West v. Bowser, A21A0055

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtBrown, Judge.
Citation365 Ga.App. 517,878 S.E.2d 56
Parties WEST et al. v. BOWSER et al.
Docket NumberA21A0055
Decision Date19 August 2022

365 Ga.App. 517
878 S.E.2d 56

WEST et al.
v.
BOWSER et al.

A21A0055

Court of Appeals of Georgia.

August 19, 2022
Reconsideration Denied October 5, 2022


878 S.E.2d 57

Lance T. McCoy, The McCoy Law Firm, Robert Lige Walker, Cartersville, Jenkins Bowen & Walker, for Appellant.

David Van Hayes, Tyler D. Jones, Kathleen Woodruff Simcoe, Owen Gleaton Egan Jones & Sweeney, Robert Alan Luskin, Robert E. Noble III, Goodman McGuffy, for Appellee.

Brown, Judge.

365 Ga.App. 517

In West v. Bowser , 360 Ga. App. 103, 860 S.E.2d 904 (2021), we reversed the trial court's order compelling arbitration in a

878 S.E.2d 58

wrongful death action filed by Jobe West, individually and as executor of the estate of Ronald West, and Kelly Blottenberger as the surviving children of Ronald (collectively "the plaintiffs") against Provident Group-Creekside Properties, LLC d/b/a Provident Village at Creekside, Provident Resources Group, Inc., and Provident Resources Management, LLC (collectively "the Provident defendants"). Pertinently, we held in Division 1 (a) that the provisions of the Georgia Code pertaining to guardians of adult wards, see OCGA § 29-4-1 et seq. ("the Guardianship Code"), did not give Jobe, as Ronald's guardian, the authority to enter into a pre-dispute arbitration agreement ("the Arbitration Agreement") on Ronald's behalf. Id. at 106-107 (1) (a), 860 S.E.2d 904. We based that

365 Ga.App. 518

holding on our precedent in CL SNF, LLC v. Fountain , 355 Ga. App. 176, 843 S.E.2d 605 (2020) (" Fountain I "). West , 360 Ga. App. at 106-107 (1) (a), (b), 860 S.E.2d 904.

Three months later, our Supreme Court reversed Fountain I , holding that the Guardianship Code grants a guardian authority to enter into a binding pre-dispute arbitration agreement where the exercise of such power is reasonably necessary to provide adequately for the ward's support, care, health, and welfare. CL SNF, LLC v. Fountain , 312 Ga. 416, 863 S.E.2d 116 (2021) (" Fountain II "). Thereafter, our Supreme Court granted certiorari in this case, vacated our decision, and remanded to this Court for reconsideration in light of Fountain II . Provident Group-Creekside Properties v. West , Case No. S21C1253 (Nov. 2, 2021). We now affirm.

1. In light of Fountain II , we vacate Division 1 of our earlier opinion. In its place, we hold that OCGA § 29-4-23 (a) (4) of the Guardianship Code gave Jobe the authority to enter into the Arbitration Agreement on Ronald's behalf. See Fountain II , 312 Ga. at 420-421, 863 S.E.2d 116.

2. In Division 2 of our opinion, we declined to address the plaintiffs’ remaining arguments related to the enforceability of the Arbitration Agreement. West , 360 Ga. App. at 109 (2), 860 S.E.2d 904. Given our holding in Division 1, we now find it necessary to address those arguments. The plaintiffs contend that the agreement is unsupported by consideration, that Jobe was fraudulently induced into signing the agreement, and that the agreement is void under Georgia law and as against public policy. We find these contentions unavailing.

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 existence of a valid and enforceable agreement to arbitrate." (Citation

365 Ga.App. 519

and punctuation omitted.) Triad Health Mgmt. of Ga., III v. Johnson , 298 Ga. App. 204, 206 (2), 679 S.E.2d 785 (2009).

(a) The plaintiffs argue that the Arbitration Agreement is a separate and distinct contract from the Residential Agreement and thus requires separate and distinct consideration. The Provident defendants argue that the true consideration in the contract is the mutual promises to arbitrate any disputes. We agree with the Provident defendants.

