# Oak Crest Manor Nursing Home, LLC Day Life Corporation Terry Rowan Norma Elemento And Grover Moore v. Peggy Barba, as Guardian of S.F.

> Texas Court of Appeals, 3rd District (Austin) · September 27, 2016

URL: https://www.frixlaw.com/law-library/cases/4078788

## Case

- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** September 27, 2016
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

ACCEPTED
03-16-00514-CV
12930167
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/27/2016 3:15:20 PM
JEFFREY D. KYLE
CLERK
NO. 03-16-00514-CV

FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS
9/27/2016 3:15:20 PM
AT AUSTIN JEFFREY D. KYLE
Clerk

OAK CREST MANOR NURSING HOME, LLC, DAY LIFE
CORPORATION, TERRY ROWAN, NORMA ELEMENTO, AND
GROVER MOORE,
Appellants,

v.

PEGGY BARBA, AS GUARDIAN OF S.F.,
Appellee.

On Appeal from the Probate Court,
Travis County, Texas, Cause No. C-1-PB-16-00776

BRIEF OF APPELLEE

Jeff Diamant (Of Counsel)
State Bar No. 00795319
John C. Ramsey
State Bar No. 24027762
Joel Pardo
State Bar No. 24083617
RAMSEY LAW GROUP, P.C.
7521 Westview Drive
Houston, TX 77055
Phone: (713) 489-7577
Fax: (888) 858-1452
Email: john@ramseylawpc.com
Email: jeff@ramseylawpc.com
Email: joel@ramseylawpc.com
Jacques G. Balette
MARKS, BALETTE, GEISSEL &
YOUNG, PLLC
State Bar No. 00798004
10000 Memorial Drive, Suite 760
Houston, Texas 77024
Phone: (713) 681-3070
Fax: (713) 681-2811
Email: JacquesB@marksfirm.com

BRIEF OF APPELLEE PAGE II

TABLE OF CONTENTS

RECORD AND APPENDIX REFERENCES .................................................... 2

STATEMENT REGARDING ORAL ARGUMENT ....................................... 2

INTRODUCTION ................................................................................................ 2

ISSUES PRESENTED........................................................................................... 3

STATEMENT OF FACTS .................................................................................... 4

SUMMARY OF THE ARGUMENT .................................................................. 8

ARGUMENT........................................................................................................ 10

I. THE NURSING HOME ADMISSION AGREEMENT IS VOID
AS APPELLEE LACKED CAPACITY TO CONTRACT. .............. 10

A. Shawn Frank lacked capacity to contract before, during and
after his execution of the Admission Agreement. .................... 10

B. Appellants’ own contemporaneous records establish Shawn
Frank lacked capacity upon admission. ..................................... 12

C. Appellee Established Lack of Capacity to Contract. ................ 14

1. Expert David E. Mansfield, M.D. establishes Shawn Frank
as totally incapacitated on the date and time of the
execution of the agreement at issue. ........................................ 15

2. The affidavit of Peggy Barba, Shawn Frank’s mother, also
establishes that he was totally incapacitated on the date
and time the agreement at issue was executed. ..................... 17

D. Appellants’ “lucid interval” argument fails. ............................ 18

1. The Affidavit of Terry Rowan must be disregarded and
certainly does not support a “lucid interval” argument. ..... 19

BRIEF OF APPELLEE PAGE III

2. Appellants’ argument that other records generated by them
show “lucid interval” also fail to substantiate their claim
and are not qualified opinions or observations. ................... 22

E. The evidence establishes Shawn Frank lacked capacity to
contract on the date and time of his execution of the
agreement. ........................................................................................ 23

II. THERE IS NO WAIVER OF ANY “RIGHT TO VOID” THE
ADMISSION AGREEMENT, NOR IS APPELLEE SOMEHOW
ESTOPPED FROM ESTABLISHING IT IS VOID, NOR BOUND
BY THE DIRECT-BENEFITS ESTOPPEL THEORY. .................... 24

A. Appellants’ “void v. voidable” argument is not valid. ........... 25

B. An incapacitated person can no more disaffirm an agreement
than bind himself to it in the first place. ................................... 25

C. Appellee’s previous pleading of breach of contract does not
create an estoppel as it is a permissive “alternative theory”,
subsequently dropped by Appellee. .......................................... 26

D. The Direct-Benefits Estoppel argument does not apply......... 27

III. THE ARBITRATION AGREEMENT IS VOID AND FEDERAL
PREEMPTION OF STATE LAW BY THE FEDERAL
ARBITRATION ACT ARGUMENTS FAIL.................................... 28

A. Texas Civil Practice and Remedies Code § 74.451 bars
enforcement of this arbitration provision. ................................ 29

B. The FAA does not preempt Chapter 74 due to a lack of
interstate commerce. ...................................................................... 30

C. As a matter of policy, validating Appellants’ position would
destroy state’s rights to enforce state law on many issues. .... 34

CONCLUSION .................................................................................................... 35

BRIEF OF APPELLEE PAGE IV

TABLE OF AUTHORITIES

CASES

Buckeye Check Cashing v. Cardegna,
546 U.S. 440, 448 (2005) .................................................................................... 25

The Fredricksburg Care Company, L.P. v. Perez,
461 S.W.3d 513 (Tex. 2015), reh’g denied (June 26, 2015) .............................. 30

Gaston v. Copeland,
335 S.W.2d 406 (Tex. Civ. App.—Amarillo 1960, writ ref’d n.r.e.) ............ 25

Harrell v. Hochderffer,
345 S.W.3d 652 (Tex. App.—Austin 2011, no pet) ................................. 20, 22

In re December Nine Co., Ltd.
225 S.W.3d 693 (Tex. App.—El Paso, no pet) ............................................... 32

In re Estate of Gray,
279 S.W.2d 936 (Tex. App.—El Paso 1955, writ ref’d n.r.e.) ........... 16, 21, 22

In re L & L Kempwood Assoc, L.P.,
9 S.W.3d 125 (Tex. 1999) .................................................................................. 30

In re Morgan Stanley & Co,
293 S.W.3d 182 (Tex. 2009) .............................................................................. 25

In re Nexion Health at Humble, Inc.
173 S.W.3d 67 (Tex. 2005) ................................................................................ 31

In re Tenant Healthcare, Ltd.,
84 S.W.3d 760 (Tex. App.—Houston [1st Dist.] 2002, no pet.) ................... 32

J.M. Davidson Inc. v. Webster,
128 S.W.3d 223 (Tex. 2003) .............................................................................. 11

Oram v. General American Oil Company of Texas,
513 S.W.2d 533 (Tex. 1974) .............................................................................. 26

BRIEF OF APPELLEE PAGE V

Prima Paint Corp. v. Flood & Conklin Mfg.,
388 U.S. 395 (1967) ............................................................................................ 11

Regency Advantage L.P. v. Bingo Idea-Watauga, Inc.,
936 S.W.2d 275 (Tex. 1996) .............................................................................. 27

Rent-A-Center West, Inc. v. Jackson,
130 S.Ct. 2772, 2778 (2010) ............................................................................... 11

United States v. Girod,
646 F.3d 304 (5th Cir. 2011).............................................................................. 33

Zimmerman v. First American Title Ins.,
790 S.W.2d 698 (Tex. App.—Tyler 1990, writ denied)................................. 27

STATUTES

TEX. CIV. PRAC. & REM. CODE § 74.451 ............................................................... 29

TEX. R. CIV. P. 48 ................................................................................................... 27

TEXAS GOVERNMENT CODE § 531.021 .................................................................. 31

BRIEF OF APPELLEE PAGE VI

NO. 03-16-00514-CV

IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS
AT AUSTIN

OAK CREST MANOR NURSING HOME, LLC, DAY LIFE
CORPORATION, TERRY ROWAN, NORMA ELEMENTO, AND
GROVER MOORE,
Appellants,

v.

PEGGY BARBA, AS GUARDIAN OF S.F.,
Appellee.

On Appeal from the Probate Court,
Travis County, Texas, Cause No. C-1-PB-16-00776

BRIEF OF APPELLEE

TO THE HONORABLE THIRD COURT OF APPEALS:

Appellee Peggy Barba, As Guardian of S.F., files this Brief of Appellee,

and submits this Brief in response to the Brief of Appellant in support of

their interlocutory appeal of the Probate Court’s decision to deny

Appellants’ Motion to Compel Arbitration, and would respectfully show

this Court the following:
RECORD AND APPENDIX REFERENCES

References to the Clerk’s Record and Reporter’s Record in this Brief

are to page numbers. Clerk’s Record references are abbreviated by page

number as “(CR __).” Reporter’s Record references are abbreviated by page

number as “(RR __).” Appendix references to the Appendix attached to this

document are abbreviated as “(Appellee App. __).” Appendix references to

the Appendix attached to Appellants’ Appendix are abbreviated as “(App.

__),” to conform to Appellants’ designation and to avoid confusion.

STATEMENT REGARDING ORAL ARGUMENT

Appellants have requested oral argument. Appellee has no objection

to oral argument if the Court deems it necessary. If oral argument is to take

place, Appellee requests to have the opportunity to participate in same.

