Jane Doe 1, as Legal Guardian of the Person and Estate of Jane Doe 2, an Incapacitated Adult v. Carmel Operator, LLC d/b/a Carmel Senior Living

FILED
Mar 17 2020, 8:43 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Ashley N. Hadler CARMEL OPERATOR, LLC &
Garau Germano, P.C. SPECTRUM RETIREMENT
Indianapolis, Indiana COMMUNITIES, LLC
ATTORNEY FOR AMICUS CURIAE Rafael P. McLaughlin
INDIANA TRIAL LAWYERS Katherine M. Haire
Reminger Co., LPA
ASSOCIATION
Fort Wayne, Indiana
James E. Stoltz
Gerling Law Offices, P.C. ATTORNEYS FOR APPELLEE
Evansville, Indiana CERTIPHI SCREENING, INC.
Chad J. Kaldor
Peter T. Tschanz
Littler Mendelson, P.C.
Columbus, Ohio
ATTORNEYS FOR APPELLEE
MICHAEL DAMON SULLIVAN
David G. Field
Jeffrey M. Kraft
Schultz & Pogue, LLP
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020 Page 1 of 27
 Jane Doe 1, as Legal Guardian March 17, 2020
of the Person and Estate of Jane Court of Appeals Case No.
Doe 2, an Incapacitated Adult, 19A-CT-2191
Appellant-Plaintiff, Appeal from the Hamilton Superior
Court
v. The Honorable Michael A. Casati,
Judge
Carmel Operator, LLC d/b/a Trial Court Cause No.
Carmel Senior Living, et al., 29D01-1811-CT-11534
Appellees-Defendants.

Bailey, Judge.

Case Summary
[1] Jane Doe I (“Guardian”), as legal guardian of the person and estate of Jane

Doe II (“Resident”), an incapacitated adult, appeals the trial court order

compelling arbitration of Resident’s claims against Carmel Operator, LLC,

d/b/a Carmel Senior Living (“CSL”), Spectrum Retirement Communities

(“Spectrum”), Michael D. Sullivan (“Sullivan”), and Certiphi Screening, Inc.

(“Certiphi”).

[2] We affirm.

Issues
[3] Guardian raises two issues on appeal which we restate as follows:

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 1. Whether the trial court erred by enforcing the arbitration
agreement and compelling arbitration of Resident’s claims
against CSL, Spectrum, and Sullivan1 despite Guardian’s
claim that the agreement is unconscionable.

2. Whether the trial court erred by enforcing the arbitration
agreement and compelling arbitration of Resident’s claims
against Certiphi based upon equitable estoppel.

Facts and Procedural History
[4] Prior to June 1, 2018, seventy-seven-year-old Resident was a resident of

Wellbrooke of Wabash, an assisted living facility located in Wabash, Indiana.

On approximately May 1, 2018, Wellbrooke of Wabash advised Guardian that

it could no longer care for Resident due to Resident’s tendency to elope from

the facility. Guardian was provided until the end of the month to find new

accommodations for Resident.

[5] On May 7, Guardian contacted CSL, and she visited the facility on May 8.

Guardian informed CSL that she had also toured other facilities in search of a

placement for Resident. Guardian authorized a nurse at CSL to assess Resident

on or about May 16, 2018. The assessment revealed serious cognitive issues

and memory impairment, and CSL was concerned that Resident would be at

risk for elopement from its unsecured unit. Because Guardian did not want to

1
Guardian does not challenge the applicability of the arbitration agreement to Spectrum and Sullivan as
non-signatories; rather, she treats CSL, Spectrum, and Sullivan as one.

Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020 Page 3 of 27
 place Resident in a secured facility, CSL agreed to accept Resident into its

unsecured unit on the conditions that Resident, upon arrival, had to tour the

memory care unit and, if Resident attempted to elope, she would be transferred

to that memory care unit. Guardian agreed to those terms.

[6] On May 23, 2018, Guardian went to CSL’s facility, paid a deposit, and received

a move-in packet. Resident’s scheduled move-in date was June 4, 2018. On the

morning of May 31, CSL e-mailed an Assisted Living and Memory Care

Residency Agreement (“Residency Agreement”) to Guardian. CSL requested

that Guardian either come to CSL to execute the agreement or that she print,

sign, and return it.

[7] Guardian subsequently contacted CSL and scheduled a meeting for 1:00 p.m.

on June 1, 2018, in order to review and sign the Residency Agreement, among

other things. Guardian was unable to make that appointment; however, at

approximately 4:45 p.m. that day, she delivered a copy of the Residency

Agreement that she had already executed, along with two lease checks, to a

CSL move-in coordinator. At that time, CSL provided Guardian with a copy

of the Residency Agreement that had been signed by Rita Shew (“Shew”), the

Executive Director of CSL, and Guardian “was told to sign the Residency

Agreement.” App. Vol. III at 171.2 At that time, Guardian also received the

keys to Resident’s apartment. CSL did not explain the Residency Agreement to

2
All references to the appendices relate to Appellant’s appendices unless otherwise specified.

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 Guardian, and Guardian did not ask CSL for any explanations of the

Residency Agreement. On June 4, 2018, Shew signed the Residency

Agreement that Guardian had signed and provided to CSL on June 1. Resident

moved into CSL on June 4.

