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JOHNSON v. CONVALESCENT CENTER OF GRADY COUNTY LLC2014 OK 102Case Number: 111922Decided: 11/25/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2014 OK 102, __ P.3d __

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. 
UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. 




MELODY JOHNSON, as next of kin of ARDA LEE CHURCHILL, Deceased, 
Appellee,v.CONVALESCENT CENTER OF GRADY COUNTY, LLC d/b/a GRACE LIVING 
CENTER - CHICKASHA, STILLGRADY, LLC, AMITY CARE, LLC, MIKE DIMOND, DON GREINER, 
INDIVIDUALLY AND d/b/a DON GREINER, TRUSTEE, KENNETH D. GREINER III REVOCABLE 
TRUST d/b/a DON GREINER TRUST, DON GREINER, BENEFICIARY/TRUSTEE, 
Appellants.
APPEAL FROM THE DISTRICT COURT OF GRADY COUNTY,OKLAHOMA, THE 
HON. RICHARD G. VAN DYCK, DISTRICT JUDGE
¶0 This is an interlocutory appeal from an order of the District Court of 
Grady County, Oklahoma. The trial judge denied the appellants' motion to compel 
arbitration on the ground that there was no binding arbitration agreement. We 
retained the appeal and affirm the trial court. 
TRIAL COURT AFFIRMED.
L. Ray Maples, II, Travis Dunn, Jimmie A. Franklin and Nicole R. 
Snapp-Holloway, MAPLES LAW FIRM, Edmond, Oklahoma, and David W. Crowe, 
BAILEY,CROWE& KUGLER, LLP, Dallas, Texas, for the Appellee.Patrick M. 
Ryan, Phillip G. Whaley, Grant M. Lucky, RYAN WHALEY COLDIRON SHANDY PLLC, 
Oklahoma City, Oklahoma, and J. Michael Deyong, Gina K. Cheatham, DEYONG 
& CHEATAM, PA, Oklahoma City, Oklahoma, for the Appellants.
EDMONDSON, J.
¶1 The issue is whether the trial court erred by denying appellants' 
(collectively referred to as Grace) motion to compel arbitration of plaintiff's 
wrongful death claims. The trial judge ruled that Tamera Nelson did not have 
authority to sign the arbitration agreement on behalf of her grandmother, Arda 
Lee Churchill, so no valid arbitration agreement existed. We agree with the 
trial court that no valid arbitration agreement existed because Tamera Nelson 
was not authorized to make health care decisions for her grandmother under the 
circumstances. The Health Care Power of Attorney required that Arda Lee 
Churchill's physician certify that she was not capable of making her own health 
care decisions and no such certification was made. 
¶2 Grace Living Center-Chickasha (Grace) is a long-term care facility 
operating in Chickasha, Oklahoma. Arda Lee Churchill was a resident there from 
March 13, 2009, when she was admitted, until July 3, 2011, the date of her 
death. Tamera Nelson signed a Dispute Resolution Provision contained within the 
admission agreement as "Tamera Nelson POA." The plaintiff, Melody Johnson, is 
Ms. Churchill's daughter and next of kin. Melody Johnson sued Grace for the 
wrongful death of her mother. Grace moved to compel the dispute to arbitration 
based on the Dispute Resolution Provision contained in its admission agreement. 

