St. Dominic Ambulatory Surgery Center, LLC v. Shaffer

• Decision Date: 08 June 2021
• Docket Number: NO. 2019-CA-01158-COA,2019-CA-01158-COA
• Citation: 329 So.3d 509
• Parties: ST. DOMINIC AMBULATORY SURGERY CENTER, LLC, Appellant v. Cailton SHAFFER, II, Individually and on Behalf of the Estate of Shelia Shaffer, Deceased and Wrongful Death Beneficiaries of Shelia Shaffer, Deceased, Appellee/Cross-Appellant v. Lori Marshall, M.D., Cross-Appellee
• Court: Mississippi Court of Appeals

329 So.3d 509

ST. DOMINIC AMBULATORY SURGERY CENTER, LLC, Appellant

v.Cailton SHAFFER, II, Individually and on Behalf of the Estate of Shelia Shaffer, Deceased and Wrongful Death Beneficiaries of Shelia Shaffer, Deceased, Appellee/Cross-Appellant

v.Lori Marshall, M.D., Cross-Appellee

NO. 2019-CA-01158-COA

Court of Appeals of Mississippi.

June 8, 2021

Rehearing Denied September 14, 2021

ATTORNEYS FOR APPELLANT: MILDRED M. MORRIS, TREMARCUS D'RAY KESHON ROSEMON, TIMOTHY LEE SENSING, Jackson

ATTORNEYS FOR APPELLEES: JOE N. TATUM, WHITMAN B. JOHNSON III, LORRAINE WALTERS BOYKIN, Jackson

BEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ.

GREENLEE, J., FOR THE COURT:

¶1. Cailton Shaffer, individually and on behalf of the estate of Shelia Shaffer, sued Dr. Lori Marshall, St. Dominic Ambulatory Surgery Center LLC (Surgery Center), and St. Dominic Hospital in the Hinds County Circuit Court. Subsequently, on August 14, 2018, Dr. Marshall filed a motion to compel arbitration. On October 23, 2018, the Surgery Center moved to join Dr. Marshall's motion to compel arbitration. Cailton objected to arbitration, claiming that Shelia's signature on the arbitration agreement had been forged. After a hearing on the forgery allegation, the circuit court granted the motion to compel arbitration for the claims against Dr. Marshall but denied arbitration as to the Surgery Center's claims. From this judgment, the Surgery Center appeals, and Cailton cross-appeals. We affirm the circuit court's decision, finding that the circuit court did not err in granting the motion to compel arbitration of Dr. Marshall's claims, and denying the Surgery Center's joinder to compel arbitration.

FACTS AND PROCEDURAL HISTORY

¶2. On January 5, 2016, during a medical appointment, Shelia was presented with a Clinic-Physician-Patient Arbitration Agreement. The terms of the agreement provided that if a claim or controversy arose from Dr. Lori Marshall's medical services, those claims would be submitted to arbitration according to the Federal Arbitration Act (FAA). The agreement had to be signed by both the patient and a witness. Shelia signed the agreement on January 5, 2016. Dr. Marshall's business and office manager, Gwen Brister, signed as the witness.

¶3. On August 9, 2017, Shelia underwent a cervical epidural steroid injection

procedure. Dr. Marshall performed this procedure at St. Dominic Ambulatory Surgery Center. After being given the steroid injection, Shelia became apneic and unresponsive. Dr. Marshall attempted to use a defibrillator machine provided by the Surgery Center, but the device malfunctioned, causing a delay in Dr. Marshall's efforts to resuscitate Shelia. On August 17, 2017, nine days after being admitted to St. Dominic Hospital's Intensive Care Unit, Shelia died.

¶4. On June 29, 2018, Shelia's husband, Cailton Shaffer, brought a negligence action against Dr. Marshall, the Surgery Center, and St. Dominic Hospital. The complaint alleged that Dr. Marshall, the Surgery Center, and St. Dominic Hospital were negligent in the care and treatment of Shelia during and after the surgical procedure.

¶5. On August 14, 2018, Dr. Marshall filed a motion to compel arbitration. The basis for this motion was the arbitration agreement executed during Shelia's January 5 appointment. Dr. Marshall argued that Cailton was bound by this agreement, as the agreement stated it was binding on Shelia's "heirs-at-law or personal representatives." On October 23, 2018, the Surgery Center sought to join Dr. Marshall's motion to compel arbitration.

¶6. In response, Cailton contended that the arbitration agreement was invalid. He argued that cutting and pasting Shelia's signature to the agreement constituted forgery. On June 28, 2019, the circuit court held an evidentiary hearing on Dr. Marshall's motion to compel arbitration. In support of his position, Cailton offered the testimony of a handwriting expert, Robert Foley. Foley concluded that while Shelia's signature was likely genuine, the signature was not the original and had been "cut and pasted" to the arbitration agreement from another document in Dr. Marshall's possession.

¶7. Dr. Marshall and Brister testified on Dr. Marshall's behalf. Brister explained that while she did not personally remember Shelia, it was the policy of the clinic to give patients documents to sign upon checking in for their appointment. Although Brister did not physically watch Shelia sign the documents, she confirmed that she only signs the agreements after the patients returned the signed forms to her.

