Gross v. GGNSC Southaven, LLC

• Decision Date: 03 February 2015
• Docket Number: No. 3:14CV00037–M–A.,3:14CV00037–M–A.
• Citation: 83 F.Supp.3d 691
• Parties: Sammy GROSS, as the Administrator of the Estate of Pauline Tillman Wagner, Deceased and on Behalf of Her Wrongful Death Beneficiaries, Plaintiffs, v. GGNSC SOUTHAVEN, LLC d/b/a Golden Living Southaven, Golden Gate National Senior Care, LLC, GGNSC Equity Holdings, LLC, GGNSC Clinical Services, LLC, GPH Southaven, LLC, GGNSC Holdings, LLC, GGNSC Administrative Services, LLC, and Beverly Enterprises, Inc., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

83 F.Supp.3d 691

Sammy GROSS, as the Administrator of the Estate of Pauline Tillman Wagner, Deceased and on Behalf of Her Wrongful Death Beneficiaries, Plaintiffs

v.GGNSC SOUTHAVEN, LLC d/b/a Golden Living Southaven, Golden Gate National Senior Care, LLC, GGNSC Equity Holdings, LLC, GGNSC Clinical Services, LLC, GPH Southaven, LLC, GGNSC Holdings, LLC, GGNSC Administrative Services, LLC, and Beverly Enterprises, Inc., Defendants.

No. 3:14CV00037–M–A.

United States District Court, N.D. Mississippi, Oxford Division.

Signed Feb. 3, 2015.

David A. Couch, David A. Couch PLLC, Little Rock, AR, Peter Byron Gee, Jr., Morgan & Morgan, P.A., Memphis, TN, for Plaintiffs.

Lamar Bradley Dillard, Mitchell, McNutt & Sams, Tupelo, MS, for Defendants.

ORDER

MICHAEL P. MILLS, District Judge.

This cause comes before the court on the motion of Defendants GGNSC Southaven, LLC d/b/a Golden Living Center Southaven, Golden Gate National Senior Care, LLC, GGNSC Equity Holdings, LLC, GGNSC Clinical Services, LLC, GPH Southaven, LLC, GGNSC Holdings, LLC, GGNSC Administrative Services, LLC, and Beverly Enterprises, Inc. (collectively “Defendants”), to Dismiss Proceedings and to Compel Arbitration. Plaintiff Sammy Gross, as the Administrator of the Estate of Pauline Wagner, has responded in opposition to the motion. The court, having considered the memoranda and submissions of the parties, concludes that the motion is not well taken and should be denied.

This is a wrongful death action arising from the July 12, 2012 death of Pauline Wagner while she was a resident at the GGNSC Southaven nursing home. In its present posture, however, the parties in this case are contesting the issue of whether it should be referred to binding arbitration. Defendants argue that it should, based on the fact that when Wagner was admitted to the nursing home on February 2, 2009, her son, plaintiff Sammy Gross, signed an arbitration agreement on her behalf. In opposing defendants' motion to compel arbitration, plaintiffs emphasize that Wagner's signature is nowhere to be found on the arbitration agreement, and they argue that since no power of attorney or similar document had been executed, Gross lacked legal authority to sign the agreement on his mother's behalf.

After reviewing the parties' initial briefing on this issue, this court conducted its own research and discovered Mississippi authority which it felt needed to be addressed by the parties. Accordingly, this court entered an order on September 3, 2014, directing the parties to address that authority. The parties have done so, and the court is now prepared to consider the merits of the motion to compel arbitration. In arguing that plaintiff had legal authority to sign an arbitration agreement on behalf of his mother, defendants rely upon four primary theories. These theories are actual authority, apparent authority, estoppel, and a third party beneficiary theory. The court will consider these theories in turn.

Actual authority/express agency

The court considers first defendants' argument that plaintiff had actual authority (sometimes referred to as an “express agency”) to sign an arbitration agreement on behalf of his mother. As the court noted in its order requesting additional briefing, plaintiff did provide defendants with at least some points to argue on this issue, conceding in his deposition that his mother had entrusted him with authority to manage some of her affairs. The court will quote directly from defendants' brief on this issue:

In the case at hand, Plaintiff has submitted sworn deposition testimony that he was in fact expressly authorized by Ms. Wagner to execute any and all admission documentation, including the arbitration agreement, on her behalf.

Q. Would you state your full name, please.

A. Sammy Rogers Gross.

...

Q. Before Ms. Wagner went to the nursing home, where did she live?

A. With me.

Q. How long had she lived with you before being admitted to Golden Living?

A. Probably about a year.

Q. When she moved in with you, what was her mental state like?

A. It was decent at the time, but going down. She was in the stages of early dementia, but she was still pretty alert.

Q. Would it be fair to say she would have moments that she was—she knew what she was doing and who she was and where she was, and other times, she might be more confused.

