IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2020-CA-01362-COA
DIVERSICARE OF MERIDIAN, LLC D/B/A APPELLANTS DIVERSICARE OF MERIDIAN, DIVERSICARE LEASING COMPANY III, LLC, DIVERSICARE MANAGEMENT SERVICES CO., DIVERSICARE LEASING CORP., CHRISSY ALEXANDER, DEMETRI GORDON AND OSHAUGNESSYZ McCORMICK
v.
LINDA DIANNE SHELTON, INDIVIDUALLY APPELLEE AND AS ADMINISTRATRIX OF THE ESTATE OF SARAH ELIZABETH HAMRICK, DECEASED, FOR AND ON BEHALF OF THE ESTATE AND WRONGFUL DEATH BENEFICIARIES OF SARAH ELIZABETH HAMRICK, DECEASED
DATE OF JUDGMENT: 11/06/2020 TRIAL JUDGE: HON. CHARLES W. WRIGHT JR. COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: MARGARET SAMS GRATZ ATTORNEY FOR APPELLEE: WILLIAM C. HAMMACK NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED AND REMANDED - 02/15/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE WILSON, P.J., McDONALD AND LAWRENCE, JJ.
McDONALD, J., FOR THE COURT:
¶1. Diversicare of Meridian LLC and other appellants1 (collectively referred to as
1 These include Diversicare Leasing Company III LLC, Diversicare Management Services Co., Diversicare Leasing Corp., Chrissy Alexander, Paula, Hazel, Demetri Gordon, Oshaughnessyz McCormick, unknown entities, and John Doe defendants. “Diversicare”) appeal the Lauderdale County Circuit Court’s denial of their motion to compel
arbitration in a wrongful death nursing-home case. Diversicare contends that the circuit court
erred in applying Mississippi’s Uniform Health-Care Decisions Act, Mississippi Code
Annotated section 41-41-211(1) (Rev. 2018), when the deceased had full mental capacity and
directed her daughter to sign admission papers that included an arbitration agreement, which
was not required for admission. Diversicare also argues that the circuit court erroneously
required a written instrument appointing the daughter to be the mother’s agent. Considering
the facts, relevant precedent, and the arguments of counsel, we find that the circuit court
erred in requiring a written instrument to establish the daughter’s agency but correctly held
that the arbitration agreement was unenforceable, albeit for different reasons. Accordingly,
we affirm and remand for further proceedings.
Facts
¶2. Eighty-one-year-old Sarah Elizabeth Hamrick was admitted to Anderson Regional
Medical Center for treatment of injuries resulting from a fall. She was discharged to
Diversicare for rehabilitative care on August 12, 2019.
¶3. Hamrick’s daughter, Linda Diane Shelton, accompanied Hamrick when she was
admitted to Diversicare on August 13, 2019. According to an affidavit Shelton submitted,
Hamrick was in a wheelchair, very uncomfortable, and nauseated at the time. Hamrick was
not in a condition to complete or understand the documents given to her, which already had
been filled out. She repeatedly voiced a desire to get to a bed, and her daughter opined that
Hamrick needed to resume the oxygen treatment she had been on at the hospital. Hamrick
2 told Diversicare’s representative, Chrissy Alexander, that Shelton “could sign the
documents” for her, and Hamrick was present when Shelton did. Shelton had no power of
attorney, conservatorship, or guardianship order, nor did she have a written healthcare proxy
authorizing her to make healthcare decisions for Hamrick. No physician had determined that
Hamrick lacked the mental capacity either to sign the paperwork herself or to authorize her
daughter to sign on her behalf. The parties agree that Hamrick was mentally competent. In
her affidavit, Shelton further said that Diversicare’s representative had the paperwork
prepared and indicated to Shelton where signatures were needed. Shelton signed all the
documents with her name, “Diane Shelton,” not Hamrick’s name, and with no language
indicating she was Hamrick’s legal representative. Diversicare did not contest any of the
facts in Shelton’s affidavit.
