The opinion
Cite as 2020 Ark. App. 311
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and integrity of this document ARKANSAS COURT OF APPEALS
Date: 2021-06-23 10:47:40
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9.7.5 DIVISION IV
No. CV-19-689
IN THE MATTER OF THE
Opinion Delivered: May 13, 2020
GUARDIANSHIP OF KATHRYN
GRACE KENNEDY, AN
INCAPACITATED PERSON APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
DAN KROTZER SMITH DISTRICT
APPELLANT [NO. 66FPR-18-613]
V. HONORABLE SHANNON L. BLATT,
JUDGE
ESTHER JULIANNE MCDANIEL
APPELLEE AFFIRMED
MIKE MURPHY, Judge
This case arises from the guardianship of Kathryn Kennedy. Appellant Dan Krotzer
appeals from the Sebastian County Circuit Court’s order denying his motion to intervene
and from the order granting guardianship in favor of appellee Esther Julianne McDaniel,
Kennedy’s mother. Krotzer raises eight points for our review. Because Krotzer lacks standing
to challenge the guardianship order, we need address only three of his arguments. He argues
that the court erred in denying his intervention as a matter of right. Alternatively, he argues
that the court erred in denying him permissive intervention. He further argues that appellee
either waived, or should be estopped from objecting to, his intervention. We affirm.
A civil-commitment hearing was conducted on November 19, 2018. Cindy Moore,
the nurse manager for the Sebastian County Detention Center, testified that thirty-five-
year-old Kennedy was currently incarcerated, but due to her unstable behavior, she needed
to be in a better support network. Finding that Kennedy was a danger to herself and others,
the court committed her to Valley Behavior Health System. In response to Kennedy’s
involuntary commitment, McDaniel filed an emergency ex parte petition seeking
guardianship of Kennedy and her estate, which the court granted. A hearing was held on
December 4, wherein the court granted McDaniel temporary guardianship.
On December 10, Krotzer filed a petition seeking to be appointed guardian of
Kennedy as “a next friend of the incapacitated person.” On February 11, 2019, Krotzer
filed a motion to intervene with an amended petition for substitution of guardian attached
and incorporated. The motion asserted that McDaniel was unfit to serve as guardian due to
her own instability and inability to care for Kennedy. McDaniel responded, objecting to the
intervention and denying the allegations. Kennedy also responded and objected to the
intervention by noting that the tension between the parties would inhibit her recovery and
that she wanted the matter to proceed in the least contentious way possible.
A hearing on the motion was held on May 2. At the hearing, Krotzer testified that
he has known Kennedy for approximately six years. He explained that McDaniel worked
for him and his wife, and McDaniel would bring Kennedy to the office because McDaniel
did not have a day facility for Kennedy. Krotzer testified that eventually Kennedy came to
work at his farm and that he would provide meals, laundry, and transportation for her. He
testified that at one point, she lived with him and his wife for a period of several months.
He said he developed a parent-like relationship with Kennedy and that she asked that if
something were to happen that he not let her fall back into McDaniel’s control. Krotzer
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testified that he did not have any financial or real estate interests tied up with Kennedy and
that his interest was in protecting her. After taking the testimony, the court denied his
intervention.
On May 14, the afternoon before the scheduled guardianship hearing, Krotzer filed
a motion for reconsideration. At the outset of the hearing, the court said it would not address
the motion because McDaniel and Kennedy did not have time to respond. The court
excluded Krotzer from the courtroom but allowed his counsel to remain present.
McDaniel testified that since the temporary guardianship was granted, Kennedy had
been receiving treatment at Ozark Guidance, and she enrolled Kennedy in an intensive
outpatient treatment. McDaniel testified that she had been attending weekly counseling
sessions with Kennedy. Next, Kennedy testified that she felt her mother would be an
appropriate guardian for her at the time. Lastly, Krotzer’s counsel requested that Krotzer be
permitted to testify. While the court allowed Krotzer’s attorney to participate in cross-
examination, it denied Krotzer’s request to testify. Following the hearing, the court granted
permanent guardianship of Kennedy to McDaniel. Krotzer now timely appeals.
We review probate proceedings de novo, but we will not reverse a finding of fact by
the circuit court unless it is clearly erroneous. In re Guardianship of Helton, 2020 Ark. App.
132, at 4–5, 594 S.W.3d 903, 905. A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court is left with a definite and firm conviction that a
mistake has been made. Id. When reviewing the proceedings, we give due regard to
the opportunity and superior position of the circuit court to determine the credibility of the
witnesses. Id.
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There are two means by which a nonparty may intervene in a lawsuit: as
a matter of right and by permission. The former cannot be denied, but the latter is
discretionary, the denial of which will be reversed only if that discretion is abused. Burt v.