A. Correct.

Plaintiff further testified that his name was on his mother's checking account at Regions Bank prior to her nursing home admission, and that she had authorized both him and his brother to access to all funds held in said account. His mother also authorized him to execute any and all documents on her behalf at any hospital or other healthcare provider. (Id. at pp. 13–14). Ms. Wagner was in full agreement that admission to Golden Living–Southaven was in her best interests in February, 2009, and with that understanding she expressly authorized her son, the Plaintiff, to execute any and all documentation associated with such admission.

[Defendants' brief at 7–8]. Plaintiff further testified that he believed he was acting as his mother's representative in signing the arbitration agreement on her behalf, and he indicated that he would not have signed the agreement if he did not believe that he had authority to do so.

Later in their brief, however, defendants appear to concede that their proof of agency in this case has some weaknesses. In its order requesting additional briefing, one of the cases which the court asked the parties to address was Cotton v. GGNSC, No: 3:13cv169 (N.D.Miss.), which is presently pending before Judge Brown in this district. In Cotton, Judge Brown entered an order on July 23, 2014 which tentatively concluded that defendants' motion to compel arbitration lacked merit, but she withheld a final ruling on most arbitration issues pending additional discovery.

Cotton involves the same defendants and many of the same issues as are present here, and the court accordingly requested that the parties address it. In complying with this court's request, defendants appear to concede that their proof of agency in this case is weaker than in Cotton. Specifically, defendants write in their brief that:

Unlike the instant case, however, [the nursing home resident in Cotton ] was physically in the hospital room with her daughter as the admission and arbitration agreements were executed, could see and hear what was occurring, was of competent mind, and made no objection nor voiced any opposition to her daughter's actions. These facts raise additional issues pertaining to apparent authority, estoppel and ratification which are not present before this honorable court. Although the two cases have similarities, the differences in the factual evidence presented in each case allow this honorable court, and Judge Brown, to reach their own conclusions as to the enforceability of the respective arbitration agreements.

[Id. at 30–31]. This court will not comment on the proof in Judge Brown's case, but it does conclude that defendants' proof of express agency in this case has a number of weaknesses, and the fact that Wagner was not present when the arbitration agreement was signed is merely one of them.

In the court's view, the weaknesses in defendants' proof of agency in this case are particularly evident when one considers the quite stringent approach which the Mississippi Supreme Court has taken in this context. This court's review of Mississippi case law in this area very strongly suggests, if not definitively establishes, that a formal legal device transferring authority is required in order to confer actual authority to sign a nursing home arbitration agreement on behalf of another.

It appears from the court's review of the authority discussed below that there are two primary legal devices which might serve to confer authority to sign a nursing home arbitration agreement on behalf of another. These two devices are 1) a formal power of attorney or 2) a health care surrogacy pursuant to Miss.Code Ann. § 41–41–211(1). There may well be other such legal devices (such as conservatorships or guardianships), but these are the two which are repeatedly mentioned in Mississippi appellate court case law dealing with this issue. The court notes that, in this case, the second device may be taken off the table at the outset, since the Supreme Court has made it clear that health care surrogacies may only confer authority to sign a nursing home arbitration agreement on behalf of another when the agreement is a requirement of admission (and thus, conceptually, within the scope of health care decisions). Mississippi Care Center of Greenville, LLC v. Hinyub, 975 So.2d 211, 218 (Miss.2008). It is undisputed that the arbitration contract in this case was not treated as a condition of admission, and the parties thus agree that § 41–41–211(1) is not relevant in this case. That leaves a power of attorney as the sole means by which, the court's review of authority suggests, authority for plaintiff to sign a nursing home arbitration agreement might have been conferred in this case.

It is undisputed that no such power of attorney was executed in this case, and defendants instead rely upon the informal permission which, plaintiff testified, he was given by his mother to manage her affairs. As discussed below, however, this is almost certainly not enough under Mississippi law. In seeking additional briefing on this issue, the court requested that the parties address two Mississippi Supreme Court decisions, discovered in the court's own research, which suggested that such informal permission was insufficient. These two decisions are Adams Community Care Center, LLC v. Reed, 37 So.3d 1155 (Miss.2010) and GGNSC Batesville, LLC v. Johnson, 109 So.3d 562 (Miss.2013). The court will discuss these decisions, as well as two additional decisions which, in its view, remove any doubt that a formal power of attorney or similar device is required in this context.

In Reed, two sons signed, on behalf of their mother,...