The opinion
Cite as 2022 Ark. App. 239
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-20-77
CAMDEN PROGESSIVE ELDERCARE
SERVICES, INC., D/B/A OUACHITA Opinion Delivered May 18, 2022
NURSING AND REHABILITATION
CENTER APPEAL FROM THE OUACHITA
APPELLANT COUNTY CIRCUIT COURT
[NO. 52CV-17-158]
V.
HONORABLE DAVID F. GUTHRIE,
JUDGE
SHEILA WHITNEY, AS PERSONAL
REPRESENTATIVE OF THE ESTATE REVERSED AND REMANDED
OF LILLIE WHITNEY, AND ON
BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF LILLIE WHITNEY
APPELLEE
KENNETH S. HIXSON, Judge
This is an appeal from an order denying summary judgment on charitable immunity
in a nursing-home-negligence case.1 The appellee, the estate of Lillie Whitney2 (Whitney),
filed a lawsuit against appellant, Camden Progressive Eldercare Services, Inc., d/b/a
1
As a general rule, the denial of a summary-judgment motion is neither reviewable
nor appealable. Ark. Elder Outreach of Little Rock, Inc. v. Thompson, 2012 Ark. App. 681, 425
S.W.3d 779. 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. Therefore, the order denying summary judgment is appealable.
2
Sheila Whitney, as personal representative of the estate of Lillie Whitney, and on
behalf of the wrongful death beneficiaries of Lillie Whitney.
Ouachita Nursing and Rehabilitation Center (Camden PES), alleging negligence, medical
malpractice, breach of admission agreement, breach of provider agreement, and violations
of the Arkansas Deceptive Trade Practices Act. Camden PES filed a motion for summary
judgment, arguing that it was entitled to charitable immunity. The trial court denied the
motion for summary judgment, finding that there were issues of material fact as to whether
Camden PES was entitled to charitable immunity. Camden PES appealed. We hold that
the trial court erred in finding that issues of material fact existed, and we reverse and remand
for the trial court to decide whether Camden PES is entitled to charitable immunity on the
undisputed facts.
Facts and Procedural History
Lillie Whitney was a resident of Camden PES from June 1, 2015, until August 16,
2016, and she passed away on August 18, 2016. After Lillie’s death, her daughter was
appointed as personal representative of Lillie’s estate and sued Camden PES and numerous
other entities for negligence and other causes of action related to Lillie’s care and treatment
while living at Camden PES.3
3
The others sued include Southern Administrative Services, LLC (the facility’s
administrative services company); Care Plus Staffing , LLC (which provides staffing services
and employs the nursing staff at the facility); ProCare Therapy Services, LLC (the facility’s
physical- and occupational-therapy provider); Professional Nursing Solutions, LLC (which
provides nurse-consultant services to the facility); Ponthie Holdings, LLC; JEJ Investments,
LLC; John Ponthie; Ross Ponthie; Mark Thompson; and Angela Marlar, in her capacity as
Administrator of Ouachita Nursing and Rehabilitation Center.
2
Camden PES is incorporated under the Arkansas Nonprofit Corporation Act and
operates a nursing home doing business as Ouachita Nursing and Rehabilitation Center.
Camden PES’s articles of incorporation state that the corporation “embraces the culture
change model of care and will foster the statewide development of person-centered care in
long-term care facilities to ensure elders attain or maintain their highest practicable level of
well-being.”
Camden PES filed a motion for summary judgment, claiming that it was immune
from suit based on the doctrine of charitable immunity. Camden PES attached exhibits in
support of its motion, which included its Medicaid cost reports and its articles of
incorporation. Camden PES also attached three affidavits in support of its motion. These
affidavits are summarized as follows.
Richard V. Urquhart is a certified public accountant who was engaged by Camden
PES as an expert witness. Urquhart stated in his affidavit that he has forty-seven years’
experience in public accounting and management positions with health-care companies, and
that throughout his career, he has routinely performed audits and cost-report analyses.
