SSC Selma Operating Co. v. Gordon

112 So. 3d 36, 2012 WL 5693700, 2012 Ala. LEXIS 154
CourtSupreme Court of Alabama
DecidedNovember 16, 2012
Docket1110511
StatusPublished
Cited by2 cases

This text of 112 So. 3d 36 (SSC Selma Operating Co. v. Gordon) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
SSC Selma Operating Co. v. Gordon, 112 So. 3d 36, 2012 WL 5693700, 2012 Ala. LEXIS 154 (Ala. 2012).

Opinion

STUART, Justice.

SSC Selma Operating Company, LLC, doing business as Warren Manor Health & Rehabilitation Center (“SSC”), and Bernard Turk, the administrator of Warren Manor Health & Rehabilitation Center (‘Warren Manor”) (SSC and Turk are hereinafter referred to collectively as “the Warren Manor defendants”), appeal the judgment of the Dallas Circuit Court denying their joint motion to compel arbitration of the medical-malpractice wrongful-death claims asserted against them by Ethel Gordon (“Gordon”), the administratrix of the estate of Jimmy Lee Gordon, Gordon’s husband, pursuant to an arbitration agreement they allege Gordon had entered into with SSC. We affirm.

I.

This is the second opinion this Court has issued in this case. In SSC Selma Operating Co. v. Gordon, 56 So.3d 598 (Ala.2010) (“Gordon I”), we were also asked by the Warren Manor defendants to reverse an order entered by the trial court denying their motion to compel the arbitration of Gordon’s claims pursuant to an arbitration agreement Gordon was alleged to have entered into with SSC at the time her late husband was admitted to Warren Manor.1 We held in Gordon I that it was inappropriate for the trial court either to grant or to deny the motion to compel arbitration at that time, explaining:

“In order to satisfy their burden of proof, the [Warren Manor] defendants must present evidence that a contract calling for arbitration exists and that the ‘contract evidences a transaction affecting interstate commerce.’ Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (citing TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999)). The arbitration agreement itself constituted substantial evidence that a contract calling for arbitration existed between SSC and Mrs. Gordon. Mrs. Gordon concedes in her appellate brief before this Court that SSC ‘[is] engaged in interstate commerce.’ (Mrs. Gordon’s appellate brief, at 25 n. 9.) Thus, the [Warren Manor] defendants satisfied their burden of proof.
“Once the [Warren Manor] defendants satisfied their burden of producing substantial evidence that an arbitration agreement exists, the burden then shifted to Mrs. Gordon to produce sufficient [38]*38evidence to create a genuine issue of material fact as to whether the arbitration agreement is valid. This Court stated in Ex parte Meadows, 782 So.2d 277, 280 (Ala.2000):
“ ‘To make a genuine issue entitling the [party seeking to avoid arbitration] to a trial by jury [on the arbitrability question], an unequivocal denial that the agreement had been made [is] needed, and some evidence should [be] produced to substantiate the denial.’ ”
‘[Chastain v. Robinson-Humphrey Co., 957 F.2d 851, 854 (11th Cir.1992) ] (quoting T & R Enters., v. Continental Grain Co., 613 F.2d 1272, 1278 (5th Cir.1980)).’
“In the present case, Mrs. Gordon filed a response to the [Warren Manor] defendants’ motion[] to compel arbitration and attached to the response her affidavit, in which she denied that she had signed an arbitration agreement with SSC. Under Meadows, Mrs. Gordon’s affidavit constitutes sufficient evidence that the arbitration agreement did not exist. Therefore, a genuine issue of material fact has been raised concerning the existence of the arbitration agreement. ‘If the party opposing arbitration presents sufficient evidence to create a fact question as to the existence of a valid arbitration agreement, then the issue must be resolved by the trial court or by a jury, if one is requested.’ Ex parte Caver, 742 So.2d [168] at 172 n. 4 [ (Ala.1999) ].
“Based on Mrs. Gordon’s demand in her complaint for a trial by jury, the issue whether an arbitration agreement existed between SSC and Mrs. Gordon should have been tried before a jury. See Rule 39(a), Ala. R. Civ. P. However, the trial court denied the [Warren Man- or] defendants’ motion[ ] to compel arbitration without submitting the issue to a jury. Therefore, the trial court’s order denying the [Warren Manor] defendants’ motion[] to compel is reversed, and the case is remanded for a jury trial to determine whether an arbitration agreement existed between SSC and Mrs. Gordon.”

56 So.3d at 603 (emphasis added). On remand, the trial court, in accordance with our mandate, set a jury trial to determine the issue whether a valid arbitration agreement between Gordon and SSC existed. On June 15, 2011, Gordon filed a motion in limine, noting that the Warren Manor defendants had acknowledged that the original copy of the arbitration agreement Gordon was alleged to have executed could not be found and asking the trial court to bar the Warren Manor defendants from introducing as evidence any photocopy of the signed arbitration agreement. Citing Rule 1003, Ala. R. Evid., Gordon argued that a photocopy of the arbitration agreement she allegedly signed should be inadmissible because an issue had been raised as to the authenticity of the original.

On June 20, 2011, the Warren Manor defendants filed their response, arguing that a photocopy of the signed arbitration agreement should be allowed both because this Court had specifically held in Gordon I that “the arbitration agreement itself constituted substantial evidence that a contract calling for arbitration existed,” 56 So.3d at 603, and because the legislature specifically has provided in § 12-21^4, Ala.Code 1975, that photocopies of business records are admissible. In conjunction with their response, the Warren Man- or defendants submitted an affidavit from the director of Warren Manor, who swore that the photocopy of the signed arbitration agreement the Warren Manor defendants intended to submit at trial was a true and correct copy of the original and [39]*39that it was made and executed in the regular course of business. A hearing was held on Gordon’s motion in limine on June 22, 2011, and, on July 1, 2011, the trial court entered an order granting the motion, stating:

“[Gordon’s] motion in limine is granted, and the court finds the duplicate copy of the arbitration agreement is inadmissible.
“The court finds that the [Warren Manor] defendants did not provide a reasonable accounting for the existence of an original of the arbitration agreement nor did [the Warren Manor] defendants establish that the original arbitration agreement was a writing made in the regular course of business so that the duplicate was admissible as a business record pursuant to [§ 12-21-44(a), Ala.Code 1975, and Rule 44(h), Ala. R. Civ. PJ. As such, the [Warren Manor] defendants’ argument that the business record exception ... deems the arbitration agreement admissible is without merit.
“[The Warren Manor] defendants also argue that as a result of the decision by the Alabama Supreme Court in [Gordon 7] that [Gordon’s] motion in limine is due to be denied. This court rejects the [Warren Manor] defendants’ argument that the Alabama Supreme Court, by considering the arbitration agreement for purposes of appeal, intended that the trial court was without authority to further test the authenticity of the arbitration agreement.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Aurora Healthcare, Inc. v. Ramsey
267 So. 3d 839 (Supreme Court of Alabama, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
112 So. 3d 36, 2012 WL 5693700, 2012 Ala. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ssc-selma-operating-co-v-gordon-ala-2012.