Wilkinson County Senior Care, LLC v. Edith Kirkland , 196 So. 3d 1143 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-00627-COA
WILKINSON COUNTY SENIOR CARE, LLC, APPELLANTS
TREND CONSULTANTS, LLC AND CHARLES
BRUCE KELLY
v.
EDITH KIRKLAND, INDIVIDUALLY, AND ON APPELLEE
BEHALF OF AND FOR THE USE AND BENEFIT
OF THE WRONGFUL DEATH BENEFICIARIES
OF MAGGIE GLIDEWELL
DATE OF JUDGMENT: 03/31/2015
TRIAL JUDGE: HON. LILLIE BLACKMON SANDERS
COURT FROM WHICH APPEALED: WILKINSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: JOSEPH SPENCER YOUNG JR.
ATTORNEYS FOR APPELLEE: RICHARD PAUL WILLIAMS III
COURTNEY MCREYNOLDS WILLIAMS
DARYL MATTHEW NEWMAN
NATURE OF THE CASE: CIVIL - CONTRACT
TRIAL COURT DISPOSITION: DENIED MOTION TO COMPEL
ARBITRATION
DISPOSITION: REVERSED AND REMANDED - 08/02/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., ISHEE AND WILSON, JJ.
ISHEE, J., FOR THE COURT:
¶1. Wilkinson County Senior Care (WCSC) appeals the judgment of the Wilkinson
County Circuit Court denying WCSC’s motion to compel a binding arbitration pursuant to
terms in its admission agreement with its patient Maggie Glidewell. Finding error, we
reverse and remand.
FACTS
¶2. Glidewell was admitted to WCSC on December 21, 2010.1 At the time of her
admission, Glidewell’s granddaughter, Angela Jones, acting with a valid power of attorney
with healthcare provisions, signed an admission agreement on Glidewell’s behalf. The
admission agreement also had a signatory line for a representative from WCSC to sign, but
it remained blank.
¶3. On October 20, 2012, Glidewell, while in the care of WCSC, was admitted to the
hospital for severe dehydration and urosepsis, and died the next day. On December 3, 2014,
Edith Kirkland, a surviving daughter of Glidewell, filed a complaint, individually and on
behalf of the wrongful-death beneficiaries of Glidewell, in the circuit court. Kirkland named
WCSC; Trend Consultants LLC; and Charles Kelly (collectively WCSC) as defendants.
¶4. On December 7, 2014, Kirkland’s counsel sent the following letter to WCSC
attempting to revoke any offer to arbitrate:
Please accept this letter as our revocation of the arbitration agreement that was
signed by Ms. Angela Jones during the admission process of . . . Glidewell.
Through this letter the [e]state and [w]rongful [d]eath [b]eneficiaries revoke
and are otherwise unwilling to arbitrate any claim against [WCSC].
WCSC filed a motion to compel binding arbitration based on the terms of its admission
agreement. The circuit court denied the motion, finding that the arbitration provision lacked
the essential terms of a contract. Specifically, the circuit court pointed out the contract was
not signed by a WCSC representative as required by the express terms of the arbitration
provision. Aggrieved, WCSC now appeals.
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The record is silent as to Glidewell’s age.
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LAW AND DISCUSSION
¶5. The Federal Arbitration Act (FAA) serves to “[place] arbitration agreements upon the
same footing as other contracts.” Shearson /Am. Express Inc., v. McMahon, 482 U.S. 220,
225-26 (1987). The Mississippi Supreme Court has found that “[a]greements between
patients and nursing homes affect interstate commerce and, therefore, fall under the purview
of the [FAA].” Byrd v. Simmons, 5 So. 3d 384, 388 (¶11) (Miss. 2009). As such, the
supreme court has held the following:
To determine if the parties are bound by arbitration, in this case we must first
determine if a contract exists between them. A valid contract must have (1)
two or more contracting parties, (2) consideration, (3) an agreement that is
sufficiently definite, (4) parties with legal capacity to make a contract, (5)
mutual assent[,] and (6) no legal prohibition precluding contract formation.
Grenada Living Ctr. v. Coleman, 961 So. 2d 33, 36-37 (¶9) (Miss. 2007) (citation omitted).
However, the FAA also establishes a “federal policy favoring arbitration” that requires courts
to “rigorously enforce agreements to arbitrate.” E. Ford v. Taylor, 826 So. 2d 709, 713 (¶11)
(Miss. 2002) (citing McMahon, 482 U.S. at 226). As such, “[d]oubts as to the availability
of arbitration must be resolved in favor of arbitration.” IP Timberlands Operating Co. v.
