# AMFM, LLC Commercial Holdings, LLC v. Kimberly Shanklin

> West Virginia Supreme Court · May 30, 2018 · 818 S.E.2d 882

URL: https://www.frixlaw.com/law-library/cases/4279730

## Case

- **Full name:** AMFM LLC; Commercial Holdings, LLC ; Integrated Commercial Enterprises, Inc; Manzanita Holdings, LLC; Lifetree, LLC; Wineberry, LLC ; Hillcrest Health Care Center, LLC, D/B/A Hillcrest Health Care Center; Tammy Fortney; And Matthew Poorman, Petitioners v. Kimberly SHANKLIN, ON BEHALF OF the ESTATE OF Lena NELSON, Respondent
- **Court:** West Virginia Supreme Court
- **Decided:** May 30, 2018
- **Citations:** 818 S.E.2d 882
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Ketchum, Workman
- **Nature of suit:** Tort, Contract, and Real Property
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4279730

## Opinion text

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2018 Term FILED
_______________
May 30, 2018
released at 3:00 p.m.
No. 17-0096 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA

AMFM LLC; COMMERCIAL HOLDINGS, LLC;
INTEGRATED COMMERCIAL ENTERPRISES, INC;
MANZANITA HOLDINGS, LLC; LIFETREE, LLC;
WINEBERRY, LLC; HILLCREST HEALTH CARE CENTER, LLC,

d/b/a HILLCREST HEALTH CARE CENTER;

TAMMY FORTNEY; and

MATTHEW POORMAN

Petitioners

v.

KIMBERLY SHANKLIN,

on behalf of the Estate of Lena Nelson,

Respondent

____________________________________________________________

Appeal from the Circuit Court of Kanawha County

The Honorable Carrie Webster, Judge

Civil Action No. 16-C-1071

REVERSED AND REMANDED WITH DIRECTIONS

____________________________________________________________

Submitted: January 10, 2018

Filed: May 30, 2018

Mark A. Robinson, Esq. James B. McHugh, Esq.
Ryan A. Brown, Esq. Michael J. Fuller, Jr., Esq.
Flaherty Sensabaugh Bonasso, PLLC D. Bryant Chaffin, Esq.
Charleston, West Virginia A. Lance Reins, Esq.
Counsel for Petitioners Kendra R. Fokakis, Esq.
McHugh Fuller Law Group PLLC
Hattiesburg, Mississippi
Counsel for Respondent
JUSTICE KETCHUM delivered the Opinion of the Court.

CHIEF JUSTICE WORKMAN dissents and reserves the right to file a dissenting
Opinion.
SYLLABUS BY THE COURT

1. “An order denying a motion to compel arbitration is an interlocutory

ruling which is subject to immediate appeal under the collateral order doctrine.” Syllabus

Point 1, Credit Acceptance Corp. v. Front, 231 W.Va. 518, 745 S.E.2d 556 (2013).

2. “When an appeal from an order denying a motion to dismiss and to

compel arbitration is properly before this Court, our review is de novo.” Syllabus Point 1,

W.Va. CVS Pharmacy, LLC v. McDowell Pharmacy, Inc., 238 W.Va. 465, 796 S.E.2d

574 (2017).
Justice Ketchum:

In this case we examine whether a durable power of attorney (“DPOA”)

provided an adult daughter with the authority to enter into an arbitration agreement with a

nursing home on her mother’s behalf. After review, we conclude the DPOA granted such

authority to the adult daughter. We therefore reverse the circuit court’s December 29,

2016, order, and remand this matter to the circuit court for entry of an order granting the

petitioners’ (“Hillcrest Nursing Home” or “nursing home”)1 motion to dismiss and to

compel arbitration.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2010, Lena Nelson (“Mother Nelson”) executed a DPOA that named her

son, Stephen Nelson, as her attorney-in-fact:

