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  "name": "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",
  "name_abbreviation": "Bookman v. Britthaven, Inc.",
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    "judges": [
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    "parties": [
      "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"
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      {
        "text": "HUNTER, Robert C., Judge.\nDefendant Britthaven, Inc. d/b/a Britthaven of Wilson (\u201cBritthaven\u201d) appeals from the trial court\u2019s order denying its motion to compel arbitration. On appeal, Britthaven argues that apparent authority existed to bind the principal to the arbitration agreement, and therefore, the trial court erred by ruling that the arbitration agreement is unenforceable.\nAfter careful review, we reverse the trial court\u2019s order and remand for further proceedings.\nBackground\nOn 24 August 2010, Caxthina Dew (\u201cMrs. Dew\u201d) was admitted into Britthaven after being discharged from Wilson Medical Center following surgery on her broken femur. Mrs. Dew was awake, alert, lucid, and responsive to questions when she arrived at Britthaven. However, she did not sign any of the legal documents needed to admit her into the facility. Her husband, Frederick Dew (\u201cMr. Dew\u201d), and her daughter, Terri Dew Bookman (\u201cMrs. Bookman\u201d), signed all relevant documents. They met with Janet Watson (\u201cMs. Watson\u201d), \u2022 Britthaven\u2019s admission coordinator. Ms. Watson filed an affidavit with the trial court averring that Mr. Dew and Mrs. Bookman presented themselves as having authority to sign all documents needed on Mrs. Dew\u2019s behalf prior to her admission into Britthaven. Ms. Watson presented Mr. Dew and Mrs. Bookman with twelve documents, including one titled \u201cRESIDENT AND FACILITY ARBITRATION AGREEMENT - READ CAREFULLY\u201d (\u201cthe arbitration agreement\u201d). When it came time to sign the documents, Mr. Dew had Mrs. Bookman sign his name, \u201cFred Dew,\u201d on the arbitration agreement and all other admission documents. Mrs. Bookman primarily signed Mr. Dew\u2019s name on signatory lines intended for either the resident\u2019s signature or the signature of the resident\u2019s representative or responsible party. For example, on the \u201cFacility Resident Directory Opt Out Instructions,\u201d Mrs. Bookman signed \u201cFred Dew\u201d on the line reserved for the \u201cSignature of Resident or Legal Representative.\u201d\nMrs. Dew was discharged from Britthaven on or about 7 September 2010. She died on 3 November 2010, allegedly due to complications with large pressure ulcers. On 28 September 2011, Mrs. Bookman filed a wrongful death action against Britthaven and four other defendants in her capacity as Administratrix of Mrs. Dew\u2019s estate (\u201cplaintiff\u2019). Britthaven moved to compel arbitration pursuant to the arbitration agreement bearing Mrs. Bookman\u2019s signature of Mr. Dew\u2019s name. At the hearing on Britthaven\u2019s motion, plaintiff challenged the validity of the arbitration agreement by arguing that neither Mrs. Bookman nor Mr. Dew had actual authority to execute the arbitration agreement on Mrs. Dew\u2019s behalf. The trial court agreed, entering an order denying Britthaven\u2019s motion to compel arbitration, but did not determine whether Mr. Dew or Mrs. Bookman had apparent authority to sign the arbitration agreement on Mrs. Dew\u2019s behalf. That order was appealed to this Court, where the case was remanded by unpublished opinion for findings of fact and conclusions of law relating to the issue of apparent authority. See Bookman v. Britthaven, Inc., No. COA12-663, 2013 WL 1314965 (N.C. Ct. App. April 2, 2013) (Bookman J\u201d).\nOn remand, Britthaven\u2019s request to present further evidence on the issue of apparent authority went unanswered by plaintiff\u2019s counsel and the trial court. The trial court entered a new order drafted by plaintiff\u2019s counsel without conducting an evidentiary hearing or considering any further evidence. It concluded that neither Mr. Dew nor Mrs. Bookman had \u201clegal authority, expressed authority, actual authority, implied authority, or apparent authority\u201d to sign the arbitration agreement on Mrs. Dew\u2019s behalf, and thus it denied Britthaven\u2019s motion to compel arbitration. Britthaven filed timely notice of appeal from the order.\nDiscussion\nI. Apparent Authority\nBritthaven\u2019s sole argument on appeal is that the trial court erred by denying its motion to compel arbitration because Mr. Dew and Mrs. Bookman had apparent authority to sign the arbitration agreement on Mrs. Dew\u2019s behalf. After careful review, we reverse and remand.