IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-964
Filed: 21 April 2020
Hoke County, No. 19 CVS 326
PAMELA GAY, Executrix of the Estate of JOAN R. FRANKLIN, Plaintiff,
v.
SABER HEALTHCARE GROUP, L.L.C., and AUTUMN CORPORATION, d/b/a Autumn Care of Raeford, Defendants.
Appeal by defendants from order entered 11 June 2019 by Judge Mary Ann
Tally in Hoke County Superior Court. Heard in the Court of Appeals 17 March 2020.
Henson Fuerst, P.A., by Rachel A. Fuerst and Shannon M. Gurwitch, and Britton Law, LLP, by Rebecca J. Britton, for plaintiff-appellee.
Parker Poe Adams & Bernstein LLP, by Bradley K. Overcash and Daniel E. Peterson, for defendants-appellants.
ARROWOOD, Judge.
Saber Healthcare Group, L.L.C. and Autumn Corporation (“defendants”)
appeal from an order denying their Motion to Compel Arbitration and Stay
Proceedings. For the following reasons, we affirm the trial court’s order.
I. Background
The central issue in this case involves the interpretation of contractual
language in a series of documents signed in the admissions process for defendants’
elder care facility. Janine Lightner (“Ms. Lightner”) was referred to Autumn Care of GAY V. SABER HEALTHCARE GRP., L.L.C.
Opinion of the Court
Raeford, defendants’ facility, (“the facility” or “Autumn Care”) after determining that
her mother’s health required more advanced elder care than that which could be
provided in her current placement. Ms. Lightner’s mother, Joan R. Franklin
(“decedent”), had lived for five years in a nearby assisted living facility following a
stroke. Decedent also suffered from Parkinson’s disease and Lewy Body dementia.
On 18 April 2017, Ms. Lightner signed the relevant admission paperwork and
decedent was admitted to Autumn Care. Decedent subsequently suffered from a
series of falls while at Autumn Care and died on 14 June 2017.
These events gave rise to the cause of action in this case. Pamela Gay
(“plaintiff”), decedent’s other daughter, is the executrix of her estate. On
30 April 2019 plaintiff filed a complaint on behalf of decedent’s estate, asserting
claims of negligence and wrongful death arising from defendants’ allegedly improper
response to decedent’s falls. In response to plaintiff’s complaint, defendants filed a
Motion to Compel Arbitration and Stay Proceedings. Defendants’ motion claimed
that plaintiff was required to arbitrate any dispute related to care of decedent because
Ms. Lightner signed an arbitration agreement on the day decedent was admitted to
the facility.
Plaintiff filed a memorandum in opposition to defendants’ motion, maintaining
(a) that Ms. Lightner never entered an arbitration agreement with defendants on the
day of decedent’s admission to Autumn Care, or, alternatively, (b) that any such
-2- GAY V. SABER HEALTHCARE GRP., L.L.C.
agreement was void because defendants owed decedent a fiduciary duty at the time
her representative signed the admissions paperwork. Among other items, plaintiff
attached Ms. Lightner’s affidavit and the relevant admissions paperwork as exhibits
to her memorandum in opposition to defendants’ motion.
On 10 June 2019, the trial court held a hearing on defendants’ motion to
compel arbitration. Plaintiff introduced the exhibits from her memorandum into
evidence. Defendants presented no evidence at the hearing in support of their
contention that the parties had agreed to arbitration. Plaintiff’s evidence tended to
show the following.
Ms. Lightner’s affidavit detailed the process she underwent to admit decedent
to Autumn Care. Ms. Lightner averred that she toured the facility on 10 April 2017.
She returned to the facility with decedent on 18 April 2017. After further reviewing
the facility, Ms. Lightner and decedent met with two members of Autumn Care’s
admissions staff to complete the admission application and other documents. Ms.
Lightner alleged one of the staff members informed her the facility’s admissions
process was new, “it was her first day in admissions at Autumn Care,” and the other
staff member was there “to train her.” Ms. Lightner stated that “the whole process
seemed disorganized: almost like they did not know what they were doing.”
Ms. Lightner asserted the facility staff presented her with “an iPad and a few
loose papers with the admissions information.” Most of the documents Ms. Lightner
-3- GAY V. SABER HEALTHCARE GRP., L.L.C.
signed were presented on the iPad “but some were on random loose pieces of paper.”
She was presented some pages of paper documents to sign that appeared to be ripped
out of a binder of other materials. Many documents presented on the iPad were in
“footnote-sized font” and could not be magnified for ease of reading. Such documents
included the signature pages of an “Admission Agreement” (“the admission
agreement”) and a separate “Resident and Facility Arbitration Agreement” (“the
arbitration agreement”).
Ms. Lightner signed both of these documents, but stated that the pages of the
arbitration agreement preceding its signature page were not presented to her before
or after her signature on the day decedent was admitted to Autumn Care. She stated
that the facility’s admissions staff “did not explain documents in detail.” She did not
recall the staff “ever discussing any arbitration agreement or using the words
arbitration agreement at any point.”
Ms. Lightner requested printed copies of the documents she signed on the iPad,
but the employees handling her onboarding were unable to furnish physical copies.
Months after decedent’s admission, she received what she characterized as a
disorganized “packet of paperwork.” She did not recall ever seeing the full arbitration
agreement in that packet and asserted she did not see it until after decedent’s death.
