                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3640-18T3

ESTATE OF MAUREEN BRIGHT,
through CHARMAINE BRIGHT,
Administrator,

          Plaintiff-Respondent,

v.

ARISTACARE AT CHERRY HILL,
LLC, d/b/a ARISTACARE AT
CHERRY HILL,

     Defendant-Appellant.
_______________________________

                    Argued February 5, 2020 – Decided February 26, 2020

                    Before Judges Fuentes, Haas and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Docket No. L-1607-18.

                    Jessica L. Smith (Mauro Lilling Naparty, LLP) of the
                    New York bar, admitted pro hac vice, argued the cause
                    for appellant (Marks, O'Neill, O'Brien, Doherty &
                    Kelly, PC, and Mauro Lilling Naparty, LLP, attorneys;
                    Caryn L. Lilling, on the briefs).
            Jonathan Lauri argued the cause for respondent (Stark
            & Stark, PC, attorneys; Denise M. Mariani and
            Jonathan Lauri, on the brief).

PER CURIAM

      Defendant Aristacare at Cherry Hill, LLC, d/b/a Aristacare at Cherry Hill

(Aristacare) appeals from the February 1, 2019 order denying its motion to

dismiss plaintiff Estate of Maureen Bright's (the estate's) complaint and compel

arbitration. We affirm.

      The facts of this matter are not in dispute. On April 21, 2016, Maureen

Bright was discharged from the hospital to Aristacare after undergoing a second

leg amputation.      Maureen arrived at Aristacare in the early afternoon

accompanied by her daughter, Charmaine Bright.1           Charmaine was not

Maureen's guardian and did not hold any power of attorney concerning

Maureen's affairs.

      Charmaine certified that upon admission, Maureen "was on several

medications to treat pain, depression, anxiety, and other medical conditions."

During the admission process, Charmaine and Maureen were both "emotionally

upset." An Aristacare nurse told Charmaine that Maureen "was not aware of



1
  Because Maureen and Charmaine share the same surname, we refer to them
by their first names to avoid confusion. We intend no disrespect by doing so.
                                                                        A-3640-18T3
                                       2
where she was; and that [her] mother was not aware of time." The nurse also

stated that Maureen "was confused" and "was having hallucinations."

      The next day, Charmaine went to visit her mother and, upon arriving at

the facility, a receptionist told her that an Aristacare social worker had "left

paperwork for [her] to sign so that [Maureen] could be admitted into" the

facility. Shortly thereafter, the receptionist handed Charmaine a "stack" of

documents and told Charmaine to sign and return them. A letter on the top of

the pile of papers advised Charmaine to "take a few minutes to review and sign

where the tabs are and return to the receptionist."

      The admission documents consisted of at least two dozen pages, with a

section labeled "Arbitration" appearing on page ten of one of the documents.

This provision stated:

            EXCEPT FOR ANY CLAIM OR DISPUTE ARISING
            IN CONNECTION WITH FACILITY'S EFFORTS TO
            COLLECT MONIES DUE FROM RESIDENT AS A
            RESULT    OF    RESIDENT'S NON-PAYMENT
            AND/OR RESIDENT'S (OR ANY RESPONSIBLE
            PATY'S [SIC]) FAILURE TO COOPERATE WITH
            FACILITY IN SECURING PAYMENT FROM A
            THIRD PARTY PAYOR SOURCE, WHICH THE
            PARTIES AGREE MAY BE HEARD BY A COURT
            OF COMPETENT JURISDICTION IN THE CITY OR
            COUNTY WHERE THE FACILITY IS LOCATED,
            ANY CLAIM OR DISPUTE BETWEEN THE
            PARTIES, WHETHER IN CONTRACT, TORT,
            STATUTE OR OTHERWISE (INCLUDING THE