INTRODUCTION

Appellee is an incapacitated, schizophrenic person that signed a 15-

page nursing home admission agreement upon his involuntary admission to

the home. This agreement contained an arbitration provision. Appellant

seeks to enforce this agreement. Appellee contends that this admission

agreement is void as the Appellee lacked capacity to enter into such

agreement. As the law on this issue is unquestionably clear, if this Court

agrees that Appellee lacked capacity to contract, this admission agreement

is void, there is no arbitration provision to enforce, and therefore, there are

BRIEF OF APPELLEE PAGE 2

no other issues to address in this appeal. Simply, if Appellee lacked capacity,

every other issue presented by Appellants is moot.

If, however, this Court finds that Appellee had capacity to enter into

this agreement, stripping him of his constitutional right to trial by jury, the

Court must address the applicability of Federal preemption, which would

cause the Federal Arbitration Act to govern the enforceability of this

particular arbitration provision. To reach a finding of Federal preemption,

Appellants seek to have this Court find that interstate commerce is

implicated in this situation involving a Texas resident and a Texas nursing

home, solely because the Texas resident received Texas Medicaid benefits.

This is a question of first impression.

If this Court finds that Appellee had capacity, and that Federal

preemption does not apply, the arbitration provision at issue can not be

enforced as it is in clear violation of Texas’ laws regarding arbitration

provisions in a health care liability context.

ISSUES PRESENTED

Issue No. 1: Did Shawn Frank have capacity to execute the admission

agreement at issue? Shawn Frank lacked capacity to contract when

Appellants had him sign the 15-page contract waiving his constitutional

rights. He lacked such capacity prior and following, continuously, as well,

and this fact was known to Appellants upon Appellee’s admission to

BRIEF OF APPELLEE PAGE 3

Appellants’ nursing home. As such, there is no enforceable agreement, let

alone an enforceable arbitration provision.

Issue No. 2: If Shawn Frank had capacity to execute the admission

agreement at issue, does Federal preemption by the Federal Arbitration Act

preempt the Texas’ law statute that would render the arbitration provision

in the admission agreement void for failure to comply with Texas law

requisites for enforceable arbitration provisions in a health care context? The

question of Federal preemption by the Federal Arbitration Act is never at

issue as the entire agreement is void due to Shawn Frank’s lack of capacity

to contract. But even if it were, there is no implication of intestate commerce,

precluding Federal preemption.

STATEMENT OF FACTS

Shawn Frank is a mentally incapacitated adult, so much so that he was

found totally incapacitated by the Probate Court for Travis County twice.

(CR 117). He has a lengthy history of serious mental illness and total

incapacitation. (CR 203, Appellee App A; CR 198, Appellee App B). Shawn

Frank had been at Seton Shoal Creek Hospital for a month prior to his

admission to Oakcrest Manor due to a psychotic event where he attacked an

outpatient social worker after hearing voices and having delusions. He was

put into Oakcrest Manor by a case worker upon his discharge from Shoal

Creek and transfer to Appellants’ facility, Oakcrest Manor, contrary to

BRIEF OF APPELLEE PAGE 4

Appellants’ assertion that he “voluntarily” checked himself in as if he

walked in, put down a credit card, and got a hotel room for the night. (CR

198, Appellee App B).

Upon his admission to Oakcrest Manor, staff of Oakcrest Manor made

no less than 6 independent records at the time of his admission noting Mr.

Frank’s diagnosis of a history of mental illness including, but not limited to:

• Bipolar Affec
• Schizoaffective Disorder (Schizophrenia)
• Neurotic Disorder
• Depression

Appellants’ records upon admission indicate “Hx of multiple psych

admissions”, “25(+) yr Hx of MI [mental illness}”, and “suicidal attempts.”

(CR 200-06, Appellee App A). Nevertheless, the Administrator of Oakcrest

Manor, Terry Rowan, had the totally incapacitated Shawn Frank execute the

15-page “Oakcrest Manor Nursing Home Admission Agreement”

containing a waiver of his Constitutional right to trial by jury by way of an

arbitration provision on page 12 that does not, in any way, comply with the

Texas Civil Practice and Remedies Code’s ban on and requirements for

arbitration provisions in the health care field. (CR 106, App 3). The only

signatures on the “contract” at issue are Plaintiff Shawn Frank, an

incapacitated person, and Oakcrest Manor’s Administrator. Id.

On January 13, 2014, Peggy Barba, Shawn Frank’s current guardian,

filed an application to be the guardian of Shawn Frank based on his complete

BRIEF OF APPELLEE PAGE 5

lack of capacity. (CR 110). Around that same time, she notified Appellants

that Shawn Frank had called and warned of his intent to elope and jump off

a bridge. After Appellee provided warning of his intent to elope and attempt

suicide by jumping off a bridge,1 Oakcrest Manor took no action, and

allowed Shawn Frank to do that very thing about 1-day later, causing serious

permanent injuries.

A physician appointed by the Probate Court, Dr. Roger McRoberts,

examined Shawn Frank approximately 6 weeks after his admission to

Oakcrest Manor and then filed with the Probate Court a Physician’s

Certificate of Medical Examination wherein he found:

• Mental Diagnosis: Schizophrenia (p.1)

• Ability to Make Reasonable Decisions (p.2):

NO – Make complex business, managerial, and financial
decisions

NO – Determine the proposed ward’s own residence

NO – Attend to instrumental activities of daily living

NO – Consent to medical and dental treatment

NO – Consent to psychological and psychiatric treatment

• Evaluation of Capacity (p.4)

1
Oakcrest was well aware of Shawn Frank’s history of elopement and suicide attempts.
(CR 147, 207, Appellee App A).

BRIEF OF APPELLEE PAGE 6

YES – “Based upon my last examination and observations of
the Proposed Ward, it is my opinion that the Proposed
Ward is incapacitated according to the legal
definition… [emphasis in original]

• If you indicated that the Proposed Ward is incapacitated, indicate
the level of incapacity:

TOTAL – The Proposed Ward is totally without capacity (1)
to care for himself and (2) to manage his or her
property.

(CR 113-16, Appellee App C). In fact, Dr. McRoberts’ findings were so

significant, he also found and indicated that Shawn Frank would NOT even

be able to attend, understand and participate in his own guardianship

hearing and recommended that he NOT attend such hearing. Id.

Nevertheless, Appellants seek to enforce this agreement and strip a

totally incapacitated person of his Constitutional right to trial by jury.

In addition to the evidence above, Appellee also presented testimony

from Dr. David Mansfield, a qualified physician in this area attesting to the

fact that Shawn Frank was totally incapacitated on the date and time of his

execution of the agreement at issue, and his guardian/mother, who not only

repeated this fact, but further attested that Shawn Frank had been in the

same condition for nearly 2 decades prior. (CR 198-99, Appellee App B). In

stark contrast, Appellants contend that Shawn Frank had a “lucid interval”

on the day of his admission, based on non-expert impressions from the

nursing home administrator, Terry Rowan, who claims Appellee “seemed

BRIEF OF APPELLEE PAGE 7

fine,” (CR 131), and vague nurse’s notes that do not even attempt to claim

Shawn Frank had capacity on their face. (CR 201, App 5; CR 203, App 7).

Appellants seek a finding from this Court that Shawn Frank had a

“lucid interval” in an attempt to make the agreement enforceable, then seek

this Court to address a question of first impression and find that because

Shawn Frank received Medicaid benefits, interstate commerce is affected

and, therefore, the Federal Arbitration Act preempts the Texas law that

would otherwise make this arbitration agreement unenforceable as a matter

of law, assuming Shawn Frank had capacity in the first place.

SUMMARY OF THE ARGUMENT

The clear evidence establishes that Shawn Frank was totally

incapacitated by way of his extensive and severe mental illness, which the

record demonstrates he had for about two decades prior to his admission to

Oakcrest Manor. This was further supported by the Court-appointed

physician who declared him totally incapacitated approximately 6-weeks

after Mr. Frank’s admission, yet Appellants characterize to this Court Mr.

Frank’s incapacity as if he was just fine on the date of his admission, yet

suddenly contracted schizophrenia and neurotic disorder during the next 6

weeks as if he caught the flu. Their only real evidence is that Terry Rowan,

the Administrator, not a health care professional, said he “seemed fine.”

BRIEF OF APPELLEE PAGE 8

No matter what position Appellants take regarding Federal

preemption or the Federal Arbitration Act, no matter what case or statutory

authority they present, Texas law is clear that any presumption favoring

arbitration arises only after the party seeking to compel arbitration proves

that a valid arbitration provision exists. In other words, if there is no valid

contract, the arbitration provision and the relevant laws governing just do

not matter. Appellants simply cannot jump this hurdle.

The undeniable facts are:

1. Shawn Frank was incapacitated on December 13,
2013 (the date of his admission to Oakcrest
Manor), suffering from the same mental illnesses
that he still had on January 30, 2014, and had for
at least 15 years prior; and

2. Appellants knew on December 13, 2013 (the date
of Plaintiff’s admission) that Shawn Frank was
incapacitated.

This was the basis for the Probate Court’s decision to deny Appellants’

request to compel arbitration.

