GOLDEN GATE NATIONAL SENIOR CARE, LLC D/B/A GOLDEN LIVING; GGNSC LOUISVILLE MT. HOLLY, LLC D/B/A GOLDEN LIVINGCENTER - MT. HOLLY; GGNSC ADMINISTRATIVE SERVICES, LLC D/B/A GOLDEN VENTURES; GGNSC HOLDINGS, LLC D/B/A GOLDEN HORIZONS; GGNSC EQUITY HOLDINGS, LLC; GGNSC EQUITY HOLDINGS II, LLC; GOLDEN GATE ANCILLARY, LLC D/B/A GOLDEN INNOVATIONS; GGNSC CLINICAL SERVICES, LLC D/B/A GOLDEN CLINICAL SERVICES; GPH LOUISVILLE MT. HOLLY, LLC; AND DANA BOBLITT, IN HER CAPACITY AS ADMINISTRATOR OF GOLDEN LIVINGCENTER - MT. HOLLY APPELLANTS
DAVID DOLAN APPELLEE
FROM JEFFERSON CIRCUIT COURT HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 16-CI-000552
FOR APPELLANTS: Donald L. Miller, II Jan G. Ahrens Kristin M.
Lomond Louisville, Kentucky.
FOR APPELLEE: Robert E. Salyer Brian M. Jasper Lexington,
ARGUMENT FOR APPELLANTS: Peter Cassidy Lexington, Kentucky.
ARGUMENT FOR APPELLEE: Robert E. Salyer Lexington, Kentucky.
BEFORE: ACREE, NICKELL AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE
Gate National Senior Care, LLC d/b/a Golden Living, its
affiliated entities,  and Dana Boblitt in her capacity as
administrator of Golden LivingCenter - Mt. Holly
(collectively Golden) appeal from an order of the Jefferson
Circuit Court denying its motion to compel arbitration and
dismiss or stay the pending litigation. After reviewing the
record and applicable law, we affirm.
2015, David Dolan executed a durable power of attorney (POA)
naming Ronald Briney as his attorney-in-fact. In June 2015,
Dolan was admitted to Golden Living Center - Mt. Holly, a
long-term care facility in Louisville where he resided until
August 2015. As part of the admission process, Briney was
given the option to sign an Alternative Dispute Resolution
(ADR) agreement whereby any disputes between Dolan and the
facility would be resolved by arbitration. The facility made
clear at the time of admission, that signing an ADR agreement
was not a prerequisite to admission and was voluntary. Briney
signed the arbitration agreement as Dolan's
February 2016, Dolan filed a lawsuit in the Jefferson Circuit
Court alleging negligence in the care and treatment he
received at the facility. In March 2016, Golden filed a
motion to compel arbitration and to either dismiss the
pending action or hold it in abeyance. Golden relied upon the
ADR signed by Briney as Dolan's agent, the Kentucky
Uniform Arbitration Act, codified in Kentucky Revised
Statutes (KRS) 417.050 et seq., and the Federal
Arbitration Act (FAA), codified in 9 United States Code
(U.S.C.) §1 et seq.
trial court denied Golden's motion and its subsequent
motion to alter, amend or vacate. The trial court found that
the ADR agreement was not a requirement for admission to the
Golden facility. The trial court then determined that
Briney's signing of the ADR agreement exceeded his
authority under the POA, which permitted Briney to sign only
if it was "requisite" or "necessary" to
the performance of any act on behalf of Dolan. This appeal
order denying a motion to compel arbitration is immediately
appealable. KRS 417.220(1); Conseco Finance Servicing
Corp. v. Wilder, 47 S.W.3d 335, 340 (Ky.App. 2001). We
review "the trial court's application of [the law]
de novo, although the trial court's factual
findings, if any, will be disturbed only if clearly
erroneous." Ping v. Beverly Enterprises, Inc.,
376 S.W.3d 581, 590 (Ky. 2012).
an attorney-in-fact had authority to enter into an
arbitration agreement upon admission to a nursing home has
been a reoccurring issue. The case we conclude is dispositive
here, Kentucky Nursing Centers Limited Partnership v.
Wellner, 533 S.W.3d 189 (Ky. 2017), was initially before
the Supreme Court of Kentucky with two other
cases-Extendicare Homes, Inc. v. Whisman and
Kindred Nursing Centers Ltd. Partnership v.
Clark-which were consolidated into a single opinion
styled Extendicare Homes, Inc. v. Whisman, 478
S.W.3d 306 (Ky. 2015).
Homes, Inc. did not seek review by the United States Supreme
Court. However, Kindred sought review of the Kentucky Supreme
Court's decisions in the Clark and
Wellner cases in the United States Supreme Court,
which issued a consolidated opinion and reversed the Supreme
Court of Kentucky in the Clark case but remanded the
Wellner case. Kindred Nursing Centers Limited
Partnership v. Clark, ___ U.S. ___, 137 S.Ct. 1421, 197
L.Ed.2d 806 (2017). To avoid confusion we clarify that in
this opinion, Whisman refers to our Supreme