{ "id": 4181478, "name": "IRIS B MUNN, Administratrix of the Estate of DEMETRA C.B. MURPHY, Deceased, Plaintiff v. HAYMOUNT REHABILITATION & NURSING CENTER, INC. and CENTURY CARE OF FAYETTEVILLE, INC., Defendant", "name_abbreviation": "Munn v. Haymount Rehabilitation & Nursing Center, Inc.", "decision_date": "2010-12-21", "docket_number": "No. COA10-105", "first_page": "632", "last_page": "644", "citations": [ { "type": "official", "cite": "208 N.C. App. 632" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "637 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637327 ], "weight": 5, "year": 2006, "pin_cites": [ { "page": "554", "parenthetical": "citations and quotation marks omitted" }, { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0551-01" ] }, { "cite": "500 S.E.2d 714", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "717" } ], "opinion_index": 0 }, { "cite": "348 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659870 ], "year": 1998, "pin_cites": [ { "page": "566-67" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0562-01" ] }, { "cite": "601 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "328", "parenthetical": "\"As part of its argument under its first assignment of error, Chicago Title argues that plaintiffs are equitably estopped from denying their agreement to the arbitration provision. North Carolina Rules of Civil Procedure, Rule 8(c" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 246", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411154 ], "year": 2004, "pin_cites": [ { "page": "249-50", "parenthetical": "\"As part of its argument under its first assignment of error, Chicago Title argues that plaintiffs are equitably estopped from denying their agreement to the arbitration provision. North Carolina Rules of Civil Procedure, Rule 8(c" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0246-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-21.13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "pin_cites": [ { "page": "(c)" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "353 S.E.2d 112", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741831, 4739850, 4738802, 4739196, 4741374 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0105-04", "/nc/319/0105-02", "/nc/319/0105-01", "/nc/319/0105-03", "/nc/319/0105-05" ] }, { "cite": "349 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "313" }, { "page": "313" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358101 ], "year": 1986, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0106-01" ] }, { "cite": "395 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2494171, 2495575, 2496979, 2499511 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0428-04", "/nc/327/0428-02", "/nc/327/0428-03", "/nc/327/0428-01" ] }, { "cite": "388 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "182" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 236", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520259 ], "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0236-01" ] }, { "cite": "534 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "655" }, { "page": "655" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 827", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9498023 ], "year": 2000, "pin_cites": [ { "page": "830" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0827-01" ] }, { "cite": "560 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220162, 220199, 220073, 219889, 220030 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0214-04", "/nc/355/0214-05", "/nc/355/0214-01", "/nc/355/0214-03", "/nc/355/0214-02" ] }, { "cite": "552 S.E.2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "695", "parenthetical": "emphasis added" }, { "page": "695" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11355514 ], "year": 2001, "pin_cites": [ { "page": "217", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0203-01" ] }, { "cite": "300 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "39", "parenthetical": "citations and quotation marks omitted" }, { "page": "39" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 634", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523262 ], "year": 1983, "pin_cites": [ { "page": "637-38", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0634-01" ] }, { "cite": "603 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "815", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 519", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411970 ], "year": 2004, "pin_cites": [ { "page": "527", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0519-01" ] }, { "cite": "697 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "opinion_index": 0 }, { "cite": "698 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "688 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "50" }, { "page": "50", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "180 