Viola M. Hackworth v. Bayview Manor, LLC ( 2023 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Viola M. Hackworth, as Personal Representative of the
Estate of Eugene Boles a/k/a Eugene N. Boles, deceased,
Respondent,
v.
Bayview Manor, LLC d/b/a Bayview Manor, Epic MGT,
LLC, Epic Group, Limited Partnership, Teddie Simmons,
John Does, and Richard Roe Corporations, Appellants.
Appellate Case No. 2019-001536
Appeal From Beaufort County
Edgar W. Dickson, Circuit Court Judge
Unpublished Opinion No. 2023-UP-096
Heard October 3, 2022 – Filed March 15, 2023
REVERSED AND REMANDED
A. Todd Darwin, of Holcombe Bomar, P.A., and A.
Walker Barnes, of Boulier Thompson & Barnes, LLC,
both of Spartanburg, for Appellants.
Kenneth Luke Connor, Christopher Caleb Connor, and
Anne Katharine Moore, all of Connor & Connor LLC,
and Allen Keith McAlister, Jr., of Hawk Law Group, all
of Aiken, for Respondent.
PER CURIAM: In this wrongful death action, Viola Hackworth, as personal
representative of the estate of Eugene Boles (the Estate), sued Bayview Manor, LLC,
a nursing home, and several of its affiliates: Epic MGT, LLC; Epic Group, LP;
Teddie Simmons, the nursing home administrator; John Does; and Richard Roe
Corporations (collectively, Bayview Manor) for damages. Bayview Manor moved
to compel arbitration, and the motion was denied. Bayview Manor now appeals the
order denying its motion to compel arbitration, or in the alternative, for a non-jury
trial. We reverse and remand for arbitration.
I.
In October 2012, Boles executed and recorded an agreement giving his sister,
Hackworth, a general durable power of attorney over his affairs. In 2015, Boles
suffered a stroke and, as a result, required full-time nursing care. On November 2,
2015, Boles was transferred to Bayview Manor for continued care and treatment. A
little over a year later, on December 14, 2016, Boles was found unresponsive by staff
at Bayview Manor and was transported by EMS to Beaufort Memorial Hospital. He
passed away later that day. It is alleged that, while at Bayview Manor, Boles
suffered neglect, malnutrition, and severely infected pressure sores, which ultimately
led to his death.
Hackworth, in her capacity as personal representative to the Estate, filed this
wrongful death action against Bayview Manor. Bayview Manor filed both an
answer and a motion to compel arbitration, or, in the alternative, for a non-jury trial.
The motion to compel arbitration alleged that, at the time of Boles' admission to
Bayview Manor, Hackworth signed and executed an Admission Agreement,
containing an arbitration provision, as well as a separate Arbitration Agreement. In
support of the motion, Bayview Manor attached both agreements, as well as
affidavits from Christy Drinkard, the administrator at Bayview Manor in charge of
business records, and Lucy Caruso, the admissions director at the time of Boles'
admission. Caruso's affidavit stated she met with Hackworth on both November 2
and 3, 2015, she explained both agreements to Hackworth, and Hackworth signed
them. Drinkard's affidavit stated Hackworth signed the Admission Agreement on
the day Boles was admitted.
The Admission Agreement was a ten-page contract that contained the terms of
Bayview Manor's administration of care to Boles; arrangement for payment for
Boles' care; a waiver of jury trial provision; and an "Optional Arbitration Clause,"
which stated in its entirety:
Optional Arbitration Clause: Any action, dispute, claim
or controversy of any kind (tort, contract, equitable or
statutory, including but not limited to claims of violations
of Resident's Rights) now existing or hereafter arising
between the parties, in anyway [sic] arising from or
relating to this Agreement governing the Resident's stay at
the Facility, shall be resolved by binding arbitration. Such
binding arbitration shall be governed by the provisions of
the South Carolina Arbitration Code. As appropriate and
in the event that the South Carolina Arbitration Code is
deemed to not apply, binding arbitration shall be governed
by the Federal Arbitration Act. OPTIONAL: If the
parties do not agree to this Arbitration Clause, please
mark with an X to void this clause only. I have X this
clause ___ initial.
