CAMDEN-PROGRESSIVE ELDERCARE SERVICES, INC., D/B/A OUACHITA NURSING AND REHABILITATION CENTER v. GLORIA COOPER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF EMMER MCCORD, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF EMMER MCCORD

2020 Ark. App. 187, 597 S.W.3d 148

• Court: Court of Appeals of Arkansas
• Decided: March 18, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 187 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-06-21 14:52:54 Foxit PhantomPDF Version: 9.7.5

DIVISION I No. CV-19-357

Opinion Delivered March 18, 2020

CAMDEN-PROGRESSIVE APPEAL FROM THE OUACHITA ELDERCARE SERVICES, INC., d/b/a COUNTY CIRCUIT COURT OUACHITA NURSING AND [NO. 52CV-18-206] REHABILITATION CENTER APPELLANT

V. HONORABLE DAVID F. GUTHRIE, GLORIA COOPER, AS PERSONAL JUDGE REPRESENTATIVE OF THE ESTATE OF EMMER MCCORD, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF EMMER MCCORD APPELLEE AFFIRMED

BRANDON J. HARRISON, Judge

Camden-Progressive Eldercare Services, Inc., d/b/a Ouachita Nursing and

Rehabilitation Center (Camden) appeals the circuit court’s denial of its motion to compel

arbitration. It asserts that it presented a valid arbitration agreement to the circuit court, that

the inclusion of an “arbitration agreement checklist” did not render the arbitration

agreement ambiguous, and that the use of the checklist as extrinsic evidence to generate an

ambiguity in the arbitration agreement violates the parol-evidence rule. We affirm the

circuit court’s order.

1 On 4 May 2018, Gloria Cooper, as Personal Representative of the Estate of Emmer

McCord, and on behalf of the Wrongful Death Beneficiaries of Emmer McCord (Cooper),

filed a complaint against Camden and several other defendants. 1 Cooper alleged that the

defendants failed to provide her mother, Emmer McCord, and other residents with basic-

care services and that McCord suffered multiple injuries including numerous falls, bedsores,

multiple infections, malnutrition, poor hygiene, severe pain, and death. Cooper alleged

negligence, medical malpractice, breach of the admission agreement, breach of the provider

agreement, and deceptive trade practices.

After answering the complaint, Camden moved to compel arbitration, asserting that

Cooper, as McCord’s legal guardian, had executed an admission agreement and binding

arbitration agreement that encompassed the claims in her complaint. Attached to the

arbitration motion was a nine-page admission agreement, a two-page arbitration agreement,

and a one-page “arbitration agreement checklist.” The admission agreement and arbitration

agreement are both dated 31 August 2013; the arbitration checklist is not dated. Cooper’s

signature is on all three documents. The arbitration agreement states, “THE PARTIES

FURTHER ACKNOWLEDGE THAT THEY ARE GIVING UP AND

WAIVING THEIR CONSTITUTIONAL RIGHT TO HAVE THEIR

DISPUTES DECIDED IN A COURT OF LAW BEFORE A JUDGE AND

1 The other defendants are Progressive Eldercare Services, Inc.; JEJ Investments, LLC; Ponthie Holdings, LLC; Procare Therapy Services, LLC; Southern Administrative Services, LLC; Professional Nursing Solutions, LLC; CarePlus Staffing Services, LLC; Ross Ponthie; John Ponthie; Angela Marlar, in her capacity as Administrator of Ouachita Nursing and Rehabilitation Center; and Jeanette Goss, in her capacity as Administrator of Ouachita Nursing and Rehabilitation Center. For simplicity’s sake, we will use “Camden” to encompass all defendants. 2 JURY.” (Emphasis in original.) The arbitration checklist contains twelve statements with

an option to circle Yes or No after each statement; the eighth statement, which reads,

“Arbitration is an alternative to jury trials, and by signing the Agreement, the Resident is

giving up the right to a jury trial,” has No circled after it.

Cooper responded in part to the motion to compel by arguing that by circling No

on the checklist, she had not waived McCord’s right to a jury trial. Camden replied that

the checklist was not a part of the arbitration agreement and had been filed with its motion

“inadvertently.” As such, the checklist constituted parol evidence that was inadmissible

given the clear terms of the admission and arbitration agreements.

