Arredondo v. SNH SE Ashley River Tenant, LLC ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Thayer W. Arredondo, as Personal Representative of the
Estate of Hubert Whaley, deceased, Petitioner,
v.
SNH SE Ashley River Tenant, LLC; FVE Managers,
Inc.; Five Star Quality Care, Inc.; SNH SE Tenant TRS,
Inc.; Senior Housing Properties Trust; SNH TRS, Inc.;
Candy D. Cure; John Doe; Jane Doe; Richard Roe
Corporation; and Mary Doe Corporation, Defendants,
Of which SNE SE Ashley River Tenant, LLC; FVE
Managers, Inc.; Five Star Quality Care, Inc.; SNH SE
Tenant TRS, Inc.; Senior Housing Properties Trust; SNH
TRS, Inc.; and Candy D. Cure are the Respondents.
Appellate Case No. 2019-001767
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Charleston County
J. C. Nicholson Jr., Circuit Court Judge
Opinion No. 28011
Heard November 19, 2020 – Filed March 10, 2021
REVERSED
Kenneth Luke Connor, Christopher Caleb Connor and
Laura S. Jordan, all of Connor & Connor, LLC, of Aiken,
for Petitioner.
G. Mark Phillips and Robert William Whelan, of Nelson
Mullins Riley & Scarborough, LLP, of Charleston, for
Respondents.
JUSTICE JAMES: This appeal concerns the enforceability of an arbitration
agreement executed between Ashley River Plantation, an assisted-living facility (the
facility), and Thayer Arredondo, the attorney-in-fact under two powers of attorney
executed by Hubert Whaley, a facility resident. In an unpublished opinion, the court
of appeals held the arbitration agreement was enforceable. Arredondo v. SNH SE
Ashley River Tenant, LLC, Op. No. 2019-UP-293 (S.C. Ct. App. filed Aug. 14,
2019). We hold neither power of attorney gave Arredondo the authority to sign the
arbitration agreement. Therefore, we reverse the court of appeals.
I. Background
On October 12, 2012, Arredondo decided to place Mr. Whaley, her father, in
Respondents' Ashley River Plantation assisted-living facility in Charleston. Whaley
was eighty-four years old, was diagnosed with dementia, and required assistance
with daily functions such as bathing, dressing, toileting, and taking medications.
When Whaley was admitted into the facility, Arredondo held two valid powers of
attorney, a General Durable Power of Attorney (GDPOA) and a Health Care Power
of Attorney (HCPOA).
When Arredondo and Whaley arrived at the facility, Arredondo met with a
facility representative and signed various documents in connection with Whaley's
admission. During that meeting, the facility representative did not mention or
present an arbitration agreement to Arredondo. Later that day, after Whaley was
admitted, Arredondo met with a different facility representative who, according to
Arredondo, told her she "needed to sign additional documents related to [her] father's
admission to the facility." Included among those documents was the arbitration
agreement, which Arredondo signed.
The arbitration agreement, which Arredondo obviously executed before any
dispute arose between the parties, contains a mutual waiver of the right to a trial by
judge or jury and requires arbitration of all claims involving potential damages
exceeding $25,000. The agreement bars either party from appealing the arbitrators'
decision, prohibits an award of punitive damages, limits discovery, and provides
Respondents the unilateral right to amend the agreement.
On February 21, 2014, while he was still a resident at the facility, Whaley was
admitted to Bon Secours St. Francis Hospital, where he died six days later.
Arredondo, as Personal Representative of Whaley's estate, brought this action
alleging claims for wrongful death and survival against Respondents. The complaint
alleges that during his residency at the facility, Whaley suffered serious physical
injuries and died as a result of Respondents' negligence and recklessness.
Respondents moved to compel arbitration. In opposition to the motion,
Arredondo argued (1) the two powers of attorney did not give her the authority to
sign the arbitration agreement, and (2) even if she had authority to sign it, the
agreement is unconscionable and therefore unenforceable. To buttress her
unconscionability argument, Arredondo submitted an affidavit in which she
described the events surrounding her execution of the arbitration agreement.
Arredondo stated that when she had questions about the arbitration agreement and
told the facility representative she was not comfortable signing it, the facility
representative responded, "this [is] a document that everyone sign[s] when admitting
their loved ones to the facility and that [Arredondo] needed to sign the 'Arbitration
Agreement' in order to ensure [Whaley's] admission to the facility." Respondents
insist the evidence supports only the conclusion that Arredondo's execution of the
arbitration agreement was not a prerequisite for Whaley's admission into the facility.
