Robinson Nursing and Rehabilitation Center, LLC, D/B/A Robinson Nursing and Rehabilitation Center Central Arkansas Nursing Centers, Inc. Nursing Consultants, Inc. And Michael Morton v. Andrew Phillips, as Personal Representative of the Estate of Dorothy Phillips, and on Behalf of the Wrongful Death Beneficiaries of Dorothy Phillips And on Behalf of Themselves and All Others Similarly Situated , 2022 Ark. 109 ( 2022 )

Cite as 2022 Ark. 109SUPREME COURT OF ARKANSAS
No. CV-21-327
Opinion Delivered: May 19, 2022
ROBINSON NURSING AND
REHABILITATION CENTER, LLC, APPEAL FROM THE PULASKI
D/B/A ROBINSON NURSING AND COUNTY CIRCUIT COURT [NO. 60CV-
REHABILITATION CENTER; CENTRAL 14-4568]
ARKANSAS NURSING CENTERS, INC.;
NURSING CONSULTANTS, INC.; AND HONORABLE TIMOTHY DAVIS FOX,
MICHAEL MORTON JUDGE
APPELLANTS
V. REMANDED WITH INSTRUCTIONS.
ANDREW PHILLIPS, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF
DOROTHY PHILLIPS, AND ON
BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF DOROTHY
PHILLIPS; AND ON BEHALF OF
THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED
APPELLEES
BARBARA W. WEBB, Justice
Robinson Nursing and Rehabilitation Center, LLC, d/b/a Robinson Nursing and
Rehabilitation Center (Robinson) appeals from a Pulaski County Circuit Court order
denying its motion styled “Motion to Enforce Arbitration Agreements and to Compel Class
Members with Arbitration Agreements to Submit Their Claims to Binding Arbitration.” On
appeal, Robinson argues that the circuit court erred in refusing to enforce valid arbitration
agreements consistent with the law of the case.
Andrew Phillips, as personal representative of the Estate of Dorothy Phillips, and on
behalf of the wrongful-death beneficiaries of Dorothy, as well as class representative in this
class-action suit, cross-appeals. He argues that (1) this court should entertain this cross-appeal
because the underlying order involves an issue that is fundamental to the further conduct of
this case; (2) the circuit court erred by granting the motion to compel arbitration without
allowing plaintiffs to access the mental assessments needed to analyze competency; and (3)
the circuit court’s order should also be reversed for the reasons discussed in the responsive
argument.
We note, however, that in ruling on Robinson’s motion to compel arbitration, the
circuit court made no findings whatsoever. The circuit court’s order, from which this appeal
is taken, granted Robinson’s motion to compel arbitration as to 93 residents and denied it
with respect to 104 residents. In Bank of the Ozarks, Inc. v. Walker, 2014 Ark. 223, 434 S.W.3d
357, we were confronted with a similar situation, and we remanded the case to the circuit
court to make appropriate findings. As in the case at bar, the circuit court in Walker denied
a motion to compel arbitration without stating the basis for that decision. It is essential that
we are made aware of the circuit court’s rationale for its decision so that we can conduct a
proper appellate review. In accordance with Walker, we remand this case to the circuit court
and instruct it to make findings regarding its decision denying Robinson’s motion to compel
arbitration.
Remanded with instructions.
Special Justice GREG VARDAMAN joins.
2
BAKER, HUDSON, and WYNNE, JJ., dissent.
WOOD, J., not participating.
COURTNEY RAE HUDSON, Justice, dissenting. Because the majority’s decision to
remand this case for findings is both an abrupt departure from our precedent and
inconsistent with our review of the prior appeal in this very same case, I must dissent. We
review a circuit court’s order denying a motion to compel arbitration de novo on the
record. E.g., Robinson Nursing & Rehab. Ctr., LLC v. Phillips, 2019 Ark. 305, 586 S.W.3d
624, cert. denied, 141 S. Ct. 161 (2020) (“Robinson II”); Courtyard Gardens Health & Rehab.,
LLC v. Arnold, 2016 Ark. 62, 485 S.W.3d 669. Nonetheless, the majority chooses to skirt
the merits and punt this matter back to the circuit court to “complete” a task that it already
did. This is a waste of judicial resources, along with the litigants’ time and money. Even
more significantly, it is a glaring refusal by this court to do its job. What is the majority
avoiding?
