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AMFM LLC v. Shanklin

Supreme Court of West Virginia

May 30, 2018

KIMBERLY SHANKLIN, on behalf of the Estate of Lena Nelson, Respondent

          Submitted: January 10, 2018

          Appeal from the Circuit Court of Kanawha County The Honorable Carrie Webster, Judge Civil Action No. 16-C-1071

          Mark A. Robinson, Esq. Ryan A. Brown, Esq. Flaherty Sensabaugh Bonasso, PLLC Charleston, West Virginia Counsel for Petitioners

          James B. McHugh, Esq. Michael J. Fuller, Jr., Esq. D. Bryant Chaffin, Esq. A. Lance Reins, Esq. Kendra R. Fokakis, Esq. McHugh Fuller Law Group PLLC Hattiesburg, Mississippi Counsel for Respondent


         1. "An order denying a motion to compel arbitration is an interlocutory ruling which is subject to immediate appeal under the collateral order doctrine." Syllabus Point 1, Credit Acceptance Corp. v. Front, 231 W.Va. 518, 745 S.E.2d 556 (2013).

         2. "When an appeal from an order denying a motion to dismiss and to compel arbitration is properly before this Court, our review is de novo." Syllabus Point 1, W.Va. CVS Pharmacy, LLC v. McDowell Pharmacy, Inc., 238 W.Va. 465, 796 S.E.2d 574 (2017).


          Ketchum, Justice

         In this case we examine whether a durable power of attorney ("DPOA") provided an adult daughter with the authority to enter into an arbitration agreement with a nursing home on her mother's behalf. After review, we conclude the DPOA granted such authority to the adult daughter. We therefore reverse the circuit court's December 29, 2016, order, and remand this matter to the circuit court for entry of an order granting the petitioners' ("Hillcrest Nursing Home" or "nursing home")[1] motion to dismiss and to compel arbitration.


         In 2010, Lena Nelson ("Mother Nelson") executed a DPOA that named her son, Stephen Nelson, as her attorney-in-fact:

KNOW ALL MEN BY THESE PRESENTS: That I, LENA NELSON, a widow of Darius Court on the Sycamore Branch Road, Lake, Logan County, West Virginia, have made, constituted, and appointed, and by these presents do hereby make, constitute and appoint my son, STEPHEN NELSON, of Lake, Logan County, West Virginia, my true and lawful attorney, for me and in my name, place and stead[.]
The DPOA also stated: "If, for any reason, STEPHEN NELSON cannot or will not serve as such, then I do hereby make, constitute, and appoint my daughter, KIMBERLY SHANKLIN, of Charleston, Kanawha County, West Virginia, my true and lawful attorney, for me and in my name, place and stead with all of the aforesaid powers." (Emphasis added).

         On February 15, 2013, Mother Nelson was transferred from Charleston Area Medical Center ("CAMC") to Hillcrest Nursing Home. It is undisputed that Mother Nelson was suffering from dementia and was unable to handle her own affairs when she entered the nursing home. Mother Nelson's daughter, Plaintiff Kimberly Shanklin ("Kimberly"), accompanied Mother Nelson to Hillcrest Nursing Home and signed all of the admission documents, including an arbitration agreement. Richard Osburn, the nursing home's admissions director, was also present during the admission process. Another daughter of Mother Nelson's, Regina Akers ("Daughter Regina"), met Mother Nelson and Kimberly at the nursing home on the day of Mother Nelson's admission. According to Kimberly, Daughter Regina worked at Hillcrest Nursing Home. Mother Nelson's son, Stephen Nelson, was not present at the nursing home during the admission process.

         Mother Nelson was a resident of the nursing home from February 2013 through March 2016. Approximately one month after leaving the nursing home, Mother Nelson died. In July 2016, Kimberly, on behalf of the estate of Mother Nelson, filed the instant lawsuit against Hillcrest Nursing Home. The complaint alleged numerous causes of action arising from the care and treatment Mother Nelson received during her residency at the nursing home.[2] In response, the nursing home filed a motion to dismiss and to compel arbitration. Thereafter, the parties engaged in limited discovery regarding the formation of the arbitration agreement.

         As part of this limited discovery, Kimberly was deposed. Kimberly testified that she had extensive experience in the medical field-she has worked as a paramedic supervisor for five and a half years. Kimberly explained that her duties include supervising fourteen units and that, "I run calls, make decisions, anything they need." Prior to her position as a paramedic supervisor, Kimberly was an EMT for approximately twenty years.

         Regarding Mother Nelson's DPOA, Kimberly testified that she had exercised a number of rights granted to her under the DPOA prior to Mother Nelson's admission to the nursing home. In fact, Kimberly began exercising these rights in 2011, approximately two years before Mother Nelson's admission to the nursing home. These rights included endorsing checks and managing bank accounts for her mother. Kimberly also arranged and consented to medical treatment for her mother, including signing forms related to medical care and treatment her mother received at two different hospitals, Boone Memorial Hospital and CAMC.

         Prior to Mother Nelson's admission to the nursing home, Kimberly completed and signed a "Pre-Admission Screening" form. The West Virginia Department of Health and Human Resources ("DHHR") requires this form to be completed prior to placing a person in a skilled nursing facility. In paragraph 18 of the "Pre-Admission Screening" form, "Kim Shanklin" authorized the release of her mother's medical information to the DHHR. Under the heading "Relationship, " Kimberly is listed as "DPOA." This portion of the form is dated "2/05/2013, " ten days prior to Mother Nelson's admission to the nursing home.

