Greystone Nursing and Rehab, LLC; Central Arkansas Nursing Centers, Inc.; Nursing Consultants, Inc.; And Michael Morton v. Donna Glover, as Personal Representative of the Estate of Dorothy Frizzell, and on Behalf of the Wrongful Death Beneficiaries of Dorothy Frizzell

Cite as 2025 Ark. App. 91
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-23-570

GREYSTONE NURSING AND REHAB,
LLC; CENTRAL ARKANSAS NURSING Opinion Delivered February 12, 2025
CENTERS, INC.; NURSING
CONSULTANTS, INC.; AND MICHAEL APPEAL FROM THE LONOKE
MORTON COUNTY CIRCUIT COURT
APPELLANTS [NO. 43CV-22-701]

V. HONORABLE BARBARA ELMORE,
JUDGE
DONNA GLOVER, AS PERSONAL
REPRESENTATIVE OF THE ESTATE AFFIRMED
OF DOROTHY FRIZZELL, AND ON
BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF DOROTHY
FRIZZELL
APPELLEE

MIKE MURPHY, Judge
This is an appeal from an order of the Lonoke County Circuit Court denying the

motion to compel arbitration filed by appellants Greystone Nursing and Rehab, LLC;

Central Arkansas Nursing Centers, Inc; Nursing Consultants, Inc; and Michael Morton

(collectively referred to herein as “Greystone”). On appeal, Greystone argues the circuit court

erred in denying its motion to compel despite the existence of a valid and enforceable

arbitration agreement. We affirm.

On September 27, 2022, appellee Donna Glover, as personal representative of the

estate of Dorothy Frizzell and on behalf of the wrongful death beneficiaries of Frizzell, filed
her complaint alleging that Frizzell was injured as a result of the care and treatment received

at Greystone. Frizzell resided at Greystone from June 1, 2021, to January 19, 2022. The

complaint asserted causes of action for negligence, medical malpractice, breach of the

admission agreement, and deceptive trade practices. Greystone answered, denying the claims

and asserting the existence of an arbitration agreement as a defense. Greystone moved to

compel arbitration, and a hearing was held on the motion on April 21, 2023, establishing

the following facts.

Donna Glover, Frizzell’s daughter, accompanied Frizzell on the day she was admitted

to Greystone. Glover was presented with paperwork in connection with the admission,

including an admission agreement and an incorporated arbitration agreement. The

arbitration clause provided that signing the arbitration agreement was a condition of

admission. The arbitration agreement included a blank line followed by “(Check if

applicable): A copy of my guardianship papers, durable power of attorney or other

documentation has been provided to the Facility and is attached.” There is no checkmark in

the blank. Additionally, the resident line is left blank and was signed by Glover as the

“responsible party.” Where the paperwork asks for “responsible party’s relationship to

resident,” Glover wrote “daughter.” When the arbitration agreement was signed, Glover was

Frizzell’s attorney-in-fact pursuant to a “General/Durable Power of Attorney” executed on

March 1, 2017. The power of attorney specifically provided that Frizzell granted to Glover

the power to act on Frizzell’s behalf with respect to legal actions or any other matter deemed

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“advisable, necessary, or desirable for the management of [Frizzell’s] affairs.” It is undisputed

that Greystone was not made aware of the power of attorney until after admission.

After hearing arguments, the court entered a blanket order denying the motion without

comment. This appeal followed.

An order denying a motion to compel arbitration is immediately appealable pursuant

to Arkansas Rule of Appellate Procedure–Civil 2(a)(12) (2022). We review a circuit court’s

denial of a motion to compel arbitration de novo on the record. Courtyard Gardens Health &

Rehab., LLC v. Arnold, 2016 Ark. 62, 485 S.W.3d 669.

Arbitration is simply a matter of contract between parties. Hickory Heights Health &

Rehab., LLC v. Cook, 2018 Ark. App. 409, 557 S.W.3d 286. Whether a dispute should be

submitted to arbitration is a matter of contract construction, and we look to the language of

the contract that contains the agreement to arbitrate and apply state-law principles. Id. at 5,

557 S.W.3d at 290. The same rules of construction and interpretation apply to arbitration

agreements as apply to agreements generally; thus, we will seek to give effect to the intent of

the parties as evidenced by the arbitration agreement itself. Id., 557 S.W.3d at 290. The

construction and legal effect of an agreement to arbitrate are to be determined by this court

as a matter of law. Id., 557 S.W.3d at 290.

Though there is a presumption in favor of arbitration, such a presumption is triggered

only when an underlying valid and enforceable arbitration agreement exists. Nursing & Rehab.

Ctr. at Good Shepherd, LLC v. Richardson, 2023 Ark. App. 427, 676 S.W.3d 375. As with other

types of contracts, the essential elements for an enforceable arbitration agreement are (1)

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competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5)

mutual obligations. Salem Place Nursing & Rehab. Ctr., Inc. v. Jefferson, 2023 Ark. App. 237,

667 S.W.3d 543. As the proponent of the arbitration agreement, Greystone has the burden

of proving these essential elements. Id.

