Cite as 2025 Ark. App. 91 ARKANSAS COURT OF APPEALS DIVISION II No. CV-23-570
GREYSTONE NURSING AND REHAB, LLC; CENTRAL ARKANSAS NURSING Opinion Delivered February 12, 2025 CENTERS, INC.; NURSING CONSULTANTS, INC.; AND MICHAEL APPEAL FROM THE LONOKE MORTON COUNTY CIRCUIT COURT APPELLANTS [NO. 43CV-22-701]
V. HONORABLE BARBARA ELMORE, JUDGE DONNA GLOVER, AS PERSONAL REPRESENTATIVE OF THE ESTATE AFFIRMED OF DOROTHY FRIZZELL, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF DOROTHY FRIZZELL APPELLEE
MIKE MURPHY, Judge This is an appeal from an order of the Lonoke County Circuit Court denying the
motion to compel arbitration filed by appellants Greystone Nursing and Rehab, LLC;
Central Arkansas Nursing Centers, Inc; Nursing Consultants, Inc; and Michael Morton
(collectively referred to herein as “Greystone”). On appeal, Greystone argues the circuit court
erred in denying its motion to compel despite the existence of a valid and enforceable
arbitration agreement. We affirm.
On September 27, 2022, appellee Donna Glover, as personal representative of the
estate of Dorothy Frizzell and on behalf of the wrongful death beneficiaries of Frizzell, filed her complaint alleging that Frizzell was injured as a result of the care and treatment received
at Greystone. Frizzell resided at Greystone from June 1, 2021, to January 19, 2022. The
complaint asserted causes of action for negligence, medical malpractice, breach of the
admission agreement, and deceptive trade practices. Greystone answered, denying the claims
and asserting the existence of an arbitration agreement as a defense. Greystone moved to
compel arbitration, and a hearing was held on the motion on April 21, 2023, establishing
the following facts.
Donna Glover, Frizzell’s daughter, accompanied Frizzell on the day she was admitted
to Greystone. Glover was presented with paperwork in connection with the admission,
including an admission agreement and an incorporated arbitration agreement. The
arbitration clause provided that signing the arbitration agreement was a condition of
admission. The arbitration agreement included a blank line followed by “(Check if
applicable): A copy of my guardianship papers, durable power of attorney or other
documentation has been provided to the Facility and is attached.” There is no checkmark in
the blank. Additionally, the resident line is left blank and was signed by Glover as the
“responsible party.” Where the paperwork asks for “responsible party’s relationship to
resident,” Glover wrote “daughter.” When the arbitration agreement was signed, Glover was
Frizzell’s attorney-in-fact pursuant to a “General/Durable Power of Attorney” executed on
March 1, 2017. The power of attorney specifically provided that Frizzell granted to Glover
the power to act on Frizzell’s behalf with respect to legal actions or any other matter deemed
2 “advisable, necessary, or desirable for the management of [Frizzell’s] affairs.” It is undisputed
that Greystone was not made aware of the power of attorney until after admission.
After hearing arguments, the court entered a blanket order denying the motion without
comment. This appeal followed.
An order denying a motion to compel arbitration is immediately appealable pursuant
to Arkansas Rule of Appellate Procedure–Civil 2(a)(12) (2022). We review a circuit court’s
denial of a motion to compel arbitration de novo on the record. Courtyard Gardens Health &
Rehab., LLC v. Arnold, 2016 Ark. 62, 485 S.W.3d 669.
Arbitration is simply a matter of contract between parties. Hickory Heights Health &
Rehab., LLC v. Cook, 2018 Ark. App. 409, 557 S.W.3d 286. 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. at 5,
557 S.W.3d at 290. The same rules of construction and interpretation apply to arbitration
agreements as apply to agreements generally; thus, we will seek to give effect to the intent of
the parties as evidenced by the arbitration agreement itself. Id., 557 S.W.3d at 290. The
construction and legal effect of an agreement to arbitrate are to be determined by this court
as a matter of law. Id., 557 S.W.3d at 290.
