Robinson Nursing & Rehab. Ctr., LLC v. Briley

• Decision Date: 23 February 2022
• Docket Number: CV-21-68
• Citation: 2022 Ark. App. 85,643 S.W.3d 34
• Parties: ROBINSON NURSING AND REHABILITATION CENTER, LLC; Central Arkansas Nursing Centers, Inc.; Nursing Consultants, Inc.; and Michael Morton, Appellants v. James BRILEY, as Special Administrator of the Estate of Alice Ann Briley and on Behalf of the Wrongful Death Beneficiaries of Alice Ann Briley, Deceased, Appellee
• Court: Arkansas Court of Appeals

2022 Ark. App. 85

643 S.W.3d 34

ROBINSON NURSING AND REHABILITATION CENTER, LLC; Central Arkansas Nursing Centers, Inc.; Nursing Consultants, Inc.; and Michael Morton, Appellants

v.James BRILEY, as Special Administrator of the Estate of Alice Ann Briley and on Behalf of the Wrongful Death Beneficiaries of Alice Ann Briley, Deceased, Appellee

No. CV-21-68

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered February 23, 2022

Hardin, Jesson & Terry, PLC, Little Rock, by: Jeffrey W. Hatfield, Kynda Almefty, Carol Ricketts, and Kirkman T. Dougherty, Fort Smith, for appellants.

Reddick Moss, PLLC, by: Matthew D. Swindle and Heather G. Zachary, Little Rock, for appellee.

ROBERT J. GLADWIN, Judge

Robinson Nursing and Rehabilitation Center, LLC; Central Arkansas Nursing Centers, Inc.; Nursing Consultants, Inc.; and Michael Morton (collectively "Robinson") appeal the Pulaski County Circuit Court's order denying Robinson's motion to compel arbitration on claims filed by appellee James Briley, as special administrator of the estate of Alice Ann Briley, and on behalf of the wrongful death beneficiaries of Alice Ann Briley, deceased (hereinafter referred to as "Briley"). On appeal, Robinson argues that the circuit court erroneously denied its motion because res judicata bars reconsideration of the arbitration agreement's validity and enforceability. We reverse and remand for entry of an order to compel arbitration.

I. Procedural History

This appeal is related to a separate class-action suit filed by nursing home residents or their representatives against Robinson. Briley is a member of the certified class. The class-action case has resulted in two Arkansas Supreme Court opinions. See Robinson Nursing & Rehab. Ctr., LLC v. Phillips , 2019 Ark. 305, 586 S.W.3d 624 ( Phillips II ); Robinson Nursing & Rehab. Ctr., LLC v. Phillips , 2017 Ark. 162, 519 S.W.3d 291 ( Phillips I ).

A. Phillips I

On September 4, 2015, Andrew Phillips, as personal representative of the estate of Dorothy Phillips, and others (collectively "Phillips") filed a first amended class-action complaint alleging that Robinson's business practice of chronic understaffing breached the admission and provider agreements, violated the Arkansas Deceptive Trade Practices Act (ADTPA), constituted negligence and civil conspiracy, and unjustly enriched Robinson.¹ Phillips I , 2017 Ark. 162, at 2, 519 S.W.3d at 294. The circuit court granted class certification of all residents who resided at the Robinson Nursing and Rehabilitation Center from June 11, 2010, to March 4, 2016. Id. at 3, 519 S.W.3d at 295. Robinson filed an interlocutory appeal, and the Arkansas Supreme Court affirmed the class certification for breach-of-contract, ADTPA, and unjust-enrichment claims, reversed the class certification in regard to the negligence claims, and remanded with instructions to decertify the class as to Phillips's negligence claims. Id. at 14–16, 519 S.W.3d at 301–02.

The class action continued in the circuit court as follows:

On September 1, 2017, Robinson filed a motion to compel arbitration with regard to nine class members/residents with arbitration agreements that had been signed by the residents’ legal guardians. This motion was later supplemented to add one additional class member. Robinson also filed separate motions to compel arbitration as to 105 residents who had signed the agreements on their own behalf and as to 158 residents whose agreements had been signed by a person with power of attorney over that resident. On September 5, 2017, Robinson filed a fourth motion to compel arbitration as to 271 residents who had "responsible parties" execute arbitration agreements on their behalf. The individual arbitration agreements, admission agreements, and any other accompanying documents were attached to the motions to compel.

On September 7, 2017, Phillips filed an unopposed motion for extension of time to respond to Robinson's motions to compel arbitration. The motion was granted, and the circuit court extended the time for response until October 17, 2017. However, before Phillips filed a response, the circuit court summarily ruled at a September 22, 2017 hearing that all four of Robinson's motions to compel arbitration were denied. Neither party presented argument in support of, or in opposition to, the motions or objected to the timing of the circuit court's ruling at the hearing. The court also denied Robinson's request for findings of fact and conclusions of law. A written order generally denying the motions to compel was entered on October 19, 2017, and Robinson filed a timely notice of appeal from the order.