Assuming this Court finds that Shawn Frank did have the capacity to

contract, Appellants seek a ruling of Federal Arbitration Act preemption

because the arbitration provision forced on this incapacitated Plaintiff does

not comply with Texas state law, but may possibly comply with the FAA’s

more lax standard. Appellants’ arguments are fatally flawed for the

following reasons:

BRIEF OF APPELLEE PAGE 9

1) Shawn Frank was, is and continues to be an incapacitated person
(as deemed by the Probate Court), clearly lacking capacity to enter
into the “contract” and voiding the agreement containing the at-
issue arbitration provision;

2) Texas Civil Practices and Remedies Code § 74.451 clearly bars
arbitration provisions in Health Care Liability Claims other than in
limited circumstances, which do not exist in this case;

3) The Federal Arbitration Act does not preempt the above-referenced
Texas statute due to a lack of interstate commerce implications; and

4) Public policy mandates rejection of Appellants’ arguments as
accepting same would have catastrophic results on not only health
care liability law, but on contract law and state’s rights in general.

The analysis of this case is, therefore, did Shawn Frank have capacity

to enter into this agreement? If no, there is no arbitration and no other issues

are reached. If yes, does Federal preemption apply? If no, the arbitration

agreement at issue is unenforceable and there is no arbitration. If yes, must

this Court compel arbitration?

ARGUMENT

I. THE NURSING HOME ADMISSION AGREEMENT IS VOID AS
APPELLEE LACKED CAPACITY TO CONTRACT.

A. Shawn Frank lacked capacity to contract before, during and
after his execution of the Admission Agreement.

Shawn Frank, a diagnosed schizophrenic, is and was totally

incapacitated. This fact was substantiated by the qualified physician expert

who examined Shawn Frank for the Probate Court (CR 113-16, Appellee App

C), and then further ratified by this Court when this Court granted

BRIEF OF APPELLEE PAGE 10

guardianship to Peggy Barba, Shawn Frank’s mother. (CR 117). The Probate

Court stated in its order “that Shawn Frank continues to be an incapacitated

person and that he no longer has capacity to manage his property.” Id.

It is fundamental to contract law that a party must have capacity to

contract to form a valid and binding agreement. Neither arbitration

provisions, nor the Federal Arbitration Act (FAA), are immune from basic

principles of contract formation. In Rent-A-Center West, Inc. v. Jackson, the

United States Supreme Court (citing an earlier of its opinions) stated:

“To immunize an arbitration agreement from
judicial challenge on the ground of fraud in the
inducement would be to elevate it over other forms
of contract,”

130 S.Ct. 2772, 2778 (2010) (citing Prima Paint Corp. v. Flood & Conklin Mfg.

388 U.S. 395 (1967)). In so doing, the Supreme Court clearly delineates that

challenges to the validity of the entire agreement are issues for state law, not

that of an arbitrator.

The Texas Supreme Court has remained consistent with the U.S.

Supreme Court in noting that the strong presumption favoring arbitration

arises only after the party seeking to compel arbitration proves that a valid

arbitration provision exists. J.M. Davidson Inc. v. Webster, 128 S.W.3d 223,

227 (Tex. 2003). Thus, a party seeking to compel arbitration must first show

that the agreement itself meets all requisite contract elements. Id. There is not

BRIEF OF APPELLEE PAGE 11

a state in this country that fails to require capacity to contract as a

fundamental prerequisite of a contract.

As Shawn Frank is, was, and continues to be totally incapacitated,

Frank could not form a valid contract with Oakcrest Manor, and certainly

not a valid and binding agreement to arbitrate, which according to Dr.

McRoberts, Frank could not have understood. (CR 113-16, Appellee App B).

As such, Appellants’ Motion to Compel Arbitration, centered around a 15-

page contract made between a nursing home and a judicially-adjudicated

incompetent person, was properly denied by the lower Court.

B. Appellants’ own contemporaneous records establish Shawn
Frank lacked capacity upon admission.

Appellants’ own admission records establish Shawn Frank was

incapacitated at the time of admission. The records of Oakcrest Manor

demonstrate that Appellee was admitted on December 13, 2013 at or around

3:00pm. Oakcrest Manor itself generated the following records, most of

them made immediately upon admission (same day, and often within the

first hour after admission), all of which demonstrate clearly Appellee’s lack

of capacity at the date and time of his admission:

1. Oakcrest Manor Face Sheet, made by Oakcrest Manor on December
13, 2013 at 4:12pm, delineating under “Current Dx” that Frank had:

1. 296.52 Bipolar affec, Depressive
2. 295.40 Ac Schizophrenia
3. 300.9 Neurotic Disorder

BRIEF OF APPELLEE PAGE 12

(CR 200, Appellee App A).

Oakcrest Manor Resident - Data Collection Status Upon Admission,
made by J. Chudleigh (Attending Physician) on December 13, 2013
at 3:10pm showing a diagnosis of “Bipolar, Depression,
Schizophrenia. (CR 201, Appellee App A).

2. Oakcrest Manor Nursing Home Discharge Summary, created on
January 15, 2014, noting that Frank’s admission to Oakcrest was on
December 13, 2013 and his “admission diagnosis(es)” were “Bipolar
Affec. Depr-mod., Schizophrenia, Neurotic Disorder”. (CR 202,
Appellee App A).

3. Oakcrest Manor Nurse’s Notes, created upon admission on
December 13, 2013 stated:

3pm adm. From Shoal Creek 40 yr old
schiz[ophrenic] w/ male. Long Hx of mental
illness. Suicidal…jumped from a bridge in Nov.
Has a long Hx of violence.

(CR 203, Appellee App A).

4. Oakcrest Manor All Disciplines to Use Progress Notes, created only
4 days later on December 17, 2013 stated:

First OCNH [Oakcrest Nursing Home] admission
for this 40 yo single male who came to NH from
SCH [Shoal Creek Hospital]. He has a long Hx of MI
& multiple psych stops. His MI started in teen years &
was worsened by drug use. Res jumped off bridge
on 6/12 . . . Since then he has been in/out of psych
hosp . . . He denies MI.

(CR 204, Appellee App A).

5. Oakcrest Manor Social Services Assessment, created on December
17, 2013, recites all of the following facts about Shawn Frank:

1. Hx of multiple psych admissions
2. Schizophrenic

BRIEF OF APPELLEE PAGE 13

3. Long Hx of MI [mental illness]
4. Reports of suicidal attempts
5. 25 (+)- yr Hx of MI with multiple psych st.

(CR 205, Appellee App A).

Each of these records were created by the Appellants, and most at the

precise date and time of Appellee’s admission to Oakcrest Manor, and all of

them establish Plaintiff’s lack of capacity at the date and time of the

execution of the agreement at issue. Each of these records created by the

Appellants demonstrate clearly that, upon his admission, Mr. Frank was

suffering from the precise mental conditions that caused him to be totally

incapacitated that were the basis of the Probate Court’s decision to find him

incapacitated as a matter of law. Hence, Appellants’ own records create

more than sufficient proof that Shawn Frank lacked capacity to contract at

the precise time Oakcrest Manor made him sign their 15-page Admission

Agreement, waiving his Constitutional right to a trial by jury.

C. Appellee Established Lack of Capacity to Contract.

Appellee established that Shawn Frank lacked capacity to contract on

the date and at the time that he was forced to sign a contract, which does not

comport with Texas law, upon his involuntary admission to Oakcrest Manor.

Such proof came in the form of the following:

1. Appellants’ own nursing home admission records
demonstrating that Oakcrest Manor knew at the
exact date and time of Shawn Frank’s admission
to Oakcrest Manor that Shawn Frank lacked

BRIEF OF APPELLEE PAGE 14

capacity to contract. As well, these records prove
that at the time of the hearing on this issue in the
Probate Court, Appellants were aware that they
knew of Shawn Frank’s lack of capacity at the
exact date and time he was admitted to the home,
although they attempted to divert the issue.
(Addressed in the previous section).

2. Affidavit of David E. Mansfield, M.D., a medical
doctor with over 40 years of experience, attesting
that Shawn Frank suffered from schizoaffective
disorder (schizophrenia), bipolar disorder and
depression on December 13, 2013 at the time of
Shawn Frank’s admission to this nursing home.
As such, he lacked the capacity to contract (he was
totally incapacitated) and that, given the nature of
his mental illness, he may even present as if he
was coherent and able to process and understand
the 15-page contract, even though he was not. (CR
196-97, Appellee App D).

3. Affidavit of Peggy Barba, Shawn Frank’s mother,
who attests that her son was admitted to this
home by a case worker, not voluntarily (unlike
Appellants’ assertion), and that her son had
suffered from these same mental illnesses for at
least 15 years prior to his admission to Oakcrest
Manor that rendered him totally incapacitated.
(CR 198-99, Appellee App B).

1. Expert David E. Mansfield, M.D. establishes Shawn Frank as
totally incapacitated on the date and time of the execution
of the agreement at issue.

