Vicksburg Partners, L.P. v. Stephens, No. 2004-CA-01345-SCT.

• Decision Date: 22 September 2005
• Docket Number: No. 2004-CA-01345-SCT.
• Parties: VICKSBURG PARTNERS, L.P., Bond, Johnson and Bond, Inc., Magnolia Management Corporation, Magnolia Management Services of Mississippi, Inc., Joe Bannon, George T. Johnson and Peggy Mingee v. Angela STEPHENS, Individually and as Administratrix of the Estate of Leroy Taylor.
• Court: Mississippi Supreme Court

911 So.2d 507

VICKSBURG PARTNERS, L.P., Bond, Johnson and Bond, Inc., Magnolia Management Corporation, Magnolia Management Services of Mississippi, Inc., Joe Bannon, George T. Johnson and Peggy Mingee v. Angela STEPHENS, Individually and as Administratrix of the Estate of Leroy Taylor.

No. 2004-CA-01345-SCT.

Supreme Court of Mississippi.

September 22, 2005.

COPYRIGHT MATERIAL OMITTED

Benjamin Connell Heinz, William R. Lancaster, Louis Hunter Compton, Jr., attorneys for appellants.

Angela Stephens, Individually and as Administratrix of the Estate of Leroy Taylor, appellee, pro se.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. This case comes to us on appeal from a circuit court order denying a motion to stay proceedings and enforce an arbitration clause contained within the relevant nursing home admissions agreement. Finding that the arbitration clause is valid and enforceable, except as hereinafter discussed, we reverse the judgment of the circuit court and remand this case to the Circuit Court of Warren County with directions to submit this case to arbitration consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Serving as the responsible party, Angela Stephens admitted her father, Leroy Taylor to the Vicksburg Trace Haven Nursing Home ("the Nursing Home") on April 26, 2001. Stephens and Taylor underwent normal check-in procedures, and each was asked to read and sign an admissions agreement. Their signatures, along with the signature of a representative from the Nursing Home, were required to complete the admissions agreement. Contained within the admissions agreement was an arbitration clause. Section F stated:

The Patient and Responsible Party agree that any and all claims, dispute and/or controversies between them and the Facility shall be resolved by binding arbitration administered by the American Arbitration Association. The Arbitration shall be heard and decided by one qualified Arbitrator selected by the Facility. The Parties agree that the decision of the Arbitrator shall be final. All Parties hereto agree to arbitration for their individual respective anticipated benefit of reduced costs of pursuing resolution of a claim, dispute or controversy, should one arise. All Parties hereto are hereby waiving all rights to a jural trial.

¶ 3. The arbitration clause, which was located on the last page of the admissions agreement above the appropriate signature lines, was accompanied by an acknowledgment typed in all caps, bold faced, paragraph-form, in larger font, and stating:

THE UNDERSIGNED ACKNOWLEDGE THAT EACH OF THEM HAS READ AND UNDERSTOOD THIS AGREEMENT, INCLUDING THE ARBITRATION PROVISION AND HAS RECEIVED A COPY OF THIS AGREEMENT, AND THAT EACH OF THEM VOLUNTARILY CONSENTS TO AND ACCEPTS ALL OF ITS TERMS AND CONDITIONS.

¶ 4. On May 10, 2001, Taylor and Stephens signed a second admissions agreement.¹ Contained within this second admissions agreement was likewise another arbitration clause which again required the signatures of the three interested parties-Taylor, Stephens and a representative from the Nursing Home. The arbitration clause was printed in boldfaced type equal to or larger than the type found elsewhere in the admissions agreement and was, as with the first agreement, located in Section F on the last page, just above the signature lines and consent statement. This arbitration clause contained in the second admissions agreement stated:

The Resident and Responsible Party agree that any and all claims and/or controversies between them and the Facility or its Owners, officers, directors or employees shall be resolved by binding arbitration administered by the American Arbitration Association and its rules and procedures. The Arbitration shall be heard and decided by one qualified Arbitrator selected by mutual agreement of the parties. Failing such agreement each party shall select one qualified Arbitrator and the two selected shall select a third. The Parties agree that the decision of the Arbitrator(s) shall be final. The Parties further agree that the Arbitrators shall have all authority necessary to render a final, binding decision of all claims and/or controversies and shall have all requisite powers and obligations. If the agreed method of selecting an Arbitrator(s) fails for any reason or the Arbitrator(s) appointed fails or is unable to act or the successor(s) has not been duly appointed, the appropriate circuit court, on application of a party, shall appoint one Arbitrator to arbitrate the issue. An Arbitrator so appointed shall have all the powers of the one named in this Agreement. All Parties hereto agree to arbitration for their individual respective anticipated benefit of reduced costs of pursuing a timely resolution of a claim, dispute or controversy, should one arise. The Parties agree to share equally the costs of such arbitration regardless of the outcome. Consistent with the terms and conditions of this Agreement, the Parties agree that the Arbitrator(s) may not award punitive damages and actual damages awarded, if any, shall be awarded pursuant to Section E.7.²

