Rotan v. Unlimited Development, Inc.

2023 IL App (5th) 220182-U

• Court: Appellate Court of Illinois
• Decided: February 22, 2023
• Docket: 5-22-0182
• Status: Unpublished

Opinion

2023 IL App (5th) 220182-U NOTICE NOTICE Decision filed 02/22/23. The This order was filed under text of this decision may be NO. 5-22-0182 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

EDITH ELAINE ROTAN, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Williamson County. ) v. ) No. 21-L-65 ) UNLIMITED DEVELOPMENT, INC., and UDI #1 d/b/a ) Parkway Manor, ) Honorable ) Jeffrey A. Goffinet, Defendants-Appellants. ) Judge, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Justice McHaney ∗ concurred in the judgment. Justice Cates dissented.

ORDER

¶1 Held: The trial court’s order denying defendants’ motion to compel arbitration and stay the proceedings is reversed where the claim is governed by federal law, the arbitration agreement delegated arbitrability to the arbitrator, and no argument related to the delegation clause was presented.

¶2 Defendants, Unlimited Development, Inc., and UDI #1 d/b/a Parkway Manor, appeal the

trial court’s order denying their motion to compel arbitration and stay the proceedings. We reverse.

∗ Justice Wharton heard oral argument on this case. Upon his retirement, Justice McHaney was substituted and has reviewed the record, briefs, and audio recording of the oral argument. 1 ¶3 I. BACKGROUND

¶4 On June 1, 2021, plaintiff, Edith Rotan, filed a personal injury complaint asserting claims,

inter alia, pursuant to the Illinois Nursing Home Care Act (210 ILCS 45/1-101 (West 2020)),

alleging negligence against defendants related to her residency at Parkway Manor on or after June

11, 2019. On August 9, 2021, defendants moved to compel arbitration and stay the proceedings

pursuant to the residency agreement and alleged addendums thereto, one of which contained an

executed, two-page, stand-alone arbitration agreement. The motion was supported by an affidavit,

copies of the executed documents, and a memorandum of law that argued the incorporation of the

American Arbitration Association (AAA) rules within the arbitration agreement mandated the

issues of arbitrability and scope be determined by an arbitrator, not a court. The contention was

supported by numerous cases from almost every federal circuit (Belnap v. Iasis Healthcare, 844

F.3d 1272, 1290 (10th Cir. 2017), Apollo Computer, Inc. v. Berg, 886 F.2d 469, 473 (1st Cir.

1989); Contec Corp. v. Remote Solution Co., 398 F.3d 205, 208 (2d Cir. 2005), Cooper v. WestEnd

Capital Management L.L.C., 832 F.3d 534, 546 (5th Cir. 2016), Fallo v. High-Tech Institute, 559

F.3d 874, 878 (8th Cir. 2009), Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015)) as

well as two unpublished federal district court decisions issued by the Northern District of Illinois.

On October 21, 2021, defendant also filed a notice of filing persuasive authority citing Taylor v.

UDI #4, LLC, 2021 IL App (4th) 210057-U.

¶5 On November 29, 2021, plaintiff filed her response arguing that neither the residency

agreement, nor the arbitration agreement, were relevant to her claim of action against defendants,

and, even if they were, the documents did not relate to each other. Relying on Peterson v.

Residential Alternatives of Illinois, Inc., 402 Ill. App. 3d 240 (2010), plaintiff argued that

2 defendant’s failure to incorporate by reference the arbitration agreement into the residency

agreement doomed the motion to compel arbitration.

¶6 On December 1, 2021, defendants filed a reply that addressed the arguments raised, as well

as those not raised, by plaintiff. Defendants noted that no argument claiming unconscionability,

fraud, or duress was raised, nor was any argument presented regarding the delegation clause.

Additional replies, filed by the parties on January 10, 2022, and January 12, 2022, provided no

new arguments. On February 18, 2022, the parties presented oral arguments during which plaintiff

conceded that, if the arbitration clause was valid, the Federal Arbitration Act (9 U.S.C. § 1 et seq.

(2018)) applied.

¶7 On February 22, 2022, the trial court issued an order finding it had the authority to

determine arbitrability pursuant to Hartz v. Brehm Preparatory School, Inc., 2021 IL App (5th)

190327, the residency agreement and the arbitration agreement failed to reference or incorporate

each other, and therefore could not be construed as one document pursuant to Peterson, 402 Ill.

App. 3d at 246. Thereafter, the court denied defendants’ motion to compel. Defendants appealed.

¶8 II. ANALYSIS

¶9 An order to compel or stay arbitration is injunctive in nature and subject to interlocutory

appeal under Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017). Salsitz v. Kreiss, 198 Ill.

2d 1, 11 (2001). “Generally, the standard of review for a decision on a motion to compel arbitration

is whether there was a showing sufficient to sustain the circuit court’s order.” Keefe v. Allied Home

Mortgage Corp., 393 Ill. App. 3d 226, 229 (2009). However, if the trial court’s order is based on

“construction of the arbitration agreement,” such appeal raises a question of law “subject to a

de novo standard.” Peach v. CIM Insurance Corp., 352 Ill. App. 3d 691, 694 (2004). We agree

3 with the parties’ assertions that the circuit court’s decision was based solely on legal analysis.

Therefore, our review is de novo.

¶ 10 The Federal Arbitration Act (FAA) empowers both state and federal courts to compel

arbitration and stay any action in that court. 9 U.S.C. § 3 (2018); Buckeye Check Cashing, Inc. v.

Cardegna, 546 U.S. 440, 449 (2006). The Illinois Supreme Court addressed the purpose of the

FAA and provided guidance on its applicability in nursing home cases when holding that an anti-

waiver provision of the Nursing Home Care Act was preempted by the FAA, stating:

“The basic purpose of the FAA is to overcome the historical reluctance of courts to

enforce agreements to arbitrate. Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 270

(1995). When Congress passed the FAA in 1925, it intended courts to enforce agreements

by parties to arbitrate and to place such agreements on the same footing as other contracts.

Allied-Bruce, 513 U.S. at 270-71. A state statute stands as an obstacle to the purposes of

the FAA if it targets arbitration provisions for disfavored treatment not applied to other

contractual terms generally. Allied-Bruce, 513 U.S. at 281. Similarly, state provisions form

an obstacle if they ‘take their meaning from the fact that a contract to arbitrate is at issue,

or frustrate arbitration, or provide a defense to it.’ Securities Industry Ass’n v. Connolly,

883 F.2d 1114, 1123 (1st Cir. 1989).” Carter v. SSC Odin Operating Co., 237 Ill. 2d 30,

41 (2010).

¶ 11 Section 2 of the FAA states:

“A written provision in *** a contract *** to settle by arbitration a controversy

thereafter arising out of such contract or transaction *** shall be valid, irrevocable, and

enforceable, save upon such grounds as exist at law or in equity for the revocation of any

contract ***.” 9 U.S.C. § 2 (2018).

4 See also AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339-40 (2011).

¶ 12 Such grounds include “ ‘generally applicable contract defenses, such as fraud, duress, or

unconscionability,’ but not *** defenses that apply only to arbitration or that derive their meaning

from the fact that an agreement to arbitrate is at issue.” Id. at 339 (quoting Doctor’s Associates,

Inc. v. Casarotto, 517 U.S. 681, 687 (1996)). “A recurring question under § 2 is who should decide

whether ‘grounds … exist at law or in equity’ to invalidate an arbitration agreement.” Preston v.

Ferrer, 552 U.S. 346, 353 (2008).

¶ 13 Typically, in deciding whether a party must be compelled to arbitrate under the FAA, the

court first considers (1) whether the parties are bound by a given arbitration clause (arbitrability)

and, if so, (2) whether the particular dispute falls within the scope of that valid agreement (scope).