[8] The Residency Agreement was twenty-two pages long, exclusive of the table of

contents and addenda. The agreement contained approximately sixty-one

pages of addenda. Section III of the agreement stated in relevant part: “You

may terminate this Residency Agreement at any time, with or without cause, by

giving thirty (30) days prior written notice to the Community’s Executive

Director, or such other person as the Executive Director may designate ….”

Section V(J) of the agreement stated in relevant part: “This Residency

Agreement shall be construed and enforced in accordance with the laws of the

State in which the Community is located and shall be binding upon and inure

to the benefit of the parties hereto ….” App. V. II at 58. Section V(L) of the

agreement stated, in relevant part:

If the person signing this Residency Agreement is not the
Resident, the Community both requires and relies upon the
representation by the person that signs this Residency
Agreement, as Legal Representative, that he or she has been
authorized by the Resident to enter into and bind the Resident to
each and every one of the terms and conditions of this Residency
Agreement, both financial and non-financial, without any
restriction whatsoever. This authorization expressly includes but
is not limited to the authority to bind the Resident to the Binding
Arbitration Agreement. …

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 Id. at 59.

[9] Section VII of the Residency Agreement was entitled, in bold capital letters,

“BINDING ARBITRATION AGREEMENT” (Arbitration Agreement). Id.

at 63. The Arbitration Agreement stated, in relevant part:

THIS AGREEMENT GOVERNS IMPORTANT LEGAL
RIGHTS. PLEASE READ IT CAREFULLY AND IN ITS
ENTIRETY BEFORE SIGNING IT.

The parties wish to work together to resolve any disputes in a
timely fashion and in a manner that they believe will minimize
both of their legal costs. Therefore, in consideration of the
mutual promises in this Agreement, the Community and the
Resident hereby agree as follows:

A. What is Arbitration?

… In arbitration, the disputes are heard and decided by a private
individual called an arbitrator. The disputes will not be heard or
decided by a judge or jury under any circumstance. However,
just as in a court case, each party can be represented by an
attorney.

B. Disputes to be Arbitrated

Any and all claims or controversies involving the Community,
Resident and/or Legal Representative arising out of or in any
way relating to this Arbitration Agreement or any of the
Resident’s stays at the Community, including all disputes raised
by the Community, Resident or Legal Representative regarding
enforcement or interpretation of this Agreement, and including
but not limited to all disputes involving questions of waiver,

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 unconscionability, voidability or arbitrability, whether arising out
of State or Federal law, whether existing now or in the future,
whether sounding in breach of contract, tort or breach of
statutory duties (including, without limitation, claims based on
personal injury or death or claim for unpaid Community
charges), regardless of the basis for any duty or of the legal
theories upon which the claim is asserted, shall be submitted to
and resolved by binding arbitration. This includes claims against
the Community, its employees, agents, officers, directors, any
parent, subsidiary or affiliate of the Community.

C. Binding Nature of Arbitration

The decision rendered by the arbitrator shall be final and binding,
… There shall be no appeal of the arbitrator’s decision by either
party. The decision of the arbitrator shall be binding on all
parties to the arbitration, and all persons whose claim is derived
through or on behalf of the Resident, including, but not limited
to, any claims on behalf of any … guardian, … [or] legal
representative … of the Resident. The parties agree and
acknowledge that any award issued pursuant to an arbitration
hearing shall not include any amount for exemplary or punitive
damages.

D. Who Will Conduct Arbitration

***

In the event that a dispute arises, a written demand for
arbitration shall be made by the person(s) (the “Claimant” or
“Claimants”) asserting that a dispute exists ….

***

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 … The Claimants and Respondents shall agree upon an
Arbitrator ….

***

The Arbitrator shall resolve all disputes between the Claimants
and Respondents, without any restriction whatsoever, as it is the
parties’ intent to completely avoid the court system in such
matters.

***

E. Laws Governing Arbitration

The parties agree that the Community is engaged in interstate
commerce and that this Agreement to arbitrate disputes and the
arbitration shall be governed by the Federal Arbitration Act. If
for any reason there is a finding that the Federal Arbitration Act
cannot be applied to this Agreement, then the parties hereby
make it clear their intent that their disputes/claims be resolved
pursuant to the arbitration section of the Revised Code or such
similar statutes of the state in which the Community is located.

F. Confidentiality

You and Your Legal Representative and the Community agree to
keep all arbitration proceedings strictly confidential, …

G. Survival and Durability Provision

This Agreement shall survive the termination of, and changes to,
the Assisted Living Residency Agreement and Addenda and shall
apply to any of the Resident’s admissions to the Community. If

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 any term, phrase, or portion thereof of this Arbitration
Agreement is deemed invalid or unenforceable, the remaining
portions shall nevertheless remain in force.

