Whaley v. Beckham

2015 Ark. App. 675

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-15-196

OPINION DELIVERED NOVEMBER 18, 2015

TIMOTHY WHALEY APPEAL FROM THE LONOKE
APPELLANT COUNTY CIRCUIT COURT
[NO. 43PR-14-390]

V. HONORABLE ASHLEY PARKER,
JUDGE

PAM AND DON BECKHAM SUBSTITUTED OPINION ON THE
APPELLEES GRANT OF THE PETITION OF
REHEARING; AFFIRMED

ROBERT J. GLADWIN, Chief Judge

Appellant Timothy Whaley (“Whaley”) files this one-brief appeal from the February

26, 2015 order entered by the Lonoke County Circuit Court denying his motion to dismiss

appellees Pam and Don Beckham’s (“Beckhams”) petition to intervene, granting the

Beckhams’ intervention, and reappointing the Beckhams as temporary guardians of the

person of Louise Whaley Shepherd a/k/a Louise Whaley (“Ward”) and the First Community

Bank of Searcy (“Bank”) as guardian of the Ward’s estate.1 Whaley’s sole argument on appeal

1
This appeal is related to Autry v. Beckham, 2014 Ark. App. 692, 450 S.W.3d 247, in
which Janet Kaye Autry petitioned for ex parte temporary and permanent guardianship over
her grandmother’s, the Ward’s, person and estate. The Beckhams were neighbors of the
Ward, and they intervened and filed a petition to be appointed as permanent guardians of the
Ward’s person and estate. The Lonoke County Circuit Court appointed the Beckhams as
temporary guardians of the Ward’s person, and the Bank as guardian of her estate. Autry
appealed, and we reversed and remanded, holding that the relevant statute required a
professional evaluation of the Ward, and that without that evaluation, the circuit court had
insufficient evidence to find that a guardian needed to be appointed.
 2015 Ark. App. 675

is that the circuit court erred in allowing the permissive intervention of the Beckhams in this

guardianship case. We affirm.

This case involves a dispute between the family of the Ward and her neighbors, the

Beckhams, who claim they should be appointed temporary and permanent guardians of the

person of the Ward. Janet Kaye Autry, a granddaughter of the Ward, originally filed a

petition to be appointed temporary and then permanent guardian of both the estate and

person of the Ward, and the circuit court made the temporary appointment; however, before

a hearing could be held on the permanent appointment, the Beckhams were allowed to

intervene and, the circuit court appointed them guardians of the person and the Bank as the

guardian of the estate. Autry appealed, citing the following three points:

(1) there had been no testimony by affidavit or in person of a qualified professional
to ascertain whether the Ward was in need of a guardian;

(2) the Beckhams did not have standing to intervene under the provisions of Rule
24(b) of the Arkansas Rules of Civil Procedure; and

(3) the circuit court should have given preference to the family member, all things
being equal.

This court reversed the case based upon the lack of an affidavit or other testimony of

a professional, and did not reach the other issues. See Autry, supra. The Beckhams filed a

motion for reconsideration, which was denied, and the court’s mandate came down on

January 14, 2015.

In the meantime, on December 10, 2014, Whaley, a grandson of the Ward, filed a

petition to be appointed temporary guardian and then permanent guardian. On January 20,

2015, after the mandate was entered, Whaley filed an amended petition adding another

2
 2015 Ark. App. 675

grandson to the list of persons to be notified. On January 27, 2015, prior to the circuit court

taking action on either petition, the Beckhams filed another petition to intervene and for

appointment as guardians. Both the motion and the petition, as required, stated their reason

for intervention as . . . they have “consistently taken care of [the Ward].”

A full hearing was held on January 29, 2015, including a motion to dismiss the

Beckhams’ motion to intervene. From the bench, the circuit court denied Whaley’s motion

to dismiss the Beckhams’ petition, granted the Beckhams’ intervention, and reappointed the

Beckhams as temporary guardians of the Ward’s person and the Bank as guardian of the

Ward’s estate. The order was entered of record on February 26, 2015. Whaley filed a timely

notice of appeal by fax on the same day, and a hard copy was filed the following day,

February 27, 2015.