Urquhart analyzed Camden PES’s Medicaid cost reports from September 2015 to June 2018
as well as other financial documentation related to Camden PES’s operations in formulating
his expert opinions. Urquhart also reviewed financial information for other long-term-care
facilities operating in Arkansas to compare Camden PES’s operations to other comparable
facilities.
3
Urquhart stated that between September 2015 and June 2018, Camden PES
sustained an overall loss of 5.45 percent, whereas other comparable for-profit facilities gained
an average of 2.56 percent to 4.99 percent. Urquhart also stated that he had reviewed the
service agreements between Camden PES and Southern Administrative Services, ProCare
Therapy Services, and Care Plus Staffing and that these types of services are consistent with
services typically obtained by similar nursing-home entities. Urquhart gave the opinion that
Camden PES is paying reasonable, arms-length rates for these services. Finally, Urquhart
stated that between September 2015 and June 2018, Camden PES reported a total expense
for free care to residents—meaning amounts that it recognized would not be paid—of
$307,000.
Jeff Harrington has served as regional vice president for Southern Administrative
Services and has worked with the charitable-care committee for Camden PES since
September 2015. In his affidavit, Harrington stated:
Most Ouachita Nursing residents qualify for Medicare or Medicaid coverage, but
Ouachita Nursing still provided free care to residents who did not qualify for
Medicare or Medicaid. Ouachita Nursing provides health-care services to residents,
up front, without any guarantee of future payment for services. In some instances,
Ouachita Nursing did not receive payment for its services, and continued to provide
services knowing that it would not be able to collect payment. In other words,
Ouachita Nursing was willing to accept residents, and in fact did accept residents,
who were unable to pay for services.
Harrington’s affidavit provided numerous specific examples of free health care provided to
Camden PES’s residents. Harrington also stated that to the best of his belief, during his
time working with Camden PES the facility had not filed a lawsuit against a resident to
4
collect a debt; had never turned a resident over to a collection agency; and had treated all
residents uniformly regardless of their ability to pay.
Camden PES also submitted the affidavit of Angela Marlar. Marlar is a former board
member and administrator for Camden PES. Marlar stated that the board members receive
no compensation. Marlar did, however, receive $84,988.80 in annual compensation for her
position as administrator.
Whitney opposed Camden PES’s motion for summary judgment, arguing that there
were factual questions as to Camden PES’s charitable status. In support of its opposition to
summary judgment, Whitney attached the affidavit of John C. Langham, a certified public
accountant who specializes in all aspects of accounting and auditing and has experience with
the accounting functions of charitable organizations and nursing homes. Langham gave the
opinion that Camden PES does not act as a charitable entity but rather operates as a for-
profit entity in the same manner as other similar for-profit nursing homes.
In his affidavit, Langham stated he reviewed numerous financial records—which
primarily focused on records pertaining to the 2016 tax year—related to Camden PES and its
operation of the nursing home. Langham’s interpretation of the financial documents he
reviewed was that Camden PES was created as a shell entity to pass profits off to other related
entities in order to maintain charitable status. Langham further opined that Camden PES
does not act as a charitable entity but rather operates Ouachita Nursing and Rehabilitation
Center in the same manner as other similar for-profit nursing homes. Langham then
5
proceeded to give various examples in support of his opinion that Camden PES does not
operate as a truly charitable entity but instead funnels its profits to related entities.
Generally, Langham’s affidavit focused on two areas. First, Langham discussed
Camden PES’s participation in a captive insurance program for its liability-insurance
coverage. Second, Langham discussed four specific independent contractors that provide
staffing, services, or supplies for Camden PES, which Langham opines are related entities.