¶3 Grace argued the arbitration provision in the admission agreement was 
valid and covered the claims asserted by Johnson because Tamera Nelson was the 
authorized legal representative of Ms. Churchill by virtue of a General Durable 
Power of Attorney executed on December 23, 2008. Melody Johnson argued Tamera 
Nelson lacked authority under either the Durable Power of Attorney or the Health 
Care Power of Attorney to bind Ms. Churchill to the arbitration agreement. 
Therefore, there was no arbitration agreement; in any event, not one that would 
bind Melody Johnson, a non-signatory. On June 22, 2012, Melody Johnson dismissed 
the contract claims against all defendants. 
¶4 After a telephonic hearing, the trial judged ruled that Tamera Nelson was 
not acting under any power of attorney on the date of Ms. Churchill's admission 
to Grace's nursing home. Melody Johnson, the only claimant, did not sign the 
arbitration agreement and the trial judge ruled that the derivative nature of 
wrongful death claims is not broad enough to mandate procedural defenses such as 
arbitration against one who did not sign an arbitration agreement. Based on the 
lack of any binding arbitration agreement, the trial judge ruled that the 
plaintiff was not required to arbitrate her claims against the defendants.1
¶5 An order denying a motion to compel arbitration is an appealable order. 
12 O.S. 2011 § 1879.2 The existence of an 
agreement to arbitrate is a question of law to be reviewed de novo. Rogers v. 
Dell Computer Corp., 2005 OK 51 ¶ 18, 138 P.3d 826, 831. The case was retained on the 
Court's own motion. 
¶6 A court asked to compel arbitration of a dispute must first determine 
whether the parties agreed to arbitrate that dispute. Wilkinson v. Dean 
Witter Reynolds, Inc., 1997 OK 20, ¶9, 933 P.2d 878, 880 (citing Mitsubishi Motors 
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 
L.Ed.2d 444 (1985)). The existence of an arbitration agreement is governed 
by principles of state law. Id. If necessary, a court shall decide 
whether an agreement to arbitrate exists or whether a controversy is subject to 
an agreement to arbitrate. 12 O.S. 2011 § 1857(B). Oklahoma has 
recognized that although the Federal Arbitration Act, 9 U.S.C. § 2, favors 
arbitration when it is the parties' contractual choice of a remedial forum, 
courts will not impose arbitration upon parties where they have not agreed to do 
so. Okla. Oncology & Hematology P.C. v. US Oncology, Inc., 
2007 OK 12 ¶22, 160 P.3d 936 (arbitration is a matter of consent, 
not coercion, citing Volt Info. Sciences Inc. v. Bd. of Trustees of Leland 
Stanford Jr. Univ., 489 U.S. 468 (1989)). Consent to arbitrate is an 
essential component of an enforceable arbitration agreement. To assure that the 
parties have consented to arbitration, the courts will decide whether there is a 
valid enforceable arbitration agreement, whether the parties are bound by it and 
whether the parties agreed to submit a particular dispute to arbitration.
¶7 Arda Lee Churchill executed a General Durable Power of Attorney naming 
Tamera Nelson as her agent, on December 23, 2008. It contains specific 
restrictions on the agent's powers:
xi) Restrictions on Agent's Powers. Regardless of the above 
statements, my agent (1) cannot execute a will, a codicil or any will substitute 
on my behalf; (2) cannot change the beneficiary on any life insurance policy 
that I own; (3) cannot make gifts on my behalf; and (4) may not exercise any 
powers that would cause assets of mine to be considered taxable to my agent or 
my agent's estate for purposes of any income, estate, or inheritance tax, and 
(5) cannot contravene any medical power of attorney I have executed whether 
prior or subsequent to the execution of this Power of Attorney. (Emphasis 
added.)
¶8 Arda Lee Churchill granted a Medical Power of Attorney to Tamera Nelson on 
December 29, 2008. It defines "health care decision" to mean consent, refusal of 
consent, or withdrawal of consent to any care, treatment, service or procedure 
to maintain, diagnose, or treat an individual's physical or mental condition. It 
takes effect only if Arda Lee Churchill becomes unable to make her own health 
care decisions and that fact is certified in writing by her physician. Grace 
argues that signing a nursing home admission agreement that contains a Dispute 
Resolution Provision is not a "health care decision."
¶9 Plaintiff directs our attention to Moffet v. Life Care Centers of 
America, 187 P.3d 1140, 1147 (Colo. App. 2008), aff'd, 219 P.3d 1068 (Colo. 
2009), in which the court concluded that a person who holds a medical 
durable power of attorney, in selecting a long-term health care facility, has 
the power to execute applicable admission forms, including arbitration 
agreements, unless that power is restricted by the principal. Plaintiff points 
to the fact that Grace's arbitration agreement was mandatory because Arda Lee 
Churchill would not be admitted without it.3 Plaintiff cites Dickerson v. Longoria, 995 A.2d 721, 
739 (MD 2010):


"If signing the arbitration agreement is necessary to receive health care, 
then the decision to sign the agreement is a health care decision because the 
receipt of health care depends on whether the patient agrees to arbitrate his or 
her claims. In that case, the decision to sign the arbitration agreement is 
effectively a decision about where and whether to receive health care, either 
from a facility that requires the patient to sign an arbitration agreement, from 
a facility that does not impose such a requirement, or from no facility at 
all."
¶10 We observe that Oklahoma's Do-Not-Resuscitate Act, 63 O.S. 2011 § 3131.3(6) defines "health care 
decision" as a decision to give, withhold, or withdraw informed consent to any 
type of health care including, but not limited to, medical and surgical 
treatments including life-prolonging interventions, nursing care, 
hospitalization, treatment in a nursing home or other extended care facility, 
home health care and the gift or donation of a body organ or tissue. Title 
63 O.S. § 2200.21A(3) of the Oklahoma 
Uniform Anatomical Gift Act defines "health care decision" as any decision 
regarding the health care of the prospective donor. 
¶11 The Medical Power of Attorney in this case would not become effective 
until a determination has been made in writing by her physician that Arda Lee 
Churchill lacked capacity to make those decisions. There is no record of a 
statement from her physician certifying that she lacked capacity to make her own 
health care decisions; therefore, the Medical Power of Attorney had not become 
effective at the time the admission documents were signed by Tamera Nelson. 
¶12 Grace argues that it was the Durable Power of Attorney that gave Tamera 
Nelson authority to sign the admission contract/arbitration agreement binding 
Arda Lee Churchill. We cannot agree. The Durable Power of Attorney authorizes 
Arda Lee Churchill's agent to make decisions affecting her business and 
financial matters but it prohibits her from making decisions contrary to the 
Medical Power of Attorney. Grace does not controvert that signing the 
arbitration agreement was a requirement of admission to the facility. Where 
arbitration is a condition of admission, it becomes a "health care decision." 
Dickerson v. Longoria, 995 A.2d 721, 729 (Md. 2010).4 
¶13 In Dickerson, the Maryland high court took the position that if 
signing the arbitration agreement was not a requirement for admission, then 
signing the arbitration agreement was not a health care decision or a 
financial decision made on the decedent's behalf, but rather was a decision to 
waive his right of access to the courts and right to a trial by jury. The 
evidence reflected that the patient conferred on his agent the authority to make 
health care and financial decisions on his behalf, but no evidence suggested 
that the patient had authorized his agent to waive his right of access to the 
courts. Consequently, the Maryland court found that the estate was not bound by 
the arbitration agreement included in the nursing home's admission agreement. 