As we will discuss, our determination of whether Arredondo was required to sign
the agreement in order for Whaley to be admitted is dispositive of the threshold issue
of whether Arredondo had authority under the HCPOA to sign the arbitration
agreement.
In denying Respondents' motion to compel arbitration, the circuit court ruled
neither power of attorney gave Arredondo the authority to sign the arbitration
agreement and also ruled that even if Arredondo had authority to sign it, the
agreement is unconscionable. The court of appeals reversed, holding Arredondo had
actual authority to execute the arbitration agreement and holding the agreement is
not unconscionable. This Court granted Arredondo's petition for a writ of certiorari
to review the court of appeals' decision.
II. Discussion
"Arbitrability determinations are subject to de novo review." Johnson v.
Heritage Healthcare of Estill, LLC, 416 S.C. 508, 512, 788 S.E.2d 216, 218 (2016)
(quoting Dean v. Heritage Healthcare of Ridgeway, LLC, 408 S.C. 371, 379, 759
S.E.2d 727, 731 (2014)). "Nevertheless, a circuit court's factual findings will not be
reversed on appeal if any evidence reasonably supports the findings." Id. (quoting
Simpson v. MSA of Myrtle Beach, Inc., 373 S.C. 14, 22, 644 S.E.2d 663, 667 (2007)).
"The litigant opposing arbitration bears the burden of demonstrating that he has a
valid defense to arbitration." Id.Arredondo argues the court of appeals erred in holding the two powers of
attorney granted her authority to sign the arbitration agreement. She also contends
the court of appeals erred in holding the arbitration agreement is not unconscionable.
We hold neither power of attorney gave Arredondo the authority to execute the
arbitration agreement. In light of our holding on that point, we need not address the
issue of unconscionability.
A. Arredondo's Authority to Execute the Arbitration Agreement
"Our courts have looked to contract law when reviewing actions to set aside
or interpret a power of attorney." Stott v. White Oak Manor, Inc., 426 S.C. 568, 577,
828 S.E.2d 82, 87 (Ct. App. 2019). "The cardinal rule of contract interpretation is
to ascertain and give effect to the intention of the parties, and, in determining that
intention, the court looks to the language of the contract." Id. (quoting Watson v.
Underwood, 407 S.C. 443, 454-55, 756 S.E.2d 155, 161 (Ct. App. 2014)). "When
the language of a contract is plain and capable of legal construction, that language
alone determines the instrument's force and effect." Id. (quoting Watson, 407 S.C.
at 455, 756 S.E.2d at 161). Accordingly, we look to the specific language of the
GDPOA and HCPOA to determine whether either document authorized Arredondo
to execute a pre-dispute arbitration agreement.
Before we begin our review of the authority granted to Arredondo by the
powers of attorney, we emphasize our analysis does not turn upon the presence or
absence of an explicit reference to arbitration or arbitration agreements in the powers
of attorney. The decision of the United States Supreme Court (USSC) in Kindred
Nursing Centers Ltd. Partnership v. Clark1 forecloses such an approach. In Kindred,
the USSC reviewed two of three consolidated cases from the Supreme Court of
Kentucky, one dealing with a power of attorney signed by Wellner and another
signed by Clark.2 In both cases, the agents holding the powers of attorney signed
arbitration agreements when their principals were admitted into a nursing facility.
The Supreme Court of Kentucky held an agent was authorized to sign an arbitration
agreement depriving her principal of "an 'adjudication by judge or jury' only if the
power attorney 'expressly so provide[d].'" 137 S. Ct. at 1426 (quoting Whisman, 478
S.W.3d at 329). The USSC dubbed this approach the "clear-statement rule" and held
it violated the Federal Arbitration Act (FAA) by "fail[ing] to put arbitration
agreements on an equal plane with other contracts." Id. at 1426-27. The USSC then
held the Clark power of attorney undoubtedly authorized the agent to sign an
arbitration agreement because it granted the agent the all-encompassing authority
"to transact, handle, and dispose of all matters affecting me and/or my estate in any
possible way" and "[g]enerally to do and perform for me and in my name all that I
might do if present." Id. at 1425; see Whisman, 478 S.W.3d at 317-18. As such, no
remand for further proceedings related to the Clark power of attorney was necessary.
