Cite as

ARKANSAS COURT OF APPEALS DIVISION I No. CV-21-164

Opinion Delivered May 4, 2022 HEMP HEALTH, LLC; IZARD HEALTH, LLC; LINWOOD HOLDING, LLC; AND APPEAL FROM THE PULASKI CARE HOLDING, LLC COUNTY CIRCUIT COURT, NINTH APPELLANTS DIVISION [NO. 60CV-19-8631] V. HONORABLE MARY SPENCER ARKANSAS DEPARTMENT OF MCGOWAN, JUDGE HUMAN SERVICES; CINDY GILLESPIE, DIRECTOR OF THE ARKANSAS DEPARTMENT OF HUMAN SERVICES; CECILIA AFFIRMED VINSON, DIRECTOR, OFFICE OF LONG TERM CARE; JERALD SHARUM, DIRECTOR, DIVISION OF PROVIDER SERVICES & QUALITY ASSURANCE APPELLEES

N. MARK KLAPPENBACH, Judge

Appellants Hemp Health, LLC; Izard Health, LLC; Linwood Holding, LLC; and Care

Holding, LLC, appeal from a decision of the Pulaski County Circuit Court dismissing this

case as moot. We affirm.

Hemp and Izard filed a petition for judicial review or, in the alternative, complaint

for declaratory judgment and complaint for injunctive relief against the Arkansas

Department of Human Services and three officials in their official capacities (collectively “DHS”).1 Hemp and Izard had filed change-of-ownership applications with DHS’s Office of

Long Term Care (OLTC) seeking to transfer operational control, ownership, and licensure

of two skilled nursing facilities, Oaklawn Estates, LLC, and Diamond Cove, LLC. The

applications listed Christopher Brogdon as the manager of Hemp and Izard and Cathy

Parsons as the operator and member of Oaklawn Estates and Diamond Cove. In November

2019, OLTC denied the applications. Hemp and Izard alleged in their petition to the circuit

court that the denial was arbitrary and capricious, contrary to the law, exceeded the authority

granted under the law, was based on clear errors of fact and law, abused reasonable

discretion, and violated their substantive rights. They sought a judgment, writ, or order that

invalidated the denial and enjoined DHS and its directors from denying the applications

without cause.

DHS filed a motion to dismiss the petition for the following reasons: (1) the

complaint is moot and presents no justiciable issue; (2) the court lacks subject-matter

jurisdiction; (3) petitioners failed to join necessary parties; (4) petitioners’ claim for costs and

attorney’s fees is barred by sovereign immunity; and (5) the complaint fails to state any facts

upon which relief may be granted against DHS and asserts no cause of action. Regarding

the mootness allegation, DHS claimed that a change of ownership of the facilities could no

longer be completed because Cathy Parsons had unilaterally closed both facilities and

1 The three officials were Cindy Gillespie, director of the Arkansas Department of Human Services; Cecilia Vinson, director of the Office of Long Term Care; and Jerald Sharum, director of the Division of Provider Services and Quality Assurance.

2 surrendered her long-term-care licenses for them; accordingly, the licensed beds returned to

the control of the Arkansas Health Services Permit Agency.

Prior to a ruling on the motion to dismiss, Hemp and Izard filed an amended petition

adding facts discovered from email correspondence obtained through the Freedom of

Information Act. They alleged that rather than reviewing the applications on their merits,

DHS employees acted arbitrarily, capriciously, and in bad faith in their denial of the

applications and their subsequent acceptance of Parsons’s surrender of the facility licenses.

For instance, Hemp and Izard alleged that, contrary to what was asserted in OLTC’s denial

letter, Hemp and Izard did, in fact, provide all requested information and offered to

continue providing additional documentation upon request. Hemp and Izard alleged that,

despite DHS’s statutory duty to maintain the status quo pending the appeal, DHS worked

duplicitously with Parsons to terminate the facility licenses, return the beds to the pool, and

“then utilize these underhanded tactics to undermine” Hemp and Izard’s ability to protect

their rights under Arkansas law. Hemp and Izard claimed that DHS accepted the license

surrender even though it had “multiple other options” to maintain the status quo. They

asserted that DHS should not be allowed to benefit from its own bad acts.

DHS renewed its motion to dismiss, asserting the same grounds as in the first motion.

DHS maintained that no controversy currently exists between the parties regarding the

applications because Parsons voluntarily surrendered her licenses when the facilities closed,

upon which the continuity of the licenses expired, and the availability of the licensed beds

returned to the Arkansas Health Services Permit Agency.

3 A hearing was held on both the amended motion to dismiss and a motion to

intervene filed by appellants Linwood Holding, LLC, and Care Holding, LLC, which owned

the buildings housing the nursing facilities. The motion to intervene was granted. DHS

argued that the case was moot because of the unilateral actions of Parsons, who was not

made a party to the case, and DHS could not stop her from surrendering her licenses. Hemp

and Izard alleged that DHS violated the statutory mandate to maintain the status quo after

the lawsuit was filed by working with Parsons and encouraging her in her pursuit to

surrender the licenses. Hemp and Izard claimed that DHS did not have to accept the

surrender of the licenses.

The circuit court found in its order that Hemp and Izard’s claims are nonjusticiable

because no actual or real controversy currently exists between the parties regarding the

applications. The court found that due to the unilateral actions of Parsons, the licenses for

both Diamond Cove and Oaklawn Estates no longer exist, and thus, any judgment rendered

now would have no practical effect upon any existing legal controversy. Accordingly, the

court dismissed the amended complaint as moot.2

Generally, an issue is considered moot if any judgment or opinion issued by the court

would have no practical effect upon a then existing legal controversy. Gillespie v. Brewer,

,

. A case becomes moot if a controversy ceases to exist between

2 Although the circuit court dismissed the amended complaint without prejudice, we have jurisdiction to hear the appeal pursuant to Rule 2(a)(2) of the Arkansas Rules of Appellate Procedure–Civil. See Magness v. Graddy,

, at 7 n.1,

, 883 n.1.