¶4. Among the documents Shelton signed was a “Resident Admission/Change Form,”
which included addresses and phone numbers of the resident and a secondary contact. The
form lists Shelton as Hamrick’s “Primary Contact & Financially Responsible Party.” The
form also contains three specific questions about Shelton’s status:
The Primary Contact is the Resident Legal Representative as define on the reverse of this form: ___ Yes ___No.
The Primary Contact is the Financially responsible Party as defined on the reverse of this form: ___Yes ___No.
The Primary Contact is responsible for the Health Care Decisions as defined on the reverse of this form: ___Yes ___No.
No blanks were checked.
¶5. Shelton also signed a ten-page “Admission Agreement,” which contained eleven
3 distinct sections. The Preamble to the agreement gives instructions about signing:
If you are able to do so, you must sign this Agreement in order to be admitted to this Center. If you are not able to sign this Agreement, your Legal Representative, who has been given authority by you to admit you to the Center, must sign it on your behalf. This Agreement will become effective on the day you are admitted to the Center regardless of the date you and/or your Legal Representative signs it. You are not required to sign any other document as a condition of admission to the Center.
(Emphasis added). The “parties to the agreement” were identified as “Diversicare of Mdn”
and “Sarah Hamrick.” At the end of the agreement, there was a signature line for the
resident, which was left blank. Below that line was another one, which Shelton signed and
which read, “by my signature, I represent that I am a person duly authorized by Resident by
law to execute this Admission Agreement and that I accept its terms.” Shelton signed “Diane
Shelton (daughter).” Thereafter, the form notes that the facility required the submission of
“all documents verifying the status of the Legal Representative” at the time of admission.
Such documents included “power of attorney, durable power of attorney, healthcare proxy,
guardianship appointment, conservator appointment.” Shelton had no such documents; she
had only verbal authorization by Hamrick to “sign the documents” for her.
¶6. Among the documents presented in the Appendix to the Admissions Agreement was
a four-page arbitration agreement purportedly entered into between “Diversicare of Mdn”
and “Sarah Hamack.”2 It was titled “Alternative Dispute Resolution Agreement” and
specifically said, “This agreement is not a condition of admission to or continued residence
in the center.” The document also informed the signor that he or she could revoke the
2 Hamrick’s name was misspelled in this document.
4 agreement by sending written notice to the nursing home within thirty days.
¶7. Shelton later claimed that she did not have authority to sign the arbitration agreement.
In her affidavit, she said that she thought all the paperwork was required for admission and
that the agreement and its potential effects were not explained to her; they were in a rush to
get Hamrick into a room, so she did not have an opportunity to read all the documents.
Although Shelton says she asked for copies of the paperwork to be able to review them and
was told copies would be brought to the room, none were ever provided to her until after
Hamrick’s death.
¶8. Hamrick died two days later on August 15, 2019, while in Diversicare’s facility.
Shelton retained an attorney in October 2019, and on March 2, 2020, Shelton was appointed
as the administratrix of Hamrick’s estate. On March 16, 2020, her attorney sent a pre-suit
notice of the family’s claim for Hamrick’s wrongful death to the Diversicare entities and
other individuals she claimed were responsible. The notice included a copy of an August 29,
2019 investigative report prepared by the Mississippi Department of Human Services Center
for Medicare and Medicaid Services, which noted deficiencies in the care rendered to
Hamrick.
¶9. On June 2, 2020, Shelton individually and on behalf of the estate and other wrongful
death beneficiaries of Hamrick, filed a wrongful death lawsuit in Lauderdale County Circuit
Court. The defendants included Diversicare of Meridian LLC and related Diversicare legal
entities,3 Chrissy Alexander, Paula Hazel, Demetri Gordon, Oshaughnessyz McCormick,
3 These include Diversicare Leasing Company III LLC, Diversicare Management Services Co., and Diversicare Leasing Corp.
5 unknown entities, and John Doe defendants. In her complaint, Shelton alleged that “when
[she] present[ed] for admission, the Decedent was unable to comprehend and sign the
documents the Diversicare Defendants required for a person to be admitted to the Facility.”
