Primmer v. Healthcare Industries Corp. , 2015 Ohio 4104 ( 2015 )


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  • [Cite as Primmer v. Healthcare Industries Corp., 2015-Ohio-4104.]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    ATHENS COUNTY
    JOHN PRIMMER,                                     :       Case No. 14CA29
    Plaintiff-Appellee,                       :
    v.                                        :       DECISION AND
    JUDGMENT ENTRY
    HEALTHCARE INDUSTRIES                             :
    CORPORATION, ET AL.,
    :       RELEASED: 9/24/2015
    Defendants-Appellants.
    :
    APPEARANCES:
    Tucker Ellis L.L.P., Susan M. Audey, Ernest W. Auciello, and Sarah A. Stover,
    Cleveland, Ohio, for appellants.
    McHugh Fuller Law Group, Michael J. Fuller, Jr. and D. Bryant Chaffin, Hattiesburg,
    Mississippi, for appellee.
    Harsha, J.
    {¶1}    John Primmer filed a complaint against the owners and agents of Hickory
    Creek Nursing Center in The Plains seeking damages for personal injuries he suffered
    while he was a resident. The nursing home responded with a motion to stay
    proceedings and compel arbitration based on an arbitration agreement Primmer’s
    daughter signed upon his admission to Hickory Creek. The trial court denied the
    motion, finding Primmer never signed the arbitration agreement and his daughter lacked
    authority under the power of attorney for health care to bind him to arbitrate disputes.
    {¶2}    Hickory Creek asserts that the trial court erred in denying its motion to
    stay proceedings and compel arbitration. In resolving this question of law, we agree with
    the trial court’s conclusion that the health care power of attorney did not authorize
    Primmer’s daughter to bind him to arbitrate disputes. The applicable Ohio statutory
    Athens App. No. 14CA29                                                                  2
    definitions of “health care” and “health care decision” governing powers of attorney for
    health care and the interpretation of similar issues by foreign jurisdictions support the
    conclusion that a decision to waive the right to litigate in favor of arbitration is legal in
    nature rather than being a health care decision. Furthermore, the mere fact that
    Primmer’s daughter signed other admission documents on his behalf at the same time
    she signed the arbitration agreement did not vest her with apparent authority; Primmer
    himself did not engage in any negotiations concerning admission or arbitration. And he
    was incompetent at the time so he would not have knowingly permitted his daughter to
    act on his behalf when she executed the arbitration agreement. Therefore, we overrule
    Hickory Creek’s assignment of error and affirm the judgment of the trial court.
    II. FACTS
    {¶3}   In August 2012, Primmer used a form entitled “VA Advance Directive:
    Durable Power of Attorney for Health Care and Living Will,” to appoint his daughter,
    Pamela McCathern, to “make decisions about [his] health care” if he “cannot make
    those decisions.” The form specified that it “is an official document where you can write
    down your preferences about your medical care” and “[i]f someday you become unable
    to make health care decisions for yourself, this advance directive can help guide the
    people who will make decisions for you.” The form further noted that it permitted the
    principal “to appoint a specific person to make health care decisions for you in case you
    become unable to make decisions for yourself” and if the person became “too ill to
    make decisions for yourself, your Health Care Agent will have the authority to make
    health care decisions for you, including decisions to admit you to and discharge you
    from any hospital or health care institution.” The form also stated that “[y]our Health
    Athens App. No. 14CA29                                                                   3
    Care Agent can also decide to start or stop any type of clinical treatment, and can
    access your personal health information, including information from your medical
    records.” The power of attorney included no definition of “health care,” but both
    Primmer and his daughter were residents of Ohio at the time they executed it.
