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Golden Gate National Senior Care, LLC v. Dolan

Court of Appeals of Kentucky

July 12, 2019

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
v.
DAVID DOLAN APPELLEE

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MARY M. SHAW, JUDGE ACTION NO. 16-CI-000552

          BRIEFS FOR APPELLANTS: Donald L. Miller, II Jan G. Ahrens Kristin M. Lomond Louisville, Kentucky.

          BRIEF FOR APPELLEE: Robert E. Salyer Brian M. Jasper Lexington, Kentucky.

          ORAL ARGUMENT FOR APPELLANTS: Peter Cassidy Lexington, Kentucky.

          ORAL ARGUMENT FOR APPELLEE: Robert E. Salyer Lexington, Kentucky.

          BEFORE: ACREE, NICKELL AND K. THOMPSON, JUDGES.

          OPINION

          THOMPSON, K., JUDGE

         Golden Gate National Senior Care, LLC d/b/a Golden Living, its affiliated entities, [1] 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.

         In May 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 attorney-in-fact.

         In 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.

         The 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 followed.

         An 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).

         Whether 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).

         Extendicare 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 Court's ...


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