Though there is a presumption in favor of arbitration, such a presumption is triggered
only when an underlying valid and enforceable arbitration agreement exists. Nursing & Rehab.
Ctr. at Good Shepherd, LLC v. Richardson, 2023 Ark. App. 427, 676 S.W.3d 375. As with other
types of contracts, the essential elements for an enforceable arbitration agreement are (1)
3 competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5)
mutual obligations. Salem Place Nursing & Rehab. Ctr., Inc. v. Jefferson, 2023 Ark. App. 237,
667 S.W.3d 543. As the proponent of the arbitration agreement, Greystone has the burden
of proving these essential elements. Id.
Frizzell is not identified anywhere within the four corners of the arbitration
agreement. We have held under similar facts that absent any clear evidence that the resident’s
responsible party was signing in a representative capacity, we construe the ambiguity most
strongly against the drafters of the agreement to conclude that the responsible party is signing
in an individual capacity. See, e.g., Innisfree Health & Rehab, LLC v. Titus, 2021 Ark. App. 403,
636 S.W.3d 781, 785; Innisfree Health & Rehab, LLC v. Jordan, 2020 Ark. App. 518.
In both Titus and Jordan, the spouse of the nursing-home admittee signed the
admission and arbitration agreements on behalf of the admittees as “Responsible Party” and
as “Spouse.” Both spouses possessed powers of attorney; however, this court found it
significant that neither spouse had checked the space indicating that the spouse had provided
a copy of the power of attorney to the facility when the agreement was signed. We held this
created an ambiguity as to the capacity in which the responsible party signed the agreement
and construed that ambiguity against the facility for failing to prove that the responsible
party was acting as an agent rather than as an individual when signing the agreement.
Accordingly, we affirmed the circuit court’s denial of the nursing home’s motion to compel
arbitration because there was no evidence that either of the spouses had signed the
agreements in a representative capacity.
4 Similarly, here, while Glover had a power of attorney when the agreement was signed,
she did not check the box on the agreement reflecting that a copy of her power of attorney
had been provided to the nursing home. Instead, she signed on the line designated for the
responsible party and listed her relationship to the resident as “daughter.”
Greystone attempts to distinguish the facts here from the facts in cases like Titus and
Jordan because it claims, here, the definition of “responsible party” is more specific than
agreements our courts have previously interpreted, leaving no room for ambiguity.
Greystone’s agreement provides,
The “Responsible Party” is the Resident’s legal guardian, if one has been appointed, or the Resident’s attorney-in-fact, if the Resident has executed a power of attorney.
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Cite as 2025 Ark. App. 91 ARKANSAS COURT OF APPEALS DIVISION II No. CV-23-570
GREYSTONE NURSING AND REHAB, LLC; CENTRAL ARKANSAS NURSING Opinion Delivered February 12, 2025 CENTERS, INC.; NURSING CONSULTANTS, INC.; AND MICHAEL APPEAL FROM THE LONOKE MORTON COUNTY CIRCUIT COURT APPELLANTS [NO. 43CV-22-701]
V. HONORABLE BARBARA ELMORE, JUDGE DONNA GLOVER, AS PERSONAL REPRESENTATIVE OF THE ESTATE AFFIRMED OF DOROTHY FRIZZELL, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF DOROTHY FRIZZELL APPELLEE
MIKE MURPHY, Judge This is an appeal from an order of the Lonoke County Circuit Court denying the
motion to compel arbitration filed by appellants Greystone Nursing and Rehab, LLC;
Central Arkansas Nursing Centers, Inc; Nursing Consultants, Inc; and Michael Morton
(collectively referred to herein as “Greystone”). On appeal, Greystone argues the circuit court
erred in denying its motion to compel despite the existence of a valid and enforceable
arbitration agreement. We affirm.