    {¶4}    At some point after executing the durable power of attorney, Primmer was
    no longer competent to handle his own affairs because his cognitive and physical skills
    were impaired. In November of 2012, McCathern signed an agreement admitting her
    father into the Hickory Creek Nursing Center. He remained a resident there until
    January 2013. On the same date that she signed the admission agreement, McCathern
    signed several other documents, including an arbitration agreement. That agreement
    provides for the waiver of the resident’s right to a trial in court or a trial by jury for any
    legal claims against the nursing home and for final and binding arbitration of any claim
    arising out of the admission agreement, including all claims based on breach of
    contract, negligence, medical malpractice, tort, breach of statutory duty, and resident’s
    rights. The agreement emphasized that “[a]greeing to arbitrate legal disputes is not a
    condition of admission, and care and treatment will be provided whether or not they
    agree to arbitrate (if they do not wish to sign this Agreement then they are under no
    requirement to do so).”
    {¶5}    After leaving the facility Primmer filed a complaint in the Athens County
    Court of Common Pleas against 51 The Plains, Inc. dba Hickory Creek Nursing Home,
    BCFL Management, Inc., BCFL Holdings, Inc., dba Provider Services, Inc., Provider
    Services, Inc., and Dave Miller (collectively “Hickory Creek”). In his subsequently
    amended complaint Primmer raised multiple claims, including negligence, medical
    Athens App. No. 14CA29                                                                              4
    malpractice, and premises liability related to personal injuries and damages he allegedly
    suffered while a resident at the nursing home.
    {¶6}    Hickory Creek filed a motion to stay proceedings and compel arbitration
    based on the arbitration agreement Primmer’s daughter signed on his behalf and the
    power of attorney for health care Primmer executed appointing his daughter as his
    health care agent. The matter proceeded to a hearing where Cathy Hunter, the Hickory
    Creek Director of Social Work, testified that she considered the arbitration agreement to
    be a health care decision, but she conceded that it did not have any impact on the care
    and treatment that Primmer received, regardless of whether he had signed it. In a
    detailed decision the trial court denied the motion based on the language of the power
    of attorney for health care, Ohio statutory provisions governing health care powers of
    attorney, and cases from other jurisdictions addressing the issue. The trial court also
    rejected Hickory Creek’s alternative claim based on McCathern’s apparent authority.
    This appeal ensued.1
    II. ASSIGNMENT OF ERROR
    {¶7}    Hickory Creek assigns the following error for our review:
    The trial court erred in denying Defendants-Appellants’ Motion to Stay
    Proceedings and Compel Arbitration.
    III. STANDARD OF REVIEW
    {¶8}    We have held that in general “[a]n appellate court reviews a trial court’s
    decision to grant or deny a motion to compel arbitration or stay the proceedings under
    the abuse of discretion standard.” Fields v. Herrnstein Chrysler, Inc., 4th Dist. Pike No
    1“R.C. 2711.02(C) permits a party to appeal a trial court order that grants or denies a stay of trial pending
    arbitration, even when the order makes no determination pursuant to Civ.R. 54(B).” Mynes v. Brooks,
    
    124 Ohio St. 3d 13
    , 2009-Ohio-5946, 
    918 N.E.2d 511
    , syllabus.
    Athens App. No. 14CA29                                                               5
    12CA827, 2013-Ohio-693, ¶ 12, citing K.M.P., Inc. v. Ohio Historical Society, 4th Dist.
    Jackson No. 03CA2, 2003-Ohio-4443, ¶ 14. Nevertheless, “ ‘[a] trial court’s decision
    granting or denying a stay of proceedings pending arbitration is * * * subject to de novo
    review on appeal on issues of law, which will commonly predominate because such
    cases generally turn on issues of contractual interpretation * * *.’ ” McFarren v.