In its order, the trial court made a finding adopting the version of events
averred in Ms. Lightner’s affidavit:
-4- GAY V. SABER HEALTHCARE GRP., L.L.C.
Ms. Lightner’s sworn affidavit described the events that transpired when she signed the admission paperwork for [decedent]. The content and format of the documents she signed reveals that only the signature paragraph . . . was presented to Ms. Lightner for electronic signature in very small print on an iPad and pages 1 and 2 of the purported 3 page document were never available, shown or explained to Ms. Lightner prior to her electronic signature. Pages 1 and 2 of the purported arbitration agreement were provided, amongst a mixed up package of documents . . . at a later time after [decedent] was residing at Defendant’s [sic] facility. Ms. Lightner did not remember ever seeing the purported arbitration agreement until her attorney showed it to her long after [decedent] had passed away.
The trial court also found that defendants had presented no evidence in
support of their claim that the parties had agreed to arbitrate. Reviewing the
admission agreement and the arbitration agreement’s signature page, the trial court
found the following:
The Admission Agreement, page 8, paragraph J, . . . incorporated into the Admission Agreement by reference: “all documents You signed or received in the Admission Packet during the admission process to the facility.”
....
Defendants’ Admission Agreement, specifically within the terms of the Admission Agreement’s signature page, states: “The resident/representative and facility hereby mutually agree to irrevocably waive any and all rights to a trial by jury (while expressly preserving any and all rights to a bench trial) . . . .”
Based upon these findings, the trial court concluded that: (1) the admission
agreement and arbitration agreement were internally conflicting, “one purporting to
-5- GAY V. SABER HEALTHCARE GRP., L.L.C.
agree to expressly reserve the right to a bench trial and another purporting to agree
to arbitration[;]” and, (2) defendants owed and violated a fiduciary duty to provide
decedent specialized care. On these grounds, the trial court denied defendants’
motion to compel arbitration. Defendants timely filed their notice of appeal to this
Court.
II. Jurisdiction
“An order denying defendants’ motion to compel arbitration is not a final
judgment and is interlocutory. However, an order denying arbitration is immediately
appealable because it involves a substantial right, the right to arbitrate claims, which
might be lost if appeal is delayed.” Raper v. Oliver House, LLC, 180 N.C. App. 414,
418-19, 637 S.E.2d 551, 554 (2006) (internal quotation marks and citations omitted).
This Court possesses jurisdiction over this interlocutory appeal. N.C. Gen. Stat. §7A-
27(b)(3)(a) (2019).
III. Standard of Review
“A dispute can only be settled by arbitration if a valid arbitration agreement
exists.” Slaughter v. Swicegood, 162 N.C. App. 457, 461, 591 S.E.2d 577, 580 (2004)
(citation omitted). “If a party claims that a dispute is covered by an agreement to
arbitrate but the adverse party denies the existence of an arbitration agreement, the
trial court shall determine whether an agreement exists.” Id. (citation omitted). “The
party seeking arbitration must show that the parties mutually agreed to arbitrate
-6- GAY V. SABER HEALTHCARE GRP., L.L.C.
their disputes. The trial court’s findings regarding the existence of an arbitration
agreement are conclusive on appeal where supported by competent evidence, even
where the evidence might have supported findings to the contrary.” Id. (internal
quotation marks, alterations, and citations omitted). “The trial court’s determination
of whether the language of a contract is ambiguous is a question of law” that we
review de novo. Salvaggio v. New Breed Transfer Corp., 150 N.C. App. 688, 690, 564
S.E.2d 641, 643 (2002) (citation omitted).
IV. Discussion
Defendants argue that the trial court erred by denying their motion to compel
arbitration based upon its reasoning that (a) the relevant provisions were ambiguous
regarding an agreement to arbitrate disputes or, alternatively, (b) that even an
unambiguous arbitration agreement would have been unenforceable due to a
fiduciary duty owed to decedent at the time the agreement was made.
We hold that the trial court did not err in denying defendants’ motion. The
findings of fact in its order are supported by competent evidence. These findings in
turn support its legal conclusion that the arbitration agreement was ambiguous, and
therefore defendants failed to meet the burden of proving the existence of an
agreement to arbitrate between plaintiff and defendants at the time Ms. Lightner
signed the documents at issue. Because this conclusion of law is supported, we do
-7- GAY V. SABER HEALTHCARE GRP., L.L.C.
not reach the court’s second ground for denying defendants’ motion regarding the
breach of a purported fiduciary duty owed by defendants.
A. Findings of Fact
In its order, the trial court found that defendants presented no evidence to
refute the claims in Ms. Lightner’s affidavit or otherwise support their contention
that the parties had agreed to arbitrate. This finding is supported by the record.
Defendants did not attach the arbitration agreement to their motion, furnish any
affidavit supporting its existence or inclusion within the documents viewed and
signed by Ms. Lightner, or even attempt to enter the document itself into evidence.
The document itself was furnished by plaintiff as an exhibit to her memorandum
opposing arbitration. The trial court also made findings accepting the version of
events averred in Ms. Lightner’s affidavit. Because they were supported by the
affidavit, these findings are conclusive on appeal. See Slaughter, 162 N.C. App. at
461, 591 S.E.2d at 580.
