Manhattan Nursing & Rehabilitation Center, LLC v. Ira W. Simmons ( 2007 )


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  •               IN THE SUPREME COURT OF MISSISSIPPI
    NO. 2007-IA-01673-SCT
    LISA BYRD, AURORA CARES, LLC d/b/a TARA CARES,
    MANHATTAN NURSING & REHABILITATION
    CENTER, LLC, BEVERLY ENTERPRISES, INC,
    BEVERLY HEALTH & REHABILITATION SERVICES,
    INC. f/k/a BEVERLY CALIFORNIA CORP., BEVERLY
    ENTERPRISES-MISSISSIPPI, INC., MANHATTAN
    HEALTH CARE CENTER d/b/a BEVERLY
    HEALTHCARE-MANHATTAN d/b/a BEVERLY
    HEALTHCARE-EASON BOULEVARD d/b/a BEVERLY
    HEALTHCARE TUPELO AND BOBBIE BLACKARD
    v.
    IRA W. SIMMONS
    DATE OF JUDGMENT:               09/06/2007
    TRIAL JUDGE:                    HON. BOBBY BURT DELAUGHTER
    COURT FROM WHICH APPEALED:      HINDS COUNTY CIRCUIT COURT
    ATTORNEYS FOR APPELLANTS:       HARDIN CHASE PITTMAN
    REBECCA ADELMAN
    HEBER S. SIMMONS
    WILLIAM MELVIN ROSAMOND
    WILLIAM EUGENE GRUBBS
    ATTORNEY FOR APPELLEE:          JOHN GORDON SIMS
    NATURE OF THE CASE:             CIVIL - CONTRACT
    DISPOSITION:                    AFFIRMED AND REMANDED - 03/19/2009
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    CONSOLIDATED WITH
    NO. 2007-CA-01775-SCT
    MANHATTAN NURSING & REHABILITATION
    CENTER, LLC, AURORA CARES, LLC d/b/a TARA
    CARES, BOBBIE BLACKARD AND LISA BYRD
    v.
    IRA W. SIMMONS
    DATE OF JUDGMENT:                          07/18/2007
    TRIAL JUDGE:                               HON. BOBBY BURT DELAUGHTER
    COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
    ATTORNEYS FOR APPELLANT:                   HARDIN CHASE PITTMAN
    REBECCA ADELMAN
    HEBER S. SIMMONS
    WILLIAM MELVIN ROSAMOND
    ATTORNEY FOR APPELLEE:                     JOHN GORDON SIMS, III
    NATURE OF THE CASE:                        CIVIL - CONTRACT
    DISPOSITION:                               AFFIRMED AND REMANDED - 03/19/2009
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    EN BANC.
    GRAVES, PRESIDING JUSTICE, FOR THE COURT:
    ¶1.    The underlying dispute in this case concerns the care and treatment of a patient at
    Manhattan Nursing & Rehabilitation Center (Manhattan Nursing) in Hinds County.
    Following the patient’s death, her son sued multiple defendants in Hinds County Circuit
    Court, alleging negligence, gross negligence, and breach of contract. Several defendants
    moved to compel arbitration pursuant to an arbitration agreement signed by the plaintiff. The
    circuit court denied the motions to compel arbitration. Thereafter, these defendants appealed
    to this Court.
    FACTS
    2
    ¶2.    On September 23, 2003, Elsie Fidelia Simmons (Mrs. Simmons) was admitted to
    Manhattan Nursing, which was then known as Beverly Healthcare-Manhattan. When Mrs.
    Simmons was admitted, her son, Ira Simmons, signed the admission agreement as his
    mother’s “designated representative.” A representative from Manhattan Nursing also signed
    the admission agreement. Mrs. Simmons did not sign the admission agreement. The
    admission agreement was followed by five appendices and four exhibits. Exhibit B was an
    arbitration agreement. Again, the arbitration agreement was signed by Simmons, as his
    mother’s “designated representative,” but not by Mrs. Simmons. The signature line on the
    arbitration agreement for an “Authorized Representative” of the facility is blank. Mrs.
    Simmons died on August 22, 2004, while still a resident at Manhattan Nursing.
    ¶3.    On May 18, 2005, Simmons filed a complaint against Aurora Cares, LLC, Manhattan
    Nursing, Beverly Enterprises, Inc., Beverly Health and Rehabilitation Services, Inc., Beverly
    Enterprises Mississippi, Inc., Aegis Therapies, Inc., Bobbie Blackard, and twenty John Does.
    Simmons alleged negligence, gross negligence, and breach of contract based on personal
    injuries allegedly suffered by Mrs. Simmons and based on her alleged wrongful death.