                                                                        A-3640-18T3
                                        3
SCOPE AND INTERPRETATION OF THIS
CLAUSE, AND THE ARBITRABILITY OF THE
CLAIM       OR      DISPUTE),       BETWEEN         THE
RESIDENT/RESPONSIBLE PARTY AND THE
FACILITY OR ITS EMPLOYEES, AGENTS,
SUCCESSORS OR ASSIGNS, AND RELATED OR
AFFILIATED PARTIES, IF ANY, WHICH ARISE
OUT OF OR RELATE TO THIS AGREEMENT FOR
RESIDENT'S CARE AT THE FACILITY OR ANY
RELATED        OR      RESULTING         AGREEMENT,
TRANSACTION OR RELATIONSHIP (INCLUDING
ANY         SUCH         RELATIONSHIP             WITH
"RESPONSIBLE PARTIES" OR ANY OTHER
PARTY WHO IS NOT A SIGNATORY TO THIS
AGREEMENT)             SHALL         BE       DECIDED
EXCLUSIVELY BY MANDATORY, FINAL,
BINDING ARBITRATION AND NOT IN COURT OR
BY       JURY      TRIAL,       PROVIDED         THAT,
RESIDENT/RESPONSIBLE PARTY SHALL NOT BE
ENTITLED TO AN AWARD OF EXEMPLARY OR
PUNITIVE DAMAGES.                RESIDENT AND/OR
RESPONSIBLE PARTY UNDERSTANDS THAT
DISCOVERY AND RIGHTS TO APPEAL IN
ARBITRATION          ARE       GENERALLY         MORE
LIMITED THAN IN A LAWSUIT AND OTHER
RIGHTS THAT A PARTY WOULD HAVE IN
COURT MAY NOT BE AVAILABLE IN
ARBITRATION. Any claim or dispute is to be
arbitrated by a single arbitrator on an individual basis,
and not as a class action, and according to the rules of
the American Arbitration Association. Any such
arbitration must be requested in writing within one (1)
year from the date the party initiating the arbitration
knew or should have known about the claim or dispute,
and all claims arising from any dispute for which a
timely request for arbitration has not been made are
forever waived. If a court of competent jurisdiction
determines that any clause or provision of this section

                                                            A-3640-18T3
                           4
            is invalid or unenforceable, then the invalidity or
            unenforceability of that clause or provision of this
            section shall not affect the validity or enforceability of
            any other clause or provision of this section which shall
            remain in full force and effect. The various covenants
            and provisions of this section in particular and this
            Agreement as a whole are intended to be severable and
            to constitute independent and distinct binding
            obligations.

      To put it bluntly, this arbitration provision posed a number of problems.

Among other things, the first sentence is over two hundred words in length,

making it difficult, if not impossible to follow. While the provision purports to

bar the patient from seeking redress in court, the same prohibition does not apply

to Aristacare, which remains free to bring collection actions outside the auspices

of an arbitration process. The provision also improperly bars the patient from

seeking punitive damages, which renders that portion of it unconscionable.

Estate of Anna Ruszala ex. re. Mizerak v. Brookdale Living Cmtys., Inc., 415

N.J. Super. 272, 299 (App. Div. 2010).

      Perhaps most egregiously, the provision states that arbitration will be

conducted "according to the rules of the American Arbitration Association"

(AAA). In 2003, however, the AAA stopped conducting arbitrations in nursing

home cases involving disputes "between individual patients and healthcare

service providers that relate to medical services, such as negligence . . . unless


                                                                          A-3640-18T3
                                         5
all parties agreed to submit the matter to arbitration after the dispute arose."

Therefore, the AAA has no rules governing arbitrations involving nursing home

patients. Aristacare did not specify what alternative rules might be applied and

did not attach a copy of the rules to the admission document.

       As noted above, Charmaine did not have a power of attorney for Maureen.

Nevertheless, the receptionist instructed her to sign the forms.      Charmaine

signed the documents where the tabs indicated a signature was needed, including

the page where the arbitration provision appeared. 2 No one from Aristacare

reviewed the documents with Charmaine, or told her she could have an attorney

examine the package of papers before she signed them. Maureen did not sign

any of the documents in Charmaine's presence.