The pages of the arbitration agreement preceding its signature page, which
Ms. Lightner was not shown at the time of signing, detailed the requirements to
arbitrate any dispute arising with Autumn Care. The signature page had headings
reading “Resident and Facility Arbitration Agreement” and “Resident Understanding
& Acknowledgement Regarding Arbitration” in small font, but made no further
reference to the details of arbitration. It simply stated that “[t]he parties understand
-8- GAY V. SABER HEALTHCARE GRP., L.L.C.
that by entering into this agreement the parties are giving up their constitutional
right to have any claim decided in a court of law before a judge and a jury, as well as
any appeal from a decision or award of damages.”
The court found that, in contrast, the signature page of the admission
agreement stated that the parties “mutually agree to irrevocably waive any and all
rights to a trial by jury (while expressly preserving any and all rights to a bench
trial)[.]” The court also found that the admission agreement contained a clause
“incorporat[ing] into the Admission Agreement by reference: ‘all documents [Ms.
Lightner] signed or received in the Admission Packet during the admission process
to the facility.’ ” These findings are also supported by the record evidence.
B. Conclusion of Law
Based on its findings concerning the aforementioned clauses in the materials
presented to Ms. Lightner on the day she signed the relevant documents, as well as
the version of events Ms. Lightner averred in her affidavit, the trial court found that
“the Admission Agreement Signature Page and Resident and Facility Arbitration
Agreement[ ] are internally in conflict with one another, one purporting to agree to
expressly reserve the right to a bench trial and another purporting to agree to
arbitration.” Furthermore, the court found that “Defendants’ use of the terms ‘jury
trial’ and ‘bench trial’ within the same sentence [of the admission agreement’s
signature page] would not give a reasonable person notice of arbitration and would
-9- GAY V. SABER HEALTHCARE GRP., L.L.C.
not be understood by someone who does not have training in the interpretation of
legal documents.” These findings are more appropriately read as a conclusion of law
that no valid agreement to arbitrate was formed between the parties, due to an
ambiguity regarding the right to have any dispute determined by a court of law. See
In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997) (“[A]ny determination
requiring the exercise of judgment or the application of legal principles is more
properly classified a conclusion of law.”) (internal citations omitted).
An ambiguity exists where the language of a contract is fairly and reasonably susceptible to either of the constructions asserted by the parties. Stated differently, a contract is ambiguous when the writing leaves it uncertain as to what the agreement was. The fact that a dispute has arisen as to the parties’ interpretation of the contract is some indication that the language of the contract is, at best, ambiguous.
Salvaggio, 150 N.C. App. at 690, 564 S.E.2d at 643 (internal quotation marks,
alterations, and citations omitted). “[I]t is a fundamental rule of contract
construction that the courts construe an ambiguous contract in a manner that gives
effect to all of its provisions, if the court is reasonably able to do so. Contract
provisions should not be construed as conflicting unless no other reasonable
interpretation is possible.” Johnston Cty. v. R.N. Rouse & Co., 331 N.C. 88, 94, 414
S.E.2d 30, 34 (1992) (internal quotation marks, alterations, and citations omitted).
Where no other reasonable, nonconflicting interpretation is possible, “the court is to
construe the ambiguity against the drafter—the party responsible for choosing the
- 10 - GAY V. SABER HEALTHCARE GRP., L.L.C.
questionable language.” Novacare Orthotics & Prosthetics E., Inc. v. Speelman, 137
N.C. App. 471, 476, 528 S.E.2d 918, 921 (2000) (citation omitted).
Defendants cite to Rouse and Internet East, Inc. v. Duro Communications, Inc.,
146 N.C. App. 401, 553 S.E.2d 84 (2001), arguing that similarities between the
arbitration agreements and clauses governing litigation in those cases and the
instant case compel a conclusion that their agreement with plaintiff to arbitrate
disputes was unambiguous. We find these cases inapposite.
In Internet East, we held that a forum selection clause granting “courts of
North Carolina . . . sole jurisdiction over any disputes” did not conflict with an
arbitration clause in the same contract. Id. at 403, 553 S.E.2d at 86. We reasoned
that the clauses could be read such that the “forum selection clause should . . . be
triggered only when a court is needed to intervene for those judicial matters that arise
from arbitration and when the parties have agreed to take a particular dispute to
court instead of resolving it by arbitration.” Id. at 407, 553 S.E.2d at 88. Based upon
similar reasoning, in Rouse our Supreme Court held that choice of law and consent
to jurisdiction clauses did not conflict with an arbitration clause within the same
contract. 331 N.C. at 94-97, 414 S.E.2d at 33-35.
Defendants argue that these cases support a nonconflicting reading of the
admission agreement’s clause preserving the right to a bench trial and the arbitration
agreement’s signature page waiving the right to bring disputes before a court of law.
- 11 - GAY V. SABER HEALTHCARE GRP., L.L.C.
Defendants contend that these clauses should be interpreted such that arbitration of
disputes is required, but “in the event of judicial intervention, the Admission
Agreement stipulates that neither party would seek a jury trial, and instead, would
seek a bench trial.” We are not persuaded. Unlike the forum selection, choice of law,
and consent to jurisdiction clauses at issue in Rouse and Internet East, here the
admission agreement’s clause expressly reserving the right to a bench trial cannot be
read in harmony with the arbitration agreement’s clause expressly foreclosing the
same. Given the trial court’s finding that the pages of the arbitration agreement
providing all the details of the procedures for arbitration were not presented to Ms.