Phillips II , 2019 Ark. 305, at 3–4, 586 S.W.3d at 628.

B. Briley's Individual Litigation

On November 14, 2017, during the pendency of the class-action appeal, Briley filed a complaint against Robinson.² Briley alleged negligence, medical malpractice, breach of the admission agreement, breach of the provider agreement, and violations of the ADTPA. On January 3, 2018, Robinson filed an answer alleging that an arbitration agreement prevented jurisdiction in a court of law and denying the remainder of the complaint.

On July 25, Briley moved to compel discovery, asking that Robinson produce the applicable arbitration agreement. Briley argued that Robinson had not sought to compel arbitration in the seven months since it was served. Robinson responded that Phillips II was pending in the Arkansas Supreme Court, and at issue was the circuit court's denial of motions to enforce arbitration agreements, including Ms. Briley's. Robinson claimed that if the supreme court determined that Ms. Briley's arbitration agreement is valid and enforceable, it will be the province of the arbitrator to resolve any discovery disputes between the parties.

Briley replied that Robinson was delaying and argued that the motion to compel discovery should be granted because the court had jurisdiction until Robinson compelled arbitration. Briley claimed that Robinson's lack of diligence in pursuing arbitration is not a bar to Briley's discovery but a waiver of its right to contest jurisdiction, citing Messina v. North Central Distributing, Inc. , 821 F.3d 1047 (8th Cir. 2016), and Diamante v. Dye , 2013 Ark. App. 630, 430 S.W.3d 196. Briley argued further,

Moreover, [Robinson's] contention that the Arkansas Supreme Court's decision on the validity of arbitration agreements in [ Phillips II ] will summarily place [Briley's] case in arbitration misses the mark. [ Phillips II ] involves [Robinson's] waiver of the arbitration issue--accordingly, [ Phillips II ] could be decided on the waiver issue without ever addressing the merits of the validity of the arbitration agreement. Even if the Supreme Court decides the [ Phillips II ] arbitration agreements are valid, it will not negate [Briley's] right to challenge the facts and circumstances surrounding the contract's formation that [Briley] may raise in this case. Regardless of the Supreme Court's decision in [ Phillips II ], [Robinson] will still have to move to compel arbitration or provide discovery.

On October 4, 2018, Robinson moved to transfer Briley's case to the Pulaski County Circuit Court, Sixth Division. Robinson alleged that Briley is a member of the certified class in Phillips II , which was pending before the Sixth Division Circuit Court, and that Briley did not opt out of the class action by the deadline of January 2, 2018, as provided in the class-certification order. Robinson argued that both Briley's case and the class-action cases seek damages for alleged understaffing at Robinson Nursing and Rehabilitation Center during the class period and that both cases include the same causes of action. Robinson asserted that it had filed a motion to compel arbitration in the class-action case, and the circuit court denied the motion; therefore, Robinson appealed. Robinson argued that Ms. Briley's arbitration agreement is included in the appeal and that after the appellate court's decision, a mandate would issue in the class-action case directing the circuit court on how to proceed as to the arbitration agreements.

On October 12, Briley moved to voluntarily dismiss without prejudice all of his claims except for negligence and medical negligence, and the court granted the motion. Thereafter, Briley responded to Robinson's transfer motion, arguing that the motion was moot because of his voluntary dismissal of all claims except for those based on negligence. Briley argued that Robinson wrongfully claimed that Ms. Briley is a member of the class in Phillips II because the class was not certified as to negligence pursuant to Phillips I . He claimed that even though Ms. Briley did not opt out of the class in regard to those claims that were certified, she cannot be a member of the class as to her negligence claims.

Robinson replied, arguing that Briley's response ignored a pending appeal involving Ms. Briley's arbitration agreement and that any mandate addressing the agreement's validity and enforceability would be delivered to the Sixth Division Circuit Court. Robinson argued that the circuit court in Phillips II is in the best position to determine whether Ms. Briley is a member of the class action and the extent to which her status as a class member affects her attempt to bring individual claims.

On January 30, 2019, the circuit court granted Robinson's motion to transfer, and on October 31, the Arkansas Supreme Court delivered its opinion in Phillips II .

C. Phillips II

On appeal of the circuit court's denial of Robinson's motion to enforce arbitration agreements in the class-action case, Robinson argued that the 544 arbitration agreements were valid and enforceable, that Phillips's claims were within the scope of the agreements, and that the circuit court's ruling was contrary to the Arkansas Supreme Court's strong policy in favor of arbitration. Phillips II , 2019 Ark. 305, at 4, 586 S.W.3d at 628. The supreme court noted Phillips's preliminary argument...