Ruesga v. Kindred Nursing Centers, L.L.C., 2 CA-CV 2006-0114.

CourtCourt of Appeals of Arizona
Citation215 Ariz. 589,161 P.3d 1253
Docket NumberNo. 2 CA-CV 2006-0114.,2 CA-CV 2006-0114.
PartiesManuel RUESGA, Personal Representative of the Estate of Robert Ruesga on behalf of the Estate of Robert Ruesga, Plaintiff/Appellant, v. KINDRED NURSING CENTERS West, L.L.C., a Delaware limited liability company, dba Desert Life Rehabilitation and Care Center; Kindred Healthcare Operating, Inc., a Delaware corporation; Kindred Healthcare, Inc., a Delaware corporation; and Jacqueline Lanter, Administrator, Defendants/Appellees.
Decision Date18 July 2007
161 P.3d 1253
215 Ariz. 589
Manuel RUESGA, Personal Representative of the Estate of Robert Ruesga on behalf of the Estate of Robert Ruesga, Plaintiff/Appellant,
KINDRED NURSING CENTERS West, L.L.C., a Delaware limited liability company, dba Desert Life Rehabilitation and Care Center; Kindred Healthcare Operating, Inc., a Delaware corporation; Kindred Healthcare, Inc., a Delaware corporation; and Jacqueline Lanter, Administrator, Defendants/Appellees.
No. 2 CA-CV 2006-0114.
Court of Appeals of Arizona, Division 2, Department A.
July 18, 2007.

[161 P.3d 1255]

Wilkes & McHugh, P.A. By Melanie L. Bossie and James M. Morgan and Copple, Boehm & Murphy, P.C. By Scott E. Boehm, Phoenix, Attorneys for Plaintiff/Appellant.

Bowman and Brooke LLP By Vincent J. Montell, Curtis M. Bergen, and David W. Williams, Phoenix, Attorneys for Defendants/Appellees.


PELANDER, Chief Judge.

¶ 1 Manuel Ruesga, as personal representative and on behalf of the Estate of Robert Ruesga (hereinafter "the estate"), appeals from the trial court's order granting a motion for relief from judgment, filed pursuant to Rule 60(c), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, by defendants/appellees Kindred Nursing Centers West, L.L.C., doing business as Desert Life Rehabilitation and Care Center; Kindred Healthcare Operating, Inc.; Kindred Healthcare, Inc.; and Jacqueline Lanter, Administrator (collectively, "Desert Life"). In this action, the estate alleged various claims in connection with Robert's stay at the Desert Life facility. In ultimately granting Desert Life's Rule 60(c) motion, the trial court ruled that Robert's wife, Florentine, had validly acted as Robert's agent in executing and binding him to an arbitration agreement with Desert Life, precluding a jury trial. The estate argues the trial court erred, inter alia, in finding an agency relationship between Florentine and Robert. Finding no error, we affirm.


¶ 2 The pertinent background facts are essentially undisputed. The parties agree that on November 10, 2003, Robert Ruesga was admitted to Desert Life Rehabilitation and Care Center in a severely compromised state. He had suffered a "massive stroke," a "heart attack," had "had a feeding tube" and "a trache[o]stomy tube for breathing" inserted, and "was virtually non-responsive." Robert was an in-patient resident at Desert Life until March 5, 2004.

¶ 3 When her husband was admitted to the facility, Florentine Ruesga was given a series of admission documents, including an arbitration agreement entitled "Alternative Dispute Resolution Agreement Between Resident and Facility" (ADR agreement). That six-page agreement provided, inter alia,

Any and all claims or controversies arising out of or in any way relating to this Agreement or the Resident[']s stay at the Facility including disputes regarding the interpretation of this Agreement, whether arising out of State or Federal law, whether existing or arising in the future, whether for statutory, compensatory or punitive damages and whether sounding in breach of contract, tort or breach of statutory duties (including, without limitation, any claim based on violation of rights, negligence, medical malpractice, any other departure from the accepted standards of health care or safety or unpaid nursing home charges), irrespective of the basis for the duty or of the legal theories upon

161 P.3d 1256

which the Claim is asserted, shall be submitted to alternative dispute resolution as described in the ADR Rules.

¶ 4 On its fifth page, the ADR agreement further provided:

By signing this Agreement, the Resident is acknowledging that he/she understands the following: (1) he/she has the right to seek legal counsel concerning this Agreement; (2) the execution of this Agreement is not a precondition of admission or to the furnishing of services to the Resident by facility, and the decision of whether to sign the Agreement is solely a matter for the Resident's determination without any influence[;] (3) nothing in this Agreement shall prevent Resident or any other person from reporting alleged violations of law to the facility, or the appropriate administrative, regulatory or law enforcement agency(s); (4) the ADR process adopted by this Agreement contains provisions for both mediation and binding arbitration, and if the parties are unable to reach settlement informally, or through mediation, the dispute shall proceed to binding arbitration; and (5) agreeing to the ADR process in this Agreement means that the parties are waiving their right to a trial in court, including their right to a jury trial, their right to a trial by judge, and their right to appeal the decision of the arbitrator(s) in a court of law.