Lightner when she signed its signature page, such an interpretation would be
unreasonable.1
The dissent bases its argument in large part upon our precedent holding that
parties to an arm’s length contractual agreement are charged with knowledge and
understanding of the contents of documents they sign, when the parties could have
reviewed the provisions from which they seek relief. See, e.g., Leonard v. Power Co.,
155 N.C. 10, 13-14, 70 S.E. 1061, 1064 (1911). This principle misses the point: The
trial court found that Ms. Lightner was not presented with the contents of the
1We also note that Part IV, Section K of the admission agreement provides that headings in the contract “are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.” Thus, the two references to “arbitration” in the headings on the arbitration agreement’s signature page are of no effect. The signature page thus fails to mention arbitration at all.
- 12 - GAY V. SABER HEALTHCARE GRP., L.L.C.
arbitration agreement other than the signature page and, despite her requests, was
unable to avail herself of full printed copies for review at the time she signed the
contracts. Thus, this case is not one in which a party had constructive notice of and
opportunity to review a contractual provision from which they seek relief. The facts
of the instant case belie the dissent’s reliance on this principle.2
The trial court found that Ms. Lightner was not presented with or able to
review the contents of the arbitration agreement other than its signature page. The
2 Furthermore, ignoring the fact that no objection was made below nor error raised on appeal, the dissent mistakenly suggests that the parol evidence rule would prohibit the trial court’s consideration of Ms. Lightner’s affidavit in determining issues of contract formation and ambiguity. The parol evidence rule is inapplicable to such determinations. Turner v. Hammocks Beach Corp., 363 N.C. 555, 560, 681 S.E.2d 770, 774 (2009) (“[I]f the writing itself leaves it doubtful or uncertain as to what the agreement was, parol evidence is competent, not to contradict, but to show and make certain what was the real agreement between the parties.”) (internal quotation marks and citation omitted); Z.A. Sneeden’s Sons, Inc., v ZP No. 116, L.L.C., 190 N.C. App. 90, 101, 660 S.E.2d 204, 211 (2008) (“Extrinsic evidence as to the circumstances under which a written instrument was made has been held to be admissible in ascertaining the parties’ expressed intentions, subject to the limitation that extrinsic evidence is not admissible in order to give the terms of a written instrument a meaning of which they are not reasonably susceptible.”) (internal quotation marks, alteration, and citation omitted); Ingersoll v. Smith, 184 N.C. App. 753, 755, 647 S.E.2d 141, 143 (2007) (“The parol evidence rule prohibits the admission of parol evidence to vary, add to, or contradict the terms of an integrated written agreement, though an ambiguous term may be explained or construed with the aid of parol evidence.”) (internal quotation marks and citations omitted).
The dissent’s implied invocation of the parol evidence rule to the circumstances of the instant case would have illogical and unjust consequences. Under its conception of the doctrine, once a party signs a written document, they are barred from contesting their lack of agreement to later-furnished, additional terms not within the document presented to them at the time of signing. Such an application of the parol evidence rule would invite fraud and upheave the well-settled jurisprudence of contract formation.
- 13 - GAY V. SABER HEALTHCARE GRP., L.L.C.
arbitration agreement’s signature page provides no detail on the suggested methods
of nonjudicial resolution of disputes between the parties. It fails to even mention
arbitration. Rather, the signature page only provides that the parties waive the right
to a trial. In contrast, the admission agreement expressly waives the right to a jury
trial and reserves the right to a bench trial. Based upon these findings, the trial court
correctly concluded that the parties’ arbitration agreement was ambiguous as a
matter of law. See Novacare, 137 N.C. App. at 476, 528 S.E.2d at 921 (construing
contractual ambiguity against drafting party). Therefore, the trial court did not err
by denying defendants’ motion to compel arbitration.
V. Conclusion
For the foregoing reasons, we affirm the trial court’s order denying defendants’
Motion to Compel Arbitration and Stay Proceedings.
AFFIRMED.
Judge BRYANT concurs.
Judge TYSON dissents by separate opinion.
- 14 - No. COA19-964 – Gay v. Saber Healthcare Grp., L.L.C.
TYSON, Judge, dissenting.
The majority’s opinion ignores fundamental principles and interpretation of
contract law, disregards our nation’s and our state’s public policies in favor of
arbitration, and misapplies the de novo standard of review to affirm the trial court’s
order. The trial court’s order is properly reversed and remanded for entry of an order
to stay the proceeding and to compel arbitration as the parties agreed. I respectfully
dissent.
I. Standard of Review
Our review of the trial court’s order and the Admission and Arbitration
Agreements is de novo. Precedents governing our review of contracts are long
established:
Because the law of contracts governs the issue of whether there exists an agreement to arbitrate, the party seeking arbitration must show that the parties mutually agreed to arbitrate their disputes. The trial court’s determination of whether a dispute is subject to arbitration is a conclusion of law reviewable de novo.
T.M.C.S., Inc. v. Marco Contr’rs, Inc., 244 N.C. App. 330, 339, 780 S.E.2d 588, 595
(2015) (citations, alterations, and internal quotation marks omitted).
Our Supreme Court held:
[W]here the parties have deliberately put their engagements in writing in such terms as import a legal obligation free of uncertainty, it is presumed the writing was intended by the parties to represent all their engagements as to the elements dealt with in the writing. Accordingly, all prior and contemporaneous negotiations in GAY V. SABER HEALTHCARE GRP., L.L.C.