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8242690 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "418-19", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0414-01" ] } ], "analysis": { "cardinality": 984, "char_count": 27766, "ocr_confidence": 0.723, "pagerank": { "raw": 7.866990468568986e-08, "percentile": 0.45944609125860236 }, "sha256": "14b35665a86becaf8f008b1c824499929db6cdb45d95955251d01dbf9c5857fc", "simhash": "1:0a2a4d2e37b6709c", "word_count": 4442 }, "last_updated": "2023-07-14T21:19:36.775795+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ERVIN concur." ], "parties": [ "IRIS B MUNN, Administratrix of the Estate of DEMETRA C.B. MURPHY, Deceased, Plaintiff v. HAYMOUNT REHABILITATION & NURSING CENTER, INC. and CENTURY CARE OF FAYETTEVILLE, INC., Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendants appeal a trial court order denying their amended motion to compel arbitration and granting plaintiff\u2019s motion to dismiss defendants\u2019 claim for arbitration. As we conclude that there is no valid arbitration agreement between the parties, we affirm.\nI. Background\nOn 20 November 2008, plaintiff filed a complaint against defendants for violation of statutory duties and wrongful death, negligence and wrongful death, and corporate negligence arising out of the medical treatment of Ms. Demetra Murphy at defendants\u2019 nursing home facility, Haymount Rehabilitation & Nursing Center, Inc. On 27 January 2009, defendants filed a motion to dismiss, a motion to stay and dismiss, and an answer to plaintiff\u2019s complaint. On or about 22 July 2009, defendants filed an amended motion to compel arbitration.\nOn or about 4 August 2009, the trial court, inter alia, denied defendants\u2019 amended motion to compel arbitration and granted plaintiff\u2019s motion to dismiss defendants\u2019 claim for arbitration.\nThe trial court made the following uncontested findings of fact:\n2. Plaintiff brings this action in her representative capacity as Administratrix of the Estate of Demetra Murphy for damages stemming from the alleged wrongful death and negligent care by Defendants of Plaintiff\u2019s adult daughter, Demetra Murphy (\u201cMurphy\u201d). Plaintiff is not decedent Murphy\u2019s heir and will not receive proceeds, if any, from this action. At the time of her death, decedent Murphy was married to Calvin Murphy and had a daughter.\n4. Decedent Murphy arrived at the nursing home after having been hospitalized for a lengthy period. She had not recovered sufficiently to be discharged to her family\u2019s home. When decedent Murphy was admitted to the nursing home, she was not responsive: she was not able to speak or communicate with anyone. The nursing home did not have any previous experience with decedent Murphy. Decedent Murphy\u2019s husband and Plaintiff, along with other family members, went to the nursing home on the day of decedent Murphy\u2019s admission to [the] facility. While the unconscious Murphy was moved to a room in the facility, Plaintiff and Mr. Murphy participated in the admission process for Murphy\u2019s admission to the facility, including completing paperwork.\n5. Mr. Murphy testified that he did not pay attention to the admission process, as he was bothered by the state of the facility. Plaintiff likewise explained that she was troubled by the state of the facility and did not focus on the admission process, but was thinking to herself that she would make efforts to move her daughter to another facility. In response to a query during the admission process about who would sign all the paperwork, Mr. Murphy asked that Plaintiff be the person to make decisions about decedent Murphy\u2019s care because his work schedule made him difficult to locate and contact.\n6. Defendants seek to compel arbitration based on a paragraph entitled \u201cMandatory Arbitration\u201d contained in the \u201cAdmission Agreement\u201d signed on 17 June 2004 by Plaintiff when Plaintiff\u2019s adult daughter (decedent Murphy) was admitted to a nursing home operated by Defendants. The Admission Agreement recites that it is \u201cby and between Century Care of Fayetteville and Demetra Murphy (Resident) or Iris Munn (Responsible Party).\u201d\n7. The arbitration section in the Admission Agreement requires all matters \u201c[e]xcept for Facility\u2019s effort to collect monies due from Resident and Facility\u2019s option to discharge Resident for such failure\u201d to be arbitrated in accordance with \u201cthe Alternative Dispute Resolution Service Rules of Procedure for Arbitration of the American Health Lawyers Association . . . , and not be a lawsuit or resort to court process . . . .