However, the USSC noted the Supreme Court of Kentucky had invalidated the
Wellner arbitration agreement on two alternative grounds, one based upon the
prohibited clear-statement rule and the other based upon the Kentucky Court's
finding that the Wellner power of attorney was not otherwise broad enough to allow
Wellner's agent to sign a pre-dispute arbitration agreement. Noting these alternative
holdings, the USSC remanded the Wellner case to the Supreme Court of Kentucky
for an analysis of whether the alternative holding was tainted by or not wholly
independent of the clear-statement rule. We discuss below the Supreme Court of
Kentucky's decision on remand.
1. The General Durable Power of Attorney
Paragraph one of the General Durable Power of Attorney (GDPOA)
authorized Arredondo:
1
137 S. Ct. 1421 (2017).
2
Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306 (Ky. 2015). Belinda
Whisman, the agent under a power of attorney executed by her father, was the lead
respondent in the three cases before the Supreme Court of Kentucky. However, only
the Wellner and Clark powers of attorney were before the USSC in Kindred.
To make, sign, execute, issue, assign, transfer, endorse, release, satisfy
and deliver any and all instruments or writing of every kind and
description whatsoever, whether sealed or unsealed, of, in or
concerning any or all of my business affairs, property or other assets
whatsoever, including all property, real, personal or mixed, stocks,
securities and choses in action, and wheresoever situated, including,
without limiting the generality hereof thereto, notes, bonds, mortgages,
leases, deeds, conveyances, bills of sale, and assignments,
endorsements, releases, satisfactions, pledges or any agreements
concerning any transfers of the above or of any other property, right or
thing.
(a) Chose in action
The court of appeals held the GDPOA granted Arredondo authority to execute
the arbitration agreement because it "granted Arredondo authority to execute all
instruments concerning all types of property, including 'choses in action.'" Further,
the court of appeals held Arredondo's authority under the GDPOA "extended to 'any
other property, right or thing.'" Arredondo first takes issue with what she claims was
the court of appeals' overly broad interpretation of the term "choses in action." She
contends the court of appeals erroneously elevated a chose in action to include a
cause of action that did not exist at the time Arredondo signed the arbitration
agreement. In light of the language used in the GDPOA, we agree with Arredondo.
A "chose in action" is a type of property interest or a proprietary right to a
claim or debt. See Ball v. Ball, 312 S.C. 31, 33-34, 430 S.E.2d 533, 534-35 (Ct.
App. 1993) (holding a vested military pension was a "chose in action," or form of
property, because the recipient "could maintain an action at law to enforce this right
should the military ever wrongfully attempt to deny it to him"), aff'd, 314 S.C. 445,
445 S.E.2d 449 (1994); see also Chose in Action, Black's Law Dictionary (11th ed.
2019) (defining "chose in action" as "a proprietary right in personam, such as a debt
owed by another person, a share in a joint-stock company, or a claim for damages
in tort" (emphasis added)). Arredondo and Respondents agree "chose in action"
generally means "cause of action."
Respondents contend the court of appeals correctly held the GDPOA
authorized Arredondo to sign the arbitration agreement because the agreement
concerned a cause of action against the facility. Again, Arredondo argues this
interpretation fails because Whaley did not possess a cause of action against
Respondents at the time the arbitration agreement was signed. Respondents cite Ball
for the proposition that "South Carolina courts construe the term 'property' very
broadly." 312 S.C. at 33, 430 S.E.2d at 534. We agree with that basic proposition,
but it does not necessarily mean the GDPOA applied to a property right that did not
exist at the time Arredondo signed the arbitration agreement. We return to Kindred
and the Supreme Court of Kentucky's decision on remand to explain.