TYSON, J., dissenting
respect to those elements are deemed merged in the written agreement. And the rule is that, in the absence of fraud or mistake or allegation thereof, parol testimony of prior or contemporaneous negotiations or conversations inconsistent with the writing, or which tend to substitute a new and different contract from the one evidenced by the writing, is incompetent.
Neal v. Marrone, 239 N.C. 73, 77, 79 S.E.2d 239, 242 (1953) (citations omitted). More
recently, this Court reiterated:
It is the general law of contracts that the purport of a written instrument is to be gathered from its four corners, and the four corners are to be ascertained from the language used in the instrument. When the language of the contract is clear and unambiguous, construction of the agreement is a matter of law for the court and the court cannot look beyond the terms of the contract to determine the intentions of the parties.
Bank of Am., N.A. v. Rice, 230 N.C. App. 450, 456, 750 S.E.2d 205, 209 (2013) (citation
omitted).
II. Existence of the Arbitration Agreement
Our Supreme Court has also held:
North Carolina has a strong public policy favoring the settlement of disputes by arbitration. Our strong public policy requires that the courts resolve any doubts concerning the scope of arbitrable issues in favor of arbitration. This is true whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.
Johnston County v. R. N. Rouse & Co., 331 N.C. 88, 91, 414 S.E.2d 30, 32 (1992)
(citation and internal quotation marks omitted). “A dispute can only be settled by
2 GAY V. SABER HEALTHCARE GRP., L.L.C.
arbitration if a valid arbitration agreement exists. The party seeking arbitration
must show that the parties mutually agreed to arbitrate their disputes.” Raper v.
Oliver House, LLC, 180 N.C. App. 414, 419, 637 S.E.2d 551, 554 (citations omitted).
“[A]ny doubt concerning the existence of such an agreement must also be resolved in
favor of arbitration.” Rouse, 331 N.C. at 92, 414 S.E.2d at 32 (emphasis supplied).
This policy in favor of arbitration has also been codified as national policy in
federal law. Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 74 L.
Ed. 2d 765, 785 (1983) (“any doubts concerning the scope of arbitrable issues should
be resolved in favor of arbitration”); Drews Distrib., Inc. v. Silicon Gaming, Inc., 245
F.3d 347, 349 (4th Cir. 2001); see also AT&T Mobility LLC v. Concepcion, 563 U.S.
333, 339, 179 L. Ed. 2d 742, 750 (2011) (explaining Congress enacted the Federal
Arbitration Act “in 1925 in response to widespread judicial hostility to arbitration
agreements”).
The majority’s opinion concludes Defendants failed to establish the existence
of an Arbitration Agreement between the parties. Purportedly reviewing the
agreements de novo and as a matter of law, the majority’s opinion affirms the trial
court’s order and its erroneous conclusion of law that “the arbitration agreement was
ambiguous, and therefore defendants failed to meet the burden of proving the
existence of an agreement to arbitrate between plaintiff and defendants at the time
Ms. Lightner signed the documents at issue.” This analysis does not confine itself to
3 GAY V. SABER HEALTHCARE GRP., L.L.C.
the four corners of the separate agreements and apply the plain language de novo as
a matter of law. See Bank of Am., N.A., 230 N.C. App. at 456, 750 S.E.2d at 209.
This conclusion is also unsupported by the four corners of the written
agreements. The trial court neither disputes nor concludes the proffered and
admitted evidence is invalid or insufficient to prove the Arbitration Agreement. If it
had, the Admission Agreement and the asserted “non-existent” Arbitration
Agreement could not be “internally in conflict with one another.”
Here, Plaintiff submitted all the evidence needed to prove not only the
existence of, but also mutual assent between the parties to, the Arbitration
Agreement. This agreement is separate and distinct from the Admission Agreement.
Plaintiff submitted into evidence the Admission Agreement and the Arbitration
Agreement, signed by Lightner as Decedent’s authorized representative, along with
her affidavit.
The Arbitration Agreement contains multiple pages. Lightner avers several
pages were never been shown to her. Even if so, the signature page of the Arbitration
Agreement, which is admittedly signed by Lightner as Decedent’s representative,
agrees to arbitration as the exclusive forum to resolve any disputes arising between
the parties and contains a complete waiver of the right to trial by judge and a jury in
a court of law. It also states and admonishes the signatory prior to signing: “NOT A
CONDITION OF ADMISSION – READ CAREFULLY.”
4 GAY V. SABER HEALTHCARE GRP., L.L.C.
Our Supreme Court held over one hundred years ago that, “the law will not
relieve one who can read and write from liability upon a written contract, upon the
ground that he did not understand the purport of the writing, or that he has made an
improvident contract, when he could inform himself and has not done so.” Leonard v.
Power Co., 155 N.C. 10, 14, 70 S.E. 1061, 1063 (1911).
“The interpretation of the terms of an arbitration agreement are governed by
contract principles and parties may specify by contract the rules under which
arbitration will be conducted. Persons entering contracts have a duty to read them
and ordinarily are charged with knowledge of their contents.” Raper, 180 N.C. App.
at 420-21, 637 S.E.2d at 555 (citations, alterations, and internal quotation marks
Once the documents are signed, any events preceding the execution and
signatures are merged into the final document, which becomes the final expression of
the parties’ intent. Neal, 239 N.C. at 77, 79 S.E.2d at 242. “[P]arol testimony of prior
or contemporaneous negotiations or conversations inconsistent with the writing, or
which tend to substitute a new and different contract from the one evidenced by the
writing, is incompetent.” Id.