In Bank of the Ozarks, Inc. v. Walker, 2014 Ark. 223, 434 S.W.3d 357, we held for the
first time that a circuit court is required to make express findings on the threshold issues of
whether a valid arbitration agreement exists and whether the dispute falls within the scope
of the agreement before reaching any equitable defenses presented by the parties. The
situation in that case, however, was very different from the one here. In Bank of the Ozarks,
although the appellees disputed the existence of a valid arbitration agreement in addition to
having raised the defenses of waiver and unconscionability, the circuit court denied the
appellants’ motion to compel based only on the defense of unconscionability. Id. We stated
3
that without a finding on the threshold issues, we can only speculate about whether the
circuit court considered them. Id.In the present case, appellees also challenged whether a valid agreement to arbitrate
existed and raised contract defenses. However, instead of stating a particular basis for its
ruling, the circuit court generally denied Robinson’s motion to compel. We have consistently
held that when a circuit court denies a motion to compel arbitration without expressly stating
the basis for its ruling, that ruling encompasses all the issues presented to the circuit court
by the briefs and arguments of the parties. Robinson II, supra; Reg’l Care of Jacksonville, LLC v.
Henry, 2014 Ark. 361, 444 S.W.3d 356; Asset Acceptance, LLC v. Newby, 2014 Ark. 280, 437
S.W.3d 119. Thus, by its general denial, the circuit court did in fact rule on each of the
arguments raised by appellees, including the threshold issue of whether a valid arbitration
agreement exists.
In Newby, supra, we addressed a nearly identical situation to the one before us in the
context of our decision in Bank of the Ozarks. The circuit court in Newby entered a written
order generally denying the motion to compel arbitration. Id. In determining that it was not
necessary to reverse and remand, we concluded that “the circuit court’s blanket denial of the
motion to compel arbitration constitutes a ruling on all of the issues raised by the parties.
Because the circuit court has ruled on the threshold issue of mutual assent, this case is
distinguishable from Bank of the Ozarks, and we are not precluded from reviewing [the] merits
of this appeal.” Newby, 2014 Ark. 280, at 7, 437 S.W.3d at 123. We therefore held with
4
clarity in Newby that a blanket denial satisfied the requirements of Bank of the Ozarks. Oddly,
today we hold the opposite.
By remanding this appeal for further findings in reliance on Bank of the Ozarks, the
majority’s decision not only overrules Newby sub silentio but also marks yet another dramatic
shift in our appellate review of arbitration agreements and further confuses what is required
of a circuit court in addressing a motion to compel. Even more concerning is that this court
addressed the merits of the previous appeal in Robinson II, supra, despite exactly the same
blanket denial of the motion to compel that we have here. It is abundantly unfair to the parties
and to the circuit court to change our principles of review in the midst of a single case. As a
result of today’s decision, different sets of arbitration agreements in this case will be reviewed
under different standards. Sadly, the majority’s opinion is a textbook example of a blatant
disregard for the very thing we are sworn to protect, the Rule of Law. Thus, I cannot join in
the majority opinion.
BAKER and WYNNE, JJ., join.
Hardin, Jesson & Terry, PLC (Little Rock), by: Jeffrey W. Hatfield, Kynda Almefty, and
Carol Ricketts; and Hardin, Jesson & Terry, PLC (Fort Smith), by: Kirkman T. Dougherty and
Stephanie I. Randall, for appellants.
Reddick Moss, PLLC, by: Matthew D. Swindle and Heather G. Zachary; and Campbell Law
Firm, P.A., by: H. Gregory Campbell, for appellees.
5