Id. at 63-65 (emphasis original).

[10] At the end of the Arbitration Agreement, there is a line for the initials of the

Resident, and Guardian initialed that line as follows: “AG (Guardian).” Id. at

65.

[11] The “SIGNATURE PAGE FOR ASSISTED LIVING RESIDENCY

AGREEMENT” immediately follows the Arbitration Agreement. Id. at 66

(emphasis original). It states, in relevant part:

The undersigned certifies that he/she has read this Assisted
Living Residency Agreement and its Addenda or that the
Residency Agreement and its Addenda have been fully explained
to him/her, that he/she understands their contents, and has
received a copy of the Residency Agreement and its Addenda
and that he/she is the Resident, or a person authorized by the
Resident or otherwise authorized to execute this Residency
Agreement and its Addenda and accept all of the terms therein.
…

Id. (emphasis added). Guardian signed that page and dated it June 1, 2018.

Shew also signed the signature page as the “Community Representative,” and

dated it June 1, 2018. Id. The addenda A through S3 follow the signature page,

3
Addendum B states only that it is “intentionally deleted.” Id. at 69.

Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020 Page 9 of 27
 and each addendum is dated June 1, 2018. Guardian and Shew signed each

addendum.

[12] On November 30, 2018, Guardian filed a complaint for breach of contract and

negligence against CSL, Spectrum,4 and Sullivan, who was an employee of

CSL. She alleged that, on or before August 7, 2018, Sullivan, while an

employee of CSL, sexually abused Resident and that CSL/Spectrum should be

held vicariously liable. On March 19, 2019, Guardian amended the complaint

to add Certiphi as a defendant who contracted with CSL to do a criminal

background check of Sullivan. The amended complaint alleged that CSL,

Spectrum, and Certiphi are liable for negligently failing to uncover in a criminal

background check Sullivan’s prior Indiana convictions of a sex crime and

murder.

[13] On January 25, 2019, CSL and Spectrum served Guardian with a Demand for

Arbitration. On February 9, counsel for Guardian and Resident advised CSL

that “the Arbitration Agreement is not valid and we will not agree to

[CSL/Spectrum’s] request to proceed with arbitration on that basis.” App. Vol.

II at 125. All defendants to the lawsuit subsequently moved the trial court to

dismiss and/or stay the trial court proceedings and to compel arbitration.

Guardian argued that the Arbitration Agreement is unconscionable, that the

4
Spectrum is the management company of CSL.

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 trial court should find the Arbitration Agreement to be invalid, and that the

dispute should remain before the trial court.

[14] Following a hearing on the motions, on August 20, 2019, the trial court issued

an Order denying defendants’ motions to dismiss but granting the defendants’

motions to compel arbitration and stay proceedings. The August 20 order

stated, in relevant part:

***

The Court, in granting the Motions to Compel Arbitration,
concludes that the Arbitration Agreement is a valid and
enforceable contract to arbitrate the disputes that are the subject
of the Plaintiffs’ Amended Complaint. The Court further finds
that the Arbitration Agreement clearly and unmistakably
delegates matters of arbitrability and unconscionability to an
arbitrator, including whether Plaintiffs’ claims against all parties
should be subject to arbitration. Accordingly, it is for the
arbitrator to decide the issues relating to Plaintiffs’
unconscionability defense and whether Plaintiffs’ claims against
Defendants are subject to Arbitration. However, even if the issue
of unconscionability of the Arbitration Agreement were before
the Court, the Court would find that such provision was not
unconscionable.

Additionally, Certiphi Screening, although not a party to the
Arbitration Agreement, wants the claims that Plaintiffs have
asserted against it decided at the binding arbitration required by
the Arbitration Agreement. The Court finds the plain language
of the Arbitration Agreement expressly covers claims against
“agents.” Considering Plaintiffs’ allegations in this case and
drawing all reasonable inferences in favor of arbitration, the
Court finds that Plaintiffs’ agency theory of liability falls within

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 the scope of the Arbitration Agreement. For this reason, the
Court finds Plaintiffs’ claims against Certiphi Screening are
subject to arbitration.

Lastly, the Court finds both types of equitable estoppel present
themselves in this case and therefore mandate arbitration of
Plaintiffs’ claims against Certiphi Screening.

App. Vol. II at 24-25. This appeal ensued.

Discussion and Decision
Existence and Validity of Arbitration Agreement
[15] This is an appeal from an order compelling arbitration, which we review de

novo. Brumley v. Commw. Bus. Coll. Educ. Corp., 945 N.E.2d 770, 774-75 (Ind.

Ct. App. 2011).

The party seeking to compel arbitration has the burden of
proving the existence of a contract calling for arbitration.... After
a motion to compel arbitration has been made and supported, the
burden is on the non-movant to present evidence that the
supposed arbitration agreement is not valid or does not apply to
the dispute in question.