Shelton further alleged Diversicare’s employees breached the standard of care owed to
Hamrick by, inter alia, failing to maintain Hamrick’s oxygen levels, failing to call a “full
code” and administer CPR, and delaying to call emergency responders—proximately causing
¶10. On July 10, 2020, Diversicare filed a motion to dismiss the proceeding and to compel
arbitration. Diversicare argued that Hamrick, who was mentally competent, gave Shelton
express authority to sign the admission paperwork, including the arbitration agreement.
Diversicare attached several documents, including the arbitration agreement, but Diversicare
filed no affidavit to provide any additional facts of the events on that day that might have
differed or supplemented the facts contained in Shelton’s affidavit.
¶11. Shelton opposed the motion to dismiss and compel, arguing that she lacked the legal
authority to sign for Hamrick under the Uniform Health-Care Decisions Act, Mississippi
Code Annotated sections 41-41-201 to -229 (Rev. 2018). Additionally, Shelton argued that
Diversicare had waived or was estopped from enforcing the agreement and that the
arbitration agreement was procedurally unconscionable.
¶12. On September 1, 2020, the circuit court heard argument on Diversicare’s motion, and
on September 3, 2020, the court issued an order denying the motion to dismiss and compel
arbitration. The circuit court reasoned that the arbitration agreement was not signed by
6 Hamrick but instead by a person acting as her surrogate. Under Mississippi Code Annotated
section 41-41-211(1), a surrogate may make a health-care decision for a patient only if that
patient’s primary physician has determined that the patient lacks capacity and no agent or
guardian has been appointed. The circuit court said there was no evidence of a determination
of Hamrick’s incapacity by her primary physician, and there was no instrument appointing
Shelton to act as her agent. Moreover, the circuit court found that Shelton had no written
authority to sign on Hamrick’s behalf, as is required in Diversicare’s own contract
documents. Accordingly, the circuit court denied the motion to compel arbitration, finding
that Shelton “lacked the legal capacity to enter into the agreement and did not have the
authority to sign the admissions agreement” on Hamrick’s behalf.
¶13. On September 14, 2020, Diversicare filed a motion to alter or amend the circuit
court’s judgment. Diversicare pointed out that there was no Mississippi precedent on
whether a formal legal document is required to confer actual agency authority to sign an
arbitration agreement for another person. Diversicare argued that Shelton was orally granted
actual authority to enter the arbitration agreement, which Diversicare argued is sufficient.
After Shelton responded to Diversicare’s Mississippi Rule of Civil Procedure 59 motion, the
circuit court heard arguments on November 6, 2020. That same day, the court held that its
prior ruling was correct, readopted it, and denied Diversicare’s motion.
¶14. Diversicare appealed the circuit court’s rulings and argues in its brief (1) that the
healthcare surrogate statute, Mississippi Code Annotated section 41-41-211 does not apply
in this case and (2) that Mississippi Code Annotated section 41-41-205 and common law
7 precedent authorizes a mentally competent nursing-home resident to orally grant authority
to another to sign an arbitration agreement.4
Standard of Review
¶15. Appellate courts apply a de novo standard of review to a trial court’s decision to grant
or deny a motion to compel arbitration. Hillhouse v. Chris Cook Constr. LLC, 325 So. 3d
646, 649 (¶5) (Miss. 2021) (citing Covenant Health & Rehab. of Picayune LP v. Est. of
Moulds ex rel. Braddock, 14 So. 3d 695, 701 (¶18) (Miss. 2009)). The interpretation of a
statute is a question of law for which the standard of review on appeal is also de novo. Id.
