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Hickory Heights Health and Rehab, LLC v. Cook

Court of Appeals of Arkansas, Division III

September 11, 2018

HICKORY HEIGHTS HEALTH AND REHAB, LLC; CENTRAL ARKANSAS NURSING CENTERS, INC.; NURSING CONSULTANTS, INC. D/B/A PROFESSIONAL NURSING AND REHABILITATION SERVICES; TINA LYNETTE BEARD, INDIVIDUALLY AND AS NURSING HOME ADMINISTRATOR FOR HICKORY HEIGHTS HEALTH AND REHAB, LLC; MICHAEL S. MORTON; AND JOHN DOE DEFENDANTS 1-10 APPELLANTS
v.
MABEL KELLER COOK APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO. 60CV-17-2272] HONORABLE TIMOTHY DAVIS FOX, JUDGE

          Hardin, Jesson & Terry, PLC, by: Jeffrey W. Hatfield, Kynda Almefty, Carol Ricketts, Kirkman T. Dougherty, and Stephanie I. Randall, for appellants.

          James, House, Downing & Lueken, P.A., by: Patrick R. James and Kayla M. Applegate, for appellee.

          N. MARK KLAPPENBACH, JUDGE

         This is an interlocutory appeal concerning the denial of a motion to compel arbitration. Appellants are Hickory Heights Health and Rehab, LLC; Central Arkansas Nursing Centers, Inc.; Nursing Consultants, Inc. d/b/a Professional Nursing and Rehabilitation Services; Tina Lynette Beard, individually and as nursing home administrator for Hickory Heights Health and Rehab, LLC; Michael S. Morton; and John Doe Defendants 1-10 (collectively "Hickory Heights"). Appellee is Mabel Keller Cook ("Mabel"), an elderly woman who was a resident for a few months in 2015 at a Hickory Heights skilled-nursing facility while she recovered from a fractured hip. In 2017, Mabel filed a lawsuit in circuit court against Hickory Heights, and Hickory Heights filed a motion to compel her causes of action to be heard in arbitration, which the trial court denied. Hickory Heights appeals the denial of its motion. We affirm.

         We begin with a more expansive view of the undisputed facts prior to our legal analysis. Mabel had a durable power of attorney that she executed in February 2014 appointing Charles A. Cook to act as her attorney-in-fact. In June 2015, Mabel's daughter Ethel Cook signed an Admission Agreement and an Arbitration Agreement as the "Responsible Party" upon Mabel's admission into the Hickory Heights facility.

         The Arbitration Agreement recited that it was "an addendum to and part of the Admission Agreement" and "a condition of admission" that "governs the resolution of claims." The Arbitration Agreement set forth that "[t]he Resident and/or Responsible Party and the Facility shall be collectively referred to as the 'Parties.'" The terms "Resident and/or Responsible Party" are used throughout both documents to define rights and responsibilities among the parties. The Arbitration Agreement recited that "any and all claims, disputes, and controversies. . . shall be resolved exclusively by binding arbitration and not by a lawsuit or resort to court process." The Admission Agreement begins as follows:

This Admission Agreement includes the terms and conditions agreed by ___, the undersigned resident, Ethel Cook, your Responsible Party, and Hickory H eights Health & Rehab the Nursing Facility ("Facility"), in your request for the admission of Mabel Cook (Resident Name) to the Facility for medical, nursing, and personal care.

         Both the Admission Agreement and the Arbitration Agreement contain a definition of "Responsible Party" as follows:

Your Responsible Party is your legal guardian, if one has been appointed, your attorney-in-fact, if you have executed a power of attorney, or some other individual or family member who agrees to assist the Facility in providing for your health, care and maintenance.

         The Arbitration Agreement and the Admission Agreement provide signature lines for the "Resident," the "Responsible Party," and the "Facility Representative." Ethel signed the Arbitration Agreement listing her relationship to Mabel as "daughter," and a Hickory Heights representative signed, but Mabel did not sign. Notably, at the end of the Arbitration Agreement just below the signature lines is the following language:

___(Check if applicable): A copy of my guardianship papers, durable power of attorney or other documentation has been provided to the Facility and is attached.

         This space was left blank.

         The Admission Agreement further defined a "Responsible Party" to include "a person who manages, uses, controls, or otherwise has legal access to Resident's income or resources that legally may be used to pay Resident's share of cost or other charges not paid by the Arkansas Medicaid Program or any other source." Ethel signed her name as the "Responsible Party" on the Admission Agreement, and a Hickory Heights representative signed ...


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