\nBritthaven\u2019s appeal from the trial court\u2019s order denying its motion to compel arbitration is interlocutory. Appeals may be taken from interlocutory orders in two circumstances:\nFirst, the trial court may certify that there is no just reason to delay the appeal after it enters a final judgment as to fewer than all of the claims or parties in an action. N.C.G.S. \u00a7 1A-1, Rule 54(b) [2013]. Second, a party may appeal an interlocutory order that \u201caffects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment.\u201d\nDep\u2019t of Transp. v. Rowe, 351 N.C. 172, 174-75, 521 S.E.2d 707, 709 (1999) (citation omitted), cert. denied, 534 U.S. 1130, 151 L. E. 2d 972 (2002). This Court has previously held that \u201c[t]he right to arbitrate a claim is a substantial right which may be lost if review is delayed, and an order denying arbitration is therefore immediately appealable.\u201d U.S. Trust Co., N.A. v. Stanford Grp. Co., 199 N.C. App. 287, 289-90, 681 S.E.2d 512, 514 (2009) (citation and quotation marks omitted). Thus, we hold that Britthaven\u2019s appeal is properly before us.\n\u201cWhen a party disputes the existence of a valid arbitration agreement, the trial judge must determine whether an agreement to arbitrate exists.\u201d Sciolino v. TD Waterhouse Investor Servs., Inc., 149 N.C. App. 642, 645, 562 S.E.2d 64, 66, disc. review denied, 356 N.C. 167, 568 S.E.2d 611 (2002). \u201cThe 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.\u201d Ellision v. Alexander, 207 N.C. App. 401, 404, 700 S.E.2d 102, 106 (2010). \u201cAccordingly, 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.\u201d Sciolino, 149 N.C. App. at 645, 562 S.E.2d at 66.\n\u201cThe law of contracts governs the issue of whether an agreement to arbitrate exists.\u201d Brown v. Centex Homes, 171 N.C. App. 741, 744, 615 S.E.2d 86, 88 (2005). In order to hold an alleged principal contractually liable to a third party for the acts of his agent, the third party has the burden of proving that\na particular person was at the time acting as a servant or agent of the [principal]. An agent\u2019s authority to bind his principal cannot be shown by the agent\u2019s acts or declarations. This can be shown only by proof that the principal authorized the acts to be done or that, after they were done, he ratified them. One who seeks to enforce against an alleged principal a contract made by an alleged agent has the burden of proving the existence of the agency and the authority of the agent to bind the principal by such contract.\nSimmons v. Morton, 1 N.C. App. 308, 310, 161 S.E.2d 222, 223 (1968) (citations omitted).\nHere, the trial court was to determine whether Mr. Dew or Mrs. Bookman had apparent authority to bind Mrs. Dew as their principal to the arbitration agreement.\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.\nMunn v. Haymount Rehab. & Nursing Ctr., 208 N.C. App. 632, 639, 704 S.E.2d 290, 295 (2010) (citation and quotation marks omitted). Furthermore, \u201cthe principal cannot restrict his liability for acts of his agent within the scope of his apparent authority by limitations thereon of which the person dealing with the agent has not notice.\u201d Morpul Research Corp. v. Westover Hardware, Inc., 263 N.C. 718, 721, 140 S.E.2d 416, 419 (1965).\nThe law of apparent authority usually depends upon the unique facts of each case[.] . . . Thus, in a case where the evidence is conflicting, or susceptible to different reasonable inferences, the nature and extent of an agent\u2019s authority is a question of fact to be determined by the trier of fact. Where different reasonable and logical inferences may not be drawn from the evidence, the question is one of law for the court.\nFoote & Davies, Inc. v. Arnold Craven, Inc., 72 N.C. App. 591, 595, 324 S.E.2d 889, 893 (1985) (citations omitted).\nOn remand, the trial court found as fact that:\n13. Neither Frederick Washington Dew nor Terri Dew Bookman discussed with Carthina Roberson Dew anything with regards to consenting to any arbitration on her behalf on August 24, 2010 or at anytime relevant hereto.\n15. Carthina Roberson Dew did not delegate to Terri Dew Bookman or Frederick Washington Dew the right and/or authority to agree to any arbitration agreement on her behalf on August 24, 2010 or at anytime relevant hereto.\n18. Carthina Roberson 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.