Opinion

Cogburn v. Wolfenbarger

  • 85 Ark. App. 206
  • 148 S.W.3d 787
  • 2004 Ark. App. LEXIS 166
Court
Court of Appeals of Arkansas
Filed
Feb 25, 2004
Status
Published
Author
Baker
On the bench
John B. Robbins
Cited by
9 cases
Authority
More cited than 8.2%

holding that medical evaluations were insufficient to support appointment of a guardian and that it was not incumbent upon appellant to ask the trial court to consider the relevant statutes that must be satisfied prior to a finding of incapacity

How later courts described this case

  • holding that medical evaluations were insufficient to support appointment of a guardian and that it was not incumbent upon appellant to ask the trial court to consider the relevant statutes that must be satisfied prior to a finding of incapacity
  • finding standing where an individual was served with notice of a hearing, filed an answer, and appeared at both the temporary and permanent hearings to contest the guardianship
  • rejecting appellee's argument that appellant lacked standing because appellant had been given notice of the hearing, filed an answer to the petition, and appeared at the hearings

Written by the judges who cited it.

The opinion

Karen R. Baker, Judge, dissenting. I agree that this case must be reversed because it is undisputed that there was no oral testimony or sworn written statement of a qualified professional as required by Ark. Code Ann. § 28-65-211 (b)(1) (Repl. 2004). While I agree that this failure renders the trial court’s finding of incapacity clearly erroneous, I disagree as to the disposition of the case. Rather than remand for further proceedings, I would simply reverse. Because appellees failed to prove their case, and there are no further proceedings to be conducted.

The majority finds, and I agree, that the Petition for Guardianship should have been denied. If the court had done as it should have and denied the petition, that denial would have concluded the litigation. The majority is remanding this case to afford appellee the opportunity to produce evidence sufficient to comply with the statutory requirements. This is not our usual disposition of a case once the case has been heard or had a fair opportunity to be presented. See Moore v. City of Blytheville, 1 Ark. App. 35 , 612 S.W.2d 327 (1981).

I see nothing in the facts of this case that persuades me that we should depart from our customary practice. Therefore, I would not remand the case for further proceedings.

Agree in part; dissent in part.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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