         Kimberly testified that her mother was transferred directly from CAMC to the nursing home on February 15, 2013. She explained that the family chose Hillcrest Nursing Home over other potential facilities because Hillcrest "was closer to home." During the admission process, Kimberly signed the arbitration agreement and all of the other admission forms on her mother's behalf. Kimberly testified that the admissions director, Richard Osburn, told her to write "DPOA" next to her signature on the admission forms. When asked whether she told anyone at the nursing home that she was her mother's DPOA, Kimberly stated, "No, I mean, I would assume they had a copy of the Durable Power of Attorney paper."

         Richard Osburn was also deposed as part of this limited discovery. He stated that when admitting a resident who was not competent, "the first thing you would have to do, of course, would be to verify that who, whoever is signing on behalf of that patient has the legal right to do so. . . . And, of course, that person or persons had either presented Medical Power of Attorney papers, POA papers, Durable Power of Attorney papers, to either our social worker or someone in the facility." Mr. Osburn testified that Kimberly accompanied Mother Nelson to the facility and signed the admission forms on her mother's behalf, including the arbitration agreement. Mr. Osburn testified that Kimberly "presented herself and the papers as a Durable Power of Attorney, not - I'm quite certain that that's what it was." Additionally, Mr. Osburn testified that Stephen Nelson was not present when Mother Nelson was admitted to the nursing home.

         The arbitration agreement that Kimberly signed included the following paragraph:

The parties have reviewed the Arbitration Agreement, and have had an opportunity to ask questions of the Facility about this Agreement. The Resident further acknowledges that he/she fully understands the content of this Agreement and the limitations on the right to seek the resolution of any dispute in court. The Resident affirmatively states that he/she is the Resident or a person legally authorized by law or by the Resident to execute this Agreement and accept its terms.

(Emphasis added). Kimberly signed her initials ("KDS") in a line directly under this paragraph in the arbitration agreement.

         Another nursing home admission document produced during this limited discovery is entitled "Admission Record Hillcrest Health Care Center." This document is dated February 15, 2013, the date of Mother Nelson's admission to the nursing home. Under a section labelled "Contacts, " the name "Kim Shanklin" is listed with the following description: "Emergency Contact # 1, Responsible Party (Financial), Successor POA-Care." Also listed in the "Contacts" section are two of Mother Nelson's other daughters, "Regina Akers" and "Judy." However, neither of these daughters were listed as "responsible parties" or as "POA-Care." Mother Nelson's son, Stephen Nelson, is not listed as a contact on this document.

         This limited discovery also revealed that Kimberly continued to exercise the rights granted to her under the DPOA, including making medical decisions on her mother's behalf, throughout Mother Nelson's residency at the nursing home. Records from the nursing home demonstrate that Kimberly took part in a number of "multidisciplinary care conferences" and was regularly in contact with the nursing home regarding all aspects of her mother's care. Kimberly was listed on these various medical records from the nursing home as the "responsible party."

         Additionally, Kimberly continued to serve as Mother Nelson's DPOA after Mother Nelson left Hillcrest. Kimberly is listed as Mother Nelson's "MPOA" in a medical record from CAMC dated December 1, 2015, which provides, "Pt.'s [Mother Nelson's] daughter Kim is MPOA and states that she does not wish for PT. to return to Hillcrest and reports that she would like her mother to be moved to another facility." Further, after Mother Nelson left Hillcrest Nursing Home, she entered another facility, Montgomery General Elderly Care. Kimberly is identified as Mother Nelson's "POA-Health Care", "POA-Financial, " "Agent, " and "Emergency Contact" in documents from Montgomery General Elderly Care.

         One final note on the limited discovery period-Kimberly obtained an affidavit from Stephen Nelson that provided he was never contacted by Hillcrest Nursing Home about his mother's admission or about the arbitration agreement. In the affidavit, Stephen Nelson states "I was at all times material hereto willing and able to perform my duties as Durable Power of Attorney for my mother."

         At the conclusion of this limited discovery period, Kimberly argued that the arbitration agreement was not enforceable because she did not have the actual authority to enter into an arbitration agreement on Mother Nelson's behalf. In essence, Kimberly argued that she was the "alternate" DPOA and, as such, did not have the authority to bind Mother Nelson to the arbitration agreement. The circuit court agreed with Kimberly and entered an order denying the motion to dismiss and to compel arbitration. The circuit court determined that the nursing home had the burden of demonstrating that Stephen Nelson "could not or would not" serve as the DPOA before it could rely on Kimberly's authority as the "alternate" DPOA. The circuit court's order explains:

The Court . . . focuses on whether the Defendants have met their burden of demonstrating that [Kimberly] Shanklin had the requisite authority to waive [Mother] Nelson's right to a jury trial and enter into the arbitration agreement. In this regard, based on the DPOA executed by [Mother] Nelson, the Defendants would need to show that Stephen Nelson "cannot or will not" serve as her DPOA at the time of admission.
The Court looks to see what, if any, evidence has been presented that Stephen Nelson "cannot or will not" serve as his mother's DPOA. This is where the Court finds that the Defendants have not met their burden. There is no evidence that anyone on behalf of the Defendants inquired about Stephen Nelson or whether he was able and available to act on his mother's behalf on February 15, 2013.
The only evidence in the record is testimony from [Kimberly] Shanklin that her brother lived locally and was available and the affidavit of Stephen Nelson that no one attempted to ...

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