THIRD DIVISION
DOYLE, P. J.,
REESE and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 25, 2021
In the Court of Appeals of Georgia
A21A0055. WEST et al. v. BOWSER et al.
BROWN, Judge.
In this interlocutory appeal, Jobe West, individually and as executor of the
estate of Ronald West, and Kelly Blottenberger (collectively “plaintiffs”) contend that
the trial court erred in compelling arbitration in a wrongful death action filed by
plaintiffs as the surviving children of Ronald West against Provident Group-
Creekside Properties, LLC, d/b/a Provident Village at Creekside, Provident Resources
Group, Inc., Provident Resources Management, LLC (collectively “the Provident
defendants”), and Monte Bowser. Because we conclude that Jobe lacked the authority
to sign the Arbitration Agreement on Ronald’s behalf, we reverse the trial court’s
order compelling arbitration.
Jobe was appointed guardian and conservator of Ronald, his father, and Letters
of Guardianship and Conservatorship of Adult Ward were issued by the Probate
Court of Carroll County in June 2017. The Letters of Guardianship and
Conservatorship each provide that Jobe’s “authority to act pursuant to these Letters
is subject to applicable statutes and to any special orders entered in this case.” In July
2017, Ronald was admitted to Provident Village at Creekside, “a residential
community for senior citizens needing assistance.” Jobe signed the Resident
Agreement as the “Responsible Party” for Ronald as well as a separate Arbitration
Agreement with Provident Village at Creekside. Ronald did not sign either
agreement.
Pursuant to the Arbitration Agreement,
[a]ny and all disputes between the Resident and the Facility shall be
submitted to binding arbitration where the amount in controversy
exceeds $15,000. This includes any disputes arising out of or in any way
relating to this Agreement (its enforceability), the Admission
Agreement, or any of the Resident’s stays at the Facility, whether
existing or arising in the future, whether for statutory, compensatory, or
punitive damages, and irrespective of the legal theories upon which the
claims is asserted.
Additionally, the Agreement provided:
2
A person signing who routinely makes decisions for the Resident, if not
the Power of Attorney or Guardian/Conservator, will be considered a
Legal Representative. This executed Agreement becomes a part of the
Resident’s underlying Admission Agreement(s). The term “Resident”
shall refer collectively to those signing with or for the Resident. The
Resident will be considered to be a third party beneficiary of this
Agreement. . . . The term “Facility” includes all of the following
associated with the above-identified facility: owner, parent company,
holding company, subsidiary, manager, employee, person/entity acting
on behalf of the facility, consultant, and administrative services
provider.
The Agreement also stated that the “Resident understands that (s)he can seek legal
counsel prior to entering into this contract and is encouraged to ask questions. . . . IF
THIS AGREEMENT IS NOT SIGNED, THE RESIDENT WILL STILL BE
ALLOWED TO RECEIVE SERVICES AT THE FACILITY.” Jobe submitted an
affidavit in which he averred that the Arbitration Agreement was not explained to him
and that he was told that he had to sign a number of documents, including the
Arbitration Agreement, in order for Ronald to be admitted to the facility.
According to the complaint filed by plaintiffs, while Ronald was a resident of
Provident Village at Creekside in 2018, he was shoved by Bowser, an employee of
the facility, and eventually died as a result of his injuries. The Provident defendants
3
answered and filed a motion to dismiss and compel arbitration. Bowser subsequently
answered and filed a motion to join the Provident defendants’ motion to dismiss and
compel arbitration. After a hearing, the trial court granted the motion to compel
arbitration as to all defendants and certified its order for immediate review.
On appeal, plaintiffs contend that the trial court erred in granting defendants’
motion and compelling arbitration for a number of reasons. Plaintiffs assert that Jobe
lacked authority to sign the Arbitration Agreement on Ronald’s behalf, that the
Arbitration Agreement lacked proper legal consideration, that Jobe was fraudulently
induced to sign the Arbitration Agreement, and that the Arbitration Agreement is void
as against Georgia law and public policy.
1. We first address whether Jobe, as Ronald’s guardian and conservator, had
the authority to sign the Arbitration Agreement on Ronald’s behalf. We conclude he
did not.
Whether a valid and enforceable arbitration agreement exists is a question of
law. Miller v. GGNSC Atlanta, 323 Ga. App. 114, 117 (1) (746 SE2d 680) (2013).
