. • It argues that an incompetent’s -right to bring suit is expressly récognized in Rulé 17(b), which | ^provides that an incompetent person who does nbt have a guardian “may sue by his next friend or a guardian ad litem.” ■ Under such circumstances, the Estate argues, the real party in interest was Bennie Jean, and it asserts that, even if the power of attorney was invalid, Kenny had'standing to file suit as Bennie’s next friend. The Estate contends that the rule places on the circuit court -the duty to ensure ■ that the incompetent’s rights are protected. Further, the-Estate argues that-cases construing’ the requirements of the wrongful-death statute, such as Rhuland, - supra, are not instructive in cases involving an incompetent plaintiff. ■ It asserts that our precedents applying - a' former -statute upon which Rule 17(b)-is modeled establish that the complaints-filed by Kenny were not nullities, citing Holt, supra> Harral, supra, and Scott v. Stephenson,
The- Estate’s - arguments are based on the provisions of Rule 17(b) and our precedents, and their- success hinges on whether the complaints filed by Kenny under the invalid power of .attorney were nullities. As Courtyard Gardens correctly points out, the Estate first mentioned Rule 17(b) and those precedents in its motion for new trial and reconsideration. This court has repeatedly held that an objection first made in a motion for new trial is not timely. Switzer v. Shelter Mut. Ins. Co:,
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 new-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,
A!nd I understand, appreciate thal 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 arid a half as we went ' through litigation oh all sorts of things when they had all the information about the capacity 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 |iawait 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 argumént, 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,
|1SVL Estoppel and Laches
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 es-toppel 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 satisfied. 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,
Affirmed.
Notes
. The facility in Arkadelphia where Bennie Jean resided was under previous ownership when she first entered the nursing home in ■ February 2009. The lawsuit also named the prior owner and other related entities as defendants. However, the circuit court subsequently entered an order dismissing those defendants upon "the settlement of the claims against them.
. In Jones, this court held that a notary public has properly taken an acknowledgment when he or she witnesses the signing of an instrument or when the signer subsequently appears before the notary and acknowledges his or her signature on the instrument. In that case, we held that a poy/er of attorney was invalid because it was not properly acknowledged when the notary signed* the certificate before the signer placed his signature oh the document.
Concurrence Opinion
concurring.
My analysis of this case differs from the majority’s in that I would address the doctrine of laches as it pertains to Courtyard Gardens’ argument' that Bennie Jean Quarles lacked the requisite capacity to execute a power of attorney. The Estate preserved its laches defense by raising it in response to Courtyard Gardens’ motion for summary judgment.
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,
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 niother 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 nó valid arbitration agreement. Courtyard Gardens Health & Rehab., LLC v. Quarles,
| sunder the particular circumstances of this case, this constituted an unreasonable delay on the part of Courtyard Gardens. Moreover, during that four-year period, the statute of limitations on the Estate’s claims expired, which easily demonstrates prejudice. See Cochran,
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 issué, I must concur in the result reached by the majority. •
Brill, C.J., and Hart, J., join in this concurrence.