                                                                         FILED
                                                                     Mar 17 2020, 8:43 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Ashley N. Hadler                                           CARMEL OPERATOR, LLC &
Garau Germano, P.C.                                        SPECTRUM RETIREMENT
Indianapolis, Indiana                                      COMMUNITIES, LLC
ATTORNEY FOR AMICUS CURIAE                                 Rafael P. McLaughlin
INDIANA TRIAL LAWYERS                                      Katherine M. Haire
                                                           Reminger Co., LPA
ASSOCIATION
                                                           Fort Wayne, Indiana
James E. Stoltz
Gerling Law Offices, P.C.                                  ATTORNEYS FOR APPELLEE
Evansville, Indiana                                        CERTIPHI SCREENING, INC.
                                                           Chad J. Kaldor
                                                           Peter T. Tschanz
                                                           Littler Mendelson, P.C.
                                                           Columbus, Ohio
                                                           ATTORNEYS FOR APPELLEE
                                                           MICHAEL DAMON SULLIVAN
                                                           David G. Field
                                                           Jeffrey M. Kraft
                                                           Schultz & Pogue, LLP
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020                           Page 1 of 27
      Jane Doe 1, as Legal Guardian                              March 17, 2020
      of the Person and Estate of Jane                           Court of Appeals Case No.
      Doe 2, an Incapacitated Adult,                             19A-CT-2191
      Appellant-Plaintiff,                                       Appeal from the Hamilton Superior
                                                                 Court
              v.                                                 The Honorable Michael A. Casati,
                                                                 Judge
      Carmel Operator, LLC d/b/a                                 Trial Court Cause No.
      Carmel Senior Living, et al.,                              29D01-1811-CT-11534
      Appellees-Defendants.



      Bailey, Judge.



                                           Case Summary
[1]   Jane Doe I (“Guardian”), as legal guardian of the person and estate of Jane

      Doe II (“Resident”), an incapacitated adult, appeals the trial court order

      compelling arbitration of Resident’s claims against Carmel Operator, LLC,

      d/b/a Carmel Senior Living (“CSL”), Spectrum Retirement Communities

      (“Spectrum”), Michael D. Sullivan (“Sullivan”), and Certiphi Screening, Inc.

      (“Certiphi”).


[2]   We affirm.



                                                     Issues
[3]   Guardian raises two issues on appeal which we restate as follows:



      Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020                     Page 2 of 27
              1.       Whether the trial court erred by enforcing the arbitration
                       agreement and compelling arbitration of Resident’s claims
                       against CSL, Spectrum, and Sullivan1 despite Guardian’s
                       claim that the agreement is unconscionable.


              2.       Whether the trial court erred by enforcing the arbitration
                       agreement and compelling arbitration of Resident’s claims
                       against Certiphi based upon equitable estoppel.


                             Facts and Procedural History
[4]   Prior to June 1, 2018, seventy-seven-year-old Resident was a resident of

      Wellbrooke of Wabash, an assisted living facility located in Wabash, Indiana.

      On approximately May 1, 2018, Wellbrooke of Wabash advised Guardian that

      it could no longer care for Resident due to Resident’s tendency to elope from

      the facility. Guardian was provided until the end of the month to find new

      accommodations for Resident.


[5]   On May 7, Guardian contacted CSL, and she visited the facility on May 8.

      Guardian informed CSL that she had also toured other facilities in search of a

      placement for Resident. Guardian authorized a nurse at CSL to assess Resident

      on or about May 16, 2018. The assessment revealed serious cognitive issues

      and memory impairment, and CSL was concerned that Resident would be at

      risk for elopement from its unsecured unit. Because Guardian did not want to




      1
        Guardian does not challenge the applicability of the arbitration agreement to Spectrum and Sullivan as
      non-signatories; rather, she treats CSL, Spectrum, and Sullivan as one.

      Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020                              Page 3 of 27
      place Resident in a secured facility, CSL agreed to accept Resident into its

      unsecured unit on the conditions that Resident, upon arrival, had to tour the

      memory care unit and, if Resident attempted to elope, she would be transferred

      to that memory care unit. Guardian agreed to those terms.


[6]   On May 23, 2018, Guardian went to CSL’s facility, paid a deposit, and received

      a move-in packet. Resident’s scheduled move-in date was June 4, 2018. On the

      morning of May 31, CSL e-mailed an Assisted Living and Memory Care

      Residency Agreement (“Residency Agreement”) to Guardian. CSL requested

      that Guardian either come to CSL to execute the agreement or that she print,

      sign, and return it.


[7]   Guardian subsequently contacted CSL and scheduled a meeting for 1:00 p.m.

      on June 1, 2018, in order to review and sign the Residency Agreement, among

      other things. Guardian was unable to make that appointment; however, at

      approximately 4:45 p.m. that day, she delivered a copy of the Residency

      Agreement that she had already executed, along with two lease checks, to a

      CSL move-in coordinator. At that time, CSL provided Guardian with a copy

      of the Residency Agreement that had been signed by Rita Shew (“Shew”), the

      Executive Director of CSL, and Guardian “was told to sign the Residency

      Agreement.” App. Vol. III at 171.2 At that time, Guardian also received the

      keys to Resident’s apartment. CSL did not explain the Residency Agreement to




      2
          All references to the appendices relate to Appellant’s appendices unless otherwise specified.


      Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020                                  Page 4 of 27
      Guardian, and Guardian did not ask CSL for any explanations of the

      Residency Agreement. On June 4, 2018, Shew signed the Residency

      Agreement that Guardian had signed and provided to CSL on June 1. Resident

      moved into CSL on June 4.