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002). However, an arbitration agreement

may contract gateway issues, including arbitrability, scope, and in some instances, enforceability

due to alleged unconscionability, 1 to the arbitrator. Henry Schein, Inc. v. Archer & White Sales,

Inc., 586 U.S. ___, ___, 139 S. Ct. 524, 529 (2019) (citing Rent-A-Center, West, Inc. v. Jackson,

561 U.S. 63, 68-70 (2010); see also First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943-

44 (1995)). When the issues are delegated to the arbitrator, the court must respect that choice even

“if the argument that the arbitration agreement applies to the particular dispute is ‘wholly

groundless.’ ” Id. at ___, 139 S. Ct. at 528.

¶ 14 The type of gateway provision at issue is also relevant. For example, if the issue is scope,

i.e., whether a particular issue is covered by the arbitration agreement, and the arbitration clause

1 More specifically, if contractual validity is at issue due to unconscionability involving the contract as a whole, the validity issue must be decided by an arbitrator. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967). Conversely, if the validity issue raised is solely related to the arbitration clause in a larger contract, or the delegation clause in a stand-alone arbitration agreement, the issue must be decided by the court. Jackson, 561 U.S. at 70-72. 5 language regarding whether scope was delegated to the arbitrator is ambiguous, the issue must be

determined by the arbitrator. Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62

(1995). Conversely, “the ‘question of arbitrability,’ ” i.e., whether the parties agreed to submit a

dispute to arbitration, is “ ‘an issue for judicial determination [u]nless the parties clearly and

unmistakably provide otherwise.’ ” (Emphasis in original.) Howsam, 537 U.S. at 83-84 (quoting

AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649 (1986)).

“Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to

arbitrate that dispute [citations], *** the question [of] ‘who has the primary power to decide

arbitrability’ turns upon what the parties agreed about that matter.” (Emphasis in original.) First

Options, 514 U.S. at 943. When a contract delegates arbitrability to an arbitrator, courts must give

full meaning to that delegation and refrain from passing on any issues of arbitrability. Henry

Schein, Inc., 586 U.S. at ___, 139 S. Ct. at 529-30.

¶ 15 Here the relevant arbitration language stated as follows:

“Without limiting any rights set forth in other provisions of this AGREEMENT,

any and all disputes arising hereunder shall be submitted to binding arbitration and not to

a court for determination. Arbitration shall commence after written notice is given from

either party to the other, such arbitration shall be accomplished expeditiously in the county

and state where the property which is the subject of this AGREEMENT is located[ ] and

shall be conducted in accordance with the rules of the American Arbitration Association

(‘AAA’). The arbitration shall be conducted by three (3) arbitrators, one of whom shall be

appointed by FACILITY and one of whom shall be appointed by RESIDENT. ***

Notwithstanding the parties[’] intent to submit any controversy or claim arising out

of or relating to this AGREEMENT or any other document signed or initialed in connection

6 with this AGREEMENT to arbitration, in the event that a court of competent jurisdiction

shall determine[,] or a relevant law shall provide that a particular dispute is not subject to

the arbitration provisions of this Section, then the parties agree to the following provisions:

a. Each party believes that justice will be served if issues regarding this

AGREEMENT are heard by a judge in a court proceeding, and not a jury ***. ***

b. The party prevailing in such dispute shall be entitled to recover all costs

incurred, including reasonable attorney’s fees and costs ***.”

¶ 16 The trial court denied defendant’s motion to compel arbitration and stay the proceedings

after first relying on Hartz, 2021 IL App (5th) 190327, to find it had the authority to address

arbitrability and later on Peterson, 402 Ill. App. 3d 240, finding the arbitration agreement was not

incorporated into the nursing home agreement. Given the precedent established in Hartz, as well

as the nearly identical facts shown in Peterson with those in the current case, we are compelled to

explain why Hartz is distinguishable to such extent its relevance is questionable and reliance on

Peterson is unwarranted.

¶ 17 In Hartz, the plaintiff sued defendants after her child was expelled from Brehm Preparatory

School (Brehm). Hartz, 2021 IL App (5th) 190327, ¶ 11. Brehm moved to dismiss the lawsuit

based on an arbitration clause contained within the admission contract. Id. In response, plaintiffs

argued that the arbitration clause, as well as the entire Brehm contract, were substantively and

procedurally unconscionable. Id. ¶ 12. They further argued that their tort claims were not subject

to the arbitration clause. Id. After finding the contract lacked mutuality, the trial court denied

Brehm’s request for dismissal and Brehm appealed. Id. ¶¶ 13-14. On appeal, this court found that

“the trial court’s inquiry [was] limited to ‘certain gateway matters,’ such as whether the parties

[had] a valid arbitration clause, and if so, whether the issues in dispute [fell] within the scope of

7 the arbitration clause.” Id. ¶ 42 (citing Buckeye Check Cashing, Inc., 546 U.S. at 444-46, and

Jensen v. Quik International, 213 Ill. 2d 119, 123-24 (2004)). The court further noted that

“challenges to the validity of the contract as a whole, rather than the arbitration clause within the

contract, [were] matters to be considered by the arbitrator in the first instance.” Id. (citing Buckeye

Check Cashing, Inc., 546 U.S. at 445-46, and Bess v. DirecTV, Inc., 381 Ill. App. 3d 229, 236

(2008)).

¶ 18 In Hartz, although the arbitration clause contained language adopting the “Commercial

Rules of the American Arbitration Association” (id. ¶ 8), Brehm presented no argument that those

rules delegated arbitrability to the arbitrator as was argued by defendants herein. Without such

argument, this court’s finding in Hartz, that the trial court was required to determine arbitrability

(id. ¶ 42), was correct. Further, since the plaintiffs in Hartz argued that the arbitration clause was

unconscionable, and Brehm also failed to argue that validity of the contract was also to be

determined by the arbitrator pursuant to the AAA rules, the appellate court’s remand order

requiring the trial court to consider the unconscionability issue as to the arbitration clause (id. ¶ 56)

was also correct.

¶ 19 Here, plaintiff presented no claim of unconscionability, or any contract defense, and

therefore, the issue is whether the trial court had the authority to determine arbitrability. Unlike

the defendant in Hartz, defendant here relies on the AAA rules to argue the trial court did not have

the authority to determine arbitrability. Accordingly, Hartz, provides no guidance.

¶ 20 The trial court’s reliance on Peterson, 402 Ill. App. 3d 240, is also misplaced. In Peterson,

plaintiff filed an amended two-count complaint alleging negligent acts and omissions by the

nursing home. Id. at 241. In response, the nursing home initially filed an answer; however, one

month later, the nursing home filed a motion to dismiss and compel arbitration. Id. at 242. The

8 motion was based on a stand-alone arbitration agreement executed by the parties that was attached

as an exhibit to the nursing home’s motion. Id. Some of the language in Peterson was identical to

that seen in the case at bar. Id. at 242-43. After additional briefing on the arbitration issue, the trial

court found the arbitration contract was enforceable and granted the nursing home’s motion to

dismiss and compel arbitration. Id. at 243.

¶ 21 On review, the Peterson court first addressed the fact that the arbitration contract was not

contained within the nursing home contract. Id. at 245. After noting Illinois Supreme Court

interpretive principle addressing documents “executed at the same time, by the same parties, and

for the same purpose are regarded as one contract under certain circumstances” (id. (citing

Gallagher v. Lenart, 226 Ill. 2d 208, 233 (2007))), Peterson also required the documents to

specifically incorporate each other, in order for the documents to be construed together. Id.

¶ 22 The Peterson court also relied on language in Sandra Frocks, Inc. v. Ziff, 397 Ill. 497, 504

(1947), indicating that documents executed simultaneously could not operate as a “unified

agreement when ‘a contrary contention’ ” was manifested. Id. Thereafter, the Peterson court held

that the lack of any litigation restriction in the nursing home agreement was contrary to the

arbitration contract containing litigation restrictions and such dichotomy triggered the exception

language stated in Ziff. Id. at 246.

