RENDERED: APRIL 26, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0726-MR
LP RADCLIFF, LLC D/B/A SIGNATURE HEALTHCARE OF NORTH HARDIN REHAB AND WELLNESS CENTER; ASBR HOLDINGS, LLC; JJLA, LLC; LAS PALMAS SNF, LLC; LP MANAGER, LLC; LPMM, INC.; LPSNF, LLC; SHC LP HOLDINGS, LLC; SIGNATURE CLINICAL CONSULTING SERVICES, LLC N/K/A SIGNATURE HEALTHCARE CLINICAL CONSULTING SERVICES, LLC; SIGNATURE CONSULTING SERVICES, LLC N/K/A SIGNATURE HEALTHCARE CONSULTING SERVICES, LLC; AND SIGNATURE HEALTHCARE, LLC APPELLANTS
APPEAL FROM HARDIN CIRCUIT COURT v. HONORABLE LARRY ASHLOCK, JUDGE ACTION NO. 23-CI-00245
ERNEST SIMCOE; ARNP DENISE BARNES; ARNP KRISTA LANHAM; BAPTIST HEALTHCARE SYSTEM, INC. D/B/A BAPTIST HEALTH HARDIN; BERCHAUN NICHOLLS, M.D.; CHRISTOPHER KOEBELE, M.D.; ELIZABETHTOWN EMERGENCY PHYSICIANS, LLC; JULIE LANCASTER AS POWER OF ATTORNEY AND NEXT FRIEND OF ERNEST SIMCOE; LEON BUTLER, JR., M.D.; PHARMERICA CORPORATION OF AMERICA D/B/A PHARMERICA AND PHARMERICA HOLDINGS, INC.; PHARMERICA DRUGS SYSTEMS, LLC; AND SABRA HEALTHCARE REIT, INC. APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, ECKERLE, AND MCNEILL, JUDGES.
CALDWELL, JUDGE: Nearly five years ago, we recognized that “[t]he issue of
whether an attorney-in-fact had authority to enter into an arbitration agreement
upon admission of a principal to a nursing home has been a recurring issue.”
GGNSC Frankfort, LLC v. Richardson, 581 S.W.3d 590, 592 (Ky. App. 2019).
This appeal again presents that vexing issue. Here, the Hardin Circuit Court
concluded a power-of-attorney (“POA”) executed by Ernest Simcoe did not give
his daughter and attorney-in-fact, Julie Lancaster, the ability to sign an optional
arbitration agreement on Simcoe’s behalf upon his admission to a nursing home.
We agree and so affirm.
-2- RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The essential facts are undisputed. In 1998, Simcoe executed a
durable POA which appointed Lancaster as his attorney-in-fact. Among the
relevant provisions of that POA are clauses allowing Lancaster:
2. To demand, sue for, collect, recover and receive all debts, monies, interest and demands whatsoever now due or that may hereafter be or become due to me [Simcoe] (including the right to institute legal proceedings therefore) . . . .
10. To act as my agent to make health care decisions for me if and when I am unable to make my own health care decisions . . . . My agents [sic] also have the authority to talk with health care personnel, get information, and sign forms necessary to carry out those decisions.
11. To do and perform all acts necessary or incidental to the carrying out of the powers conferred . . . .
12. I [Simcoe] hereby further grant unto my said attorney in fact full power in and concerning the above premises and to do any and all acts as set forth above as fully as I could do if I were personally present . . . .
In 2020, Simcoe entered a nursing home facility, LP Radcliff, d/b/a
Signature HealthCARE at North Hardin Rehab & Wellness Center (“Signature”).
At or near the time Simcoe entered Signature, Lancaster signed an optional
arbitration agreement. In other words, Simcoe was not required to assent to the
arbitration agreement to reside at, or receive care from, Signature.
The arbitration agreement provides in relevant part:
-3- The parties . . . agree to resolve each dispute on an individual basis, as follows:
- We will first try and resolve the dispute informally between ourselves.
- If we do not succeed, we will mediate the dispute.
- If mediation is not successful, we will arbitrate the dispute . . . .