(citing Dancy v. State, 287 So. 3d 931, 935-36 (¶14) (Miss. 2020) (quoting Rex Distrib. Co.
v. Anheuser-Busch LLC, 271 So. 3d 445, 449 (¶13) (Miss. 2019))). “This Court may affirm
a circuit court if the correct result is reached, even if the circuit court reached the correct
result for the wrong reasons.” White v. Cmty. Bancshares of Miss. Inc., 310 So. 3d 842, 848
(¶16) (Miss. Ct. App. 2021); Methodist Hosp. of Hattiesburg Inc. v. Richardson, 909 So. 2d
1066, 1070 (¶7) (Miss. 2005).
Discussion
¶16. The Federal Arbitration Act, 9 U.S.C. § 1 et seq., applies in the examination of
nursing-home admissions agreements that contain arbitration agreements. Adams Cmty. Care
Ctr. LLC v. Reed, 37 So. 3d 1155, 1158 (¶6) (Miss. 2010). “In determining the validity of
a motion to compel arbitration under the Federal Arbitration Act, courts generally conduct
a two-pronged inquiry.” Virgil v. Sw. Miss. Elec. Power Ass’n, 296 So. 3d 53, 59 (¶13)
4 Diversicare later abandoned its argument on the applicability of section 41-41-205. See infra ¶22.
8 (Miss. 2020) (quoting E. Ford Inc. v. Taylor, 826 So. 2d 709, 713 (¶9) (Miss. 2002)). “The
first prong has two considerations: (1) whether there is a valid arbitration agreement and (2)
whether the parties’ dispute is within the scope of the arbitration agreement.” Id. The issue
in this case is the validity of the agreement to arbitrate.
¶17. To determine whether there is a valid arbitration agreement, we apply the legal
principles of contract law. Trinity Mission Health & Rehab of Holly Springs LLC v.
Lawrence, 19 So. 3d 647, 649 (¶5) (Miss. 2009) (“To conclude that there was an agreement
to arbitrate, there must be a valid contract.”). The elements of a contract are “(1) two or more
contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties
with legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition
precluding contract formation.” Est. of Humphrey ex rel. Humphrey v. Tunica Cnty. Health
& Rehab LLC, 329 So. 3d 563, 567 (¶14) (Miss. Ct. App. 2021); Tarvin v. CLC of Jackson
LLC, 193 So. 3d 633, 637 (¶11) (Miss. 2016); Adams Cmty. Care Ctr. LLC, 37 So. 3d at
1158 (¶7). At issue in this case is whether Shelton had the legal authority to enter into the
arbitration agreement on Hamrick’s behalf.
¶18. The Mississippi Supreme Court has held that “a party cannot be required to submit
to arbitration any dispute which he has not agreed so to submit.” Wellness Inc. v. Pearl River
Cnty. Hosp., 178 So. 3d 1287, 1292 (¶14) (Miss. 2015) (quoting Trinity Mission Health &
Rehab. of Holly Springs, 19 So. 3d at 651 (¶14)). “The burden of establishing the existence
of an arbitration agreement, in line with the burden of establishing the existence of a contract,
rests on the party seeking to invoke it.” Id. As the proponent of the arbitration agreement
9 in this case, Diversicare has the burden of establishing that Shelton had the authority to sign
the arbitration agreement on Hamrick’s behalf.
¶19. Other than noting that the arbitration agreement was not signed by Hamrick but by
another person on her behalf (a surrogate), the circuit court made no specific findings of fact
in the order denying Diversicare’s motion to dismiss and compel. However, because
Diversicare did not dispute the facts contained in Shelton’s affidavit, we conclude that the
circuit court decided the questions of law presented to it by relying on those undisputed facts
and we consider these in our evaluation of the court’s ruling. See Indem. Ins. Co. of N. Am.
v. Guidant Mut. Ins. Co., 99 So. 3d 142, 156 (¶37) (Miss. 2012).
I. Whether the circuit court erred in applying Mississippi Code Annotated section 41-41-211.
¶20. In denying Diversicare’s motion to dismiss and compel, the circuit court first ruled
that Shelton had no statutory authority to sign the arbitration agreement on Hamrick’s behalf
because she was not a health-care surrogate under Mississippi Code Annotated section 41-
41-211(1). This Code section provides a method for an individual to be authorized to make
health-care decisions for a person who has been certified by his family physician as
incapacitated. The statute specifically states:
A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.