    Emeritus at Canton, 2013-Ohio-3900, 
    997 N.E.2d 1254
    , ¶ 13 (5th Dist.), quoting
    Hudson v. John Hancock Fin. Servs., 10th Dist. Franklin No. 06AP-1284, 2007-Ohio-
    6997, ¶ 8; see also Duncan v. Wheeler, 4th Dist. Scioto No. 09CA3296, 2010-Ohio-
    4836, ¶ 5 (in appeal from denial of motion to stay proceedings and to compel arbitration,
    we observed that “appellate courts employ a de novo standard when reviewing a trial
    court’s interpretation of contract provisions, including arbitration provisions”); see also
    Taylor Bldg. Corp. of Am. v. Benfield, 
    117 Ohio St. 3d 352
    , 2008-Ohio-938, 
    884 N.E.2d 12
    , ¶ 37 (rejecting an abuse-of-discretion standard of review and applying a de novo
    standard of review in reviewing decision granting motion to stay litigation and compel
    arbitration when the underlying issue was whether the arbitration provision was
    unenforceable because of alleged unconscionability).
    {¶9}   The issue here is a legal one, i.e. whether the health care power of
    attorney Primmer executed authorized his health care agent, his daughter, to bind him
    to the nursing home’s arbitration agreement. The answer to that question is dependent
    upon our interpretation of the written instruments, applicable statutes, and case law.
    Therefore, we review the trial court’s decision using a de novo standard of review.
    IV. LAW AND ANALYSIS
    A. Health Care Power of Attorney
    Athens App. No. 14CA29                                                                 6
    {¶10}   In its sole assignment of error Hickory Creek asserts that the trial court
    erred in denying its motion to stay proceedings and compel arbitration. “Both the Ohio
    General Assembly and Ohio courts have expressed a strong public policy favoring
    arbitration.” Hayes v. Oakridge Home, 
    122 Ohio St. 3d 63
    , 2009-Ohio-2054, 
    908 N.E.2d 408
    , ¶ 15, citing R.C. Chapter 2711 and Taylor at ¶ 27. Arbitration is favored because it
    provides an expeditious and economical means of resolving a dispute and has the
    added benefit of lessening the burden on crowded court dockets. Hayes at ¶ 15.
    {¶11} R.C. 2711.02(B) provides for the enforcement of an arbitration agreement
    when a party requests a stay of litigation pending arbitration:
    If any action is brought upon any issue referable to arbitration under an
    agreement in writing for arbitration, the court in which the action is
    pending, upon being satisfied that the issue involved in the action is
    referable to arbitration under an agreement in writing for arbitration, shall
    on application of one of the parties stay the trial of the action until the
    arbitration of the issue has been had in accordance with the agreement,
    provided the applicant for the stay is not in default in proceeding with
    arbitration.
    {¶12} “In light of the strong presumption favoring arbitration, all doubts should be
    resolved in its favor.” Hayes at ¶ 15. This presumption applies equally to arbitration
    agreements between nursing home residents and nursing homes. 
    Id. But, “despite
    the
    presumption favoring arbitration, a party cannot be compelled to arbitrate a dispute in
    which they have not agreed to submit to arbitration.” McFarren, 2013-Ohio-3900, 
    997 N.E.2d 1254
    , at ¶ 16, citing Council of Smaller Ents. v. Gates, McDonald & Co., 80 Ohio
    St.3d 661, 
    687 N.E.2d 1352
    (1998).
    {¶13} Primmer did not personally sign the arbitration agreement with Hickory
    Creek so the dispositive legal issue is whether his daughter had authority to do so.
    Hickory Creek claims that Primmer’s daughter expressly had authority to sign the
    Athens App. No. 14CA29                                                                7
    arbitration agreement on behalf of Primmer through the power of attorney for health
    care and impliedly through her apparent authority.
    {¶14} “ ‘A power of attorney * * * is a written instrument authorizing an agent to
    perform specific acts on behalf of the principal.’ ” Cartwright v. Batner , 2014-Ohio-
    2995, 
    15 N.E.3d 401
    , ¶ 67 (2d Dist.), quoting In re Guardianship of Simmons , 6th Dist.
