West v. Bowser, A21A0055

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Brown, Judge.
• Citation: 360 Ga.App. 103,860 S.E.2d 904
• Parties: WEST et al. v. BOWSER et al.
• Decision Date: 25 June 2021
• Docket Number: A21A0055

360 Ga.App. 103
860 S.E.2d 904

WEST et al.
v.
BOWSER et al.

A21A0055

Court of Appeals of Georgia.

June 25, 2021

860 S.E.2d 905

Lance T. McCoy, Robert Lige Walker, Cartersville, for Appellant.

Robert Alan Luskin, Robert Alan Luskin, Kathleen Woodruff Simcoe, Atlanta, Robert E. Noble II, for Appellee.

Brown, Judge.

360 Ga.App. 103

In this interlocutory appeal, Jobe West, individually and as executor of the estate of Ronald West, and Kelly Blottenberger (collectively "plaintiffs") contend that the trial court erred in compelling arbitration in a wrongful death action filed by plaintiffs as the surviving children of Ronald West against Provident Group-Creekside Properties, LLC, d/b/a Provident Village at Creekside, Provident Resources Group, Inc., Provident Resources Management, LLC (collectively "the Provident defendants"), and Monte Bowser. Because we conclude that Jobe lacked the authority to sign the Arbitration Agreement on Ronald's behalf, we reverse the trial court's order compelling arbitration.

Jobe was appointed guardian and conservator of Ronald, his father, and Letters of Guardianship and Conservatorship of Adult Ward were issued by the Probate Court of Carroll County in June 2017. The Letters of Guardianship and Conservatorship each provide that Jobe's "authority to act pursuant to these Letters is subject to applicable statutes and to any special orders entered in this case." In July 2017, Ronald was admitted to Provident Village at Creekside, "a residential community for senior citizens needing assistance." Jobe signed the Resident Agreement as the "Responsible Party" for

360 Ga.App. 104

Ronald as well as a separate Arbitration Agreement with Provident Village at Creekside. Ronald did not sign either agreement.

Pursuant to the Arbitration Agreement,

[a]ny and all disputes between the Resident and the Facility shall be submitted to binding arbitration where the amount in controversy exceeds $15,000. This includes any disputes arising out of or in any way relating to this Agreement (its enforceability), the Admission Agreement, or any of the Resident's stays at the Facility, whether existing or arising in the future, whether for statutory, compensatory, or punitive damages, and irrespective of the legal theories upon which the claims is asserted.

Additionally, the Agreement provided:

A person signing who routinely makes decisions for the Resident, if not the Power of Attorney or Guardian/Conservator, will be considered a Legal Representative. This executed Agreement becomes a part of the Resident's underlying Admission Agreement(s). The term "Resident" shall refer collectively to those signing with or for the Resident. The Resident will be considered to be a third party beneficiary

860 S.E.2d 906

of this Agreement.... The term "Facility" includes all of the following associated with the above-identified facility: owner, parent company, holding company, subsidiary, manager, employee, person/entity acting on behalf of the facility, consultant, and administrative services provider.

The Agreement also stated that the "Resident understands that (s)he can seek legal counsel prior to entering into this contract and is encouraged to ask questions.... IF THIS AGREEMENT IS NOT SIGNED, THE RESIDENT WILL STILL BE ALLOWED TO RECEIVE SERVICES AT THE FACILITY. " Jobe submitted an affidavit in which he averred that the Arbitration Agreement was not explained to him and that he was told that he had to sign a number of documents, including the Arbitration Agreement, in order for Ronald to be admitted to the facility.

According to the complaint filed by plaintiffs, while Ronald was a resident of Provident Village at Creekside in 2018, he was shoved by Bowser, an employee of the facility, and eventually died as a result of his injuries. The Provident defendants answered and filed a motion to dismiss and compel arbitration. Bowser subsequently answered and filed a motion to join the Provident defendants’ motion to dismiss

360 Ga.App. 105

and compel arbitration. After a hearing, the trial court granted the motion to compel arbitration as to all defendants and certified its order for immediate review.

On appeal, plaintiffs contend that the trial court erred in granting defendants’ motion and compelling arbitration for a number of reasons. Plaintiffs assert that Jobe lacked authority to sign the Arbitration Agreement on Ronald's behalf, that the Arbitration Agreement lacked proper legal consideration, that Jobe was fraudulently induced to sign the Arbitration Agreement, and that the Arbitration Agreement is void as against Georgia law and public policy.

1. We first address whether Jobe, as Ronald's guardian and conservator, had the authority to sign the Arbitration Agreement on Ronald's behalf. We conclude he did not.

Whether a valid and enforceable arbitration agreement exists is a question of law. Miller v. GGNSC Atlanta , 323 Ga. App. 114, 117 (1), 746 S.E.2d 680 (2013). "On appeal from the grant or denial of a motion to compel arbitration, the standard of review is whether the trial court was correct as a matter of law. The construction of an arbitration agreement, like any other contract, presents a question of law, which is subject to de novo review." (Citations and punctuation omitted.) Aaron v. United Health Svcs. of Ga. , 349 Ga. App. 563, 563-564, 826 S.E.2d 442 (2019). "And the validity of an arbitration agreement is generally governed by state law principles of contract formation." (Citation and punctuation omitted.) United Health Svcs. of Ga. v. Alexander , 342 Ga. App. 1, 2 (2), 802 S.E.2d 314 (2017). See also Lynn v. Lowndes County Health Svcs. , 354 Ga. App. 242, 245 (2), n.3, 840 S.E.2d 623 (2020) ("This principle still applies in cases ... where the arbitration agreement states that the agreement is to be governed by the Federal Arbitration Act."). "As the party seeking arbitration, [defendants] bear[ ] the burden of proving the...