Langham stated that Camden PES appears to use a related “captive-insurer” for its
professional-liability insurance, which is consistent with a for-profit entity. Langham
explained:
Camden-PES, Inc. also appears to be a for profit entity based on the fact that the
company appears to utilize a related “Captive Insurer” for its professional liability
insurance. Based on Camden-PES, Inc.’s Arkansas cost report for the period ended
June 30, 2017, Camden-PES, Inc. paid $365,934 for professional liability insurance
despite the fact that they only had insurance coverage in the amount of $250,000 per
occurrence and $750,000 aggregate. The cost of the insurance coverage seems
extremely high for the amount of coverage provided which is consistent with the
utilization of a “Captive Insurer.” Based on my experience, utilization of a related
“Captive Insurer” generally involves the operating company, Camden-PES, Inc.,
paying and deducting excessively high insurance premiums to the related “Captive
Insurance” company. The premiums paid are high compared to the amount of
coverage provided. The related “Captive Insurance” company enjoys the tax benefit
of being able to exclude its first $1 million dollars in premium income from ordinary
income tax. Camden-PES, Inc. is only one of at least 26 Arkansas facilities believed
to utilize the same “Captive Insurer” which were organized by John Ponthie and Amy
Wilbourn similarly to Camden-PES, Inc. The owners of the “Captive Insurance”
company then recover those excess premiums at a later date as capital gain income
upon the liquidation of the “Captive Insurance” company. Said income is then taxed
only as capital gains instead of ordinary income representing a significant tax savings.
Utilization of a “Captive Insurer” is consistent with a for-profit entity.
6
Langham then discussed the manner in which Camden PES paid and accounted for
third-party services provided to the facility. In particular, Langham discussed Camden PES’s
relationship with Care Plus Staffing, ProCare Therapy Services, Southern Administrative
Services, and Professional Nursing Solutions.4 Upon review of these records, Langham
opined that these four entities were related entities to Camden PES, but the relationship was
undisclosed on certain IRS forms. Langham stated:
Four of the five entities listed as Independent Contractors on Camden PES’s
IRS Form 1023, Part V, Line 1c, appear to be related to Camden PES through
business relationships as disclosed on Attachment 14 (Schedule G) . . . . They appear
to have been incorporated by and have the same registered agent as Camden PES . . .
as well as ten other entities named Progressive Eldercare Services for 25 other
Arkansas locations, 19 of which list John Ponthie or Amy Wilbourn as the
incorporator/organizer. Attorney Amy Wilbourn . . is listed as the registered agent
for all of these entities. On IRS form 1023, Part V, Line 2a - the question asks “are
any of your officers, directors, or trustees related to each other through family or
business relationships?” The question is answered, “no.”. . . Likewise, on IRS form
1023, Part V, Line 2c - the question asks “are any of your officers, directors or trustees
related to your highest compensated employees or highest compensated independent
contractors listed on lines 1b or 1c through family or business relationships?” The
question is answered “no.” However, in Attachment 14 (Schedule G) of the same
document, Camden PES lists four of the five Independent Contractors listed on Line
1c as being related entities. Therefore, it appears that . . . Care Plus Staffing, ProCare
Therapy Services, Southern Administrative Services, and Professional Nursing
Solutions are all related business entities to Camden PES.
Then Langham concluded:
Another example that appears to be Camden PES funneling profit to related entities
can be seen by reviewing the Arkansas DHS Cost Report for the period from 7/1/16–
6/30/17 and the IRS Form 990 Income Tax Return for 2016. The cost report
indicates $6,864,379 in total revenue and $6,924,885 in total expenses. In the
4
These are the same entities (plus one more) that Richard V. Urquhart referred to in
his affidavit wherein he concluded that these were arms-length transactions and that the rates
paid by Camden PES to these entities are reasonable in the industry.
7
expense section, Column 3 “Related Party Expense Adjustment,” an entity is
supposed to reduce any profit from dealing with related parties in arriving at
“Allowable Expenses.” No entries have been made despite the fact that on IRS Form
1023, Attachment 14 (Schedule G), Camden-PES, Inc. lists four “Independent
Contractors” on item 1c as being related entities. These “related entities” include
Care Plus Staffing, ProCare Therapy Services, Southern Administrative Services, and
Professional Nursing Solutions.