[8]   The Residency Agreement was twenty-two pages long, exclusive of the table of

      contents and addenda. The agreement contained approximately sixty-one

      pages of addenda. Section III of the agreement stated in relevant part: “You

      may terminate this Residency Agreement at any time, with or without cause, by

      giving thirty (30) days prior written notice to the Community’s Executive

      Director, or such other person as the Executive Director may designate ….”

      Section V(J) of the agreement stated in relevant part: “This Residency

      Agreement shall be construed and enforced in accordance with the laws of the

      State in which the Community is located and shall be binding upon and inure

      to the benefit of the parties hereto ….” App. V. II at 58. Section V(L) of the

      agreement stated, in relevant part:


              If the person signing this Residency Agreement is not the
              Resident, the Community both requires and relies upon the
              representation by the person that signs this Residency
              Agreement, as Legal Representative, that he or she has been
              authorized by the Resident to enter into and bind the Resident to
              each and every one of the terms and conditions of this Residency
              Agreement, both financial and non-financial, without any
              restriction whatsoever. This authorization expressly includes but
              is not limited to the authority to bind the Resident to the Binding
              Arbitration Agreement. …



      Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020        Page 5 of 27
      Id. at 59.


[9]   Section VII of the Residency Agreement was entitled, in bold capital letters,

      “BINDING ARBITRATION AGREEMENT” (Arbitration Agreement). Id.

      at 63. The Arbitration Agreement stated, in relevant part:


              THIS AGREEMENT GOVERNS IMPORTANT LEGAL
              RIGHTS. PLEASE READ IT CAREFULLY AND IN ITS
              ENTIRETY BEFORE SIGNING IT.


              The parties wish to work together to resolve any disputes in a
              timely fashion and in a manner that they believe will minimize
              both of their legal costs. Therefore, in consideration of the
              mutual promises in this Agreement, the Community and the
              Resident hereby agree as follows:


              A. What is Arbitration?


              … In arbitration, the disputes are heard and decided by a private
              individual called an arbitrator. The disputes will not be heard or
              decided by a judge or jury under any circumstance. However,
              just as in a court case, each party can be represented by an
              attorney.


              B. Disputes to be Arbitrated


              Any and all claims or controversies involving the Community,
              Resident and/or Legal Representative arising out of or in any
              way relating to this Arbitration Agreement or any of the
              Resident’s stays at the Community, including all disputes raised
              by the Community, Resident or Legal Representative regarding
              enforcement or interpretation of this Agreement, and including
              but not limited to all disputes involving questions of waiver,

      Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020           Page 6 of 27
        unconscionability, voidability or arbitrability, whether arising out
        of State or Federal law, whether existing now or in the future,
        whether sounding in breach of contract, tort or breach of
        statutory duties (including, without limitation, claims based on
        personal injury or death or claim for unpaid Community
        charges), regardless of the basis for any duty or of the legal
        theories upon which the claim is asserted, shall be submitted to
        and resolved by binding arbitration. This includes claims against
        the Community, its employees, agents, officers, directors, any
        parent, subsidiary or affiliate of the Community.


        C. Binding Nature of Arbitration


        The decision rendered by the arbitrator shall be final and binding,
        … There shall be no appeal of the arbitrator’s decision by either
        party. The decision of the arbitrator shall be binding on all
        parties to the arbitration, and all persons whose claim is derived
        through or on behalf of the Resident, including, but not limited
        to, any claims on behalf of any … guardian, … [or] legal
        representative … of the Resident. The parties agree and
        acknowledge that any award issued pursuant to an arbitration
        hearing shall not include any amount for exemplary or punitive
        damages.


        D. Who Will Conduct Arbitration


                                                 ***


        In the event that a dispute arises, a written demand for
        arbitration shall be made by the person(s) (the “Claimant” or
        “Claimants”) asserting that a dispute exists ….


                                                 ***



Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020         Page 7 of 27
        … The Claimants and Respondents shall agree upon an
        Arbitrator ….


                                                 ***


        The Arbitrator shall resolve all disputes between the Claimants
        and Respondents, without any restriction whatsoever, as it is the
        parties’ intent to completely avoid the court system in such
        matters.


                                                 ***


        E. Laws Governing Arbitration


        The parties agree that the Community is engaged in interstate
        commerce and that this Agreement to arbitrate disputes and the
        arbitration shall be governed by the Federal Arbitration Act. If
        for any reason there is a finding that the Federal Arbitration Act
        cannot be applied to this Agreement, then the parties hereby
        make it clear their intent that their disputes/claims be resolved
        pursuant to the arbitration section of the Revised Code or such
        similar statutes of the state in which the Community is located.


