Pine Hills Health & Rehabilitation, LLC v. Matthews , 2014 Ark. LEXIS 169 ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CV-13-756
Opinion Delivered March 13, 2014
PINE HILLS HEALTH AND
REHABILITATION, LLC; SLC APPEAL FROM THE OUACHITA
OPERATIONS, LLC; SLC COUNTY CIRCUIT COURT
PROFESSIONALS OF ARKANSAS, [NO. CV-2012-80-6]
LLC N/K/A SLC PROFESSIONALS,
LLC; CAPITAL SENIORCARE HONORABLE DAVID F. GUTHRIE,
VENTURES, LLC; 900 MAGNOLIA JUDGE
ROAD SW, LLC; SENIOR VANTAGE
POINT, LLC; SENIOR LIVING
COMMUNITIES OF ARKANSAS, LLC;
ADDIT, LLC; QUALITY REVIEW,
LLC; ARKANSAS SNF OPERATIONS
ACQUISITION, LLC; ARKANSAS
NURSING HOME ACQUISITION,
LLC; CSCV HOLDINGS, LLC;
CAPITAL FUNDING GROUP, INC.;
CAPITAL FUNDING, LLC D/B/A
CAPITAL FUNDING GROUP;
MICHAEL HUNTER, IN HIS
CAPACITY AS ADMINISTRATOR OF
PINE HILLS HEALTH AND
REHABILITATION, LLC; AND
PATRICIA BULLARD, IN HER
CAPACITY AS ADMINISTRATOR OF
PINE HILLS HEALTH AND
REHABILITATION, LLC
APPELLANTS
V.
RUFUS BRIAN MATTHEWS, AS
SPECIAL ADMINISTRATOR OF THE
ESTATE OF RUFUS OWENS,
DECEASED, AND ON BEHALF OF
THE WRONGFUL DEATH
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BENEFICIARIES OF RUFUS OWENS
APPELLEE AFFIRMED.
JOSEPHINE LINKER HART, Associate Justice
Appellee, Rufus Brian Matthews, as special administrator of the estate of Rufus
Owens, deceased, and on behalf of the wrongful death beneficiaries of Rufus Owens, brought
claims against appellants, Pine Hills Health and Rehabilitation, LLC (“Pine Hills”) and
others,1 for injuries sustained by Owens arising out of his care and treatment at Pine Hills.
Appellants filed a joint motion to dismiss the complaint and compel arbitration pursuant to
an “Arbitration Agreement.” The circuit court denied the motion, and appellants bring this
interlocutory appeal, as permitted by Ark. R. App. P.–Civ. 2(a)(12) (2013). On appeal,
appellants assert that the circuit court erred in finding that the Arbitration Agreement was
unenforceable because of the absence of a signature of a Pine Hills representative. We hold
that there was no objective evidence of mutual assent, and we affirm the circuit court’s
decision.2
1
The claims against separate defendant Michael Hunter were dismissed without
prejudice.
2
Appellants also argue on appeal that the circuit court erred in finding that the
Arbitration Agreement was unenforceable because the arbitrator named therein was no longer
available to act as the arbitrator and because the Arbitration Agreement was unconscionable.
Because we hold that the Arbitration Agreement was unenforceable for the reason discussed
infra, we do not decide these arguments or discuss matters relating to those arguments. See
DIRECTV, Inc. v. Murray, 2012 Ark. 366, at 9–11, ___ S.W.3d ___, ___.
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According to appellee’s complaint, Owens was admitted in December 2007 to a facility
then known as Golden LivingCenter in Camden, Arkansas. According to the complaint,
ownership of the facility changed on July 1, 2009, and the name of the facility was changed
to Pine Hills Health and Rehabilitation, LLC. The complaint also stated that, except for times
when he was hospitalized, Owens remained a resident of the facility until March 7, 2012,
when he was transferred to the Ouachita County Medical Center, where he died on March
15, 2012. Following Owens’s death, Rufus Brian Matthews was appointed special
administrator of Owens’s estate and brought this lawsuit against appellants, asserting various
claims, including negligence, medical malpractice, and violations of statutes relating to long-
term care. Appellee sought compensatory and punitive damages.
Appellants answered, filed amended answers, and then moved to compel arbitration,
arguing that Matthews, who held Owens’s power of attorney, previously had signed an
Arbitration Agreement. Attached to appellants’ motion was the Arbitration Agreement. It was
signed by Matthews as the “Responsible Party,” and his signature was dated June 29, 2009.
The Arbitration Agreement provided as follows:
This Arbitration Agreement (the “Agreement”) is hereby entered between Pine
Hills Health and Rehabilitation, LLC (the “Facility”) and Rufus Owens (the Resident
or the Responsible Party) in conjunction with an agreement for admission and for the
provision of nursing facility services (the “Admission Agreement”) by Facility to
Resident. The “Responsible Party” means an agent, some other individual, or family
member who agrees to assist the Facility in providing for the Resident’s admission,
health care, payment, maintenance, and discharge. The Resident and the Responsible
Party shall be collectively referred to as the “Resident.” The Resident and the Facility
shall be collectively referred to as the “parties.”
