SSC Montgomery Cedar Crest Operating Company, LLC (“SSC Montgomery”),
I.
On January 8, 2012, Means was hospitalized after experiencing stroke and/or heart-attack symptoms. On approximately January 25, 2012, he was admitted to Cedar Crest, a nursing-home facility operated by SSC Montgomery, to receive rehabilitation and nursing services while he recovered. At the time Means was admitted to Cedar Crest, he was accompanied by his daughter, Michelle Pleasant, who completed the necessary paperwork on his behalf. Among the paperwork completed and signed by Pleasant was a dispute-resolution agreement (“the DRA”) providing that the “parties” waived their right to a judge or jury trial in the event a dispute arose between them and instead agreed to resolve any such dispute by way of a dispute-resolution program consisting of mediation and binding arbitration. The DRA further defined the term “parties” as including:
“(a) [T]he resident, any and all family members who would have the right to bring a claim in state court on behalf of the resident or the resident’s estate, a legal representative, including a power of attorney for healthcare and/or financial matters or a court appointed guardian, or any other person whose claim is derived through or on behalf of the resident, including, in addition to those already listed in this definition, any parent, spouse, child, executor, administrator, heir or survivor entitled to bring a wrongful death claim, and (b) the facility, [related corporate entities, and any of their employees or agents].”
Pleasant signed her name on the final page of the DRA on a line indicated for the “Signature of Legal Representative or Family Member” and under the following paragraph:
“If resident is adjudged incompetent, complete this section:
“I am the spouse, responsible party, legal guardian or power of attorney of the resident and have the authority to sign the agreement on his/her behalf. In signing this Agreement, the Legal Representative or Family Member binds both the Resident and themselves individually.”
On' March 2, 2012, Means was hospitalized again. On March 6, 2012, another of his daughters, Linda Bolding, whom Means had previously granted a durable power of attorney, sued SSC Montgomery, alleging that Cedar Crest staff had negligently cared for Means, causing him to suffer dehydration, malnourishment, and an untreated infection that combined to result in his hospitalization on March 2.
II.
Our standard of review of a ruling denying a motion to compel arbitration is well settled:
“ ‘This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough,779 So.2d 1205 (Ala.2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell,739 So.2d 1110 , 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id. “[Ajfter 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.” Jim Burke Automotive, Inc. v. Beavers,674 So.2d 1260 , 1265 n. 1 (Ala.1995) (opinion on application for rehearing).”’
Elizabeth Homes, L.L.C. v. Gantt,
III.
There is no dispute that a contract calling for arbitration — the DRA- — ■ exists in this case and that that contract evidences a transaction affecting interstate commerce. The issue here is whether the DRA applies to the claims brought by Bolding on behalf of Means, neither of whom signed the DRA. The general rule in Alabama is that “a nonsignatory to an arbitration agreement cannot be forced to arbitrate her claims.” Cook’s Pest Control, Inc. v. Boykin,
The only evidence before the Court in this case indicates that Means was mentally incompetent when he was admitted to Cedar Crest and the DRA was executed; indeed, SSC Montgomery does not even argue that he was competent at any relevant time. The evidence of Means’s incompetency includes an affidavit submitted by Bolding in which she states: “On January 25, 2012, my father was mentally incompetent and physically incapacitated.
Children and the mentally incompetent have traditionally been treated differently under the law than the standard competent adult. See, e.g., Ex parte E.R.G.,
Of course, Noland Health Services was a plurality opinion, and its precedential value is accordingly limited.
“Carol relies upon Noland Health Services, Inc. v. Wright,971 So.2d 681 (Ala.2007). In Noland, a plurality of this Court held that a daughter-in-law’s signature as the responsible party on a nursing-home arbitration agreement was ineffective to bind the resident to the agreement. Noland is distinguishable from this case, however, because the nursing-home resident in Noland was mentally incompetent and could not authorize anyone to act on her behalf and because the daughter-in-law did not sign any document in the capacity of her mother-in-law’s legal representative.”
