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13-P-1375                                               Appeals Court

 SCOTT R. BARROW, executor,1 vs. DARTMOUTH HOUSE NURSING HOME,
                        INC.,2 & others.3


                             No. 13-P-1375.

            Essex.     April 8, 2014.   -     August 18, 2014.

                Present:   Kafker, Brown, & Sikora, JJ.


Nursing Home. Arbitration, Parties, Stay of judicial
     proceedings, Confirmation of award. Contract, Arbitration,
     Parties, Validity, Third party beneficiary. Agency, Scope
     of authority or employment. Health Care Proxy. Estoppel.
     Practice, Civil, Stay of proceedings.



     Civil action commenced in the Superior Court Department on
May 26, 2010.

     The case was heard by Robert A. Cornetta, J.

     John Vail, of the District of Columbia (David J. Hoey with
him) for the plaintiff.


     1
       Of the estate of Elizabeth Barrow. Scott R. Barrow is
Elizabeth Barrow's son, and her sole heir and beneficiary.
     2
         Doing business as Brandon Woods Long Term Care Facility.
     3
       Scott Picone; Barbara Silva; Samantha Duggan; Susan
Plante; Lucy Silveira; Laura Lundquist; and Essex Group
Management Corp.
                                                                     2


     Tory A. Weigand (Noel B. Dumas with him) for the
defendants.


     KAFKER, J.    The enforceability of arbitration agreements

signed on behalf of family members being assisted in the nursing

home admission process has been the subject of a recent

constellation of cases.    See, e.g., Miller v. Cotter, 448 Mass.

671, 679-684 (2007); Johnson v. Kindred Healthcare, Inc., 466

Mass. 779, 781-789 (2014), and Licata v. GGNSC Malden Dexter

LLC, 466 Mass. 793, 796-799 (2014).    Here, the plaintiff, Scott

R. Barrow, signed such an arbitration agreement on behalf of his

ninety-six year old mother, Elizabeth Barrow, as he helped her

enter the Brandon Woods Long Term Care Facility (nursing home).

After she was allegedly beaten and strangled to death by her

ninety-seven year old roommate, Scott4 brought, in his capacity

as executor of his mother's estate, a multicount suit in

Superior Court.5    The Superior Court judge ordered all claims to

arbitration.    The arbitrator decided all claims in favor of the

defendants, and Scott appealed on the grounds that the

arbitration agreement was unenforceable.



     4
         We use first names to avoid confusion.
     5
       He alleged negligence, lack of informed consent, and
breach of contractual or implied or express warranties, and
sought damages under the wrongful death statute, G. L. c. 229, §
2, as a result of the defendants' care of his mother.
                                                                      3


     We agree that the arbitration agreement was not enforceable

and reverse the decision of the judge compelling arbitration.

Scott did not have a durable power of attorney.   Nor was he

acting as his mother's guardian or conservator.   A health care

proxy, as the Supreme Judicial Court has previously held, is

insufficient to authorize the health care agent to sign an

arbitration agreement.   There was no evidence or suggestion that

Scott's mother specifically authorized him to sign the

arbitration agreement.   The agreement, by its express terms, was

not a requirement of admission to the nursing home.   We also

conclude that Scott did not sign the arbitration agreement in

his individual capacity and that principles of equitable

estoppel do not preclude Scott from bringing suit.

     Background.   On February 16, 2006, Scott completed the

admission authorization process for his mother at the nursing

home.   Elizabeth had requested that Scott complete this process

prior to her arrival at the home, and she had informed the

nursing home that Scott would be doing so.   The admission

process included executing numerous agreements, such as a

consent for admission, a consent for treatment, a physician

consent, and various others enumerated on a two-page "admission

authorization" form.