\n19. Carthina Roberson Dew did not hold Terry Dew Bookman nor Frederick Washington Dew out to Britthaven, Inc., as having or possessing the right and/or authority to execute or agree to any arbitration agreement on her behalf on August 24, 2010 or at anytime relevant hereto, nor did she make or indicate any manifestations of such authority to Britthaven, Inc.\n21. At no time during the admission procedure on August 24, 2010 or at anytime relevant hereto did Carthina Roberson Dew hold Terry Dew Bookman or Frederick Washington Dew out as possessing the right to agree or enter into any arbitration agreement on her behalf.\n22. At no time during the admission procedure on August 24, 2010 or at anytime relevant hereto did Carthina Roberson Dew permit Terry Dew Bookman or Frederick Washington Dew to represent that they possessed the right or authority to agree or enter into any arbitration agreement on her behalf. (Emphasis added.)\nBased on these findings of fact, the trial court concluded that neither Mr. Dew nor Mrs. Bookman had apparent authority to sign the arbitration agreement on Mrs. Dew\u2019s behalf and that any belief on Britthaven\u2019s part of apparent authority was unreasonable and unjustified under the circumstances. Even assuming that the trial court\u2019s findings of fact are supported by competent evidence and are thus binding on appeal, Ellision, 207 N.C. App. at 404, 700 S.E.2d at 106, they are insufficient to support the trial court\u2019s conclusion that no apparent authority existed to bind Mrs. Dew to the arbitration agreement.\nSignificantly, the trial court made no factual findings as to whether Mrs. Dew conferred authority on Mrs. Bookman or Mr. Dew to conduct the admission process in general on her behalf. Thus, its analysis as to the arbitration agreement is incomplete. Ms. Watson averred that both Mr. Dew and Mrs. Bookman \u201cpresented themselves as having full authority to act on behalf of Mrs. Dew, and to sign and execute any and all necessary documents on her behalf.\u201d Indeed, not only does plaintiff not challenge the enforceability of any of the eleven other contracts signed by Mrs. Bookman and Mr. Dew on Mrs. Dew\u2019s behalf, Mrs. Bookman averred that she signed documents in Mr. Dew\u2019s name so that Mrs. Dew could be \u201cadmitted\u201d into Britthaven. The complaint itself states that Mrs. Dew was \u201cadmitted\u201d into Britthaven, and the trial court found as fact that \u201c[Mrs. Dew] was admitted as a resident\u201d of Britthaven. Ms. Watson averred that the paperwork signed by Mrs. Bookman and Mr. Dew is \u201cnecessary\u201d for a resident to be admitted into Britthaven. Therefore, the trial court\u2019s finding of fact that Mrs. Dew was \u201cadmitted\u201d and plaintiff\u2019s own concession that Mrs. Dew was \u201cadmitted\u201d tends to show that at the very least, there may have been actual or apparent authority conferred on Mr. Dew or Mrs. Bookman to execute some or all of the contracts that were needed in order to complete the admission process.\nIf such authority did exist, the issue regarding the apparent authority to enter into the arbitration agreement would become one of scope. The North Carolina Supreme Court has established that \u201c[t]he principal is liable upon a contract duly made by his agent with a third person . . . when the agent acts within the scope of his apparent authority, unless the third person has notice that the agent is exceeding his actual authority.\u201d Morpul Research Corp., 263 N.C. at 721, 140 S.E.2d at 418. Throughout the admission process, Mrs. Bookman and Mr. Dew signed twelve contracts with Britthaven on Mrs. Dew\u2019s behalf. Of those twelve contracts, they now challenge the enforceability of only one - the arbitration agreement. Mrs. Bookman signed Mr. Dew\u2019s name on signatory lines reserved for Mrs. Dew or her \u201cLegal Representative,\u201d \u201cResponsible Party,\u201d and \u201cAgent or Representative.\u201d Ms. Watson averred that neither Mr. Dew nor Mrs. Bookman \u201craised any objection to agreeing to or signing any of the documents that I presented them\u201d and that \u201c[a]t no time during the admission process, did Mr. Dew or his daughter make any statement or take any action to suggest that their authority to act on behalf of Mrs. Dew was limited in any way or that either lacked the authority to sign any of the paperwork on her behalf.\u201d Given that Mrs. Bookman and Mr. Dew may have had authority to conduct the admission process for Mrs. Dew, and Ms. Watson averred that she was unaware of any limitation on this authority if it existed, there remains evidence which the trial court failed to address in its findings of fact and conclusions of law \u201cthat would allow, but not require, a finding of apparent authority\u201d to enter into the arbitration agreement. Bookman I, at *4.