    Wood No. WD-02-039, 2003-Ohio-5416, ¶ 25. Primmer executed a power of attorney
    for health care that appointed his daughter, McCathern, as his agent to “make decisions
    about [his] health care if there ever comes time when [he] cannot make those
    decisions.” The instrument contained no definition of “health care” or “decisions about
    health care,” but indicated that the types of decisions the appointed agent could make
    included “decisions to admit [him] to and discharge [him] from any hospital or other
    health care institution.”
    {¶15} In Ohio durable powers of attorney for health care are governed by R.C.
    1337.11 to 1337.17. 2 Carlin, Baldwin’s Ohio Practice Merrick-Rippner Probate Law,
    Section 61:17 (2014). “An attorney in fact under a durable power of attorney for health
    care shall make health care decisions for the principal only if the instrument
    substantially complies with section 1337.12 of the Revised Code and specifically
    authorizes the attorney in fact to make health care decisions for the principal, and only if
    the attending physician of the principal determines that the principal has lost the
    capacity to make informed health care decisions for the principal.” R.C. 1337.13(A)(1).
    “An adult who is of sound mind may create a valid durable power of attorney for health
    care * * *.” R.C. 1337.12(A)(1).
    Athens App. No. 14CA29                                                              8
    {¶16} Durable powers of attorney for health care in Ohio are effective for “health
    care decisions,” which are defined in R.C. 1337.11(H) as “informed consent, refusal to
    give informed consent, or withdrawal of informed consent to health care”; “health care”
    is defined in R.C. 1337.11(G) as “any care, treatment, service, or procedure to maintain,
    diagnose, or treat an individual’s physical or mental condition or physical or mental
    health.” Courts must give effect to the unambiguously expressed intent of the General
    Assembly. Cleveland Clinic Foundation v. Cleveland Bd. of Zoning Appeals, 141 Ohio
    St.3d 318, 2014-Ohio-4809, 
    23 N.E.3d 1161
    , ¶ 29. Under their plain and unambiguous
    meaning, these statutory terms do not apply to decisions to submit disputes between
    nursing homes and their patients to binding arbitration. That is, a decision to arbitrate a
    dispute is not a decision on informed consent to care, treatment, service, or procedure
    to maintain, diagnose, or treat the patient’s physical or mental health or condition.
    Indeed, Hickory Creek does not specifically argue otherwise on appeal-it does not claim
    that the plain language of R.C. 1337.11(G) and (H) requires a different result.
    {¶17} Instead, Hickory Creek claims that the trial court erred in failing to apply
    Ohio precedent that it contends “inferred” the validity of arbitration agreements executed
    by an attorney-in-fact for health care decisions. It cites McFarren, 2013-Ohio-3900, 
    997 N.E.2d 1254
    , and Tedeschi v. Atrium Centers, L.L.C., 8th Dist. Cuyahoga No. 97647,
    2012-Ohio-2929, in support of its claim. In McFarren, the court held that a nursing
    home resident’s grandson, who had a power of attorney for health care for the resident,
    lacked authority to bind the resident to an arbitration agreement he signed on her behalf
    because there was no evidence that she was unable to make informed health care
    decisions for herself at that time. In Tedeschi the court similarly held that the daughter
    Athens App. No. 14CA29                                                               9
    of a nursing home resident who had a power of attorney for health care could not bind
    the resident by signing an arbitration agreement because there was no determination
    that the resident had lost the capacity to make informed health care decisions for
    herself. Hickory Creek is correct that these decisions did not question or otherwise find
    that the arbitration agreements were unenforceable because their execution did not
    constitute a health care decision. But this argument acknowledges that these cases did
    not address the issue before us because they did not need to. Consequently, they are
    inapposite here.