KNOW ALL MEN BY THESE PRESENTS: That I, LENA
NELSON, a widow of Darius Court on the Sycamore Branch
Road, Lake, Logan County, West Virginia, have made,
constituted, and appointed, and by these presents do hereby
make, constitute and appoint my son, STEPHEN NELSON,

1
The plaintiff named a number of corporations as defendants in this lawsuit. The
plaintiff alleged that these corporate defendants “engaged in the custodial care of . . .
individuals . . . in need of nursing care and treatment at Hillcrest Health Care Center.”
These corporations include Commercial Holdings, LLC; Integrated Commercial
Enterprises, Inc.; Manzanita Holdings, LLC; Lifetree, LLC; Wineberry, LLC; and
Hillcrest Health Care Center, LLC. The plaintiff also named two Hillcrest Health Care
Center administrators as defendants, Tammy Fortney and Matthew Poorman. For ease of
the reader, we refer to the petitioners collectively as “Hillcrest Nursing Home” or
“nursing home.”

1

of Lake, Logan County, West Virginia, my true and lawful
attorney, for me and in my name, place and stead[.]
The DPOA also stated: “If, for any reason, STEPHEN NELSON cannot or

will not serve as such, then I do hereby make, constitute, and appoint my daughter,

KIMBERLY SHANKLIN, of Charleston, Kanawha County, West Virginia, my true and

lawful attorney, for me and in my name, place and stead with all of the aforesaid

powers.” (Emphasis added).

On February 15, 2013, Mother Nelson was transferred from Charleston

Area Medical Center (“CAMC”) to Hillcrest Nursing Home. It is undisputed that Mother

Nelson was suffering from dementia and was unable to handle her own affairs when she

entered the nursing home. Mother Nelson’s daughter, Plaintiff Kimberly Shanklin

(“Kimberly”), accompanied Mother Nelson to Hillcrest Nursing Home and signed all of

the admission documents, including an arbitration agreement. Richard Osburn, the

nursing home’s admissions director, was also present during the admission process.

Another daughter of Mother Nelson’s, Regina Akers (“Daughter Regina”), met Mother

Nelson and Kimberly at the nursing home on the day of Mother Nelson’s admission.

According to Kimberly, Daughter Regina worked at Hillcrest Nursing Home. Mother

Nelson’s son, Stephen Nelson, was not present at the nursing home during the admission

process.

Mother Nelson was a resident of the nursing home from February 2013

through March 2016. Approximately one month after leaving the nursing home, Mother

Nelson died. In July 2016, Kimberly, on behalf of the estate of Mother Nelson, filed the

2

instant lawsuit against Hillcrest Nursing Home. The complaint alleged numerous causes

of action arising from the care and treatment Mother Nelson received during her

residency at the nursing home.2 In response, the nursing home filed a motion to dismiss

and to compel arbitration. Thereafter, the parties engaged in limited discovery regarding

the formation of the arbitration agreement.

As part of this limited discovery, Kimberly was deposed. Kimberly testified

that she had extensive experience in the medical field—she has worked as a paramedic

supervisor for five and a half years. Kimberly explained that her duties include

supervising fourteen units and that, “I run calls, make decisions, anything they need.”

Prior to her position as a paramedic supervisor, Kimberly was an EMT for approximately

twenty years.

Regarding Mother Nelson’s DPOA, Kimberly testified that she had

exercised a number of rights granted to her under the DPOA prior to Mother Nelson’s

admission to the nursing home. In fact, Kimberly began exercising these rights in 2011,

approximately two years before Mother Nelson’s admission to the nursing home. These

rights included endorsing checks and managing bank accounts for her mother. Kimberly

also arranged and consented to medical treatment for her mother, including signing forms

2
The causes of action alleged in the complaint include corporate negligence,
nursing home violations, medical malpractice, malice and/or gross negligence, fraud,
premises liability, violations of the West Virginia Consumer Credit and Protection Act,
and wrongful death.

3

related to medical care and treatment her mother received at two different hospitals,

Boone Memorial Hospital and CAMC.