\nRather than allowing Britthaven, the party bearing the burden of proof, to put on further evidence as to these matters after remand from Bookman I, the trial court entered new findings of fact taken verbatim from plaintiff\u2019s proposed order. Such findings are only supported by affidavits from Mrs. Bookman and Mr. Dew that were initially presented to the trial court in support of plaintiffs argument that there was r\u00edo actual authority to bind Mrs. Dew to the arbitration agreement. Plaintiff presented no evidence for the purpose of resolving the issue of apparent authority. Thus, because the trial court denied Britthaven the opportunity to carry its burden of establishing apparent authority and failed to address all issues raised by the evidence it had before it, we conclude that it did not fully comply with the Bookman I Court\u2019s mandate to enter \u201cfurther findings of fact and conclusions of law regarding whether either Mr. Dew or [Mrs.] Bookman had apparent authority to enter into the arbitration agreement in this case.\u201d Bookman I, at *4; see Small v. Small, 107 N.C. App. 474, 477, 420 S.E.2d 678, 681 (1992) (\u201cIn atrial 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.\u201d).\nBecause the trial court failed to enter findings of fact or conclusions of law resolving: (1) whether Mr. Dew or Mrs. Bookman had authority to bind Mrs. Dew to the other admission contracts; (2) whether the arbitration agreement fit into the scope of this potential authority; (3) whether there was any limitation on this potential authority; and (4) whether Britthaven was aware of any limitation on this authority if one existed, we must reverse the trial court\u2019s order and remand. We further instruct the trial court to conduct an evidentiary hearing as needed to resolve these outstanding issues.\nConclusion\nFor the reasons stated above, we reverse the trial court\u2019s order denying Britthaven\u2019s motion to compel arbitration and remand for further proceedings.\nREVERSED AND REMANDED.\nJudges McGEE and ELMORE concur.\n. Britthaven is the only defendant that is a party to this appeal.\n. Plaintiff contends that under the doctrine of the law of the case, the Bookman I Court determined that \u201cthe [trial court\u2019s] additional findings fully support the conclusion of law that neither Mr. Dew nor Mrs. Bookman had apparent authority to execute the Arbitration Agreement on behalf of Mrs. Dew and that Defendant-Britthaven\u2019s Motion to Compel Arbitration must be denied.\u201d However, the Bookman I Court explicitly stated that \u201c[njothing in this opinion is intended to express any view on the merits of the apparent agency issue,\u201d and \u201c[w]e do not address plaintiff\u2019s arguments regarding the merits of the apparent agency argument because that issue must be considered in the first instance by the trial court.\u201d Bookman I, at *1, *4. Thus, plaintiff\u2019s argument is overruled. See Goldston v. State, 199 N.C. App. 618, 624, 683 S.E.2d 237, 242 (2009) (\u201c[T]he law of the case applies only to issues that were decided in the former proceeding.\u201d).",
        "type": "majority",
        "author": "HUNTER, Robert C., Judge."
      }
    ],
    "attorneys": [
      "Taylor Law Office, by W. Earl Taylor, Jr., for plaintiff-appellee.",
      "Williams Mullen, by Brian C. Vick and Elizabeth D. Scott, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "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\nNo. COA13-948\nFiled 15 April 2014\n1. Appeal and Error \u2014 interlocutory orders and appeals \u2014 order denying arbitration\nAn order denying a motion to compel arbitration was interlocutory but immediately appealable.\n2. Arbitration and Mediation \u2014 motion to compel \u2014 documents signed by family\nA motion to compel arbitration in a wrongful death action was remanded where decedent was admitted to Britthaven after being discharged from the hospital after surgery, the decedent\u2019s husband and adult daughter signed all of the documents when checking decedent into Britthaven following surgery, and the question of whether arbitration should be compelled was remanded for further findings on whether the husband and daughter had the apparent authority to bind decedent.\nAppeal by defendant from order entered 10 May 2013 by Judge Milton F. Fitch, Jr. in Wilson County Superior Court. Heard in the Court of Appeals 21 January 2014.\nTaylor Law Office, by W. Earl Taylor, Jr., for plaintiff-appellee.\nWilliams Mullen, by Brian C. Vick and Elizabeth D. Scott, for defendant-appellant."
  },
  "file_name": "0454-01",
  "first_page_order": 464,
  "last_page_order": 471
}