    {¶18} We hold that the terms of this health care power of attorney do not
    encompass decisions to waive trial by jury or the court in favor of arbitration. Although
    not defining “health care decisions,” the instrument specified that the decisions included
    “decisions to admit you to and discharge you from any hospital or health care
    institution.” Under the plain terms of the arbitration agreement Primmer’s daughter
    signed, “[a]greeing to arbitrate legal disputes” was “not a condition of admission, and
    care and treatment will be provided whether or not they agree to arbitrate.” The fact
    that execution of the arbitration agreement was not necessary for admission was
    confirmed by the uncontroverted testimony of Hickory Creek’s Director of Social Work,
    who conceded that the arbitration agreement had no impact on the medical care and
    treatment that Primmer received at the nursing home. Consequently, the plain
    language of the power of attorney for health care and arbitration agreement supports
    the trial court’s legal conclusion that the arbitration agreement is not a health care
    decision that Primmer’s daughter was authorized to make.
    Athens App. No. 14CA29                                                                10
    {¶19} And, as the trial court noted in its thorough analysis, cases from other
    jurisdictions addressing this issue support that conclusion. In Dickerson v. Maryland,
    
    414 Md. 419
    , 444-448, 
    995 A.2d 721
    (2010) (footnotes omitted), the Court of Appeals
    for Maryland held that a decision to enter into an arbitration agreement that is not a
    condition to admission to a health care facility is not a health care decision to which a
    health care agent could bind the patient:
    * * * Quite obviously, the decision to sign an arbitration agreement is not,
    in and of itself, a health care decision. It may sometimes be related to a
    health care decision, as in the present case where the arbitration
    agreement was included with the admissions documents for a health care
    facility and would require arbitration of health care claims. Subject to the
    limitations we discuss below, however, the decision to sign an arbitration
    agreement is a decision concerning the legal rights of the parties to the
    agreement about how to resolve their legal disputes, not a health care
    decision.
    Although we have never addressed this issue, other courts have drawn a
    distinction between a health care decision and a decision to sign an
    arbitration agreement, even where the arbitration agreement is related to a
    health care decision. In several cases involving health care facilities, the
    intermediate appellate courts in Colorado, Florida, Georgia, and Texas
    have concluded that the authority to make health care decisions on
    another's behalf does not constitute authority to sign an arbitration
    agreement on that person's behalf. See Lujan v. Life Care Ctrs. of Am.,
    
    222 P.3d 970
    , 973-76 (Colo.Ct.App.2009) (agreeing with other
    jurisdictions that have concluded that " a health care proxy's decision to
    agree to arbitrate is [not] a medical treatment decision" ); Blankfeld v.
    Richmond Health Care, Inc., 
    902 So. 2d 296
    , 301 (Fla.Ct.App.2005) ("
    There is nothing in the [health care proxy] statute to indicate legislative
    intent that such a proxy can enter into contracts which agree to things not
    strictly related to health care decisions. In our opinion, a proxy is not
    authorized to waive the right to trial by jury...." ); Life Care Ctrs. of Am. v.
    Smith, 298 Ga.App. 739, 
    681 S.E.2d 182
    , 185 (2009) (concluding that a "
    health care power of attorney did not give [a daughter] the power to sign
    away her mother's or her mother's legal representative's right to a jury
    trial" ); Tex. Cityview Care Ctr., L.P. v. Fryer, 
    227 S.W.3d 345
    , 352
    (Tex.Ct.App.2007) (" [N]othing in the medical power of attorney indicates
    that it was intended to confer authority ... to make legal, as opposed to
    health care, decisions ..., such as whether to waive [the] right to a jury trial
    by agreeing to arbitration of any disputes." ). Those courts drew a
    Athens App. No. 14CA29                                                                 11
    distinction between making health care decisions and the decision to sign
    an arbitration agreement, even when an arbitration agreement is related to
    health care.