Denmiss Corp., 726 So. 2d 96, 107 (¶46) (Miss. 1998) (citing Moses H. Cone Mem’l Hosp.
v. Mercury Constr. Corp., 460 U.S. 1, 74 (1983)). Furthermore, “[a]s the court’s
participation and involvement increase, the reason for arbitration in the first place becomes
greatly diminished, and its purpose defeated.” Covenant Health & Rehab. of Picayune LP
v. Estate of Moulds ex rel. Braddock, 14 So. 3d 695, 707 (¶38) (Miss. 2009).
¶6. The standard of review for granting or denying a motion to compel arbitration is de
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novo. See Harrison Cty. Commercial Lot LLC v. H. Gordon Myrick Inc., 107 So. 3d 943,
949 (¶12) (Miss. 2013) (citation omitted). An appellate court “does not review the merits of
the underlying claim.” Id. at (¶13) (citation omitted).
¶7. On December 21, 2010, Jones signed an admission agreement on behalf of her
grandmother, Glidewell. The admission agreement consisted of six sections, sections A-F.
However, only a few sections are at issue in the instant case: sections E, F, and the
concluding paragraph set forth above the signature lines.
¶8. Section E, the arbitration clause, reads, in relevant part, as follows:
E. ARBITRATION-PLEASE READ CAREFULLY
1. It is understood and agreed by the Facility and Resident and/or
Responsible Party that any legal dispute, controversy, demand or claim
(hereinafter collectively referred to as “claim” or “claims”) that arises
out of or relates to the Admission Agreement, any service or health care
provided by the Facility to the Resident or any matter related to the
Resident’s stay shall be resolved exclusively by binding arbitration
pursuant to the [FAA.]
....
2. The parties agree that any dispute shall be arbitrated by one impartial,
unbiased arbitrator who shall be chosen by mutual agreement of the
parties. The arbitrator’s decision shall be final and binding. The
parties agree that judgment may be entered on any arbitration award in
any court having jurisdiction.
3. This agreement to arbitrate includes, but is not limited to, any claim for
payment, nonpayment or refund for services rendered to the Resident
by the Facility, violations of any rights granted to the Resident by law
or by the Admission Agreement, breach of contract, fraud or
misrepresentation, negligence, gross negligence, malpractice or any
other claim based on any departure from accepted standards of medical
or health care or safety whether sounding in tort or in contract.
However, this agreement to arbitrate shall not limit the Resident’s right
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to file a grievance or complaint, formal or informal, with the Facility or
any appropriate state or federal agency, including any state ombudsman
assigned to the facility.
....
5. It is the intention of the parties to this arbitration agreement that it shall
inure to the benefit of and bind the parties, their successors and assigns,
including the agents, employees and servants of the Facility and all
entities in privity with the facility, and all persons whose claim is
derived through or on behalf of the Resident, including that of any
parent, spouse, child, guardian, conservator, executor, administrator,
legal representative, wrongful death heir, or heir of the Resident.
....
7. The parties understand and agree that by entering this arbitration
agreement, which binds both the Facility and the Resident/
Responsible Party, they are giving up and waiving their constitutional
right to have any claim decided in a court of law before a judge and
a jury.
8. The Resident and/or Responsible Party understand that (a) he/she has
the right to seek legal counsel concerning this agreement prior to
signing it, and (b) this arbitration provision shall remain in effect for all
care and services rendered at the Facility and for all admissions, even
if such care and services are rendered following the Resident’s
discharge and readmission to the Facility and even if such care and
services were rendered prior to the date this Agreement was executed.
9. The Parties agree that, by executing this Agreement, they will be bound
to arbitrate any dispute or claim that is asserted at any time in the future
regardless of when the occurrence, events or incidents related to the
claim occurred or transpired and regardless of whether the Resident still
resides at the Facility.
10. The parties agree the Resident and Responsible Party have other
choices with regard to the provision of long term care to the Resident
and they enter into this Agreement voluntarily. The parties
acknowledge that this Agreement involves interstate commerce and that
this Arbitration Agreement shall be governed by and interpreted under
the [FAA], 9 U.S.C. [§§] 1-16 [(2012)].
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(Emphasis in original).
¶9. Section F of the admission agreement reads as follows:
F. MISCELLANEOUS PROVISIONS
1. In the event any provision of this agreement is held to be unenforceable
for any reason, the unenforceability thereof shall not affect the
remainder of this Agreement, which shall remain in full force and effect
and [be] enforceable in accordance with its terms.