(Emphasis in original). The opt-out blank was not marked. The Admission
Agreement was signed by Caruso, Hackworth, and Clifford Byars (Boles' brother).
Each signature was dated November 2, 2015. The separate Arbitration Agreement
was signed by Hackworth and Caruso. In the first paragraph of the Arbitration
Agreement, the two spaces for the names of the parties to be written by hand
remained blank—without either Bayview Manor or Boles inserted as named parties.
Hackworth and Caruso's signatures were dated November 3, 2015.
In its memorandum opposing Bayview Manor's motion to compel arbitration, the
Estate alleged Caruso's and Drinkard's affidavits contained false representations.
Specifically, the Estate asserted Hackworth was not present at Bayview Manor on
November 2 or 3, 2015, but was in Florida where she resided. The Estate claimed
Hackworth did not arrive at Bayview Manor until November 6, 2015—and, in
support, the Estate attached Hackworth's affidavit describing her travel itinerary, as
well as a copy of her bank statement showing her travel expenditures. The Estate
argued because the motion to compel arbitration was supported by fraudulent
affidavits, it should be denied and Bayview Manor should be sanctioned under Rule
11, SCRCP.
Bayview Manor asserted the Estate did not dispute or deny that: 1) Hackworth was
Boles' attorney-in-fact; 2) she was involved in the process to admit Boles to Bayview
Manor; or 3) she signed both the Admission Agreement and the Arbitration
Agreement. Bayview Manor claimed, therefore, that both the arbitration provision
from the Admission Agreement and the Arbitration Agreement were valid contracts,
and each bound the Estate to arbitrate just the type of lawsuit at issue here.
At the motion to compel hearing, Bayview Manor acknowledged the dates on the
two agreements were allegedly incorrect but argued the dates were not material to
whether a contract was formed because there was no dispute Hackworth did, in fact,
sign the two agreements. The circuit court took the matter under advisement and,
later, issued a Form 4 order denying the motion to compel arbitration.
Bayview Manor's reconsideration motion, seeking rulings on each of its arguments
from the memorandum in support of the motion to compel, was denied in another
Form 4 order. This appeal follows.
II.
We hold there is no dispute that Hackworth, with Boles' power of attorney, and
Bayview Manor entered into the Admission Agreement, which contained an
enforceable arbitration provision. Accordingly, we reverse the circuit court's order
and remand for arbitration.
1. We hold the October 2012 general durable power of attorney agreement gave
Hackworth the authority to enter into an arbitration agreement on Boles' behalf. See
Arredondo v. SNH SE Ashley River Tenant, LLC, 433 S.C. 69, 75, 856 S.E.2d 550,
553–54 (2021) (stating regular contract principles are used when reviewing power-
of-attorney agreements and when the language of an agreement granting a power of
attorney is unambiguous, it alone determines the force and effect of the agreement).
The October 2012 power-of-attorney agreement gave Hackworth the power "[t]o do
and perform all and every act, deed, matter, and thing whatsoever; in and about my
estate, property and affairs as fully and effectually to all intents and purposes as I
might or could do in my own proper person, if personally present." This broad
language is unambiguous, and it allowed Hackworth to bind Boles to arbitration.
See Kindred Nursing Centers Ltd. P'ship v. Clark, 581 U.S. 246, 249, 256 (2017)
(finding the broad language of a power-of-attorney agreement, which stated the
attorney-in-fact had "'full power . . . to transact, handle, and dispose of all matters
affecting me and/or my estate in any possible way,' including the power to 'draw,
make, and sign in my name any and all . . . contracts, deeds, or agreements,'" gave
the attorney-in-fact authority to enter into an arbitration agreement); Arredondo, 433
S.C. at 75–76, 856 S.E.2d at 554 (explaining that, under the "Equal Footing
Provision" of the FAA, the language in a power of attorney agreement need not
explicitly reference arbitration in order to be found broad enough to allow an
attorney-in-fact to enter into a binding arbitration agreement).