    In our view, however, there are circumstances upon which the decision to
    sign an arbitration agreement may be a health care decision. Courts in
    other jurisdictions have recently concluded that the decision to sign an
    arbitration agreement was not a health care decision, and they based that
    decision on the fact that signing the arbitration agreement was not a
    prerequisite to admission to a health care facility. In Koricic, as we noted
    earlier, the Supreme Court of Nebraska concluded that a son who had
    authority to sign health care documents on behalf of his mother did not
    have authority to sign an arbitration agreement on her 
    behalf. 773 N.W.2d at 149-52
    . In reaching that decision, the court explained that the decision
    to sign the arbitration agreement was not within the son's authority
    because the agreement " was optional and was not required for [the
    mother] to remain at the [nursing home] facility." 
    Id. at 151.
    Similarly, the
    Supreme Court of Mississippi concluded in Hinyub that the decision to
    sign an arbitration agreement is not a " health care decision" where the
    patient or his agent " was not required to sign the arbitration provision to
    admit [the patient] to the [health care 
    facility]." 975 So. 2d at 218
    . The
    Mississippi court drew a distinction between Hinyub's case and previous
    cases in which " the arbitration provision was an essential part of the
    consideration for the receipt of ‘ health care.’ " 
    Id. (citing Covenant
    Health
    Rehab of Picayune, L.P. v. Brown, 
    949 So. 2d 732
    (Miss.2007), and [
    995 A.2d 739
    ] Vicksburg Partners, L.P. v. Stephens, 
    911 So. 2d 507
          (Miss.2005)).
    We agree with the reasoning of those courts. The 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. In such
    a case, the decision primarily concerns the legal rights of the patient with
    respect to resolving legal claims. If signing the arbitration agreement is
    necessary to receive health care, then the decision to sign the agreement
    is a health care decision because the receipt of health care depends on
    whether the patient agrees to arbitrate his or her claims. In that case, the
    decision to sign the arbitration agreement is effectively a decision about
    where and whether to receive health care, either from a facility that
    requires the patient to sign an arbitration agreement, from a facility that
    does not impose such a requirement, or from no facility at all.
    {¶20} As the Supreme Judicial Court of Massachusetts recently held, the
    “conclusion that a health care agent does not have the authority to bind the principal to
    an arbitration agreement comports with the view of a majority of courts in other
    Athens App. No. 14CA29                                                                 12
    jurisdictions that have considered similar issues.” Johnson v. Kindred Healthcare, Inc.,
    466 Mass 779, 789-790, 
    2 N.E.3d 849
    (2014); see also State ex rel. AMFM, LLC v.
    King, 
    740 S.E.2d 66
    (W.Va.2013), paragraph eight of the syllabus (“An agreement to
    submit future disputes to arbitration, which is optional and not required for the receipt of
    nursing home services, is not a health care decision under the West Virginia Health
    Care Decisions Act, W.Va.Code § 16-30-1 et seq”).
    {¶21} Based on the plain language of the instruments and statutes governing
    durable powers of attorney for health care in Ohio, as well as the persuasive authority of
    other jurisdictions addressing the same issue, we hold that this durable power of
    attorney for health care does not authorize McCathern to waive Primmer’s rights of
    access to courts and to compel arbitration. In other words, under these facts the
    decision to waive the right to arbitrate is a legal determination, not a health care
    decision. The trial court ruled correctly on this issue.
    B. Apparent Authority
    {¶22} Hickory Creek also argues that it was entitled to a stay of proceedings and
    compelled arbitration because of McCathern’s apparent authority to act on behalf of her
    father.
    {¶23} “In order for a principal to be bound by the acts of his agent under the
    theory of apparent agency, evidence must affirmatively show: (1) that the principal held
    the agent out to the public as possessing sufficient authority to embrace the particular
    act in question, or knowingly permitted him to act as having such authority, and (2) that
    the person dealing with the agent knew of those facts and acting in good faith had
    reason to believe and did believe that the agent possessed the necessary authority.”
    Athens App. No. 14CA29                                                              13
    Master Consol. Corp. v. BancOhio Natl. Bank, 
    61 Ohio St. 3d 570
    , 
    575 N.E.2d 817
    (1991), syllabus.