The parties to this Agreement acknowledge and agree that upon execution, this
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Agreement becomes part of the Admission Agreement, and that the Admission
Agreement evidences a transaction involving interstate commerce governed by the
Federal Arbitration Act. The Responsible Party acknowledges further that execution
of this Agreement affects his or her individual rights. It is understood and agreed by
Facility and Resident that any and all claims, disputes, and controversies (hereafter
collectively referred to as a “claim” or collectively as “claims”) arising out of, or in
connection with, or relating in any way to the Admission Agreement or any service
or health care provided by the Facility to the Resident shall be resolved exclusively by
binding arbitration to be conducted at a place agreed upon by the Parties, or in the
absence of such an agreement, at the Facility, in accordance with the National
Arbitration Forum Code of Procedure, (“NAF”) which is hereby incorporated into
this Agreement, and not by a lawsuit or resort to court process. This agreement shall
be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections
1-16.
(Footnote omitted.)
The Arbitration Agreement also provided, in bold type, as follows:
THE PARTIES UNDERSTAND AND AGREE THAT THIS CONTRACT
CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES, AND THAT BY ENTERING INTO THIS
ARBITRATION AGREEMENT, THE PARTIES ARE GIVING UP AND
WAIVING THEIR CONSTITUTIONAL RIGHT TO HAVE ANY CLAIM
DECIDED IN A COURT OF LAW BEFORE A JUDGE AND A JURY, AS
WELL AS ANY APPEAL FROM A DECISION OR AWARD OF DAMAGES.
The Arbitration Agreement further provided that the “Resident” understood that he
had the “right to seek legal counsel concerning this Arbitration Agreement,” that the
“execution of the Agreement is not a precondition to admission or to the furnishing of
services to the Resident by the Facility,” and that the Arbitration Agreement “may be
rescinded by written notice to the Facility from the Resident within thirty days of signature.”
Immediately above the signature blocks for the “Resident” and for the“Responsible
Party,” the Arbitration Agreement provided as follows:
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The undersigned certifies that he or she was read this Arbitration Agreement and that
it was [sic] been fully explained to him or her, that he or she understands its contents,
and has received a copy of the provision and that he or she is the Resident, or the
person duly authorized by the Resident or otherwise to execute this Agreement and
accept its terms.
The Arbitration Agreement was signed by Matthews as the “Responsible Party” at the bottom
of the second page. Language at the top of the second page, however, indicated that the
Arbitration Agreement was a three-page document, but the third page was not attached to
the other two pages.
Appellee responded, attaching to the response an exemplar of what would have
constituted the third page of the Arbitration Agreement, which contained a signature block
for the “Facility,” including lines for the “Signature of Facility Representative” and a date.
Appellee argued that the Arbitration Agreement was unenforceable because there was “no
evidence of mutual assent,” as the Arbitration Agreement did not bear the signature of a
representative of Pine Hills. In reply to appellee’s response, appellants asserted that the
signature of a representative of Pine Hills was unnecessary and that Pine Hills had manifested
its assent to the Arbitration Agreement as evidenced by its conduct and the language of the
Arbitration Agreement.
The circuit court held a hearing on appellants’ motion to compel arbitration. No
testimony was presented, but a copy of an “Admission Agreement” for Owens’s admission
into Pine Hills was introduced into evidence. That document was signed by Matthews as the
“Responsible Party[ ]” and by a Pine Hills “Facility Representative[ ].” The signature block
indicated that it was signed July 1, 2009, two days after the date of Matthews’s signature on
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the Arbitration Agreement. The Admission Agreement contained a provision relating to
arbitration, providing as follows:
The Resident acknowledges that disputes arising out of this Agreement, including the
provision of care and services, may be submitted to arbitration, if the Resident elects
to do so, by signing a separate agreement executed between the Nursing Facility and
the Resident. Agreeing to arbitration is not a condition of admission or to continuing
care.
In a written order, the circuit court denied the motion to compel arbitration. The
court found that the “lack of a signature indicating [Pine Hills’s] consent to be bound by the
agreement renders the agreement deficient and non-binding under basic contract law.”
Appellants appeal from that decision.