¶14 The Durable Power of Attorney and the Health Care Power of Attorney in 
this case were executed less than one week apart, and the same person, Tamera 
Nelson, was named agent in each. This indicates an intention on Ms. Churchill's 
part to distinguish the powers and duties given to her agent in each document. 
The Durable Power of Attorney authorizes her agent to make, with limitation, 
decisions regarding her business and finances. Her health care agent is to make 
decisions on her behalf regarding her health care only if she becomes 
incapacitated, leaving her free to make her own health care decisions for as 
long as she is able to do so. 
¶15 In Boler v. Security Health Care, L.L.C., 2014 OK 80, ___ P.3d ____, we affirmed an order 
of the District Court of Oklahoma County denying a nursing home's motion to 
compel arbitration, on the grounds that the decedent's heirs were not bound by 
an arbitration agreement executed by the decedent's representative. We held that 
the decedent's next-of-kin and personal representative did not sign the contract 
and were not bound by an arbitration agreement included in a contract of 
admission signed on the resident's behalf. The authority of the agent to sign 
the agreement on Cleo Boler's behalf was not in dispute. 
¶16 The Medical Power of Attorney takes effect only if her physician 
certifies in writing that Arda Lee Churchill has become unable to make her own 
health care decisions. There is no dispute that no such certification was made 
by Arda Lee Churchill's physician. The trial judge determined that no valid 
arbitration agreement existed and under the facts in this case we agree. We find 
that Tamera Nelson lacked authority to bind her grandmother, Arda Lee Churchill, 
to arbitration. Thus, we need not address other rulings made by the trial judge 
and other issues raised in the petition in error. 
TRIAL COURT AFFIRMED.
Concurs: Colbert, C.J., Reif, V.C.J., Kauger, Watt, Taylor, Combs, Gurich, 
JJ.
Dissent: Winchester, J. 
FOOTNOTES
1 The trial judge also 
concluded that the FAA did not apply and that Oklahoma's Nursing Home Care Act, 
63 O.S. § 1-1939(D)(E), prevents 
arbitration of the matter. The trial judge agreed with the plaintiff that 
Bruner v. Timberlane Manor Ltd. Partnership, 2006 OK 90, 155 P.3d 16, remains good law in Oklahoma. These 
rulings were unnecessary based on the trial court's finding that no viable 
arbitration agreement existed. 
2 12 O.S. 2011 § 1879 provides:A. An appeal 
may be taken from:1. An order denying a motion to compel arbitration . . . 

3 R. at p. 73. 
4 The Maryland court noted that signing the arbitration 
agreement was not a condition of admission, so it was not a health care 
decision, but was a decision regarding legal rights in the event of 
litigation.

Citationizer© Summary of Documents Citing This Document


Cite
Name
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None Found.


Citationizer: Table of Authority


Cite
Name
Level


Oklahoma Supreme Court Cases
 CiteNameLevel
 1997 OK 20, 933 P.2d 878, 68 OBJ        786, Wilkinson v. Dean Witter Reynolds, Inc.Discussed
 2005 OK 51, 138 P.3d 826, ROGERS v. DELL COMPUTER CORPORATIONDiscussed
 2006 OK 90, 155 P.3d 16, BRUNER v. TIMBERLANE MANOR LIMITED PARTNERSHIPDiscussed
 2007 OK 12, 160 P.3d 936, OKLAHOMA ONCOLOGY & HEMATOLOGY P.C. v. US ONCOLOGY, INC.Discussed
 2014 OK 80, BOLER v. SECURITY HEALTH CARE, L.L.C.Cited
Title 12. Civil Procedure
 CiteNameLevel
 12 O.S. 1857, Enforceability, Interpretation of Arbitration Agreements - Arbitration Proceeding During Dispute Over AgreementCited
 12 O.S. 1879, AppealsDiscussed
Title 63. Public Health and Safety
 CiteNameLevel
 63 O.S. 3131.3, DefinitionsCited
 63 O.S. 1-1939, Liability to Residents - Injunctive and Declaratory Relief - Damages - Waiver of Rights - Jury Trial - Retaliation Against Residents - Immunity - Report of Abuse or NeglectCited
 63 O.S. 2200.21A, Conflict Between Determination or Directive and Medical SuitabilityCited