     In addition to these documents, Scott also signed a

"Resident and Facility Arbitration Agreement" (agreement).      The
                                                                      4


agreement provided that "any legal dispute, controversy, demand

or claim . . . that arises out of or relates to the Resident

Admission Agreement or any services or health care provided by

the Facility to the Resident, shall be resolved exclusively by

binding arbitration."    The agreement was not a condition of

admission, and clearly stated as much on its face, in bold and

capitalized print.    It also was not listed on the admission

authorization form.     Scott signed and dated the agreement on the

line for the "Resident Representative Signature," below a

paragraph certifying that the signatory was "the Resident, or a

person duly authorized by the Resident, which shall include a

responsible party, Health Care Proxy, Power of Attorney, or

Legal Guardian."   Elizabeth did not sign the agreement, and she

did not specifically authorize Scott to sign the agreement.

According to Scott's affidavit, he never informed his mother

that he entered into an arbitration agreement.

    Around the same time that Elizabeth was admitted to the

nursing home, she signed a health care proxy designating Scott

as her health care agent, pursuant to G. L. c. 201D, § 5, in the

event of her incapacity to make health care decisions.     The

proxy was witnessed on February 17, 2006, but was not activated.

Aside from the health care proxy, Scott did not hold a power of

attorney, and he was not Elizabeth's legal guardian or

conservator.
                                                                     5


    Elizabeth died on September 24, 2009.     According to the

complaint, Elizabeth's roommate at the nursing home attacked

Elizabeth in their room, beating, strangling, and asphyxiating

her by putting a plastic bag over her head.    Following

Elizabeth's death, Scott filed this wrongful death action

against the nursing home, its corporate owner, and various

employees of the nursing home (sometimes, collectively, Brandon

Woods) in the Superior Court as executor of Elizabeth's estate.

The complaint alleged that his mother's roommate demonstrated a

propensity for violence on numerous occasions while she was a

resident at the nursing home, and that the defendants' failure

to address these violent propensities resulted in Elizabeth's

death.

    Relying on the agreement that Scott had signed during the

admission process, Brandon Woods moved to compel arbitration.

Scott opposed arbitration based on his claim that he lacked

actual or apparent authority to sign the agreement.      The judge

entered an order compelling arbitration.    After various

additional motions, proceedings, and orders -- including an

order by a single justice of this court denying Scott's

interlocutory appeal -- the parties proceeded to arbitration,

where the arbitrator determined that there had been no

wrongdoing by Brandon Woods.   The judge confirmed the

arbitration decision and denied Scott's postarbitration motions
                                                                      6


seeking to alter or amend the judgment and to vacate the

arbitration decision.   This appeal followed.

     Discussion.    "Adjudication of a motion to compel

arbitration, including a challenge to the validity of the

arbitration agreement, is governed by G. L. c. 251, § 2(a)."

Johnson, 466 Mass. at 781.    "Such motions are treated akin to

motions . . . for summary judgment."      Chambers v. Gold Medal

Bakery, Inc., 83 Mass. App. Ct. 234, 241 (2013).      See Miller v.

Cotter, 448 Mass. at 676.    Accordingly, the moving party --

here, Brandon Woods -- bears the burden of proving that the

material facts are established and that it is entitled to

arbitration as a matter of law.   See Augat, Inc. v. Liberty Mut.

Ins. Co., 410 Mass. 117, 120 (1991).      In the instant case, the

key facts have not been disputed, nor has an evidentiary hearing

been requested.    We therefore review de novo the judge's legal

conclusion regarding the validity of the arbitration agreement.

See Licata, 466 Mass. at 796; Chambers, supra at 241.      Our own

legal analysis is guided by the Supreme Judicial Court's most

recent decisions in Johnson and Licata.6

     1.   Health care proxy and agency.    In Johnson and Licata,

the court defined the standards for authorizing arbitration


     6
       We note that neither the judge nor the single justice of
this court had the benefit of the Johnson or Licata decisions,
which were issued subsequently.
                                                                    7


agreements and distinguished them from other forms of agency

authority, including those governing health care proxies and the

signing of ordinary nursing home documents.    More specifically,

the court held that a health care proxy alone is insufficient to

provide authorization to sign an arbitration agreement.     See

Johnson, 466 Mass. at 781; Licata, 466 Mass. at 797.    As the

court explained, "the Legislature intended to distinguish

between a health care proxy, which limits an agent's decision-

making authority on behalf of an incapacitated person to health

care decisions, and a durable power of attorney, guardianship,

or conservatorship, all of which authorize broad decision-making

power on behalf of an incompetent person, including over the

person's financial interests and estate."     Johnson, supra at

784-785.   See Miller, supra at 681-682 (durable power of

attorney is sufficient to authorize family member to sign

arbitration agreement on behalf of principal).    In the instant

case, Scott held at most a health care proxy;7 he did not have a

power of attorney, and he was not a guardian or a conservator.