Prior to Mother Nelson’s admission to the nursing home, Kimberly

completed and signed a “Pre-Admission Screening” form. The West Virginia

Department of Health and Human Resources (“DHHR”) requires this form to be

completed prior to placing a person in a skilled nursing facility. In paragraph 18 of the

“Pre-Admission Screening” form, “Kim Shanklin” authorized the release of her mother’s

medical information to the DHHR. Under the heading “Relationship,” Kimberly is listed

as “DPOA.” This portion of the form is dated “2/05/2013,” ten days prior to Mother

Nelson’s admission to the nursing home.

Kimberly testified that her mother was transferred directly from CAMC to

the nursing home on February 15, 2013. She explained that the family chose Hillcrest

Nursing Home over other potential facilities because Hillcrest “was closer to home.”

During the admission process, Kimberly signed the arbitration agreement and all of the

other admission forms on her mother’s behalf. Kimberly testified that the admissions

director, Richard Osburn, told her to write “DPOA” next to her signature on the

admission forms. When asked whether she told anyone at the nursing home that she was

her mother’s DPOA, Kimberly stated, “No, I mean, I would assume they had a copy of

the Durable Power of Attorney paper.”

Richard Osburn was also deposed as part of this limited discovery. He

stated that when admitting a resident who was not competent, “the first thing you would

4

have to do, of course, would be to verify that who, whoever is signing on behalf of that

patient has the legal right to do so. . . . And, of course, that person or persons had either

presented Medical Power of Attorney papers, POA papers, Durable Power of Attorney

papers, to either our social worker or someone in the facility.” Mr. Osburn testified that

Kimberly accompanied Mother Nelson to the facility and signed the admission forms on

her mother’s behalf, including the arbitration agreement. Mr. Osburn testified that

Kimberly “presented herself and the papers as a Durable Power of Attorney, not – I’m

quite certain that that’s what it was.” Additionally, Mr. Osburn testified that Stephen

Nelson was not present when Mother Nelson was admitted to the nursing home.

The arbitration agreement that Kimberly signed included the following

paragraph:

The parties have reviewed the Arbitration Agreement,
and have had an opportunity to ask questions of the Facility
about this Agreement. The Resident further acknowledges
that he/she fully understands the content of this Agreement
and the limitations on the right to seek the resolution of any
dispute in court. The Resident affirmatively states that
he/she is the Resident or a person legally authorized by
law or by the Resident to execute this Agreement and
accept its terms.

(Emphasis added). Kimberly signed her initials (“KDS”) in a line directly under this

paragraph in the arbitration agreement.

Another nursing home admission document produced during this limited

discovery is entitled “Admission Record Hillcrest Health Care Center.” This document is

dated February 15, 2013, the date of Mother Nelson’s admission to the nursing home.

5

Under a section labelled “Contacts,” the name “Kim Shanklin” is listed with the

following description: “Emergency Contact # 1, Responsible Party (Financial), Successor

POA-Care.” Also listed in the “Contacts” section are two of Mother Nelson’s other

daughters, “Regina Akers” and “Judy.” However, neither of these daughters were listed

as “responsible parties” or as “POA-Care.” Mother Nelson’s son, Stephen Nelson, is not

listed as a contact on this document.

This limited discovery also revealed that Kimberly continued to exercise

the rights granted to her under the DPOA, including making medical decisions on her

mother’s behalf, throughout Mother Nelson’s residency at the nursing home. Records

from the nursing home demonstrate that Kimberly took part in a number of

“multidisciplinary care conferences” and was regularly in contact with the nursing home

regarding all aspects of her mother’s care. Kimberly was listed on these various medical

records from the nursing home as the “responsible party.”

Additionally, Kimberly continued to serve as Mother Nelson’s DPOA after

Mother Nelson left Hillcrest. Kimberly is listed as Mother Nelson’s “MPOA” in a

medical record from CAMC dated December 1, 2015, which provides, “Pt.’s [Mother

Nelson’s] daughter Kim is MPOA and states that she does not wish for PT. to return to

Hillcrest and reports that she would like her mother to be moved to another facility.”