Langham stated that, according to the IRS Form 990 Income Tax Return for 2016,
the amount paid to the “Independent Contractors” was $4,239,574, which amounts to
about 60 percent of Camden PES’s total expenses being paid to the four entities related to
Camden PES. Langham opined that this is, at best, disingenuous and, at worst, tantamount
to Medicaid fraud. The implication from Langham’s opinion as expressed in his affidavit
was that Camden PES was paying higher than reasonable fees and rates to these four related
entities which, in effect, funneled profits that should be attributable to Camden PES to the
four related entities in order to maintain Camden PES’s charitable status.
The trial court entered an order denying Camden PES’s motion for summary
judgment. In its order the trial court found:
NOW BEFORE the court is the motion of Defendant’s Camden-Progressive
Eldercare Services for summary judgment on the issue of charitable immunity and
from the pleadings, argument of counsel and its review, the court finds that issues of
material fact exist and that the motion should be denied.
(Emphasis added.) Camden PES timely appealed from the trial court’s order denying
summary judgment, and it argues on appeal that it established entitlement to charitable
immunity as a matter of law.
Discussion
8
We set forth the following considerations with respect to the charitable-immunity
doctrine in St. Bernard’s Community Hospital Corp. v. Cheney, 2021 Ark. App. 236, at 5, 625
S.W.3d 398, 403:
The essence of the charitable-immunity doctrine is that organizations such as
agencies and trusts 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 agency or trust. George v. Jefferson Hosp. Ass’n, 337 Ark. 206, 987
S.W.2d 710 (1999). Charitable immunity is immunity from suit, not simply
immunity from liability. See Low v. Ins. Co. of N. Am., 364 Ark. 427, 220 S.W.3d 670
(2005). Immunity from suit is an entitlement not to stand trial or face the other
burdens of litigation, while immunity from liability is a mere defense to a suit. See
Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987). Because the charitable-
immunity doctrine favors charities and results in a limitation of potentially
responsible persons whom an injured party may sue, we give the term “charitable
immunity” a narrow construction. Williams v. Jefferson Hosp. Ass’n, 246 Ark. 1231,
442 S.W.2d 243 (1969).
In Masterson v. Stambuck, 321 Ark. 391, 902 S.W.2d 803 (1995), the supreme court
set forth several factors to determine whether an organization is entitled to charitable
immunity. These factors are:
(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 compensation.
Id. at 401, 902 S.W.2d at 809. These factors are illustrative, not exhaustive, and no single
factor is dispositive of the charitable status. Id. at 401, 902 S.W.2d at 810. Our court has
also held that a pivotal issue in determining one’s entitlement to charitable immunity is
9
whether the charitable form has been abused. Watkins v. Elder Outreach of Little Rock, 2012
Ark. App. 301, 420 S.W.3d 477.
The previous summary-judgment standard in a charitable-immunity case was set forth
by the supreme court in Anglin v. Johnson Regional Medical Center, 375 Ark. 10, 15, 289 S.W.3d
28, 31 (2008):
The law is well settled that summary judgment is to be granted by a circuit court only
when it is clear that there are no genuine issues of material fact to be litigated, and
the party is entitled to judgment as a matter of law. Once the 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. On
appellate review, we determine if summary judgment was appropriate based on
whether the evidentiary items presented by the moving party in support of the motion
leave a material fact answered.
(Citations omitted.)
However, in 2019 the Anglin summary-judgment standard was substantially altered in
charitable-immunity cases by the supreme court in Davis Nursing Home Ass’n v. Neal, 2019
Ark. 91, 570 S.W.3d 457 (Neal III).5 In Neal III, the supreme court held that although
disputed factual issues concerning an organization’s charitable status may be presented to a
jury, the ultimate question of charitable immunity remains a matter of law for the court to
decide. Here is the operative language in Neal III:
In some cases, while there may be fact issues involved, they are not matters of disputed
fact. Rather they are differing legal interpretations of undisputed facts. In such cases,
the circuit court should grant summary judgment where reasonable persons would
not reach different conclusions based upon those undisputed facts.
5
As we explained in St. Bernard’s, supra, we refer to this supreme court opinion as Neal
III because it was the third in a line of appellate decisions with respect to the dispute between
the parties therein.
10
....
If the existence of charitable immunity turns on disputed factual issues, then the jury
may determine the facts and the circuit court will subsequently determine whether
those facts are sufficient to establish charitable immunity.