David E. Mansfield, M.D. is a medical doctor with extensive

experience in both medicine and nursing homes. In his affidavit, Dr.

Mansfield describes Shawn Frank as “a person who likely cannot distinguish

what is real and what is false” and notes that persons with Frank’s

BRIEF OF APPELLEE PAGE 15

conditions “can even appear lucid, responsive and as if they have full

capacity when, in fact, they do not.” (CR 196-97, Appellee App D).

Most importantly, Dr. Mansfield declares:

…to a reasonable degree of medical probability,
based on Shawn Frank’s condition, he would lack
sufficient capacity to contract and would require a
guardian. It is further my opinion that, to a
reasonable degree of medical probability, Shawn
Frank was totally incapacitated on December 13,
2013, the day he was admitted to Oakcrest Manor, as
he was prior to his admission, and as he continues to
be.

Id. This expert testimony should establish that Appellee was totally

incapacitated when executing the agreement at issue, rendering it

unenforceable.

Appellants’ contention regarding Dr. Mansfield’s testimony is that is

is “conclusory” or “vague.” They are critical of Dr. Mansfield’s general

descriptions of how persons with the psychological ailments suffered by

Shawn Frank manifest such ailments. They skip over the quoted portion of

Dr. Mansfield’s testimony above that opines conclusively that Shawn Frank

lacked capacity on December 12, 2013. If this Court considers any evidence of

capacity, it must weight Dr. Mansfield’s testimony the most heavily.

As is addressed directly in In re Estate of Gray, 279 S.W.2d 936 (Tex.

App.—El Paso 1955, writ ref’d n.r.e.), which is both cited and relied upon by

Appellants, absent sufficient familiarity with the alleged incapacitated

BRIEF OF APPELLEE PAGE 16

person, the Court should exclude non-expert testimony regarding capacity.

This should result in the exclusion of all of Appellants’ proposed evidence,

but should as well result in the expert opinion of Dr. Mansfield (and Dr.

McRoberts) being the most heavily weighted evidence of Shawn Frank’s

incapacity.2

2. The affidavit of Peggy Barba, Shawn Frank’s mother, also
establishes that he was totally incapacitated on the date and
time the agreement at issue was executed.

In further support, Appellee submitted the affidavit of Peggy Barba,

Frank’s mother and legal guardian. (CR 198-99, Appellee App B). Having

clearly superior personal knowledge of his condition, Mrs. Barba testifies

that her son has suffered from severe mental illness since he was a teenager.

Id. This fact is also supported by Defendant’s own records. (CR 200-205,

Appellee App A). Mrs. Barba also notes her son has a long history of mental

illness that preceded his admission to Oakcrest Manor by at least 15 years.

(CR 198-99, Appellee App B).

In addition, Mrs. Barba testifies that Appellee did not “voluntarily

check himself in” as Appellants would have this Court believe. According to

Mrs. Barba, a case worker checked Shawn Frank in to Oakcrest Manor.

Appellants couch the facts as if Appellee was normal, lucid and had full

2
This case is discussed in further detail below in Section I.D.1.

BRIEF OF APPELLEE PAGE 17

faculties and he simply elected to move in to Oakcrest Manor to support

their argument that the agreement at issue should be enforced. Mrs. Barba’s

testimony proves this is simply not the case.

D. Appellants’ “lucid interval” argument fails.

Appellants essentially argue to this Court that a known schizophrenic,

whom even they admit lacked capacity 6 weeks after his admission to their

nursing home, had, at the time of signing their admission paperwork, a

“lucid interval,” rendering Appellee temporarily competent when he was

asked to sign their 15-page Admission Agreement. The foundation of

Appellants’ argument is built around the observations of their nursing home

Administrator, Terry Rowan (who has no medical training), and their

records that indicate Shawn Frank was “alert” and “answered questions”,

was “cooperative” and showed no “behavior problems.” In doing so,

Appellants ignore the testimony and opinions of the only two trained

medical professionals whom have offered opinions (Dr. McRoberts and Dr.

Mansfield), both of whom opine that Shawn Frank was totally incapacitated

and, further, “can even appear lucid, responsive and as if they have full

capacity when, in fact, they do not,” based on a reasonable degree of medical

probability, and based on his mental condition. Their provided “proof,” at

best, fails to substantiate a “lucid interval,” but practically speaking,

provides no evidence of his mental condition/mental capacity.

BRIEF OF APPELLEE PAGE 18

Appellants admit that “Frank had battled mental illness prior to his

admission to Oakcrest Manor.” (Brief of Appellant at 12). Yet they claim that

“the facts show he was still capable of lucid intervals. . .” Id. Appellants

provide no proof of this assertion whatsoever. There is not a single piece of

evidence that a person with Shawn Frank’s condition was capable of “lucid

intervals.” Rather, they take the same testimony that fails to establish that

Shawn Frank contracted during a “lucid interval” and claim that same

insufficient evidence also establishes that he was capable of having “lucid

intervals,” which is not only unsupported by the medical testimony, but

contrary to it.

1. The Affidavit of Terry Rowan must be disregarded and
certainly does not support a “lucid interval” argument.

Terry Rowan’s affidavit is evidence of nothing. Terry Rowan is the

Administrator of Oakcrest Manor. By its own terms, the affidavit establishes

that Terry Rowan has no relevant or admissible opinion. Terry Rowan’s only

area of knowledge, by the statements in the affidavit itself, establish that he

has no medical knowledge of any kind, yet Mr. Rowan opines that Appellee

was “lucid” during their meeting. (CR 131). His statement is, at best,

speculative, particularly given his complete lack of medical expertise. Mr.

Rowan’s opinion would not be admissible at trial on this issue, and should

not be considered in this appeal.

BRIEF OF APPELLEE PAGE 19

Mr. Rowan’s testimony is that “Frank was able to follow along and

participate in the conversation.” Id. As noted by Dr. Mansfield, Shawn

Frank’s condition could make him appear “lucid, responsive and as if they

have full capacity when, in fact, they do not.” (CR 196-97, Appellee App D).

He further patently speculates that Shawn Frank “understood Rowan’s

questions”, for which there is no baseline, no verification, and being stated

by a person with no medical training to make such an evaluation or render

such an opinion.

Appellants rely on Harrell v. Hochderffer, 345 S.W.3d 652, 661 (Tex.

App.—Austin 2011, no pet) for a recitation of the law regarding what is

required to show incapacity, but they ignore the central findings of this

Court in that case. In Harrell, the evidence of incapacity was that the alleged

incapacitated person signed his name as “G” even though he had no “G” in

his name. Further, the alleged incapacitated person had a guardian ad litem

appointed 4 months earlier. This Court noted that evidence of capacity

“must transcend mere suspicion,” that evidence “so slight as to make an

inference a guess” do not constitute evidence. Id. This Court found the

evidence in Harrell insufficient, and that evidence was far more compelling

than the observations of persons with no medical training, particularly when

weighed against two qualified medical opinions as exist in this record.

BRIEF OF APPELLEE PAGE 20

More importantly, the Appellants also cite In re Estate of Gray, 279

S.W.2d 936 (Tex. App.—El Paso 1955, writ ref’d n.r.e.) for the proposition

that an incapacitated person may have a “lucid interval”, rendering such

person with capacity during that interval. Even a cursory reading of this

opinion demonstrates that Appellants’ arguments fail.

In Gray, the Court examined at length the capacity of a testator.

Directly demonstrating Appellee’s position that the “evidence” proffered by

Appellant is insufficient as a matter of law, the Court stated:

Now it must be observed with reference to the
preceding points and the matters involved therein
that it is a matter of law as to whether or not a lay
witness has qualified himself so as to testify and give
opinions as to lack of sanity of a testator. Here the
court ruled that the witnesses involved had not had
enough contact and observation to so qualify, and
excluded their opinions on such grounds. . .

Id. at 940. The Court’s holding was referring to not 1, but 2 witnesses whose

testimony should be excluded as the witnesses had neither qualified as an

expert witness, nor had sufficient familiarity with the testator to pass

judgment on the testator’s state of mind when they made observations such

as “her memory seemed to be defective”, or that “something was wrong

with her” as she asked the same question twice. Id. at 939. In both cases, these

witnesses had met the testator on previous occasions (unlike Mr. Rowan or

any nurse at Oakcrest Manor), yet the Court still found lack of familiarity

BRIEF OF APPELLEE PAGE 21

with the testator for their “observations” to be of any relevance to the issue

of capacity of the testator.

Mr. Rowan’s statements should not be permitted as a lay opinion

either. Mr. Rowan has no prior knowledge of Shawn Frank, and Appellants

seek to admit his observations of a person who did not know, and had never

met, Shawn Frank as evidence of Mr. Frank’s lucid mental state and capacity.

This is particularly true given the expert testimony of Dr. Mansfield, who

opines conclusively that people with Plaintiff’s condition can often appear

lucid, even when they are not.

2. Appellants’ argument that other records generated by them
show “lucid interval” also fail to substantiate their claim
and are not qualified opinions or observations.

