Joyce v. Northeast Arkansas Community Mental Health Center, Inc., 012021 ARCA, CV-19-788

Docket Nº:CV-19-788
Opinion Judge:WAYMOND M. BROWN, JUDGE.
Party Name:ARTHUR JOYCE APPELLANT v. NORTHEAST ARKANSAS COMMUNITY MENTAL HEALTH CENTER, INC., D/B/A MID-SOUTH HEALTH SYSTEMS, INC.; ALLIANCE OF NONPROFITS FOR INSURANCE, RISK RETENTION GROUP; JOHN DOE I, JOHN DOE II, AND JOHN DOE III; AND STEVEN D. BILLUPS APPELLEES
Attorney:Jesse B. Daggett and Roy C. Lewellen, for appellant. Barber Law Firm, PLLC, by: S. Brent Wakefield and Adam D. Franks, for appellees.
Judge Panel:Gladwin and Murphy, JJ., agree.
Case Date:January 20, 2021
Court:Court of Appeals of Arkansas

2021 Ark.App. 28

ARTHUR JOYCE APPELLANT

v.

NORTHEAST ARKANSAS COMMUNITY MENTAL HEALTH CENTER, INC., D/B/A MID-SOUTH HEALTH SYSTEMS, INC.; ALLIANCE OF NONPROFITS FOR INSURANCE, RISK RETENTION GROUP; JOHN DOE I, JOHN DOE II, AND JOHN DOE III; AND STEVEN D. BILLUPS APPELLEES

No. CV-19-788

Court of Appeals of Arkansas, Division II

January 20, 2021

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CV-17-241] HONORABLE RALPH E. WILSON, JR., JUDGE.

Jesse B. Daggett and Roy C. Lewellen, for appellant.

Barber Law Firm, PLLC, by: S. Brent Wakefield and Adam D. Franks, for appellees.

WAYMOND M. BROWN, JUDGE.

Appellant Arthur Joyce appeals the June 13, 2019 order of the Crittenden County Circuit Court granting appellee, Northeast Arkansas Community Mental Health Center, Inc., d/b/a Mid-South Health Systems, Inc.'s (Mid-South's) motion for summary judgment. Joyce contends that the court erred by failing to strike Mid-South's summary-judgment motion based on charitable immunity due to the claim being untimely and prejudicial. Joyce also claims that Mid-South waived its immunity as it never affirmatively claimed to have the immunity until it filed its motion for summary judgment, which was filed after the three-year statute of limitations had run. Thus, Joyce argues that Mid-South should be estopped from claiming the immunity. Joyce also argues that the statute of limitations on the time to file an action against Mid-South's insurance carrier should run from the date Mid-South claimed charitable immunity, not the date of the occurrence giving rise to the suit. We affirm.[1]

Joyce had a contract with, and served as a foster parent for, Mid-South. Mid-South was under contract with the Arkansas Department of Human Services (DHS) to provide certain services, including the Therapeutic Foster Care (TFC) Program. On July 16, 2013, Mid-South placed Steven Billups, a seventeen-year-old TFC child, in Joyce's home. On August 14, Billups shot Joyce three times with his own gun. Joyce filed a complaint against Mid-South on July 7, 2014, alleging negligence. Mid-South filed its answer on July 21, essentially denying the material allegations of Joyce's complaint. Under the affirmative defenses, Mid-South stated that discovery "may show that defendant is a charitable entity which is immune from tort liability under applicable Arkansas law." Joyce voluntarily nonsuited the action, and an order of dismissal without prejudice was filed on April 27, 2016.

On April 12, 2017, Joyce refiled his action against Mid-South. In this new action, Joyce added potential insurers and John Doe I, John Doe II, and John Doe III as defendants. Mid-South answered on May 5, denying the material allegations of the complaint. Under affirmative defenses, Mid-South contended that discovery "may show that defendant is a charitable entity which is immune from tort liability under applicable Arkansas law." It also stated that discovery "may show that defendant is entitled to acquired governmental immunity under applicable Arkansas law." Mid-South added Billups as a third-party defendant. Joyce amended his complaint on June 4, 2018, alleging negligence, actual and constructive fraud, and intentional concealment. Mid-South answered on June 6, denying the material allegations of the complaint and including the same statements as above under affirmative defenses. Joyce filed a third amended complaint on June 20 adding constructive notice. Mid-South filed an answer the next day denying the material allegations of the complaint and restating the same statements made in prior answers under affirmative defenses.

On July 10, Joyce filed his fourth amended complaint. It was in this complaint that he named Mid-South's insurance company, Alliance of Nonprofits for Insurance, Risk Retention Group (Alliance). Citing Mid-South's statements under affirmative defenses regarding possible immunity, Joyce contended that Alliance should be added as a defendant as Mid-South was insured for $6 million under its policy with Alliance. Mid-South answered on July 26, admitting that for the period covering Joyce's complaint, there is $6 million of coverage available. It again made the same affirmative defenses.

Alliance filed a motion to dismiss with incorporated authority on December 5 alleging that Joyce had failed to cause a summons to be issued against it and that it had not been served in this action. Alliance contended that since the statute of limitations had already run on Joyce's claim against it, the complaint should be dismissed with prejudice. Joyce responded on December 7 alleging that service is unnecessary when a defendant voluntarily enters its appearance. Alliance filed a reply on December 12 denying that it had entered any appearance in this action and denied that it had consented to the jurisdiction of the court. On January 2, 2019, the court entered an order dismissing Alliance with prejudice.

Joyce filed a fifth amended complaint on January 18. Mid-South filed an answer denying the material allegations and restating that it may be immune under charitable and/or governmental immunity. A sixth amended complaint was filed on February 7 alleging negligence against both Joyce and his son, Austin. Mid-South answered the complaint on February 14 and denied the material allegations. It listed the same statements under affirmative defenses as it had since the case was refiled in 2017.

Mid-South filed a motion for summary judgment based on charitable immunity and a supporting brief and documentation on April 25. Joyce filed a response and supporting brief on May 14 contending that Mid-South's claim of charitable immunity should be struck to avoid prejudice as it had never affirmatively asserted that it was immune from suit. Joyce also alleged that Mid-South had waived its right to claim immunity and that it should be estopped from claiming the immunity so late in the suit. Joyce further claimed that Mid-South had failed to comply with Arkansas Code Annotated section 23-79-210, 2 depriving Joyce of his right to a direct action against Mid-South's carrier.

Mid-South filed a motion for summary judgment based on acquired immunity on April...

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