The majority’s opinion asserts the parol evidence rule is inapplicable to the
issue in this case, and claims “no objection was made below nor error raised on
appeal.” Defendant’s appeal challenges and brings all of the trial court’s conclusions
5 GAY V. SABER HEALTHCARE GRP., L.L.C.
of law, which fail to enforce the parties’ two separate, distinct, written, and executed
contracts, before us for de novo review. Both agreements were executed by the same
parties, at the same time, at the same place. Defendant provided performance and
Plaintiff accepted the benefits and burdens under both agreements.
The four corners of the documents are properly before us in reviewing the trial
court’s order failing to enforce the agreements. Plaintiff has asserted none of the
traditional contract defenses, e.g., forgery, fraud, duress, incapacity, or
unconscionability, to excuse enforcement of the express agreements her decedent’s
representative admittedly signed. The denial of the parties’ agreed-upon forum of
arbitration and the de novo proper construction of these agreements is clearly before
us.
In Evangelistic Outreach Ctr. v. General Steel Corp., 181 N.C. App. 723, 726,
640 S.E.2d 840, 843 (2007), the proponent of the alleged arbitration agreement
submitted in its unverified motion a one-page purchase order signed by the party to
be charged, which noted the agreement was subject to the terms and conditions on
its face and on the reverse side. The proponent also submitted a copy of the reverse
side, which contained an arbitration clause. Id.
The party opposing arbitration submitted a verified response denying receipt
of the reverse side. Id. at 727, 640 S.E.2d at 843. Both parties submitted affidavits
in support of their positions. Id. at 726-27, 640 S.E.2d at 843. This Court upheld the
6 GAY V. SABER HEALTHCARE GRP., L.L.C.
trial court’s conclusion that “proof of the very existence of an arbitration agreement
was lacking.” Id. at 727, 640 S.E.2d at 843 (emphasis original). The reasoning in that
case is inapplicable to the admitted facts and plain meanings of the provisions before
Plaintiff submitted all the evidence needed to prove the existence of, her
signature on, and the parties’ mutual assent to the Arbitration Agreement, which is
separate and distinct from the Admission Agreement. The law will enforce
agreements as written and signed. Plaintiff is not relieved from liability upon a
written contract, upon allegation Lightner did not read or “understand the purport of
the writing” when she could have informed herself and failed to do so, or simply have
refused to sign the Arbitration Agreement without jeopardizing her mother’s
admission to the Facility. See Leonard, 155 N.C. at 14, 70 S.E. at 1063.
Parties to private contracts are free to set forth, demand, and enforce the time,
place, and type of forum where disputes between the parties are to be resolved. See
Rouse, 331 N.C. at 92, 414 S.E.2d at 32. Nothing in our law requires or compels that
choice to be a judicial or even a public forum, or to include all options or remedies
available in that public or private forum. See id. Sufficient evidence shows an express
Arbitration Agreement exists, signed by Decedent’s representation and Defendants
while Decedent was present, which she was free to reject without risking her non-
admission to the Facility. Plaintiff cannot successfully argue she is not bound by
7 GAY V. SABER HEALTHCARE GRP., L.L.C.
terms stated on the very page Decedent’s representative admittedly signed with her
mother present. See Leonard, 155 N.C. at 14, 70 S.E. at 1063.
III. Construing the Agreements
A. “Internally in Conflict”
The trial court concluded and the majority’s opinion agrees, the separate and
distinct Admission Agreement and the Arbitration Agreement were “internally in
conflict with one another.” The Admission Agreement preserves the right to a bench
trial to the parties, but waives both parties’ right to a trial by jury and to punitive
damages. The Arbitration Agreement is separate from the Admission Agreement and
declares arbitration to be the exclusive and mandatory method for dispute resolution
between the parties and waives both parties’ constitutional rights to a bench trial
before a judge and a trial by jury.
The Admission Agreement provides, in pertinent part:
The Resident/Representative and Facility hereby mutually agree to irrevocably waive any and all rights to trial by jury (while expressly preserving any and all rights to a bench trial) and forego any and all rights to claim for punitive damages in any action or proceeding arising out of or relating to this agreement, the transactions relating to its subject matter, or care and treatment provided to Resident at Facility. This agreement does not limit the ability of the Resident/Representative from filing formal and informal grievances with the Facility or state or federal government, including the right to challenge a proposed transfer or discharge.
8 GAY V. SABER HEALTHCARE GRP., L.L.C.
Significantly, this condition and waiver is also stated on the page where Lightner, as
Decedent’s authorized representative, and Defendants’ representative signed the
Agreement for Decedent to be admitted. The Admission Agreement also incorporates
by reference “all documents that You signed or received in the Admission Packet
during the admission process to [the] FACILITY.”
On and near the bottom of the signature page, the Arbitration Agreement in
bolded, capitalized, and italicized text provides in pertinent part:
THE PARTIES UNDERSTAND THAT BY ENTERING INTO THIS AGREEMENT, THE PARTIES ARE GIVING UP THEIR CONSTITUTIONAL RIGHT TO HAVE ANY CLAIM DECIDED IN A COURT OF LAW BEFORE A JUDGE AND A JURY, AS WELL AS ANY APPEAL FROM A DECISION OR AWARD OF DAMAGES.