The arbitrator will be a neutral person who will decide our dispute, and who we agree . . . [w]ill decide all questions about this agreement, including, but not limited to, whether the person(s) signing it has proper authority and whether it is enforceable . . . . THIS MEANS THAT NO ONE WILL FILE A LAWSUIT AGAINST THE OTHER, AND THAT EACH PARTY IS GIVING UP, OR WAIVING, THE RIGHT TO FILE A LAWSUIT AND HAVE A JUDGE OR A JURY DECIDE THE DISPUTE AND/OR ANY ISSUES ABOUT THIS AGREEMENT. This also means we agree to completely avoid the court system and that we do not want a judge or jury deciding any part of our dispute (except for motions to compel arbitration and any appeals or appellate proceedings therefrom).
(Emphasis original.)
In 2023, Simcoe, individually, and Lancaster, as Simcoe’s attorney-in-
fact (collectively “Plaintiffs”), filed a complaint in the Hardin Circuit Court against
Signature and its related corporate entities (collectively “Signature”), as well as a
hospital and various other medical providers (who are not active participants in this
appeal). The complaint generally alleged Simcoe had been improperly medicated.
-4- Signature filed a motion to compel arbitration, which Plaintiffs
opposed. The trial court denied the motion to compel, its order holding in relevant
part “the language of the POA [is] insufficiently broad to grant Lancaster [the]
power to bind Simcoe to the arbitration agreement.” Signature then filed this
appeal. See KRS1 417.220(1)(a).
ANALYSIS
Preliminary Matters
We have carefully considered the parties’ briefs. Any argument
contained therein not discussed in this opinion lacks relevance, is redundant or is
otherwise unnecessary to analyze and to resolve properly the limited issues before
us. Also, because there is sufficient published Kentucky authority to resolve this
appeal, we decline to address unpublished opinions cited by the parties or opinions
from any federal court except the United States Supreme Court. And we may
affirm for any reason supported by the record, even if our reasoning does not track
precisely that used by the trial court. Mark D. Dean, P.S.C. v. Commonwealth
Bank & Tr. Co., 434 S.W.3d 489, 496 (Ky. 2014).
Standards of Review
Our Supreme Court has held that:
The standard of review of a trial court’s ruling on a motion to compel arbitration is a de novo determination
1 Kentucky Revised Statutes.
-5- of whether the trial judge erred when deciding a factual or legal issue. Energy Home, Div. of S. Energy Homes, Inc. v. Peay, 406 S.W.3d 828, 833 (Ky. 2013); see Ping v. Beverly Enters., Inc., 376 S.W.3d 581, 590 (Ky. 2012). In Ping, we stated “a party seeking to compel arbitration has the initial burden of establishing the existence of a valid agreement to arbitrate.” Id. (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct. 1920, 131 L. Ed. 2d 985, (1995); Louisville Peterbilt, Inc. v. Cox, 132 S.W.3d 850, 857 (Ky. 2004)). Once prima facie evidence of the agreement has been presented, the heavy burden of avoiding the agreement shifts to the other party. Louisville Peterbilt, 132 S.W.3d at 857. Factual findings of the trial court are reviewed under the clearly erroneous standard and are deemed conclusive if supported by substantial evidence.
Green v. Frazier, 655 S.W.3d 340, 345 (Ky. 2022). The trial court did not make
factual findings and the relevant facts appear undisputed, so our review is de novo.
We Decline to Conduct an Unrequested Palpable Error Review of Whether a Court or the Arbitrator Determines Arbitrability Here
Before we may scrutinize the POA to assess whether it gave Lancaster
the ability to sign an arbitration agreement on Simcoe’s behalf, we must address
Signature’s antecedent argument that an arbitrator must decide the issue of whether
these disputes are subject to arbitration – i.e., the issue of arbitrability. Parties may
delegate arbitrability to an arbitrator. See Ally Align Health, Inc. v. Signature
Advantage, LLC, 574 S.W.3d 753, 756 (Ky. 2019). And the arbitration agreement
here provides in relevant part that an arbitrator “[w]ill decide all questions about
-6- this agreement, including, but not limited to, whether the person(s) signing it has
proper authority and whether it is enforceable.”
But Signature has not shown where it preserved this argument for our
review.2 RAP3 32(4) requires the argument section of an Appellant’s opening brief
to contain “at the beginning of the argument a statement with reference to the
record showing whether the issue was properly preserved for review and, if so, in
what manner.” Signature’s brief does not contain preservation statements for some
arguments, though it is obvious that Signature sought to compel arbitration.
However, it is not obvious that Signature specifically argued in the trial court that
the arbitrator had the sole ability to resolve arbitrability issues.
