Opinion
No. COA12–663.
2013-04-2
Terri Dew BOOKMAN, Administratrix of the Estate of Carthina Roberson Dew, Plaintiff, v. BRITTHAVEN, INC., d/b/a Britthaven of Wilson, Davita RX, LLC, Wilson Medical Center, Morgan Jones, and Courtney Lassitger, Defendants.
Taylor Law Office, by W. Earl Taylor, Jr., for plaintiff-appellee. Williams Mullen, by Brian C. Vick and Elizabeth D. Scott, for defendant-appellant Britthaven, Inc.
Appeal by defendant Britthaven, Inc. from orders entered 14 February 2012 and 23 February 2012 by Judge Milton F. Fitch, Jr. in Wilson County Superior Court. Heard in the Court of Appeals 28 November 2012. Taylor Law Office, by W. Earl Taylor, Jr., for plaintiff-appellee. Williams Mullen, by Brian C. Vick and Elizabeth D. Scott, for defendant-appellant Britthaven, Inc.
GEER, Judge.
Defendant Britthaven, Inc. d/b/a Britthaven of Wilson (“Britthaven”) appeals from the trial court's denial of its motion to dismiss and its motion to compel arbitration. Because the order denying the motion to dismiss may not be the subject of an interlocutory appeal, we dismiss that portion of Britthaven's appeal.
With respect to the order denying the motion to compel arbitration, Britthaven contends on appeal that the trial court erred in not determining that plaintiff Terry Dew Bookman, Carthina Roberson Dew's daughter and administratrix, and Frederick Dew, Carthina Dew's husband, had apparent authority to enter into the contested arbitration agreement. Because the trial court's order does not specifically address the doctrine of apparent agency, we remand to the trial court for further findings of fact and conclusions of law deciding whether Ms. Bookman or Mr. Dew had apparent authority to enter into an arbitration agreement on behalf of Mrs. Dew. Nothing in this opinion is intended to express any view on the merits of the apparent agency issue.
Facts
On 24 August 2010, Carthina Roberson Dew was admitted to Britthaven in Wilson, North Carolina. It is undisputed that Mrs. Dew was awake and alert during the admission procedure. However, Mrs. Dew's husband and her daughter, rather than Mrs. Dew, filled out the paperwork to admit Mrs. Dew to the nursing care facility. During the signing of the paperwork, Mr. Dew asked his daughter to sign the paperwork in his name.
The admissions paperwork included a “Resident and Facility Arbitration Agreement.” That agreement provided in relevant part that “any action [,] dispute, claim, or controversy of any kind (e.g ., whether in contract or in tort, statutory or common law, legal or equitable, or otherwise) now existing or later arising between the parties in any way arising out of, pertaining to, or in connection with the provision of health care services provided by or on behalf of the Facility; any agreement between the parties; any other goods or services provided by Facility ... shall be resolved exclusively by binding arbitration[.]” The agreement included in bold print: “THE PARTIES UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS ARBITRATION AGREEMENT THEY ARE GIVING UP AND WAIVING THEIR CONSTITUTIONAL RIGHT TO HAVE ANY CLAIM DECIDED IN A COURT OF LAW BEFORE A JUDGE AND A JURY.”
Mrs. Dew was admitted to the facility and subsequently died. Ms. Bookman, as administratrix of her mother's estate, filed suit alleging that Britthaven had negligently cared for her mother and caused her death. Britthaven responded by filing a motion to dismiss and a motion to compel arbitration. The trial court entered an order denying the motion to dismiss on 14 February 2012 and a second order denying the motion to compel arbitration on 23 February 2012.
Discussion
The trial court's orders denying the motion to dismiss and the motion to compel arbitration are interlocutory orders. Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (“An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.”). “Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). It is, however, well established that an order denying a motion to compel arbitration is immediately appealable. Edwards v. Taylor, 182 N.C.App. 722, 724, 643 S.E.2d 51, 53 (2007) (holding interlocutory order denying defendants' motion to compel arbitration affected substantial right and, therefore, was immediately appealable). Britthaven's appeal of the denial of its motion to compel arbitration is, therefore, properly before this Court.
As for the denial of its motion to dismiss, Britthaven acknowledges that such an order is not usually appealable prior to entry of a final judgment. Britthaven, however, argues that “this order involves an important issue of law that ... this Court should review under a writ of certiorari issued pursuant to Appellate Rules 2 and 21(a)(2) in order to preserve the issue for review by the North Carolina Supreme Court.” The legal issue raised by Britthaven is whether we should adopt the United States Supreme Court's standard for motions to dismiss for failure to state a claim for relief set out in Ashcroft v. Iqbal, 556 U.S. 662, 679, 173 L.Ed.2d 868, 884, 129 S.Ct. 1937, 1950 (2009) ( “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.”).
Since this Court is bound by the existing North Carolina standard, we see no reason to grant the extraordinary relief of allowing immediate appeal from the denial of a Rule 12(b)(6) motion to dismiss. With respect to preserving review in our Supreme Court, if this case does not proceed to arbitration, then the issue can still be raised following entry of a final judgment. On the other hand, if Britthaven's motion to compel arbitration is ultimately allowed, then any unavailability of Supreme Court review will be solely due to Britthaven's choice to require arbitration. If this legal issue is sufficiently important to Britthaven, it could choose to allow the case to proceed in superior court.
Turning to the merits of the order denying the motion to compel arbitration, “[t]he standard governing our review of this case is that ‘findings of fact made by the trial judge are conclusive on appeal if supported by competent evidence, even if ... there is evidence to the contrary.’ “ Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100–01, 655 S.E.2d 362, 369 (2008) (quoting Lumbee River Electric Membership Corp. v. City of Fayetteville, 309 N.C. 726, 741, 309 S.E.2d 209, 219 (1983)). “Conclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal.” Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004).