2. This Agreement may be executed in any number of counterparts, each
of which shall be an original, and all such counterparts together shall
constitute but one and the same instrument.
3. The Resident and Responsible Party availed themselves of the
opportunity, if they deemed it desirable, to have had third party advice
and legal counsel regarding this Agreement prior to its execution or
during the Termination Period set forth in Article D.2.
4. This Agreement constitutes the entire agreement among the Parties
pertaining to the subject matter contained in it and supersedes all prior
agreements, representations and all understandings of the parties. No
supplement, modification or amendment of this Agreement shall be
binding unless expressed as such and executed in writing by all parties
hereto.
5. ANY RESPONSIBLE PARTY OR PARTIES EXECUTING THIS
AGREEMENT REPRESENT AND WARRANT THAT THEY
HAVE AUTHORITY, EITHER EXPRESS, IMPLIED OR
APPARENT, TO ACT AS AGENT FOR THE RESIDENT AND
TO EXECUTE THIS AGREEMENT ON RESIDENT’S BEHALF.
LIKEWISE, THE PERSON EXECUTING THIS AGREEMENT
ON BEHALF OF THE FACILITY REPRESENTS AND
WARRANTS THAT THEY [sic] HAVE BEEN AUTHORIZED
TO EXECUTE THIS AGREEMENT ON THE FACILITY’S
BEHALF.
(Emphasis in original).
¶10. After section F, and immediately above the signature lines for an authorized facility
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representative and either the resident or representative, the admission agreement states:
THE UNDERSIGNED ACKNOWLEDGE THAT EACH OF THEM HAS
READ AND UNDERSTANDS THIS AGREEMENT, INCLUDING THE
ARBITRATION PROVISION, AND HAS RECEIVED A COPY OF
THIS AGREEMENT, AND THAT EACH OF THEM VOLUNTARILY
CONSENTS TO AND ACCEPTS ALL OF ITS TERMS.
(Emphasis in original).
¶11. It is undisputed that Jones signed the admission agreement on Glidewell’s behalf and
that no representative from WCSC signed the admission agreement. Further, it is undisputed
that WCSC began to provide its services for the care of Glidewell on December 21, 2010,
and continued to do so until Glidewell’s death. Kirkland contends that the circuit court
correctly found the arbitration agreement was unenforceable because it lacked the mutual
assent of the parties involved. Kirkland asserts that WCSC’s failure to sign the admission
agreement evidences a lack of assent to the contract’s terms.
¶12. Kirkland relies heavily on Byrd, 5 So. 3d 384.2 In Byrd, the patient’s son signed an
admission agreement with a nursing home that had a separate arbitration agreement on the
patient’s behalf. Id. at 386 (¶2). The nursing-home facility signed the general admission
agreement, but did not sign the separate arbitration agreement. Id. Following the patient’s
death, the son filed a complaint alleging, among other things, negligence. Id. The son also
2
Kirkland also cites several cases outside of our jurisdiction to support her argument.
See Pine Hills Health & Rehab. v. Matthews, 431 S.W.3d 910 (Ark. 2014) (setting aside
arbitration agreement for lack of mutual assent where nursing home did not sign agreement);
Baier v. Darden Rests., 420 S.W.3d 733, 739 (Mo. Ct. App. 2014) (setting aside arbitration
agreement for lack of mutual assent where employer did not sign agreement); Bair v. Manor
Care of Elizabethtown, PA, LLC, 108 A.3d 94 (Pa. Super. Ct. 2015) (setting aside arbitration
agreement for lack of mutual assent where agreement lacked essential terms and nursing-
home signature).
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sent a letter to the nursing home revoking the arbitration agreement before any agent or
representative of the facility signed the seperate arbitration agreement. Id. The Mississippi
Supreme Court determined that the son’s signature on the arbitration agreement constituted
an offer that was revoked before any agent of the nursing home manifested mutual assent.
Id. at 390 (¶19). The Byrd court rendered the separate arbitration agreement as
unenforceable. Id.
¶13. Here, Kirkland argues that the arbitration agreement and admission agreement, despite
being in the same document and not requiring separate signatures, are distinct and separate
legal documents. Kirkland contends that the terminology throughout the majority of the
admission agreement is fundamentally different from that in the arbitration-agreement
section. Specifically, Kirkland suggests that because the arbitration agreement uses the word
“execution,” it is a distinct agreement that requires a signature to facilitate an “execution”
of the agreement.
