In re Kelly

Cite as 2016 Ark. App. 520

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-246

IN THE MATTER OF VIRGIE Opinion Delivered NOVEMBER 2, 2016
HAYNES KELLY, AN
INCAPACITATED PERSON APPEAL FROM THE COLUMBIA
COUNTY CIRCUIT COURT
[NO. 14PR-14-125]

HONORABLE DAVID F. GUTHRIE,
JUDGE

APPEAL DISMISSED

DAVID M. GLOVER, Judge

Appellant Virgie Kelly appeals the Columbia County Circuit Court’s denial of her

motion to dismiss guardianships of her person and estate based on Rule 4 of the Arkansas

Rules of Civil Procedure and its denial of her requests to set aside or consider void previous

orders of the trial court appointing guardians of her person.1 On appeal, Kelly argues her

motion to dismiss should have been granted; she further contends the guardianship order, as

initially entered, was not properly supported by expert evidence that she was incompetent or,

at the very least, it far exceeded the type of guardianship necessary. We dismiss this appeal

as moot because of an agreed order entered ten days after the order from which Kelly has

appealed.

1
This order also granted the motion to accept the resignation of John Haynes as
coguardian of Kelly’s person; this is not an issue on appeal.
Cite as 2016 Ark. App. 520

This action began in October 2014 when Kelly’s brother, H.L. Haynes, petitioned for

appointment of a temporary and permanent guardian of her person and estate, alleging each

was necessary due to her medical issues. Haynes attached an affidavit from Kelly’s physician

detailing the medical issues; he asked that he, being Kelly’s only sibling and closest living

relative, be appointed guardian of her person, and that Farmers Bank & Trust be named the

guardian of her estate. The circuit court granted Haynes’s petition, appointing him as guardian

of Kelly’s person and Farmers Bank & Trust as guardian of Kelly’s estate in an order filed

November 17, 2014.2 Thereafter, an order was filed April 13, 2015, granting Haynes’s

request to substitute Brenda Sue Kennedy (Kelly’s niece) and John Haynes (Kelly’s nephew)

as co-guardians of Kelly’s person due to H.L. Haynes’s health problems.

Two weeks later, on April 28, the co-guardians filed a petition to institutionalize Kelly

due to the deterioration of her medical condition. This petition was supported with affidavits

from a trust officer and a trust assistant from the bank; Brenda Sue Kennedy; John Haynes’s

wife, Susan; and Kelly’s physician. An order filed May 7, 2015, granted the petition.

Three weeks later, on May 22, Kelly filed a petition requesting the guardianship be set

aside and a comprehensive neuropsychological evaluation be performed on her. The co-

guardians contested this request. Then, on July 24, 2015, Kelly filed an emergency petition

to have her previous motion heard by the circuit court; in the petition, her attorney also

requested access to her medical records. The co-guardians again contested this petition,

2
Although the order appointing guardians states Kelly was not present for the hearing,
this was an error; the record clearly indicates that she testified at the hearing.

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Cite as 2016 Ark. App. 520

arguing no party with standing brought the petition; the order appointing the guardians for

Kelly was filed in November 2014, from which no appeal was taken; and more than ninety

days had elapsed since the order appointing guardians was entered, and there was no basis

under Rule 60 of the Arkansas Rules of Civil Procedure to set aside the order. In an order

filed August 17, 2015, the circuit court authorized a complete mental evaluation for Kelly and

ordered that Kelly’s counsel be granted access to her medical records. In a petition filed

September 21, 2015, Kelly asserted a neuropsychological evaluation had been performed by

Dr. Bryan Smith; that Dr. Smith was of the opinion there was a mild level of dementia for

which Kelly would need some degree of caregiving support, but Kelly could live at home

with caregiver assistance; that while Kelly would need some degree of assistance and oversight,

she could be involved in making decisions about her finances and other activities; that the

guardianship should be removed or at least limited; that she was being held against her will

in a nursing home, at times behind locked doors; and that she objected to her current

guardians, fearing the purpose behind the guardianship was to control not only her person but

also her estate until her death. The co-guardians responded, objecting to Kelly’s interpretation

of Dr. Smith’s report; denying she was capable of making arrangements for caregiver assistance

or of living at home with caregiver assistance; and denying Kelly was being restrained against

her will. Kelly filed a motion on October 29, 2015, asking that she be released from the

nursing home and be allowed to live in her home with qualified caregivers; the co-guardians

asked that the motion be denied.