The trial court in this case concluded that Ms. Bookman and Mr. Dew had no authority to enter into the arbitration agreement:
The Court concludes as a matter of law that Carthina Robinson [sic] Dew did not authorize Terri Dew Bookman or Frederick Washington Dew to sign arbitration agreements on her behalf and that neither Terri Dew Bookman nor Frederick Washington Dew had legal authority to sign the Resident and Facility Arbitration Agreement.
The trial court based this conclusion on its findings of fact that Mrs. Dew was conscious, alert, and responsive during the admission process; that Mrs. Dew did not sign the arbitration agreement; that neither Ms. Bookman nor Mr. Dew had a general or healthcare power of attorney to act on behalf of Mrs. Dew; that neither Ms. Bookman nor Mr. Dew discussed signing any agreement to arbitrate with Mrs. Dew prior to their signing the arbitration agreement; and that Mrs. Dew did not delegate to either her husband or daughter authority to sign any arbitration agreement at the time of her admission to the facility.
In addition, the trial court found that Mr. Dew and Ms. Bookman did not read the paperwork at the time of admission; that neither Ms. Bookman nor Mr. Dew understood the legal significance of the arbitration agreement at the time they signed the agreement; that a Britthaven representative described the paperwork as allowing Britthaven only to admit Mrs. Dew, to treat her, and to receive payment for her care; and that the representative did not discuss arbitration or waiver of Mrs. Dew's constitutional right to have any claim decided in a court of law.
The trial court then found that Mrs. Dew “did not give the authority either expressed or implied to Terri Dew Bookman or Frederick Washington Dew to execute the Resident and Facility Arbitration Agreement on her behalf.” Further, “[n]either Terri Dew Bookman nor Frederick Washington Dew had the legal authority to sign the Resident and Facility Arbitration Agreement on behalf of Carthina Robinson [sic] Dew.”
The sole issue on appeal is whether the trial court erred in determining that the Resident and Facility Arbitration Agreement signed by Ms. Bookman using her father's name was not an enforceable agreement to arbitrate binding on Mrs. Dew's estate. “ ‘The law of contracts governs the issue of whether there exists an agreement to arbitrate. Accordingly, the party seeking arbitration must show that the parties mutually agreed to arbitrate their disputes.’ “ D & R Constr. Co. v. Blanchard's Grove Missionary Baptist Church, 193 N.C.App. 426, 430, 667 S.E.2d 305, 307 (2008) (quoting Burgess v. Jim Walter Homes, Inc., 161 N.C.App. 488, 490–91, 588 S.E.2d 575, 577 (2003)).
Here, Britthaven does not challenge the trial court's determination that Ms. Bookman and Mr. Dew lacked actual authority to sign the arbitration agreement on behalf of Mrs. Dew. Instead, Britthaven contends the trial court should have concluded that the agreement was enforceable based on apparent authority.
As this Court has observed: “ ‘Apparent authority is that authority which the principal has held the agent out as possessing or which he has permitted the agent to represent that he possesses. Under the doctrine of apparent authority, a principal's liability in any particular case must be determined by what authority the third person in the exercise of reasonable care was justified in believing that the principal had, under the circumstances, conferred upon his agent.’ “ Munn v. Haymount Rehab. & Nursing Ctr., Inc., 208 N.C.App. 632, 639, 704 S.E.2d 290, 295 (2010) (quoting Heath v. Craighill, Rendleman, Ingle & Blythe, P.A., 97 N.C.App. 236, 242, 388 S.E.2d 178, 182 (1990)). “The scope of an agent's apparent authority is determined not by the agent's own representations but by the manifestations of authority which the principal accords to him.” McGarity v. Craighill, Rendleman, Ingle & Blythe, P.A., 83 N.C.App. 106, 109, 349 S.E.2d 311, 313 (1986).
Here, it is not clear that the trial court considered the issue of apparent authority. While one of the findings of fact states that Mrs. Dew did not give “implied” authority to Ms. Bookman and Mr. Dew to sign the arbitration agreement, the conclusion of law concludes only (1) that Mrs. Dew did not authorize her daughter and husband to sign an arbitration agreement and (2) that neither of them had “legal authority” to sign the Resident and Facility Arbitration Agreement. Neither of the conclusion of law's two prongs relates to apparent agency.
We cannot be sure that the reference to “implied” authority was intended to resolve the issue of apparent authority because the other findings of fact regarding what occurred during the admission process are not sufficient to address apparent agency. The order contains no findings related to the question whether or not Britthaven believed Mr. Dew and Ms. Bookman had authority to sign the agreement and whether any such belief was justified—the salient questions for the application of apparent authority.
As Britthaven presented evidence that would allow, but not require, a finding of apparent authority, the trial court was required to make findings of fact and conclusions of law resolving that issue. See Small v. Small, 107 N.C.App. 474, 477, 420 S.E .2d 678, 681 (1992) (“In a trial without a jury, it is the duty of the trial judge to resolve all issues raised by the pleadings and the evidence by making findings of fact and drawing therefrom conclusions of law upon which to base a final order or judgment.”). We do not address plaintiff's arguments regarding the merits of the apparent agency argument because that issue must be considered in the first instance by the trial court. We, therefore, remand to the trial court for further findings of fact and conclusions of law regarding whether either Mr. Dew or Ms. Bookman had apparent authority to enter into the arbitration agreement in this case.
Remanded in part and dismissed in part. Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).