        F. Confidentiality


        You and Your Legal Representative and the Community agree to
        keep all arbitration proceedings strictly confidential, …


        G. Survival and Durability Provision


        This Agreement shall survive the termination of, and changes to,
        the Assisted Living Residency Agreement and Addenda and shall
        apply to any of the Resident’s admissions to the Community. If

Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020           Page 8 of 27
                  any term, phrase, or portion thereof of this Arbitration
                  Agreement is deemed invalid or unenforceable, the remaining
                  portions shall nevertheless remain in force.


       Id. at 63-65 (emphasis original).


[10]   At the end of the Arbitration Agreement, there is a line for the initials of the

       Resident, and Guardian initialed that line as follows: “AG (Guardian).” Id. at

       65.


[11]   The “SIGNATURE PAGE FOR ASSISTED LIVING RESIDENCY

       AGREEMENT” immediately follows the Arbitration Agreement. Id. at 66

       (emphasis original). It states, in relevant part:


                  The undersigned certifies that he/she has read this Assisted
                  Living Residency Agreement and its Addenda or that the
                  Residency Agreement and its Addenda have been fully explained
                  to him/her, that he/she understands their contents, and has
                  received a copy of the Residency Agreement and its Addenda
                  and that he/she is the Resident, or a person authorized by the
                  Resident or otherwise authorized to execute this Residency
                  Agreement and its Addenda and accept all of the terms therein.
                  …


       Id. (emphasis added). Guardian signed that page and dated it June 1, 2018.

       Shew also signed the signature page as the “Community Representative,” and

       dated it June 1, 2018. Id. The addenda A through S3 follow the signature page,




       3
           Addendum B states only that it is “intentionally deleted.” Id. at 69.


       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020          Page 9 of 27
       and each addendum is dated June 1, 2018. Guardian and Shew signed each

       addendum.


[12]   On November 30, 2018, Guardian filed a complaint for breach of contract and

       negligence against CSL, Spectrum,4 and Sullivan, who was an employee of

       CSL. She alleged that, on or before August 7, 2018, Sullivan, while an

       employee of CSL, sexually abused Resident and that CSL/Spectrum should be

       held vicariously liable. On March 19, 2019, Guardian amended the complaint

       to add Certiphi as a defendant who contracted with CSL to do a criminal

       background check of Sullivan. The amended complaint alleged that CSL,

       Spectrum, and Certiphi are liable for negligently failing to uncover in a criminal

       background check Sullivan’s prior Indiana convictions of a sex crime and

       murder.


[13]   On January 25, 2019, CSL and Spectrum served Guardian with a Demand for

       Arbitration. On February 9, counsel for Guardian and Resident advised CSL

       that “the Arbitration Agreement is not valid and we will not agree to

       [CSL/Spectrum’s] request to proceed with arbitration on that basis.” App. Vol.

       II at 125. All defendants to the lawsuit subsequently moved the trial court to

       dismiss and/or stay the trial court proceedings and to compel arbitration.

       Guardian argued that the Arbitration Agreement is unconscionable, that the




       4
           Spectrum is the management company of CSL.


       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020      Page 10 of 27
       trial court should find the Arbitration Agreement to be invalid, and that the

       dispute should remain before the trial court.


[14]   Following a hearing on the motions, on August 20, 2019, the trial court issued

       an Order denying defendants’ motions to dismiss but granting the defendants’

       motions to compel arbitration and stay proceedings. The August 20 order

       stated, in relevant part:


                                                  ***


               The Court, in granting the Motions to Compel Arbitration,
               concludes that the Arbitration Agreement is a valid and
               enforceable contract to arbitrate the disputes that are the subject
               of the Plaintiffs’ Amended Complaint. The Court further finds
               that the Arbitration Agreement clearly and unmistakably
               delegates matters of arbitrability and unconscionability to an
               arbitrator, including whether Plaintiffs’ claims against all parties
               should be subject to arbitration. Accordingly, it is for the
               arbitrator to decide the issues relating to Plaintiffs’
               unconscionability defense and whether Plaintiffs’ claims against
               Defendants are subject to Arbitration. However, even if the issue
               of unconscionability of the Arbitration Agreement were before
               the Court, the Court would find that such provision was not
               unconscionable.


               Additionally, Certiphi Screening, although not a party to the
               Arbitration Agreement, wants the claims that Plaintiffs have
               asserted against it decided at the binding arbitration required by
               the Arbitration Agreement. The Court finds the plain language
               of the Arbitration Agreement expressly covers claims against
               “agents.” Considering Plaintiffs’ allegations in this case and
               drawing all reasonable inferences in favor of arbitration, the
               Court finds that Plaintiffs’ agency theory of liability falls within

       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020             Page 11 of 27
               the scope of the Arbitration Agreement. For this reason, the
               Court finds Plaintiffs’ claims against Certiphi Screening are
               subject to arbitration.


               Lastly, the Court finds both types of equitable estoppel present
               themselves in this case and therefore mandate arbitration of
               Plaintiffs’ claims against Certiphi Screening.


       App. Vol. II at 24-25. This appeal ensued.



                                  Discussion and Decision
               Existence and Validity of Arbitration Agreement
[15]   This is an appeal from an order compelling arbitration, which we review de

       novo. Brumley v. Commw. Bus. Coll. Educ. Corp., 945 N.E.2d 770, 774-75 (Ind.

