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Bookman v. Britthaven, Inc.

Court of Appeals of North Carolina

April 15, 2014

TERRI DEW BOOKMAN, Administratrix of the Estate of CARTHINA ROBERSON DEW, Plaintiff,

Heard in the Court of Appeals January 21, 2014.

Page 891

Wilson County. No. 2011 CVS 1575. Milton F. Fitch, Jr., Judge.

Taylor Law Office, by W. Earl Taylor, Jr., for plaintiff-appellee.

Williams Mullen, by Brian C. Vick and Elizabeth D. Scott, for defendant-appellant.

Robert C. HUNTER, Judge. Judges MCGEE and ELMORE concur.


Page 892

HUNTER, Robert C, Judge.

Appeal 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.

Defendant Britthaven, Inc. d/b/a Britthaven of Wilson (" Britthaven" ) appeals from the trial court's 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.

After careful review, we reverse the trial court's order and remand for further proceedings.


On 24 August 2010, Carthina Dew (" Mrs. Dew" ) 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 (" Mr. Dew" ), and her daughter, Terri Dew Bookman (" Mrs. Bookman" ), signed all relevant documents. They met with Janet Watson (" Ms. Watson" ), Britthaven's 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's behalf prior to her admission into Britthaven. Ms. Watson presented Mr. Dew and Mrs. Bookman with twelve documents, including one titled " RESIDENT AND FACILITY ARBITRATION AGREEMENT -- READ CAREFULLY" (" the arbitration agreement" ). When it came time to sign the documents, Mr. Dew had Mrs. Bookman sign his name, " Fred Dew," on the arbitration agreement and all other admission documents. Mrs. Bookman primarily signed Mr. Dew's name on signatory lines intended for either the resident's signature or the signature of the resident's representative or responsible party. For example, on the " Facility Resident Directory Opt Out Instructions," Mrs. Bookman signed " Fred Dew" on the line reserved for the " Signature of Resident or Legal Representative."

Mrs. 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's estate (" plaintiff" ).[1] Britthaven moved to compel arbitration pursuant to the arbitration agreement bearing Mrs. Bookman's signature of Mr. Dew's name. At the hearing on Britthaven's 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's behalf. The trial court agreed, entering an order denying Britthaven's 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's 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., 741 S.E.2d 513, 2013 WL 1314965 (N.C. Ct. App. 2013) ( " Bookman I" ).[2]

Page 893

On remand, Britthaven's request to present further evidence on the issue of apparent authority went unanswered by plaintiff's counsel and the trial court. The trial court entered a new order drafted by plaintiff's counsel without conducting an evidentiary hearing or considering any further evidence. It concluded that neither Mr. Dew nor Mrs. Bookman had " legal authority, expressed authority, actual authority, implied authority, or apparent authority" to sign the arbitration agreement on Mrs. Dew's ...

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