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, APPELLANT
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, APPELLEES
[Copyrighted Material Omitted]
FROM THE CLARK COUNTY CIRCUIT COURT. CV-2011-11. HONORABLE
ROBERT MCCALLUM, JUDGE.
& 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.
Rock LLP, by: Mark W. Dossett, Scott Jackson, and Samantha B.
Leflar, for appellees.
HUDSON GOODSON, Associate Justice. BRILL, C.J., DANIELSON and
HART, JJ., concur. PAUL E. DANIELSON, Justice, concurring.
COURTNEY HUDSON GOODSON, Associate Justice
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.
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 malpractice,
and violations of the Arkansas Long-Term Care Residents'
Rights Act. Kenny filed an amended complaint in
that same capacity on May 3, 2011.
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."
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
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.
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 Jean were
nullities because the power of attorney executed in June 2010
was invalid. According to Courtyard Gardens, the power of
attorney was invalid for two reasons. First, based on Bennie
Jean's medical records, and the depositions of Dr. Roda,
Kenny, and Oleater, it argued that Bennie Jean did not
possess the legal capacity to execute the power of attorney.
Courtyard Gardens also claimed that the Estate was barred by
principles of judicial estoppel from contesting Bennie
Jean's incapacity because the Estate had maintained in
previous filings with the circuit court, as well as those
filed with this court on appeal of the arbitration matter,
that Bennie Jean lacked the capacity to delegate authority to
her son to execute the arbitration agreement. Second, citing
Jones v. Owen, 2009 Ark. 505, 342 S.W.3d
265, Courtyard Gardens argued that the
power of attorney had not been properly acknowledged. In
support of these assertions, Courtyard Gardens included as
exhibits Bennie Jean's medical records from April, May,
and June 2010 showing that she suffered from advanced
Alzheimer's disease and Parkinson's disease. An
assessment dated March 16, 2010, reflected a diagnosis of
dementia, and all of the boxes on the form were marked "
no" for the categories of " able to
understand," " able to communicate,"
" memory recall," and " alert and
oriented." Courtyard Gardens also relied on excerpts
from Dr. Roda's deposition to say that Bennie Jean's
dementia rendered her incapacitated during her residency. In
addition, Courtyard Gardens pointed to Kenny's deposition
in which he stated that, when Bennie Jean executed the power
of attorney, he placed the pen in Bennie Jean's hand and
that he held her arm and " helped her arm" sign the
document. Finally, it relied on Oleater's deposition
testimony that she took the signed power of attorney to the
notary public for acknowledgment after Bennie Jean
had purportedly signed the instrument. Courtyard Gardens