¶ 5. Taylor resided at the Nursing Home until November 20, 2002, when he passed away due to alleged failures in the care provided by the Nursing Home during his residency. Based on these alleged failures, Stephens filed this suit individually and on behalf of the estate and the wrongful death beneficiaries of Taylor. The complaint was filed on December 27, 2002, and it named as defendants Vicksburg Partners, L.P.; Vicksburg Associates Corp.; Bond, Johnson & Bond, Inc.; Magnolia Management Corporation; George T. Johnson; Peggy Mingee; Eva H. Williams; John Does 1 through 10; and unidentified entities 1 through 10 (as to Vicksburg Trace Haven Nursing Facility) ("Vicksburg Partners").³ Prior to any responsive pleadings being filed, Stephens filed an amended complaint on March 13, 2003. See Miss. R. Civ. P. 15(a). By the time of the filing of the amended complaint, Stephens had received a chancery court appointment as Administratrix of her father's estate; therefore, the amended complaint provided that she was also bringing the suit as the administratrix of the estate of Leroy Taylor. The eight-count amended complaint contained claims of (1) negligence as to specified defendants; (2) negligence as to other specified defendants; (3) medical malpractice; (4) malice and/or gross negligence; (5) fraud; and (6) breach of fiduciary duty; as well as (7) a statutory survival claim; and (8) a statutory wrongful death claim.

¶ 6. On April 29, 2003, Vicksburg Partners filed their motion to stay proceedings and enforce dispute resolution/arbitration. On May 12, 2003, Stephens filed her response. After conducting two hearings, receiving multiple briefs and allowing limited discovery on the issue, the circuit court entered an order on May 4, 2004, denying Vicksburg Partners' motion to stay and submit to arbitration.

¶ 7. Shortly thereafter, Vicksburg Partners filed a motion for reconsideration or for an order granting certification for interlocutory appeal. On June 22, 2004, the circuit court denied this motion without addressing Vicksburg Partners' request for certification for Interlocutory appeal. Vicksburg Partners thereafter filed its Petition for Interlocutory Appeal by Permission and Request for Stay. By order entered on August 23, 2004, a three-justice panel of this Court considered this petition for interlocutory appeal by permission and request for stay and accepted this petition for filing as a notice of appeal.

¶ 8. While the trial court record was being prepared in this case, Stephens's attorneys filed a motion with this Court requesting permission to withdraw as counsel, which motion was eventually granted. The documentation before us at the time clearly revealed that Stephens did not wish for her trial counsel to represent her on appeal. Thus, by order entered on March 31, 2005, Stephens was given fourteen days to retain counsel; however, she failed to do so, and therefore, by order entered on April 19, 2005, this Court stated, inter alia, that we deemed Stephens to be proceeding pro se (representing herself), and we further gave her deadlines to submit her appellee's brief. This she failed to do, and we thus have before us only the brief of Vicksburg Partners. However, while we have no appellate brief before us on behalf of Stephens, her arguments are fully before us due to the briefs and pleadings submitted to the trial court by her trial attorneys. We note that while this case was pending in the trial court, Stephens's attorneys filed with that court, inter alia, a 16-page "Plaintiff's Response Opposing Defendants' Motions to Stay Proceedings and Enforce Dispute Resolution/Arbitration Clause," with attachments, and an 11-page "Supplement to Plaintiff's Response Opposing Defendants' Motions to Stay Proceedings and Enforce Dispute Resolution/Arbitration Clause," with attachments. Additionally, after Vicksburg Partners filed with us its Petition for Interlocutory Appeal by Permission and Request for Stay, Stephens, still represented by counsel, filed through her trial counsel, a 9-page Response to Petition for Interlocutory Appeal by Permission and Request for Stay. From these filings by Stephens's trial attorneys, we clearly have before us in the appellate record the issues and arguments as laid out by Stephens. Thus, while she has no appellate attorney of record, Stephens is hardly unrepresented on appeal regarding her arguments addressing the issues raised by Vicksburg Partners.

DISCUSSION

¶ 9. This case involves the denial of a motion to enforce a dispute resolution/arbitration clause contained within a nursing home's standard admissions form. This Court applies a de novo standard of review to motions to dismiss and to denials of motions to compel. Sanderson Farms, Inc. v. Gatlin, 848 So.2d 828, 834 (Miss.2003) (citing Poindexter v. Southern United Fire Ins. Co., 838...