       Ct. App. 2011).


               The party seeking to compel arbitration has the burden of
               proving the existence of a contract calling for arbitration.... After
               a motion to compel arbitration has been made and supported, the
               burden is on the non-movant to present evidence that the
               supposed arbitration agreement is not valid or does not apply to
               the dispute in question.


       Id. at 775 (quotation and citation omitted).


[16]   The Arbitration Agreement contained in the Residency Agreement states that

       the Federal Arbitration Act (“FAA”), 9 USC § 1, et seq., applies to it. App. V.

       II at 64.



       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020         Page 12 of 27
               Congress enacted the FAA to overcome judicial resistance to
               arbitration and to declare a national policy favoring arbitration of
               claims that parties contract to settle in that manner. Vaden v.
               Discover Bank, 556 U.S. 49 … (2009). The FAA places arbitration
               agreements on an equal footing with other contracts and requires
               courts to enforce them according to their terms. Volt Info. Sci.,
               Inc. v. Bd. of Tr. of Leland Stanford Junior Univ., 489 U.S. 468 …
               (1989). Like other contracts, however, arbitration agreements
               may be invalidated by generally applicable contract defenses,
               such as fraud, duress, or unconscionability. Doctor’s Assocs., Inc.
               v. Casarotto, 517 U.S. 681, 687 … (1996). State law contract
               principles apply to determine whether parties have agreed to
               arbitrate. MPACT Constr. Group, LLC v. Superior Concrete
               Constructors, Inc., 802 N.E.2d 901, 906 (Ind. 2004).


       Brumley, 945 N.E.2d at 776.


[17]   When considering whether parties agreed to arbitrate a dispute, a reviewing

       court must attempt to determine the intent of the parties at the time the contract

       was made by examining the language used to express their rights and duties.

       Progressive Se. Ins. Co., v. Empire Fire & Marine Ins. Co., 88 N.E.3d 188, 194 (Ind.

       Ct. App. 2017); see also Maynard v. Golden Living, 56 N.E.3d 1232, 1238 (Ind. Ct.

       App. 2016) (“If the [contract] language is unambiguous, we may not look to

       extrinsic evidence to expand, vary, or explain the instrument but must

       determine the parties’ intent from the four corners of the instrument.”). We

       presume that contracts represent the freely bargained agreement of the parties,

       “reflecting the principle that it is in the best interests of the public not to

       unnecessarily restrict the freedom to contract.” City of New Albany v. Cotner, 919

       N.E.2d 125, 134 (Ind. Ct. App. 2010), trans. denied; see also Sanford v. Castleton


       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020           Page 13 of 27
       Health Care Ctr., 813 N.E.2d 411, 416 (Ind. Ct. App. 2004) (“Under Indiana

       law, a person is presumed to understand and assent to the terms of the contracts

       he or she signs.”).


[18]   Here, the language of the arbitration agreement clearly and plainly states that

       the parties agree to “binding arbitration” of all disputes “arising out of the

       Arbitration Agreement or the Resident’s stay at [CSL], … whether sounding in

       breach of contract [or] tort ….” App. Vol. II at 63. The contract also clearly

       states that the decision rendered by an arbitrator “shall be final and binding, …

       [with] no appeal of the arbitrator’s decision by either party.” Id. Furthermore,

       the arbitration agreement states in a stand-alone paragraph: “The Arbitrator

       shall resolve all disputes between the [Resident and CSL], without any

       restriction whatsoever, as it is the parties’ intent to completely avoid the court system

       in such matters.” Id. at 64 (emphasis added).5 The language of the agreement is

       unambiguous and clearly evinces the parties’ intent to submit disputes such as

       the breach of contract and tort claims of Guardian to binding arbitration.


[19]   Despite the plain language of the arbitration agreement, Guardian and Amicus

       Curiae Indiana Trial Lawyers Association assert that the agreement is invalid




       5
         Guardian challenges only the validity of the arbitration agreement, not the entire residency agreement as a
       whole. “If a party challenges the validity of the precise agreement to arbitrate, the court must address the
       challenge before ordering compliance with that agreement, [Rent–A–Center, West, Inc. v. Jackson, -- U.S. --, 130
       S.Ct. 2772, 2778, 177 L.Ed.2d 403 (2010),] whereas ‘a challenge to the validity of the contract as a whole,
       and not specifically to the arbitration clause, must go to the arbitrator.’ Buckeye Check Cashing, Inc. v. Cardegna,
       546 U.S. 440, 449, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006).” Brumley, 945 N.E.2d at 777. Therefore, to the
       extent the arbitration agreement purports to make its own existence an arbitrable issue, that part of the
       agreement is invalid. Id.

       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020                                    Page 14 of 27
       because it is unconscionable. Where—as here—a party challenges only the

       validity of the arbitration agreement and not the entire contract as a whole, the

       question of whether an agreement to arbitrate is invalid as unconscionable is a

       question to be addressed by the courts, not an arbitrator. 6 Brumley, 945 N.E.2d

       at 777 (“If a party challenges the validity of the precise agreement to arbitrate,

       the court must address the challenge before ordering compliance with that

       agreement, [Rent–A–Center, West, Inc. v. Jackson, -- U.S. --, 130 S.Ct. 2772, 2778,

       177 L.Ed.2d 403 (2010),] whereas ‘a challenge to the validity of the contract as

       a whole, and not specifically to the arbitration clause, must go to the arbitrator.’

       Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449, 126 S.Ct. 1204, 163

       L.Ed.2d 1038 (2006).”).7 If the court finds that the arbitration clause is valid

       and enforceable and applicable to the disputes at issue, the court “shall order

       the parties to proceed with arbitration.” Sanford, 813 N.E.2d at 416.


[20]   Like other contracts, arbitration agreements may be invalidated by generally

       applicable contract defenses, such as unconscionability. Brumley, 945 N.E.2d at

       776. As a general rule, a contract may be unenforceable due to

       unconscionability when there is “a great disparity in bargaining power which

       leads the party with the lesser power to sign a contract unwillingly and unaware

       of its terms.” McAdams v. Foxcliff Est. Cmty. Ass’n, Inc., 92 N.E.3d 1144, 1150




       6
          The trial court erred to the extent it held otherwise. However, any such error was harmless because the
       trial court held that, to the extent the issue was before it, the arbitration contract was not unconscionable.
       7
         Therefore, to the extent the arbitration agreement purports to make its own existence an arbitrable issue,
       that part of the agreement is invalid. Id.

       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020                                  Page 15 of 27
       (Ind. Ct. App. 2018) (quotation and citation omitted). An unconscionable

       contract is one that “no sensible person not under delusion or duress or in

       distress would make, and one that no honest and fair person would accept.” Id.

       In Indiana,


               [o]ur unconscionability jurisprudence is sub-divided into two
               branches: substantive and procedural. Substantive
               unconscionability refers to oppressively one-sided and harsh
               terms of a contract, while procedural unconscionability involves
               the manner and process by which the terms become part of the
               contract.


       Missler v. State Farm Ins. Co., 41 N.E.3d 297, 303 (Ind. Ct. App. 2015) (citations

       omitted).


[21]   Guardian alleges the arbitration agreement is both substantively and

       procedurally unconscionable. She contends that it is substantively

       unconscionable because its terms requiring arbitration and prohibiting judicial

       review, requiring confidentiality of arbitration proceedings, and limiting

       damages are “oppressively one-sided and harsh.” Appellant’s Br. at 19.

       Essentially, Guardian asserts that the arbitration agreement is an “adhesion

       contract,” i.e., “a standardized contract, which, imposed and drafted by the

       party of superior bargaining strength, relegates to the subscribing party only the

       opportunity to adhere to the contract or reject it.” Sanford, 813 N.E.2d at 417.

       However, a contact is not unenforceable merely because one party enjoys

       advantages over another, and an adhesion contract is not per se



       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020       Page 16 of 27
       unconscionable.8 Id.; see also, e.g., Four Seasons Mfg., Inc. v. Coliseum, LLC, 870

       N.E.2d 494, 502-03 (Ind. Ct. App. 2007) (holding parties may contract to limit

       damages as long as the limitation is “so definite and positive in its terms as to

       show the clear intention of the parties”); Horner v. Carter, 981 N.E.2d 1210,

       1211 (Ind. 2013) (“Indiana policy strongly favors the confidentiality of all

       matters that occur during mediation.”) Rather, a contract is substantively

       unconscionable when “the weaker party, in need of goods or services, is not in

       a position to shop around for better terms, either because the author of the

       standard contract has a monopoly or the other competitors use the same

       contract. …” DiMizio v. Romo, 756 N.E.2d 1018, 1024 (Ind. Ct. App. 2001)

       (quotation and citation omitted), trans. denied.


[22]   Guardian has pointed to no evidence indicating that she was the weaker party

       or that she was not in a position to “shop around for better terms.” Id. In fact,

       the evidence shows that Guardian did investigate other facilities as possible

       placements for Resident. And, although Guardian now states that she did not

       understand that she was agreeing to confidentiality of arbitration and waiving

       Resident’s access to courts and claims for punitive and exemplary damages, she

       provides no explanation as to why she did not understand the clear, plain terms

       of the contract that did just that. She does not establish—or even claim—that




       8
         Furthermore, an arbitration contract is not per se unconscionable simply because it must be signed in order
       to be admitted to a nursing facility, as Guardian contends, citing Maynard, 56 N.E.3d 1232. This court has
       found such arbitration provisions not unconscionable in other cases involving nursing home facilities. See
       Tender Loving Care Mgmt., Inc. v. Sherls,14 N.E.3d 67 (Ind. Ct. App. 2014); Sanford, 813 N.E.2d 411.

       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020                              Page 17 of 27
       she had difficulty understanding the terms of the agreement or that she initialed

       and signed it unwillingly. See Tender Loving Care Mgmt., Inc. v. Sherls,14 N.E.3d

       67, 75 (Ind. Ct. App. 2014) (holding an arbitration provision of nursing home

       contract was not unconscionable in part because there was no allegation that

       the signatory had difficulty understanding the terms of the Agreement or that he

       unwillingly signed it). Nor does Guardian provide evidence that she was

       precluded from asking CSL questions about the agreement; rather, the evidence

       establishes that Guardian had an appointment with CSL for that exact purpose

       but cancelled that appointment and did not seek any explanation of the contract

       thereafter. Moreover, the terms of the agreement do not prohibit Resident from

       seeking relief for her claims; they simply require that such claims be decided in

       binding arbitration and not include claims for punitive or exemplary damages.