¶ 23 It is unnecessary to address the propriety of the Peterson analysis because Peterson was

decided by the Third District under the Illinois Uniform Arbitration Act (710 ILCS 5/1 et seq.

(West 2008)). See Peterson, 402 Ill. App. 3d at 245. As such, the case is persuasive authority, at

most. Conversely, the case at bar is governed by the FAA, and therefore, we are required to follow

Supreme Court precedent discussed below. See Ammons v. Canadian National Ry. Co., 2019 IL

9 124454, ¶ 18 (“ ‘United States Supreme Court interpretation of federal law is clearly binding on

this court.’ ” (quoting State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL 113836, ¶ 33)).

¶ 24 We also note the timing of the Peterson decision compared with the timing of the United

States Supreme Court decision in Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010).

Peterson was issued on June 7, 2010, exactly two weeks prior to the June 21, 2010, decision in

Rent-A-Center. As such, Peterson did not have the benefit of the United States Supreme Court’s

guidance on interpreting stand-alone arbitration contracts. Given the differences between the

decisions in Peterson and Rent-A-Center, we cannot state with certainty that Peterson would not

have been decided differently if that court had the benefit of Rent-A-Center’s guidance.

Regardless, we find Rent-A-Center both instructive and binding.

¶ 25 Just as seen in the case at bar, in Rent-A-Center, the arbitration agreement was not

contained within a larger contract but was instead a separate, stand-alone, arbitration agreement.

Rent-A-Center, 561 U.S. at 72. The Court explained that the delegation provision was “the

provision that gave the arbitrator ‘exclusive authority to resolve any dispute relating to the …

enforceability … of this Agreement.’ ” Id. at 71. “The ‘remainder of the contract’ ” was the

remainder of the “agreement to arbitrate claims arising out of Jackson’s employment with Rent-

A-Center.” Id. Because section 2 of the FAA operated “on the specific ‘written provision’ to ‘settle

by arbitration a controversy’ that the party seeks to enforce,” the Court found that “unless Jackson

challenged the delegation provision specifically,” the Court “must treat [the arbitration agreement]

as valid under § 2, and must enforce it under §§ 3 and 4, leaving any challenge to the validity of

the Agreement as a whole for the arbitrator.” Id. at 72. After examining Jackson’s challenges to

the arbitration clause, the Court ultimately found that Jackson did not specifically challenge the

10 delegation provision until the case reached the United States Supreme Court and therefore found

the challenge was “too late.” Id. at 72-76.

¶ 26 Applying the analysis in Rent-A-Center to the case at bar, we initially find it was

unnecessary for the trial court to determine whether the stand-alone arbitration agreement was part

of the nursing home admission documents. Instead, the trial court needed only to determine if any

challenge to the delegation provision contained within the arbitration agreement was presented.

Here, plaintiff concedes that no delegation provision challenge was raised, and therefore, all that

was left for the trial court was to determine whether the arbitration agreement delegated

arbitrability and scope, i.e., the gateway issues, to the arbitrator.

¶ 27 Here, two provisions of the arbitration agreement potentially address who will determine

arbitrability. The first is found in the contract language that stated, “any and all disputes arising

hereunder” were to be “submitted to binding arbitration.” The second is based on the incorporation

of the AAA rules into the arbitration agreement. If either of these clauses provide “clear and

unmistakable” evidence of an agreement to delegate arbitrability to the arbitrator, plaintiff must

be compelled to arbitration. First Options, 514 U.S. at 944.

¶ 28 We do not find the parties’ agreement to arbitrate “any and all disputes” arising under the

arbitration agreement or “any other document signed or initialed in connection with” the arbitration

agreement sufficient in and of itself to evidence a “clear and unmistakable” delegation of

arbitrability to the arbitrator. While rules of contract interpretation require this court “to give full

effect to the parties’ choice of that word ‘any’ ” (Dustman v. Advocate Aurora Health, Inc., 2021

IL App (4th) 210157, ¶ 53), “the law treats silence or ambiguity about the question ‘who

(primarily) should decide arbitrability’ differently from the way it treats silence or ambiguity about

the question ‘whether a particular merits-related dispute is arbitrable because it is within the scope

11 of a valid arbitration agreement.’ ” (Emphases in original.) First Options, 514 U.S. at 944-45. As

noted above, unlike scope, which has a presumption that the issue will be decided by an arbitrator

(Mastrobuono, 514 U.S. at 62), arbitrability has no presumption and the Supreme Court requires

“clear and unmistakable” delegation of this issue to the arbitrator. AT&T Technologies, Inc., 475

U.S. at 649. As no additional language was included in the arbitration agreement to delegate

arbitrability in the “any and all dispute” language, and no definition of “dispute” was provided, we

find this language insufficient, in and of itself, to delegate the issue of arbitrability to the arbitrator.

¶ 29 The second provision, which incorporated the AAA rules, is more compelling. Pursuant to

Rule 1(a) of the AAA rules, “[t]he parties shall be deemed to have made [the AAA] rules a part of

their arbitration agreement when they have provided for arbitration by the [AAA] ***.” AAA

Commercial Arbitration Rules, R-1(a). The AAA rules empower the arbitrator “to rule on his or

her own jurisdiction, including any objections with respect to the existence, scope, or validity of

the arbitration agreement or to the arbitrability of any claim or counterclaim” and “to determine

the existence or validity of a contract of which an arbitration clause forms a part.” (Emphasis

added.) AAA Commercial Arbitration Rules, R-7(a) and (b).

¶ 30 Federal courts have long held that incorporation of specific arbitration rules, like AAA’s

rules, into an arbitration agreement is sufficient to find “clear and unmistakable” evidence that the

parties intended to delegate the question of arbitrability to an arbitrator. Oracle America, Inc. v.

Myriad Group A.G., 724 F.3d 1069, 1074 (9th Cir. 2013) (“Virtually every circuit to have

considered the issue has determined that incorporation of the [AAA] arbitration rules constitutes

clear and unmistakable evidence that the parties agreed to arbitrate arbitrability.”) (collecting

cases). Similar conclusions were reached by Illinois federal courts and were previously noted in

an Illinois state court. Wal-mart Stores, Inc. v. Helferich Patent Licensing, LLC, 51 F. Supp. 3d

12 713, 720 (N.D. Ill. 2014); Allscripts Healthcare, LLC v. Etransmedia Technology, Inc., 188 F.

Supp. 3d 696, 701 (N.D. Ill. 2016); LRN Holding, Inc. v. Windlake Capital Advisors, LLC, 409 Ill.

App. 3d 1025, 1037 (2011) (Wright, J., specially concurring).

¶ 31 The United States Supreme Court has not specifically addressed this issue; however, the

Court did address the amount of weight that should be attributed to the parties’ contractual

delegation of authority. See Henry Schein, Inc., 586 U.S. at ___, 139 S. Ct. at 528 (“When the

parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the

parties’ decision as embodied in the contract.”). It is noteworthy that the United States Supreme

Court acknowledged that the parties’ agreement in Henry Schein, Inc. incorporated the AAA rules.

Id. Regarding the delegation of arbitrability, the Court further stated:

“We must interpret the Act as written, and the Act in turn requires that we interpret

the contract as written. When the parties’ contract delegates the arbitrability question to an

arbitrator, a court may not override the contract. In those circumstances, a court possesses

no power to decide the arbitrability issue. That is true even if the court thinks that the

argument that the arbitration agreement applies to a particular dispute is wholly

groundless.” Id. at ___, 139 S. Ct. at 529.