¶14. WCSC contests Kirkland’s argument and draws support from Slater-Moore v.
Goeldner, 113 So. 3d 521 (Miss. 2013). Although Slater-Moore is not a nursing-home case,
the case involves an arbitration agreement where one party did not sign the agreement. Id.
In Slater-Moore, a client signed a contract with an attorney for legal counsel that included
an arbitration agreement among various other terms of representation and payment; however,
the attorney did not sign the contract. Id. at 523 (¶1). The attorney provided all of the legal
representation requested within the contract, and the client paid the attorney for the service
provided. Id. at 526 (¶11). The supreme court found that “[t]he parties’ actions make it clear
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that they intended to be bound by the terms of the written agreement,” and upheld the
arbitration agreement. Id. Further, the supreme court explicitly distinguished Slater-Moore
from Byrd, emphasizing that the arbitration agreement in Byrd was a completely separate
document rather than a provision within a single contract. Id. Because the parties had
manifested their assent to the contract’s terms through their actions, and arbitration was
included within that contract, the court enforced the arbitration agreement. Id.
¶15. We find the facts in Slater-Moore analogous to the case at bar. Although WCSC did
not sign the admission agreement, the nursing facility provided its services to Glidewell and
was compensated for its services pursuant to the terms of the admission agreement. As seen
in Slater-Moore, when the contract provisions are part of the same document, assent to all
of the terms of the contract can be inferred through the parties’ actions of payment or
provision of services. In this case, the actions of both parties clearly evidence mutual assent
to the terms of the admission agreement as a whole.
¶16. We find Kirkland’s argument unpersuasive, and Byrd can be distinguished from the
case at hand. There is no evidence to suggest that there are two separate agreements
involved. The mere fact that the admission agreement refers to the arbitration provision as
“the arbitration agreement” does not mean that the provision is an entirely separate legal
document. In fact, the admission agreement also refers to the arbitration agreement as the
arbitration provision – implying that it is simply a part of the admission agreement.
Kirkland’s contention that only the arbitration provision required execution in the form of
signatures relies far too heavily upon the technical definition of the term “execution.” The
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supreme court has recognized that
[o]rdinarily one of the acts forming part of the execution of a written contract
is the signing of it, and the mere fact that a written instrument purports to be
an agreement does not constitute it a binding contract where it is not signed.
However, signature is not always essential to the binding force of an
agreement, and whether the signing of the instrument is a condition precedent
to its becoming a binding contract usually depends on the intention of the
parties. The object of a signature is to show mutuality or assent, but these facts
may be shown in other ways, as, for example, by the acts or conduct of the
parties.
....
The question as to whether those who have signed are bound is generally to be
determined by the intention and understanding of the parties at the time of the
execution of the instrument. The reason for holding the instrument void is that
it was intended that all the parties should execute [the agreement] and that
each executes it on the implied condition that it is to be executed by the others,
and, therefore, that until executed by all it is inchoate and incomplete and
never takes effect as a valid contract, and this is especially true where the
agreement expressly provides, or its manifest intent is, that it is not to be
binding until signed.
Turney v. Marion Cty. Bd. of Educ., 481 So. 2d 770, 774 (Miss. 1985) (quoting 17 C.J.S.
Contracts § 62 (1963)). As such, while a signature may be required for execution, the
arbitration agreement’s requirement of execution may be shown through actions or conduct.
See also Slater-Moore, 113 So. 3d at 526 (¶11). Furthermore, there is no separate signature
line for the arbitration agreement, merely a single line at the end of the admission agreement
that refers to the contract in its entirety.
¶17. We note that Kirkland attempted to revoke the arbitration agreement, but her attempt
came two years after Glidewell’s death and almost four years after WCSC began providing
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its services.3 To allow Kirkland to take issue now with a provision of the admission
agreement years after WCSC executed the contract through its provision of services would
be a windfall. In short, since Glidewell benefitted from the contract, she must be held
accountable to its terms.
¶18. After a review of the record, we find that the trial court erred in finding that the
arbitration provision in the admission agreement lacked the essential terms of a contract.
Although WCSC did not sign the agreement that included the arbitration provision, the
contract became binding when WCSC began providing nursing services to Glidewell. In
light of our findings, we reverse and remand this case for further proceedings consistent with
this opinion.
¶19. THE JUDGMENT OF THE WILKINSON COUNTY CIRCUIT COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.
LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON AND
GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION.
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Further, it is questionable whether Kirkland possessed the legal authority to revoke
an offer signed by Jones.
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