As noted above, in Kindred, the USSC remanded the case of the Wellner
power of attorney with instructions to the Supreme Court of Kentucky to determine
whether its application of the prohibited "clear-statement rule" impermissibly tainted
its alternative holding that the Wellner power of attorney otherwise did not authorize
Wellner's agent to sign a pre-dispute arbitration agreement. 137 S. Ct. at 1429. The
Supreme Court of Kentucky considered the remanded issue in Kindred Nursing
Centers Ltd. Partnership v. Wellner, 533 S.W.3d 189 (Ky. 2017). One provision of
the Wellner power of attorney authorized Wellner's agent "to make, execute and
deliver deeds, releases, conveyances and contracts of every nature in relation to both
real and personal property, including stocks, bonds, and insurance." Wellner, 533
S.W.3d at 193 (quoting Whisman, 478 S.W.3d at 325). Similar to Respondents'
position in the instant case, the nursing facility seeking to enforce the arbitration
agreement in Wellner claimed the term "personal property" included choses in action
such as personal injury claims. Id. at 192-93. While the Supreme Court of Kentucky
recognized "a personal injury claim is a chose-in-action, and therefore constitutes
personal property," it nevertheless held—independently of the clear-statement
rule—the "pre-dispute arbitration contract did not relate to any property rights
of . . . Wellner." Id. at 194 ("By executing [the nursing home's] pre-dispute
arbitration agreement, [Wellner's agent] did not 'make, execute and deliver deeds,
releases, conveyances and contracts of [any] nature in relation to [Wellner's]
property.' The only 'thing' of . . . Wellner's affected by the pre-dispute arbitration
agreement was his constitutional rights, which no one contends to be his real or
personal property." (quoting Whisman, 478 S.W.3d at 325-26)).
We agree with the rationale of the Supreme Court of Kentucky.3 We hold this
particular GDPOA did not authorize Arredondo to sign the arbitration agreement
because the arbitration agreement did not concern a chose in action or any other
property right Whaley possessed at the time Arredondo signed it.
3
The USSC denied the nursing facility's subsequent petition for a writ of certiorari.
Kindred Nursing Ctrs. Ltd. P'ship v. Wellner, 139 S. Ct. 319 (2018).
(b) "Transfer" of property, right, or thing
We also hold the court of appeals erred in concluding Arredondo's authority
under the GDPOA "extended to 'any other property, right or thing.'" The court of
appeals took this phrase out of context, as the complete provision including this
phrase authorized Arredondo to execute "any agreements concerning any transfers
of the above or of any other property, right or thing." (emphases added). The
GDPOA does not define "transfers." "Where a contract is unambiguous, clear and
explicit, it must be construed according to the terms which the parties have used, to
be taken and understood in their plain, ordinary, and popular sense." Warner v.
Weader, 280 S.C. 81, 83, 311 S.E.2d 78, 79 (1983). The plain, ordinary, and popular
meaning of the noun "transfer" is a "conveyance of right, title, or interest in real or
personal property from one person to another." Transfer, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/transfer (last visited Mar.
4, 2021). By signing the arbitration agreement, Arredondo (for herself, for Whaley,
and for his heirs and executors) waived the right to a jury trial, waived any claim to
punitive damages, agreed to limited discovery, and waived the right to appeal the
arbitration decision. These acts were not "transfers" of anything to anyone. Thus,
the provision of the GDPOA authorizing Arredondo to enter into any agreements
concerning transfers of any property, right, or thing did not grant her the authority
to sign the arbitration agreement.
(c) Title of GDPOA
Finally, Respondents argue the power of attorney's title—"General Durable
Power of Attorney"—suggests Whaley intended for the instrument to grant
Arredondo broad authority. Rather than relying on such a generalization, we look
to the actual language of the GDPOA to determine what authority it granted
Arredondo. While the GDPOA gave Arredondo significant authority to make
business and property decisions for Whaley, the mere title of the document did not
increase Arredondo's authority beyond the plain meaning of the provisions contained
in the document. Certainly, the GDPOA could have been drafted to give Arredondo
the broad power to sign all documents Whaley could sign himself or otherwise do
anything Whaley could do himself, but it was not so drafted. Cf. Kindred, 137 S.
Ct. at 1429 (explaining the Clark power of attorney, which provided the agent power
"to transact, handle, and dispose of all matters affecting me and/or my estate in any
possible way," and "generally to do and perform for me and in my name all that I
might do if present," was broad enough to authorize the execution of a pre-dispute
arbitration agreement).
For the foregoing reasons, we hold the court of appeals erred in concluding
the GDPOA granted Arredondo authority to execute the arbitration agreement.