Id. at 775 (quotation and citation omitted).

[16] The Arbitration Agreement contained in the Residency Agreement states that

the Federal Arbitration Act (“FAA”), 9 USC § 1, et seq., applies to it. App. V.

II at 64.

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 Congress enacted the FAA to overcome judicial resistance to
arbitration and to declare a national policy favoring arbitration of
claims that parties contract to settle in that manner. Vaden v.
Discover Bank, 556 U.S. 49 … (2009). The FAA places arbitration
agreements on an equal footing with other contracts and requires
courts to enforce them according to their terms. Volt Info. Sci.,
Inc. v. Bd. of Tr. of Leland Stanford Junior Univ., 489 U.S. 468 …
(1989). Like other contracts, however, arbitration agreements
may be invalidated by generally applicable contract defenses,
such as fraud, duress, or unconscionability. Doctor’s Assocs., Inc.
v. Casarotto, 517 U.S. 681, 687 … (1996). State law contract
principles apply to determine whether parties have agreed to
arbitrate. MPACT Constr. Group, LLC v. Superior Concrete
Constructors, Inc., 802 N.E.2d 901, 906 (Ind. 2004).

Brumley, 945 N.E.2d at 776.

[17] When considering whether parties agreed to arbitrate a dispute, a reviewing

court must attempt to determine the intent of the parties at the time the contract

was made by examining the language used to express their rights and duties.

Progressive Se. Ins. Co., v. Empire Fire & Marine Ins. Co., 88 N.E.3d 188, 194 (Ind.

Ct. App. 2017); see also Maynard v. Golden Living, 56 N.E.3d 1232, 1238 (Ind. Ct.

App. 2016) (“If the [contract] language is unambiguous, we may not look to

extrinsic evidence to expand, vary, or explain the instrument but must

determine the parties’ intent from the four corners of the instrument.”). We

presume that contracts represent the freely bargained agreement of the parties,

“reflecting the principle that it is in the best interests of the public not to

unnecessarily restrict the freedom to contract.” City of New Albany v. Cotner, 919

N.E.2d 125, 134 (Ind. Ct. App. 2010), trans. denied; see also Sanford v. Castleton

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 Health Care Ctr., 813 N.E.2d 411, 416 (Ind. Ct. App. 2004) (“Under Indiana

law, a person is presumed to understand and assent to the terms of the contracts

he or she signs.”).

[18] Here, the language of the arbitration agreement clearly and plainly states that

the parties agree to “binding arbitration” of all disputes “arising out of the

Arbitration Agreement or the Resident’s stay at [CSL], … whether sounding in

breach of contract [or] tort ….” App. Vol. II at 63. The contract also clearly

states that the decision rendered by an arbitrator “shall be final and binding, …

[with] no appeal of the arbitrator’s decision by either party.” Id. Furthermore,

the arbitration agreement states in a stand-alone paragraph: “The Arbitrator

shall resolve all disputes between the [Resident and CSL], without any

restriction whatsoever, as it is the parties’ intent to completely avoid the court system

in such matters.” Id. at 64 (emphasis added).5 The language of the agreement is

unambiguous and clearly evinces the parties’ intent to submit disputes such as

the breach of contract and tort claims of Guardian to binding arbitration.

[19] Despite the plain language of the arbitration agreement, Guardian and Amicus

Curiae Indiana Trial Lawyers Association assert that the agreement is invalid

5
Guardian challenges only the validity of the arbitration agreement, not the entire residency agreement as a
whole. “If a party challenges the validity of the precise agreement to arbitrate, the court must address the
challenge before ordering compliance with that agreement, [Rent–A–Center, West, Inc. v. Jackson, -- U.S. --, 130
S.Ct. 2772, 2778, 177 L.Ed.2d 403 (2010),] whereas ‘a challenge to the validity of the contract as a whole,
and not specifically to the arbitration clause, must go to the arbitrator.’ Buckeye Check Cashing, Inc. v. Cardegna,
546 U.S. 440, 449, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006).” Brumley, 945 N.E.2d at 777. Therefore, to the
extent the arbitration agreement purports to make its own existence an arbitrable issue, that part of the
agreement is invalid. Id.

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 because it is unconscionable. Where—as here—a party challenges only the

validity of the arbitration agreement and not the entire contract as a whole, the

question of whether an agreement to arbitrate is invalid as unconscionable is a

question to be addressed by the courts, not an arbitrator. 6 Brumley, 945 N.E.2d

at 777 (“If a party challenges the validity of the precise agreement to arbitrate,

the court must address the challenge before ordering compliance with that

agreement, [Rent–A–Center, West, Inc. v. Jackson, -- U.S. --, 130 S.Ct. 2772, 2778,

177 L.Ed.2d 403 (2010),] whereas ‘a challenge to the validity of the contract as

a whole, and not specifically to the arbitration clause, must go to the arbitrator.’

Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449, 126 S.Ct. 1204, 163

L.Ed.2d 1038 (2006).”).7 If the court finds that the arbitration clause is valid

and enforceable and applicable to the disputes at issue, the court “shall order

the parties to proceed with arbitration.” Sanford, 813 N.E.2d at 416.

[20] Like other contracts, arbitration agreements may be invalidated by generally

applicable contract defenses, such as unconscionability. Brumley, 945 N.E.2d at

776. As a general rule, a contract may be unenforceable due to

unconscionability when there is “a great disparity in bargaining power which

leads the party with the lesser power to sign a contract unwillingly and unaware

of its terms.” McAdams v. Foxcliff Est. Cmty. Ass’n, Inc., 92 N.E.3d 1144, 1150

6
The trial court erred to the extent it held otherwise. However, any such error was harmless because the
trial court held that, to the extent the issue was before it, the arbitration contract was not unconscionable.
7
Therefore, to the extent the arbitration agreement purports to make its own existence an arbitrable issue,
that part of the agreement is invalid. Id.

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 (Ind. Ct. App. 2018) (quotation and citation omitted). An unconscionable

contract is one that “no sensible person not under delusion or duress or in

distress would make, and one that no honest and fair person would accept.” Id.

In Indiana,

[o]ur unconscionability jurisprudence is sub-divided into two
branches: substantive and procedural. Substantive
unconscionability refers to oppressively one-sided and harsh
terms of a contract, while procedural unconscionability involves
the manner and process by which the terms become part of the
contract.

Missler v. State Farm Ins. Co., 41 N.E.3d 297, 303 (Ind. Ct. App. 2015) (citations

omitted).

[21] Guardian alleges the arbitration agreement is both substantively and

procedurally unconscionable. She contends that it is substantively

unconscionable because its terms requiring arbitration and prohibiting judicial

review, requiring confidentiality of arbitration proceedings, and limiting

damages are “oppressively one-sided and harsh.” Appellant’s Br. at 19.

Essentially, Guardian asserts that the arbitration agreement is an “adhesion

contract,” i.e., “a standardized contract, which, imposed and drafted by the

party of superior bargaining strength, relegates to the subscribing party only the

opportunity to adhere to the contract or reject it.” Sanford, 813 N.E.2d at 417.

However, a contact is not unenforceable merely because one party enjoys

advantages over another, and an adhesion contract is not per se

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 unconscionable.8 Id.; see also, e.g., Four Seasons Mfg., Inc. v. Coliseum, LLC, 870

N.E.2d 494, 502-03 (Ind. Ct. App. 2007) (holding parties may contract to limit

damages as long as the limitation is “so definite and positive in its terms as to

show the clear intention of the parties”); Horner v. Carter, 981 N.E.2d 1210,

1211 (Ind. 2013) (“Indiana policy strongly favors the confidentiality of all

matters that occur during mediation.”) Rather, a contract is substantively

unconscionable when “the weaker party, in need of goods or services, is not in

a position to shop around for better terms, either because the author of the

standard contract has a monopoly or the other competitors use the same

contract. …” DiMizio v. Romo, 756 N.E.2d 1018, 1024 (Ind. Ct. App. 2001)

(quotation and citation omitted), trans. denied.

[22] Guardian has pointed to no evidence indicating that she was the weaker party

or that she was not in a position to “shop around for better terms.” Id. In fact,

the evidence shows that Guardian did investigate other facilities as possible

placements for Resident. And, although Guardian now states that she did not

understand that she was agreeing to confidentiality of arbitration and waiving

Resident’s access to courts and claims for punitive and exemplary damages, she

provides no explanation as to why she did not understand the clear, plain terms

of the contract that did just that. She does not establish—or even claim—that

8
Furthermore, an arbitration contract is not per se unconscionable simply because it must be signed in order
to be admitted to a nursing facility, as Guardian contends, citing Maynard, 56 N.E.3d 1232. This court has
found such arbitration provisions not unconscionable in other cases involving nursing home facilities. See
Tender Loving Care Mgmt., Inc. v. Sherls,14 N.E.3d 67 (Ind. Ct. App. 2014); Sanford, 813 N.E.2d 411.

Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020 Page 17 of 27
 she had difficulty understanding the terms of the agreement or that she initialed

and signed it unwillingly. See Tender Loving Care Mgmt., Inc. v. Sherls,14 N.E.3d

67, 75 (Ind. Ct. App. 2014) (holding an arbitration provision of nursing home

contract was not unconscionable in part because there was no allegation that

the signatory had difficulty understanding the terms of the Agreement or that he

unwillingly signed it). Nor does Guardian provide evidence that she was

precluded from asking CSL questions about the agreement; rather, the evidence

establishes that Guardian had an appointment with CSL for that exact purpose

but cancelled that appointment and did not seek any explanation of the contract

thereafter. Moreover, the terms of the agreement do not prohibit Resident from

seeking relief for her claims; they simply require that such claims be decided in

binding arbitration and not include claims for punitive or exemplary damages.