Miss. Code Ann. § 41-41-211(1). The circuit court held that because Hamrick was never
determined by her personal physician to lack the mental capacity to sign the admission
10 documents, which included the arbitration agreement, Shelton had no authority under section
41-41-211(1) to do so. There is ample precedent for strictly applying the statute and
requiring that a resident’s primary physician certify incompetence and if a family member
must sign documents. See Tarvin, 193 So. 3d at 638 (¶20); Adams Cmty. Care Ctr. LLC, 37
So. 3d at 1159 (¶10); Miss. Care Ctr. v. Hinyub, 975 So. 2d 211, 217 (¶15) (Miss. 2008).
¶21. Although Shelton stated in her affidavit that “at the time of admission, Ms. Hamrick
was not in a condition to complete or understand the documents,” Shelton agrees that
Hamrick was mentally competent at all times. But in Grenada Living Ctr. LLC v. Coleman,
961 So. 2d 33, 37 (¶13) (Miss. 2007), the Mississippi Supreme Court said that section 41-41-
211(1) does not apply in such cases. In that case, the parties stipulated that the resident,
Coleman, was competent at the time of his admission. Id. at 36 (¶4). No physician had
declared him to be incompetent. Id. at 37 (¶13). The supreme court held that the half-sister
who signed the admission papers, including an arbitration agreement, could not have done
so as his health-care surrogate, explaining:
[I]t is clear from the statute that the Legislature intended to create a system whereby a family member (or other de facto guardian) could tend to the health needs of a loved one when they were incapacitated. Because Mr. Coleman was not incapacitated, the statutes governing health care surrogates do not apply.
Id. Similarly, in this case, because there is no dispute that Hamrick was competent, we find
that the circuit court erred in its application of section 41-41-211 to these facts. However,
there are other means by which Shelton could have been authorized to sign documents for
11 ¶22. Initially, Diversicare had raised another provision of the Uniform Health-Care
Decisions Act that allows for an oral designation of a health-care surrogate when a patient
or resident is competent. This section reads:
(1) An adult or emancipated minor may give an individual instruction. The instruction may be oral or written. The instruction may be limited to take effect only if a specified condition arises.
Miss. Code Ann. § 41-41-205(1). Although Diversicare argued in its brief that Shelton was
authorized to agree to the arbitration agreement under this section, Diversicare abandoned
this position during oral argument. This Court specifically asked Diversicare whether either
sections 41-41-211 or 41-41-205 applied to this case. Diversicare responded that the Act
“did not apply at all.” Diversicare said that when Hamrick allowed Shelton to sign her name
to the admissions papers, Hamrick was not appointing Shelton to be her healthcare surrogate,
and at all times Hamrick retained the authority to make her own healthcare decisions. An
appellate court need not rule on an issue abandoned by a party on appeal. Summers v. Gros,
319 So. 3d 479, 485 (¶21) (Miss. 2021) (quoting Arrington v. State, 267 So. 3d 753, 756 (¶8)
(Miss. 2019) (“The law is well established that points not argued in the brief on appeal are
abandoned and waived.”)). A party can explicitly abandon an issue during oral argument.
Holder v. City of Vancouver, 147 P.3d 641, 643 (¶5) (Wa. Ct. App. 2006); see also Allen v.
Ambu-Stat LLC, 799 F. App’x 703, 710 (11th Cir. 2020) (“An argument can be abandoned
at oral argument.”). Thus, because Diversicare abandoned its argument that Shelton was
authorized to sign the arbitration agreement under section 41-41-205(1), we make no
decision about her authority on that basis.