On September 27, 2022, appellee Donna Glover, as personal representative of the
estate of Dorothy Frizzell and on behalf of the wrongful death beneficiaries of Frizzell, filed her complaint alleging that Frizzell was injured as a result of the care and treatment received
at Greystone. Frizzell resided at Greystone from June 1, 2021, to January 19, 2022. The
complaint asserted causes of action for negligence, medical malpractice, breach of the
admission agreement, and deceptive trade practices. Greystone answered, denying the claims
and asserting the existence of an arbitration agreement as a defense. Greystone moved to
compel arbitration, and a hearing was held on the motion on April 21, 2023, establishing
the following facts.
Donna Glover, Frizzell’s daughter, accompanied Frizzell on the day she was admitted
to Greystone. Glover was presented with paperwork in connection with the admission,
including an admission agreement and an incorporated arbitration agreement. The
arbitration clause provided that signing the arbitration agreement was a condition of
admission. The arbitration agreement included a blank line followed by “(Check if
applicable): A copy of my guardianship papers, durable power of attorney or other
documentation has been provided to the Facility and is attached.” There is no checkmark in
the blank. Additionally, the resident line is left blank and was signed by Glover as the
“responsible party.” Where the paperwork asks for “responsible party’s relationship to
resident,” Glover wrote “daughter.” When the arbitration agreement was signed, Glover was
Frizzell’s attorney-in-fact pursuant to a “General/Durable Power of Attorney” executed on
March 1, 2017. The power of attorney specifically provided that Frizzell granted to Glover
the power to act on Frizzell’s behalf with respect to legal actions or any other matter deemed
2 “advisable, necessary, or desirable for the management of [Frizzell’s] affairs.” It is undisputed
that Greystone was not made aware of the power of attorney until after admission.
After hearing arguments, the court entered a blanket order denying the motion without
comment. This appeal followed.
An order denying a motion to compel arbitration is immediately appealable pursuant
to Arkansas Rule of Appellate Procedure–Civil 2(a)(12) (2022). We review a circuit court’s
denial of a motion to compel arbitration de novo on the record. Courtyard Gardens Health &
Rehab., LLC v. Arnold, 2016 Ark. 62, 485 S.W.3d 669.
Arbitration is simply a matter of contract between parties. Hickory Heights Health &
Rehab., LLC v. Cook, 2018 Ark. App. 409, 557 S.W.3d 286. 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. at 5,
557 S.W.3d at 290. The same rules of construction and interpretation apply to arbitration
agreements as apply to agreements generally; thus, we will seek to give effect to the intent of
the parties as evidenced by the arbitration agreement itself. Id., 557 S.W.3d at 290. The
construction and legal effect of an agreement to arbitrate are to be determined by this court
as a matter of law. Id., 557 S.W.3d at 290.
Though there is a presumption in favor of arbitration, such a presumption is triggered
only when an underlying valid and enforceable arbitration agreement exists. Nursing & Rehab.
Ctr. at Good Shepherd, LLC v. Richardson, 2023 Ark. App. 427, 676 S.W.3d 375. As with other
types of contracts, the essential elements for an enforceable arbitration agreement are (1)
3 competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5)
mutual obligations. Salem Place Nursing & Rehab. Ctr., Inc. v. Jefferson, 2023 Ark. App. 237,
667 S.W.3d 543. As the proponent of the arbitration agreement, Greystone has the burden
of proving these essential elements. Id.
Frizzell is not identified anywhere within the four corners of the arbitration
agreement. We have held under similar facts that absent any clear evidence that the resident’s
responsible party was signing in a representative capacity, we construe the ambiguity most
strongly against the drafters of the agreement to conclude that the responsible party is signing
in an individual capacity. See, e.g., Innisfree Health & Rehab, LLC v. Titus, 2021 Ark. App. 403,
636 S.W.3d 781, 785; Innisfree Health & Rehab, LLC v. Jordan, 2020 Ark. App. 518.
In both Titus and Jordan, the spouse of the nursing-home admittee signed the
admission and arbitration agreements on behalf of the admittees as “Responsible Party” and
as “Spouse.” Both spouses possessed powers of attorney; however, this court found it
significant that neither spouse had checked the space indicating that the spouse had provided
a copy of the power of attorney to the facility when the agreement was signed. We held this
created an ambiguity as to the capacity in which the responsible party signed the agreement
and construed that ambiguity against the facility for failing to prove that the responsible
party was acting as an agent rather than as an individual when signing the agreement.
