PROGRESSIVE ELDERCARE SERVICES-SALINE, INC., d/b/a HEARTLAND REHABILITATION AND CARE CENTER APPELLANT
TERRY CAUFFIEL, AS ADMINISTRATOR OF THE ESTATE OF CAROLYN SUE CAUFFIEL, AND ON BEHALF OF THE WRONGFUL-DEATH BENEFICIARIES OF CAROLYN SUE CAUFFIEL APPELLEE
FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63-CV-13-355-2]
HONORABLE GARY ARNOLD, JUDGE
Rock LLP, by: Mark W. Dossett and Jeff Fletcher, for
Reddick Moss, PLLC, by: Brian D. Reddick, Robert W. Francis,
and Matthew D. Swindle, for appellee.
D. VAUGHT, Judge
Eldercare Services-Saline, Inc., d/b/a Heartland
Rehabilitation and Care Center (Progressive), appeals from
the denial of its motion for summary judgment based on the
affirmative defense of charitable immunity. We affirm.
Sue Cauffiel was a resident of Progressive from February 29,
2012, to July 22, 2012, and passed away on July 25, 2012. On
June 14, 2013, Terry Cauffiel, Carolyn's son, as
administrator of her estate and on behalf of her
wrongful-death beneficiaries, filed a complaint in the Saline
County Circuit Court against Progressive and a number of
other defendants. The complaint alleged that the defendants
had "failed to discharge their obligation of care to
Carolyn Sue Cauffiel with a conscious disregard for her
rights and safety, " which culminated in Carolyn
suffering multiple injuries and ultimately death. The
complaint alleged numerous causes of actions, including
negligence and medical malpractice.
answered the complaint and subsequently moved for summary
judgment seeking charitable immunity. Cauffiel responded and
argued that not only was Progressive not entitled to
charitable immunity, it was abusing the charitable form to
avoid liability. After a hearing, the circuit court denied
Progressive's motion for summary judgment, explaining
that "I do think there are material issues of fact. The
foremost one is the argument that [Progressive] is simply a
shell that's abusing its appearance of being a charitable
immunity [sic] when in fact it should not be entitled to
that." Progressive has appealed the circuit court's
denial of summary judgment.
general rule, the denial of a motion for summary judgment is
neither reviewable nor appealable. Ark. Elder Outreach of
Little Rock, Inc. v. Thompson, 2012 Ark.App. 681, at 4,
425 S.W.3d 779, 783. The general rule does not apply,
however, where the refusal to grant a summary-judgment motion
has the effect of determining that the appellant is not
entitled to its defense of immunity from suit, because the
right of immunity from suit is effectively lost if a case is
permitted to go to trial. Id., 425 S.W.3d at 783.
This case is, therefore, appealable.
standard of review for summary judgment is well settled:
Summary judgment is to be granted by a trial court only when
it is clear that there are no genuine issues of material fact
to be litigated and the moving party is entitled to judgment
as a matter of law. Once a moving party has established a
prima facie entitlement to summary judgment, the opposing
party must meet proof with proof and demonstrate the
existence of a material issue of fact. After reviewing
undisputed facts, summary judgment should be denied if, under
the evidence, reasonable minds might reach different
conclusions from those undisputed facts. On appeal, we
determine if summary judgment was appropriate based on
whether the evidentiary items presented by the moving party
in support of its motion leave a material question of fact
unanswered. This court views the evidence in a light most
favorable to the party against whom the motion was filed,
resolving all doubts and inferences against the moving party.
Our review is not limited to the pleadings, as we also focus
on the affidavits and other documents filed by the parties.
Jackson v. Sparks Reg'l Med. Ctr., 375 Ark. 533,
539, 294 S.W.3d 1, 4-5 (2009) (citations omitted). The object
of summary-judgment proceedings is not to try the issues but
to determine whether there are any issues to be tried, and if
there is any doubt whatsoever, the motion should be denied.
Flentje v. First Nat'l Bank of Wynne, 340 Ark.
563, 569-70, 11 S.W.3d 531, 536 (2000).
essence of the charitable-immunity doctrine is that entities
created and maintained exclusively for charity may not have
their assets diminished by execution in favor of one injured
by acts of persons charged with duties under the entity.
George v. Jefferson Hosp. Ass'n, 337 Ark. 206,
211, 987 S.W.2d 710, 712 (1999). Because the doctrine favors
charities and results in a limitation of potentially
responsible persons whom an injured party may sue, we give
the doctrine a very narrow construction. Thompson,
2012 Ark.App. 681, at 6, 425 S.W.3d at 783-84. The burden of
pleading and proving this affirmative defense is on the party
asserting it. Id., 425 S.W.3d at 784. The issue of
whether a party is immune from suit is purely a question of
law and is reviewed de novo. Id. at 5, 425 S.W.3d at
determining whether a corporation is entitled to charitable
immunity, Arkansas courts consider eight factors:
(1) whether the organization's charter limits it to
charitable or eleemosynary purposes; (2) whether the
organization's charter contains a
"not-for-profit" limitation; (3) whether the
organization's goal is to break even; (4) whether the
organization earned a profit; (5) whether any profit or
surplus must be used for charitable or eleemosynary purposes;
(6) whether the organization depends on contributions and
donations for its existence; (7) whether the organization
provides its services free of charge to those unable to pay;
and (8) whether the directors and officers receive
Masterson v. Stambuck, 321 Ark. 391, 401, 902 S.W.2d
803, 809 (1995). Whether the charitable-entity form has been
abused is a "pivotal issue" in determining a
defendant's entitlement to charitable immunity.
Watkins v. Ark. Elder Outreach of Little Rock, Inc.,
2012 Ark.App. 301, at 12, 420 S.W.3d 477, 484. These factors are illustrative, not
exhaustive, and no one factor is dispositive.
Masterson, 321 Ark. at 401, 902 S.W.2d at 810.
Questions of fact may arise when determining whether the
charitable form has been abused, i.e., issues surrounding the
reasonableness of the organization's expenses and the