We decline to meticulously examine the multi-volume record to
ascertain preservation of this issue. “It is not the function or responsibility of this
court to scour the record on appeal to ensure that an issue has been preserved.”
Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019). Instead, “[i]f a party
fails to inform the appellate court of where in the record his issue is preserved, the
appellate court can treat that issue as unpreserved.” Ford v. Commonwealth, 628
2 Signature’s failure to provide a preservation statement was not discussed in the parties’ briefs. But that curious silence is not determinative. “Because preservation determines the appropriate standard of review, an appellate court should determine for itself whether an issue is properly preserved. We are not bound by the view of the parties.” Gasaway v. Commonwealth, 671 S.W.3d 298, 311 (Ky. 2023). 3 Kentucky Rules of Appellate Procedure.
-7- S.W.3d 147, 155 (Ky. 2021). We therefore regard the arbitrability arguments as
unpreserved. Consequently, Signature is entitled to relief if it can satisfy the
strenuous palpable error standard, by which a party may receive relief for an
unpreserved issue only if its “substantial rights” were affected by an error so
egregious that it caused a “manifest injustice . . . .” CR4 61.02.
However, palpable error review is a matter of grace, not as of right.
See, e.g., Brank v. Commonwealth, 566 S.W.3d 560, 566 (Ky. App. 2018)
(“Whether to undertake palpable error review is within the sole discretion of the
appellate court.”). And appellate courts typically only conduct a palpable error
review upon request. See, e.g., Shepherd v. Commonwealth, 251 S.W.3d 309, 316
(Ky. 2008). Signature has not made such a request.
In sum, Signature’s brief fails to contain a preservation statement
regarding its arbitrability arguments. Therefore, we deem those arguments
unpreserved, so Signature would be entitled to relief only upon a showing that any
error is a manifest injustice. We are initially skeptical that Signature has shown an
error so egregious that it leaps off the page and cries out for relief – the baseline
showing a party must make for an error to be palpable. See, e.g., Johnson v.
Commonwealth, 676 S.W.3d 405, 417 (Ky. 2023). However, under these facts, we
respectfully decline to conduct a sua sponte palpable error review of Signature’s
4 Kentucky Rules of Civil Procedure.
-8- arbitrability arguments. We strongly caution counsel to scrutinize RAP closely
and to follow its requirements scrupulously in all future cases.
Ping Applies Despite Recent Legislation
The lodestar Kentucky precedent regarding the authority of an
attorney-in-fact to sign an arbitration agreement on behalf of a principal is Ping,
which has been cited over 200 times. In Ping, our Supreme Court held that
“arbitration agreements are enforced no less rigorously than are other contracts and
according to the same standards and principles.” 376 S.W.3d at 589. The Court
noted the then-current POA statute did “not address what authority may be
granted” to an attorney-in-fact, so “[t]he scope of that authority is thus left to the
principal to declare, and generally that declaration must be express.” Id. at 592.
Thus, “an agent’s authority under a power of attorney is to be construed with
reference to the types of transaction expressly authorized in the document and
subject always to the agent’s duty to act with the utmost good faith.” Id. (internal
quotation marks and citation omitted).
In short, a court must closely scrutinize the POA to determine if it
vested the attorney-in-fact with the ability to sign an arbitration agreement on
behalf of a principal. That laborious, time-consuming process has led to a plethora
of extremely fact-specific appellate court decisions. However, Ping remains the
-9- POA and arbitration lodestar. See, e.g., LP Louisville East, LLC v. Patton, 651
S.W.3d 759, 770 (Ky. 2020) (“Thus, we find Ping’s guidance dispositive . . . .”).
But Signature contends Ping was superseded by legislation which
took effect in 2020. Specifically, instead of Ping, Signature argues this case is
governed by KRS 457.350, which provides in relevant part that “[u]nless the
power of attorney otherwise provides, language in a power of attorney granting
general authority with respect to claims and litigation authorizes the agent to . . .
[s]ubmit to alternative dispute resolution . . . .” Thus, under KRS 457.350, Ping’s
focus on whether a POA includes language granting the agent the express authority
to sign an optional arbitration agreement is seemingly inverted so that the agent
inherently possesses that authority by virtue of having been granted general
authority regarding litigation unless the POA expressly excludes it.
The parties vigorously dispute whether KRS 457.350 applies to this
POA, which was executed over twenty years before the statute took effect, because
Kentucky “adhere[s] to a strong general presumption against retroactive
application of statutes absent a clear expression of such intent within the statute
. . . .” City of Villa Hills v. Kentucky Retirement Systems, 628 S.W.3d 94, 104 (Ky.