Neal III, 2019 Ark. 91, at 6–8, 570 S.W.3d at 461–62 (citations omitted).
The threshold question in the Neal III framework is whether there are disputed material
facts or whether there are undisputed facts with differing interpretations. If there are disputed
material facts regarding charitable immunity, then summary judgment is improper because
these disputed facts must be submitted to the jury for its findings. Then, in a procedure left
unexplained in Neal III, the trial court uses the jury’s findings of fact to make its
determination of whether the defendant is entitled to charitable immunity as a matter of
law. If, however, there are undisputed facts and merely differing interpretations of those
facts, then summary judgment is proper if reasonable persons could not reach different
conclusions based on those undisputed facts.
In this case, the trial court denied Camden PES’s motion for summary judgment after
finding that issues of material facts existed as to Camden PES’s claim of charitable immunity.
However, we conclude that the trial court erred in finding that there were disputed issues of
material fact. Rather, our review of the record reveals that the facts in this case were
undisputed with merely different interpretations. Therefore, in the summary-judgment
proceeding, Neal III requires the trial court to determine whether Camden PES was entitled
to charitable immunity on these undisputed facts as a matter of law.
11
In determining whether Camden PES was entitled to summary judgment on
charitable immunity, we must review the Masterson factors as they relate to the evidence
presented. The first two factors are (1) whether the organization’s charter limits it to
charitable or eleemosynary purposes; and (2) whether the organization’s charter contains a
“not-for-profit” limitation. Here, Camden PES’s articles of incorporation classify the entity
as a “public benefit corporation,” which is defined by the Arkansas Nonprofit Corporation
Act as one formed “to perform good works, to benefit society or improve the human
condition.” See Ark. Code Ann. § 4-33-140(29) (Repl. 2016). The articles of incorporation
further provide that Camden PES “is organized exclusively for charitable, religious,
educational, and scientific purposes.” Camden PES is tax exempt, and its articles of
incorporation provide that it is “organized under the Arkansas Nonprofit Act.” They also
state that the corporation is prohibited from engaging in activities inconsistent with federal
nonprofit tax status. These facts were not disputed.
The third factor is whether the organization’s goal is to break even, and the fourth
factor is whether the organization earned a profit. Camden PES’s articles of incorporation
state that the financial goal of the corporation is to break even. Urquhart stated in his
affidavit that for the period from September 2015 to June 2018, Camden PES sustained a
loss of 5.45 percent. However, in Langham’s affidavit, he opined that Camden PES’s
organizational and accounting framework is designed to show a loss and that it actually
operates as a for-profit nursing home. The opinions formulated by Urquhart and Langham
were not based on disputed issues of fact but were instead differing interpretations of
12
undisputed factual documentation. That being so, these were not issues for a jury but were
rather for the trial court to decide under the Neal III framework.
The fifth factor is whether any profit or surplus must be used for charitable or
eleemosynary purposes. Camden PES’s articles of incorporation provide, “No part of the
net earnings of the corporation shall inure to the benefit of, or be distributable to, its
members, trustees, officers, or other private persons, except that the corporation shall be
authorized and empowered to pay reasonable compensation for services rendered and to
make payments and distributions in furtherance of the purposes set forth herein.” No
further proof was offered on this factor.
The sixth factor is whether the organization depends on contributions and donations
for its existence. Camden PES put on no proof of any contributions or donations, and it
conceded in its brief in support of its summary-judgment motion that it does not rely on
charitable contributions to operate. However, Camden PES cites George v. Jefferson Regional
Medical Center, 337 Ark. 206, 987 S.W.2d 710 (1999), where the supreme court stated that
“a modern hospital, with rare exceptions, would find it extremely difficult to operate wholly
or predominantly on charitable donations. The fact that a non-profit medical provider relies
on funding sources other than contributions or donations cannot negate its overriding
charitable purpose.” George, 337 Ark. at 214, 987 S.W.2d at 714.
