OPINION FILED: March 27, 2018 Motion for Rehearing and/or Transfer to
Supreme Court Denied May 1, 2018 Application for Transfer to Supreme Court Denied
August 21, 2018, Duane M. Dreesen II, Chesterfield, MO, Bradford Kendall, Kansas
City, MO and Ron S. Ribaudo, Ballwin, MO, for respondent., Stephen M. Strum and
Timothy C. Sansone, St. Louis, MO, for appellants., In October 2015, Ramirez-Leon
decided to move Bratton to Golden Living Center ("GLC") in Independence, Missouri.
During the admission process, Ramirez-Leon was provided with admission forms by
Carla Hopper ("Hopper"), the Director of Admission at GLC. Ramirez-Leon was instructed
to sign the forms in order for Bratton to be admitted. Among the forms presented
to her was a separate document containing the Arbitration Agreement., Appellants
raise two points on appeal, which we address in reverse order for ease of analysis.
In Appellants' second point on appeal, they argue that the trial court erred in
denying their motion to enforce the Arbitration Agreement because the Arbitration
Agreement is valid and enforceable under the Federal Arbitration Act ("FAA"). In
Appellants' first point on appeal, they argue that the trial court erred in denying
their motion to enforce the Arbitration Agreement because the Arbitration Agreement
is valid and enforceable under the Missouri Uniform Arbitration Act., "The Supreme
Court stated in Concepcion that the FAA reflects a 'liberal policy favoring arbitration
and the fundamental principle that arbitration is a matter of contract.... [C]ourts
must place arbitration agreements on an equal footing with other contracts and enforce
them according to their terms." Id. (quoting AT & T Mobility LLC v. Concepcion ,
563 U.S. 333, 131 S.Ct. 1740, 1745, 179 L.Ed.2d 742 (2011) ). Written agreements
to arbitrate are "valid, irrevocable, and enforceable, save upon such grounds as
exist at law or in equity for the revocation of any contract." 9 U.S.C. section
2. "The FAA expresses the United States Congress's policy favoring resolution of
disputes by enforcement of arbitration agreements, instead of resorting to the judicial
system." Kan. City Urology, P.A. v. United Healthcare Servs. , 261 S.W.3d 7, 11
(Mo. App. W.D. 2008) (citation omitted)., But "[t]his policy is not enough, standing
alone, to extend an arbitration agreement beyond its intended scope because arbitration
is a matter of contract." Id. Further, "[a] party cannot be compelled to arbitration
unless the party has agreed to do so." Id. "As such, enforceability under the FAA
never comes into play if a contract itself was never formed." Bellemere v. Cable-Dahmer
Chevrolet, Inc. , 423 S.W.3d 267, 273 (Mo. App. W.D. 2013). "[T]he essential elements
of a contract are: '(1) competency of the parties to contract; (2) subject matter;
(3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation.'
" Id. (quoting *324Bldg. Erection Servs. Co. v. Plastic Sales & Mfg. Co., Inc. ,
163 S.W.3d 472, 477 (Mo. App. W.D. 2005) ). See also Johnson v. Vatterott Educ.
Ctrs., Inc. , 410 S.W.3d 735, 738 (Mo. App. W.D. 2013) ("Under ... the Federal Arbitration
Act, ... whether the parties entered into an enforceable arbitration agreement is
a preliminary issue for the court to decide, applying Missouri law.")., Ramirez-Leon
argued in her Suggestions in Opposition to Appellants' motion and her response
to this Court that the Arbitration Agreement was unconscionable and against public
policy. Ramirez-Leon claims that she was told by Hopper that she was required to
sign all documents in order for Bratton to be admitted, and at no time was the Arbitration
Agreement explained or was she given an opportunity to ask questions. Due to this
lack of information, Ramirez-Leon argues, the Arbitration Agreement is unconscionable.
Further, Ramirez-Leon argues that arbitration agreements involving nursing homes
often involve no meaningful choice, and therefore are against public policy., Ramirez-Leon's
only claim of procedural unconscionability is that she was told she was required
to sign the documents provided for Bratton's admission to GLC and that she was
not given an opportunity to ask questions. However, right below the heading, in
capital letters, the Arbitration Agreement states that it is not a condition of
admission to GLC. The Arbitration Agreement form specifically provided a separate
place for her to sign if she desired to decline the Arbitration Agreement. It also
states further down in the Arbitration Agreement, in bold typeface and capital letters
that by entering into the Arbitration Agreement the resident is giving up their
legal right to a trial and all claims will be handled through arbitration. While
this Court acknowledges that admitting a loved one into a nursing home is a difficult
and stressful time, and one may be distracted by the gravity of the situation, this
does not absolve the individual from reading the contract presented to them. "The
law is clear that a signer's failure to read or understand a contract is not, standing
alone, a defense to the contract." Robinson v. Title Lenders, Inc. , 364 S.W.3d
505, 509 n.4 (Mo. banc 2012). See *325Sanger v. Yellow Cab Co., Inc. , 486 S.W.2d
477, 481 (Mo. banc 1972) ("The rule is that the one who signs a paper, without reading
it, if he is able to read and understand, is guilty of such negligence in failing
to inform himself of its nature that he cannot be relieved from the obligation contained
in the paper thus signed, unless there was something more than mere reliance upon
the statements of another as to its contents[.]"); Repair Masters Constr., Inc.
v. Gary , 277 S.W.3d 854, 858 (Mo. App. E.D. 2009) ("The failure to read a document
prior to signing it is not a defense, and does not make a contract voidable, absent
fraud."); Cowbell, LLC v. BORC Bldg. & Leasing Corp. , 328 S.W.3d 399, 407 (Mo.