2. The Health Care Power of Attorney
When Whaley was admitted to the facility, Arredondo also held a Health Care
Power of Attorney (HCPOA) naming her as Whaley's attorney-in-fact. In their
arguments regarding Arredondo's authority under this instrument, the parties focus
solely upon the provisions of subparagraph 11(d) in the "Agent's Powers" section of
the HCPOA. Subparagraph 11(d) authorized Arredondo:
To take any other action necessary to making, documenting, and
assuring implementation of decisions concerning my health care,
including, but not limited to, granting any waiver or release from
liability required by any hospital, physician, nursing care provider, or
other health care provider; signing any documents relating to refusals
of treatment or the leaving of a facility against medical advice, and
pursuing any legal action in my name, and at the expense of my estate
to force compliance with my wishes as determined by my agent, or to
seek actual or punitive damages for the failure to comply.
(a) Action "necessary" to making, documenting, or implementing
a health care decision
The court of appeals held the HCPOA granted Arredondo the authority to sign
the arbitration agreement because it authorized her "to pursue legal action and to
grant any waiver required by health care providers such as [Respondents]." We will
discuss that holding in a moment, but we initially address the first clause of
subparagraph 11(d). Arredondo clearly had no authority to take any action under
the first clause of subparagraph 11(d) unless the action taken was "necessary to
making, documenting, and assuring implementation" of a decision concerning
Whaley's health care. (emphasis added). The only health care decision in play when
Arredondo signed the arbitration agreement was Arredondo's decision to seek
Whaley's admission into the facility. Consequently, we must determine whether
signing the arbitration agreement was "necessary" to Arredondo making,
documenting, and assuring implementation of that decision.
The plain, ordinary, and popular meaning of the word "necessary" is
"absolutely needed" or "required." Necessary, Merriam-Webster Dictionary, https://
www.merriam-webster.com/dictionary/necessary (last visited Mar. 4, 2021). We
hold Arredondo's signature on the arbitration agreement was not "absolutely needed"
or "required" to ensure Whaley's admission into the facility. In support of her
argument on the separate issue of whether the arbitration agreement is
unconscionable, Arredondo submitted her affidavit in which she testified a facility
representative told her she had to sign the agreement in order for Whaley to be
admitted. On the issue of unconscionability, Respondents have consistently
maintained Arredondo was not required to sign the arbitration agreement. During
its discussion of the issue of unconscionability, the circuit court found, "[Arredondo]
was only told [the arbitration agreement] must be signed to ensure [Whaley's]
admission to the facility." (emphasis added by the circuit court). These arguments
relative to unconscionability cut against the parties' respective interests on the
threshold issue of Arredondo's authority under the HCPOA. Nevertheless, we must
determine the propriety of this factual finding of the circuit court by examining the
evidence in the record. See Johnson, 416 S.C. at 512, 788 S.E.2d at 218 ("[A] circuit
court's factual findings will not be reversed on appeal if any evidence reasonably
supports the findings." (citation omitted)). We hold the evidence in the record
reasonably supports only the finding urged by Respondents—the arbitration
agreement was presented to Arredondo as a "voluntary standalone" agreement that
was not a prerequisite for Whaley's admission into the facility. Arredondo plainly
stated in her affidavit that Whaley had already been admitted into the facility and
provided with a room before Arredondo was asked to sign the arbitration agreement.
Similarly, in their brief to this Court, Respondents state: "[The facility] did not
present the Agreement until after Arredondo received the services she requested."
As Respondents stressed during oral argument before this Court, once Whaley was
admitted to the facility, he was entitled to statutory protections, and the facility could
not have discharged him had Arredondo refused to sign the arbitration agreement.
See S.C. Code Ann. § 44-81-40(D) (2018) ("A resident may be transferred or
discharged only for medical reasons, for the welfare of the resident or for the welfare
of other residents of the facility, or for nonpayment and must be given written notice
of not less than thirty days . . . .").
As courts in other jurisdictions have recognized, the characterization of an
arbitration agreement as either a mandatory condition to admission or an optional,
collateral agreement often determines the authority issue when the agent holds a
power of attorney empowering her to make necessary health care decisions.
Compare LP Louisville E., LLC v. Patton, 605 S.W.3d 300, 311 (Ky. 2020)
("[W]hen an agreement to arbitrate is presented as a condition of admission to a
nursing home, unless otherwise agreed, a power of attorney expressing general
authority to make necessary health care decisions includes the incidental or
reasonably necessary authority to enter that agreement."), with Dickerson v.