    Simmons sought compensatory and punitive damages. An amended complaint included
    additional defendants – Lawrence Tamburino, William Krooss, Lee Roy Byrd, and Lisa Byrd
    – and set forth additional theories of negligence. The only defendants involved in this
    consolidated appeal are Manhattan Nursing, Aurora Cares, Bobbie Blackard, and Lisa Byrd.
    Manhattan Nursing is a nursing home in Jackson, Mississippi. Aurora Cares is a for-profit
    corporation based in New York. It is not clear from the record how exactly Aurora Cares is
    involved in this case, but it is clear that Aurora Cares is not a party to the admission and
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    arbitration agreements. Blackard is the administrator of Beverly Health-Manhattan, which
    is now Manhattan Nursing. Byrd is a nurse practitioner who treated Mrs. Simmons.
    ¶4.    After the initiation of the lawsuit, Manhattan Nursing and Aurora Cares filed a motion
    to compel arbitration, arguing that Simmons had signed an arbitration agreement upon Mrs.
    Simmons’ admission to Manhattan Nursing and that this agreement required that Simmons’
    claims be resolved through arbitration.      Manhattan Nursing and Aurora Cares also
    maintained that Simmons should be equitably estopped from challenging the arbitration
    agreement because he had already alleged that Manhattan Nursing breached the admission
    agreement. Manhattan Nursing and Aurora Cares further asserted that Aurora Cares,
    although a nonsignatory to the admission and arbitration agreements, had an equitable right
    to compel arbitration. Blackard joined the motion to compel arbitration filed by Manhattan
    Nursing and Aurora Cares.
    ¶5.    In response, Simmons argued that, because an authorized representative of Manhattan
    Nursing never signed the arbitration agreement, mutual assent between Simmons and
    Manhattan Nursing was lacking and no valid arbitration agreement existed. Simmons also
    argued that, because he revoked his offer to arbitrate before a representative from Manhattan
    Nursing could sign the arbitration agreement, his offer was never accepted and no agreement
    was formed.    Simmons argued in the alternative that he had no authority from Mrs.
    Simmons’ General Power of Attorney to bind her to the arbitration agreement. He did not
    challenge the right of Aurora Cares to seek arbitration.
    ¶6.    The trial court issued a memorandum opinion and order on July 2, 2007 and stated
    that the defendants had not demonstrated that Simmons had the authority to bind Mrs.
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    Simmons to arbitration. The trial court stated that there was no showing of Simmons’
    express, implied, apparent, or statutory authority to sign the arbitration agreement on behalf
    of his mother. The trial court noted that the General Power of Attorney executed by Mrs.
    Simmons gave Simmons the authority to make decisions regarding her business and personal
    affairs, but that this did not grant him the authority to enter the arbitration agreement on her
    behalf. The trial court also found that, while Simmons could have made certain decisions as
    his mother’s health-care surrogate, he was not authorized to enter an arbitration agreement
    on her behalf. Finally, the trial court found that Simmons was not estopped from contesting
    the arbitration agreement while suing for breach of contract. The trial court reasoned that
    responsible parties could enter into nursing home agreements, but not arbitration agreements,
    so “the nursing home agreement is fully enforceable, except for the arbitration provision.”
    Manhattan Nursing, Aurora Cares, and Blackard timely filed a notice of appeal on July 27,
    2007.
    ¶7.     As for Lisa Byrd, she filed a motion to dismiss or for summary judgment as well as
    a subsequent motion to compel arbitration. In her motion to compel, Byrd stated that federal
    policy favored arbitration and argued that the arbitration agreement entered into by Simmons
    and Manhattan Nursing gave Byrd the right to compel arbitration despite being a
    nonsignatory. Byrd further argued that the doctrine of equitable estoppel allowed her to
    compel arbitration because the allegations against her were based on the admission
    agreement and were “substantially interdependent” with the allegations against Manhattan
    Nursing and Aurora Cares. Byrd also claimed that she was an agent of Manhattan Nursing,
    and could, therefore, invoke the arbitration agreement.
    5
    ¶8.    Simmons filed a response to Byrd’s motion to compel arbitration and argued again
    that mutual assent was lacking because an authorized representative from Manhattan Nursing
    failed to sign the arbitration agreement. Simmons also asserted that the allegations against
    Byrd were not based on the admission agreement and that Byrd was not an agent of
    Manhattan Nursing. Lastly, Simmons pointed out that Byrd had fully litigated the dispute
    and had participated in discovery for one year before moving to compel arbitration.
    ¶9.    The trial court issued a memorandum opinion and order denying Byrd’s motion to
    compel arbitration on the same grounds it relied upon to deny the motion to compel by
    Manhattan Nursing and Aurora Cares. Byrd timely filed a petition for interlocutory appeal.