\u201d The arbitration section provides that its terms \u201cinure to the benefit of and bind the parties, their successors and assigns, including the agents, employees and servants of the Facility, and all persons whose claims are derived through or on behalf of the Resident.\u201d\n8. In the only full-sentence text of the six-page Admission Agreement that is underlined, the arbitration section specifies that agreeing to its terms means giving up the right to a jury trial: The parties understand and agree that bv entering this 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 iurv.\n10. Plaintiff, signing the agreement on the signature line for the \u201cResponsible Party,\u201d did not ask any questions about the arbitration provision in the Admission Agreement before signing it.\n12. Decedent Murphy did not sign the Admission Agreement that contained the arbitration provision.\n15. When Plaintiff signed the Admission Agreement as the \u201cResponsible Party,\u201d she had no power of attorney and was not guardian of her daughter, decedent Murphy.\n17. Plaintiff was not authorized by her status as the adult decedent\u2019s mother to agree to the arbitration provision.\n27. The facility did not seek, request, or require proof of legal authority for one to act on behalf of a patient during the admission process. In particular,... the facility employee ... confirmed at her deposition that she generally did not require power of attorney or guardianship documentation to establish legal authority to sign admission documents when the patient was not able to act on his or [sic] own behalf. Rather, generally in conducting the admission process, the facility employee would go through the process with either the next-of-kin to the patient or whoever had acted on behalf of the patient at the hospital, even if not kin to the patient.\n(Emphasis in original.) (Footnote omitted.) Based on these and other findings, the trial court determined that there was not a valid arbitration agreement between the estate of Ms. Murphy and defend\u00e1nts. Defendants appeal.\nII.Interlocutory Appeal\nWe first note that \u201c[a]n order denying defendants\u2019 motion to compel arbitration is not a final judgment and is interlocutory. However, an order denying arbitration is immediately appealable because it involves a substantial right, the right to arbitrate claims, which might be lost if appeal is delayed.\u201d Raper v. Oliver House, LLC, 180 N.C. App. 414, 418-19, 637 S.E.2d 551, 554 (2006) (citations and quotation marks omitted).\nIII.Standard of Review\nWhether a dispute is subject to arbitration is an issue for judicial determination. Our review of the trial court\u2019s determination is de novo. Pursuant to this standard of review, the trial court\u2019s findings regarding the existence of an arbitration agreement are conclusive on appeal where supported by competent evidence, even where the evidence might have supported findings to the contrary. Accordingly, upon appellate review, we must determine whether there is evidence in the record supporting the trial court\u2019s findings of fact and if so, whether these findings of fact in turn support the conclusion that there was no agreement to arbitrate.\nHarbour Point v. DJF Enters., - N.C. App. -, -, 688 S.E.2d 47, 50 (citations, quotation marks, and brackets omitted), disc. review denied, \u2014 N.C. \u2014, 698 S.E.2d 397, appeal dismissed and cert. denied, - N.C. App. -, 697 S.E.2d 439 (2010).\nIV.Arbitration\nDefendants argue that the trial court erred in determining there was no valid arbitration agreement. The admission document signed by Ms. Munn included provisions regarding various matters in addition to the disputed arbitration provision; the vast majority of the provisions involve financial responsibility and payment for the services provided at or by the nursing home. The admission document also contained provisions regarding general \u201chousekeeping\u201d matters such as visiting hours and laundry options. Ms. Munn\u2019s personal financial responsibility for payment for Ms. Murphy\u2019s care, as the \u201cresponsible party,\u201d is not an issue in this case, and we note that Ms. Munn did not need any legal authority from Ms. Murphy or on her behalf to agree to be personally liable for payment of Ms. Murphy\u2019s care. Furthermore, we note that the admission document does not specifically address consent for health care for Ms. Murphy, although Ms. Munn\u2019s authority to consent to health care for Ms. Murphy is not an issue in this case either. However, Ms. Munn would be required to have some form of legal authority to enter into an arbitration agreement on behalf of Ms. Murphy or her estate.\nThe first question which we must consider is whether there was a valid arbitration agreement between Ms. Murphy or her estate and defendants.