       See id. The agreement is not substantively unconscionable.


[23]   Guardian also contends that the Arbitration Agreement is procedurally

       unconscionable because the arbitration clause was three pages of an “eighty-

       three-page document,” Appellant’s Br. at 24, and CSL provided her with the

       document “less than twenty-four hours before move-in,” Appellant’s Reply Br.

       at 12. CSL emailed the residency and arbitration agreements to Guardian on

       the morning of May 31, 2018, four calendar days before Resident’s move-in

       date of June 4; that is not an insufficient period of time in which to read a

       contract. And there is no evidence to suggest that Guardian sought and/or was

       denied additional time in which to review the agreements.




       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020       Page 18 of 27
[24]   Furthermore, the arbitration agreement was not “buried or hidden in the

       Contract,” as Guardian seems to suggest. Sanford, 813 N.E.2d at 417. Rather,

       as was the case with the nursing home arbitration agreement at issue in Sanford,

       the arbitration agreement here had its own heading in bold capital letters; it is

       immediately followed by a signature line requiring Guardian to provide her

       initials, which she did; and there is no evidence that Guardian was precluded

       from reading the agreement and asking questions about it. Id. at 418. In

       addition, the very beginning of the arbitration agreement states in bold capital

       letters and in a larger font than the rest of the contract, “THIS AGREEMENT

       GOVERNS IMPORTANT LEGAL RIGHTS. PLEASE READ IT

       CAREFULLY IN ITS ENTIRETY BEFORE SIGNING IT.” App. Vol. II at

       63. That Guardian apparently chose to ignore that warning does not make the

       contract unconscionable.


[25]   Finally, Amicus Curiae Indiana Trial Lawyers Association contends that

       predispute arbitration agreements for nursing home facilities such as the one in

       this case are unconscionable as against public policy. However, the Residency

       Agreement was a contract for Resident to live in CSL’s “assisted living and

       memory care apartments,” not a nursing home facility. App. Vol. II at 45. 9




       9
         CSL disputes that it is a nursing home facility; rather, it states it is an assisted living facility and it
       submitted an affidavit to that effect in its Appendix, although the affidavit was not submitted in the trial
       court. It is well-settled that we may not consider matters outside the record in ruling on an appeal. Schaefer v.
       Kumar, 804 N.E.2d 184, 187 n. 3 (Ind.Ct.App.2004), trans. denied. And “[f]actual material which was not
       part of the record in the trial court cannot be made part of a case on appeal merely by including it in an
       appendix to a party's brief.” Chesterfield Mgmt., Inc. v. Cook, 655 N.E.2d 98, 101 (Ind. Ct. App. 1996), trans.


       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020                                 Page 19 of 27
       Regardless, Indiana case law makes it clear that predispute arbitration

       agreements—whether for assisted living or nursing home facilities—are not

       unconscionable, per se, as against public policy in this state.


[26]   In determining whether an otherwise valid agreement is contrary to declared

       public policy, we


               keep in mind the principle that it is to the best interest of the
               public that persons should not be unnecessarily restricted in their
               freedom of contract and that their agreements are not to be held
               void as against public policy, unless they are clearly contrary to
               what the constitution, the legislature, or the judiciary have
               declared to be the public policy or unless they clearly tend to the
               injury of the public in some way.


       Gabrill Cabinet Co., Inc. v. Sullivan, 919 N.E.2d 1162, 1168 (Ind. Ct. App. 2010)

       (quoting Raymundo v. Hammond Clinic Ass’n, 449 N.E.2d 276, 279 (Ind. 1983)).

       This court has repeatedly upheld nursing facilities’ predispute arbitration

       agreements as not unconscionable or fraudulently induced. See Maynard, 56

       N.E.3d at 1237, 1239-40 (noting Indiana’s “strong public policy favoring

       enforcement of arbitration agreements”); Sherls, 14 N.E.3d at 75 (holding

       arbitration clause in nursing home facility’s admission agreement was not an

       unconscionable adhesion contract); Sanford, 813 N.E.2d at 417-18 (same). See

       also Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530 (2012) (holding a state




       denied. Moreover, Indiana Appellate Rule 34(F), cited by CSL, is only applicable to appellate motions
       practice. Therefore, we do not consider the affidavit contained in CSL’s appendix.

       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020                            Page 20 of 27
       law categorically prohibiting predispute arbitration agreements regarding

       personal injury claims against nursing homes was preempted by the FAA, 9

       U.S.C. § 2, which allows such agreements). Thus, in Indiana, predispute

       arbitration agreements in nursing home facility contracts are not, per se, against

       public policy. We see no reason why that case law does not apply equally to

       assisted living facility contracts.


[27]   The cases from other states that Amicus cites did not declare nursing home

       arbitration agreements unconscionable as a matter of public policy but found

       the particular arbitration agreements at issue in those cases unconscionable

       based on facts distinguishable from those at issue in this case. In Rankin v.

