Arkansas Supreme Court removes judge from nursing home case, says he failed to follow instructions

Suit has been in court for 8 years

court gavel
court gavel

The Arkansas Supreme Court on Thursday chastised a Pulaski County circuit judge in a ruling that kicked an eight-year-long class action lawsuit against a North Little Rock nursing home and its controllers back to the circuit court, where a new judge will be placed over the case.

The majority of justices found that Judge Timothy Fox had repeatedly failed to follow directions issued by the high court across the five appeals associated with the suit, which pits residents of the Robinson Nursing and Rehabilitation Center and the estates of deceased residents against the nursing home and two other companies owned by Michael Morton of Fort Smith.

The plaintiffs allege that the defendants violated the Arkansas Deceptive Trade Practices Act, breached contracts and profited by not properly staffing the nursing home, leading to a failure to provide agreed-upon care and services.

"Because the circuit court refuses to make specific findings that provide the parties and this court with a rationale for its decisions, we must remand to the circuit court with the specific instructions provided herein," Associate Justice Shawn Womack wrote for the majority.

The case must be reassigned to a new judge within 10 days, the Supreme Court ruling states. Even prior to Thursday's reassignment, the jury trial in the case had been scheduled for March 2025, court records show, more than 10 years after the case first came to court.

The high court took issue with orders Fox issued in response to attempts from the defendants to compel arbitration instead of taking the case to court.

Fox granted the requests to enforce the arbitration agreements of some residents but not others, and the defendants appealed his rulings.

In decisions referred to by the Supreme Court as Phillips III and Phillips IV after plaintiff Andrew Phillips, the Supreme Court last year said it could not review Fox's rulings because "the circuit court [had] made no findings whatsoever," Womack said in Thursday's decision.

The justices insisted Fox make findings on his decisions on the defendant's motions and to provide his rationale, something Womack said he has failed to do.

"Thus, these most recent orders are not in accord with either the letter or spirit of this court's holdings in Phillips III and IV," Womack wrote for the majority. "Once more we are left without a rationale for the circuit court's decisions. Absent specific findings, this court cannot conduct a proper appellate review."

In their formal rebuke of Fox, the majority justices said they took issue with Fox's Jan. 23 order. More than half of that order consists of "denigrating comments" about the justices on the majority in the Phillips III appeal, Womack writes.

The high court admonished Fox for these "wholly inappropriate comments he made while performing his judicial duties."

The ruling also notes the justices' 2016 admonition of Fox for "inappropriate comments made while performing the duties of his judicial office" in a case in which Fox struck down a state law that prevented same-sex, married couples from listing the non-biological parent on their children's birth certificates.

In that case, the Supreme Court overturned Fox's decision, but it was overturned by the U.S. Supreme Court, which found that the state law was unconstitutional in treating same-sex couples differently from heterosexual ones.

In a dissenting opinion in the nursing home case, Associate Justice Karen Baker wrote that Fox had complied with the Supreme Court's instructions and that the court was wastefully kicking the case down the road. She was joined by Associate Justice Courtney Hudson.

Fox did provide the high court with the rationale for his decisions, Baker wrote, and the Supreme Court justices are avoiding considering the appeals on their merits.

"Once again, the majority chooses to skirt the merits and punt this matter back to the circuit court to 'complete' a task that it already did," Baker wrote, quoting Hudson's dissenting opinion from the 2022 appeal.

In reassigning the case, the high court is wasting years of Arkansans' time and resources, Baker wrote.

"Thus, the majority's erroneous decision to remand this case is further compounded by its decision to now reassign this case to a different circuit court judge -- after over eight years of litigation," Baker wrote.