12 II. Whether Shelton had authority to sign the arbitration agreement under the principles of contract and agency law.
¶23. As its second basis for refusing to enforce Diversicare’s arbitration agreement, the
circuit court held that there was no written instrument appointing Shelton to act as Hamrick’s
agent. Diversicare contends that when Hamrick orally authorized Shelton to sign documents
for her, Hamrick appointed her as Hamrick’s agent under general principles of contract and
agency common law to sign not only the admissions agreement, but also the arbitration
agreement.
¶24. “The burden of proving an agency relationship rests squarely upon the party asserting
it.” Forest Hill Nursing Ctr. Inc. v. McFarlan, 995 So. 2d 775, 781 (¶13) (Miss. Ct. App.
2008) (citing Highlands Ins. Co. v. McLaughlin, 387 So. 2d 118, 120 (Miss. 1980)). There
is no formality required for the creation of an agency relationship. Jeffrey Jackson, Mary
Miller & Donald Campbell, Encyclopedia of Mississippi Law, § 4.4 (updated Oct. 2021).
“An express agency is generally based on an oral or written agreement between between the
principal and the agent.” Id. (emphasis added). “Actual authority, also termed express or
direct authority, is the authority actually conferred by the principal.” Newsome v. Peoples
Bancshares, 269 So. 3d 19, 28 (¶24) (Miss. 2018). “An express agent is one who is ‘in fact
authorized by the principal to act on their behalf.’” Forest Hill Nursing Ctr. Inc., 995 So. 2d
at 781 (¶13) (citing McFarland v. Entergy Miss. Inc., 919 So. 2d 894, 902 (¶25) (Miss.
2005)). Another form of agency authority is implied authority, which is the “authority that
the principal has by words or conduct held the alleged agent out as having.” Miss. Bar v.
Thompson, 5 So. 3d 330, 336 (¶26) (Miss. 2008). A third type of authority, apparent
13 authority, “exists when a reasonably prudent person, having knowledge of the nature and the
usages of the business involved, would be justified in supposing, based on the character of
the duties entrusted to the agent, that the agent has the power he is assumed to have.” Cent.
Indus. Inc. v. McFarlane, 159 So. 3d 610, 614 (¶7) (Miss. Ct. App. 2015). However, in
establishing apparent authority, one must first prove the acts or conduct on the part of the
principal that indicate the extent of the agent’s authority. Id. Thus, to establish any type of
agency authority, a claimant must present sufficient evidence of words, acts, or conduct of
the principal to conclude that the agent had the authority to perform a specific act. Adams
Cmty. Care Ctr. LLC, 37 So. 3d at 1160 (¶14).
¶25. Applying these principles to the facts in the case, it is clear that Hamrick, who the
parties agree was competent, orally informed the Diversicare representative that Shelton
could sign documents for her. Thus, by her words, she clearly granted Shelton express
authority to act on her behalf to a certain extent. Accordingly, we hold that Hamrick could
and did orally appoint Shelton as her agent to sign documents for her and that no written
instrument was required.
¶26. We recognize that heretofore there has been no decision by our appellate courts
determining whether a mentally competent individual can orally grant another person to be
his agent for signing documents for admission to a nursing home. However, the Fifth Circuit
Court of Appeals made an “Erie guess” in Gross v. GGNSC Southaven L.L.C., 817 F.3d 169
(5th Cir. 2016), that we would not require a formal written instrument in such cases. In
Gross, a son (Gross) had signed nursing-home admission papers for his mother (Wagner),
14 which included an arbitration agreement. Id. at 174. Wagner had orally authorized Gross
to manage certain of her affairs but she never signed a power of attorney. Id. The federal
district court had held that orally conveying authority was insufficient to bind a resident to
an arbitration agreement and that written authorization was required. Id. at 175. The Fifth
Circuit disagreed to the extent that written authorization of agency was required. After
reviewing Mississippi contract and agency legal precedents, the court made an “Erie guess”5
and held that “it is clear that the authority to enter a contract may be conveyed orally and that
no formal writing is required as a general rule of Mississippi law.” Id. at 177. However, the
court found that “the existence and scope of an actual agency relationship is a question of
fact, which the district court below did not reach.” Id. at 180 (quoting Engle Acoustic & Tile
Inc. v. Grenfell, 223 So. 2d 613, 617-18 (Miss. 1969)). Because the court could not decide
the agency issue as a matter of law with the record before it, the court remanded the case for
further proceedings. Id.