Appellants also refer to assessments of Shawn Frank that appear in

nurse’s notes as further evidence of “lucid interval.” Their claim is that the

following references support their position: Frank “Answers Questions:

Readily,” has apparent quick comprehension, is “cooperative,”

“independent mostly,” and shows “no behavior problems.” None of these

references, on their face, address whether Shawn Frank “had sufficient mind

and memory at the time of execution to understand the nature and effect of

[his] act,” as required under Texas law. See Harrell, 345 S.W.2d at 661 (noting

that the evidence must transcend mere suspicion); see also, In Re Estate of

Gray, 279 S.W. 2d at 940 (excluding analogous evidence as the witnesses

BRIEF OF APPELLEE PAGE 22

lacked any expert credentials to attest on capacity issues and their personal

knowledge of the testator was too limited to provide reliable observations of

the testator).

In this instance, Appellants’ alleged proof centers around untrained,

non-expert witnesses, all of whom had no prior contact with Shawn Frank.

As such, the proffered evidence of Appellants has no bearing on the issue of

Shawn Frank’s capacity. However, the testimony of his mother and two

independent, qualified physicians have direct bearing.

E. The evidence establishes Shawn Frank lacked capacity to
contract on the date and time of his execution of the agreement.

Simply, the most qualified evidence of capacity comes from the expert

opinions of Dr. McRoberts and Dr. Mansfield, who find clearly, and

medically, that Shawn Frank lacked capacity. Second to the expert

testimony, Shawn Frank’s mother, and guardian, is in the best position to

know his state of mind that day due to her direct knowledge of her son and

his nearly 20-year history of incapacitating mental illness. Although

Appellants contend Shawn Frank had capacity that day, their own records

establish not only his incapacitating mental illness, but their knowledge of it

when they required he sign the admission agreement waiving his

Constitutional rights. In response, Appellants only offer the affidavit of a

non-medically trained, non-expert witness, Terry Rowan, the nursing home

administrator who was responsible for getting Mr. Frank to sign the at-issue

BRIEF OF APPELLEE PAGE 23

agreement, and a few vague references from nurse’s notes that do not

contain any information relevant to the question of Shawn Frank’s capacity.

And even if they did, their observations are made by persons with no

previous knowledge of Mr. Frank, rendering them useless as was the case in

In Re Estate of Gray, where the witnesses at issue had met the testator on at

least 1 prior occasion. In short, the evidence conclusively establishes Shawn

Frank’s lack of capacity that day, rendering the admission agreement void.

II. THERE IS NO WAIVER OF ANY “RIGHT TO VOID” THE
ADMISSION AGREEMENT, NOR IS APPELLEE SOMEHOW
ESTOPPED FROM ESTABLISHING IT IS VOID, NOR BOUND BY
THE DIRECT-BENEFITS ESTOPPEL THEORY.

In an attempt to sidestep the issue that Shawn Frank lacked capacity

to contract in the first place, Appellants’ contend in their second issue that

Appellee somehow waived his right to void the contract. Their contention is

based on three positions:

(1) That a contract made by a person who lacked capacity is merely
voidable and, therefore, some step must be taken to disaffirm it or
it remains valid.

(2) By counsel for Appellee pleading an alternative theory of recovery
in the underlying case of breach of a contract that Appellants
contend exists, he is somehow estopped from establishing that the
contract is void.

(3) The Direct-Benefits Estoppel argument precludes Shawn Frank
from invalidating the agreement even though this theory only
applies to third-party beneficiaries to an agreement.

Appellants arguments not only fail, but do not make any logical sense.

BRIEF OF APPELLEE PAGE 24

A. Appellants’ “void v. voidable” argument is not valid.

In their first point, Appellants contend that contracts made by

incompetent persons are generally voidable, not void. Their only authority

for this position is a single opinion from Amarillo issued nearly 60 years ago,

Gaston v. Copeland, 335 S.W.2d 406 (Tex. Civ. App.—Amarillo 1960, writ ref’d

n.r.e.), which has never been relied upon for this position, and is contrary to

the law. The Texas Supreme Court directly addressed this issue in In re

Morgan Stanley & Co, 293 S.W.3d 182 (Tex. 2009). In stark contrast to the

Gaston opinion, the Texas Supreme Court noted that defenses to a contract

as a whole, like incapacity, render the entire contract void or unenforceable.

Id. at 185. In so doing, the Texas Supreme Court also noted that the United

States Supreme Court “rejected the notion that the enforceability of the

arbitration agreement depended on the distinction between void and

voidable contracts.” Id. (citing Buckeye Check Cashing v. Cardegna, 546 U.S.

440, 448 (2005)). Hence, Appellants’ contention is wrong, which is the

foundation of their argument on this point.

B. An incapacitated person can no more disaffirm an agreement
than bind himself to it in the first place.

Further, Appellants’ extended position (that, as such a contract is

merely voidable, thus requiring some action to disaffirm the contract),

makes no logical sense. If this were true, their argument would literally

mean that if an incapacitated person contracted, that same incapacitated

BRIEF OF APPELLEE PAGE 25

person would then have to take an affirmative step to disaffirm the contract.

The whole point of incapacity is that the incapacitated person cannot

properly understand the effects of his or her actions. The Court can no

further rely on the disaffirmation of an incapacitated person than it can the

original action sought to be disaffirmed.

Appellants rely on Oram v. General American Oil Company of Texas, 513

S.W.2d 533 (Tex. 1974). This case is in no way analogous. Oram dealt with a

landlord that was incapacitated when he entered into a contract. However,

after regaining capacity, he continued to seek the benefits of that agreement

with full knowledge of its terms. As such, the Court found a ratification of the

agreement that would have been otherwise unenforceable. Id. at 534. Unlike

this case, Oram involved an incapacitated person that regained capacity and

lived under a contract’s terms for several years after, whereas in this case,

Appellee did not have capacity at execution of the agreement, did not have

it for many years prior, and has not (nor will not) ever regain capacity.

C. Appellee’s previous pleading of breach of contract does not
create an estoppel as it is a permissive “alternative theory”,
subsequently dropped by Appellee.

Appellants contend that by pleading breach of contract in the

underlying case, Appellee is somehow estopped from contesting capacity or,

in the alternative, has ratified the contract. However, Texas law expressly

permits the assertion of “alternative theories.” The Rules provide:

BRIEF OF APPELLEE PAGE 26

A party may set forth two or more statements of a
claim or defense alternatively or hypothetically,
either in one count or defense or in separate counts
or defenses. When two or more statements are made
in the alternative and one of them if made
independently would be sufficient, the pleading is
not made insufficient by the insufficiency of one or
more of the alternative statements. A party may also
state as many separate claims or defenses as he has
regardless of consistency and whether based upon
legal or equitable grounds or both.

TEX. R. CIV. P. 48. This Rule is equally applicable even when the alternative

theories are inconsistent. Zimmerman v. First American Title Ins., 790 S.W.2d

698 (Tex. App.—Tyler 1990, writ denied); see also, Regency Advantage L.P. v.

Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996). The express

permission granted by the Texas Rules of Civil Procedure to plead

alternative theories invalidates Appellants’ argument, particularly coupled

with the fact that Appellee has amended her petition and dropped any

breach of contract claim, or any contractual remedies, rendering this

argument both invalid and moot.3

D. The Direct-Benefits Estoppel argument does not apply.

Lastly, Appellants contend that Appellee is bound to the

unenforceable arbitration provision due to the direct-benefits estoppel

theory, which is wholly misapplied. Each of the cases cited by Appellants

3
Prior to the filing of this Brief, Appellee filed an Amended Petition in the underlying
case that removes any claim based in any contractual theory.

BRIEF OF APPELLEE PAGE 27

addresses a singular point – a non-party who seeks the benefits of a contract

is also bound by that contract’s arbitration provision. While true, it is

inapplicable.

In this case, Shawn Frank is not a non-party or a third-party beneficiary

to this alleged contract. He is the claimed party. These laws are intended for

third-party beneficiaries of a contract. Appellants contend nonetheless that

it applies to Shawn Frank as he, a continuing incapacitated person,

continued to get care from this nursing home. Well, of course he did. He is

incapacitated and cannot even make his own choice as to where he can live

or who can render care to him, nor does he have other living arrangements.

More importantly, as an incapacitated person, he no more sought the

benefits of this agreement than agreed to it in the first place as he lacks

capacity for either and was moved out of this facility by his guardian after

his recovery from his injuries at issue in this matter.

III. THE ARBITRATION AGREEMENT IS VOID AND FEDERAL
PREEMPTION OF STATE LAW BY THE FEDERAL
ARBITRATION ACT ARGUMENTS FAIL.

To reach the issues of (A) the applicability of Chapter 74’s bar of non-

compliant arbitration provisions and/or (B) the applicability of Federal

preemption based on the Federal Arbitration Act (“FAA”), this Court would

have to find Shawn Frank, an incapacitated person, had capacity. If this

Court does, then it must address first the applicability of Chapter 74’s

BRIEF OF APPELLEE PAGE 28

mandates regarding arbitration provisions and whether they are preempted

by the FAA. The FAA will preempt only in the instance of an interstate

commerce transaction, and Appellants’ arguments in this regard stretch the

law and authority in this area far beyond its finite elastic limit.