\nA two-part analysis must be employed by the court when determining whether a dispute is subject to arbitration: (1) whether the parties had a valid agreement to arbitrate, and also (2) whether the specific dispute falls within the substantive scope of that agreement.\nThe 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.\nId. at -, 688 S.E.2d at 50 (citations and quotation marks omitted).\nA. Agency\nDefendants first contend that \u201cthe trial court improperly determined that Iris Munn was not the actual or apparent agent\u201d of Ms. Murphy. (Original in all caps.)\nA principal is liable upon a contract duly made by its agent with a third person in three instances: when the agent acts within the scope of his or her actual authority; when a contract, although unauthorized, has been ratified; or when the agent acts within the scope of his or her apparent authority, unless the third person has notice that the agent is exceeding actual authority.\nFirst Union Nat\u2019l Bank v. Brown, 166 N.C. App. 519, 527, 603 S.E.2d 808, 815 (2004) (citation omitted).\nTwo essentials are present in a principal-agent relationship: (1) Authority, either express or implied, of the agent to act for the principal, and (2) the principal\u2019s control over the agent. Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.\nAn agency can be proved generally, by any fact or circumstance with which the alleged principal can be connected and having a legitimate tendency to establish that the person in question was his agent for the performance.of the act in controversy[.]\nColony Assocs. v. Fred L. Clapp & Co., 60 N.C. App. 634, 637-38, 300 S.E.2d 37, 39 (1983) (citations and quotation marks omitted).\n1. Actual Authority\nDefendants argue that Ms. Munn was Ms. Murphy\u2019s actual agent. \u201c[I]n establishing the existence of an actual agency relationship, the evidence must show that a principal actually consents to an agent acting on its behalf.\u201d Phillips v. Rest. Mgmt. of Carolina, L.P., 146 N.C. App. 203, 217, 552 S.E.2d 686, 695 (2001) (emphasis added), disc. review denied, 355 N.C. 214, 560 S.E.2d 132 (2002). \u201cActual authority may be implied from the words and conduct of the parties and the facts and circumstances attending the transaction in question.\u201d Harris v. Ray Johnson Constr. Co., 139 N.C. App. 827, 830, 534 S.E.2d 653, 655 (2000). Defendants direct our attention to specific facts as evidence that Ms. Munn was Ms. Murphy\u2019s actual agent:\nIn the case at bar, the conduct of the principal Ms. Murphy both before and after her comatose state and of her agent Ms. Munn indicate an agency relationship.\nIn December of 2003, Ms. Murphy voluntarily committed herself for psychiatric care, and at the time of that commitment she conveyed to healthcare providers that her mother was her next of kin and primary contact: In the Complaint, Plaintiff also alleges that Ms. Murphy was alert for communicating with her caregivers and family for some period prior to her death, . . . and yet she never asked to change any of the decisions made by her mother regarding her healthcare up to that point. These facts establish Ms. Murphy\u2019s intention to allow her mother to make healthcare decisions for her, including contracting for healthcare services.\nDespite the defendants\u2019 contentions as to the facts, the trial court\u2019s factual findings are fully supported by the evidence. The fact that Ms. Murphy identified \u201cher mother [as] her next of kin and primary contact\u201d and that in periods when she could communicate, Ms. Murphy \u201cnever asked to change any of the decisions made by her mother\u201d does not demonstrate that Ms. Munn had actual authority as Ms. Murphy\u2019s agent. Neither Ms. Murphy\u2019s \u201cwords and actions\u201d nor the \u201cfacts and circumstances],]\u201d Harris at 830, 534 S.E.2d at 655, establish that Ms. Murphy \u201cactually consented] to . . . Ms. Munn acting on [her] behalf.\u201d Phillips at 217, 552 S.E.2d at 695. We conclude that the trial court did not err in concluding that there was not an actual agency relationship between Ms. Munn and Ms. Murphy.\n2. Apparent Authority\nDefendants also contend that Ms. Munn was Ms. Murphy\u2019s apparent agent.\nApparent 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\u2019s 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.\nHeath v. Craighill, Rendleman, Ingle & Blythe, 97 N.C. App. 236, 242, 388 S.E.2d 178, 182 (citations and quotation marks omitted), disc. review denied, 327 N.C. 428, 395 S.E.2d 678 (1990). \u201cThe scope of an agent\u2019s apparent authority is determined not by the agent\u2019s own representations but by the manifestations of authority which the principal accords to him.\u201d McGarity v. Craighill, Rendleman, Ingle & Blythe, P.A., 83 N.C. App. 106, 109, 349 S.E.2d 311, 313 (1986), disc. review denied, 319 N.C. 105, 353 S.E.2d 112 (1987).