The seventh factor is whether Camden PES offers services free of charge to those
unable to pay. Harrington stated in his affidavit that Camden PES provides health-care
services to residents who are unable to pay and that Camden PES never takes legal action
13
against a nonpaying resident. Urquhart in his affidavit noted that between September 2015
and June 2018, Camden PES gave $307,000 in free care to residents.
Whitney counters Camden PES’s claim of free care by noting that, from the financial
documents presented, the $307,000 Camden PES claims to have given in free care from
September 2015 to June 2018 represents only 4.4 percent of the revenue generated by
Camden PES in a single year—2016. Langham stated in his affidavit that “given the millions
of dollars in revenue generated by Camden-PES, Inc., I found no evidence of significant
services being offered free of charge or to those unable to pay.” Whitney further notes that
Camden PES’s admission agreement does not inform indigent residents of their option to
receive free or reduced-cost care, and instead requires timely payment by the first of each
month or the resident is subject to being discharged. The parties here again are arguing
different interpretations of undisputed facts, which is an issue to be determined by the trial
court.
The eighth factor is whether the organization’s directors and officers receive
compensation. Camden PES’s board members receive no compensation, but Camden PES
compensates its administrator with annual compensation of around $85,000 a year. These
facts are not in dispute, but the supreme court has held that it is not necessary for charitable
organizations to have entirely volunteer staff and management. See George, supra.
Additionally, as we stated above, although it is not listed as one of the Masterson
factors, this court has held that another relevant consideration is whether the charitable form
has been abused. See St. Bernard’s, supra. In Watkins v. Elder Outreach of Little Rock, 2012 Ark.
14
App. 301, 420 S.W.3d 477, we held that this is a pivotal issue in determining one’s
entitlement to charitable immunity.
Before addressing the issue of abuse of the charitable form as it relates to this case,
we first address Camden PES’s threshold argument that this issue should not be considered
in our analysis because it has never been expressly adopted by the supreme court as a one of
the charitable-immunity factors. We disagree with this argument. We note that when the
supreme court delivered Masterson in 1995, it held that the eight factors listed are illustrative
and not exhaustive. Moreover, after our court delivered Watkins in 2012, we have
consistently engaged in an analysis of whether there has been abuse of the charitable form
when deciding charitable-immunity cases. See, e.g., St. Bernard’s, supra; Progressive Eldercare
Services-Saline v. Cauffiel, 2016 Ark. App. 523, 508 S.W.3d 59. We have applied the abuse-
of-the-charitable-form consideration for ten years with no rebuke from the supreme court,
and therefore, we apply it here.
In Neal v. Davis Nursing Home Ass’n, 2015 Ark. App. 478, 470 S.W.3d 281 (Neal I),
we stated that the flow of money and the relationship between the facility and other service
providers can be critical to determining whether an entity is truly charitable or merely a
conduit through which to funnel money and divert profits. In Cauffiel, supra, we stated that
the abuse-of-the-charitable-form analysis was derived directly from the third, fourth, and fifth
Masterson factors, where the analysis is focused on the organization’s profits.
Camden PES submitted evidence that the charitable form was not being abused. In
this regard, Urquhart gave the opinion that according to his analysis, it appeared that
15
Camden PES was paying reasonable, arms-length rates for the services provided by its
suppliers and vendors, including Southern Administrative Services, ProCare Therapy
Services, and Care Plus Staffing.
However, Whitney’s expert, Langham, offered a contrasting opinion. Langham
stated that based on his review of the information made available to him “it is apparent that
Camden-PES, Inc. was created as a shell entity to pass profits off to other related entities in
order to maintain charitable status.” Langham opined that Camden PES “does not act as a
charitable entity, but rather operates Ouachita Nursing and Rehabilitation Center in the
same manner as other similar for-profit nursing homes.” Langham then gave various
examples in support of his opinion that Camden PES does not operate as a truly charitable
entity but instead funnels its profits to related entities, which include Care Plus Staffing,
ProCare Therapy Services, Southern Administrative Services, and Professional Nursing
Solutions.