On appeal, appellants argue that the absence of a signature by a representative of Pine
Hills does not render the Arbitration Agreement unenforceable. Appellants assert that their
conduct—specifically, preparing a form Arbitration Agreement and Admission Agreement,
presenting a nonmandatory offer of arbitration to incoming residents, retaining both
agreements, and attempting to enforce the Arbitration Agreement—indicate Pine Hills’s
manifestation of its assent to the Arbitration Agreement. Further, appellants focus on the
language of the Arbitration Agreement, which they argue indicates Pine Hills’s assent to the
Arbitration Agreement. Particularly, appellants assert that the Arbitration Agreement provided
that the Resident, and not Pine Hills, may rescind the Arbitration Agreement within thirty
days of signing and that the Resident may wish to consult an attorney. Appellants also note
that, above the signature block for the Resident and Responsible Party, the Arbitration
Agreement provided that the “undersigned” certified that he read and understood the
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Arbitration Agreement and is either the Resident or the person authorized by the Resident
to execute the Arbitration Agreement. Appellants observe that there was no similar
certification above the signature block for the “Facility Representative.” Appellants also focus
on the language in the Admission Agreement, as “reflect[ing] the intent to invite the
Resident’s assent,” by providing that the “Resident acknowledges that disputes arising out of
this Agreement . . . may be submitted to arbitration, if the Resident elects to do so, by signing
a separate agreement executed between the Nursing Facility and the Resident.” Appellants
further suggest that this language indicates that “signing” is not synonymous with
“execut[ing]” an agreement, that “executed” means “commencement of the contract,” and
that ambiguities must be resolved in favor of arbitration. Appellants conclude that “Pine Hills
made an offer that was accepted, demonstrating mutual assent and a valid contract.”
The issue here—whether there is an enforceable arbitration agreement between Pine
Hills and appellee—is a matter of contract construction; to answer that question, we look to
the language of the agreement and apply principles of state contract law. Courtyard Gardens
Health & Rehab., LLC v. Quarles, 2013 Ark. 228, at 6, ___ S.W.3d ___, ___. The
construction and legal effect of an agreement to arbitrate are to be determined by this court
as a matter of law. DIRECTV, Inc. v. Murray, 2012 Ark. 366, at 4, ___ S.W.3d ___, ___.
The essential elements of a contract are competent parties, subject matter, legal
consideration, mutual agreement, and mutual obligations. Independence Cnty. v. City of
Clarksville, 2012 Ark. 17, at 6, 386 S.W.3d 395, 399. Both parties must manifest assent to the
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particular terms of a contract. DIRECTV, Inc., 2012 Ark. 366, at 9, ___ S.W.3d at ___. This
court employs an objective test for determining mutual assent, by which we mean objective
indicators of agreement and not subjective opinions. Ward v. Williams, 354 Ark. 168, 180, 118
S.W.3d 513, 520 (2003).
Though a hearing was held on the issue of whether Pine Hills had manifested its assent
to the contract, no testimony was presented at the hearing. What we have before us then are
the first two pages of the Arbitration Agreement, an exemplar of the missing third page, and
the Admission Agreement. There is no signature on the Arbitration Agreement by a
representative of Pine Hills to indicate mutual assent. Rather, there is a document whose
missing third page contained a signature block for a representative of Pine Hills. Certainly,
“manifestation of assent may be made wholly or partly by written or spoken words or by
other acts or by failure to act.” Restatement (Second) of Contracts § 19(1) (1981). Moreover,
a “written contract, not required to be in writing, is valid if one of the parties signs it and the
other acquiesces therein.” Parker v. Carter, 91 Ark. 162, 167, 120 S.W. 836, 838 (1909).
Though appellants assert that their conduct indicated Pine Hills’s manifestation of its assent
to the Arbitration Agreement, there was no testimony presented concerning any conduct that
would have manifested assent. Appellee cites provisions in the Arbitration Agreement that
they assert evidence Pine Hills’s manifestation of its assent: the provisions stating that the
Responsible Party could rescind the Arbitration Agreement and the certification that he read
and understood the Arbitration Agreement. This language, however, does not establish Pine
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Hills’s manifestation of its assent. Rather, it establishes only the Responsible Party’s
manifestation of assent.
Further, appellants’ reliance on language in the Admission Agreement—a separate
agreement signed by a Pine Hills representative two days after Matthews had signed the
Arbitration Agreement—does not illuminate whether Pine Hills also manifested its assent to
the Arbitration Agreement. We note that the Arbitration Agreement provides that the “parties
to this Agreement acknowledge and agree that upon execution, this Agreement becomes part
of the Admission Agreement.” Also, we note that the Admission Agreement provided that
the “Resident acknowledges that disputes arising out of this Agreement . . . may be submitted
to arbitration, if the Resident elects to do so, by signing a separate agreement executed
between the Nursing Facility and the Resident.” While appellants assert that “signing” is not
synonymous with “execut[ing]” an agreement and that “executed” means “commencement
of the contract,” we observe that no testimony was presented regarding any acts that would
have indicated the “commencement of the contract.” In employing an objective test for
determining mutual assent, we hold that the Arbitration Agreement does not establish that
Pine Hills manifested its assent to the Arbitration Agreement. Because there was no
manifestation of mutual assent, the Arbitration Agreement was unenforceable. We affirm the
circuit court’s decision.
Affirmed.
Kutak Rock LLP, by: Mark W. Dossett and Samantha B. Leflar, for appellants.
Wilkes & McHugh, P.A., by: William P. Murray, III; Appellate Solutions, PLLC, by:
Deborah Truby Riordan; and The Edwards Firm, P.L.L.C., by: Robert H. Edwards, for appellee.
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