Longoria, 995 A.2d 721, 739 (Md. 2010) (explaining an agent authorized to make
health care decisions on his principal's behalf did not have authority to execute a
voluntary arbitration agreement because "[t]he decision to sign a free-standing
arbitration agreement is not a health care decision if the patient may receive health
care without signing the arbitration agreement"), Life Care Ctrs. of Am. v. Smith,
681 S.E.2d 182, 185-86 (Ga. Ct. App. 2009) (explaining health care power of
attorney did not authorize daughter to execute "optional" arbitration agreement on
mother's behalf when daughter was authorized "to make any decision [the mother]
could make to obtain or terminate any type of health care"), Miss. Care Ctr. of
Greenville, LLC v. Hinyub, 975 So. 2d 211, 218 (Miss. 2008) (explaining health care
surrogate did not have authority to execute arbitration agreement on her father's
behalf because the execution of an arbitration agreement is not a health care decision
when the arbitration agreement is not required for admission into the nursing home),
Coleman v. United Health Servs. of Ga., Inc., 812 S.E.2d 24, 26 (Ga. Ct. App. 2018)
(explaining agent authorized to take action necessary to admit principal to health
care facility did not have authority to execute "voluntary" arbitration agreement),
Wisler v. Manor Care of Lancaster PA, LLC, 124 A.3d 317, 324 (Pa. Super. Ct.
2015) (stating an agent's authority to consent to medical treatment on behalf of a
principal "does not necessarily entail the authority to consent to arbitration,
agreement to which was not a precondition to be admitted to [the facility]"), and
Miller v. Life Care Ctrs. of Am., Inc., 478 P.3d 164, 172-74 (Wyo. 2020) (explaining
durable health care power of attorney did not give agent authority to execute
arbitration agreement because arbitration agreement was not required for admission
to health care facility and, therefore, was unrelated to principal's health care).
(b) Authority to grant any waiver required by a health care provider
We now return to the court of appeals' holding that subparagraph 11(d) of the
HCPOA granted Arredondo the authority to sign the arbitration agreement because
the HCPOA authorized her "to pursue legal action and to grant any waiver required
by health care providers such as [Respondents]." Addressing the second part of this
holding first, we note subparagraph 11(d) gave Arredondo the authority to sign only
those waivers "required by [a] . . . health care provider." (emphasis added). As
Respondents contend, the arbitration agreement includes a series of waivers (of the
right to adjudication by a judge or jury, of the right to an award of punitive damages,
and of the right to an appeal). As we have already discussed, Arredondo was not
required to sign the arbitration agreement for Whaley to be admitted. Since
Arredondo was not required to sign the arbitration agreement, it logically follows
that any waivers contained in the agreement were not required by the facility. For
the reasons set forth above in our discussion of the term "necessary," we conclude
the HCPOA did not give Arredondo the authority to grant the waivers recited in the
arbitration agreement.
(c) Authority to pursue legal action
The court of appeals also held the provision in subparagraph 11(d) of the
HCPOA authorizing Arredondo to "pursu[e] any legal action in [Whaley's] name"
granted her the authority to sign the arbitration agreement. Arredondo claims that
because she signed the arbitration agreement before any potential legal claim
accrued, this provision did not grant her authority to sign the agreement.
Respondents argue this language of the HCPOA did not limit Arredondo's authority
to taking action only after a cause of action accrues. Respondents contend
Arredondo's authority to pursue legal action included selecting arbitration as a
preferred forum for dispute resolution.
We first note the parties overlook the context in which this provision appears
in subparagraph 11(d) of the HCPOA. This provision authorized Arredondo to
pursue legal action only to "force compliance with [Whaley's] wishes as determined
by [Whaley's] agent, or to seek actual or punitive damages for the failure to comply."