Johnson,
SSC Montgomery argues that Noland Health Services is distinguishable inasmuch as Vicky Willis did not sign the contract containing the arbitration provision in Noland Health Services as Dorothy’s legal representative, while, SSC Montgomery asserts, Pleasant did sign the DRA as Means’s legal representative. We disagree, however, with SSC Montgomery’s assertion that Pleasant signed the DRA as Means’s legal representative. The signature block on the DRA indicates that Pleasant signed the DRA as “Legal Representative or Family Member.” (Emphasis added.) Moreover, although the paragraph above the signature line indicates that the signer of the document is asserting that he or she has “the authority to sign the agreement on [the resident’s] behalf,” merely claiming to have legal authority on someone else’s behalf or claiming to be someone else’s legal representative does not make it so. It is undisputed that Pleasant has never held a power of attorney for Means, and she also stated in an affidavit submitted to the trial court that she was granted “no legal authority by him or anyone else to enter into the [DRA] on his behalf.”
SSC Montgomery argues in the alternative that the doctrine of apparent authority should nevertheless bind Means, and by extension Bolding, to the DRA. In Carraway, we applied the doctrine of apparent authority to hold that Shirley Carr-away, a nursing-home resident, was bound by an arbitration agreement signed by her brother Richard Carraway:
“Just as Richard signed all the other documents relating to Shirley’s admission into the nursing home on Shirley’s behalf, Richard signed the arbitration agreement on Shirley’s behalf expressly as an ‘authorized representative.’ Apparent authority ‘is implied where the principal passively permits the agent to appear to a third person to have the authority to act on [her] behalf.’ Treadwell Ford, Inc. v. Courtesy Auto Brokers, Inc.,426 So.2d 859 , 861 (Ala.Civ. App.1983). ‘It is not essential that the right of control be exercised so long as that right actually exists.’ Wood Chevrolet Co. v. Bank of the Southeast,352 So.2d 1350 , 1352 (Ala.1977). There is no evidence indicating that Shirley had any objection to Richard’s acting on her behalf in admitting Shirley to the nursing home. On the contrary, the evidence suggests that Shirley approved of her brother’s acting on her behalf. A few weeks into Shirley’s residency at the nursing home, she executed a power of attorney, giving Richard further authority to act on her behalf.”
In contrast, the only evidence in the record in this case indicates that Means is incompetent and thus unable to empower an agent, whether passively or through affirmative acts. See Johnson,
In conclusion, we hold that Means was not bound by the DRA executed by Pleasant; therefore, Bolding was not bound. However, we emphasize that this conclusion is not reached because Means did not personally execute the DRA. Rather, it is because all the evidence in the record indicates that Means is incompetent. Thus, while Bolding, as the holder of a durable power of attorney granted by Means, may have been able to bind him to an arbitration agreement, Pleasant, as merely a family member or next friend, could not.
IV.
Bolding sued SSC Montgomery as Means’s attorney in fact and next friend, alleging medical malpractice in the care he received at Cedar Crest. SSC Montgomery moved to compel arbitration in the case pursuant to an arbitration agreement Pleasant signed when Means was admitted to Cedar Crest; however, the trial court denied that motion. We hereby affirm the judgment of the trial court, holding that Pleasant’s signature on the arbitration agreement was ineffective to bind Means, and by extension his legal representative Bolding, because the evidence indicates he was mentally incompetent at the time Pleasant executed the agreement.
AFFIRMED.
Notes
. Bolding's complaint also named as defendants four other corporate entities she alleged were related to SSC Montgomery, as well as two Cedar Crest employees. However, those corporate entities were later dismissed by agreement of the parties, and thp two Cedar Crest employees did not join in the motion to compel arbitration that is the subject of this appeal; therefore, in this opinion, we refer to only SSC Montgomery.
. Citing Queen v. Belcher,
. The United States Court of Appeals for the Eleventh Circuit concluded in Entrekin that part of the holding in Noland Health Services was inconsistent with Briarcliff, Carraway, and Johnson.
. There is some indication in Carraway that Shirley may have been incompetent at the time she was admitted to the nursing home, although Richard’s argument was premised on the claim that she was in fact competent.