“On appeal from the grant or denial of a motion to compel arbitration, the standard
of review is whether the trial court was correct as a matter of law. The construction
of an arbitration agreement, like any other contract, presents a question of law, which
4
is subject to de novo review.” (Citations and punctuation omitted.) Aaron v. United
Health Svcs. of Ga., 349 Ga. App. 563, 563-564 (826 SE2d 442) (2019). “And the
validity of an arbitration agreement is generally governed by state law principles of
contract formation.” (Citation and punctuation omitted.) United Health Svcs. of Ga.
v. Alexander, 342 Ga. App. 1, 2 (2) (802 SE2d 314) (2017). See also Lynn v. Lowndes
County Health Svcs., 354 Ga. App. 242, 245 (2), n.3 (840 SE2d 623) (2020) (“This
principle still applies in cases . . . where the arbitration agreement states that the
agreement is to be governed by the Federal Arbitration Act.”). “As the party seeking
arbitration, [defendants] bear[ ] the burden of proving the existence of a valid and
enforceable agreement to arbitrate.” (Citation and punctuation omitted.) Triad Health
Mgmt. of Ga., III v. Johnson, 298 Ga. App. 204, 206 (2) (679 SE2d 785) (2009).
The trial court determined that the powers granted to a conservator under
OCGA § 29-5-23 (a) (2) and (6) authorized Jobe to bind Ronald under the Arbitration
Agreement. While the trial court did not identify any applicable provisions of the
Guardianship Code, as the parties point out, this case also implicates a guardian’s
powers under OCGA § 29-4-23.
(a) Pursuant to OCGA § 29-4-23 (a) (3), a guardian may “[b]ring, defend, or
participate in legal, equitable, or administrative proceedings, including alternative
5
dispute resolution, as are appropriate for the support, care, education, health, or
welfare of the ward in the name of or on behalf of the ward[.]” OCGA § 29-5-23 (a)
(6) tracks this language and equivalently provides that a conservator may “[b]ring,
defend, or participate in legal, equitable, or administrative proceedings, including
alternative dispute resolution, as are appropriate for the support, care, education,
health, or welfare of the ward in the name of or on behalf of the ward[.]” OCGA § 29-
5-23 (a) (2) allows a conservator to
[e]nter into contracts for labor or service upon such terms as the
conservator may deem best, but only to the extent that the annual
compensation payable under such contracts, when combined with other
anticipated disbursements, does not exceed the amount of the annual
income or, if applicable, the annual budget amount that has been
approved by the court pursuant to Code Section 29-5-30[.]
As plaintiffs assert, the issue presented in this case falls squarely under this
Court’s recent holding in CL SNF, LLC v. Fountain, 355 Ga. App. 176 (843 SE2d
605) (2020), which was decided after the trial court compelled arbitration in this case.
In that case, the appellee was appointed guardian of her mentally incapacitated
nephew. Id. at 176. Upon the nephew’s admission to a healthcare facility, the
guardian signed a Facility Admission Agreement as well as a separate Arbitration
6
Agreement. Id. at 176-177. As in the instant case, the signing of the Arbitration
Agreement was not a precondition of admission to the facility. Id. at 177. The
guardian subsequently filed a complaint against the facility, alleging that her nephew
had been sexually battered and assaulted while a resident. Id. at 178. The facility filed
a motion to compel arbitration, which the trial court denied. Id. On appeal, we
affirmed the trial court’s order, concluding that the guardian did not have authority
to sign the Arbitration Agreement on behalf of her nephew. Id. at 184 (1). In reaching
our decision, we examined the various powers granted to a guardian under the
Guardianship Code, specifically those found in OCGA § 29-4-23 (a), and concluded
that the plain language of these provisions did not provide the guardian the authority
to sign the pre-dispute Arbitration Agreement. Id. at 178-184 (1). Specifically as to
OCGA § 29-4-23 (a) (3), we explained that a guardian’s action in signing a pre-
dispute arbitration agreement is not the equivalent of initiating, contesting, or taking
part in any type of proceeding, including alternative dispute resolution. Id. at 183 (1).
Similarly, here, Jobe’s power as guardian and conservator to “[b]ring, defend, or
participate in legal, equitable, or administrative proceedings, including alternative
dispute resolution,” did not extend to signing the voluntary pre-dispute Arbitration
7
Agreement on behalf of Ronald.1 Accordingly, Ronald did not assent to the terms of
the Arbitration Agreement, and it is not enforceable against him.
(b) Nonetheless, the Provident defendants contend that Fountain was not
properly decided and should not be adopted by this Court. However, Fountain is
binding precedent on this Court.2 See Court of Appeals Rule 33.2 (a) (2) (“If an
appeal was decided by a division of this Court [prior to August 1, 2020], a published
opinion in which all three panel judges fully concur is binding precedent.”).