2021). Accord KRS 446.080(3) (“No statute shall be construed to be retroactive,
unless expressly so declared.”). Signature contends KRS 457.350 applies to
Simcoe’s POA because KRS 457.460(1) (as amended in 2020) provides that KRS
-10- Chapter 457 “applies to a power of attorney created before, on, or after July 15,
2020 . . . .”
KRS 457.350 has the potential to alter how courts analyze the abilities
of attorneys-in-fact to bind their principals to arbitration agreements. But we
conclude KRS 457.350 does not apply here because the POA did not grant
Lancaster “general authority with respect to claims and litigation . . . .”
What constitutes “general authority” is not defined in KRS Chapter
457. However, the term general authority has “acquired a peculiar and appropriate
meaning in the law,” so KRS 446.080(4) requires us to construe the term according
to that specialized meaning. Specifically, general authority means “[a] general
agent’s authority, intended to apply to all matters arising in the course of the
principal’s business.” BLACK’S LAW DICTIONARY (11th ed. 2019) (defining
general authority as a discrete term within the definition of authority). Thus, we
must determine whether the POA at issue provides Lancaster with authority over
“all matters” pertaining to litigation involving Simcoe. It does not.
The POA grants Simcoe the ability to “demand, sue for, collect,
recover and receive all debts, monies, interest and demands whatsoever now due or
that may hereafter be or become due to me (including the right to institute legal
proceedings therefore).” But our Supreme Court has explicitly rejected a claim
-11- that a strikingly similar clause in a POA authorized the attorney-in-fact to sign an
arbitration agreement on behalf of the principal:
Turning now to our interpretation of the Wellner POA’s specific language, we note again that Kindred relied upon [the following] provision[] of the Wellner POA as authority for Beverly Wellner’s execution of Kindred’s pre-dispute arbitration agreement: 1) the power “to demand, sue for, collect, recover and receive all debts, monies, interest and demands whatsoever now due or that may hereafter be or become due to me (including the right to institute legal proceedings therefor)” . . . .
The act that required supporting authorization was her [the agent’s] execution of the pre-dispute arbitration agreement in the context of admitting him [the principal] to a nursing home. That act was in no way connected to the pursuit of any claim of [the principal] . . . . [T]he act of executing a pre-dispute arbitration agreement upon admission to a nursing home had nothing at all to do with “demand[ing], su[ing] for, collect[ing], recover[ing] and receiv[ing] all . . . demands whatsoever” and “institut[ing] legal proceedings,” and even settling existing claims by arbitration or litigation . . . .
Kindred Nursing Centers Limited Partnership v. Wellner, 533 S.W.3d 189, 193-95
(Ky. 2017) (footnote omitted). We must follow Wellner. SCR5 1.030(8)(a).
Our conclusion that this POA did not provide Lancaster with “general
authority” over litigation pertaining to Simcoe is perhaps best shown by listing
examples of POAs which unmistakably give an attorney-in-fact “general authority”
5 Rules of the Kentucky Supreme Court.
-12- over his or her principal’s litigation affairs. For example, the sample POA
provided by the General Assembly in KRS 457.420 contains a section titled
“GRANT OF GENERAL AUTHORITY[,]” within which is a space for the
granting principal to check a box indicating the attorney-in-fact has “general
authority” regarding “Claims and Litigation[.]” Similarly, a template for a durable
POA contained in a treatise on wills and trusts in Kentucky contains a clause
sweepingly authorizing the attorney-in-fact:
To institute, prosecute, defend, abandon, compromise, arbitrate, settle and dispose of any claim in favor of or against me or any property interests of mine; to collect [a] receipt for any claim or settlement proceeds and waive or release all rights of mine; to employ attorneys and others and enter into contingency agreements and other contracts as necessary in connection with litigation; and, in general, to exercise all powers with respect to claims and litigation which I could if present and under no disability.
L. RUSH HUNT & LARA RAE HUNT, BALDWIN’S KY. WILLS AND TRUSTS § 16:3
(May 2023 Update).
We also reject Signature’s argument that the POA granted Lancaster
the authority to agree to arbitration on Simcoe’s behalf by virtue of KRS
457.245(3), which was also enacted in 2020. That statute provides in relevant part
that “if a power of attorney grants to an agent authority to do all acts that a
principal could do, the agent has the general authority described in KRS 457.270 to
-13- 457.390.” We shall discuss the residual powers clauses of Simcoe’s POA again
later in this Opinion, but they are not as broad as Signature asserts.