       Brinton Woods of Frankford, LLC, unlike here, the arbitration provision was

       simply two numbered paragraphs within the contract as a whole, in the same

       format as every other provision, and lacking “any apparent emphasis by either

       bolded, underlined, or italicized language.” 241 Md. App. 604, 624, 211 A.3d

       645, 657 (2019). In Lopez v. Bartlett Care Ctr., LLC, the arbitration provision was

       unenforceable in part because it lacked mutuality in that it required residents to

       arbitrate claims but allowed the facility to pursue claims in court. 39 Cal. App.

       5th 311, 321-22, 251 Cal. Rptr. 3d 813, 822 (2019). In Romano ex rel. Romano v.

       Manor Care, Inc., the arbitration provision was unconscionable in part because it

       deprived the resident of important statutory remedies the state legislature

       deemed important to reduce elder abuse in nursing homes. 861 So.2d 59, 62-63

       (Fla. Dist. Ct. App. 2003).




       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020       Page 21 of 27
[28]   Amicus also directs our attention to a federal Centers for Medicare and

       Medicaid Services (“CMS”) regulation that prohibits long-term care facilities

       such as nursing homes from requiring that a resident sign a binding arbitration

       agreement as a condition of admission to the facility. 42 C.F.R. § 483.70(n).

       Amicus also points to policy statements of the American Bar Association

       (“ABA”),10 the National Association of Social Workers (“NASW”),11 and the

       American Association of Retired Persons (“AARP”) 12 which oppose

       mandatory, binding, predispute arbitration agreements between residents and

       long-term care facilities. However, both the federal regulation and the policy

       statements all relate solely and explicitly to long-term care facilities, and CSL

       did not contract with Resident for placement in such a facility. Moreover, none

       of those authorities are binding upon us in this case, whereas relevant Indiana

       caselaw clearly allows for otherwise valid predispute binding arbitration

       agreements in the nursing home setting. Maynard, 56 N.E.3d 1232; Sherls, 14

       N.E.3d 67; Sanford, 813 N.E.2d 411.




       10
          https://www.americanbar.org/content/dam/aba/directories/policy/2009_my_111b.authcheckdam.pdf
       [https://perma.cc/3AZX-TMBF].
       11
          https://www.socialworkers.org/LinkClick.aspx?fileticket=rVC5l9q6hSA%3D&portalid=0
       [https://perma.cc/2TKF-4SVY].
       12
          https://www.aarp.org/content/dam/aarp/politics/advocacy/2017/08/comments-cms-ltc-facility-
       arbitration-proposed-rule-final-august-2017-aarp.pdf [https://perma.cc/STG4-T7B6].

       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020                     Page 22 of 27
[29]   The arbitration agreement is valid, enforceable, and applicable to Guardian’s

       breach of contract and negligence claims against CSL, Spectrum, and/or

       Sullivan.13 The trial court did not err in compelling arbitration of those claims.


             Applicability of Arbitration Agreement to Certiphi
[30]   Certiphi filed its own motion to compel arbitration of Guardian’s claims against

       it, even though Certiphi is not a signatory to either the Residency Agreement or

       the Arbitration Agreement. As a general rule, only parties to a contract or

       those in privity with the parties have rights under the contract. E.g., M Jewell,

       LLC v. Bainbridge, 113 N.E.3d 685, 689 (Ind. Ct. App. 2018). However, “a non-

       signatory to an agreement may bind a signatory to an arbitration clause” under

       certain circumstances,14 including under a theory of equitable estoppel. German

       Am. Fin. Advisors & Tr. Co. v. Reed, 969 N.E.2d 621, 627 (Ind. Ct. App. 2012).

       In Reed, this Court adopted the reasoning of MS Dealer Serv. Corp. v. Franklin,

       which stated:


               [E]quitable estoppel allows a nonsignatory to compel arbitration
               in two different circumstances. First, equitable estoppel applies
               when the signatory to a written agreement containing an
               arbitration clause must rely on the terms of the written agreement
               in asserting its claims against the nonsignatory. When each of a
               signatory’s claims against a nonsignatory makes reference to or
               presumes the existence of the written agreement, the signatory’s



       13
          Guardian does not challenge application of the arbitration agreement to Spectrum or Sullivan separately
       from her claim that the arbitration agreement is not valid as to CSL.
       14
         One such circumstance is where the nonsignatory is a third-party beneficiary of the contact. Id. However,
       Certiphi makes no such claim and the trial court did not base its decision on such a theory.

       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020                             Page 23 of 27
               claims arise out of and relate directly to the written agreement,
               and arbitration is appropriate. Second, application of equitable
               estoppel is warranted when the signatory to the contract
               containing an arbitration clause raises allegations of substantially
               interdependent and concerted misconduct by both the
               nonsignatory and one or more of the signatories to the contract.
               Otherwise the arbitration proceedings between the two
               signatories would be rendered meaningless and the federal policy
               in favor of arbitration effectively thwarted.