App. W.D. 2010) ("The signatories' alleged failure to read the contracts is not
a defense."). Regardless of what Hopper may have said to Ramirez-Leon prior to signing,
the Arbitration Agreement stated that it was not a condition of Bratton's admission
and that by signing the document she was restricting Bratton's right to bring an
action in court. The fact that she did not read the document to see that it was
not a condition of Bratton's admission does not, in and of itself, make the Arbitration
Agreement unconscionable., Further, Ramirez-Leon argues that the Arbitration Agreement
was substantively unconscionable due to the lack of real choice in an arbitration
agreement involving nursing home residents. Ramirez-Leon cites to Judge Norton's
concurring opinion in Lawrence v. Beverly Manor , 273 S.W.3d 525, 533 (Mo. banc
2009), which states that "the provisions of the arbitration agreement that require
the Nursing Home and Resident to arbitrate any personal injury claims, and require
the parties to waive their right to have any such claims decided in a court of law,
are both procedurally and substantively unconscionable." However, the majority opinion
of the Supreme Court is what binds this court. Concurring opinions are merely persuasive
and we are unpersuaded because the issue in Lawrence was whether an arbitration
agreement signed upon admission to a nursing home could bind the parties from a
future wrongful death action. Id. Further, in Lawrence the arbitration agreement
was arguably a contract of adhesion where the Arbitration Agreement herein was not
a condition required for Bratton's admission to the facility. Ramirez-Leon was
made aware that the Arbitration Agreement was not required by its very terms, therefore
she was provided with the meaningful choice of declining the Arbitration Agreement
by signing on the prescribed line which specifically provided her that option. The
arguments raised in the concurring opinion in Lawrence are not binding on this court
and are inapplicable to this matter., Ramirez-Leon further argues that the Arbitration
Agreement is unenforceable because she signed on the resident line instead of the
legal guardian line. In support of this argument, Ramirez-Leon cites to the Baier
v. Darden Rests. , relying on the court's statement that it was "hard pressed to
discern any purpose for placing a signature line for Darden on the First Acknowledgement
unless it was to require an authorized signature as a condition of mutual assent."
420 S.W.3d 733, 739 (Mo. App. W.D. 2014). However, in Baier , instead of simply
signing on the wrong line, one of the parties did not sign the agreement at all
in spite of a signature line being provided for that purpose. Id. at 735. Ramirez-Leon
cites to no other case to support her proposition that signing on the wrong line
does not create a valid contract. Further, as Bratton's court appointed legal guardian
she had authority to enter into contracts on Bratton's behalf. See Section *326475.120.3(4)3
("The general powers and duties of a guardian of an incapacitated person shall be
to take charge of the person of the ward and to provide for the ward's care, treatment,
habilitation, education, support and maintenance; and the powers and duties shall
include, but not be limited to, the following: ... Provide required consents on
behalf of the ward."). Since she was entering into the Arbitration Agreement on
behalf of Bratton as his legal guardian, there was no issue in her signing on the
resident line., Ramirez-Leon further cites to the majority in Lawrence v. Beverly
Manor , 273 S.W.3d 525 (Mo. banc 2009) and Ward v. Nat'l Healthcare Corp. , 275
S.W.3d 236 (Mo. banc 2009) to support her argument. Both Lawrence and Ward involve
wrongful death actions brought by the decedents' children. 273 S.W.3d at 526-27
; 275 S.W.3d at 236-37. However, wrongful death actions are "distinct from any underlying
tort claim" and "[do] not belong to the deceased [resident]." 273 S.W.3d at 528.
As Ramirez-Leon points out, this lawsuit is a negligence claim brought by Bratton,
alleging negligent acts that resulted in harm to Bratton, and Ramirez-Leon signed
the Arbitration Agreement on behalf of Bratton. There is no reason Ramirez-Leon
signing on Bratton's behalf would not make Bratton bound to the terms of the Arbitration
Agreement for the claims in this action. If we were to accept Ramirez-Leon's circular
argument Bratton could never enter into an arbitration agreement because he is unable
to consent to a contract due to his lack of capacity but if his legal guardian were
to sign on his behalf it would be unenforceable in a negligence claim involving
Bratton because he did not personally sign the agreement., Lastly, Ramirez-Leon
argues that GGNSC Equity Holdings, LLC and Golden Gate National Senior Care, LLC
are not parties to the arbitration agreement because they did not prove that they
are affiliated with GLC under the terms of the Arbitration Agreement. However, Ramirez-Leon
is the one who filed suit against GGNSC Equity Holdings, LLC and Golden Gate National
Senior Care, LLC d/b/a GLC. She named all of the Appellants in the petition and
she alleges that they are affiliated with GLC when the care for her son was provided.
The language in the Arbitration Agreement states that the facility includes affiliates
and parent companies. Further, "the plaintiff [can]not avoid enforcement [of an
arbitration agreement] when the plaintiff treated signatory and non-signatory defendants
as a 'single unit.' " State ex rel. Hewitt , 461 S.W.3d at 814. Ramirez-Leon cannot
treat all Appellants as a single unit in her petition and then insist that they
bear the burden of establishing that they are affiliated.