The simple facts in this case are that Plaintiff Shawn Frank is and was

a Texas resident, this is a Texas health care facility, and Plaintiff Shawn Frank

did not receive Federal Medicare benefits.

A. Texas Civil Practice and Remedies Code § 74.451 bars
enforcement of this arbitration provision.

Section 74.451 definitively prohibits a health care provider from

enforcing an arbitration provision, unless that provision was also signed by

the patient’s attorney, which was not done in this case, and clearly not in

dispute. The statute mandates:

No physician, professional association of
physicians, or other health care provider shall request
or require a patient or prospective patient to execute
an agreement to arbitrate a health care liability claim
unless the form of the agreement delivered to the
patient contains a written notice in 10-point boldface
type clearly and conspicuously stating:
UNDER TEXAS LAW, THIS AGREEMENT IS
INVALID AND OF NO LEGAL EFFECT UNLESS IT
IS ALSO SIGNED BY AN ATTORNEY OF YOUR
OWN CHOOSING. THIS AGREEMENT CONTAINS
A WAIVER OF IMPORTANT LEGAL RIGHTS,
INCLUDING YOUR RIGHT TO A JURY. YOU
SHOULD NOT SIGN THIS AGREEMENT
WITHOUT FIRST CONSULTING WITH AN
ATTORNEY.

BRIEF OF APPELLEE PAGE 29

TEX. CIV. PRAC. & REM. CODE § 74.451(a). Furthermore, this statute provides

that a violation of section (a) constitutes a violation of the Texas Occupations

Code (and therefore requires sanctions and penalties thereunder) and also

constitutes a violation of the Texas Deceptive Trade Practices Act. Id. at (b)

and (c).

A cursory read of the at-issue Admission Agreement clearly

establishes two things: (1) the arbitration provision does not comply with

Section 74.451(a); and (2) the Admission Agreement was not signed by an

attorney at all, let alone one of Shawn Frank’s choosing. (CR 108, App 2).

This voids the arbitration provision as a matter of law and Appellants’

Motion should be denied.

B. The FAA does not preempt Chapter 74 due to a lack of
interstate commerce.

A number of courts have found that, in limited instancdes, the Federal

Arbitration Act preempts the state law, giving preference to the

enforceability of an arbitration provision. As the Appellants point out, this

preemption stems from arbitration clauses in contracts “that affect interstate

commerce.” In re L & L Kempwood Assoc, L.P., 9 S.W.3d 125 (Tex. 1999).

Curiously, the Appellants site a number of Texas cases, however, do not

address the most recent – The Fredricksburg Care Company, L.P. v. Perez, 461

S.W.3d 513 (Tex. 2015), reh’g denied (June 26, 2015). Although Perez finds

Federal preemption in that case, it is exceedingly clear from its holding that

BRIEF OF APPELLEE PAGE 30

the preemption was based on the resident receiving Federal Medicare

benefits, an unquestionably Federally-funded program.

In this case, Plaintiff Shawn Frank received only Medicaid funds and

the State of Texas, in its own documents, not only calls Medicaid a “state

program”, the Attorney General issued a certification, certifying that the

Health and Human Services Commission is “the single state agency

responsible for administering the plan,” and that “The legal authority under

which the agency administers the plan on a statewide basis is: Texas

Government Code, Section 531.021(b).” (CR 120-22, Appellee App E).

Further, in looking at the description of the plan in the “Organization and

Functions of the State Agency and the Organization Chart of the Agency”

along with the organization chart itself, there is simply no way to view

Medicaid as a Federal program, giving this nursing home the protections of

a non-compliant arbitration provision in an admission agreement their

Administrator had signed by a diagnosed schizophrenic upon admission. Id.

Appellants’ principal support for their argument comes first from In re

Nexion Health at Humble, Inc. 173 S.W.3d 67 (Tex. 2005). In re Nexion involved

a patient directly receiving Medicare benefits so the Court never addressed

nor confronted the applicability of Federal preemption when dealing simply

with Medicaid. Id.

BRIEF OF APPELLEE PAGE 31

Second, the Appellants rely on In re Tenant Healthcare, Ltd., 84 S.W.3d

760, 765 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Appellants cavalierly

site this case to this Court for the proposition that the Federal preemption

extends to cases involving both Medicare and Medicaid. In re Tenant

Healthcare is an arbitration provision contained in an employment agreement

between the nursing home, and its employee, a distribution clerk. The Court

did not have to address the interstate commerce issue for two reasons: (1)

this nursing home unquestionably engaged in interstate commerce; and

more importantly, (2) this issue was not challenged by the employee seeking

to invalidate the arbitration provision. The court stated:

Here, Tenet's first amended motion to compel
arbitration alleged that Park Plaza Hospital, where
Valyan worked, treated patients who lived out-of-
state; received goods and services from out-of-state;
received payments from out-of-state insurance
carriers; and received federal funds such as Medicaid
and Medicare. Valyan does not challenge these
allegations.

Id.

Similarly, the Appellants cite In re December Nine Co., Ltd. 225 S.W.3d

693 (Tex. App.—El Paso, no pet) for the proposition that Federal preemption

is granted due to the existence of Medicaid benefits. While the Court in this

case declines to limit Federal preemption based on Federal funding to

Medicare cases only, and “sort of” suggests that it may apply in cases with

Medicaid funding, the Court notes mainly that the arbitration agreement at

BRIEF OF APPELLEE PAGE 32

issue indicated on its face that it was to be “governed by Federal arbitration

law.” Id. at 698. More importantly, In re December Nine was another example

of the Court applying this decision only in the context of an employment

contract, in this case, where two employees were fired for whistle-blowing.

Finally, Appellants put, up front and center, the case of United States v.

Girod, 646 F.3d 304 (5th Cir. 2011). This case is equally inapplicable.

Appellants cite this case for the singular proposition that Medicaid is

federally funded, therefore anything tied to it affects interstate commerce.

But Girod is inapplicable on one significant point. As directly stated in that

opinion, the Louisiana Medicaid program (at issue in that case) is a joint

Federal-State program, in stark contrast to the Texas Medicaid program, as

noted above. (CR 120-22, Appellee App E).

The authority cited by the Appellants can not be stretched to the limit

of their position. And the law on this issue simply does not address, let alone

support, Appellants’ position. Not one of the cited cases reaches, or holds,

that receipt of Medicaid benefits would give rise to interstate commerce

implications sufficient to trigger Federal preemption. The reason is,

undoubtedly, that, in Texas, Medicaid is a State program in contrast to

Medicare, which is clearly a Federal program. Appellants request that this

Court address a question of first impression and extend the law in this area

beyond the limits of their own analysis and past the point of appropriate.

BRIEF OF APPELLEE PAGE 33

C. As a matter of policy, validating Appellants’ position would
destroy state’s rights to enforce state law on many issues.

The Appellants’ position is:

(1) We know Medicaid is a State program, but some
of the money came from the Federal Government,
so that’s interstate commerce; and/or

(2) If a nursing home accepts Medicare, even if not for
the benefit of the actual resident/patient at issue,
the nursing home should have blanket protection
from the FAA.

There can be no interpretation of these arguments that lead to anything

other than a massive slippery slope, fundamentally destroying the State’s

rights to enforce its own contract laws. If the Court were to accept premise

(1), the law could be stretched to the extent that a patient in a nursing home

would be subject to Federal preemption on this issue if the resident paid by

credit card as the bank that issued the credit card or processed the credit card

may have been out-of-state, or if the resident paid cash because the bills were

printed by the Fed. In what case could a transaction ever be considered an

in-state transaction? In such case, it would invalidate the State’s ability to

charge sales tax as well.

If the Court were to accept premise (2), this law could be stretched such

that your visit to your own doctor could be governed by a non-conforming

arbitration provision, because your doctor treats an out-of-state patient or

accepts Federal funds on even a single patient. For that matter, the doctor

BRIEF OF APPELLEE PAGE 34

could enjoy preemption because he/she buys supplies from an out-of-state

vendor, hence engaging in interstate commerce.

While it seems ridiculous enough that the Courts agree with the

proposition that accepting federal funding for a patient constitutes interstate

commerce when the patient and health care facility are both from the same

state, stretching these laws to the limit that is done so in Appellants’ Motion

will radically alter states’ rights and the relationship of a patient to his/her

health care provider irreparably and destructively.

CONCLUSION

This is a very simple situation. Plaintiff Shawn Frank was totally

incapacitated at the time of his admission to Oakcrest Manor. This fact has

been found as a matter of law by the Probate Court of Travis County twice.

The Appellants are asking this Court to find a contract between a nursing

home and its totally incapacitated resident enforceable, which was signed

without the presence of a guardian or an attorney. This is simply impossible

and conflicts with contract law.