\nDefendants first direct our attention to Raper v. Oliver House, LLC, 180 N.C. App. 414, 637 S.E.2d 551 (2006). However, in Raper there was no issue that the signor of the arbitration agreement was the decedent\u2019s agent as \u201c[t]he trial court entered an uncontested finding of fact that plaintiff held decedent\u2019s power of attorney.\u201d Id. at 422, 637 S.E.2d at 556. This Court went on to state that\n[i]t is well established that a contract is enforceable against a party who signs the contract. Plaintiff signed the Agreement as the Responsible Party and as decedent\u2019s attorney-in-fact. The Agreement and its arbitration clause is enforceable and provides an arbitral forum to resolve all claims or disputes arising under the parties\u2019 contract.\nId. We conclude that Raper is inapposite to the current case as agency was not an issue in that case. See id.\nTurning to the facts which defendants argue show apparent authority:\nMs. Munn repeatedly held herself out over the course of her daughter\u2019s admission as the party responsible for signing off on forms, including surgical consent forms, for her daughter\u2019s care.\nMs. Murphy was not in a condition where she could sign for herself, and Mr. Murphy deferred to Ms. Munn as having authority to sign the paperwork. Ms. Munn signed her own name and indicated she was Ms. Murphy\u2019s authorized representative, and there is no credible evidence in the record that she qualified or limited her authority in any way. The staff at Century Care would call Ms. Munn for authority to give treatment to Ms. Murphy and Ms. Munn would authorize treatment to be given to her daughter, including surgical authorizations at the local hospital.... Further, Century Care had no prior relationship with Ms. Murphy that would put it on notice if Ms. Munn lacked or exceeded the authority given by her daughter.\nAll of the evidence indicated that Ms. Munn was consulted about and made decisions regarding her daughter\u2019s medical treatment, but it does not indicate that Ms. Munn was authorized as or acted as if she were authorized to be Ms. Murphy\u2019s general agent in matters such as arbitration agreements. Defendants also argue that \u201cMr. Murphy deferred to Ms. Munn as having authority to sign the paperwork[;]\u201d defendants do not argue that Ms. Murphy made any manifestation of Ms. Munn\u2019s authority at the time of the signing of the paperwork as at that time she was \u201cnot responsive\u201d and unable \u201cto speak or communicate.\u201d (emphasis added.) We again note that \u201c[t]he scope of an agent\u2019s apparent authority is determined not by the agent\u2019s own representations but by the manifestations of authority which the principal accords to h[er].\u201d McGarity at 109, 349 S.E.2d at 313. Defendants have not demonstrated that the trial court\u2019s factual findings were not supported by the evidence nor that the trial court erred in its conclusion that Ms. Munn did not have apparent authority to enter into an arbitration agreement on Ms. Murphy\u2019s behalf.\nDefendants end their argument regarding apparent authority with case law regarding \u201cproviding medical care to incompetent patients[.]\u201d However, consent for medical care for another person who is unable to consent is a completely different issue than being an agent who has the authority to enter into a contract such as an arbitration agreement. Ms. Munn\u2019s authority to consent to medical care for Ms. Murphy is not an issue in this case. We agree with the trial court\u2019s conclusion that Ms. Munn was not the apparent agent of Ms. Murphy.\n3. N.C. Gen. Stat. \u00a7 90-21.13\nDefendants also contend that N.C. Gen. Stat. \u00a7 90-21.13 gave Ms. Munn the authority to consent to an arbitration agreement on behalf of Ms. Murphy. Even assuming that plaintiff is incorrect in arguing that defendants did not properly preserve this issue for appeal, the portion of N.C. Gen. Stat. \u00a7 90-21.13(c) upon which defendants\u2019 argument relies did not become effective until 2007; Ms. Murphy died in 2005. See N.C. Gen. Stat. \u00a7 90-21.13 (2005), (2007). Furthermore, the 2005 version of N.C. Gen. Stat. \u00a7 90- 21.13 is inapplicable to arbitration agreements. The statute is entitled \u201c[ijnformed consent to health care treatment or procedure\u201d and the statutory language addresses consent for health care but does not mention authority to enter into contractual arrangements such as an arbitration agreement. See N.C. Gen. Stat. \u00a7 90-21.13 (2005) (emphasis added). Defendants have not presented any authority or argument that arbitration is a form of \u201chealth care treatment or procedure\u201d or that arbitration is a necessary corollary to any \u201chealth care treatment or procedure.