Ark. Dep’t of Health & Human Servs., 99 Ark. App. 402, 404, 261 S.W.3d 468, 470 (2007).
Ark. R. Civ. P. 24(a) governs intervention as a matter of right providing,
(a) Intervention of Right. Upon timely application anyone shall be permitted
to intervene in an action: (1) when a statute of this state confers an unconditional
right to intervene; or (2) when the applicant claims an interest relating to the property
or transaction which is the subject of the action and he is so situated that the
disposition of the action may as a practical matter impair or impede his ability to
protect that interest, unless the applicant’s interest is adequately represented by
existing parties.
Krotzer contends he is entitled to intervene under both subsection (a)(1) and (a)(2).
Regarding (a)(1), he cites Arkansas Code Annotated section 28-65-205 as the statute
conferring his right to intervene. That statute provides in pertinent part that “[a]ny person
may file a petition for the appointment of himself or herself or some other qualified person
as guardian of an incapacitated person.” The statute further provides the petition shall state
“the reasons why the appointment of a guardian is sought and the interest of the petitioner
in the appointment.” Krotzer claims he has an interest as “a next friend” and that he
established a meaningful relationship with Kennedy sufficient to warrant his intervention.
He asserts that considering this relationship, Arkansas Code Annotated section 28-65-205
would allow him to file his own independent action seeking guardianship of Kennedy and
then seek consolidation with this action.
As written, Arkansas Code Annotated section 28-65-205 states that “[a]ny person
may file a petition.” Ark. Code Ann. § 28-65-205 (emphasis added). Arkansas Code
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Annotated section 28-65-201 provides that “[a] guardian of the estate may be appointed for
any incapacitated person.” Ark. Code Ann. § 28-65-201 (emphasis added). The word
“may” is usually employed as implying permissive or discretional, rather than mandatory,
action or conduct and is construed in a permissive sense unless necessary to give effect to an
intent to which it is used. Schueller v. Schueller, 86 Ark. App. 347, 353, 185 S.W.3d 107, 111
(2004). Thus, the statute Krotzer relies on does not confer an unconditional right to
intervene because it is discretionary.
Krotzer likewise argues that he should have been permitted to intervene as a matter
of right pursuant to Arkansas Rule of Civil Procedure 24(a)(2). In order to intervene under
Rule 24(a)(2), the party must prove that (1) he has a recognized interest in the subject matter
of the primary litigation, (2) his interests might be impaired by the disposition of the suit,
and (3) his interest is not adequately represented by existing parties. Ark. Democrat-Gazette,
Inc. v. Brantley, 359 Ark. 75, at 77–78, 194 S.W.3d 748, 750. If all three requirements are
satisfied, the court must allow the party to intervene. Id.
Krotzer relies on Whaley v. Beckham, 2016 Ark. 196, 492 S.W.3d 65, to support his
position that he has a recognized interest in Kennedy and that he should have been permitted
to intervene as a matter of right. In Whaley, the supreme court affirmed a circuit court’s
finding that unrelated neighbors had a sufficient interest in a guardianship proceeding to
intervene despite the ward’s grandson’s contesting the intervention and appointment. To
support its holding, the court noted that the neighbors had cared for the ward for five years;
previously been appointed as the ward’s permanent guardians in related proceedings before
that judgment was reversed; called the ward “mom” for fifteen or sixteen years; previously
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maintained a health proxy for the ward; cared for the ward after her various surgeries; and
managed the ward’s meals, medications, bathing, and transportation.
Here, Krotzer analogizes his position to the unrelated neighbors, arguing he
established a meaningful relationship with Kennedy sufficient to warrant intervention.
Krotzer testified that he maintained a friendship with Kennedy for several years and acted
as a mentor to her. However, under this point of appeal, Whaley is distinguishable because
it addressed the narrow issue of permissive intervention that had been granted. Whaley, 2016
Ark. 196, at 7, 492 S.W.3d at 69.
Krotzer has also failed to establish that his interest in Kennedy’s well-being was not
adequately represented by McDaniel. While Krozter expressed concerns about McDaniel’s
behavior towards Kennedy, we give due regard to the opportunity and superior position of
the circuit court to determine the credibility of the witnesses. In re Guardianship of Helton,
2020 Ark. App. 132, at 4–5, 594 S.W.3d at 905. Because Krotzer fails to meet the
requirements under Arkansas Rule of Civil Procedure 24(a)(2), the court did not commit
reversible error by denying Krotzer’s intervention as a matter of right.