Frizzell is not identified anywhere within the four corners of the arbitration

agreement. We have held under similar facts that absent any clear evidence that the resident’s

responsible party was signing in a representative capacity, we construe the ambiguity most

strongly against the drafters of the agreement to conclude that the responsible party is signing

in an individual capacity. See, e.g., Innisfree Health & Rehab, LLC v. Titus, 2021 Ark. App. 403,

636 S.W.3d 781, 785; Innisfree Health & Rehab, LLC v. Jordan, 2020 Ark. App. 518.

In both Titus and Jordan, the spouse of the nursing-home admittee signed the

admission and arbitration agreements on behalf of the admittees as “Responsible Party” and

as “Spouse.” Both spouses possessed powers of attorney; however, this court found it

significant that neither spouse had checked the space indicating that the spouse had provided

a copy of the power of attorney to the facility when the agreement was signed. We held this

created an ambiguity as to the capacity in which the responsible party signed the agreement

and construed that ambiguity against the facility for failing to prove that the responsible

party was acting as an agent rather than as an individual when signing the agreement.

Accordingly, we affirmed the circuit court’s denial of the nursing home’s motion to compel

arbitration because there was no evidence that either of the spouses had signed the

agreements in a representative capacity.

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Similarly, here, while Glover had a power of attorney when the agreement was signed,

she did not check the box on the agreement reflecting that a copy of her power of attorney

had been provided to the nursing home. Instead, she signed on the line designated for the

responsible party and listed her relationship to the resident as “daughter.”

Greystone attempts to distinguish the facts here from the facts in cases like Titus and

Jordan because it claims, here, the definition of “responsible party” is more specific than

agreements our courts have previously interpreted, leaving no room for ambiguity.

Greystone’s agreement provides,

The “Responsible Party” is the Resident’s legal guardian, if one has been appointed,
or the Resident’s attorney-in-fact, if the Resident has executed a power of attorney. If
the Resident does not have an appointed guardian, and has not executed a power of
attorney, the “Responsible Party” is another individual or family member who agrees
to assist the Facility in providing for the Resident’s health, care and maintenance.

Compare this language, then, to the language in other cases, which have generally had

identical language in each of the arbitration agreements. For example, in Titus, the admission

agreement defined “Responsible Party” as “the Resident’s legal guardian, if one has been

appointed, the Resident’s attorney-in-fact, if the Resident has executed a power of attorney,

or some other individual or family member who agrees to assist the facility in providing for

the Resident’s health care, and maintenance.” Titus, 2021 Ark. App. 403, at 3, 636 S.W.3d

at 783. In Sherwood Nursing & Rehabilitation Center, Inc. v. Cazort, and Nursing & Rehabilitation

Center at Good Shepherd, LLC v. Richardson, “Responsible Party” was defined as “your legal

guardian, if one has been appointed, your attorney-in-fact, if you have executed a power of

attorney, or some other individual or family member who agrees to assist the Facility in

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providing for your health, care and maintenance.” Cazort, 2022 Ark. App. 65, at 2, 642

S.W.3d 214, 216; Richardson, 2023 Ark. App. 427, at 2–3, 676 S.W.3d 375, 377.

Greystone argues that pursuant to its definition, if the resident has executed a power

of attorney, then the responsible party is his or her attorney-in-fact, and a responsible party

can sign as “another individual or family member” only if the resident does not have a

guardian or attorney-in-fact. Greystone claims that Frizzell executed a power of attorney

appointing Glover as her attorney-in-fact, so Glover was acting in that capacity when she

signed the arbitration agreement. We disagree with Greystone that this change is significant

enough to distinguish it from our precedent or even that the change in language is

dispositive.

As we explained in Richardson, 2023 Ark. App. 427, 676 S.W.3d 375, the critical

question is not whether the signor possessed authority but whether the signor was exercising

it when the signor signed the arbitration agreement. Thus, the change in the definition does

not cure the ambiguity. As in the other cases, the box designating evidence of authority was

blank, and when instructed to indicate her authority as responsible party, Glover wrote

“daughter” instead of “attorney in fact.” Given our caselaw and the requirement to construe

the ambiguity most strongly against the drafters of the agreement, we affirm this point.

Greystone also argues that Glover had authority to enter into the arbitration

agreement on behalf of Frizzell. However, given the finding that Glover signed the agreement

in an individual capacity and not on behalf of Frizzell, Greystone’s argument is moot. See

Richardson, 2023 Ark. App. 427, 676 S.W.3d 375 (holding that once the circuit court found

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that the appellee did not sign the agreement on behalf of her brother, then the question of

what authority she was “clothed with” to bind the decedent became moot).

Affirmed.

BARRETT and HIXSON, JJ., agree.

Hardin, Jesson & Terry, PLC, by: Jeffrey W. Hatfield, Kynda Almefty, Carol Ricketts, and

Kirkman T. Dougherty, for appellants.

Reddick Law, PLLC, by: Matthew D. Swindle and Heather G. Zachary, for appellee.

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