Further, after Mother Nelson left Hillcrest Nursing Home, she entered another facility,

Montgomery General Elderly Care. Kimberly is identified as Mother Nelson’s “POA–

6

Health Care”, “POA-Financial,” “Agent,” and “Emergency Contact” in documents from

Montgomery General Elderly Care.

One final note on the limited discovery period—Kimberly obtained an

affidavit from Stephen Nelson that provided he was never contacted by Hillcrest Nursing

Home about his mother’s admission or about the arbitration agreement. In the affidavit,

Stephen Nelson states “I was at all times material hereto willing and able to perform my

duties as Durable Power of Attorney for my mother.”

At the conclusion of this limited discovery period, Kimberly argued that the

arbitration agreement was not enforceable because she did not have the actual authority

to enter into an arbitration agreement on Mother Nelson’s behalf. In essence, Kimberly

argued that she was the “alternate” DPOA and, as such, did not have the authority to bind

Mother Nelson to the arbitration agreement. The circuit court agreed with Kimberly and

entered an order denying the motion to dismiss and to compel arbitration. The circuit

court determined that the nursing home had the burden of demonstrating that Stephen

Nelson “could not or would not” serve as the DPOA before it could rely on Kimberly’s

authority as the “alternate” DPOA. The circuit court’s order explains:

The Court . . . focuses on whether the Defendants have
met their burden of demonstrating that [Kimberly] Shanklin
had the requisite authority to waive [Mother] Nelson’s right
to a jury trial and enter into the arbitration agreement. In this
regard, based on the DPOA executed by [Mother] Nelson, the
Defendants would need to show that Stephen Nelson “cannot
or will not” serve as her DPOA at the time of admission.

The Court looks to see what, if any, evidence has been
presented that Stephen Nelson “cannot or will not” serve as

7
his mother’s DPOA. This is where the Court finds that the
Defendants have not met their burden. There is no evidence
that anyone on behalf of the Defendants inquired about
Stephen Nelson or whether he was able and available to act
on his mother’s behalf on February 15, 2013.

The only evidence in the record is testimony from
[Kimberly] Shanklin that her brother lived locally and was
available and the affidavit of Stephen Nelson that no one
attempted to contact him at the time of his mother’s
admission.

The nursing home now appeals the circuit court’s order denying its motion

to dismiss and to compel arbitration.

II. STANDARD OF REVIEW

The nursing home challenges the circuit court’s denial of their motion to

dismiss and to compel arbitration. In Syllabus Point 1 of Credit Acceptance Corporation

v. Front, 231 W.Va. 518, 745 S.E.2d 556 (2013), we held that “[a]n order denying a

motion to compel arbitration is an interlocutory ruling which is subject to immediate

appeal under the collateral order doctrine.” Further, “[w]hen an appeal from an order

denying a motion to dismiss and to compel arbitration is properly before this Court, our

review is de novo.” Syllabus Point 1, W.Va. CVS Pharmacy, LLC v. McDowell

Pharmacy, Inc., 238 W.Va. 465, 796 S.E.2d 574 (2017).

8

III. ANALYSIS

The issue in this appeal—whether the circuit court erred by denying the

motion to dismiss and to compel arbitration3—requires us to examine our DPOA law. In

general, “[a] ‘power of attorney’ is ‘an instrument granting someone authority to act as

agent or attorney-in-fact for the grantor.’” In re Richard P., 227 W.Va. 285, 293, 708

S.E.2d 479, 487 (2010) (quoting Black’s Law Dictionary 1290 (9th ed. 2009)). See also,

Vance v. Vance, 192 W.Va. 121, 123, 451 S.E.2d 422, 424 (1994) (“[A] power of

attorney creates an agency relationship, and this establishes a fiduciary relationship

between the principal, or the party who granted the power, and the agent, or the party

who receives the power.”); Milner v. Milner, 183 W.Va. 273, 277, 395 S.E.2d 517, 521