¶ 32 “[I]n the absence of a United States Supreme Court decision, the weight this court gives to

federal circuit and district court interpretations of federal law depends on factors such as uniformity

of law and the soundness of the decisions.” State Bank of Cherry, 2013 IL 113836, ¶ 33. “[I]f the

lower federal courts are uniform on their interpretation of a federal statute, this court, in the interest

of preserving unity, will give considerable weight to those courts’ interpretations of federal law

and find them to be highly persuasive.” (Emphasis in original.) Id. ¶ 35. “If, however, the federal

13 courts are split, we may elect to follow those decisions we believe are better reasoned.” Ammons,

2019 IL 124454, ¶ 18.

¶ 33 The majority of case law addressing the incorporation of an institution’s rules into the

arbitration contract, thereby, delegating arbitrability to the arbitrator, instead of the trial court, has

been soundly accepted. In Blanton v. Domino’s Pizza Franchising LLC, 962 F.3d 842, 846 (6th

Cir. 2020), the court stated:

“[E]very one of our sister circuits to address the question—eleven out of twelve by our

count—has found that the incorporation of the AAA Rules (or similarly worded arbitral

rules) provides ‘clear and unmistakable’ evidence that the parties agreed to arbitrate

‘arbitrability.’ [(collecting cases)] And the one remaining circuit has precedent suggesting

that it would join this consensus. See Commonwealth Edison Co. v. Gulf Oil Corp., 541

F.2d 1263, 1272-73 (7th Cir. 1976) (relying on the incorporation of the AAA Rules to find

that the parties had agreed to binding arbitration). Indeed, it’s possible that our circuit has

already joined too. See McGee [v. Armstrong], 941 F.3d [859,] 866 [(6th Cir. 2019)]. But

to the extent that there’s any ambiguity in our prior decisions, we officially do so today.”

(Emphasis in original.)

¶ 34 There are, however, some cases that reach contrary results based on the lack of

sophistication attributed to a party. See Meadows v. Dickey’s Barbeque Restaurants, Inc., 144 F.

Supp. 3d 1069, 1078-79 (N.D. Cal. 2015); Nagrampa v. MailCoups, 469 F.3d 1257, 1282 (9th Cir.

2006). We note, however, these contrary decisions are typically based on contract defense claims

of either procedural or substantive unconscionability. Meadows, 144 F. Supp. 3d at 1079

(collecting cases regarding franchise agreements). “Procedural unconscionability consists of some

impropriety during the process of forming the contract depriving a party of a meaningful choice”

14 (internal quotation marks omitted) (Phoenix Insurance Co. v. Rosen, 242 Ill. 2d 48, 60 (2011)),

including “situation[s] where a term is so difficult to find, read, or understand that the plaintiff

cannot fairly be said to have been aware he was agreeing to it, and *** a lack of bargaining power”

(Razor v. Hyundai Motor America, 222 Ill. 2d 75, 100 (2006)). “Substantive unconscionability

concerns the actual terms of the contract and examines the relative fairness of the obligations

assumed, asking whether the terms are so one-sided as to oppress or unfairly surprise an innocent

party.” (Internal quotation marks omitted.) Phoenix Insurance Co., 242 Ill. 2d at 60.

¶ 35 Admittedly, the incorporation of the AAA rules that delegate arbitrability to the arbitrator

with no indication of what is contained in those rules may be considered harsh or far from “clear

and unmistakable” as required by the United States Supreme Court. This is especially true when

the parties are not corporate entities familiar with the AAA rules or even the law. Indeed, whether

such principle should apply to both sophisticated and unsophisticated parties remains debatable,

despite case law accepting application of the premise to both. See Brennan v. Opus Bank, 796 F.3d

1125, 1130-31 (9th Cir. 2015) (collecting cases); McGee v. Armstrong, 941 F.3d 859, 863, 865-66

(6th Cir. 2019); Arnold v. Homeaway, Inc., 890 F.3d 546, 548-49, 552 (5th Cir. 2018).

¶ 36 Here, however, we find dispositive the fact that plaintiff presented no argument that any

language in the arbitration agreement, say nothing of the required delegation clause, was either

substantively or procedurally unconscionable. Indeed, plaintiff’s counsel confirmed during oral

argument that no such argument was ever presented. As such, pursuant to the directives enunciated

in Rent-A-Center and Henry Schein, Inc., we hereby reverse the trial court’s denial of defendants’

motion to compel arbitration and stay the proceedings.

¶ 37 We further note that while both parties presented compelling arguments as to whether the

arbitration agreement was even applicable in the underlying lawsuit, this issue relates to the scope

15 of arbitration. Pursuant to the incorporation of the AAA rules, this issue is also delegated to the

arbitrator. AAA Commercial Arbitration Rules, R-7(a). Therefore, we also vacate the trial court’s

findings on this issue.

¶ 38 Finally, we are compelled to address Justice Cates’ dissent. First, the dissent alleges that

we “assume” the “contracting parties agreed to arbitrate arbitrability” and that we made “a new

contract by supplying provisions or giving plain and unambiguous terms a distorted construction.”

Infra ¶ 51. We disagree. The dissent is premised on an erroneous belief that we supplied a specific

set of arbitration rules, namely the AAA Commercial Arbitration Rules, when those specific rules

were not set forth in the arbitration agreement or agreed to by the parties. As shown above, the

arbitration agreement language mandated that arbitration be conducted in accordance with the

rules of the American Arbitration Association (AAA).

¶ 39 We agree that the AAA has “dozens of sets of ‘active rules’ depending upon the type of

the agreement” or dispute. However, what is not noted by the dissent is that every set of rules,

whether commercial or consumer-based, contain the same language delegating arbitrability to the

arbitrator. See AAA Commercial Arbitration Rules, R-7(a) and (b); AAA Consumer Rules, R-

14(a) and (b). As such, we disagree that our reliance on any specific set of AAA rules dictated the

outcome herein or altered the parties’ contractual obligations. The issue was determined by the

parties’ agreement to arbitrate under the AAA rules.

¶ 40 Second, the dissent addresses plaintiff’s alleged unsophistication. We note, however, this

issue was not raised by plaintiff’s counsel, either before the trial court or in this appeal, and no

evidence on this issue is contained in the record. As such, we question the prudence of the dissent’s

classification based solely upon plaintiff’s temporary need for rehabilitative services at a nursing

home following surgery.

16 ¶ 41 Finally, the dissent claims that our decision fails to address whether the arbitration

agreement covered disputes arising out of the plaintiff’s stay at Parkway Manor and argues that

Peterson controls on this issue. We disagree. The issue of whether an arbitration agreement covers

a dispute is one of scope, and such decisions are deferred to the arbitrator. See Moses H. Cone

Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25 (1983) (“The Arbitration

Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues

should be resolved in favor of arbitration, 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.”). It is

well-established that any confusion regarding the scope of an arbitration agreement under the FAA

is left to the arbitrator. Mastrobuono, 514 U.S. at 62.

¶ 42 It bears repeating that plaintiff’s argument, both before the circuit court, as well as here,

was limited solely to its reliance on Peterson, 402 Ill. App. 3d 240. However, at no time did the

Peterson court address its authority, or potential lack of authority, to determine the issue presented

therein. Indeed, there is no indication that the AAA rules were incorporated into the Peterson

arbitration agreement or, even if they were, that the delegation clause found within the AAA rules

was an issue raised by the nursing home.

¶ 43 Here, the delegation clause was argued. As such, we cannot ignore the argument presented

and decline to place reliance on a case that never considered the issue. Since Peterson, numerous

United States Supreme Court decisions, addressing the FAA, have addressed the enforcement of

contractual language excising the court’s authority to determine gateway issues such as

arbitrability, scope, existence, and validity of an arbitration clause, and delegating the authority to

an arbitrator. See Rent-A-Center, 561 U.S. at 68-69; Mastrobuono, 514 U.S. at 62; Moses H. Cone

17 Memorial Hospital, 460 U.S. at 24-25; First Options, 514 U.S. at 943-44; Henry Schein, Inc., 586

U.S. at ___, 139 S. Ct. at 528.