       After signing the papers, Charmaine looked for the receptionist, but she

was not there. Therefore, Charmaine returned the forms the next day when she

visited her mother.

       Maureen died in August 2016 while still residing at Aristacare.        On

October 26, 2016, her estate's attorney sent three letters to Aristacare advising

that the estate had retained counsel "for injuries arising out of a nursing home

negligence matter."     The letters asked Aristacare to provide its insurance


2
    Charmaine did not date that page.
                                                                         A-3640-18T3
                                        6
information and to preserve evidence related to the claim. Aristacare did not

respond to this correspondence.

      On April 30, 2018, the estate filed its complaint in the Law Division

against Aristacare, asserting that the facility was negligent and provided

inadequate care to Maureen. Aristacare filed its answer on August 2, 2018.

      In September 2018, Aristacare gave the estate a copy of the admission

documents, including the arbitration provision described above. For the first

time, Charmaine saw her mother's signature on the form, above where she had

signed it. The document does not set forth the date on which Maureen signed

the form, and Aristacare has never provided any information describing how

Maureen's signature came to be placed on the document.

      Aristacare thereafter filed a motion to compel arbitration. 3 After oral

argument, the trial judge determined that the arbitration agreement could not be

enforced because Aristacare had not carried its burden of showing there was a



3
   The estate did not file a timely response to this motion and, as a result, the
trial court granted it as unopposed. The estate promptly filed a motion to reopen
the matter, asserting that its attorney's office had made an error in calendaring
the motion and, as a result, failed to file its answering papers. The court granted
this motion, and permitted the estate to submit a response. Aristacare challenges
the court's decision on appeal. Having considered Aristacare's arguments, we
conclude that its contention on this point lacks sufficient merit to warrant further
discussion in this opinion. R. 2:11-3(e)(1)(E).
                                                                            A-3640-18T3
                                         7
meeting of the minds between the parties to the arbitration provision. In his oral

decision, the judge found that Charmaine and her mother were both emotionally

upset when Charmaine was presented with the agreement. The judge noted that

the arbitration clause was vague and referred to AAA rules which were no longer

in effect.    The judge also found that the arbitration clause provided that

"arbitration must be requested in writing within one (1) year from the date the

party initiating the arbitration knew or should have known about the claim or

dispute[.]" Here, the estate sent three letters to Aristacare advising it of a

potential claim in October 2016, but Aristacare did not seek to move the matter

to arbitration until October 2018. Thus, the judge concluded that Aristacare's

request for arbitration was untimely. This appeal followed.

      On appeal, Aristacare contends that the judge erred by declining to enforce

the arbitration provision contained in the admission documents presented to

Charmaine. We disagree.

      We exercise de novo review of a trial court's decision on the enforceability

of an arbitration clause. Krenahan v. Home Warranty Adm'r of Florida, Inc.,

236 N.J. 301, 316 (2019).      "Whether a contractual arbitration provision is

enforceable is a question of law, and we need not defer to the interpretative




                                                                          A-3640-18T3
                                        8
analysis of the trial . . . court[] unless we find it persuasive." Ibid. (citing

Morgan v. Sanford Brown Inst., 225 N.J. 289, 302-03 (2016)).

      "The Federal Arbitration Act (FAA), 9 U.S.C.A. §§ 1-16, which the

Supreme Court of the United States broadly construes in favor of arbitration,

overrides all state policies and concerns, including the Nursing Home Act's

express prohibition against the enforcement of such agreements, N.J.S.A. 30:13-

8.1." Kleine v. Emeritus at Emerson, 445 N.J. Super. 545, 547 (App. Div. 2016)

(footnotes omitted). However, because arbitration is a matter of contract, state

contract law applies "to ascertain whether the parties had a meeting of the minds

when contracting, and whether a party, who has ostensibly agreed to waive the

right to trial by jury, has clearly and unambiguously consented to arbitration."

Id. at 548 (citing Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 442

(2014)).

      "New Jersey law governing the enforceability of arbitration is well settled.

Like any contract, the parties must reach such an agreement by mutual assent."

