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McKean v. GGNSC Atlanta, LLC

Court of Appeals of Georgia

November 7, 2014

McKEAN et al.
v.
GGNSC ATLANTA, LLC et al

Arbitration. Fulton State Court. Before Judge Morrison.

Slappey & Sadd, James N. Sadd, Daniel M. Epstein, for appellants.

Hawkins Parnell Thackston & Young, David C. Marshall, Christian J. Lang, Daniel N. Mills, for appellees.

BRANCH, Judge. Barnes, P. J., and Boggs, J., concur.

OPINION

Page 682

Branch, Judge.

Acting individually and as executor of his mother Patricia's estate, Dwayne McKean filed suit for wrongful death in the State Court of Fulton County alleging that the defendants' negligence in providing nursing home care to his mother caused her pain and suffering and death. The defendants moved to dismiss, to compel arbitration, and to stay discovery based on an arbitration agreement that McKean signed ostensibly on his mother's behalf when she was admitted to the nursing home. McKean argued that he did not have authority to sign for his mother at the time, but the trial court found that McKean was authorized to bind his mother and her estate's successors and assigns to the arbitration agreement. McKean appeals that decision. For the reasons that follow, we reverse.

The record contains the few relevant facts. Patricia was admitted to the Golden Living Center nursing home on March 9, 2012; she was [329 Ga.App. 508] suffering from the recent onset of paraplegia[1] due to a subarachnoid hemorrhage.[2]

Page 683

At the time, Patricia had not executed any form of power of attorney appointing McKean or anyone else as her attorney-in-fact. On the day of his mother's admission, McKean signed a nursing home admission agreement, which is not in the record, and a separate " Alternative Dispute Resolution Agreement" (the " ADR agreement" ). The ADR agreement provides that any dispute between the parties to the agreement " shall be resolved exclusively by an ADR process." The agreement provides that it is not a condition of admission to the facility, but that upon execution by the resident, it becomes a part of the admission agreement. Finally, the ADR agreement provides that the resident has an option to revoke the agreement " within thirty (30) days of signing it."

McKean signed below the blank signature line for the Resident in a space for " Signature of Resident's Legal Representative." Immediately below McKean's signature is an acknowledgment that states, " By my signature, I represent that I am a person duly authorized by Resident or by law to execute this Agreement and that I accept its terms." The agreement required McKean to " Specify Capacity of Legal Representative (e.g., Power of Attorney, Agent, Next of Kin)," for which McKean indicated that his capacity to sign was " Son." There is no evidence in the record that Patricia was present when McKean signed the agreements or that she had knowledge of the ADR agreement on the day it was signed or at any time thereafter.

Nineteen days after McKean signed these agreements, his mother executed a durable power of attorney appointing McKean as her attorney-in-fact and giving McKean authority, among other things, to sign arbitration agreements: i.e., authority

[t]o act for [Patricia] in all legal matters, ... including but not limited to the authority to ... sign all documents, submit claims to arbitration or mediation, settle claims, and pay judgments and settlements; and exercise all powers with respect to legal actions that I could if present and under no disability.

Patricia continued to reside at the nursing home for 40 days after naming McKean as her legal representative. During that time, [329 Ga.App. 509] Patricia developed serious medical issues, and she died on May 19, 2012. McKean later filed this suit in the State Court of Fulton County in his capacity as " the expected executor of the estate of Patricia McKean, and individually as a surviving child." The trial court thereafter granted the defendants' motion to dismiss and compel arbitration, apparently on the basis that McKean ratified his own signature by not revoking the ADR agreement after he became his mother's ...


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