4 the parties at any stage of the legal proceedings, including the appeal.

We do not render

advisory opinions, and an opinion rendered on an issue that is moot would be advisory.

On appeal, the question as to whether there was a complete absence of a justiciable issue

shall be reviewed de novo on the record of the circuit court. Jegley v. Picado,

,

(2002).

Arkansas Code Annotated section 20-10-212 (Repl. 2018) provides as follows:

(a) Any applicant or licensee who is aggrieved by any decision of the Office of Long-Term Care with respect to the denial, suspension, or revocation of any long- term care facility license or long-term care facility administrator license or other final decision of the office with respect to standards of construction, operation, or maintenance of long-term care facilities or long-term care facility personnel or employees may appeal within thirty (30) days the decision of the office to the Pulaski County Circuit Court or to the circuit court of any county in which the applicant or licensee resides or does business.

(b) Pending determination of the matter on appeal, the status quo of the applicant or licensee shall be preserved.

Appellants argue that pursuant to the statute, they have an express right to judicial

review, and OLTC has the statutory obligation to protect that right by preserving the status

quo pending appeal. They argue that OLTC violated the statute by accepting Parsons’s

voluntary closure and licensure surrender and by failing to exercise its authority to preserve

the licenses pending appeal. Appellants also claim that OLTC precluded appellants from

taking action to preserve the licenses pending appeal by refusing to accept any other change-

of-ownership applications. DHS argues that it took no action to change the status quo of

the applicants; instead, Parsons took unilateral action by surrendering the licenses, and as a

5 result, the licenses no longer existed. DHS contends that because Parsons was not a party to

the case, there was nothing preventing her from surrendering the licenses.

Items attached to the complaints and motions to dismiss show what transpired after

the denial of the applications. Brogdon had already begun operating the facilities while the

applications were pending. In a December 2, 2019 phone call with DHS, Brogdon stated

that he would no longer operate the facilities, and he indicated that Parsons was not

cooperating with him. Todd Luth, the managing member of the intervenors, had a phone

call with DHS on December 3, 2019, in which he stated that Brogdon had appealed the

denial of the applications. Luth brought up submitting a new application to transfer the

licenses from Parsons, but he was informed that as long as Brogdon’s appeal was in litigation,

the change-of-ownership process was on hold, and no other application on the facilities could

be started.

In other correspondence, DHS wrote that Parsons told OLTC that she did not have

the money to take the facilities back after Brogdon told her he was pulling out; furthermore,

Luth had evicted Parsons from the facilities due to delinquent lease payments. Parsons’s

attorney wrote to DHS in a December 4, 2019 email that Parsons had been unable to secure

access to the homes to confirm appropriate care for the residents, and she was working with

the facilities’ administrators to move residents to other facilities. Subsequent

correspondence from Parsons’s attorney stated that Parsons was voluntarily closing the

facilities. DHS asked whether Parsons also wished to voluntarily surrender her licenses for

6 those facilities, which would remove any consequences related to statements of deficiencies.

Parsons’s attorney stated that Parsons wanted to voluntarily surrender her licenses.

Thus, contrary to appellants’ assertions, it was not DHS action that resulted in the

closing of the facilities and Parsons’s surrender of her licenses but rather a breakdown in the

business dealings between Parsons, Brogdon, and Luth. DHS could not force Parsons to

stay in business when she could not afford to and had been evicted from the premises. After

closing the facilities, Parsons chose to surrender the licenses. There is nothing to indicate

that DHS could refuse to accept surrender of the licenses and instead require Parsons, who

is not a party to the litigation, to maintain the licenses. DHS’s position that it would not

accept other change-of-ownership applications during the appeal acted to protect the status

quo of the applicants, Hemp and Izard. Had DHS approved subsequent applications, this

would have changed the status quo of the initial applicants. In their reply brief, appellants

argue that DHS should have preserved the status quo by appointing a receiver for the

facilities pursuant to Arkansas Code Annotated sections 20-10-901 et seq. (Repl. 2018 &

Supp. 2021). However, because this argument is made for the first time in the reply brief,

we will not consider it. See Orintas v. Point Lookout Prop. Owners Ass’n Bd. of Dirs.,

,

.3

3 DHS has filed a motion to strike portions of appellants’ reply brief seeking to strike arguments made for the first time in the reply brief. We hold that the motion is now moot.

7 Appellants claim that there remains a legal controversy upon which the court’s

decision would have a practical effect, namely financial implications for the appellants. They

argue that if forced to apply for new operator licenses as opposed to being granted licenses

via their transfer applications, a substantial investment is required, and other factors come

into play that may restrict their ability to obtain the licenses. DHS maintains that any

determination on the change-of-ownership applications is moot because the licenses no

longer exist. We agree. A decision that DHS improperly denied the change-of-ownership

applications could not result in a transfer of the licenses because they no longer exist.

Accordingly, we affirm the circuit court’s determination that the case is moot.4

Affirmed.

GLADWIN and HIXSON, JJ., agree.

Kutak Rock LLP, by: Samantha Blassingame, for appellants.

David Warford and Richard Rosen, Office of Chief Counsel, for appellees.

4 Although both parties also address whether the circuit court had subject-matter jurisdiction, the supreme court has said that our courts will not issue advisory opinions, even on subject-matter jurisdiction. See Arkansans for Healthy Eyes v. Thurston,

. The issue of subject-matter jurisdiction is moot because our judgment would have no practical legal effect on an existing controversy.

8