2. We hold Hackworth and Bayview Manor formed an arbitration agreement when
they signed the Admission Agreement. Both the South Carolina Arbitration Act and
the Federal Arbitration Act (FAA) mandate that when there is an arbitration
agreement between two parties, but one party disregards the agreement, the other
may move for the court to compel arbitration in the manner provided for in the
agreement. 9 U.S.C.A. § 4 (2018); S.C. Code Ann. § 15-48-20(a) (2005). A hearing
is then held on the motion, and if the court is satisfied that the "making" of a valid
arbitration agreement is "not in issue," it will direct the parties to arbitration. 9
U.S.C.A. § 4; S.C. Code Ann. § 15-48-20(a). If a party denies the existence of an
arbitration agreement, and the circuit court finds there is a bona fide dispute
regarding whether an arbitration agreement was formed, then "the court shall
proceed summarily to the trial" to determine if a valid arbitration agreement was
formed. 9 U.S.C.A. § 4; S.C. Code Ann. § 15-48-20(b) (2005). This provision is
known as the "Trial Provision." Berkeley Cnty. Sch. Dist. v. Hub Int'l Ltd., 944 F.3d
225, 234 (4th Cir. 2019). When a court is deciding whether there is a bona fide
dispute regarding the "making" of the arbitration agreement, the court "is obliged to
employ a standard such as the summary judgment test." Id.; see also 9 U.S.C.A. §
4; S.C. Code Ann. § 15-48-20(b). "The party resisting arbitration bears the burden
of showing an entitlement to a jury trial under the FAA and must produce some
evidence to substantiate the allegations that the prevailing law would release him
from a contractual obligation to arbitrate." Towles v. United HealthCare Corp., 338
S.C. 29, 38 n.3, 524 S.E.2d 839, 844 n.3 (Ct. App. 1999). When a party signs a
contract, he or she owes a duty to the other party to read the document and learn its
contents. Id. at 39, 524 S.E.2d at 845. Accordingly, under this duty, when there is
no dispute a party has signed an agreement, there can generally be no bona fide
dispute he or she is aware of all terms in the agreement. See id at 39–40, 524 S.E.2d
at 845.
Hackworth did not deny she signed the Admission Agreement, and she did not check
the opt-out box of the arbitration provision from the Admission Agreement.
Therefore, in this case, the accuracy of the date next to the signatures on the
Admission Agreement is immaterial to whether Hackworth formed an agreement
with Bayview Manor. Hackworth's signature demonstrates she understood the
contents of the Admission Agreement, and the absence of a mark in the arbitration
provision's opt-out box demonstrates she assented to be bound by it. See Simmons
v. Benson Hyundai, LLC, 438 S.C. 1, 7, 881 S.E.2d 646, 649 (Ct. App. 2022) (stating
that, under South Carolina law, a contract is formed when there is a meeting of the
minds between the parties as to all essential and material terms, as well as a
manifestation of a mutual intent to be bound to those terms).
Further, we find nothing in the language of the arbitration provision demonstrates
lack of mutuality. Each party agreed in the arbitration provision to arbitrate claims,
which is adequate consideration. See O'Neil v. Hilton Head Hosp., 115 F.3d 272,
275 (4th Cir. 1997) ("A mutual promise to arbitrate constitutes sufficient
consideration for this arbitration agreement."). Because there is no bona fide dispute
of fact regarding whether Hackworth manifested an intent to be bound by the
arbitration provision of the Admission Agreement, we hold Hackworth did not meet
her burden of proving "the making" of the arbitration agreement within the
Admission Agreement is "in issue." See Towles, 338 S.C. at 39–40, 524 S.E.2d at
845 (finding employee's signature on the acknowledgement form of an arbitration
agreement gave rise to only one inference: that the employee understood the terms
of the agreement; therefore, the the Trial Provisions from the FAA and the South
Carolina Arbitration Act were not triggered). Accordingly, as long as the arbitration
provision is valid, it must be enforced.
3. We find the arbitration provision from the Admission Agreement is valid. Under
the "separability" doctrine of Prima Paint, we must consider validity challenges
specific to the arbitration provision, and in doing so, must separate the arbitration
provision from the remainder of the Admission Agreement. Prima Paint Corp. v.