The evidence clearly establishes Plaintiff lacked capacity when he

executed the agreement at issue, first through Appellants’ own records made

immediately upon Plaintiff’s admission to Oakcrest Manor, second, the

Probate Court’s independent medical examiner (Dr. Roger McRoberts), and

as well through the expert testimony of David E. Mansfield, M.D. and also

BRIEF OF APPELLEE PAGE 35

through the testimony of Plaintiff’s mother, Peggy Barba. Further, the only

expert medical evidence in this case proves that he did not, and that, given

Plaintiff’s condition, he could have appeared to have had capacity even

though medically he did not.

Appellants’ only responses to Appellee’s capacity arguments are that:

(1) there is no evidence that Plaintiff was incapacitated at the date and time

Plaintiff executed the agreement, and (2) Plaintiff “seemed fine” to Terry

Rowan, Oakcrest Manor’s administrator, and a person with no personal

knowledge of Plaintiff when he was admitted, and no medical expertise

whatsoever. The attached evidence establishes both objections without

merit.

Even assuming Appellee had capacity, which he did not, Appellants’

Federal preemption argument likewise fails. This is a case involving a citizen

and resident of the State of Texas and a Texas nursing home. Appellants’

attempt to create a Federal issue due to Appellee’s status as a Texas Medicaid

recipient stretches the law on this issue as well as creates far reaching public

policy implications. The law simply does not permit this result.

PRAYER

Appellee Peggy Barba, as Guardian of S.F., respectfully requests that

this Court confirm the order of the trial court denying Appellants’ Motion to

BRIEF OF APPELLEE PAGE 36

Compel Arbitration and for such other and further relief to which she is

entitled.

Respectfully submitted,

RAMSEY LAW GROUP

Jeff Diamant (Of Counsel)
State Bar No. 00795319
John C. Ramsey
State Bar No. 24027762
Joel Pardo
State Bar No. 24083617
7521 Westview Drive
Houston, TX 77055
Phone: (713) 489-7577
Fax: (888) 858-1452
Email: john@ramseylawpc.com
Email: jeff@ramseylawpc.com
Email: joel@ramseylawpc.com
ATTORNEYS FOR PLAINTIFF

Jacques G. Balette
MARKS, BALETTE, GEISSEL &
YOUNG, PLLC
State Bar No. 00798004
10000 Memorial Drive, Suite 760
Houston, Texas 77024
Phone: (713) 681-3070
Fax: (713) 681-2811
Email: JacquesB@marksfirm.com

BRIEF OF APPELLEE PAGE 37

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument
was served on the below parties in accordance with the Texas Rules of
Appellate Procedure 9.5(c) on September 26, 2016 via electronic mail,
facsimile and/or certified mail, return receipt requested.

Breck Harrison
Jack Skaggs
Jorge A. Padilla
Jackson Walker, LLP
100 Congress, Suite 1100
Austin, Texas 78701
Attorney for Appellants

______________________
Jeff Diamant

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Texas Rules of
Appellate Procedure 9.4(i) because, exclusive of the matters excepted from
the word count limitations of the Rule, this brief contains 8,248 words.

______________________
Jeff Diamant

BRIEF OF APPELLEE PAGE 38

NO. 03-16-00514-CV

IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS
AT AUSTIN

OAK CREST MANOR NURSING HOME, LLC, DAY LIFE
CORPORATION, TERRY ROWAN, NORMA ELEMENTO, AND
GROVER MOORE,
Appellants,

v.

PEGGY BARBA, AS GUARDIAN OF S.F.,
Appellee.

On Appeal from the Probate Court,
Travis County, Texas, Cause No. C-1-PB-16-00776

APPENDIX

A.  Records of Oakcrest Manor Regarding Shawn Frank

B.   Affidavit of Peggy Barba

C.  Physician’s Certificate of Medical Examination (completed by Dr.
McRoberts)

D.  Affidavit of David E. Mansfield, M.D.

E.   Selected Documents from the 1,334-page Texas Medicaid State Plan,
Attorney General’s Certification

BRIEF OF APPELLEE PAGE 39

APPENDIX TAB A
FACE SHEET Page I of I
12/13/13 4:12PM
Oakcrest Manor Nursing Home RI6100A

Res No.: Admit Date: 12/13/13 3:00 pm Admitted From: 02
Preferred Name: Loc: E6 B ReAdmitted: Readmitted From:
Plr: Discharged: Discharged To:
Sex: M Discharge Status:
D.O.B.: SSN:

MEDICAL INFORMATION
Med Record no: Allergies: AdmitDx:
Height: in. BACLOFE;W
Admit Weiglrt: lbs. Discharge Dx:
PrimaryP!rys: CHUDLEIGH, JAMES (512) 699-8819
FNP DAVID PFEIFER 512-291-7493 Current Dx:
LEANDER, TX 78641 296.52 Bipolar Affec, Depr-Mod

AJfenmte Plrys: PFERIFER, FNP, DAVID (913) 486-1801 295.40 Ac Schizophrenia-Unspec
76201 DEER RUN 561.58 GERD
AUSTIN, TX 78641 300.9 Neurotic Disorder Nos
Referring Phys: ( )- 281.0 Pernicious Anemia

QL Hospital stay:
From/Thru:
Rehab Potential: GOOD

Admitted with: 0 Catheter preselll O Contractures 0 Restraillf Orders D Pressure Sores (other titan Stage 1)
0 Received pneumococcal vaccine D Received influenza immunization 0 In facility

DEMOGRAPHICS SERVICE PROVIDERS and PREFERENCES
Marital Status:Never married Couuty: TRAVIS Pharmacy AMERICAN PHARMACEU" (512) 928-8282
Race: Caucasian Primary Lang: English Dentist Jackson DDS, David M (512) 535-5530
Religion: N/A Birtlrplace: CA Optometrist Baker 0. D., Linda L (210) 479-7907
Occupation: DISABLED Podiatrist HeralthSync (836) 436-0351
0 u.s. Citizen 0 MilitarySrv. Psychiatrist FLOCA, FRANKS (512) 795-4344
1-..;;;;;..._ _ _ VERI CARE (800) 257-8715
BILLING INFORMATION Phys, Occu Ther SENIOR REHAB SOLUTIC (888) 210-9758
AIR Type: FV CMG: Resources:
Speech Therapi! SENIOR REHAB SOLUTIC (888) 210-9"158
Medicare#: Ancillary AIR Ty'Pe:
Church NO PREFFERENCE
Medicaid#: Ancillary Co-b1s AIR Type:
Hospital SETON NORTH WEST HC (512) 324-4455
Ins 1:
Grp: Ambulance ACADIAN (512) 926-5652
Pol:
Mortuary AUSTIN-PEEL AND SON (512) 419-7224
Ins 2:
Pol: Grp: Part D Plan:
Recurring Room Cltg: Effective: RxBIN: RxPCN:
0 AdvBill D Resident is SelfResponsible
Card/wider ID:
Trust Fund: 0 Apply Interest 0 Max Balance Reminder Group No: Issuer:

RESPONSIBLE PARTY SECOND CONTACT THIRD CONTACT

Relationship: Mother Relationship: Relationship:
Pltoite: (Day) Phone: (Day) Phone: (Day)
(Eve) (Eve) (Eve)
(Cell) (Cell) (Cell)
ADDITIONAL INFORMATION
DNR Status FULL CODE
Advanced Directive NONE
Nursing Alert SMOKER
Medicaid ID
SSN
C NTIAL OCM_Frank 00077
RESIDENT- DATA COLLECTION

Indicate below all body marks such as old or
recent scars (surgical and other), bruises, d·is-
cotorations, abrasions, pressure ulcers or any
questionable markings. Indicate size, depth (in
PAIN ems), color and drainage.
(As described by resident/representative) COMMENTS: ____________________
Fre51uency:
11 No pain D Daily; but not
D Less than daily constant
D Constant
Location: _ _ _ _ _ _ _ _ _ __
Intensity:
D No pain D Severe pain
D Mild pain D Horrible pain SPECIAL TREATMENTS & PROCEDURES:
D Distressing pain D Excruciating
pain
Pain on admission?
D No DYes, describe _ _ _ _ __

Paralysis/paresis-site, degree _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Contracture(s)-site, degree_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Congenital anomalies _ _ _ _ _ _ _ _ _ _ -=--=-----=---------
Prosthesis: D Glasses D Dentures: D Upper D Lower D Hearing aid
Other==================================================~
TRA)ISFERS·ABLE TO TRANSFER AMBULATION-ABLE TO AMBULATE SUPPORTIVE DEVICES USED:
~Independently 1\lfndependently D Elastic hose D Footboard
D 1 person assist D 1 person assist D Bed cradle D Air mattress
D 2 person assist D 2 person assist D Sheepskin D Eggcrate
D Total assist D With device D Hand rolls D Trapeze
WEJGHT BEARING-ABLE TO BEAR
Type_ _ _ _ _ _ _ _ _ __ DSiing
'16 Full weight D Wheelchair only Traction: Where _ _ _ _ _ __
D Partial weight D Wheelchair/propels self When,_ _ _ _ _ __

Ot~hie~rijij~i~ijijiji
D Non-weight bearing D Bedrest 0

0 Continued on Reverse

CONFIDENTIAL OCM_Frank 00093
OAKCREST MANOR NURSING HOME DISCHARGE SUMMARY

.,
"

Condition on discharge:

..-o-

Discharge diagnosis(es):
'Scutvv- - 0 o~( l \0. ~

I
'.
Prognosis:

Date

CONFIDENTIAL OCM_Frank 00076
(

Record No.