For that reason alone, we hold this provision of the HCPOA is of no significance in
this case. However, even if this provision authorized Arredondo to pursue legal
action unrelated to forcing compliance with Whaley's health care wishes, this
provision still did not authorize Arredondo to sign a pre-dispute arbitration
agreement. In Wellner, the Supreme Court of Kentucky analyzed a provision of the
Wellner power of attorney authorizing the agent to "demand, sue for, collect, recover
and receive all . . . demands whatsoever," and to "institute legal proceedings." 533
S.W.3d at 193-94. The Court recognized "the power to institute or defend suits
concerning [Wellner's] property rights would necessarily encompass the power to
make litigation-related decisions within the context of a suit so instituted, including
the decision to submit the pending dispute to mediation or arbitration." Id. at 193
(quoting Whisman, 478 S.W.3d at 323) (internal quotation marks omitted). Yet, the
Court held the provision did not grant the agent authority to execute a pre-dispute
arbitration agreement: "the act of executing a pre-dispute arbitration agreement upon
admission to a nursing home ha[s] nothing at all to do with . . . institut[ing] legal
proceedings." Id. at 193-94 (quoting Whisman, 478 S.W.3d at 325) (internal
quotation marks omitted) (second alteration in original). Here, Arredondo did not
execute the arbitration agreement in connection with an existing claim Whaley had
against the facility. We again agree with the Supreme Court of Kentucky's reasoning
and conclude Arredondo's execution of the pre-dispute arbitration agreement did not
constitute the pursuit of legal action.
We hold the court of appeals erred in holding the HCPOA granted Arredondo
authority to execute the arbitration agreement.
III. Conclusion
Under the facts of this case, neither the GDPOA nor the HCPOA granted
Arredondo authority to execute the arbitration agreement. Therefore, we reverse the
court of appeals and hold the arbitration agreement is unenforceable. We need not
address Arredondo's argument that the arbitration agreement is unconscionable. See
Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591,
598 (1999) (providing that an appellate court need not address remaining issues
when resolution of a prior issue is dispositive).
REVERSED.
BEATTY, C.J., KITTREDGE and HEARN, JJ., concur. FEW, J., concurring
in a separate opinion.
JUSTICE FEW: I concur in the majority opinion. I write only to address
Respondents' and the court of appeals' reliance on the obsolete phrase "chose in
action." The majority takes two steps regarding Respondents' argument as to the
meaning of the phrase "chose in action." The majority's first step is to hold that the
phrase does not mean what Respondents claim it means. I completely agree with
the majority. The second step is unnecessarily to define the phrase. In doing so,
the majority brings a new and undeserved life to a phrase that—in my opinion—
has no precise meaning in modern law. It is time for attorneys and courts to stop
using such antiquated phrases, not to resuscitate them.
Historically, a "chose" was a "thing," as in a physical thing. See William C.
Anderson, A DICTIONARY OF LAW 179 (1891) (defining "CHOSE" as "A thing
recoverable by an action at law: a thing, personalty"); 1 Alexander M. Burrill, A
LAW DICTIONARY AND GLOSSARY 288 (1869) (defining "CHOSE" as "A thing").
A "chose in action" was the legal right to bring an action in court to recover the
thing, "A thing of which one has not the possession or actual enjoyment, but only a
right to it, or a right to demand it by action at law." Burrill, supra, at 288. Even in
the nineteenth century, however, the phrase had no precise definition, and the
general definition changed over time according to usage. See, e.g., William R.
Anson, PRINCIPLES OF THE LAW OF CONTRACT 362 n.(b) (1919) ("The term chose
in action has been in common use for a long time, but some doubts have been
recently raised as to its precise meaning." (citing Law Quarterly Review for 1983,
1894, 1895)). In one lengthy attempt at explaining the meaning of the phrase, two
authors wrote, "Originally the term was only applied to a right of action in the
strict sense, that is, the right to bring an action at law, but subsequently it was
extended to the right of taking proceedings in equity." 1 Stewart Rapalje and
Robert L. Lawrence, A DICTIONARY OF AMERICAN AND ENGLISH LAW 207 (1883);
see also id. ("A right of presentation to a benefice when the church is vacant is
called in the old books a chose in action; but this use of the word is obsolete.")
(citation omitted). Other early commentators described varying limits for the use
of the phrase. See, e.g., Percy Bordwell, Seisin and Disseisin (Concluded) v.
Chattels, 34 Harv. L. Rev. 717, 722-23 (1921) (stating "it is hard to include a right
to a chattel in the adverse possession of another as a chose in possession, just as it
is hard to include under choses in action such incorporeal rights as patents,
copyrights, and trade names which have none of the ephemeral characteristics of
rights of action"); Thaddeus D. Kenneson, Purchase for Value Without Notice, 23
Yale L.J. 193, 194 (1914) (stating "a chose in action always presupposes a personal
relation between two individuals").