The Arkansas Supreme Court held in Duffield v. Benton County Stone Co., Inc., 369

Ark. 314, 254 S.W.3d 726 (2007), that an order granting permissive intervention, but

denying intervention as a matter of right, is not immediately appealable. However, Arkansas

Rule of Appellate Procedure–Civil (2)(a)(12) (2014) provides that an appeal may be taken

from “[a]n order appealable pursuant to any statute in effect on July 1,1979, including . . .

§ 28-1-116[.]” Arkansas Code Annotated section 28-1-116(a) (Repl. 2012) provides,

“Except, as provided in subsection (b) of this section, a person aggrieved by an order of the

circuit court in probate proceedings under the provisions of the Probate Code may obtain

a review of the order by the Supreme Court or the Court of Appeals.” Subsection (b) lists

two exceptions—(1) removing a fiduciary for failure to give a new bond or to render an

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 2015 Ark. App. 675

account as required by the court, or (2) appointing a special administrator—neither of which

has any application in this case. Subsection (c)(1) provides for a stay of appeal; however,

subsection (c)(2) specifically provides that guardianships will not be stayed during an appeal.

Arkansas Code Annotated section 28-65-218(i) (Repl. 2012) governs temporary

guardianships and provides, “In other respects, the provisions of this chapter concerning

guardians shall apply to temporary guardians, and an appeal may be taken from the order of

appointment of a temporary guardian.”

Our court rules and the relevant statutes clearly provide that all probate orders, but

for the two exceptions not applicable here, are appealable. Further, there is no distinction

made between temporary and permanent guardianships; guardianships will not be stayed on

appeal; and appeals may be taken from an order of appointment of a temporary guardian.

Therefore, we hold that we have jurisdiction to hear Whaley’s appeal.

Guardianship proceedings are reviewed de novo, but the appellate courts will not

reverse a guardianship decision unless it is clearly erroneous. Sherland v. Sherland, 2015 Ark.

App. 342, 465 S.W.3d 3. Arkansas Code Annotated section 28-65-205(a) (Repl. 2012)

provides, “Any person may file a petition for the appointment of himself or herself or some

other qualified person [pursuant to section 28-65-203 (Supp. 2013)] as guardian of an

incapacitated person.” Section 28-65-203(a) provides that a natural person who is a resident

of this state, eighteen or more years of age, of sound mind, not a convicted and unpardoned

felon, is qualified.

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 2015 Ark. App. 675

The standard of review in permissive intervention under Rule 24(b) is an abuse of

discretion by the court. Mann v. Ark. Dep’t of Human Servs., 2012 Ark. App. 352, 415

S.W.3d 45. Abuse of discretion is described as “discretion improvidently exercised, i.e.,

exercised thoughtlessly and without due consideration.” Delgado v. Delgado, 2012 Ark. App.

100, at 6, 389 S.W.3d 52, 57.

The majority of appeals decided in Arkansas on this issue have been decided on the

issue of intervention by right pursuant to Rule 24(a) of the Arkansas Rules of Civil

Procedure, but this appeal involves the circuit court allowing what Whaley defines as

“stranger[s] to the record” to intervene in a guardianship proceeding. According to Rule

24(c), the Beckhams, as intervenors, were required to state a basis for intervening that

complies with Rule 24(b). The reasons provided were that “the intervenors are close

acquaintances of the incapacitated person and have known [the Ward] for 15 years and . . .

have cared for [the Ward] for five years, including transporting her to and from her doctor’s

appointments.”

Whaley contends that this is not a protectable interest as set out in Reynolds v.

Guardianship of Sears, 327 Ark. 770, 940 S.W.2d 483 (1997). There, our supreme court held

that a nonparty may enter into a lawsuit under Rule 24 if he has a “protectable interest in the

outcome” by proving the following three things:

(1) that he has a recognized interest in the subject matter of the primary action—here
being named guardian;

(2) that his interest might be impaired by the disposition of the suit; and

(3) his interest is not protected by existing parties.

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 2015 Ark. App. 675

The court has held that all three requirements must be met. See Ark. Democrat-Gazette v.

Brantley, 359 Ark. 75, 194 S.W.3d 748 (2004). The circuit court here, despite a request,

provided no findings of fact and conclusions of law, especially addressing nonfamily members

seeking intervention, being allowed to intervene, and being named guardians, specifically

when there were family members who requested and were qualified to serve.