In Rouse, our Supreme Court considered and rejected an argument asserting
a consent-to-jurisdiction clause and an arbitration clause in a single construction
contract were “in irreconcilable conflict, as they both purport to establish the
exclusive forum for resolution of disputes arising under the contract.” Rouse, 331 N.C.
at 92, 414 S.E.2d at 33. Our Supreme Court reasoned the parties had agreed to
arbitrate any disagreement arising out of the contract, and the contractor had
consented to the jurisdiction of North Carolina courts in the event of any litigation to
enforce either the arbitration agreement or an award resulting from arbitration. Id.
at 96-97, 414 S.E.2d at 35.
9 GAY V. SABER HEALTHCARE GRP., L.L.C.
This Court has similarly construed the forum selection and arbitration clauses
contained in a single contract to avoid conflict and asserted ambiguity between those
provisions. See Internet East, Inc. v. Duro Communications, Inc., 146 N.C. App. 401,
407, 553 S.E.2d 84, 88 (2001) (“The forum selection clause should be read to be
triggered only when a court is needed to intervene for those judicial matters that arise
from arbitration and when the parties have agreed to take a particular dispute to
court instead of resolving it by arbitration.”); see also Tomaszewski v. St. Albans
Operating Co., LLC, No. 2:18-CV-01327, 2018 WL 5819601, at *4 (S.D. W. Va. Nov.
6, 2018) (an arbitration agreement “only changes the forum of the lawsuit.”).
The majority’s opinion disagrees with and fails to apply these precedents, and
also fails to offer any factors or cases to distinguish them. The reasoning and
precedents in Neal, Leonard, Raper, Rouse, and Internet East express and exhort how
we are to review, construe, apply, and enforce the separate contracts before us.
Presuming the provisions contained in the separate agreements are
ambiguous, the Admission Agreement and Arbitration Agreement may also be
harmonized as were the provisions contained in a single contract in those precedents.
The Admission Agreement expressly reserves both parties’ right to a bench trial to
adjudicate disputes, but excludes trial by jury and the recovery of punitive damages
in the absence of an agreement to arbitrate.
B. Not a Condition of Admission
10 GAY V. SABER HEALTHCARE GRP., L.L.C.
Defendants also assert an additional and equally harmonious reading of the
two provisions in their appellate brief. The Arbitration Agreement clearly and
emphatically states across the top of each page, including its signature page, that it
is “NOT A CONDITION OF ADMISSION – READ CAREFULLY.” Defendants
argue the bench trial clause in the Admission Agreement simply applies if Decedent’s
authorized representative had rejected and declined to execute the Arbitration
Agreement. Rejecting the Arbitration Agreement was without risk to Decedent’s
admission to the Facility.
Our Supreme Court has re-stated the “fundamental rule of contract
construction that the courts construe an ambiguous contract in a manner that gives
effect to all of its provisions, if the court is reasonably able to do so. Contract
provisions should not be construed as conflicting unless no other reasonable
interpretation is possible.” Rouse, 331 N.C. at 94, 414 S.E.2d at 34 (citations,
alterations, and internal quotation marks omitted).
The majority’s opinion asserts without citing support, “the admission
agreement’s clause expressly reserving the right to a bench trial cannot be read in
harmony with the arbitration agreement’s clause expressly foreclosing the same.”
This conclusion is erroneous and does not follow the precedents set forth by our
Supreme Court in Rouse and this Court in Internet East.
11 GAY V. SABER HEALTHCARE GRP., L.L.C.
Decedent, through her authorized representative, expressly agreed to
arbitration as the forum to resolve disputes between the parties. Defendants
exercised their statutorily and contractually guaranteed right to have the parties’
disputes resolved through arbitration. The trial court erred in denying Defendants’
motion to compel arbitration and to stay the proceedings. See Rouse, 331 N.C. at 96-
97, 414 S.E.2d at 35; Internet East, 146 N.C. App. at 407, 553 S.E.2d at 88. The trial
court’s unlawful order is properly reversed and remanded for entry of an order to
compel arbitration as agreed and to stay proceedings pursuant to the Arbitration
Agreement.
IV. Fiduciary Duty to Decedent
The majority’s opinion fails to address Defendants’ second asserted error in the
trial court’s order. The trial court also apparently concluded Defendants owed a
fiduciary duty of specialized care to Decedent.
For a breach of fiduciary duty to exist, there must first be a fiduciary relationship between the parties. . . . In general terms, a fiduciary relation is said to exist wherever confidence on one side results in superiority and influence on the other side; where a special confidence is reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing the confidence.
King v. Bryant, 369 N.C. 451, 464, 795 S.E.2d 340, 348-49 (citations, alterations, and
internal quotation marks omitted), cert. denied, __ U.S. __, 199 L. Ed. 2d 233 (2017).
12 GAY V. SABER HEALTHCARE GRP., L.L.C.
This Court recently stated: “North Carolina recognizes two types of fiduciary
relationships: de jure, or those imposed by operation of law, and de facto, or those
arising from the particular facts and circumstances constituting and surrounding the
relationship.” Hager v. Smithfield E. Health Holdings, LLC, __ N.C. App. __, __, 826
S.E.2d 567, 571, disc. review denied, 373 N.C. 253, 835 S.E.2d 446 (2019) (citation
omitted). Although the trial court’s order is unclear upon which basis it ruled, the
only reasonable conclusion from the order is it concluded a de facto fiduciary
relationship existed between Decedent and Defendants.