See id. The agreement is not substantively unconscionable.

[23] Guardian also contends that the Arbitration Agreement is procedurally

unconscionable because the arbitration clause was three pages of an “eighty-

three-page document,” Appellant’s Br. at 24, and CSL provided her with the

document “less than twenty-four hours before move-in,” Appellant’s Reply Br.

at 12. CSL emailed the residency and arbitration agreements to Guardian on

the morning of May 31, 2018, four calendar days before Resident’s move-in

date of June 4; that is not an insufficient period of time in which to read a

contract. And there is no evidence to suggest that Guardian sought and/or was

denied additional time in which to review the agreements.

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[24] Furthermore, the arbitration agreement was not “buried or hidden in the

Contract,” as Guardian seems to suggest. Sanford, 813 N.E.2d at 417. Rather,

as was the case with the nursing home arbitration agreement at issue in Sanford,

the arbitration agreement here had its own heading in bold capital letters; it is

immediately followed by a signature line requiring Guardian to provide her

initials, which she did; and there is no evidence that Guardian was precluded

from reading the agreement and asking questions about it. Id. at 418. In

addition, the very beginning of the arbitration agreement states in bold capital

letters and in a larger font than the rest of the contract, “THIS AGREEMENT

GOVERNS IMPORTANT LEGAL RIGHTS. PLEASE READ IT

CAREFULLY IN ITS ENTIRETY BEFORE SIGNING IT.” App. Vol. II at

63. That Guardian apparently chose to ignore that warning does not make the

contract unconscionable.

[25] Finally, Amicus Curiae Indiana Trial Lawyers Association contends that

predispute arbitration agreements for nursing home facilities such as the one in

this case are unconscionable as against public policy. However, the Residency

Agreement was a contract for Resident to live in CSL’s “assisted living and

memory care apartments,” not a nursing home facility. App. Vol. II at 45. 9

9
CSL disputes that it is a nursing home facility; rather, it states it is an assisted living facility and it
submitted an affidavit to that effect in its Appendix, although the affidavit was not submitted in the trial
court. It is well-settled that we may not consider matters outside the record in ruling on an appeal. Schaefer v.
Kumar, 804 N.E.2d 184, 187 n. 3 (Ind.Ct.App.2004), trans. denied. And “[f]actual material which was not
part of the record in the trial court cannot be made part of a case on appeal merely by including it in an
appendix to a party's brief.” Chesterfield Mgmt., Inc. v. Cook, 655 N.E.2d 98, 101 (Ind. Ct. App. 1996), trans.

Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020 Page 19 of 27
 Regardless, Indiana case law makes it clear that predispute arbitration

agreements—whether for assisted living or nursing home facilities—are not

unconscionable, per se, as against public policy in this state.

[26] In determining whether an otherwise valid agreement is contrary to declared

public policy, we

keep in mind the principle that it is to the best interest of the
public that persons should not be unnecessarily restricted in their
freedom of contract and that their agreements are not to be held
void as against public policy, unless they are clearly contrary to
what the constitution, the legislature, or the judiciary have
declared to be the public policy or unless they clearly tend to the
injury of the public in some way.

Gabrill Cabinet Co., Inc. v. Sullivan, 919 N.E.2d 1162, 1168 (Ind. Ct. App. 2010)

(quoting Raymundo v. Hammond Clinic Ass’n, 449 N.E.2d 276, 279 (Ind. 1983)).

This court has repeatedly upheld nursing facilities’ predispute arbitration

agreements as not unconscionable or fraudulently induced. See Maynard, 56

N.E.3d at 1237, 1239-40 (noting Indiana’s “strong public policy favoring

enforcement of arbitration agreements”); Sherls, 14 N.E.3d at 75 (holding

arbitration clause in nursing home facility’s admission agreement was not an

unconscionable adhesion contract); Sanford, 813 N.E.2d at 417-18 (same). See

also Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530 (2012) (holding a state

denied. Moreover, Indiana Appellate Rule 34(F), cited by CSL, is only applicable to appellate motions
practice. Therefore, we do not consider the affidavit contained in CSL’s appendix.

Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020 Page 20 of 27
 law categorically prohibiting predispute arbitration agreements regarding

personal injury claims against nursing homes was preempted by the FAA, 9

U.S.C. § 2, which allows such agreements). Thus, in Indiana, predispute

arbitration agreements in nursing home facility contracts are not, per se, against

public policy. We see no reason why that case law does not apply equally to

assisted living facility contracts.

[27] The cases from other states that Amicus cites did not declare nursing home

arbitration agreements unconscionable as a matter of public policy but found

the particular arbitration agreements at issue in those cases unconscionable

based on facts distinguishable from those at issue in this case. In Rankin v.