¶ 44 Here, there is no dispute that the parties entered into an arbitration agreement and the

arbitration agreement incorporated the AAA rules. Under those rules—whether for commercial or

consumer purpose—the arbitrator’s authority extends to “any objections with respect to the

existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or

counterclaim.” AAA Commercial Arbitration Rules, R-7(a) and (b); AAA Consumer Rules, R-

14(a) and (b). Therefore, any opinion regarding the relation between the arbitration agreement and

the residency contract, as seen in Peterson, or the relation of those documents with any of the other

documents executed during admission, is not for this court.

¶ 45 The unanimous Schein decision clearly expressed its disagreement with courts that “short-

circuit the process” by ignoring the delegation clause; Schein requires courts to “respect the parties’

decision as embodied in the contract.” Henry Schein, Inc., 586 U.S. at ___, 139 S. Ct. at 528-29.

Such respect requires this case to proceed to arbitration leaving for the arbitrator any issues related

to the scope, validity, existence, enforcement, or arbitrability of the arbitration agreement and

precludes our reliance on Peterson. As such, any opinion by this court on any of these issues is

unwarranted.

¶ 46 III. CONCLUSION

¶ 47 For the foregoing reasons, we vacate the trial court’s findings and reverse its order denying

defendants’ motion to compel arbitration and stay the proceedings.

¶ 48 Reversed.

¶ 49 JUSTICE CATES, dissenting:

18 ¶ 50 In reversing the trial court’s order denying the motion to compel arbitration, the majority

disregarded two well-settled principles of law. First, a court should not assume that contracting

parties agreed to arbitrate arbitrability unless there is “clear and unmistakable” evidence that they

did so. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). Second, a court cannot

make a new contract by supplying provisions or giving plain and unambiguous terms a distorted

construction. Thompson v. Gordon, 241 Ill. 2d 428, 449 (2011); Liu v. Four Seasons Hotel, Ltd.,

2019 IL App (1st) 182645, ¶ 25. In this case, the majority gave lip service to the rule that whether

the parties agreed to submit a dispute to arbitration is an issue for judicial determination unless the

parties clearly and unmistakably provide otherwise. After acknowledging this well-settled rule of

law, the majority then proceeds to create a new arbitration agreement by supplying a specific set

of arbitration rules—the AAA Commercial Arbitration Rules—when those rules were not set forth

in the Arbitration Agreement or agreed to by the parties. The majority then found that their newly

minted rules constituted clear and unmistakable evidence that the parties agreed to arbitrate

arbitrability. Taking the arbitration agreement as it is, without modifying or adding terms, I find

that the parties’ agreement is ambiguous as to who should decide questions of arbitrability and that

the reference to an unspecified set of rules of the AAA does not resolve that question. In the

absence of clear and unmistakable evidence of the parties’ intent to submit the question of

arbitrability to the arbitrator, the trial court had the authority to decide arbitrability. Therefore, I

dissent from the majority’s conclusions in this regard.

¶ 51 The majority also concluded that the trial court’s reliance on Peterson v. Residential

Alternatives of Illinois, Inc., 402 Ill. App. 3d 240 (2010), was misplaced. I do not agree. The

Peterson court analyzed substantively similar versions of the same agreements at issue here, using

basic principles of contract law, and the court’s analysis is useful. Considering the Arbitration

19 Agreement and Residency Contract at issue, with the basic principles of contract law in mind, I do

not find that the parties clearly expressed an intent to arbitrate controversies arising out of the

Residency Contract or the nursing home care the plaintiff received at Parkway Manor. The

Arbitration Agreement plainly referred to property, not personal injuries. Therefore, I would affirm

the trial court’s order denying the motion to compel arbitration. Accordingly, I respectfully dissent.

¶ 52 Background

¶ 53 In this case, the plaintiff, then 81 years old, filed a complaint against the defendants,

Unlimited Development, Inc., and UDI #1 d/b/a Parkway Manor, asserting a claim under the

Illinois Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2020)). The plaintiff alleged

that she sustained personal injuries while a resident of Parkway Manor, a nursing home facility

owned and/or operated by the defendants, and that her injuries resulted from the negligent care

provided by defendants’ agents and employees.

¶ 54 The defendants moved to compel arbitration pursuant to the Federal Arbitration Act (FAA)

(9 U.S.C. § 1 et seq. (2018)), asserting that upon admission to Parkway Manor, the plaintiff signed

an Arbitration Agreement and a Residency Contract. The defendants claimed that the Arbitration

Agreement was an addendum to the Residency Contract; that it bound the plaintiff to arbitrate any

and all disputes that arose from her stay at Parkway Manor; and, that it contained a delegation

provision that authorized an arbitrator to decide threshold matters, including arbitrability. The

defendants further claimed that the delegation provision specified that the arbitration would be

conducted “in accordance with the rules of the American Arbitration Association (‘AAA’),” and

that the incorporation of the AAA rules constituted clear and unmistakable evidence of the parties’

intent to arbitrate questions of arbitrability. The defendants then quoted from the AAA’s

“Commercial Arbitration Rules and Mediation Procedures,” specifically, Rule R-7(a), and argued

20 that under this rule, the arbitrator had the power to rule on his or her own jurisdiction, including

issues of arbitrability and scope of the arbitration agreement. The defendants also argued that the

federal courts have repeatedly found that the incorporation of a specific set of arbitration rules into

an arbitration agreement constituted clear and unmistakable evidence that the parties agreed to

delegate the question of arbitrability to the arbitrator. The defendants attached the Residency

Contract and Arbitration Agreement in support of their motion.

¶ 55 In response, the plaintiff claimed that the Residency Contract and the Arbitration

Agreement were “insufficient in both form and substance.” The plaintiff argued that neither the

Residency Contract nor the Arbitration Agreement applied to her cause of action, and that neither

document contained a provision evidencing a clearly expressed intent to arbitrate disputes arising

out of the Residency Contract. The plaintiff noted that substantively identical agreements were

found unenforceable in Peterson v. Residential Alternatives of Illinois, Inc., 402 Ill. App. 3d 240,

242-43 (2010). Relying on the analysis in Peterson, the plaintiff argued that the Residency

Contract and the Arbitration Agreement were unrelated; that neither document incorporated the

other; and that neither document contained terms demonstrating an intent that they be read

together. The plaintiff claimed the documents should not be construed as one contract because

there was no indication they were signed as part of a single transaction.

¶ 56 In support of her arguments, the plaintiff attached the plaintiff’s Parkway Manor Resident

Face Sheet, excerpts from the discovery depositions of Karen Weirauch and Tenia Calhoon, and

an affidavit from the plaintiff. According to the Parkway Manor Resident Face Sheet, the 79-year-

old plaintiff was transferred from a hospital to the Bounce Back Unit at Parkway Manor on June

11, 2019, at 3:49 p.m. At the time of the plaintiff’s admission to Parkway Manor, Tenia Calhoon

was the administrator and Karen Weirauch was the assistant to the director of admissions. Neither

21 Calhoon, nor Weirauch, had a specific memory of conversations or events surrounding the

execution of the plaintiff’s admissions paperwork. In an affidavit dated January 7, 2022, the

plaintiff stated that she was admitted to Parkway Manor to recover from knee surgery. The plaintiff

had no memory of the circumstances surrounding the signing of her admissions paperwork. She

stated that if she had known of the ramifications of the Arbitration Agreement, she would have

declined to sign it.