Accordingly, we affirmed the circuit court’s denial of the nursing home’s motion to compel
arbitration because there was no evidence that either of the spouses had signed the
agreements in a representative capacity.
4 Similarly, here, while Glover had a power of attorney when the agreement was signed,
she did not check the box on the agreement reflecting that a copy of her power of attorney
had been provided to the nursing home. Instead, she signed on the line designated for the
responsible party and listed her relationship to the resident as “daughter.”
Greystone attempts to distinguish the facts here from the facts in cases like Titus and
Jordan because it claims, here, the definition of “responsible party” is more specific than
agreements our courts have previously interpreted, leaving no room for ambiguity.
Greystone’s agreement provides,
The “Responsible Party” is the Resident’s legal guardian, if one has been appointed, or the Resident’s attorney-in-fact, if the Resident has executed a power of attorney. If the Resident does not have an appointed guardian, and has not executed a power of attorney, the “Responsible Party” is another individual or family member who agrees to assist the Facility in providing for the Resident’s health, care and maintenance.
Compare this language, then, to the language in other cases, which have generally had
identical language in each of the arbitration agreements. For example, in Titus, the admission
agreement defined “Responsible Party” as “the Resident’s legal guardian, if one has been
appointed, the Resident’s attorney-in-fact, if the Resident has executed a power of attorney,
or some other individual or family member who agrees to assist the facility in providing for
the Resident’s health care, and maintenance.” Titus, 2021 Ark. App. 403, at 3, 636 S.W.3d
at 783. In Sherwood Nursing & Rehabilitation Center, Inc. v. Cazort, and Nursing & Rehabilitation
Center at Good Shepherd, LLC v. Richardson, “Responsible Party” was defined as “your legal
guardian, if one has been appointed, your attorney-in-fact, if you have executed a power of
attorney, or some other individual or family member who agrees to assist the Facility in
5 providing for your health, care and maintenance.” Cazort, 2022 Ark. App. 65, at 2, 642
S.W.3d 214, 216; Richardson, 2023 Ark. App. 427, at 2–3, 676 S.W.3d 375, 377.
Greystone argues that pursuant to its definition, if the resident has executed a power
of attorney, then the responsible party is his or her attorney-in-fact, and a responsible party
can sign as “another individual or family member” only if the resident does not have a
guardian or attorney-in-fact. Greystone claims that Frizzell executed a power of attorney
appointing Glover as her attorney-in-fact, so Glover was acting in that capacity when she
signed the arbitration agreement. We disagree with Greystone that this change is significant
enough to distinguish it from our precedent or even that the change in language is
dispositive.
As we explained in Richardson, 2023 Ark. App. 427, 676 S.W.3d 375, the critical
question is not whether the signor possessed authority but whether the signor was exercising
it when the signor signed the arbitration agreement. Thus, the change in the definition does
not cure the ambiguity. As in the other cases, the box designating evidence of authority was
blank, and when instructed to indicate her authority as responsible party, Glover wrote
“daughter” instead of “attorney in fact.” Given our caselaw and the requirement to construe
the ambiguity most strongly against the drafters of the agreement, we affirm this point.
Greystone also argues that Glover had authority to enter into the arbitration
agreement on behalf of Frizzell. However, given the finding that Glover signed the agreement
in an individual capacity and not on behalf of Frizzell, Greystone’s argument is moot. See
Richardson, 2023 Ark. App. 427, 676 S.W.3d 375 (holding that once the circuit court found
6 that the appellee did not sign the agreement on behalf of her brother, then the question of
what authority she was “clothed with” to bind the decedent became moot).
Affirmed.
BARRETT and HIXSON, JJ., agree.
Hardin, Jesson & Terry, PLC, by: Jeffrey W. Hatfield, Kynda Almefty, Carol Ricketts, and
Kirkman T. Dougherty, for appellants.
Reddick Law, PLLC, by: Matthew D. Swindle and Heather G. Zachary, for appellee.