Form 62SP 0 BRIGGS, Des Moines, lA 50306 (800) 247-Zl43 www.BriggsCorp.com
R404 PRINTED fll U.SA •
CONFIDENTIAL NURSE'S NOTES
OCM_Frank 00135
All Disciplines to Use
Pro ress Notes
Date Time Notes should be signed

Attend ing Physician: Room #
. ~-··- ~-··-

NFIDENTIAL OCM_Frank 00151
10/1712011 -Progress Notes 1 or 2
(_

Personal

Gene~lappearance: --~~~~,r--~~~~~f---~~~~~~-r~;,~TT~~~~--~~
~~G~e;L~a~~~
0 Spanish

Emotional &aws; ~~~~41~~~~~~~~~~~~~-=~~~~~~~~~~~~~~~~~~

~ntme~I-~··-----~~~~~Jr----~~~~~--~------~--~----~---.--------------

Hearing: DAverage

Please Note How Did Resident React 1 Cope Wrth Any Physical And I Ot Sensory Losses

Social Background

\

CONFIDENTIAL OCM_Frank 00152
Cate: -----Name: - - - - - - - - - - - - - - - - - - OOB: +----Admission Date;----

Community Involvement (Clubs. Gov't, C:tc.): _

Military __ d_·---------------------::="'7•---ll--------------

If Supportive, C:xp\ain

of Resident

CONFIDENTIAL OCM_Frank 00153
APPENDIX TAB B
State of Texas §
§
Hays County §

AFFIDAVIT OF PEGGY BARBA

Before me, the undersigned authority, did personally appear the affiant
Peggy Barba, who upon being by me duly sworn, upon oath states the following:

"My name is Peggy Barba. I am over 18 years of age and competent to
provide this affidavit.

I am the mother of Shawn Frank. Shawn has had a history of mental illness
since at least 16 years old. He was diagnosed with schizophrenia and bipolar
disorder at least 15-20 years ago, to the best of my recollection. His diagnosis has
continued through today. Shawn was a schizophrenic and bipolar on the date
of his admission to Oakcrest Manor.

While Shawn was admitted to Shoal Creek Hospital, prior to his admission
to Oakcrest Manor, I received a call from a female case manager who informed
me that Shawn could not stay any longer at Shoal Creek Hospital and had to be
transferred to Oakcrest Manor. I was not given any decision or choice in this
matter, I was simply informed of the impending transfer by the case manager. I
was not Shawn's legal guardian at the time as he was an adult at that time.
Shawn was mentally incapacitated at the time and on the date of his admission
to Oakcrest Manor, and had been for many years prior.

Neither I nor any legal guardian for Shawn was present when he was
admitted to Oakcrest Manor and I was never informed that he had been required
to sign any paperwork, nor was I ever provided a copy of any such paperwork.
As his mother, and based on his mental diagnosis for many years, Shawn would
not have had capacity to understand any such paperwork or agreement on
December 13, 2014.

Approximately 1 week or less after his admission to Oakcrest Manor, I
went to visit my son. I was unhappy with his conditions and concerned for his
safety. So I immediately began finding out how to apply for legal guardianship
of Shawn, which I filed shortly thereafter.

I received a call from Shawn warning me that he was planning on eloping
from Oakcrest Manor and had intent to jump off a bridge about a day or so prior
to him jumping off the bridge that caused the injuries in this case. I immediately
called the Oakcrest Manor administrator and informed him of Shawn's call and
intent. He simply told me that Shawn was fine and getting his haircut and that
I had no reason to worry. I re-urged my request for them to watch Shawn
carefully, which was apparently disregarded. In fact, -I called the administrator
twice with this same warning and urging him to watch Shawn carefully. Then
Shawn eloped from Oakcrest Manor and jumped from a bridge. To my
knowledge, Oakcrest did not even know he was gone until about 9-lO:OOam the
next morning. In my call(s) with the administrator of Oakcrest Manor, I
reminded him that Shawn is suicidal and has a history of elopement and trying
to hurt himself.

Affiant Further Sayeth Not,

This instrument was acknowledged before me on the { day of July 2016.

otary u c, State of Texas
APPENDIX TAB C
PHYSICIAN'S CERTIFICATE OF MEDICAL EXAMINATION

In the Matter of the Guardianship of For Court Use Only
Court Assigned: _ _ _ _ _ __
an Alleged Incapacitated Person

To the Physician
The purpose of this form is to enable the Court to determine whether the individual
identified above is incapacitated according to the legal definition {set out on page 4},
and whether a guardian should be appointed to care for that per:;r. 'f~ /,.:.woN P..~~ Phone:
Office Address bO \ S I S~
~~rl--. r)C 'f'g.'vo\
[J'/'cs 0 N0-·-1 am a physician (u(rently licensed to practice In the State of Texas.
Proposed Ward's Name ~&utiL
Date of Birth Age. Gender ~ 0 F
ProposedWard'sCurrentResidence: wa,c& Dei- tre-;t MM\oy= IJ>!J.t wilt tl\.0-\:7 rezW("-
llast examined the Proposed Ward on --------\'-'I.,;"Wo..::;..___,, 2o__IL
at 1"'-.jl9'-'~'--""t:.Ar\=_,_'JLf-"S=J't'-'cL"""''-''*==:>=-----
If the mental ~iagnosis includes dementia, answer the following:
Cl YES \l'NO ---It would be in the Proposed Ward's best Interest to be placed in a secured faCility for the elderly
or a secured nursing facility that specializes in the care and treatment of people with dementia.
0 YES )l! NO --·It would be in the Proposed Ward's best interest to be administered medications appropriate tor
the care and treatment of dementia.
DYES ~0 ---The Proposed Ward currently has sufficient capacity to give informed consent to the
administration of dementia medications.

PAGElOF4

G 'd
PHYSICIAN'S CERTIFICATE OF MEDICAL EXAMINATION @evisian Novem~ 201J

4. Cognitive Deficits
a. The Proposed Ward is oriented to the following (check all that apply):
a'Person Zlime .af>lace D Situation
b. The Proposed Word has a deficit in the following areas (check all areas in which Proposed Ward has a deficit):
0---Short·term memory
o ... Long-term memory
o... Jmmediate recall
0--- Understanding and communicating (verbally or otherwise)
0-- Recognizing familiar objects and persons
D·- Performing simple calculations
D·- Reasoning logically
~-Grasping abstract aspects of his or her situation
~-Interpreting idiomatic expressions or proverbs
iii!'-· Breaking down complex tasks down into simple =....p!~====------­
,........._ &>k'?

9. AbilitY to Attend Court Hearing
DYES ti'No ----The Proposed Ward would be able to attend, understand, and participate in the hearing.
12!'YES [J NO ----Because of the Proposed Ward's incapacities, I recommend that the Proposed Ward~ appear
at a Court hearing.
Jlfves 0 NO--- Does any current medication taken by the Proposed Ward affect the demeanor of the Proposed
Ward or his or her ability to participate fully in a court proceeding?

10. What is the least restrictive placement that you consider is appropriate for the Proposed Ward:
1:¥-'- Nursing home level of care
D--- Memory care unit
£!'--Other 'f>'1&\,.;~T'f c.,P .J_,·,,. .,;,.,
OFFICIAL SEAL
Ci"dy t. Oakes
NOTARY l'IJBUC.Sfllle ofNewMIIilo
N¥.,.,...,_1bp!Jw ~1 2w ..Zo I 1:
1
APPENDIX TAB E
State: Texas
Date Received: 11 December, 2015
Date Approved: 8 January 2016
Date Effective: 1 October, 2015
Transmittal Number: TX 15-0035

15-0035 1/08/16 10/01/15
13-0057MM4
ORGANIZATION AND FUNCTIONS OF THE AGENCY AND
ORGANIZATION OF THE AGENCY

{HHSC) is the state :::~n•:::.nr'\1
the
i'"\\/ClrC"C>!FlM state health human
Commissioner of Health and Human

Legislature, Regular Session, 2003, the
into four new departments
departments the Department of State Health ....:or\/1/"'t:>~
Aging and Services (DADS), Department
(OARS), and Department of Family and l-lrntol"'~tl\ta ... aru•r•""'
operations four

Section .021 the Texas Government
administering federal medical
assistance are granted to
agency, HHSC final authority over the Medicaid
HHSC or out by the other nruar"'''n"
Within State Medicaid

as state

•
•
•
•
•
•
•
•
•
TEXAS l\fEDICAID OPERATING DEPARTl\IENTS

Governor

Single State Agency

Health and Human
Services Commission

Department of Department of Assistive and
and Disability Services Rehabilitative

Department Department
Family ,l'utedi Health

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4078788. Public record. Not legal advice.