Flanzman v. Jenny Craig, Inc., 456 N.J. Super. 613, 621 (App. Div. 2018)

(citing Atalese, 219 N.J. at 442). Thus, for an agreement to be enforceable there

must be a "meeting of the minds." Ibid. (citing Atalese, 219 N.J. at 442). "The

party from whom an arbitration clause has been extracted, must 'clearly and


                                                                          A-3640-18T3
                                        9
unambiguously' agree to waive his or her statutory rights." Ibid. (citing Atalese,

219 N.J. at 443). "[C]ontractual language alleged to constitute a waiver [of

statutory rights] will not be read expansively." Ibid. (alterations in original)

(quoting Garfinkel v. Morristown Obstetrics & Gynecology Assocs., 168 N.J.

124, 132 (2001)). "[B]ecause arbitration involves a waiver of the right to pursue

a case in a judicial forum, 'courts take particular care in assuring the knowin g

assent of both parties to arbitrate, and a clear and mutual understanding of the

ramifications of that assent.'" Ibid. (alteration in original) (quoting Atalese, 219

N.J. at 442-43 (quoting NAACP of Camden Cty. E. v. Foulke Mgmt., 421 N.J.

Super. 404, 425 (2011))).

      Here, the idiosyncratic facts of this case overwhelmingly support the

judge's conclusion that there was no meeting of the minds between Charmaine

and Maureen on the one side, and Aristacare on the other. As noted above,

Charmaine had no legal authority to bind Maureen to anything set forth in the

agreement because she did not hold Maureen's power of attorney.              While

Maureen's signature was later added to the form on an unspecified date,

Aristacare provided no details concerning how that was accomplished.

Aristacare did not give a copy of the agreement to Charmaine or her mother, and

does not assert that it explained the forms to either of them. Aristacare also did


                                                                            A-3640-18T3
                                        10
not advise Charmaine that she could consult with an attorney before signing the

documents.

      Contrary to the requirements of Atalese, the arbitration provision is

written in a way that would not lead to a nursing home patient obtaining a "clear

and mutual understanding of the ramifications of" agreeing to it. Atalese, 219

N.J. at 442-43. The dense and meandering first sentence is simply too lengthy

to ensure comprehension, especially in the absence of any assistance from the

facility. Aristacare directed Charmaine to sign the forms where indicated even

though she was emotionally distraught by her mother's condition. Although we

do not know when Aristacare obtained Maureen's signature, the record indicates

that at the time of her admission, the facility's nursing staff was aware that

Maureen was heavily medicated, suffering hallucinations, and unaware she was

in a nursing home.

      It is also well established that when the arbitration forum the parties select

in the arbitration agreement is not available at the time the contract is formed,

there is no meeting of the minds. Kleine, 445 N.J. Super. at 552-53; see also

Flanzman, 456 N.J. Super. at 617 (holding there was no meeting of the minds

because a forum was not included in the arbitration agreement, thus arbitration

could not be compelled). Aristacare's arbitration provision stated that any


                                                                            A-3640-18T3
                                       11
arbitration would be conducted according to the rules of the AAA. However,

that was not possible because the AAA ceased conducting nursing home

arbitrations in 2003 and has no rules governing these matters. Thus, Charmaine

and her mother would not have been able to ascertain what rules might apply

even if they had been able to understand they were giving up their right to pursue

any future claims in court.

      Under these circumstances, we conclude there was never a meeting of the

minds between the parties and, therefore, the judge properly denied Aristacare's

motion to dismiss the estate's complaint.4

      Affirmed.




4
   As a result of our determination, we need not reach the estate's contention that
the judge properly found that by waiting two years after receiving notice of the
estate's potential claims to invoke the arbitration provision, Aristacare waived
its right to seek dismissal of the estate's complaint. However, we note that the
parties' sharply conflicting interpretations of the one-year limitations period set
forth in the provision supports our conclusion that there was no meeting of the
minds between the parties as to this, or any other, provision of the agreement.
                                                                           A-3640-18T3
                                       12