¶ 57 In a supplemental response, the defendants asserted that the Arbitration Agreement and the

Residency Contract should be read together because the documents were executed at the same

time, by the same parties, for the same purpose, and in the course of the same transaction. The

defendants claimed that all of the documents in the plaintiff’s admissions packet had been signed

on June 11, 2019. They attached the following 13 documents from the admissions packet as

supporting exhibits: Authorization for Release of Health Information, New Resident

Questionnaire, Addendum to Residency Agreement, Subpart S Eligibility Screen, Medicare

Secondary Payor Questionnaire, Skilled Nursing Facility Advance Beneficiary Notice, Insurance

Billing, Exhaustion of Resident Funds, Designated Authorized Representative Form, Courtesy

Technical Denial Letter, Consent to Use Photograph/Video for Media Purposes, Notice of Privacy

Practices, and Information Acknowledgment. The Arbitration Agreement and the Residency

Contract had been previously filed as exhibits.

¶ 58 After considering the arguments of the parties, the trial court denied the defendants’ motion

to compel arbitration. The court initially determined that it had authority to decide gateway issues

of arbitrability. The court then found that the Residency Contract and the Arbitration Agreement

could not be construed as one contract, and that the Arbitration Agreement did not contain “a

clearly expressed intent to arbitrate controversies arising out of the separate Residency Contract.”

22 ¶ 59 The Delegation Clause & Arbitrability

¶ 60 An arbitration agreement is a matter of contract. The primary objective in interpreting a

contract is to give effect to the intent of the parties. Gallagher v. Lenart, 226 Ill. 2d 208, 232

(2007). The language of the contract, given its plain and ordinary meaning, is the best indication

of the parties’ intent. Gallagher, 226 Ill. 2d at 233. A court will consider the document as a whole,

viewing each part in light of the others. Gallagher, 226 Ill. 2d at 233. The parties’ intent may not

be gathered from detached portions of a contract or from any clause or provision standing by itself.

Gallagher, 226 Ill. 2d at 233. A court cannot alter, change, or modify existing terms of a contract

or add new terms or conditions to which the parties do not appear to have assented. Thompson,

241 Ill. 2d at 449; Gallagher v. Lenart, 367 Ill. App. 3d 293, 301 (2006). A court cannot make a

new contract by supplying provisions or giving plain and unambiguous terms a distorted

construction. Liu, 2019 IL App (1st) 182645, ¶ 25.

¶ 61 While arbitration is a favored method of dispute resolution, courts have consistently

cautioned that an agreement to arbitrate is a matter of contract, and that arbitration is a matter of

consent, not coercion. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford

Junior University, 489 U.S. 468, 478-79 (1989); Carter v. SSC Odin Operating Co., 2012 IL

113204, ¶ 55. Arbitration agreements are placed on an equal footing with other contracts, not

above them. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 67 (2010). Like other contracts,

arbitration agreements may be invalidated by generally applicable contract defenses, such as fraud,

duress, or unconscionability. 9 U.S.C. § 2 (2018); Rent-A-Center, 561 U.S. at 68. Parties are

“bound to arbitrate only those issues they have agreed to arbitrate, as shown by the clear language

of the agreement and their intentions expressed in that language,” and their “agreement will not be

extended by construction or implication.” Salsitz v. Kreiss, 198 Ill. 2d 1, 13 (2001).

23 ¶ 62 Here, the defendants moved to compel arbitration under the FAA (9 U.S.C. § 1 et seq.

(2018)). The FAA empowers state courts and federal courts to stay an action and compel arbitration

upon being satisfied that the issue involved in the action or proceeding is referable to arbitration

under a written agreement to arbitrate. See 9 U.S.C. §§ 2, 3 (2018).

¶ 63 Ordinarily, when presented with a motion to compel arbitration under the FAA, the court

will decide certain “gateway” questions, such as whether the parties have a valid arbitration

agreement and whether that agreement covers a particular dispute or controversy. Green Tree

Financial Corp. v. Bazzle, 539 U.S. 444, 452 (2003); Howsam v. Dean Witter Reynolds, 537 U.S.

79, 84 (2002). That said, the parties may agree to arbitrate not only the merits of any dispute that

arises from their contract, but also “gateway” questions of arbitrability. See Henry Schein, Inc. v.

Archer & White Sales, Inc., 586 U.S. ___, ___, 139 S. Ct. 524, 529-30 (2019). When considering

whether the parties delegated gateway questions of arbitrability to an arbitrator, courts should not

assume that the parties agreed to arbitrate arbitrability unless there is “clear and unmistakable”

evidence that they did so. First Options, 514 U.S. at 944-45; AT&T Technologies, Inc. v.

Communications Workers of America, 475 U.S. 643, 649 (1986). As to that matter, the law treats

silence or ambiguity about who should decide arbitrability differently from the way it treats silence

or ambiguity about whether a particular merits-related dispute is arbitrable because it is within the

scope of a valid arbitration agreement. First Options, 514 U.S. at 944-45. Unless the parties

“clearly and unmistakably” provide otherwise, the question of who should decide whether the

parties agreed to arbitrate arbitrability is a matter for the court, not the arbitrator. First Options,

514 U.S. at 944.

¶ 64 The Arbitration Agreement at issue provided in pertinent part:

24 “Without limiting any rights set forth in other provisions of this AGREEMENT,

any and all disputes arising hereunder shall be submitted to binding arbitration and not to

a court for determination. Arbitration shall commence after written notice is given from

either party to the other, such arbitration shall be accomplished expeditiously in the county

and state where the property which is the subject of this AGREEMENT is located, and shall

be conducted in accordance with the rules of the American Arbitration Association

(‘AAA’). ***

Notwithstanding the parties intent to submit any controversy or claim arising out

of or relating to this AGREEMENT or any other document signed or initialed in connection

with this AGREEMENT to arbitration, in the event that a court of competent jurisdiction

shall determine or a relevant law shall provide that a particular dispute is not subject to

the arbitration provisions of this Section,” then the parties agree that (a) the court will

decide the dispute, waiving a jury trial, and (b) the prevailing party will be entitled to

reasonable costs and attorney fees. (Emphases added.)

¶ 65 In this case, the issue is whether the delegation clause in this Arbitration Agreement

reserved the question of arbitrability for the circuit court, or, whether it clearly and unmistakably

delegated arbitrability to the arbitrator. In addressing this issue, the majority considered two

provisions in the delegation clause that potentially addressed who should determine arbitrability.

The first provision indicated that that “any and all disputes” arising under the arbitration agreement

or any other document signed or initialed in connection with that agreement would be submitted

to binding arbitration. The majority concluded the parties’ agreement to arbitrate “any and all

disputes” was not sufficient, by itself, to constitute clear and unmistakable evidence of an intent to

delegate the question of arbitrability to the arbitrator. The majority then considered the provision

25 incorporating “the rules of the American Arbitration Association (‘AAA’).” For unexplained

reasons, the majority decided to incorporate a specific set of rules—the AAA Commercial Rules

of Arbitration—into the delegation clause, even those rules were not identified in the delegation

clause or the Arbitration Agreement. Upon adding a new term to the delegation clause, the majority

then concluded that the incorporation of those specific rules constituted clear and unmistakable

evidence that the parties agreed to arbitrate arbitrability.

¶ 66 I agree that the “any and all disputes” language does not evidence a clear and unmistakable

delegation of arbitrability to the arbitrator. As the majority reasoned, the agreement provided no

definition of “disputes,” and the delegation clause did not expressly provide that disputes over

arbitrability would be decided by the arbitrator. In addition, there are two conflicting provisions

within the delegation clause that cast doubt on the parties’ intent to arbitrate arbitrability. The

initial provision in the delegation clause voiced an intent by the parties to submit “any and all

disputes” to arbitration. But there is a subsequent provision in which the parties recognized and

agreed that notwithstanding this intent, if a court of competent jurisdiction determined that a

particular dispute was not subject to arbitration, then the court would decide the dispute without a

jury. Thus, the language in the latter provision plainly provided that a court, not an arbitrator,

would decide disputes arising under the agreement, including questions of arbitrability and scope.