(c) Alternatively, the Provident defendants contend that if OCGA § 29-4-23 is
interpreted as not allowing a guardian to sign a pre-dispute arbitration contract, the
statute is preempted by the Federal Arbitration Act (“FAA”).
The FAA preempts any state law that conflicts with its provisions or
undermines the enforcement of private arbitration agreements. To the
extent that state law stands as an obstacle to the accomplishment and
1
Nor do we find OCGA § 29-5-23 (a) (2), which gives a conservator authority
to enter into contracts for labor or service, applicable in the instant case because the
Arbitration Agreement is not a contract for labor or service and is a separate
agreement from the Resident Agreement. We likewise conclude that none of the
remaining powers delineated in OCGA § 29-5-23 (a) authorize the signing of the
Arbitration Agreement in this case.
2
We note that the Supreme Court of Georgia has granted certiorari in Fountain,
but has not yet issued an opinion.
8
execution of the full purposes and objectives of Congress, it will be
preempted by the FAA.
(Citations and punctuation omitted.) Triad Health, 298 Ga. App. at 208 (3).
However, the FAA
permits arbitration agreements to be declared unenforceable upon such
grounds as exist at law or in equity for the revocation of any contract.
This saving clause permits agreements to arbitrate to be invalidated by
generally applicable contract defenses, such as fraud, duress, or
unconscionability, but not by defenses that apply only to arbitration or
that derive their meaning from the fact that an agreement to arbitrate is
at issue.
(Citation and punctuation omitted.) AT&T Mobility v. Concepcion, 563 U. S. 333, 339
(II) (131 SCt 1740, 179 LE2d 742) (2011). See also Triad Health, 298 Ga. App. at
209 (3) (“generally applicable contract defenses, such as fraud, duress, or
unconscionability, may invalidate arbitration agreements to which the FAA applies”).
“To constitute a valid contract, there must be parties able to contract, a
consideration moving to the contract, the assent of the parties to the terms of the
contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1.
See Coleman v. United Health Svcs. of Ga., 344 Ga. App. 682, 683 (1) (812 SE2d 24)
(2018) (“[a] contract is valid only if the parties assented to the contract terms”).
9
Pursuant to OCGA § 13-3-2, “[t]he consent of the parties being essential to a contract,
until each has assented to all the terms, there is no binding contract; until assented to,
each party may withdraw his bid or proposition.” In this vein, lack of assent to the
contract’s terms is a generally applicable contract defense and thus may invalidate an
arbitration agreement consistent with the FAA. An arbitration “agreement is, at base,
a contract, and the [FAA] does not require parties to arbitrate when they have not
agreed to do so.” Ashburn Health Care Center v. Poole, 286 Ga. App. 24, 25 (648
SE2d 430) (2007), quoting Volt Information Sciences v. Bd. of Trustees of Leland
Stanford Junior Univ., 489 U. S. 468, 478 (109 SCt 1248, 103 LE2d 488) (1989). See
also Coleman, 344 Ga. App. at 683-684 (1) (a) (arbitration agreement signed by
nursing home resident’s brother-in-law was unenforceable on grounds that brother-in-
law lacked authority to bind resident under advanced health care directive). See
McKean v. GGNSC Atlanta, 329 Ga. App. 507, 509-513 (1) (765 SE2d 681) (2014)
(son lacked authority to sign arbitration agreement on behalf of his mother).
As the Eleventh Circuit Court of Appeals stated in Dasher v. RBC Bank
(USA), 745 F3d 1111, 1116 (II) (B), n.5 (11th Cir. Fla. 2014), the federal
policy favoring arbitration is taken into consideration even in applying
ordinary state law. The federal policy favoring arbitration is not,
however, the same as applying a presumption of arbitrability. We only
apply the presumption of arbitrability to the interpretation of contracts
10
if we have already determined that, under state law, the parties formed
a valid agreement to arbitrate. The federal policy is simply to ensure the
enforceability, according to their terms, of private agreements to
arbitrate. Accordingly, the first task of a court asked to compel
arbitration of a dispute is to determine whether the parties agreed to
arbitrate that dispute. Here, because no valid and enforceable agreement
to arbitrate was formed, the federal policy in favor of arbitration does
not control.
(Citations and punctuation omitted; emphasis in original.) Alexander, 342 Ga. App.
at 5 (3). Accordingly, the trial court erred in granting the motion to dismiss and
compel arbitration.
2. Given our holding in Division 1, we need not address plaintiffs’ other
arguments related to the enforcement of the Arbitration Agreement.
Judgment reversed. Doyle, P. J., and Reese, J., concur.
11