¶8. In order to determine if Shelia's signature had been forged or copied, Dr. Marshall engaged and submitted an affidavit from a computer-science expert, Dr. April Tanner. Dr. Tanner explained that to preserve Dr. Marshall's medical records, the arbitration agreement had been scanned into a cloud-based health records storage system. Dr. Tanner also explained that the software used did not allow modifications to a document after it was uploaded into the system. The software verified that the agreement had been scanned in on January 5, 2016.

¶9. After hearing expert testimony, it was uncontested that the signature on the agreement was indeed Shelia's. Finding that Cailton failed to meet his burden and prove that the signature had been fabricated or "cut and pasted," the circuit court entered an order granting Dr. Marshall's motion to compel arbitration and, in a separate order, denied the Surgery Center's request to arbitrate. The Surgery Center appeals and argues that the circuit court erred by not compelling Cailton to arbitrate his claims against the Surgery Center. Cailton cross-appealed arguing that the court erred in compelling arbitration on the claims against Dr. Marshall.

DISCUSSION

¶10. When determining whether a party may compel arbitration, the court applies a two-prong analysis. Smith v. Express Check Advance of Miss. LLC , 153 So. 3d 601, 606 (¶11) (Miss. 2014). The first prong is to determine whether the parties agreed to arbitrate the dispute, and second, if they did agree to arbitrate, "whether legal constraints external to the parties’ agreement foreclosed the arbitration of those claims." Scruggs v. Wyatt , 60 So. 3d 758, 766 (¶11) (Miss. 2011). "The first prong is two-fold in that the court considers whether there is a valid arbitration agreement and whether the parties’ dispute is within the scope of the arbitration agreement." Id . The second prong requires the court to ask whether "any federal statute or policy renders the claims nonarbitrable." Sherer v. Green Tree Servicing LLC , 548 F.3d 379, 381 (5th Cir. 2008). For ease of discussion, we address the issue on cross-appeal first.

I. Cailton's Cross-Appeal

¶11. Mississippi law favors valid arbitration agreements. B&S MS Holdings LLC v. Landrum , 302 So. 3d 605, 609 (¶11) (Miss. 2020) (citing Harrison Cnty. Com. Lot LLC v. H. Gordon Myrick Inc. , 107 So. 3d 943, 949 (¶12) (Miss. 2013) ). For this reason, we review the grant or denial of a motion to compel arbitration de novo. Cmty. Bank of Miss. v. Stuckey , 52 So. 3d 1179, 1181 (¶12) (Miss. 2010).

¶12. Cailton asserts that the circuit court erred in compelling arbitration on the claims against Dr. Marshall and should have invalidated Dr. Marshall's arbitration agreement. Specifically, Cailton contends that Shelia's signature was "cut and pasted" from another document and placed on Dr. Marshall's arbitration agreement and is thus a forgery.

¶13. If the court finds, as it did here, that a valid arbitration agreement exists and the allegations fall within the agreement's scope, the second prong of the test is triggered. The second prong asks "whether legal constraints external to the parties’ agreement foreclosed arbitration ...." Rogers-Dabbs Chevrolet-Hummer Inc. v. Blakeney , 950 So. 2d 170, 173 (¶12) (Miss. 2007). "[S]tate contract defenses may invalidate the agreement to arbitrate as they would any other contractual provision." Smith , 153 So. 3d at 606 (¶11). An arbitration agreement may be invalidated under state contract law without offending the FAA if an applicable contract defense such as fraud, duress, or unconscionability is available. E. Ford Inc. v. Taylor , 826 So. 2d 709, 713 (¶10) (Miss. 2002). The party resisting arbitration carries the burden of proving that a contract defense is applicable. Norwest Fin. Miss. Inc. v. McDonald , 905 So. 2d 1187, 1193 (¶11) (Miss. 2005).

¶14. Our supreme court is clear that "when ... consider[ing] whether legal constraints exist external to the agreement, which might invalidate the arbitration provisions, the existence of fraud in the formation of the contract may be considered." Blakeney , 950 So. 2d at 177 (¶17) (citing Cleveland v. Mann , 942 So. 2d 108, 112 (¶9) (Miss. 2006) ). By definition, forgery is a form of fraud and must be proven by clear and convincing evidence. Cotton v. McConnell , 435 So. 2d 683, 686 (Miss. 1983). Clear and convincing evidence is a high standard. Id .

¶15. Cailton argues that no valid arbitration agreement existed since Shelia's signature constituted forgery. In support of this defense, Cailton offered the opinion of a forensic document examiner and handwriting expert, Robert Foley. Foley compared Shelia's signature from the arbitration agreement to her other signatures found on several different personal documents. He testified that the signature on the agreement was

originally a genuine signature appearing on an unknown document which was copied and affixed to the Q-1 questioned document via fabrication, i.e., by an electronic/digital/physical cut out process similar to what is causally known as a "cut and paste" method.

¶16. After examining the signed arbitration agreement and a blank arbitration form, Foley also determined that the documents were two different forms based on several inconsistencies. These discrepancies included toner depth and debris, different font designs and sizes, and various text deviations.

¶17. The expert's opinion, given...