\u201d Id. The fact that an arbitration provision was included within an admission agreement which dealt almost entirely with financial responsibility for payment for \u201chealth care treatment or procedure [s]\u201d in no way transforms the provisions of the agreement regarding arbitration into consent for \u201chealth care treatment or procedure[s].\u201d Id.\n4. Reliance\nDefendants also argue that they reasonably relied on Ms. Munn\u2019s representations that she was Ms. Murphy\u2019s agent. However, the only \u201crepresentation\u201d defendants direct our attention to is Ms. Munn\u2019s signing of the documents. The fact that Ms. Munn signed documents for the admission and treatment of Ms. Murphy in no way indicates she was Ms. Murphy\u2019s agent, as it does not indicate any manifestation of authority by Ms. Murphy. As noted above, \u201c[a]gency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.\u201d Colony Assocs. at 637-38, 300 S.E.2d at 39. Ms. Murphy never manifested any form of consent which indicated that Ms. Munn was acting as her agent. See id. We agree with the trial court that defendants could not have reasonably relied on any representation that Ms. Munn was Ms. Murphy\u2019s agent.\n5. Other Defenses\nWe need not address defendants\u2019 next argument regarding other defenses plaintiff might raise as defendants concede that this argu merit is based upon \u201cthis Court finding] that Judge Joseph\u2019s conclusions about actual or apparent agency are not supported by competent evidence,\u201d and we have not so determined.\n6. Public Policy\nDefendants finally argue that \u201c[h]olding that signature by a \u2018responsible party\u2019 is not legally binding in an admission agreement will force nursing homes to require legal guardianship or power of attorney signatures for each and every admission.\u201d The fallacy in defendants\u2019 argument is its failure to recognize the various components of the admission document. The primary focus of the admission document was to secure payment for the services rendered to Ms. Murphy. Neither this Court nor the trial court below has concluded that \u201ca \u2018responsible party[\u2019s]\u2019 signature is not legally binding in an admission agreement\u201d as to the matters within the scope of the responsible party\u2019s authority. A nursing home may obtain consent to health care under N.C. Gen. Stat. 90-21.13 from an appropriate person as designated by the statute when the patient is unable to make or communicate her own decisions, and a nursing home can have a \u201cresponsible party\u201d contract to be financially responsible for payment for services provided to a patient without any sort of authorization by the patient. We conclude only that a \u201cresponsible party\u201d must have some form of legal authority to enter into an arbitration agreement on behalf of the patient for the arbitration agreement to be binding upon the patient. There is no undue burden on families or medical facilities from our recognition of the long-standing tenets of the laws of agency and contract which require some form of legal authority, which could include agency, guardianship or power of attorney, for one person to contract away the right of another person to seek legal redress in our court system. This decision in no way impairs a \u201cresponsible party\u2019s\u201d ability to contract for needed medical services or payment for those services. This argument is overruled.\nB. Estoppel\nDefendants next contend that Ms. Murphy\u2019s \u201cestate is estopped from denying the validity of the contract executed on Ms. Murphy\u2019s behalf.\u201d (Original in all caps.) However, defendants did not plead the affirmative defense of estoppel; accordingly, defendants may not argue this issue on appeal. See King v. Owen, 166 N.C. App. 246, 249-50, 601 S.E.2d 326, 328 (2004) (\u201cAs part of its argument under its first assignment of error, Chicago Title argues that plaintiffs are equitably estopped from denying their agreement to the arbitration provision. North Carolina Rules of Civil Procedure, Rule 8(c) requires that certain affirmative defenses, including estoppel and waiver, must be set forth affirmatively in a party\u2019s pleading. In its answer, Chicago Title pled eight separate defenses to plaintiffs\u2019 complaint, including laches and failure to mitigate damages. Neither estoppel nor waiver were pled as defenses by Chicago Title in this matter. The record before this Court is devoid of any indication that equitable estoppel was raised by Chicago Title before the trial court. Chicago Title cannot swap horses between courts in order to obtain a better mount on appeal.\u201d)\nC. Ratification\nDefendants also contend that Ms. Murphy \u201cratified the arbitration agreement executed by her mother on her behalf by her actions and inaction after she came out of her coma-like state.