Under Georgia law, mutual promises and obligations are sufficient consideration to support a contract. See Atlanta Six Flags Partnership v. Hughes , 191 Ga. App. 404, 407 (1), 381 S.E.2d 605 (1989). See also Rushing v. Gold Kist , 256 Ga. App. 115, 119 (3), 567 S.E.2d 384 (2002). Here, the Arbitration

878 S.E.2d 59

Agreement demonstrated mutuality of obligation, as it required both parties to submit any and all disputes to binding arbitration. Accordingly, there was sufficient consideration to support the Arbitration Agreement. See Attenborough v. Dillard's Dept. Store , No. 1:06-CV-0291-TWT, 2006 WL 1663299, at *2 (II) (N.D. Ga. June 9, 2006) (holding that arbitration agreement was supported by consideration "as it required both the Plaintiff and the Defendant to submit all discrimination and retaliation disputes related to the Plaintiff's employment to ‘final and binding arbitration’ "). See also Caley v. Gulfstream Aerospace Corp. , 428 F.3d 1359, 1376 (II) (E) (3) (11th Cir. 2005).

(b) The plaintiffs next contend that Jobe was fraudulently induced to sign the Arbitration Agreement. We disagree.

"In general, a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue for damages from the fraud or breach; or (2) promptly rescind the contract and sue in tort for fraud." (Citation and punctuation omitted.) Ekeledo v. Amporful , 281 Ga. 817, 819 (1), 642 S.E.2d 20 (2007).

Having elected to seek rescission and pursue a claim for fraud, [the plaintiffs are] required to prove that [the Provident defendants] through misrepresentation, act, or artifice intentionally induced [Jobe] to sign the [Arbitration] Agreement and that [Jobe] justifiably relied on the misrepresentation, act, or artifice, being reasonably diligent in the use of the facilities at [his] command.

(Citation and punctuation omitted.) Legacy Academy v. Mamilove, LLC , 297 Ga. 15, 17 (1), 771 S.E.2d 868 (2015). In this vein, the plaintiffs contend that Jobe was fraudulently induced to sign the Arbitration Agreement because he was "made to believe by the representatives of Provident Village that he was required to sign all

365 Ga.App. 520

of the documents placed before him, which apparently included the Arbitration Agreement." However,

[o]ne cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relationship or trust or confidence exists. Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud. One not prevented from reading the contract, and having the capacity and opportunity to do so, cannot after signing it claim he was fraudulently induced to sign by promises which contradict the express terms of the contract.

(Citation and punctuation omitted.) Megel v. Donaldson , 288 Ga. App. 510, 514 (2), 654 S.E.2d 656 (2007). Accord Results Oriented v. Crawford , 245 Ga. App. 432, 439 (1) (b), 538 S.E.2d 73 (2000). As the plaintiffs themselves point out, the Arbitration Agreement expressly provided, in bold, all-caps, that "IF THIS AGREEMENT IS NOT SIGNED, THE RESIDENT WILL STILL BE ALLOWED TO RECEIVE SERVICES AT THE FACILITY ." (Emphasis in original.) The plaintiffs assert that Jobe was not given the opportunity to read the documents, but nothing in the record shows that Jobe was prevented from reading the Arbitration Agreement. See Legacy Academy , 297 Ga. at 18 (1), 771 S.E.2d 868 (allegations that defendants gave the franchise agreement to the plaintiffs on the same day it was signed and told them that they had to sign the documents that day or another franchisee would be allowed to take their desired location were legally insufficient to support a finding that the plaintiffs were prevented from reading the agreement through fraud or misleading artifice). He simply chose not to do so before signing the agreement. Absent any evidence of fraud that prevented Jobe from reading the Arbitration Agreement, plaintiffs’ claim that Jobe was fraudulently induced to sign by statements which contradict the express terms of the Arbitration Agreement fails. See id. (because the...

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