Instead, the POA grants Lancaster the authority to “do and perform all
acts necessary or incidental to the carrying out of the powers conferred” and to
have “full power in and concerning the above premises and to do any and all acts
as set forth above as fully as I could do if I were personally present . . . .” The
residual powers given to Lancaster pertained only to “carrying out the powers
conferred” or “set forth above” in the POA. In other words, the POA provides
Lancaster only with the residual authority to perform all acts incidental or
necessary to carrying out the powers contained elsewhere in the agreement; the
POA does not sweepingly provide Lancaster with carte blanche to “do all acts that
a principal could do.”
By contrast, we held that a POA which granted an attorney-in-fact the
unfettered power to “generally do and perform for [the principal] all that [the
principal] may do if acting in [the principal’s] own person” was sufficient to permit
the attorney-in-fact to sign an arbitration agreement on behalf of the principal in
Richardson, 581 S.W.3d at 594. In short, because the POA here does not give
Lancaster the “authority to do all acts that a principal could do,” KRS 457.245(3)
is inapplicable, regardless of whether it applies retroactively.
-14- Distilled simply, Simcoe did not provide Lancaster with “general
authority” over all of Simcoe’s litigation matters. Therefore, KRS 457.350 does
not apply, regardless of its retroactivity.
Examination of the POA
We now must scrutinize the POA under the principles of Ping and its
progeny to determine whether the document contains language authorizing
Lancaster to sign an optional arbitration agreement on Simcoe’s behalf. We agree
with the trial court that it does not.
Three sections of the POA are at issue: a litigation clause, a healthcare
decision-making clause and a residual powers clause. As to the litigation clause,
we are mainly guided by our Supreme Court’s analysis of a strikingly similar
clause in Wellner, supra. In Wellner, the POA granted the attorney-in-fact “1) the
power ‘to demand, sue for, collect, recover and receive all debts, monies, interest
and demands whatsoever now due or that may hereafter be or become due to me
[the principal] (including the right to institute legal proceedings therefor)’ . . . .”
Wellner, 533 S.W.3d at 193. The litigation authority section of the POA at hand is
fundamentally identical.
Our Supreme Court held “the act of executing a pre-dispute arbitration
agreement upon admission to a nursing home had nothing at all to do with
demand[ing], su[ing] for, collect[ing], recover[ing] and receiv[ing] all . . . demands
-15- whatsoever and institut[ing] legal proceedings, and even settling existing claims by
arbitration or litigation.” Id. at 193-94 (internal quotation marks and citation
omitted). Instead, the ‘“act’ that required authorization was signing an agreement
which makes no reference at all to [the principal’s] property and instead pertains
exclusively to his constitutional rights.” Id. at 193. Accord Extendicare Homes,
Inc. v. Whisman, 478 S.W.3d 306, 323-24 (Ky. 2015), overruled on other grounds
by Kindred Nursing Centers Ltd. Partnership v. Clark, 581 U.S. 246, 137 S. Ct.
1421, 197 L. Ed. 2d 806 (2017):
Extendicare’s position is that the “institute or defend suits” language of the Adams/Whisman POA is a general authorization for engaging in litigation, which implicitly provides the authority to do whatever is incidental to the suit or reasonably necessary to achieve the purpose of the litigation . . . . However, we cannot rationally say that signing an arbitration agreement was “incidental to” a claim concerning Adams’ property rights when the specific right, to which the claim is allegedly “incidental,” did not exist. An act cannot be “incidental” to something that does not exist or has not happened. An arbitration agreement signed before a cause of action exists cannot be “reasonably necessary” to the resolution of that cause. Whisman’s execution of the arbitration agreement was not “incidental” to or “reasonably necessary” in the furtherance of any claim at all concerning Adams’ property rights.
We are bound by Wellner.
As such, we must reject Signature’s argument that it is irrelevant that
the arbitration agreement here was signed prior to the existence of any dispute
-16- between Simcoe and Signature. To the contrary, the signing of an arbitration
agreement prior to the eruption of a dispute is a linchpin of Wellner. In fact, the
Court specifically held that POA would have authorized the attorney-in-fact to
submit an already pending dispute to arbitration but did not authorize the agent to
agree to arbitrate disputes which had not yet arisen. Wellner, 533 S.W.3d at 193.