¶27. In the case before us, considering the testimony presented in Shelton’s affidavit and
the documents in the record, we find that Hamrick did orally appoint Shelton to be her agent.
The next question, however, is whether Diversicare provided sufficient evidence to prove
that the scope of Shelton’s authority included the authority to sign the arbitration agreement.
¶28. Diversicare argues that because Hamrick did not specifically limit Shelton to signing
only documents required for admission to the facility, Hamrick authorized Shelton to sign
5 Under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-79 (1938), when applying undecided state law, the federal court may look to decisions of that state’s supreme court in analogous cases to “guess” how that state’s supreme court may rule on an issue.
15 all documents, including the arbitration agreement. Shelton disagrees. The Gross decision
addressed this issue as well:
[An] agent’s testimony is competent evidence of actual authority because the agent will usually be the best positioned to testify about his belief at the time he acted. Moreover, the Mississippi Supreme Court has stated in dicta that “[i]n Mississippi, agency and the scope thereof may be proved through the testimony of the agent alone.” Eaton v. Porter, 645 So. 2d 1323, 1326 (Miss.1994). Thus, Gross’s sworn testimony is competent evidence on the question of Gross’s agency and its scope.
Gross, 817 F.3d at 179-80. The record before us does not contain the specific words
Hamrick used; Shelton’s affidavit only says that Hamrick told Diversicare’s representative
that Shelton could “sign the documents” for her. However, Shelton said in her uncontested
affidavit that they were taken to an office “to complete the admission process” and that she
believed “all documents [which the nursing home had already filled out that] she signed were
requirements for admission.” Thus, Shelton argues, she only was given authority to sign
documents required for admission, which would not include the arbitration agreement.
Diversicare provided no affidavit to counter Shelton’s and no other proof to support an
expansive interpretation of Hamrick’s statement.
¶29. Although there is no Mississippi case directly on point, other courts’ rulings on similar
facts applying similar agency common-law principles show how fact-dependent the creation
and scope of an agent’s authority are. For example, a Northern District of Mississippi federal
district court later applied Gross to facts before it and determined that a son, whose mother
was competent and who authorized her son to sign documents for her admission because her
hands shook, was authorized to sign an arbitration agreement. Crowe v. GGNSC Ripley LLC,
16 318 F. Supp. 3d 970, 982 (N.D. Miss. 2018). But the facts in that case are distinguishable
from the ones here. In that case, there was evidence that family members had customarily
signed documents for their mother because of her condition. Id. at 980. They said they did
nothing behind their mother’s back, id., and in fact, several of the documents were
specifically discussed with the mother, such as the authorization for the flu vaccination. Id.
at 978. The record clearly painted a picture of an admission process where documents were
presented, several of which were discussed with the mother, and then signed by the son as
he would customarily do after consultation with his mother. Id. at 980-81. The federal
district court, sitting as the trier of fact, found sufficient evidence to support its finding that
the son’s authority to sign documents included authorization to sign the arbitration
agreement. Id. at 981.
¶30. The facts before us paint a completely different picture—one of an elderly patient
having difficulty breathing who wanted to get to her room as soon as possible after
admission, and whose daughter signed paperwork for this to happen. There was no proof
that Shelton had customarily signed for her mother in the past. Nor was there any proof that
any of the individual documents were discussed with Hamrick. Crowe is merely instructive
on the proof that needs to be in a record for a trial court to conclude that the burden of proof
of the scope of the agent’s authority to sign an arbitration agreement had been met.
