COURTYARD GARDENS HEALTH AND REHABILITATION, LLC, ET AL. APPELLANTS
ANNETTE WILLIAMSON, PERSONAL REPRESENTATIVE OF THE ESTATE OF JERLINE KENNEL, DECEASED, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF JERLINE KENNEL APPELLEE
FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10CV-13-78]
HONORABLE ROBERT MCCALLUM, JUDGE
Rock LLP, by: Mark W. Dossett, Samantha B. Leflar, and Luke
Burton, for appellants.
Appellate Solutions, PLLC, by: Deborah Truby Riordan; The
Edwards Firm, P.L.L.C., by: Robert H. Edwards; and Wilkes
& McHugh, P.A., by: William P. Murray III, for appellee.
W. GRUBER, Judge.
Gardens Health & Rehabilitation, LLC, and related
entities (collectively "Courtyard") appeal from an
order denying their motion to compel
arbitration. We affirm.
operates a nursing-home facility in Arkadelphia, Arkansas.
Ms. Jerline Kennel, the mother of appellee Annette
Williamson, became a resident of the facility in 2005, when
it was owned by another company. When Courtyard assumed
ownership in 2009, it presented the facility's residents
with an admission agreement and an optional arbitration
agreement. The arbitration agreement provided, in essence,
that any claims related to Courtyard's provision of
services or health care would be resolved exclusively by
binding arbitration. It also stated that arbitration would be
conducted in accordance with the National Arbitration Forum
("NAF") Code of Procedure.
admission agreement and arbitration agreement were signed by
Ms. Kennel's son, L.E. Kennel, Jr., pursuant to a power
of attorney she had given him in 2005. Thereafter, Ms. Kennel
remained at the Courtyard facility until shortly before her
death in September 2012.
2013, appellee Annette Williamson, who had been appointed
personal representative of Ms. Kennel's estate, sued
Courtyard in Clark County Circuit Court. Williamson alleged
that Courtyard had committed negligence, medical malpractice,
conspiracy, and violations of the Arkansas Residents'
Rights Act, Ark. Code Ann. §§ 20-10-1201 to -1209
(Repl. 2014), while caring for her mother. Courtyard moved to
dismiss the complaint and to compel arbitration pursuant to
the arbitration agreement signed by L.E. Kennel, Jr., in
2009. Williamson resisted arbitration on three grounds: 1)
L.E. lacked the authority to agree to arbitration on his
mother's behalf; 2) enforcement of the arbitration
agreement was impossible because the NAF was no longer
authorized to conduct arbitration proceedings; and 3) the
arbitration agreement was unconscionable.
a hearing, the circuit court ruled that the arbitration
agreement was not unconscionable, and that ruling is not at
issue on appeal. The court also made the following rulings,
from which this appeal is brought:
1. The Arbitration Agreement was not validly formed. The
Arbitration Agreement was signed by L.E. Kennel on Ms.
Jerline Kennel's behalf, pursuant to a 2005 Power of
Attorney granted to him. On its face and without considering
any extrinsic evidence, the 2005 Power of Attorney did not
encompass the signing of Arbitration Agreements, and thus Mr.
Kennel did not have the authority to enter the Arbitration
Agreement on Ms. Kennel's behalf. Accordingly, no valid
arbitration agreement was formed, and the Court denies the
Defendants' Motion to Compel Arbitration.
2. In the alternative, the Arbitration Agreement is
unenforceable because it incorporates the National
Arbitration Forum ("NAF") Code of Procedure. The
selection of the NAF is an integral term of the Arbitration
Agreement, and it is impossible to perform due to the
unavailability of the NAF.
argues that both of the above rulings were in error and that
the court should have compelled arbitration of
Williamson's claims. Our standard of review is de novo.