Indistinguishable POAs must be construed indistinguishably.
Therefore, it is plain that the “demand and sue” clause of the POA at hand did not
authorize Lancaster to sign an optional, pre-dispute arbitration contract for Simcoe.
Turning to the healthcare clause, the POA authorized Lancaster to
“act as [Simcoe’s] agent to make health care decisions for me if and when I am
unable to make my own health care decisions.” The POA also authorized
Lancaster to “sign forms necessary to carry out those decisions.” Id.
First, it is unclear whether Simcoe was unable to make his own
healthcare decisions. Second, our Supreme Court has held that signing an optional
arbitration agreement is not a healthcare decision. Ping, 376 S.W.3d at 593;
Patton, 651 S.W.3d at 769. Third, Lancaster was only authorized to sign forms
“necessary to carry out those [healthcare] decisions[,]” but the arbitration
agreement was not necessary since it was wholly optional. The healthcare
decision-making powers granted to Lancaster did not authorize her to sign an
optional, pre-dispute arbitration agreement on Simcoe’s behalf.
-17- Patton, supra, relied upon by Signature, is materially distinguishable
because the arbitration agreement in that case was mandatory. 651 S.W.3d at 762.
Our Supreme Court emphasized the distinction between an attorney-in-fact’s
authorization to sign a mandatory arbitration agreement versus an optional one:
Because Tommy granted his agent all powers as are necessary or desirable to provide for his care, which would encompass Tommy’s admission into a nursing home when he was no longer able to physically care for himself, and because Signature required a facility resident or his agent to agree to arbitration of future disputes, we are presented with a circumstance different from, but acknowledged in, Ping. Here, in accordance with Ping and its expressed principles of agency, we apply the rule that when an agreement to arbitrate is presented as a condition of admission to a nursing home, unless otherwise agreed, a power of attorney expressing general authority to make necessary health care decisions includes the incidental or reasonably necessary authority to enter that agreement. In light of Kenneth’s authority to sign a necessary, non-optional arbitration agreement in order to obtain Tommy’s admittance into Signature’s facility, we must conclude the Arbitration Agreement is valid and enforceable. Thus, we find Ping’s guidance dispositive of this issue, albeit not in Kenneth’s favor.
Patton, 651 S.W.3d at 770 (emphasis in original).
Finally, we reject Signature’s arguments that the POA’s residual
powers clause authorized Lancaster to sign the optional arbitration agreement on
Simcoe’s behalf. Specifically, sections eleven and twelve of the POA provide in
relevant part that Lancaster had the authority “[t]o do and perform all acts
necessary or incidental to the carrying out of the powers conferred” and “to do
-18- any and all acts as set forth above as fully as I [Simcoe] could do if I were
personally present . . . .” (emphasis added). Contrary to Signature’s arguments,
those clauses expressly authorized Lancaster to only perform acts necessary or
incidental to the “powers conferred” or “set forth” elsewhere in the POA. As we
have discussed, the remainder of the POA did not confer upon Lancaster the power
to sign an arbitration agreement on Simcoe’s behalf. Moreover, the ability to sign
an arbitration agreement was not “set forth above” in the residual powers clauses.
Other cases cited by Signature are distinguishable. For example, we
held that a POA which gave the attorney-in-fact the vast authority to “generally do
and perform for [the principal] all that I may do if acting in my own person” was
sufficient to allow the attorney-in-fact to sign an optional arbitration agreement on
behalf of the principal. Richardson, 581 S.W.3d at 591 (bold and all caps omitted).
The POA at hand does not contain similarly sweeping language.
“Regardless of the nature of the power conferred, POAs will be given
a strict and narrow interpretation.” Golden Gate National Senior Care, LLC v.
Dolan, 579 S.W.3d 874, 879 (Ky. App. 2019). Here, “[t]he express grant of
authority and the express limitations on that authority renders the . . . POA
insufficiently broad to confer the power on [Lancaster] to bind [Simcoe] to an
[optional, pre-dispute] arbitration agreement.” Id. at 880. Therefore, the trial court
correctly denied Signature’s motion to compel arbitration.
-19- CONCLUSION
For the foregoing reasons, the Hardin Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
A. Pete Pullen Edmund J. Benson Shem D. Beard Stephen F. Soltis Louisville, Kentucky Lexington, Kentucky
-20-