Whaley cites David Newbern, Arkansas Civil Practice and Procedure § 5-15, at 61–62 (2d

ed. 1993), regarding the requirements for standing to appear as a party:

To be a proper plaintiff in an action, one must have an interest which has been
adversely affected or rights which have been invaded. Courts will not allow suit by
one who is a “stranger to the record” or for the purpose of vindicating an abstract
principle of justice.

He questions how the Beckhams, who have no standing to appear as a party, can have

standing to intervene. It is uncontested that the Beckhams are “strangers to the record” in

that their names do not appear on any pleading or any document claiming any present

interest that has been adversely affected or any rights which have been invaded. The sole

argument stated in their motion to intervene and in their petition is that they have

consistently taken care of the Ward and that “they belong with [the Ward] and them being

appointed guardians is in her best interest.”

Whaley argues that if the Beckhams have been in charge of consistently taking care

the Ward, they have done an inadequate job. At the hearing, Whaley introduced numerous

pictures of the current condition of her home, which show it in a deteriorating condition,

such as sagging floors, overflowing sewer lines, dirty dishes in the sink, the carport roof

falling in, and wheelchair ramps falling apart. These pictures were reviewed by the circuit

6
 2015 Ark. App. 675

court when it examined Mr. Daniel Kemper, a trust officer for the Bank, and the

photographic evidence was corroborated by the photographs included as part of an

inspection by a licensed home inspector ordered by the Bank after the hearing, and included

in this record. After receiving the report, Mr. Kemper, on behalf of the Bank, wrote a letter

to the Beckhams saying the repairs were “urgent,” and the Ward should be moved to a

nursing facility while they were being done.2 Whaley claims that the care that the Ward has

been receiving from the Beckhams is not in her “best interest.” This evidence goes to the

circuit court’s determination of the actual appointment of a guardian rather than the issue of

intervention.

Whaley next argues that the Beckhams’ mishandling of the Ward’s personal finances

and lack of authority in that regard are further evidence of their lack of interest in the

guardianship. At the hearing on January 29, 2015, Mr. Kemper testified that at the time the

Bank took over, there was close to $900,000 in the estate, consisting primarily of liquid

assets. He also testified that the Bank had paid $89,500 to caregivers hired by the Beckhams

since March 2014 until the present. When asked if the Bank had inquired of the circuit court

about the amount of payments, Mr. Kemper replied that the circuit court found and entered

an order that the Bank could not challenge any bill presented by the Beckhams. Mr. Kemper

also testified that there were times when the Ward was in a full-time supervisory nursing

facility that the Beckhams continued to submit bills from caregivers.

2
As of March 21, 2015, the Ward was still living in the home.

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 2015 Ark. App. 675

Whaley concludes that the Beckhams lacked standing to intervene in this

guardianship, as they were neither heirs nor creditors. He argues that the circuit court abused

its discretion when it dismissed his argument out of hand with no opportunity for him to try

the issue of intervention on the law and the facts and based only on the motion of the

Beckhams. We disagree. Despite Whaley’s arguments regarding the evidence presented

against the Beckhams being the best alternatives for the appointment as guardians, we hold

that he failed to demonstrate an abuse of discretion as to the specifically appealed issue of

intervention. Pursuant to the rationale of section 28-65-205(a), coupled with the Beckhams’

evidence as to their involvement and interest in the well-being of the Ward, we hold that

the circuit court did not abuse its discretion in granting their petition to intervene in a

guardianship proceeding.

Affirmed.

VIRDEN , HARRISON , KINARD, and GLOVER , JJ., agree.

BROWN , J., dissents.

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 2015 Ark. App. 675

WAYMOND M. BROWN, Judge, dissenting. I respectfully disagree with the

majority’s conclusion that Whaley’s appeal was from a probate order. For the following

reasons, I dissent.