(1990) (“[W]hen a competent adult grants a power of attorney to another, an agency

relationship between the two is created, and the principal and agent are ultimately

responsible for the actions arising out of the power of attorney and not some third party

who is without knowledge of any wrong doing.”); Thompson v. Stuckey, 171 W.Va. 483,

487, 300 S.E.2d 295, 299 (1983) (“A principal is bound by acts of an agent if those acts

3
This Court has held that “[w]hen a trial court is required to rule upon a motion to
compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-307 (2006), the
authority of the trial court is limited to determining the threshold issues of (1) whether a
valid arbitration agreement exists between the parties; and (2) whether the claims averred
by the plaintiff fall within the substantive scope of that arbitration agreement.” Syllabus
Point 2, State ex rel. TD Ameritrade, Inc. v. Kaufman, 225 W.Va. 250, 692 S.E.2d 293
(2010).

9

are . . . within the authority the principal has actually given his agent[.]”); Kanawha

Valley Bank v. Friend, 162 W.Va. 925, 928, 253 S.E.2d 528, 530 (1979) (“A power of

attorney creates an agency and this establishes the fiduciary relationship which exists

between a principal and agent.”).

A durable power of attorney is a power of attorney that does not terminate

by the principal’s incapacity. “The durable power of attorney is a deceptively simple

document that allows one person to handle the affairs of an incapacitated person without

court supervision. It is merely an agency relationship, established by a written document,

that continues during the principal’s incapacity.” Karen E. Boxx, The Durable Power of

Attorney’s Place in the Family of Fiduciary Relationships, 36 Ga. L.Rev. 1 (2001).

Our Uniform Power of Attorney Act (“UPAA”), W.Va. Code §§ 39B-1-

101 et seq. [2012], defines the term “durable” as follows: “‘Durable,’ with respect to a

power of attorney means not terminated by the principal’s incapacity.” W.Va. Code §

39B-1-102(2) [2012]. Further, “[a] power of attorney created under [the UPAA] is

durable unless it expressly provides that it is terminated by the incapacity of the

principal.” W.Va. Code § 39B-1-104 [2012].

The instant case concerns whether the nursing home could rely on

Kimberly to act as Mother Nelson’s DPOA during the admission process. To resolve this

question, we examine our UPAA.

We begin with a review of our rules of statutory construction. This Court

has held that in deciding the meaning of a statutory provision, “[w]e look first to the

10

statute’s language. If the text, given its plain meaning, answers the interpretive question,

the language must prevail and further inquiry is foreclosed.” Appalachian Power Co. v.

State Tax Dep’t of W. Va., 195 W.Va. 573, 587, 466 S.E.2d 424, 438 (1995); see also

Syllabus Point 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970) (“Where

the language of a statute is free from ambiguity, its plain meaning is to be accepted and

applied without resort to interpretation.”); and Syllabus Point 2, State v. Epperly, 135

W.Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision which is clear and

unambiguous and plainly expresses the legislative intent will not be interpreted by the

courts but will be given full force and effect.”).

Additionally, this Court has held that “[a] statute is open to construction

only where the language used requires interpretation because of ambiguity which renders

it susceptible of two or more constructions or of such doubtful or obscure meaning that

reasonable minds might be uncertain or disagree as to its meaning.” Sizemore v. State

Farm Gen. Ins. Co., 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal

quotations and citation omitted).

Our main inquiry is whether the nursing home could rely on Kimberly to

act as Mother Nelson’s DPOA during the admission process. The UPAA addresses when

a person may accept and rely upon an acknowledged DPOA:

A person who in good faith accepts an acknowledged
power of attorney without actual knowledge that the power of
attorney is void, invalid or terminated, that the purported
agent’s authority is void, invalid or terminated, or that the
agent is exceeding or improperly exercising the agent’s
authority may rely upon the power of attorney as if the power

11
of attorney were genuine, valid and still in effect, the agent’s
authority were genuine, valid and still in effect, and the agent
had not exceeded and had properly exercised the authority
except as to a conveyance of interests in real property where
the principal has previously filed a notice of termination of
the power of attorney in the office of the clerk of the county
commission in the county in which the property is located.