(Emphasis in original.)

¶ 5 A social worker who had been employed by Desert Life when Robert was admitted averred she had "presented the [ADR] agreement to [Florentine] on November 11, 2003," and had "informed her that if she felt she had a grievance with Desert Life over the care Mr. Ruesga received, the ADR Agreement was an option for her and Mr. Ruesga." The social worker also averred that "if [Florentine] did not sign it, it would not affect whether or not Mr. Ruesga could stay at Desert Life." Florentine apparently took the ADR agreement with her that day and returned and signed it in the social worker's presence on November 17, 2003. Florentine signed the agreement on a line labeled "Legal Representative." Immediately above her signature the agreement stated: "By virtue of the Resident's consent, instruction, durable power of attorney, or appointment as guardian, I hereby certify that I am authorized to act as Resident's agent in executing and delivering this Agreement." On a line below her signature, labeled "Authority and Title," the word "wife" was hand written. It is undisputed that at the time she executed the ADR agreement, Florentine was not acting under any power of attorney or as legal guardian for Robert, nor had Robert expressly or specifically authorized her to do so.

¶ 6 In January 2005, Florentine filed this action against Desert Life, "on behalf of Robert" as his "next friend," alleging claims of negligence; negligence per se for violating statutory duties; violations of A.R.S. §§ 46-454 and 46-455, portions of Arizona's Adult Protective Services Act; breach of contract; and fraud.1 Based on the ADR agreement, Desert Life moved to dismiss the complaint and to compel arbitration. The trial court initially denied those motions, noting that Florentine "did not have a binding power of attorney for her husband and had not been appointed guardian for [him]" and concluding that "[t]he arbitration agreement [wa]s not a valid contract because it [had not been] signed by Mr. Ruesga or his authorized agent."

¶ 7 Subsequent discovery revealed several medical records that Desert Life presented as newly discovered evidence of an agency relationship between Robert and Florentine. Based on those documents, within six months of the trial court's ruling, Desert Life moved for relief from that ruling pursuant to Rule 60(c)(2). Following oral argument, the trial court granted Desert Life's motion and directed the parties to "arbitrate all claims in

161 P.3d 1257

accordance with the terms of the arbitration agreement." This appeal followed.


¶ 8 Without elaboration, both sides assert in their briefs that this court has appellate jurisdiction pursuant to A.R.S. § 12-2101(C) and (D). "We are not bound by [the parties' assertion,] however, because of this court's independent duty to determine whether we have jurisdiction." Bothell v. Two Point Acres, Inc., 192 Ariz. 313, n. 2, 965 P.2d 47, 50 n. 2 (App.1998); see also Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981).

¶ 9 At oral argument in this court, the estate argued, and Desert Life agreed, the trial court's order compelling arbitration is appealable pursuant to A.R.S. § 12-2101(C) as a "special order made after final judgment." The estate correctly pointed out that the trial court's initial order, which denied Desert Life's motions to dismiss and compel arbitration, was appealable pursuant to A.R.S. § 12-2101.01(A)(1) and thus constituted a "judgment" pursuant to Rule 54(a), Ariz. R. Civ. P., 16 A.R.S., Pt. 2 ("`Judgment' as used in these Rules includes a decree and an order from which an appeal lies."). Therefore, the estate further argued, the trial court's subsequent order granting Desert Life's Rule 60(c) motion amounted to a "special order made after final judgment." § 12-2101(C).

¶ 10 That an order is statutorily appealable and qualifies as a "judgment" for purposes of Rule 54(a), however, does not necessarily make it a "final judgment" for purposes of § 12-2101. See Prop. Investors Enters., Ltd. v. Found. for Airborne Relief, Inc., 115 Ariz. 52, 54, 563 P.2d 307, 309 (App.1977) ("[The] order was not final, even though it was denominated `judgment'"). Rather, "`[a] final judgment . . . decides and disposes of the cause on its merits, leaving no question open for judicial determination.'" Id., quoting Decker v. City of Tucson, 4 Ariz.App. 270, 272, 419 P.2d 400, 402 (1966); see also Kim v. Mansoori, 214 Ariz. 457, ¶ 6, 153 P.3d 1086, 1088 (App.2007) (final judgment disposes of at least one claim in a multiclaim action); Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App.1991) (final judgment is "`an ultimate disposition of an individual claim'"), quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 900, 100 L.Ed. 1297 (1956).

¶ 11 The trial court's first order that denied Desert Life's motions to dismiss and to compel arbitration did not ultimately dispose of any claim on the merits or otherwise. In fact, that order did just the opposite, allowing the estate's claims to proceed in superior court rather than referring the case to arbitration. Thus, because the trial court did not enter any final judgment, we reject the parties'...

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