    {¶24} The only evidence of Primmer’s actions here regarding his daughter’s
    authority was his execution of the durable health care power of attorney. But as we
    already decided, his power of attorney for health care did not authorize his daughter to
    enter into the arbitration agreement because it did not constitute a health care decision
    under the plain language of the instrument and statutory provisions.
    {¶25} In addition there is no evidence that Primmer was present when his
    daughter signed the admission and other documents, including the arbitration
    agreement, or that he otherwise held her out to be authorized to enter into the
    arbitration agreement on his behalf. Nor did Hickory Creek have a reasonable belief
    that Primmer’s daughter was so authorized. See State ex rel. AMFM, LLC, 
    740 S.E.2d 66
    , at fn. 10 (“To the extent that McDowell Nursing believed that Ms. Belcher’s authority
    extended to the making of other, non-health care decisions, its belief was not
    reasonable in light of the explicit limitation of Ms. Belcher’s power as a health care
    surrogate to the making of health care decisions on Ms. Wyatt’s behalf and its own
    concession that the subject Arbitration Agreement was not a precondition for Ms.
    Wyatt’s receipt of services”).
    {¶26} The mere fact that Primmer’s daughter signed other documents as part of
    the admission process did not cloak her with the requisite apparent authority to bind
    Primmer to an arbitration agreement that he knew nothing about. See Lang v.
    Beachwood Pointe Care Ctr., 8th Dist. Cuyahoga No. 100109, 2014-Ohio-1238, ¶ 6,
    appeal not accepted for review, 
    140 Ohio St. 3d 1415
    , 2014-Ohio-3785, 
    15 N.E.3d 884
    .
    Athens App. No. 14CA29                                                               14
    Hickory Creek’s reliance on Primmer’s daughter’s actions in signing other admission
    documents is misplaced because a claim of apparent authority cannot be based on her
    acts. “Under an apparent-authority analysis, an agent's authority is determined by the
    acts of the principal rather than by the acts of the agent. The principal is responsible for
    the agent's acts only when the principal has clothed the agent with apparent authority
    and not when the agent's own conduct has created the apparent authority.” Ohio State
    Bar Assn. v. Martin, 
    118 Ohio St. 3d 119
    , 2008-Ohio-1809, 
    886 N.E.2d 827
    , ¶ 41.
    {¶27} Moreover, at the time his daughter signed the arbitration agreement,
    Primmer could not have knowingly permitted her to act on his behalf because he was
    incompetent to conduct his own affairs.
    {¶28} Therefore, the trial court correctly denied Hickory Creek’s alternate claim
    that Primmer’s daughter had apparent authority to enter into the arbitration agreement
    on his behalf. We overrule Hickory Creek’s assignment of error.
    V. CONCLUSION
    {¶29} After a de novo review of the issues, we hold that the trial court correctly
    denied Hickory Creek’s motion to stay proceedings and compel arbitration. Primmer’s
    daughter was not authorized under the health care power of attorney to waive his right
    to access to courts and agree to binding arbitration. And she lacked the apparent
    authority to enter into the arbitration agreement on his behalf. Having overruled Hickory
    Creek’s sole assignment of error, we affirm the judgment of the trial court.
    JUDGMENT AFFIRMED.
    Athens App. No. 14CA29                                                            15
    JUDGMENT ENTRY
    It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
    costs.
    The Court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this Court directing the Athens
    County Court of Common Pleas to carry this judgment into execution.
    Any stay previously granted by this Court is hereby terminated as of the date of
    this entry.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    Hoover, P.J.: Concurs in Judgment and Opinion.
    McFarland, A.J.: Dissents.
    For the Court
    BY: ________________________________
    William H. Harsha, Judge
    NOTICE TO COUNSEL
    Pursuant to Local Rule No. 14, this document constitutes a final judgment
    entry and the time period for further appeal commences from the date of filing
    with the clerk.