In South Carolina, a "chose in action" included a right to property in the form of
"notes or bonds," such as those "taken by an administrator at a sale of his intestate's
estate." Rhame v. Lewis, 34 S.C. Eq. 269, 303 (13 Rich Eq. 93, 105) (Ct. App.
1867) (citing Thackum v. Longworth, 11 S.C. Eq. 267, 274 (2 Hill Eq. 132, 134)
(Ct. App. L. & Eq. 1835)). Still, the phrase was used to describe "a thing" in the
sense of an existing right in property that is not in the owner's current possession.
The phrase is used in one subsection of our Rules of Civil Procedure, Rule 17(e),
and in several current sections of the South Carolina Code, each retaining the link
between the phrase and "property." See, e.g., S.C. Code Ann. § 12-6-30(11)
(2014) (defining "Tangible property" in the Income Tax Act to exclude "choses in
action"); S.C. Code Ann. § 12-16-20(4) (2014) (defining "Intangible personal
property" in the Estate Tax Act to include "choses in action"); S.C. Code Ann. §
16-23-710(17) (2015) ("'Property' . . . includ[es] . . . choses in action, and other
similar interest in property."); S.C. Code Ann. § 33-36-840(2) (2006) (providing
after merger of not-for-profit corporations, "The new or surviving corporation . . .
possesses . . . all property, real and personal, applications for membership, all debts
due on whatever account, and all other choses in action of each of the
consolidating or merging corporations."); S.C. Code Ann. § 40-39-10(3) (Supp.
2020) (defining "Pledged goods" as to "Pawnbrokers" as "tangible personal
property . . . , choses in action, . . . , which property is deposited with or otherwise
actually delivered into the possession of a pawnbroker in the course of his
business").
In the 1979 edition of BLACK'S LAW DICTIONARY, "Chose" still meant, "A thing; an
article of personal property," Chose, BLACK'S LAW DICTIONARY (5th ed. 1979), and
"Chose in action" still meant, "Right of proceeding in a court of law to procure
payment of sum of money, or right to recover a personal chattel or a sum of money
by action," Chose in action, BLACK'S LAW DICTIONARY (5th ed. 1979). Eventually,
as usage changed, courts and commentators have expanded the definition. See,
e.g., Narruhn v. Alea London Ltd., 404 S.C. 337, 344 n.3, 745 S.E.2d 90, 93 n.3
(2013) ("A 'chose in action' has been variously defined . . . ."); Anson, supra, at
362 n.1 ("The term 'chose in action' may have once meant the physical thing to be
recovered; but it now means an aggregate of legal relations that include one or
more rights in personam. It does not include patents or copyrights, for in these
rights are in rem."); chose in action, BLACK'S LAW DICTIONARY (11th ed. 2019)
(stating the phrase includes "A proprietary right in personam, such as . . . a claim
for damages in tort").
If there was a time in our history when the phrase conveyed a precise meaning, the
phrase has lost that meaning as the passage of time brought new usages. What is
left of "chose in action" is a descriptive phrase with no precise meaning, a phrase
we should stop using because it is not only vague and meaningless but also
obsolete. Today, if lawyers wish to write legal instruments such as powers of
attorney with precise meaning, they should use phrases that in current usage are
defined precisely, and they should avoid phrases like "chose in action" that mean
nothing.
As the majority explains, the Supreme Court of the United States reversed the
Kentucky Supreme Court's interpretation of a power of attorney regarding
arbitration because the "clear statement rule" the Kentucky court's interpretation
created "fails to put arbitration agreements on an equal plane with other contracts."
Kindred Nursing Centers Ltd. P'ship v. Clark, 137 S. Ct. 1421, 1427, 197 L. Ed. 2d
806, 812 (2017). Our Court, therefore, may not find a power of attorney
inadequate to grant the authority to agree to arbitration based on what the
document does not say about arbitration. In this case, our Court must examine
what the General Durable Power of Attorney does say about Ms. Arredondo's
authority to bind her father. Respondents rely on what they claim is clarity in the
phrase "choses in action." In using the phrase "chose in action," however, the
General Durable Power of Attorney does not grant any authority because the
phrase does not mean anything. The majority's first step ends the analysis because
the phrase "choses in action" does not say a thing about Ms. Arredondo's authority
to bind her father to an arbitration provision.