Although the opinions of Urquhart and Langham differed on their respective
interpretation of the financial records and their respective opinions on whether the
charitable form was being abused, their differences in opinion were not based on disputed
facts. Rather, these opinions were different interpretations of undisputed facts. Having the
same set of facts before them, Urquhart opined that Camden PES was paying reasonable
arms-length rates for third-party services, while Langham implied that the rates to third-party
related entities were being inflated to show a loss on paper while Camden PES was actually
earning a profit similar to a for-profit nursing home. Again, we have differing interpretations
16
of undisputed facts, and it is for the trial court to decide, under the Neal III framework,
whether the charitable form was being abused.
Having reviewed the record, we hold that the trial court erred in finding that issues
of material fact existed as to whether Camden PES was entitled to charitable immunity.
There are no issues of material fact in this case; rather there are different interpretations of
undisputed facts. That being so, pursuant to the supreme court’s directive in Neal III, supra,
the trial court should grant summary judgment if, upon review of the evidence on remand,
the court determines that reasonable persons would not reach different conclusions on the
undisputed facts. Our conclusion is not necessarily that it was error to deny summary
judgment on the merits of charitable immunity but rather that the trial court erred in
deciding that the issue of charitable immunity would proceed to trial on the record
presented. See St. Bernard’s, supra.
Finally, we acknowledge that Camden PES also raises one additional argument.
Citing K.C. Properties of Northwest Arkansas, Inc. v. Lowell Investment Partners, LLC, 373 Ark.
14, 280 S.W.3d 1 (2008), it argues that, in the context of piercing the corporate veil, a court
will disregard the corporate façade only when the corporate form has been abused to the
injury of a third party. Camden PES claims that Whitney failed to show that the charitable
form was abused to her injury, noting that Whitney is requesting damages that may be
available from several other defendants who do not seek charitable immunity. However, to
preserve an issue for appellate review, an appellant must specifically raise the argument relied
on to the trial court, develop the argument there, and obtain a ruling on the argument.
17
Evans v. Carpenter, 2022 Ark. App. 83, 642 S.W.3d 235 . Because Camden PES did not raise
this argument below, we do not address it.
Conclusion
We reverse and remand because the trial court erred in finding that issues of material
fact existed as to whether Camden PES was entitled to charitable immunity. Rather, this
case involved differing interpretation of undisputed facts. On remand, the trial court should
grant summary judgment if reasonable persons would not reach different conclusions based
upon the undisputed facts.
Reversed and remanded.
GRUBER, J., agrees.
WHITEAKER, J., concurs.
PHILLIP T. WHITEAKER, Judge, concurring. I agree with the majority that the facts
in this case are not in dispute and that the trial court erred in finding that issues of material
fact existed. However, I write to express my concern that implementation of the framework
espoused in Davis Nursing Home Ass’n v. Neal, 2019 Ark. 91, 570 S.W.3d 457 (Neal III), may
set our traditional summary-judgment standard on its head.
In summary-judgment proceedings, a trial court is tasked with deciding whether
questions of material fact exist to be resolved at trial and, in so doing, must avoid weighing
and resolving conflicting testimony. Turner v. Nw. Ark. Neurosurgery Clinic, P.A., 84 Ark. App.
93, 105, 133 S.W.3d 417, 424 (2003). In fact, the supreme court has noted that summary
judgment is not designed for assessing the probative strength of conflicting proof or expert
18
opinions. Green v. Alpharma, Inc., 373 Ark. 378, 396, 284 S.W.3d 29, 42 (2008). That being
said, I believe that the framework set forth in Neal III ostensibly requires the circuit court to
either resolve the conflicting opinions of the parties’ expert witnesses or to weigh their
credibility in order to determine whether “reasonable persons” could reach differing
conclusions as to the undisputed facts. Thus, our traditional summary-judgment standard
may be turned on its head.
Kutak Rock LLP, by: Mark W. Dossett, Jeff Fletcher, and Samantha Blassingame, for
appellant.
Reddick Moss, PLLC, by: Brian D. Reddick, Matthew D. Swindle, and Heather G. Zachary,
for appellee.
19