¶31. Clearly the facts in this case are distinguishable from those in Crowe. Here we have
no testimony or affidavit from Diversicare’s admissions representative Chrissy Alexander
to dispute or supplement the facts presented by Shelton. Shelton never said she was
17 assuming responsibility for Hamrick’s care in the future; she had no power of attorney at the
time of signing the documents, nor did Hamrick ever execute one later. Shelton said she was
rushed through the signing of the documents; she was not explained anything about the
arbitration agreement and did not receive a copy to review it until after her mother’s death.
¶32. A ruling on facts more similar to those before us is found in Kindred Healthcare Inc.
v. Henson, 481 S.W.3d 825 (Ky. Ct. App. 2014). There the Kentucky Court of Appeals held
that a mother, who was “too nervous and shaky” to sign a nursing home’s admissions papers
and had asked her son to sign them, did not authorize him to bind her to an arbitration
agreement. Id. at 827. In arriving at its decision, the court pointed to testimony of the son
who said that he had been rushed through the admissions process, that he had been urged not
to read any of the documents, and that none of the documents were explained to him; instead
they were merely placed in front of him for signing. Id. at 828. The nursing home presented
testimony from its representative, who did not recall the admission specifically but testified
as to her routine. Id. She said she would never direct someone to sign the paperwork
without reading it because that was rude and bad business. Id. The Kentucky Court of
Appeals upheld the trial court’s denial of the nursing home’s motion to compel arbitration,
explaining, inter alia, that when the mother said, “Rick, take care of it for me,” the reasonable
assumption was that she wanted Rick to handle her admission to the nursing home and that
she did not contemplate the sacrifice of judicial dispute resolution. Id. at 829-30. Regarding
whether the son had actual, implied, or apparent authority, the appellate court said that when
the mother gave her son the directive, it was clearly related to signing the admission
18 documents because nothing further had been mentioned at that time. Id. at 830. The
arbitration agreement also was not necessary for Ferguson’s admission. Id. It was
undisputed that these were the mother’s only words, and the Kentucky court felt this was not
sufficient to create an apparent agency. Id.
¶33. As in Kindred Healthcare, the undisputed facts in this case show that although
competent, Hamrick was ill enough not to feel able to sign the admissions documents. She
was taken from the hospital, where she had been on oxygen, to the nursing home in
wheelchair, and she and her daughter were presented papers necessary to be signed for her
admission to the facility. Hamrick authorized Shelton to “sign the documents” needed for
that purpose. Although the arbitration agreement was not required for admission, it was one
of numerous documents Shelton signed believing all were required for her mother to be
admitted. The arbitration agreement was not discussed with her or Hamrick. Because
Diversicare presented no testimony or other proof to support a finding that the scope of
Shelton’s authority included signing anything more than documents required for Hamrick’s
admission, we affirm the circuit court’s holding that Shelton had no authority to sign the
arbitration agreement.6
¶34. Because we find that Diversicare failed to prove that Shelton, as Hamrick’s limited
agent to sign paperwork required for her mother’s admission, also had the authority to sign
the arbitration agreement, we need not discuss Shelton’s arguments of its unenforceability
6 Because we hold Shelton had no authority to sign the arbitration agreement in the first place, she had no authority to revoke it either, making the agreement’s thirty-day revocation clause irrelevant.
19 on procedural-unconscionability grounds.
Conclusion
¶35. We hold that a mentally competent individual may orally grant authority to another
person to sign documents required for admission to a nursing home. To that extent, the
circuit court erred by holding that a written instrument was required. Whether the extent of
the authority orally conferred includes the signing of an arbitration agreement depends on the
proof provided by the nursing home of the words, conduct, and events surrounding the
execution of the documents. In this case, Diversicare failed to provide sufficient proof that
Hamrick gave Shelton the authority to bind her to arbitrate any future disputes that may arise
concerning her stay. Because Diversicare did not prove Shelton had authority to sign the
arbitration agreement, we affirm the circuit court’s denial of Diversicare’s motion to compel
arbitration and remand for further proceedings consistent with this opinion.
¶36. AFFIRMED AND REMANDED.
CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR. BARNES, C.J., NOT PARTICIPATING.