\u201d (Original in all caps.) Again, defendants failed to make any allegation of ratification in its pleadings to the trial court, and therefore we will not consider this issue. See Robinson v. Powell, 348 N.C. 562, 566-67, 500 S.E.2d 714, 717 (1998) (\u201cRatification is an affirmative defense which must be affirmatively pled. Failure to raise an affirmative defense in the pleadings generally results in a waiver thereof. .... Defendants not having pled the affirmative defense of ratification in either his answer or his motion for summary judgment, the issue of ratification was not before the trial court. In fact, the Court of Appeals sua sponte raised the issue on appeal. Defendants\u2019 failure to assert ratification as an affirmative defense bars that issue being raised by him, or by the Court of Appeals, on appeal.\u201d)\nD. Unconscionability\nLastly, defendants contend that \u201cplaintiff cannot establish procedural or substantial unconscionability of the arbitration agreement.\u201d (Original in all caps.) As we have concluded that Ms. Munn had no authority to act as the agent of Ms. Murphy when she signed the arbitration agreement, Ms. Murphy\u2019s estate is not bound by the agreement. Accordingly, we need not address any arguments by Ms. Murphy as to unconscionability of the agreement or plaintiffs opposing arguments.\nV. Conclusion\nWe conclude that the trial court\u2019s findings of fact are fully supported by the evidence and its conclusions of law based upon these findings are correct. Therefore, we affirm the order of the trial court denying defendants\u2019 motion to compel arbitration and granting plaintiff\u2019s motion to dismiss defendants\u2019 claim for arbitration.\nAFFIRMED.\nChief Judge MARTIN and Judge ERVIN concur.\n. The record does not contain a motion from plaintiff to dismiss defendants\u2019 claim for arbitration, though one was apparently filed.\n. Defendants\u2019 reference to Ms. Munn as \u201cresponsible party\u201d is correct, as the admission document identifies her as such. We note that the terminology of \u201cresponsible party\u201d as used in the admission document generally is identifying a signator other than the \u201cresident\u201d as the party who will be financially responsible for payment for services rendered to the \u201cresident.\u2019\u2019There is no indication in the record before us that Ms. Munn challenged her own personal liability under the admission document, although the issue of her personal liability for payment is not before us in this case.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Ferguson, Stein, Chambers, Gresham & Sumter, P.A., by Adam Stein and Anne Duvoisin, for plaintiff-appellee.", "Yates, McLamb & Weyher, L.L.P., by Barry S. Cobb, for defendant-appellants." ], "corrections": "", "head_matter": "IRIS B MUNN, Administratrix of the Estate of DEMETRA C.B. MURPHY, Deceased, Plaintiff v. HAYMOUNT REHABILITATION & NURSING CENTER, INC. and CENTURY CARE OF FAYETTEVILLE, INC., Defendant\nNo. COA10-105\n(Filed 21 December 2010)\n1. Arbitration and Mediation\u2014 no valid arbitration agreement\nThe trial court did not err in determining that there was no valid arbitration agreement between the deceased or her estate and defendant. There was no actual or apparent authority for the deceased\u2019s mother to act as her agent in signing the arbitration agreement, N.C.G.S. \u00a7 90-21.13 was inapplicable, and defendant could not have reasonably relied on any representation that the deceased\u2019s mother was her agent. Defendant\u2019s public policy argument was also rejected.\n2. Estoppel\u2014 affirmative defense \u2014 not plead at trial level\nDefendant\u2019s argument that plaintiff was estopped from denying the validity of a contract executed on behalf of the deceased was rejected where defendant did not plead the affirmative defense of estoppel at the trial level.\n3. Arbitration and Mediation\u2014 ratification of arbitration agreement \u2014 not plead at trial level\nDefendant\u2019s argument that the deceased ratified an arbitration agreement executed by her mother on her behalf was rejected where defendant did not make any allegation of ratification in its pleadings to the trial court.\n4. Arbitration and Mediation\u2014 unconscionable agreement\u2014 issue not addressed\nPlaintiffs argument that an arbitration agreement was unconscionable was not addressed as the Court of Appeals determined that plaintiff was not bound by the agreement.\nAppeal by defendants from order entered on or about 4 August 2009 by Judge Shannon R. Joseph in Superior Court, Cumberland County. Heard in the Court of Appeals 30 August 2010.\nFerguson, Stein, Chambers, Gresham & Sumter, P.A., by Adam Stein and Anne Duvoisin, for plaintiff-appellee.\nYates, McLamb & Weyher, L.L.P., by Barry S. Cobb, for defendant-appellants." }, "file_name": "0632-01", "first_page_order": 656, "last_page_order": 668 }