The circuit court convened a hearing on the motion on 27 November 2018. After

hearing arguments from counsel, the court denied the motion to compel arbitration. The

court stated,

The agreement itself is clear. The checklist is clear, but the answer of no to item number eight on the checklist I find creates an ambiguity on this. And the document, therefore, should proceed in the circuit court.

The documents were prepared by the defendants. The checklist may be questionable whether it is parole [sic] evidence, but it is part of the contract. It was executed in conjuncture [sic] with the agreement, and therefore, it must be considered as one document for purposes of this review.

The waiver of a jury trial is a significant waiver. . . . [W]aiver should not be taken lightly, and in looking at the totality of the matter, I find that arbitration should be denied.

A written order denying the motion to compel was filed in January 2019, and Camden has

timely appealed.

We review a circuit court’s order denying a motion to compel arbitration de novo

on the record. Hickory Heights Health & Rehab, LLC v. Cook, 2018 Ark. App. 409, 557 3 S.W.3d 286. We decide the issues on appeal using the record developed in the circuit court

without deference to the circuit court’s ruling. Wyatt v. Giles, 95 Ark. App. 204, 235

S.W.3d 552 (2006). We are not bound by the circuit court’s decision, but in the absence

of a showing that the circuit court erred in its interpretation of the law, we will accept its

decision as correct on appeal. Diamante v. Dye, 2013 Ark. App. 630, 430 S.W.3d 196.

Arbitration is simply a matter of contract between parties. Hickory Heights, supra.

Whether a dispute should be submitted to arbitration is a matter of contract construction,

and we look to the language of the contract that contains the agreement to arbitrate and

apply state-law principles. Id. The same rules of construction and interpretation apply to

arbitration agreements as to agreements generally. Id. Therefore, we seek to give effect to

the parties’ intent as evidenced by the arbitration agreement itself. Id. The construction

and legal effect of an agreement to arbitrate are to be determined by this court as a matter

of law. Id. If there is any doubt, ambiguities in a contract are construed strictly against the

drafter of the contract. Patterson v. S. Farm Bureau Cas. Ins. Co., 2018 Ark. App. 179, 545

S.W.3d 253.

On appeal, Camden asserts that it presented a valid arbitration agreement to the

circuit court, and the court itself found that the agreement was “clear.” Camden denies

that the checklist rendered the arbitration agreement ambiguous and argues that the checklist

is not a contract. Camden contends that the use of the checklist as extrinsic evidence to

generate an ambiguity in the arbitration agreement violates the parol-evidence rule, which

allows the introduction of extrinsic evidence only if the contract contains a term that is

ambiguous. See Hurt-Hoover Invs., LLC v. Fulmer, 2014 Ark. 461, 448 S.W.3d 696.

4 Camden also argues that even if the checklist could be considered in conjunction with the

arbitration agreement, the agreement shows the parties’ overriding intent was to waive the

right to a jury trial and arbitrate disputes.2

Cooper responds that the circuit court correctly looked at the entire context of the

agreement to ascertain the true intent of the parties and found that the checklist was part of

the contract. Cooper notes that Camden does not challenge the court’s explicit finding that

the checklist is part of the contract. Thus, the parol evidence rule’s prohibition on extrinsic

evidence is not applicable in the present case. Cooper indicates that it was Camden itself

that included the checklist as part of the arbitration agreement and that the checklist required

the signature of the resident or legal guardian just as other sections of the contract required

Cooper’s signature. Cooper concludes that the circuit court correctly found that the

contract was ambiguous and construed that ambiguity against the drafter, which was

Camden.

Camden introduced the checklist as part of the arbitration agreement in its exhibit

to the motion to compel, and while it later claimed that the checklist was merely “a tool

that they use to make sure they cover certain topics with the person before the arbitration

agreement is signed,” the circuit court was not required to believe counsel’s explanation.

This argument is also belied by the requirement that the resident or legal guardian sign the

checklist. We hold that Camden has failed to show that the circuit court erred in its

2 Camden also addresses, and Cooper responds to, other arguments that were made below. However, the circuit court based its ruling on ambiguity and made no findings on the other arguments, so we need not address them. 5 interpretation of the law and therefore affirm the circuit court’s denial of the motion to

compel arbitration.

Affirmed.

SWITZER and VAUGHT, JJ., agree.

Kutak Rock LLP, by: Mark W. Dossett, Jeff Fletcher, and Samantha Blassingame Leflar,

for appellant.

Reddick Moss, PLLC, by: Heather G. Zachary and Matthew D. Swindle, for appellees.