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Cite as 2016 Ark. App. 520

On November 13, 2015, Kelly filed a motion to dismiss the guardianships on the basis

that the summons she received at the start of the proceeding provided she had thirty days to

answer the petition, but the guardianship hearing was held only twenty-five days after the

petition was filed and served. Kelly argued that defective service deprived the circuit court of

jurisdiction and required the action to be dismissed. Kelly further asserted that numerous

motions were filed and orders obtained which were not served on her; the petition to

substitute guardians was not served on her; her niece and nephew were prohibited under the

code from being co-guardians, yet they were still appointed; and no hearing had been set on

her motions seeking relief from the commitment-and-guardianship order. The co-guardians

responded, asking that Kelly’s motion to dismiss be denied; they admitted co-guardians of the

person were not permitted to be appointed unless married; and they asserted one of them

would submit a resignation. The co-guardians also pleaded the affirmative defenses of waiver,

laches, estoppel, unclean hands, and setoff. John Haynes immediately petitioned the circuit

court for acceptance of his resignation as co-guardian of the person and for appointment of

a successor guardian.

On November 24, 2015, Barbara Erlandson, another of Kelly’s nieces, sought and was

granted intervention. The circuit court then, on December 7, 2015, entered an order releasing

Kelly from confinement in the nursing home, accepting the resignation of Brenda Sue

Kennedy as guardian of Kelly’s person, and appointing Barbara Erlandson as guardian of

Kelly’s person.

On December 21, 2015, the circuit court denied Kelly’s motion to dismiss and denied

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Cite as 2016 Ark. App. 520

her motion to set aside or consider void the previous orders of the court appointing guardians

of Kelly’s person. It is this December 21 order that is the subject of this appeal. However,

on December 31, 2015, ten days after the trial court had entered the order denying Kelly’s

motion to dismiss and refusing to set aside the previous orders appointing guardians of Kelly’s

person, the parties entered into and filed an agreed order. In this order, the parties agreed to

continue both the guardianships of Kelly’s person and estate, with Barbara Erlandson, Kelly’s

niece, to be substituted as the guardian of Kelly’s person, which Kelly approved; also, the

resignations of both John Haynes and Brenda Sue Kennedy as Kelly’s co-guardians were

approved; and Kelly was to be allowed to return to her home in Erlandson’s care. The agreed

order further provided if Erlandson should leave or become unavailable for her duties, it was

in Kelly’s best interest that she be subject to immediate confinement in a facility that offers

caretaking assistance, and if Erlandson could not discharge her duties as guardian of Kelly’s

person, Brenda Sue Kennedy would be appointed temporary guardian until a hearing could

be held to appoint a substitute guardian. In the agreed order, Farmers Bank & Trust

continued to serve as guardian of Kelly’s estate, but arrangements were made for Kelly and

Erlandson to have access to a portion of the assets for Kelly’s use and benefit. The agreed

order set forth Erlandson’s compensation for serving as guardian of Kelly’s person, as well as

provisions for Erlandson to hire caregivers to give her respite from her duties; it provided

prohibitions that Kelly not be removed from the court’s jurisdiction without prior court

approval other than trips to surrounding areas, that Kelly not be allowed access or use of

firearms or alcohol, and that Kelly not be allowed to drive or renew her driver’s license; and

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the agreed order specified arrangements for Kelly’s medical appointments.

This agreed order was filed ten days after the December 21 order from which Kelly

appeals; the agreed order was not appealed. We note in this order, Kelly agreed to continue

the guardianship of her person and estate, and, more specifically, there is no limiting language

in the agreed order to indicate it was contingent on the success of her appeal of the December

21 order. Because the parties have agreed to continue the guardianship, setting forth specific

parameters for such in the agreed order, we hold Kelly’s appeal is moot and must therefore

be dismissed.

As a general rule, our appellate courts will not review moot issues. State v. First Serv.

Bank of Greenbrier, 2013 Ark. 101. A case becomes moot when any judgment rendered would

have no practical legal effect on a then existing legal controversy. Id. There are two

exceptions to the mootness doctrine, neither of which is applicable here. Id. Thus, because

the parties entered an agreed order after the order from which Kelly brings her appeal, there

is no existing legal controversy, and any decision rendered would merely be advisory, which

we will not do. We therefore dismiss Kelly’s appeal as moot.

Appeal dismissed.

HIXSON and HOOFMAN, JJ., agree.

Crane, Butler & Phillips. P.A., by: Steve R. Crane, for appellant.

Bell & Boyd, PLLC, by: Michael W. Boyd and Karen Talbot Gean, for appellees.

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