       177 F.3d 942, 947 (11th Cir. 1999) (citations omitted); Reed, 969 N.E.2d at 627.

       See also Williams v. Orentlicher, 939 N.E.2d 663, 670 (Ind. Ct. App. 2011) (noting

       “when the nonsignatory concedes arbitrability on a contract issue, [federal]

       courts have routinely held the signatory to be bound by its arbitration clause”),

       trans. dismissed; cf. Daimler Chrysler Corp., v. Franklin, 814 N.E.2d 281, 285-86

       (Ind. Ct. App. 2004) (holding, where no equitable estoppel claim was raised, that

       nonsignatory could not bind signatory to arbitration agreement when there was

       no showing nonsignatory was in privity with a signatory or was a third-party

       beneficiary of the agreement). The trial court held that the claims against

       Certiphi must be arbitrated based on the holding in Reed.


[31]   It is clear that at least the second equitable estoppel circumstance is present in

       this case.15 That is, Guardian’s Count II negligence claims against all of the

       defendants are interdependent and raise allegations of concerted misconduct by




       15
          We do not address Certiphi’s contention and the trial court’s holding that the first equitable estoppel
       circumstance is present here, as we find arbitration binding under the second equitable estoppel circumstance
       identified in Reed.

       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020                              Page 24 of 27
       all of the defendants. Guardian alleges that CSL/Spectrum and Certiphi

       negligently failed to conduct an appropriate criminal background check on

       CSL’s employee, Sullivan.16 Those claims will require the presentation of the

       same evidence; i.e., evidence that (1) CSL/Spectrum hired Certiphi to do the

       background check of Sullivan; (2) Certiphi failed to properly do that

       background check; and (3) the failure to do a proper background check resulted

       in CSL’s employee, Sullivan, harming Resident. In other words, Guardian

       cannot prove CSL/Spectrum was negligent in doing a background check of

       Sullivan unless it proves Certiphi did not do an appropriate background check

       of Sullivan, as CSL/Spectrum had requested. See Reed, 969 N.E.2d at 627

       (holding Reed was required to arbitrate claims against a nonsignatory where

       those claims stemmed from conduct of the employee of the signatory and the

       contractual relationship between the signatories to the contract).


[32]   Furthermore, we note that we have held signatories to be bound to their broad-

       reaching agreements to arbitrate when there is no contract language

       contradicting that agreement. See Dulworth v. Bermudez, 97 N.E.3d 272, 281

       (Ind. Ct. App. 2018) (release from liability was applicable to nonsignatory

       where the unambiguous, broad language of the release clearly applied to “all




       16
          Guardian contends in her briefs that her negligence claims against CSL/Spectrum are not dependent upon
       a showing that Certiphi negligently failed to do a proper background check on CLS’s employee. However,
       that is simply not true. The second count of Guardian’s complaint alleges no basis for CSL/Spectrum’s
       negligence other than the failure to do a proper background check of Sullivan. And if Certiphi was not
       negligent in failing to uncover Sullivan’s criminal background, then CSL/Spectrum was not negligent as to
       the background check either because they hired Certiphi to do it.

       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020                          Page 25 of 27
       other persons” and contained no contradictory terms); Medical Realty Assoc.,

       LLC v. D.A. Dodd, Inc., 928 N.E.2d 871, 875 (Ind. Ct. App. 2010) (signatory

       defendant was permitted to require signatory plaintiff to arbitrate claim against

       nonsignatory where arbitration provision used “broad sweeping phrases such as

       ‘any claims’ and ‘all claims’” and did not specifically exclude the claim against

       the nonsignatory). Here, the arbitration agreement contains broad, sweeping

       language under which “any and all claims involving … any of the Resident’s

       stays at [CSL] … shall be submitted to and resolved by binding arbitration[,] …

       [including] claims against [CSL’s] employees, agents, officers, directors, any

       parent, subsidiary or affiliate of [CSL].” App. Vol. II at 63. And there is no

       language in the agreement contradicting the broad agreement to arbitrate “all

       claims.” See Dulworth, 97 N.E.3d at 281 (“Language which releases ‘all

       persons’ does just that and is clear as long as no other terms are contradictory.”)

       (quoting Dobson v. Citizen Gas & Coke Util., 634 N.E.2d 1343, 1345 (Ind. Ct.

       App. 1994)).


[33]   The trial court did not err when it required Guardian to arbitrate her claims

       against Certiphi.17




       17
          Because we hold that equitable estoppel principles require arbitration of Guardian’s claims against
       Certiphi, we do not address Certiphi’s contention that it is entitled to arbitration because Guardian brought
       an “agency theory” of liability against it.

       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020                               Page 26 of 27
                                                Conclusion
[34]   It is clear from the plain language of the Arbitration Agreement that it applies

       to Guardian’s claims against CSL (and, since not challenged by Guardian,

       Spectrum and Sullivan), and there is no evidence establishing that the

       Arbitration Agreement is invalid as unconscionable and against public policy.

       In addition, because Count II of Guardian’s complaint raises allegations of

       substantially interdependent and concerted misconduct by both Certiphi (a

       nonsignatory) and CSL (a signatory), Guardian is equitably estopped from

       asserting that her claims against Certiphi are not subject to the broad language

       of her agreement to arbitrate “all claims.”


[35]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-2191 | March 17, 2020       Page 27 of 27