Our Supreme Court stated: “The list of relationships that we have held to be
fiduciary in their very nature is a limited one, and we do not add to it lightly.”
CommScope Credit Union v. Butler & Burke, LLP, 369 N.C. 48, 52, 790 S.E.2d 657,
660 (2016) (citation omitted). The physician-patient relationship is among the
recognized de jure fiduciary relationships. Hager, __ N.C. App. at __, 826 S.E.2d at
572 (citing Black v. Littlejohn, 312 N.C. 626, 646, 325 S.E.2d 469, 482 (1985)).
This Court in Hager considered and rejected expanding a fiduciary duty “to
include assisted living facilities with memory wards and their residents, as licensed
memory wards possess special knowledge and skill concerning the care of those
afflicted with cognitive impairments.” Id. (citation, alteration, and internal quotation
marks omitted).
13 GAY V. SABER HEALTHCARE GRP., L.L.C.
This Court then considered whether a de facto fiduciary relationship existed.
Id. Our Supreme Court’s fact-specific analysis in King was reviewed for guidance.
Id. In King, our Supreme Court concluded a de facto fiduciary physician-patient
relationship existed because the patient:
(1) was referred to the surgeon by his primary care physician, who already had a de jure fiduciary duty to the patient; (2) sought out the surgeon for his specialized skill and knowledge; (3) provided the surgeon with confidential information on arrival and prior to being seen; and (4) had received a limited education and had little to no experience interpreting legal documents.
Id. at __, 826 S.E.2d at 573 (citations and footnote omitted).
This Court in Hager applied the analysis from King to the facts before it.
Significantly, in considering the fourth factor, the patient in Hager:
was not asked to sign the Arbitration Agreement before she could evaluate the care offered by [the facility]; prior to signing the agreement, she toured the facility and was provided the opportunity to ask questions. She signed the agreement after assessing the facility with her friend . . . who also had the opportunity to offer her independent thoughts on the facility. Id.
The Arbitration Agreement in this case is essentially identical to the one this
Court upheld in Hager. See id. at __, 826 S.E.2d at 570. Both agreements contain the
same capitalized, bolded, and italicized waiver of the right to trial by judge and jury,
as well as the same bolded and underlined admonishment across the top of the page:
“NOT A CONDITION OF ADMISSION — READ CAREFULLY”. Id.
14 GAY V. SABER HEALTHCARE GRP., L.L.C.
This Court in Hager concluded the language of these agreements “outlined the
nature of arbitration, identified the rights [the patient] was relinquishing, and
encouraged [his representative] to seek the advice of legal counsel before signing.” Id.
at __, 826 S.E.2d at 574.
The analysis in Hager is on point. As Decedent’s condition debilitated, she
required more specialized care than available at her previous assisted living
residence. Her daughter was referred by a worker at that previous facility to the
Facility for this higher specialized care. Like in Hager, Decedent’s representative
had the opportunity to and did perform her own due diligence by touring the Facility.
In fact, Lightner had far more opportunity to perform her own due diligence than the
patient’s representative in Hager. Lightner toured the Facility a week before
returning with Decedent, while the representative in Hager admitted her patient the
same day following the tour. Id. at __, 826 S.E.2d at 569.
Considering both Hager and the factors our Supreme Court laid out in King,
these facts align to those in Hager, which rejected any fiduciary duty. Defendants
did not maintain or violate any fiduciary duty owed to Decedent. The trial court erred
in concluding a fiduciary relationship existed between Decedent and Defendants.
Plaintiff submitted evidence of an express and mutual Arbitration Agreement,
signed by Defendants and Decedent’s authorized representative. The law will not
15 GAY V. SABER HEALTHCARE GRP., L.L.C.
relieve Plaintiff from her agreements, and the courts will enforce and compel her to
honor and perform her obligations in a binding written contract. Plaintiff does not
allege or show she did not understand the purport of the writing or, even if so, that
she could not have informed herself prior to signing. See Leonard, 155 N.C. at 14, 70
S.E. at 1063.
By failing to apply four corners and de novo review as a matter of law, the
majority’s opinion erroneously construes the Admission Agreement and the separate
Arbitration Agreement to be “internally in conflict with one another.” This conclusion
is: (1) contrary to the express terms of the parties’ separate and private contracts; (2)
contrary to the clear public policy of our nation and North Carolina favoring
arbitration; and, (3) contrary to the fundamental rule of interpretation to avoid
construing contract provisions as conflicting, unless no other reasonable
interpretation can be applied.
The trial court also erred in concluding as a matter of law that a fiduciary
relationship existed between Defendants and Decedent or her representative at
admission. See Hager, __ N.C. App at __, 826 S.E.2d at 574. The trial court further
erred by concluding as a matter of law Defendants had violated any fiduciary duty of
care at the pre-admission relationship.
The parties are contractually and lawfully bound, and Defendants are entitled
to resolve the parties’ disputes through the forum of arbitration as agreed. It is the
16 GAY V. SABER HEALTHCARE GRP., L.L.C.
duty of this Court to enforce the parties’ private agreements. The trial court’s
erroneous order is properly reversed and remanded for entry of an order to compel
arbitration and stay the proceedings. I respectfully dissent.