Brinton Woods of Frankford, LLC, unlike here, the arbitration provision was

simply two numbered paragraphs within the contract as a whole, in the same

format as every other provision, and lacking “any apparent emphasis by either

bolded, underlined, or italicized language.” 241 Md. App. 604, 624, 211 A.3d

645, 657 (2019). In Lopez v. Bartlett Care Ctr., LLC, the arbitration provision was

unenforceable in part because it lacked mutuality in that it required residents to

arbitrate claims but allowed the facility to pursue claims in court. 39 Cal. App.

5th 311, 321-22, 251 Cal. Rptr. 3d 813, 822 (2019). In Romano ex rel. Romano v.

Manor Care, Inc., the arbitration provision was unconscionable in part because it

deprived the resident of important statutory remedies the state legislature

deemed important to reduce elder abuse in nursing homes. 861 So.2d 59, 62-63

(Fla. Dist. Ct. App. 2003).

Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020 Page 21 of 27
[28] Amicus also directs our attention to a federal Centers for Medicare and

Medicaid Services (“CMS”) regulation that prohibits long-term care facilities

such as nursing homes from requiring that a resident sign a binding arbitration

agreement as a condition of admission to the facility. 42 C.F.R. § 483.70(n).

Amicus also points to policy statements of the American Bar Association

(“ABA”),10 the National Association of Social Workers (“NASW”),11 and the

American Association of Retired Persons (“AARP”) 12 which oppose

mandatory, binding, predispute arbitration agreements between residents and

long-term care facilities. However, both the federal regulation and the policy

statements all relate solely and explicitly to long-term care facilities, and CSL

did not contract with Resident for placement in such a facility. Moreover, none

of those authorities are binding upon us in this case, whereas relevant Indiana

caselaw clearly allows for otherwise valid predispute binding arbitration

agreements in the nursing home setting. Maynard, 56 N.E.3d 1232; Sherls, 14

N.E.3d 67; Sanford, 813 N.E.2d 411.

10
https://www.americanbar.org/content/dam/aba/directories/policy/2009_my_111b.authcheckdam.pdf
[https://perma.cc/3AZX-TMBF].
11
https://www.socialworkers.org/LinkClick.aspx?fileticket=rVC5l9q6hSA%3D&portalid=0
[https://perma.cc/2TKF-4SVY].
12
https://www.aarp.org/content/dam/aarp/politics/advocacy/2017/08/comments-cms-ltc-facility-
arbitration-proposed-rule-final-august-2017-aarp.pdf [https://perma.cc/STG4-T7B6].

Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020 Page 22 of 27
[29] The arbitration agreement is valid, enforceable, and applicable to Guardian’s

breach of contract and negligence claims against CSL, Spectrum, and/or

Sullivan.13 The trial court did not err in compelling arbitration of those claims.

Applicability of Arbitration Agreement to Certiphi
[30] Certiphi filed its own motion to compel arbitration of Guardian’s claims against

it, even though Certiphi is not a signatory to either the Residency Agreement or

the Arbitration Agreement. As a general rule, only parties to a contract or

those in privity with the parties have rights under the contract. E.g., M Jewell,

LLC v. Bainbridge, 113 N.E.3d 685, 689 (Ind. Ct. App. 2018). However, “a non-

signatory to an agreement may bind a signatory to an arbitration clause” under

certain circumstances,14 including under a theory of equitable estoppel. German

Am. Fin. Advisors & Tr. Co. v. Reed, 969 N.E.2d 621, 627 (Ind. Ct. App. 2012).

In Reed, this Court adopted the reasoning of MS Dealer Serv. Corp. v. Franklin,

which stated:

[E]quitable estoppel allows a nonsignatory to compel arbitration
in two different circumstances. First, equitable estoppel applies
when the signatory to a written agreement containing an
arbitration clause must rely on the terms of the written agreement
in asserting its claims against the nonsignatory. When each of a
signatory’s claims against a nonsignatory makes reference to or
presumes the existence of the written agreement, the signatory’s

13
Guardian does not challenge application of the arbitration agreement to Spectrum or Sullivan separately
from her claim that the arbitration agreement is not valid as to CSL.
14
One such circumstance is where the nonsignatory is a third-party beneficiary of the contact. Id. However,
Certiphi makes no such claim and the trial court did not base its decision on such a theory.

Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020 Page 23 of 27
 claims arise out of and relate directly to the written agreement,
and arbitration is appropriate. Second, application of equitable
estoppel is warranted when the signatory to the contract
containing an arbitration clause raises allegations of substantially
interdependent and concerted misconduct by both the
nonsignatory and one or more of the signatories to the contract.
Otherwise the arbitration proceedings between the two
signatories would be rendered meaningless and the federal policy
in favor of arbitration effectively thwarted.