    The petition was passed for consideration and consolidated with the appeal of Manhattan
    Nursing, Aurora Cares, and Blackard, and, for reasons set out in this opinion, we now
    summarily grant interlocutory appeal and affirm and remand the petition.
    ANALYSIS
    Standard of Review
    ¶10.   “The grant or denial of a motion to compel arbitration is reviewed de novo.” Grenada
    Living Ctr., LLC v. Coleman, 
    961 So. 2d 33
    , 36 (Miss. 2007) (quoting East Ford, Inc. v.
    Taylor, 
    826 So. 2d 709
    , 713 (Miss. 2002)); Pre-Paid Legal Servs., Inc. v. Battle, 
    873 So. 2d 79
    , 82 (Miss. 2004) (citations omitted).
    I.     Whether a Valid Arbitration Agreement Exists.
    ¶11.   This Court has previously held that agreements between patients and nursing homes
    affect interstate commerce and, therefore, fall under the purview of the Federal Arbitration
    Act, 9 U.S.C.S. §§ 1-307. See, e.g., Grenada Living 
    Ctr., 961 So. 2d at 36
    (citation omitted).
    6
    The Federal Arbitration Act requires that this Court first determine whether or not the parties
    intended to arbitrate the dispute in order to decide whether an arbitration agreement should
    be enforced. See, e.g., Grenada Living 
    Ctr., 961 So. 2d at 36
    . In order to conclude that there
    was an agreement to arbitrate, there must be a valid contract. Grenada Living Ctr., 
    961 So. 2d
    at 36-37.    “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.” 
    Id. at 37 (citing
    Rotenberry v. Hooker, 
    864 So. 2d 266
    , 270 (Miss. 2003)). The
    Supreme Court and this Court have held that “[a]rbitration is a matter of contract and a party
    cannot be required to submit to arbitration any dispute which he has not agreed so to submit.”
    Pre-Paid Legal Servs., 
    Inc., 873 So. 2d at 83
    (citations omitted); see also AT&T Techs., Inc.
    v. Commc’ns Workers of Am., 
    475 U.S. 643
    , 648, 
    106 S. Ct. 1415
    , 1418, 
    89 L. Ed. 2d 648
    ,
    655 (1986)).
    ¶12.   Manhattan Nursing, Aurora Cares, and Blackard maintain on appeal that Simmons had
    authority to bind Mrs. Simmons to the arbitration contract either pursuant to the General
    Power of Attorney or under the Uniform Health Care Surrogate Statute. Miss. Code Ann.
    § 41-41-211 (Rev. 2005). Alternatively, they argue that Simmons should be estopped from
    challenging the validity of the arbitration agreement because he seeks enforcement of the
    admission agreement and because Mrs. Simmons was a third-party beneficiary of the
    admission agreement. Manhattan Nursing, Aurora Cares, and Blackard also note that Byrd
    was not their agent, and is, therefore, not entitled to compel arbitration on that basis.
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    ¶13.   Simmons reiterates on appeal that there is no valid arbitration agreement because a
    representative from Manhattan Nursing never signed the arbitration agreement and, hence,
    never accepted Simmons’ offer to arbitrate. He adds that his offer to enter the arbitration
    agreement was revoked before Manhattan Nursing accepted the offer. Simmons maintains
    that, for these reasons, the arbitration agreement lacked the mutual assent required to form
    a valid contract. He also claims that he is not estopped from challenging the validity of the
    arbitration agreement because the admission agreement includes a severability clause. He
    further maintains that he is not estopped from challenging the arbitration agreement because
    Mrs. Simmons did not benefit as a third-party beneficiary to the admission agreement since
    she was allegedly mistreated at Manhattan Nursing. Lastly, Simmons summarily states that
    he agrees with Manhattan Nursing, Aurora Cares, and Blackard that Byrd is not entitled to
    compel arbitration.
    ¶14.   Manhattan Nursing, Aurora Cares, and Blackard argue in their rebuttal brief that the
    arbitration agreement is valid because, although there is no signature from a Manhattan
    Nursing representative, Manhattan Nursing offered the contract to Simmons, and Simmons’
    acceptance (as evidenced by his signature) demonstrates mutual assent. They also counter
    that the arbitration agreement cannot be severed from the admission agreement until there
    is a “final judicial finding” that the arbitration agreement is unenforceable.