     7
       The parties essentially treat the health care proxy as
having been signed contemporaneously with the arbitration
agreement, as part of the admission process. The timing of when
Elizabeth actually signed the health care proxy is uncertain, as
it may not have been signed until the day after Scott signed the
arbitration agreement. Regardless, even if the proxy were
signed prior to the arbitration agreement, it would not have
been sufficient.
                                                                     8


    The court in Johnson and Licata also distinguished the

authority to sign ordinary nursing home documents from

arbitration agreements.   As the court stated, a "person's

designation in a health care proxy may establish the

individual's trustworthiness and familiarity with the principal

and, therefore, enable the individual to sign many of the

documents included in a nursing home's admissions package.     But

it does not follow that such a person also can sign an

arbitration agreement, which requires the power of an authorized

fiduciary."   Johnson, supra at 789.

    In addition to the health care proxy, however, we have here

Elizabeth's relationship to Scott and her request that Scott

complete the admission process prior to her arrival.     We agree

that her parent-child relationship with Scott, and her request

and representation that he act on her behalf in the admission

process, further enhances his authority to act as her agent in

the nursing home admission process.    See Theos & Sons, Inc. v.

Mack Trucks, Inc., 431 Mass. 736, 742 (2000) (Theos) (agency

relationship is created when there is mutual consent that agent

is to act on behalf of principal and subject to principal's

control).   "Even where an agent-principal relationship exists,

however, the principal has liability for the agent's acts toward

third parties only if the agent was acting with the actual or
                                                                     9


apparent authority of the principal in that transaction."     Id.

at 743 (emphasis added).8

     In the instant case, Brandon Woods has provided no evidence

suggesting that Elizabeth knew Scott was signing an arbitration

agreement as part of her admission into the nursing home or made

any representation to Brandon Woods to that effect.    She was not

in the room when he signed it.   See Licata, supra at 802.    It

was not a part of the two-page admission authorization form.

The agreement was not a condition of admission.    Finally, Scott

attested that he did not inform her of his signing of the

arbitration agreement.   On the factual record before us, Brandon

Woods has not met its burden of showing that signing the

arbitration agreement was within the scope of Scott's actual or

apparent authority to act on her behalf in the nursing home

admission process.   See id. at 801.   See also Theos, supra at

745; Walker v. Collyer, 85 Mass. App. Ct. 311, 323-325 (2014).

     2.   Third-party beneficiary.   Brandon Woods's argument that

the arbitration agreement bound Elizabeth as a third-party


     8
       Actual authority "is the agent's power to affect the
principal's relations with third parties as manifested" by the
principal to the agent. Theos, supra at 743-744, citing
Restatement (Second) of Agency § 7 (1958). Apparent authority
arises from "written or spoken words or any other conduct of the
principal which, reasonably interpreted, causes the third person
to believe that the principal consents to have the act done on
his behalf by the person purporting to act for him."
Restatement (Second) of Agency § 27 (1958).
                                                                     10


beneficiary is similarly unavailing.    "There can be no third-

party beneficiary . . . in the absence of a contract."     Licata,

supra at 803, citing Restatement (Second) of Contracts §§ 304

comment b, 309(1) & comment a (1981).     No contract was formed

here because no one with authority to do so signed the

agreement.   See ibid.    Although Brandon Woods argues that Scott

may be deemed to have signed the contract in his individual

capacity, this is contradicted by the intent of the parties as

manifested by the terms of the agreement itself.     See

Constantino v. Frechette, 73 Mass. App. Ct. 352, 355 (2008).