W.Va. Code § 39B-1-119(c) [2012].

The nursing home argues that pursuant to W.Va. Code § 39B-1-119(c), it

“had no duty to question [Kimberly’s] authority to act as successor agent. To the

contrary, without actual knowledge that the durable power of attorney is in some way

defective, Hillcrest [Nursing Home] can act in good faith on the representations made by

[Kimberly] when she admitted her mother to the facility.” Conversely, Kimberly argues

that W.Va. Code § 39B-1-119(c) does not apply to successor agents. Instead, according

to Kimberly, the UPAA’s exclusive provision governing successor agents is contained in

W.Va. Code § 39B-1-111(b). Thus, the first issue we must resolve is whether the term

“agent” in W.Va. Code § 39B-1-119(c), includes a successor agent.

Kimberly was listed as the successor agent in Mother Nelson’s DPOA. The

UPAA addresses successor agents in W.Va. Code § 39B-1-111(b):

(b) A principal may designate one or more successor agents
to act if an agent resigns, dies, becomes incapacitated, is not
qualified to serve, or declines to serve. A principal may grant
authority to designate one or more successor agents to an
agent or other person designated by name, office or function.
Unless the power of attorney otherwise provides, a successor
agent:

(1) Has the same authority as that granted to the original
agent; and

12

(2) May not act until all predecessor agents have resigned,
died, become incapacitated, are no longer qualified to serve,
or have declined to serve.

The UPAA defines the term “agent” in W.Va. Code § 39B-1-102(1) [2012]

as follows:

(1) “Agent” means a person granted authority to act for
a principal under a power of attorney, whether denominated
an agent, attorney-in-fact or otherwise. The term includes an
original agent, coagent, successor agent and a person to
which an agent’s authority is delegated.

(Emphasis added).

Because this definition expressly includes a “successor agent,” we find that

the term “agent” in W.Va. Code § 39B-1-119(c) includes a successor agent. We find no

support for Kimberly’s argument that W.Va. Code § 39B-1-111(b) is the sole provision

that applies to a successor agent. Neither that code section, nor W.Va. Code § 39B-1-119

include any such limitation and we decline to read into the UPAA that which it does not

state. “It is not for this Court arbitrarily to read into a statute that which it does not say.

Just as courts are not to eliminate through judicial interpretation words that were

purposely included, we are obliged not to add to statutes something the Legislature

purposely omitted.” Syllabus Point 11, Brooke B. v. Ray, 230 W.Va. 355, 738 S.E.2d 21

(2013). Instead, based on the clear, unambiguous definition of agent set forth in W.Va.

Code § 39B-1-102(1), we find that W.Va. Code § 39B-1-119(c) applies to the instant

case.

13

The nursing home accepted the DPOA from Kimberly at the time of

Mother Nelson’s admission and relied on her authority. Pursuant to W.Va. Code § 39B-

1-119(c), the nursing home could rely on the DPOA as long as it was without actual

knowledge (1) that the DPOA was void, invalid or terminated, (2) that Kimberly’s

authority was void, invalid or terminated, or (3) that Kimberly was exceeding or

improperly exercising her authority. Upon review, we find that the nursing home could

rely on Kimberly’s authority to serve as her mother’s DPOA.4

First, it is undisputed that Mother Nelson’s DPOA was not “void, invalid or

terminated” at the time of her admission to the nursing home. The next two factors

4
West Virginia Code § 39B-1-119(c), contained in our UPAA, is consistent with
the model Uniform Power of Attorney Act which was adopted in 2006. The comment
section of Section 119 of the Uniform Power of Attorney Act provides:

Section 119 permits a person to rely in good faith on the validity of the
power of attorney, the validity of the agent’s authority, and the
propriety of the agent’s exercise of authority, unless the person has
actual knowledge to the contrary (subsection (c)). Although a person is
not required to investigate whether a power of attorney is valid or the
agent’s exercise of authority proper, subsection (d) permits a person to
request an agent’s certification of any factual matter (see Section 302 for a
sample certification form) and an opinion of counsel as to any matter of
law. . . . Subsection (f) states that for purposes of Sections 119 and 120, a
person is without actual knowledge of a fact if the employee conducting the
transaction is without actual knowledge of the fact.