Flood & Conklin Mfg. Co., 388 U.S. 395, 403–04 (1967). We find nothing in the
language of the arbitration provision demonstrates unconscionability. The
arbitration provision was optional and contained a bolded opt-out box; accordingly,
Hackworth, acting as Boles' attorney-in-fact, had a meaningful choice in deciding to
enter into the arbitration provision. Cf. Damico v. Lennar Carolinas, LLC, 437 S.C.
596, 611–17, 879 S.E.2d 746, 755–58 (2022) (explaining an arbitration provision is
unconscionable when a party has no meaningful choice when entering into it or it is
so one-sided as to be oppressive). Further, there is nothing in the language of the
arbitration provision from the Admission Agreement that demonstrates one-sided or
oppressive terms. Cf. id. Finally, to the extent there are any other challenges to the
enforceability of the arbitration provision of the Admission Agreement, we find they
have been abandoned on appeal. See Rule 208(b)(1)(D), SCACR (stating an issue
which is not argued in the brief is deemed abandoned and precludes consideration
on appeal); Ellie, Inc. v. Miccichi, 358 S.C. 78, 99, 594 S.E.2d 485, 496 (Ct. App.
2004) (providing where an issue is not argued within the body of the brief but is only
a short, conclusory statement, it is abandoned on appeal). 1 We therefore hold the
arbitration provision from the Admission Agreement is enforceable.
4. To the extent the circuit court denied Bayview Manor's motion to compel as a
sanction under Rule 11, SCRCP, this was error. Rule 11, SCRCP, is a rule designed
to foster attorney responsibility and to deter litigation abuse. See Kovach v. Whitley,
437 S.C. 261, 263–65, 878 S.E.2d 863, 864–65 (2022) (emphasizing purpose of Rule
11, SCRCP). Next, an attorney being accused of a Rule 11, SCRCP, violation must
be given notice and an opportunity to be heard on the accusation before a sanction
may be imposed. Burns v. Universal Health Servs. Inc., 340 S.C. 509, 514, 532
S.E.2d 6, 9 (Ct. App. 2000). If a court then, in its discretion, determines a sanction
should be imposed, the court "should, in its order, describe the conduct determined
to constitute a violation of the Rule and explain the basis for the sanction imposed."
Runyon v. Wright, 322 S.C. 15, 19, 471 S.E.2d 160, 162 (1996). In the Form 4 order
denying the motion to compel arbitration in this case, the circuit court did not recite
any reason Bayview Manor or its attorney should be sanctioned. Accordingly, we
find Rule 11, SCRCP, was not the basis of the motion's denial, nor would a denial
of the motion have been an appropriate sanction if it was found Bayview Manor or
its attorney had violated Rule 11, SCRCP. See id. (stating sanctions under Rule 11,
SCRCP, may include "an order to pay the reasonable costs and attorney's fees
incurred by the party or parties defending against the frivolous action or action
brought in bad faith, a reasonable fine to be paid to the court, [a] directive of a
nonmonetary nature designed to deter the party or the party's attorney from bringing
any future frivolous action or action in bad faith[, or] if appropriate under the facts
of the case, the court may order a party and/or the party's attorney to pay a reasonable
monetary penalty to the party or parties defending against the frivolous action or
action brought in bad faith").
5. Because we remand this case for arbitration under the arbitration provision from
the Admission Agreement, we need not consider the remainder of Bayview Manor's
issues on appeal. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598,
1
We note there has been no citation to law at any point in the procedural history of
this case regarding the lack of statutory authority to bind a wrongful death
beneficiary to an arbitration agreement, and accordingly, we decline to address the
issue on the merits. Rule 208(b)(1)(D), SCACR (stating an issue which is not argued
in the brief is deemed abandoned and precludes consideration on appeal). However,
we also note that "courts may not refuse to compel arbitration simply because a
wrongful death claim is involved." Dean v. Heritage Healthcare of Ridgeway, LLC,
408 S.C. 371, 378 n.3, 759 S.E.2d 727, 731 n.3 (2014).
613, 518 S.E.2d 591, 598 (1999) (stating a court need not address remaining issues
when another issue is dispositive).
REVERSED AND REMANDED.
GEATHERS and MCDONALD, JJ., and HILL, A.J., concur.