    ¶15.   We find Simmons’ argument that the arbitration agreement lacked mutual assent to
    be persuasive. An authorized representative from Manhattan Nursing failed to sign the
    arbitration agreement, and Simmons’ counsel sent a letter to Manhattan Nursing, making it
    clear that any offer to arbitrate had been revoked. Furthermore, before Manhattan Nursing
    8
    had taken any action whatsoever that was consistent with arbitration, Simmons filed suit in
    the circuit court – an act completely inconsistent with an agreement to arbitrate.
    ¶16.   The Federal Arbitration Act states in part that “an agreement in writing to submit to
    arbitration an existing controversy . . . shall be valid, irrevocable, and enforceable, save upon
    such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C.S. § 2.
    Thus, this Court must apply the same analysis for mutual assent to arbitration agreements as
    it would apply to any other type of contract.
    ¶17.   Addressing the issue of mutual assent, this Court has stated:
    Ordinarily 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 a writing constitutes a binding contract even though
    it is not signed or 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 it 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 County Bd. of Educ., 
    481 So. 2d 770
    , 774 (Miss. 1985) (quoting 17 C.J.S.
    Contracts § 62 (1963)) (emphasis added). Furthermore, “[a] court cannot ‘draft a contract
    between two parties where they have not manifested a mutual assent to be bound.’” Ivison
    9
    v. Ivison, 
    762 So. 2d 329
    , 336 (Miss. 2000) (quoting A. Copeland Enters. v. Pickett &
    Meador, Inc., 
    422 So. 2d 752
    , 754 (Miss. 1982).
    ¶18.   The arbitration agreement in this case required the signature of both parties. Although
    Manhattan Nursing does not dispute the fact that one of its authorized representatives never
    signed the arbitration agreement, it maintains that the parties’ conduct evidences mutual
    assent. In addressing this argument, it is important to recognize that Manhattan Nursing did
    not require Mrs. Simmons to agree to arbitrate in order to be admitted to its facility.
    Moreover, the admission agreement and arbitration agreement are separate agreements that
    each stand alone.     While a Manhattan Nursing representative signed the admission
    agreement, an authorized Manhattan Nursing representative never signed the arbitration
    agreement. And while Manhattan Nursing’s conduct (as evidenced by the representative’s
    signature on the admission agreement and its admission of Mrs. Simmons as a resident of its
    facility) indicates its assent to the admission agreement, it does not demonstrate that it
    assented to the arbitration agreement. The record contains no evidence that Manhattan
    Nursing accepted the arbitration agreement prior to Simmons’ initiation of this lawsuit. The
    first action taken by either party relating to the arbitration agreement after Simmons had
    signed it was his outright rejection of the agreement by filing suit instead of filing a claim
    for arbitration.
    ¶19.   This Court finds that Simmons’ signature on the arbitration agreement (which lacked
    a signature by an authorized Manhattan Nursing representative) was an offer that was never
    accepted by Manhattan Nursing. Therefore, the arbitration agreement lacked mutual assent
    and is not a valid contract. See Grenada Living Ctr., 
    961 So. 2d
    at 37.
    10
    ¶20.   We now turn to the other arguments raised on appeal. Manhattan Nursing argues that
    Simmons is estopped from challenging the arbitration agreement because he also seeks to
    enforce the admission agreement through his breach-of-contract claims. As stated above, this
    Court finds that the admission agreement and arbitration agreement are separate agreements
    that each stand alone.    Furthermore, a Manhattan Nursing representative signed the
    admission agreement, and Manhattan Nursing’s conduct demonstrates that it accepted the
    terms of the admission agreement. Therefore, it is not inconsistent for Simmons to argue that
    the arbitration agreement is invalid while simultaneously seeking to enforce the terms of the
    separate admission agreement. Hence, this Court finds Manhattan Nursing’s estoppel
    argument to be without merit.
    ¶21.   Since we conclude that no valid arbitration agreement exists, we do not address
    Manhattan Nursing’s argument that Simmons had authority to bind Mrs. Simmons to the
    arbitration contract pursuant to the General Power of Attorney or under the Uniform Health
    Care Surrogate Statute. Likewise, we do not reach Manhattan Nursing’s argument that Mrs.
    Simmons is bound to the arbitration agreement as a third-party beneficiary. Lastly, we do
    not reach the issue of whether Byrd may compel arbitration as a nonsignatory to the
    arbitration agreement since we conclude that there was no valid arbitration agreement.
    CONCLUSION
    ¶22.   The petition for interlocutory appeal is granted and the merits of the appeal are
    considered pursuant to this consolidated appeal. After a de novo review of the trial court’s
    decisions to deny the motions to compel, this Court finds that there was no valid arbitration
    11
    agreement. Therefore, the trial court’s orders denying the motions to compel are affirmed,
    and these cases are remanded for further proceedings.
    ¶23.   AFFIRMED AND REMANDED.
    WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR,
    KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.
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