Unif. Power of Attorney Act, §119 (2006) (emphasis added).

14

require an examination of whether Kimberly had the authority5 under the DPOA to enter

into the arbitration agreement on her mother’s behalf.

Under W.Va. Code § 39B-1-111(b), a successor agent may act once all of

the predecessor agents have “resigned, died, become incapacitated, are no longer

qualified to serve, or have declined to serve.” Kimberly argues that her authority to act as

Mother Nelson’s DPOA “had to be triggered by Stephen Nelson’s inability or

unwillingness to continue to serve as his mother’s attorney-in-fact.” Because Stephen

Nelson was not unable or unwilling to serve as his mother’s DPOA, according to his

5
This issue concerns whether Kimberly had the actual authority to enter into the
arbitration agreement with the nursing home on her mother’s behalf. There is no claim
that this matter concerns apparent authority. In Syllabus Point 1 of General Electric
Credit Corporation v. Fields, 148 W.Va. 176, 133 S.E.2d 780 (1963), this Court held the
following with regard to apparent authority: “One who by his acts or conduct has
permitted another to act apparently or ostensibly as his agent, to the injury of a third
person who has dealt with the apparent or ostensible agent in good faith and in the
exercise of reasonable prudence, is estopped to deny the agency relationship.” By
contrast,

an actual agent is one who, expressly or by necessary
implication, is authorized to act for the principal. Actual
authority may be defined as the power which a principal
intentionally confers upon the agent or intentionally or by
lack of ordinary care allows the agent to believe he or she
possesses. Thus, an agent’s actual authority requires action by
the principal, expressly or by implication granting the agent
the authority to act on the principal’s behalf. Such authority is
created by written or spoken words or other conduct of the
principal, reasonably interpreted.

2A C.J.S. Agency § 145 (2018) (footnotes omitted).

15

affidavit, Kimberly argues that she did not have the actual authority to enter into the

arbitration agreement on her mother’s behalf. By contrast, the nursing home argues that

Kimberly had the authority, under the plain language of the DPOA, to enter into the

arbitration agreement. In fact, according to the nursing home, Kimberly exercised her

rights and duties under the DPOA before, during, and after Mother Nelson’s admission to

the nursing home. After review, we agree with the nursing home.

The record demonstrates that Kimberly consistently exercised the rights

and duties granted to her under the DPOA on Mother Nelson’s behalf before, during, and

after the nursing home admission process. Conversely, the record is devoid of any

instance of Stephen Nelson exercising any rights or duties granted to him under Mother

Nelson’s DPOA.6

Kimberly began exercising the rights and duties granted to her under the

DPOA approximately two years prior to Mother Nelson’s admission to the nursing home.

These duties and rights included 1) managing Mother Nelson’s financial affairs, 2)

6
According to W.Va. Code § 39B-1-113 [2012], “Except as otherwise provided in
the power of attorney, a person accepts appointment as an agent under a power of
attorney by exercising authority or performing duties as an agent or by any other
assertion or conduct indicating acceptance.” Notwithstanding Stephen Nelson’s affidavit
that he was “at all times material hereto willing and able to perform my [DPOA] duties,”
the record does not contain any examples of Stephen Nelson exercising any duties or
rights granted to him under the DPOA before, during, or after Mother Nelson’s admission
to the nursing home.

16

arranging medical treatment for her mother at two different hospitals, and 3) consenting

to medical care her mother received.

