Shook v. Renewcare of Scottsdale Inc., 052820 AZAPP1, 1 CA-CV 19-0358

Docket Nº:1 CA-CV 19-0358
Opinion Judge:MORSE, JUDGE
Party Name:SUSAN SHOOK, Plaintiff/Appellee, v. RENEWCARE OF SCOTTSDALE Inc., et al., Defendants/Appellants.
Attorney:Bossie Reilly & Oh, PC, Phoenix By Mary E. Reilly, Melanie L. Bossie, Donna Y. Oh Co-Counsel for Plaintiff/Appellee Mark J. DePasquale, PC, Phoenix By Mark J. DePasquale Co-Counsel for Plaintiff/Appellee Ensign Services Inc., Higley By Michael J. Ryan Counsel for Defendants/Appellants
Judge Panel:Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.
Case Date:May 28, 2020
Court:Court of Appeals of Arizona
 
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SUSAN SHOOK, Plaintiff/Appellee,

v.

RENEWCARE OF SCOTTSDALE Inc., et al., Defendants/Appellants.

No. 1 CA-CV 19-0358

Court of Appeals of Arizona, First Division

May 28, 2020

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV2017-053385 The Honorable Bruce R. Cohen, Judge

Bossie Reilly & Oh, PC, Phoenix By Mary E. Reilly, Melanie L. Bossie, Donna Y. Oh Co-Counsel for Plaintiff/Appellee

Mark J. DePasquale, PC, Phoenix By Mark J. DePasquale Co-Counsel for Plaintiff/Appellee

Ensign Services Inc., Higley By Michael J. Ryan Counsel for Defendants/Appellants

Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

MEMORANDUM DECISION

MORSE, JUDGE

¶1 Defendants, collectively called "Osborn Health and Rehabilitation Center" or "Osborn," appeal the superior court's denial of Osborn's motion to compel arbitration. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2014, Milris Shook ("Milris") was admitted to Osborn's facility for nursing and rehabilitation services and the facility asked her to sign certain admission documents. Milris told her daughter, Andeanna Farnes ("Farnes"), "you do it." Five days later, Farnes signed the papers, including two optional arbitration agreements ("the Agreements"), as "Andeanna Farnes for Milris Shook[.]" Milris's admission records reflect that she was alert but confused at the time of admission. The records also show that when Milris was admitted to Osborn's facility she did not understand where she was or what time it was. She also slurred her speech and had trouble communicating and finishing her thoughts. Seven years before her admission, Milris executed a health care power of attorney that designated Farnes as Milris's "agent for all matters relating to [her] health[.]"

¶3 Milris died two years after her admission to Osborn's facility. Plaintiff Susan Shook ("Plaintiff"), Milris's daughter and personal representative of her estate, sued Osborn, alleging negligence and violations of the Adult Protective Services Act, A.R.S. § 46-455. Osborn moved to compel binding arbitration based on the Agreements executed by Farnes. Plaintiff countered that Farnes had no authority to sign the Agreements on Milris's behalf. The superior court found a factual dispute over Farnes' authority to sign the Agreements and held an evidentiary hearing to resolve the issue.

¶4 Plaintiff's expert was the only witness to testify at the evidentiary hearing. He concluded that Milris could not make an informed decision when she supposedly delegated authority to her daughter. The expert had reviewed Milris's medical records and emphasized her dementia.

¶5 The superior court considered the expert testimony and documentary evidence entered during the hearing and denied the motion to compel arbitration, finding that Osborn failed to prove that Farnes had the authority to act as Milris's agent and that Milris's actions did not confer actual or apparent authority on Farnes to sign an arbitration agreement. Further, the superior court found that Milris's health care power of attorney did not confer authority on Farnes to execute the Agreements.

¶6 Osborn moved for reconsideration, which the superior court denied. Osborn timely appealed, and we have jurisdiction under A.R.S. § 12-2101.01(A)(1).

DISCUSSION

¶7 Osborn argues that the superior court erred when it found Farnes lacked the authority to enter into the Agreements on behalf of Milris. "The trial court's review on a motion to compel arbitration is limited to the determination as to whether an arbitration agreement exists. We must defer, absent clear error, to the factual findings upon which the trial court's conclusions are based." Estate of Decamacho ex rel. Guthrie v. La Solana Care and Rehab, Inc., 234 Ariz. 18, 20, ¶ 8 (App. 2014) (quotation marks and citations omitted). We review issues of law de novo. Id.

¶8 "Generally, '[t]he question of whether an agency existed is one of fact.'" Ruesga v. Kindred Nursing Ctrs., LLC, 215 Ariz. 589, 595, ¶ 21 (App. 2007) (quoting Corral v. Fid. Bankers Life Ins. Co., 129 Ariz. 323, 326 (App. 1981)). We defer to the superior...

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