Alternatively, Krotzer argues he should have been permitted to intervene under
Arkansas Rule of Civil Procedure 24(b). Permissive intervention is governed by the
following standard:
(b) Permissive Intervention. Upon timely application anyone may be permitted
to intervene in an action: (1) when a statute of this state confers a conditional right
to intervene; or (2) when an applicant’s claim or defense and the main action have a
question of law or fact in common. When a party to an action relies for ground of
claim or defense upon any statute or executive order administered by a federal or
state governmental officer or agency or upon any regulation, order, requirement or
agreement issued or made pursuant to the statute or executive order, the officer or
agency upon timely application may be permitted to intervene in the action. In
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exercising its discretion, the court shall consider whether the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties.
Ark. R. Civ. P. 24(b).
To begin, the court did not abuse its discretion in appointing McDaniel as guardian.
McDaniel was appointed temporary guardian before Krotzer petitioned the court seeking
to be appointed guardian. The court’s selection of McDaniel tracked the guardianship order-
of-preference statute that confers a preference for appointment as guardian on persons
having a “relationship by blood or marriage to the person for whom guardianship is
sought.” Ark. Code Ann. § 28-65-204(b)(4). Further, the appointment was appropriate
because it is consistent with Arkansas Code Annotated section 28-65-204(c), which requires
the court to consider any request made by the incapacitated person concerning her guardian
preference. Not only did Kennedy respond to Krotzer’s motion objecting to his
intervention, she also testified she preferred McDaniel be appointed. Additionally, after the
court ruled that Krotzer not be permitted in the courtroom during the permanent
guardianship hearing, it stated the following observation.
Looks like your client just took a big sigh of relief, Mr. Ray, upon Mr. Krotzer
leaving the courtroom—and she is—I know the record can’t always reflect what the
Court sees, but as he was leaving the courtroom, your client took a deep breath and
is actually smiling probably for the first time since I’ve seen her in this courtroom
and court proceedings. So I think that’s important to note.
Krotzer maintains that his interest in Kennedy is based on his friendship and a
mentor-like relationship with her. He again analogizes his situation to the neighbors in
Whaley and argues that his friendship with Kennedy is a recognized, protected interest. The
holding in Whaley turned on the specific facts in the record and is distinguishable from
Krotzer’s situation and relationship with Kennedy. Here, the evidence established that
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Krotzer has a general interest in Kennedy’s wellbeing; however, his involvement with her
was not as extensive as he was never a former caretaker, had never been her guardian, and
never maintained a healthcare proxy for her. Further, we find it significant that the circuit
court gave due regard to appointing a blood relative and to Kennedy’s preference. Under
these facts, the circuit court did not abuse its discretion in denying Krotzer’s motion to
intervene.
Krotzer argues that McDaniel waived or should be estopped from asserting any
argument that he should not be permitted to intervene because McDaniel consented to his
participation in the case for several months. To support this argument, Krotzer contends
that his original petition should have been viewed as a motion to intervene. We disagree.
The proper procedural method for a nonparty to enter a probate proceeding is by
filing a motion to intervene pursuant to Arkansas Rule of Civil Procedure 24. See Reynolds
v. Guardianship of Sears, 327 Ark. 770, 771, 940 S.W.2d 483, 484 (1997); see also Whaley,
2016 Ark. 196, at 5, 492 S.W.3d at 68. Once Krotzer filed his motion to intervene, both
McDaniel and Kennedy objected to his intervention. Further, nothing dispositive was
handled in the two months that Krotzer contends he was permitted to participate before his
formal motion to intervene was filed. Thus, his waiver and estoppel arguments are without
merit.
Lastly, Krotzer makes several arguments to support his contention that the court erred
in granting a guardianship in favor of McDaniel. In Reynolds, 327 Ark. 770, 940 S.W.2d
483, the appellant, the ward’s attorney, sought to intervene in a guardianship case filed by a
blood relative. The Reynolds court affirmed the circuit court’s finding that the appellant had
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no interest in the guardianship and thus was considered a nonparty. The supreme court
further affirmed the circuit court’s finding that the appellant lacked standing to challenge
venue in a responsive pleading pursuant to Arkansas Rule of Civil Procedure 12. Our
supreme court held that because the appellant was a nonparty to the proceeding, he lacked
standing to challenge the proceeding. Reynolds, 327 Ark. at 776, 940 S.W.2d at 486.
Similarly, here, by affirming the circuit court’s finding that Krotzer was not permitted
to intervene, he is considered a nonparty. Krotzer accordingly lacks standing to challenge
the court’s appointment of McDaniel as Kennedy’s guardian.
Affirmed.
ABRAMSON and KLAPPENBACH, JJ., agree.
Taylor Law Partners, LLP, by: Nick Mote and Rick Woods, for appellant.
Wayne Williams Law Office, PLLC, by: Wayne Williams, for appellee.
Caddell Reynolds, P.A., by: Blake A. Ray, for Kathryn Kennedy.
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