The majority failed to consider this latter provision in its analysis. To ignore this language

indicating the parties’ intent that arbitrability was a matter for judicial determination would render

the provision superfluous. A reviewing court will not interpret a contract in such a way as to render

some provisions meaningless. See generally Thompson, 241 Ill. 2d at 442. Given the undefined

terms and the conflicting provisions, I do not find clear and unmistakable evidence that the parties

agreed to arbitrate questions of arbitrability. Indeed, the plain language in the delegation clause

26 provided compelling evidence that the parties recognized that the court should decide the question

of arbitrability.

¶ 67 The majority next considered the reference to the “rules of the AAA” contained in the

Arbitration Agreement and concluded that this provision constituted a clear and unmistakable

intent to arbitrate arbitrability. Such a conclusion is in error, and I adamantly disagree for the

reasons that follow.

¶ 68 The language in the delegation clause provided that the arbitration “shall be conducted in

accordance with the rules of the American Arbitration Association (‘AAA’).” The AAA has

dozens of sets of “active rules” depending upon the type of agreement, 2 and the delegation clause

provides no indication as to which set of rules was intended or applicable. The delegation provision

did not incorporate the AAA Commercial Rules of Arbitration or any other specific and

ascertainable set of rules that would empower the arbitrator to decide issues of arbitrability.

Nevertheless, the majority has written into the agreement a specific set rules of rules of the AAA

—the AAA Commercial Rules of Arbitration, and quoted from one of those rules, R-7 of the AAA

Commercial Arbitration Rules, which empowers arbitrators to rule on their own jurisdiction, and

other gateway matters of arbitrability (supra ¶¶ 30, 38). Nothing within the delegation clause or

the Arbitration Agreement supports a finding that the parties intended to incorporate the AAA

Commercial Rules. The majority has essentially created a new arbitration agreement by supplying

the AAA Commercial Arbitration Rules even though those rules were not set forth in the

Arbitration Agreement or agreed to by the parties. The majority then finds that those newly minted

rules constitute clear and unmistakable evidence that the parties agreed to arbitrate arbitrability.

2 See https://www.adr.org/active-rules (last visited Feb. 15, 2023). 27 ¶ 69 A well-settled principle of contract law counsels that a court cannot alter, change, or

modify the existing terms of a contract or add new terms or conditions to which the parties do not

appear to have assented. See Thompson, 241 Ill. 2d at 449; Gallagher, 367 Ill. App. 3d at 301. The

majority’s decision to fill in and rely upon the AAA Commercial Rules of Arbitration as evidence

of an intent to arbitrate arbitrability runs afoul of long-standing principles of contract law.

Additionally, there is a presumption against provisions that could have been easily included in a

contract but were not. Thompson, 241 Ill. 2d at 449; Gallagher, 367 Ill. App. 3d at 301. In writing

the AAA Commercial Rules into the delegation clause, the majority added a new set of arbitration

rules that was not negotiated or agreed to by the parties. Furthermore, the parties could have

incorporated these specific rules into their agreement. They did not—neither should this court.

Therefore, the majority erred in writing the AAA Commercial Rules into the arbitration agreement

and relying upon those rules to find an agreement to arbitrate arbitrability.

¶ 70 Subsequently, and in response to this point, it appears that the majority conducted some

research into the numerous sets of rules of the AAA. In support of its decision to supply a new

term to the parties’ agreement, the majority reasons:

“We agree that the AAA has ‘dozens of sets of “active rules” depending upon the

type of the agreement’ or dispute. However, what is not noted by the dissent is that every

set of rules, whether commercial or consumer-based, contain the same language delegating

arbitrability to the arbitrator. See AAA Commercial Arbitration Rules, R-7(a) and (b);

AAA Consumer Rules, R-14(a) and (b). As such, we disagree that our reliance on a specific

set of AAA rules dictated the outcome herein or altered the parties’ contractual

obligations.” Supra ¶ 40.

28 Again, neither of these specific sets of rules—the commercial or consumer-based rules—is found

within the Arbitration Agreement or the delegation clause at issue. Furthermore, while my

colleagues have been able to conduct a fair amount of research on the dozens of sets of rules of

the AAA, there is no evidence in the record that the plaintiff had a similar opportunity.

Nonetheless, the fact remains that the parties did not identify a specific and ascertainable set of

rules. Unlike my colleagues, I do not agree that a vague reference to the rules of the AAA

constitutes clear and unmistakable evidence of an intent to delegate questions of arbitrability to

the arbitrator.

¶ 71 Before leaving this point, I note that both the majority and the defendants have cited cases

in which federal courts have held that the incorporation of a specific set of arbitration rules

constitutes clear and unmistakable evidence that the parties intended to delegate the question of

arbitrability to the arbitrator. In the majority order, my colleagues cite Oracle America, Inc. v.

Myriad Group A.G., 724 F.3d 1069, 1071 (9th Cir. 2013). Supra ¶ 31. In Oracle America, the

arbitration agreement included a specific set of rules—the United Nations Commission on

International Trade Law (UNCITRAL) Arbitration Rules. The same is true in cases cited by the

defendants. See, e.g., Fallo v. High-Tech Institute, 559 F.3d 874, 877-78 (8th Cir. 2009) (disputes

shall be settled by arbitration “ ‘in accordance with the Commercial Arbitration Rules of the

American Arbitration Association’ ”); Contec Corp. v. Remote Solution Co., 398 F.3d 205, 208

(2d Cir. 2005) (arbitration shall be conducted “ ‘in accordance with the Commercial Rules of the

American Arbitration Association’ ”); Bayer CropScience, Inc. v. Limagrain Genetics Corp., 2004

WL 2931284, at 4 (N.D. Ill. 2004) (arbitration shall be conducted “ ‘in accordance with the

prevailing commercial arbitration rules of the American Arbitration Association’ ”); see also

Apollo Computer Inc. v. Berg, 886 F.2d 469 (1st Cir. 1989) (arbitration provision provided that all

29 disputes would be resolved in accordance with the rules of arbitration of the International Chamber

of Commerce).

¶ 72 It is important to note that in most of the cases cited, the parties incorporated a specific set

of arbitration rules into their agreement, AND the parties were sophisticated business entities. That

is not the case here. In this case, it is the majority who incorporated a new set of rules into the

arbitration agreement, sans the parties. And not all parties are sophisticated entities. This case does

not involve a clash of corporate titans. It is a dispute between an individual who sought nursing

home care services and the corporate owners of the nursing home. The majority has questioned

the dissent’s notation that the plaintiff was not a sophisticated business entity, stating that there is

no evidence on this matter in the record (supra ¶ 41). Again, I disagree. The undisputed facts in

the record show that the plaintiff did not negotiate or draft any of the admissions documents,

including the Arbitration Agreement and Residency Contract. These were form contracts. They

were prepared by the defendants and presented to the plaintiff immediately upon her transfer from

a hospital to their facility. The plaintiff submitted an affidavit in which she stated that if she had

known of the ramifications of the arbitration agreement, she would have declined to sign it. The

evidence, and reasonable inferences therefrom, support a finding that the plaintiff was not a

sophisticated corporate entity who was familiar with the many and varied rules of the AAA.3

¶ 73 Finally, I note that the defendants have likened their Arbitration Agreement to the

arbitration agreement in Rent-A-Center. In Rent-A-Center, the plaintiff filed a federal employment

discrimination case, and his employer moved to compel arbitration under a stand-alone arbitration

3 Notably, the majority seems to recognize the plight of unsophisticated parties, noting that when the parties are not corporate entities familiar with the AAA rules, the incorporation of those AAA rules, with no indication of what is contained in them, may be particularly harsh or far from “clear and unmistakable.” Supra ¶ 36. 30 agreement that contained several written provisions to settle a controversy by arbitration. Rent-A-

Center, 561 U.S. at 68. One section, entitled “Claims Covered by the Agreement,” provided for

arbitration of all past, present, or future disputes arising out of the plaintiff’s employment with

Rent-A-Center, including claims for discrimination and claims for violation of any federal law.