Whaley’s February 27, 2015 notice of appeal states that he is appealing the judgment

that denied his motion to dismiss the Beckhams’ motion to intervene. He makes no mention

in his brief of the denial of his, nor the grant of the Beckhams’, petition for temporary

guardianship in his notice of appeal, arguing instead that the court should have granted his

motion to dismiss the Beckhams’ motion to intervene because the Beckhams were “strangers

to the record.” Accordingly, he is appealing the court’s decision on the motion to intervene

alone.1

A motion to intervene is a creature of the Arkansas Rules of Civil Procedure. A

review of caselaw discloses no other case in which this court has heard an appeal involving

a motion to intervene on a permissive basis alone, pursuant to Arkansas Rule of Civil

Procedure 24(b), without also hearing the merits on the underlying issue. I have found no

caselaw on any subject matter where this court has heard an appeal of a circuit court’s

intervention decision, when not of right, without there being any other issue before it.

I agree with the majority’s cited authority—caselaw and statutes—regarding

temporary guardianships and the ability to appeal them. Arkansas Code Annotated section

28-1-116(a) states that an aggrieved person may appeal a probate order. Arkansas Code

1
Though Whaley is appealing his motion to dismiss, said motion was specifically
dealing with the court’s decision on the Beckhams’ motion to intervene. Whaley is
essentially arguing that the Beckhams’ motion to intervene, as permissive intervenors, should
have been denied.
 2015 Ark. App. 675

Annotated section 28-65-218(i) states that an appeal may be taken from the order of

appointment of a temporary guardian. An order deciding a temporary guardianship is a

probate order.2 However, Whaley does not appeal from the denial of his temporary

guardianship. He appeals only the circuit court’s denial of his motion to dismiss the

Beckhams’ motion to intervene. Therein lies my issue: whether Whaley’s appeal can be

heard pursuant to Arkansas Code Annotated sections 28-1-116(a) and 28-65-218(i) when

he is not appealing the subject of those statutes combined—a probate order deciding a

temporary guardianship matter.

The majority opinion appears to state that because the motion to intervene occurred

in a matter involving a temporary guardianship, which is itself appealable, any underlying

order therein is also appealable. I do not agree. This court has yet to hear, alone, an appeal

of a circuit court’s disposition on a motion to intervene. My reasonable reading of Arkansas

Code Annotated sections 28-1-116(a) and 28-65-218(i) is that Whaley was required to

appeal the circuit court’s decision on temporary guardianship for those statutes to apply.

Because he failed to do so, appealing only the decision on the motion to dismiss the motion

to intervene, any authority to hear this appeal comes from the Arkansas Rules of Appellate

Procedure –Civil and not the above-referenced statutes. Accordingly, I restate the analysis

in my original opinion.

Subject to a few exceptions not applicable in this case, Rule 2(a) of the Arkansas

Rules of Appellate Procedure –Civil provides that this court only has jurisdiction to review

2
See Hicks v. Faith, 2011 Ark. App. 330, 384 S.W.3d 17; Moore v. Sipes, 85 Ark.
App. 15, 146 S.W.3d 903 (2004).
 2015 Ark. App. 675

cases where a final order has been entered.3 Whether an order is final and appealable is a

matter going to our jurisdiction; jurisdiction is an issue that we are obligated to raise on our

own motion.4 An order is final if it dismisses the parties from the court, discharges them

from the action, or concludes their rights to the subject matter in controversy. 5 The order

must put the judge’s directive into execution, ending the litigation, or a separable branch of

it.6

The circuit court’s February 26, 2015 order denying appellant’s motion to dismiss is

not severable from the remainder of the case. Furthermore, while it permitted the Beckhams

to intervene, it did not discharge appellant from the action.

Because the circuit court’s order did not prevent appellant from further arguing the

underlying issue and left the underlying issue to be addressed at a later date, the circuit

court’s order was not a final, appealable order. Accordingly, I conclude that this court has

no authority to hear this matter. Because this court lacks jurisdiction to hear this matter, it

should be dismissed.

Francis Morris Finley, for appellant.

No response.

3
Ark. R. App. P.–Civ. 2(a).
4
Dobbs v. Dobbs, 99 Ark. App. 156, 157, 258 S.W.3d 414, 415 (2007) (citing Capitol
Life & Acc. Ins. Co. v. Phelps, 72 Ark. App. 464, 37 S.W.3d 692 (2001)).
5
Ark. Dep’t of Human Servs. v. J.N., 96 Ark. App. 319, 323, 241 S.W.3d 293, 296
(2006) (citing Daniel v. State, 64 Ark. App. 98, 983 S.W.2d 146 (1998)).
6
Id.