The agreement is plainly titled "Resident and Facility

Arbitration Agreement," and in the first paragraph, the parties

to the agreement are listed as "BWD [Brandon Woods Dartmouth]"

and "Elizabeth W. Barrow."    Scott only purported to sign the

arbitration agreement as Elizabeth's "Resident Representative."

The contract does not support a reading that either Brandon

Woods or Scott intended that he sign the agreement in his

individual capacity.     See ibid. (nurses at care facility were

not parties to contract between nursing home and resident where

nurses were not named as parties and did not assume obligations

under contract).

    3.   Equitable estoppel.     Finally, Brandon Woods argues that

we should apply equitable estoppel, as the judge did below, to

hold that Scott is bound by the agreement.     Equitable estoppel
                                                                     11


may be raised where the defendant can prove that he was harmed

because the plaintiff's conduct or representation induced him to

do something different from what he otherwise would have done.

See Boston & Albany R.R. Co. v. Reardon, 226 Mass. 286, 291

(1917).   Nevertheless, "[t]he law does not regard estoppels with

favor," Licata, supra at 804, quoting from Reardon, supra at

291, and estoppel is applied only to avoid injustice.    See

Reardon, supra at 291 ("[T]he doctrine of estoppel is not

applied except when to refuse it would be inequitable").       "To

establish estoppel, a party must show (1) a representation

intended to induce reliance on the part of a person to whom the

representation is made; (2) an act or omission by that person in

reasonable reliance on the representation; and (3) detriment as

a consequence of the act or omission."    Licata, supra at 804

(quotation omitted).   See Harrington v. Fall River Hous. Authy.,

27 Mass. App. Ct. 301, 308 (1989) (quotation omitted)

(describing the elements of estoppel as follows:     "first, a

material misrepresentation of a party who had reason to know of

its falsity; second, reasonable reliance upon the

misrepresentation; and third, some disadvantage to the party

seeking to assert estoppel fairly traceable to the

misrepresentation").   See also Walker, 85 Mass. App. Ct. at 319.

    The principles and elements of equitable estoppel neither

require nor favor its application here.   The flaw in Brandon
                                                                    12


Woods's argument is that it points only to Scott's purported

actions and alleged misrepresentations, and not to any act or

omission of its own that was done in response to or in reliance

of such actions.    Even if we were to accept, for the sake of

argument, that the first element is satisfied by any of Scott's

purported representations in signing the agreement, the second

and third elements cannot be met on these facts.    Brandon Woods

cannot show that any representations induced it to do something

different than it otherwise would have done, as signing the

arbitration agreement was not a condition of admission, and

Brandon Woods does not argue that it would have treated

Elizabeth differently in any other way if the agreement had not

been signed.   Cf. Looney v. Trimount Theatres, Inc., 282 Mass.

275, 278-279 (1933) (lessee who was misled and disadvantaged by

lessor's misrepresentation regarding title to property fixtures

could assert estoppel where lessee had acted on

misrepresentation by acquiring title to fixtures from another).

Likewise, Brandon Woods does not attempt to show that it

suffered any detriment as a consequence of Scott's purported

representation.    Cf. Cellucci v. Sun Oil Co., 2 Mass. App. Ct.

722, 729 (1974), S.C., 368 Mass. 811 (1975) (plaintiff

detrimentally relied on defendant company's representation that

company would buy plaintiff's land where plaintiff broke off

negotiations for land sale with other competitor companies).       As
                                                                 13


such, we cannot say that application of equitable estoppel is

necessary to avoid injustice here.

    Conclusion.     We conclude that Scott did not have the

authority to execute the arbitration agreement on his mother's

behalf; he did not sign the agreement in his individual

capacity; and equitable estoppel is not warranted on these

facts.   Therefore, Scott, as executor of his mother's estate,

shall be permitted to seek redress in court for Elizabeth's

allegedly violent and unnatural death while in the defendants'

care.    The judgment confirming the arbitration award is vacated,

and the matter is remanded to the Superior Court for proceedings

consistent with this opinion.

                                     So ordered.