Another section, entitled “Arbitration Procedures,” provided that “ ‘[t]he Arbitrator, and not any

federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating

to the interpretation, applicability, enforceability or formation of this Agreement including, but not

limited to any claim that all or any part of this Agreement is void or voidable.’ ” Rent-A-Center,

561 U.S. at 68. The delegation clause at issue here does not approach the level of specificity found

provision in Rent-A-Center. The reference to unspecified “rules of the AAA” and the lack of

definition of the subjects to be arbitrated do not constitute clear and unmistakable evidence of an

intent to arbitrate questions of arbitrability.

¶ 74 Parties may delegate threshold arbitrability questions so long as the parties’ agreement does

so by clear and unmistakable evidence. Henry Schein, 586 U.S. at ___, 139 S. Ct. at 530. Unlike

the question of scope, which carries a presumption that the issue will be decided by the arbitrator,

the question of who decides arbitrability carries no such presumption. First Options, 514 U.S. at

944-45. In this case, the language in the delegation clause did not constitute clear and unmistakable

evidence of an agreement to delegate arbitrability to the arbitrator. The language in the delegation

clause is, at best, ambiguous as to the question of who should decide arbitrability, and the reference

to a generic set of rules of the AAA does not answer that question. Accordingly, I find that the trial

court correctly concluded that it had the authority to make gateway decisions regarding questions

31 ¶ 75 Whether the Arbitration Agreement Governed the Plaintiff’s Claims

¶ 76 The next issue—one which the majority did not reach 4—is whether the Arbitration

Agreement covered disputes arising out of the plaintiff’s stay at Parkway Manor. In its order, the

trial court adopted the analysis in Peterson, 402 Ill. App. 3d 240, and determined that the

defendants’ arbitration agreement did not contain “a clearly expressed intent to arbitrate

controversies arising out of the separate contract for nursing home services.”

¶ 77 The defendants claim that the trial court erred in relying on Peterson. They argue that the

Peterson case is distinguishable because the defendants did not seek to enforce the delegation

clause in that case. They also argue that the Peterson court recognized the longstanding principle

that contemporaneously executed documents should be construed as one agreement, but added a

requirement that each document must incorporate the other by reference. The defendants contend

that the Arbitration Agreement and the Residency Contract were executed at the same time, by the

same parties, for the same purposes, and that the trial court erred when it failed to construe them

as one contract.

¶ 78 At the outset, I agree that the Peterson court did not decide whether the delegation

provision in the arbitration agreement was enforceable, as that issue was not raised. 5 The Peterson

court analyzed prior, but substantively similar versions of the same agreements at issue here, under

basic principles of contract law, and the analysis is useful. Under Illinois contract law, instruments

4 In “addressing” this part of the dissent, the majority writes, “the dissent claims that our decision fails to address whether the arbitration agreement covered disputes arising out of the plaintiff’s stay at Parkway Manor and argues Peterson controls on this issue” (supra ¶ 42). Again, my colleagues have either misread or misunderstood the dissent, as I have clearly pointed out that given the majority’s finding that there was a valid delegation provision, the majority “did not reach” this issue. 5 In its decision, the majority notes that the Peterson case was decided before Rent-A-Center, West v. Jackson, 561 U.S. 63 (2010). The majority then suggests that the Peterson case might have been decided differently if the court had the benefit of Rent-A-Center’s guidance (supra ¶ 25). Whether the Peterson court may have decided the case differently at another point in time is not at issue and is speculative. 32 executed at the same time, by the same parties, for the same purpose, and in the course of the same

transaction, are regarded as one contract and will be construed together, unless there is evidence

of a contrary intent. See Gallagher, 226 Ill. 2d at 233; Sandra Frocks, Inc. v. Ziff, 397 Ill. 497

(1947); see also Dearborn Maple Venture, LLC v. SCI Illinois Services, Inc., 2012 IL App (1st)

103513, ¶ 31. The Peterson court recognized this principle of law. Then, upon examining both the

arbitration agreement and the nursing home contract, the court found that neither document clearly

referred to or expressly incorporated the other document. The court further found that the nursing

home contract did not contain a provision for resolving disputes by arbitration. Additionally, the

arbitration agreement did not define or identify disputes arising out of the nursing home care as

subjects of the arbitration agreement. Peterson, 402 Ill. App. 3d at 246-47. Based upon those

findings, the court concluded that there was evidence of a contrary intent. Peterson, 402 Ill. App.

3d at 245-47.

¶ 79 In this case, there is no indication that the parties intended that the Arbitration Agreement

and the Residency Contract be construed together. According to the record, the Parkway Manor

admissions packet contained no less than 15 documents, including the Residency Contract and

Arbitration Agreement. All of the documents were purportedly executed by the plaintiff on June

11, 2019. The documents addressed a wide range of subjects and had a variety of purposes,

including insurance and private pay; privacy, patient advocacy, and grievances; and a resident’s

psychological history and criminal history. The Arbitration Agreement was independent of and

did not incorporate or refer to the Residency Contract. Although the defendants repeatedly argued

that the Arbitration Agreement was an addendum to the Residency Contract, there is no indication

of that in the Arbitration Agreement. In contrast, there is a document in the admissions packet

33 entitled, “Addendum to Residency Agreement.”6 That document specifically referred to the

Residency Contract. The first sentence in that document provided, “This Addendum *** amends

the existing Residency Agreement to which it is attached.” The Arbitration Agreement contains

no such language.

¶ 80 In addition, the delegation clause in the Arbitration Agreement provided that arbitration

“shall be accomplished expeditiously in the county and state where the property which is the

subject of this Agreement” was located. (Emphasis added.) This provision indicates that the subject

of the arbitration agreement was limited to disputes about “the property.” The Arbitration

Agreement did not contain language indicating that it was intended to cover disputes arising from

the Residency Contract or the nursing home care that the plaintiff received at Parkway Manor.

¶ 81 As previously noted, the Peterson court reviewed a prior version of the residency contract

and arbitration agreement at issue here. The Peterson decision was issued June 7, 2010, and it has

not been overturned. Since Peterson was decided, the Arbitration Agreement has been revised

once, in February 2018, and the Residency Contract has been revised twice, in November 2017

and in April 2018. In Peterson, the court noted that the parties could have easily revised the nursing

home contract to provide for arbitration of any and all disputes pertaining to nursing home care.

See Peterson, 402 Ill. App. 3d at 246. Despite these clear admonitions, the defendants did not

make the suggested revisions. This is further evidence of a contrary intent.

¶ 82 In examining the Arbitration Agreement and the Residency Contract, it is evident that these

contracts were self-contained components of Parkway Manor’s admissions packet. The documents

were separate, freestanding contracts, and each dealt with distinct subjects. There is no indication

6 In this Addendum, proposed residents verified that they had not been convicted of any of the felonies listed. 34 that the parties intended that these documents should be considered two sections of a single

contract or that the terms of the Arbitration Agreement should apply to disputes arising under the

Residency Contract. Accordingly, I do not find that the Arbitration Agreement contained a clearly

expressed intent to arbitrate claims arising under either the Residency Contract or the nursing home

care provided to the plaintiff.

¶ 83 For the reasons stated, I would affirm the trial court’s order denying the motion to compel

arbitration and stay the proceedings and remand this case for further proceedings.