COURTYARD GARDENS HEALTH AND REHABILITATION, LLC, ET AL. APPELLANTS
ERICKA ANN DAVIS, SPECIAL ADMINISTRATOR OF THE ESTATE OF JULIUS MARKS, DECEASED APPELLEE
FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10CV-14-38]
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.
Courtyard Gardens Health and Rehabilitation, LLC, along with
its owners, administrators, and other related entities
(collectively "Courtyard"), appeal from an order
denying their motion to compel arbitration. We reverse and remand.
2009, Julius Marks, the father of appellee Ericka Ann Davis,
became a resident of Courtyard's nursing-home facility in
Arkadelphia, Arkansas. Mr. Marks's admission papers,
including an arbitration agreement, were signed on his behalf
by Ms. Davis, pursuant to her power of attorney.
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.
The agreement also provided that arbitration would be
conducted in accordance with the National Arbitration Forum
("NAF") Code of Procedure, which was incorporated
into the agreement.
Marks remained at Courtyard until shortly before his death in
October 2013. In April 2014, Ms. Davis, as special
administrator of her father's estate, filed suit against
Courtyard in Clark County Circuit Court, alleging negligence
and medical malpractice in her father's care and
treatment. Courtyard moved to compel arbitration of the claim
in accordance with the above-referenced arbitration
agreement. However, Davis responded that the arbitration
agreement was legally impossible to perform because the NAF,
whose procedural code was incorporated into the agreement, no
longer conducted consumer arbitrations. The court agreed and
ruled that the arbitration agreement was impossible to
perform due to the unavailability of the NAF. Courtyard filed
a timely appeal.
argues that the parties' arbitration agreement remained
enforceable, despite the NAF's unavailability as an
arbitration forum. We agree.
NAF's absence from consumer-arbitration cases stems from
an action filed by Minnesota's Attorney General in 2009.
The action alleged that the NAF had violated various
consumer-protection laws while handling consumer arbitration
claims. See Green v. U.S. Cash Advance Ill., LLC,
724 F.3d 787 (7th Cir. 2013); Meskill v. GGNSC Stillwater
Greeley, LLC, 862 F.Supp.2d 966 (D. Minn. 2012);
Miller v. GGNSC Atlanta, LLC, 746 S.E.2d 680
(Ga.Ct.App. 2013). To settle the case, the NAF signed a
consent decree barring it from accepting consumer arbitration
cases. As a result, a legal dilemma arose with regard to
arbitration agreements that, like the one here, invoked the
NAF procedures. See Meskill, supra. The
issue that would soon be addressed by numerous courts was
whether the NAF's unavailability rendered such
arbitration agreements legally impossible to perform.
courts split on this question, but our supreme court recently
resolved the issue for our State in Courtyard Gardens
Health & Rehabilitation, LLC v. Arnold, 2016 Ark.
62, 485 S.W.3d 669. The Arnold court held that,
based on the language of the parties' arbitration
agreement and the applicable law, the absence of the NAF did
not render performance of the arbitration agreement
impossible. Specifically, the court determined that the
agreement's reference to the NAF was ancillary to, ...