The most relevant instance of Kimberly exercising her authority under the

DPOA prior to Mother Nelson’s admission to the nursing home involved the “Pre-

Admission Screening” form. Ten days before Mother Nelson’s admission to the nursing

home, Kimberly, rather than Stephen Nelson, completed and signed the “Pre-Admission

Screening” form required by the DHHR prior to placing a person in a skilled nursing

facility. Kimberly, rather than Stephen Nelson, is identified in this form as the “DPOA.”7

This form was sent to the nursing home prior to Mother Nelson’s admission. Thus, at the

time the nursing home relied on Kimberly to act as her mother’s DPOA, it had this

DHHR approved document that identified Kimberly, rather than Stephen Nelson, as

Mother Nelson’s DPOA. Additionally, the nursing home had the DPOA itself that

provided in clear, unambiguous language that Kimberly was permitted to act on her

mother’s behalf “[i]f, for any reason, STEPHEN NELSON cannot or will not serve[.]”

Next, while our main inquiry concerns whether the nursing home could rely

on Kimberly’s authority at the time she signed the arbitration agreement, we note that

7
If this Court accepted the argument that Kimberly was not permitted to act under
the DPOA because Stephen Nelson was willing and able to perform his “DPOA duties”,
that would imply that all of the actions Kimberly performed under the DPOA in the two
years prior to Mother Nelson’s admission to the nursing home were improper. Stated
another away, this would mean that two hospitals, various financial institutions, and the
DHHR all erred by relying on Kimberly’s authority to act under the DPOA.

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subsequent to Mother Nelson’s admission to the nursing home, Kimberly, rather than

Stephen Nelson, continued to serve as Mother Nelson’s DPOA. Throughout Mother

Nelson’s stay at the nursing home, Kimberly was in regular contact with the nursing

home and made numerous medical care and treatment decisions on her mother’s behalf.

Further, Kimberly, rather than Stephen Nelson, is listed as Mother Nelson’s “MPOA” in

a medical record from CAMC dated December 1, 2015. This CAMC record provides

“Pt.’s [Mother Nelson’s] daughter Kim is MPOA and states that she does not wish for

PT. to return to Hillcrest and reports that she would like her mother to be moved to

another facility.” Also, after Mother Nelson left Hillcrest Nursing Home, she entered

another facility, Montgomery General Elderly Care. Kimberly, rather than Stephen

Nelson, is identified as Mother Nelson’s “POA–Health Care”, “POA-Financial,”

“Agent,” and “Emergency Contact” in documents from Montgomery General Elderly

Care.

In sum, the record clearly establishes that Kimberly exercised her rights and

duties under the DPOA 1) for two years prior to the nursing home admission, 2) during

the nursing home admission process, 3) throughout Mother Nelson’s residency at the

nursing home, and 4) after Mother Nelson left Hillcrest and moved into Montgomery

General Elderly Care. Conversely, there is no evidence that Stephen Nelson exercised

any rights and duties granted to him under the DPOA—his inaction demonstrates that he

declined to serve as Mother Nelson’s DPOA. Because Stephen Nelson declined to serve,

and because Kimberly acted as her mother’s DPOA from 2011 through 2016, we

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conclude that Kimberly had the authority to enter into the arbitration agreement with the

nursing home. Based on this conclusion, we find that when Kimberly signed the

arbitration agreement, her authority was not “void, invalid or terminated,” nor was she

“exceeding or improperly exercising her authority.” Therefore, under the plain language

of W.Va. Code § 39B-1-119(c), the nursing home was permitted to rely on Kimberly’s

authority as Mother Nelson’s DPOA when Kimberly signed the arbitration agreement on

her mother’s behalf.

IV. CONCLUSION

The circuit court’s December 29, 2016, order is reversed and this matter is

remanded to the circuit court for entry of an order granting the nursing home’s motion to

dismiss and to compel arbitration.

Reversed and Remanded With Directions.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4279730. Public record. Not legal advice.