177 F.3d 942, 947 (11th Cir. 1999) (citations omitted); Reed, 969 N.E.2d at 627.

See also Williams v. Orentlicher, 939 N.E.2d 663, 670 (Ind. Ct. App. 2011) (noting

“when the nonsignatory concedes arbitrability on a contract issue, [federal]

courts have routinely held the signatory to be bound by its arbitration clause”),

trans. dismissed; cf. Daimler Chrysler Corp., v. Franklin, 814 N.E.2d 281, 285-86

(Ind. Ct. App. 2004) (holding, where no equitable estoppel claim was raised, that

nonsignatory could not bind signatory to arbitration agreement when there was

no showing nonsignatory was in privity with a signatory or was a third-party

beneficiary of the agreement). The trial court held that the claims against

Certiphi must be arbitrated based on the holding in Reed.

[31] It is clear that at least the second equitable estoppel circumstance is present in

this case.15 That is, Guardian’s Count II negligence claims against all of the

defendants are interdependent and raise allegations of concerted misconduct by

15
We do not address Certiphi’s contention and the trial court’s holding that the first equitable estoppel
circumstance is present here, as we find arbitration binding under the second equitable estoppel circumstance
identified in Reed.

Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020 Page 24 of 27
 all of the defendants. Guardian alleges that CSL/Spectrum and Certiphi

negligently failed to conduct an appropriate criminal background check on

CSL’s employee, Sullivan.16 Those claims will require the presentation of the

same evidence; i.e., evidence that (1) CSL/Spectrum hired Certiphi to do the

background check of Sullivan; (2) Certiphi failed to properly do that

background check; and (3) the failure to do a proper background check resulted

in CSL’s employee, Sullivan, harming Resident. In other words, Guardian

cannot prove CSL/Spectrum was negligent in doing a background check of

Sullivan unless it proves Certiphi did not do an appropriate background check

of Sullivan, as CSL/Spectrum had requested. See Reed, 969 N.E.2d at 627

(holding Reed was required to arbitrate claims against a nonsignatory where

those claims stemmed from conduct of the employee of the signatory and the

contractual relationship between the signatories to the contract).

[32] Furthermore, we note that we have held signatories to be bound to their broad-

reaching agreements to arbitrate when there is no contract language

contradicting that agreement. See Dulworth v. Bermudez, 97 N.E.3d 272, 281

(Ind. Ct. App. 2018) (release from liability was applicable to nonsignatory

where the unambiguous, broad language of the release clearly applied to “all

16
Guardian contends in her briefs that her negligence claims against CSL/Spectrum are not dependent upon
a showing that Certiphi negligently failed to do a proper background check on CLS’s employee. However,
that is simply not true. The second count of Guardian’s complaint alleges no basis for CSL/Spectrum’s
negligence other than the failure to do a proper background check of Sullivan. And if Certiphi was not
negligent in failing to uncover Sullivan’s criminal background, then CSL/Spectrum was not negligent as to
the background check either because they hired Certiphi to do it.

Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020 Page 25 of 27
 other persons” and contained no contradictory terms); Medical Realty Assoc.,

LLC v. D.A. Dodd, Inc., 928 N.E.2d 871, 875 (Ind. Ct. App. 2010) (signatory

defendant was permitted to require signatory plaintiff to arbitrate claim against

nonsignatory where arbitration provision used “broad sweeping phrases such as

‘any claims’ and ‘all claims’” and did not specifically exclude the claim against

the nonsignatory). Here, the arbitration agreement contains broad, sweeping

language under which “any and all claims involving … any of the Resident’s

stays at [CSL] … shall be submitted to and resolved by binding arbitration[,] …

[including] claims against [CSL’s] employees, agents, officers, directors, any

parent, subsidiary or affiliate of [CSL].” App. Vol. II at 63. And there is no

language in the agreement contradicting the broad agreement to arbitrate “all

claims.” See Dulworth, 97 N.E.3d at 281 (“Language which releases ‘all

persons’ does just that and is clear as long as no other terms are contradictory.”)

(quoting Dobson v. Citizen Gas & Coke Util., 634 N.E.2d 1343, 1345 (Ind. Ct.

App. 1994)).

[33] The trial court did not err when it required Guardian to arbitrate her claims

against Certiphi.17

17
Because we hold that equitable estoppel principles require arbitration of Guardian’s claims against
Certiphi, we do not address Certiphi’s contention that it is entitled to arbitration because Guardian brought
an “agency theory” of liability against it.

Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020 Page 26 of 27
 Conclusion
[34] It is clear from the plain language of the Arbitration Agreement that it applies

to Guardian’s claims against CSL (and, since not challenged by Guardian,

Spectrum and Sullivan), and there is no evidence establishing that the

Arbitration Agreement is invalid as unconscionable and against public policy.

In addition, because Count II of Guardian’s complaint raises allegations of

substantially interdependent and concerted misconduct by both Certiphi (a

nonsignatory) and CSL (a signatory), Guardian is equitably estopped from

asserting that her claims against Certiphi are not subject to the broad language

of her agreement to arbitrate “all claims.”

[35] Affirmed.

Kirsch, J., and Mathias, J., concur.

Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020 Page 27 of 27