Jack Nelson Jones Professional Association

November 30 - December 6, 2015

Whaley v. Beckham, 2015 Ark. App. 675 (Nov. 18, 2015)

On appeal from the Lonoke County Circuit Court, Honorable Ashley Parker presiding. This guardianship case concerns whether a party may intervene despite being a “stranger to the record.”

This case involves a dispute between the family of Louise Whaley Shepherd and her neighbors, Pam and Don Beckham (the Beckhams), who claim they should be appointed guardians of Shepherd. Janet Kaye Autry, a granddaughter of Shepherd, originally filed a petition for guardianship and was appointed temporary guardian over Shepherd and her estate. However, before a hearing could be held on permanent appointment, the Beckhams were allowed to intervene and were appointed guardians of Shepherd and the First Community Bank of Searcy (the Bank) was appointed guardian of the estate. Autry appealed, and the Court of Appeals reversed because there was no affidavit or testimony by a professional stating Shepherd was in need of a guardian. 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, Timothy Whaley, a grandson of Shepherd, 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. 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 [Shepherd].” A full hearing was held and the circuit court granted the Beckhams’ intervention and reappointed the Beckhams as temporary guardians of Shepherd and the Bank as guardian of her estate. Whaley filed a notice of appeal.

On appeal, the Court explained, pursuant to Arkansas Rule of Civil Procedure 24(c), the Beckhams, as intervenors, were required to state a basis for intervening that complies with Rule 24(b). The reasons provided by the Beckhams were that they were close acquaintances of Shepherd and had known her for 15 years and cared for her for five years, including transporting her to and from her doctor’s appointments. Whaley contended that this is not a protectable interest as set out in Reynolds v. Guardianship of Sears. There, the Arkansas 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. The Court noted that all three requirements must be met.

Whaley argued that a proper plaintiff in an action 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. Whaley questioned how the Beckhams, who have no standing to appear as a party, can have standing to intervene. The Court agreed that that the Beckhams were “strangers to the record” in that their names did 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 Court explained that the sole argument stated in the Beckhams’ motion to intervene and in their petition is that they have consistently taken care of Shepherd and that “they belong with [Shepherd] and them being appointed guardians is in her best interest.” Whaley argued that if the Beckhams have been in charge of taking care of Shepherd, they have done an inadequate job. He introduced pictures of the current condition of Shepherd’s home, which show it in a deteriorating condition. These pictures were reviewed by the circuit 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. After receiving the report, Mr. Kemper, on behalf of the Bank, wrote a letter to the Beckhams saying the repairs were “urgent,” and Shepherd should be moved to a nursing facility while they were being done. Whaley claimed that the care that Shepherd had been receiving from the Beckhams was not in her “best interest.” The Court noted, however, that this evidence goes to the circuit court’s determination of the actual appointment of a guardian rather than the issue of intervention. Whaley next argued that the Beckhams’ mishandling of Shepherd’s personal finances and lack of authority in that regard were further evidence of their lack of interest in the guardianship. Mr. Kemper testified that at the time the Bank took over, there was close to $900,000 in the estate. 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 Shepherd was in a full-time supervisory nursing facility that the Beckhams continued to submit bills from caregivers. Whaley concluded that the Beckhams lacked standing to intervene in this guardianship, as they were neither heirs nor creditors. The Court acknowledged Whaley’s arguments regarding the evidence presented against the Beckhams being the best alternative for the appointment of guardians. The Court noted, however, that under Arkansas law any person may file a petition for the appointment of himself or herself or some other qualified person as guardian of an incapacitated person provided they are a natural person who is a resident of the state, eighteen or more years of age, of sound mind, and not a convicted and unpardoned felon. The Court concluded that this, coupled with the Beckhams’ evidence as to their involvement and interest in the well-being of Shepherd, was sufficient for the Beckhams to intervene. Affirmed.