Cherokee Park Rehabilitation LLC v. Collins Callens, for the Estate of Robert Callens
This text of Cherokee Park Rehabilitation LLC v. Collins Callens, for the Estate of Robert Callens (Cherokee Park Rehabilitation LLC v. Collins Callens, for the Estate of Robert Callens) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
RENDERED: AUGUST 12, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0694-MR
CHEROKEE PARK REHABILITATION, LLC, AND MICK VUJANOVIC, IN HIS CAPACITY AS ADMINISTRATOR OF CHEROKEE PARK REHABILITATION APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE A. C. MCKAY CHAUVIN, JUDGE ACTION NO. 19-CI-003752
COLLINS CALLENS, EXECUTOR FOR THE ESTATE OF ROBERT CALLENS AND DEBRA TROWELL, AS EXECUTOR FOR THE ESTATE OF ROBERT CALLENS APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Cherokee Park Rehabilitation, LLC, and Mick Vujanovic, in
his capacity as administrator of Cherokee Park Rehabilitation, LLC, bring this appeal from a May 19, 2021, Opinion and Order of the Jefferson Circuit Court
denying a motion to compel arbitration of an action initiated by Collins Callens
and Debra Trowell, Co-Executors of the Estate of Robert Callens (Estate). We
affirm.
On December 31, 2010, Robert Callens executed a General Power of
Attorney that appointed his son, Collins Callens, as his agent and also appointed
his daughter, Debra Trowell, as his successor agent. In June of 2017, Robert was
admitted to a long-term care facility in Jefferson County owned by LP Louisville
Cherokee Park, LLC, which was commonly known as Signature Healthcare
(hereinafter referred to as Signature Healthcare). During the admission process,
Debra signed several documents. Some of the documents were apparently signed
electronically, and some were signed in writing. Relevant herein is a document
Debra purportedly signed electronically and is titled “Agreement to Informally
Resolve and Arbitrate All Disputes” (Arbitration Agreement). At the top of the
Arbitration Agreement, it stated, “Please know we require all new residents and/or
their legal representatives to read, agree, and sign this Agreement for admission.
Please know you can choose care at another facility if you do not wish to sign.”
Several months after Robert’s admission to Signature Healthcare,
there was a transfer of ownership of the facility. More specifically, ownership of
Signature Healthcare was transferred to Cherokee Park Rehabilitation, LLC
-2- (Cherokee Park Rehabilitation) by an Operations Transfer Agreement. The
Operations Transfer Agreement was executed on January 5, 2018, and set forth the
provisions of such transfer of ownership.
On July 14, 2018, while a resident of Cherokee Park Rehabilitation,
Robert suffered significant injuries. The record reveals that Robert was in a
wheelchair and was being pushed by an aide. However, Robert’s foot was
dragging on the floor, which caused him to fall forward out of the wheelchair.
Three days later, Robert was taken to the hospital where it was discovered he had
two vertebrae fractures and a closed head injury. Robert was released from the
hospital to another long-term care facility on August 12, 2018. Robert ultimately
passed away on November 24, 2018.
On June 18, 2019, the Estate filed the underlying civil action in
Jefferson Circuit Court (Action No. 19-CI-003752) against, inter alios, Cherokee
Park Rehabilitation. In the complaint, the Estate asserted claims of negligence,
medical negligence, and corporate negligence related to Robert’s injuries from the
July 14, 2018, incident. Thereafter, Cherokee Park Rehabilitation filed a Motion to
Compel Limited Alternate Dispute Resolution (ADR) Discovery. Once the limited
discovery had been completed, Cherokee Park Rehabilitation filed a motion to
compel arbitration and sought to enforce the Arbitration Agreement originally
entered into with Signature Healthcare. By Opinion and Order entered May 19,
-3- 2021, the circuit court denied the motion to compel arbitration. The circuit court
concluded that the Arbitration Agreement was “unenforceable.” May 19, 2021,
Opinion and Order at 4. This appeal follows.1
Cherokee Park Rehabilitation argues on appeal that the circuit court
erred by determining that the Arbitration Agreement was invalid and
unenforceable. For the following reasons, we disagree.
It is well-settled that a party seeking to compel arbitration has the
initial burden to demonstrate that a valid arbitration agreement exists between the
parties. Ping v. Beverly Enters., Inc., 376 S.W.3d 581, 590 (Ky. 2012); Golden
Gate Nat’l Senior Care, LLC v. Rucker, 588 S.W.3d 868, 870 (Ky. App. 2019);
Cambridge Place Group, LLC v. Mundy, 617 S.W.3d 838, 840 (Ky. App. 2021).
And, to determine whether a valid and enforceable arbitration agreement exists, we
rely upon state contract law. Ping, 376 S.W.3d at 590. Our review of a circuit
court’s interpretation and construction of a contract is a matter of law and is
reviewed de novo. Lynch v. Claims Mgmt. Corp., 306 S.W.3d 93, 96 (Ky. App.
2010). However, in the event the circuit court engages in fact finding to reach its
decision, we review those findings of fact under the clearly erroneous standard.
Kentucky Rules of Civil Procedure 52.01; Kindred Nursing Centers Ltd. P’ship v.
1 We observe that an interlocutory order denying arbitration is subject to appeal pursuant to Kentucky Revised Statutes 417.220(1)(a).
-4- Sloan, 329 S.W.3d 347, 348 (Ky. 2010). Finally, we may affirm the circuit court
for any reason set forth in the record. See Phillips v. Rosquist, 628 S.W.3d 41, 47
(Ky. 2021).
Under the terms of the Arbitration Agreement, Signature Healthcare
and/or its “affiliates, parents, officers, agents, owners, and assigns” were
specifically identified as parties thereto and entitled to enforce same. Arbitration
Agreement at 1. Cherokee Park Rehabilitation was not an original party to the
Arbitration Agreement but claimed that the Arbitration Agreement was assigned to
it by the Operations Transfer Agreement. Appellant’s Brief at 6.
The Operations Transfer Agreement was entered into by Signature
Healthcare and Cherokee Park Rehabilitation. Section 3.05 is entitled Contracts,
and it provides that Cherokee Park Rehabilitation would assume certain contracts
(Assumed Contracts) entered into originally by Signature Healthcare. These
Assumed Contracts were exhaustively listed in Schedule 3.05, which was attached
to the Operations Transfer Agreement. As to Assumed Contracts, it was
specifically provided that these contracts would be “assigned to, and assumed by
Cherokee Park [Rehabilitation].” We have carefully reviewed Schedule 3.05, and
it is clear that the Arbitration Agreement was not listed thereupon. In fact, there
was no mention of any arbitration agreements being transferred by the Operations
Transfer Agreement.
-5- The Kentucky Supreme Court has recognized that a valid assignment
takes place “when the assignor intends to assign a present right, identifies the
subject matter assigned, and divests itself of control over the subject matter
assigned.” Davis v. Scott, 320 S.W.3d 87, 90 (Ky. 2010). To have validly
assigned the Arbitration Agreement, it was incumbent that the assignment
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