Scott Rowan v. Brookdale Sr Living Comm.

Filing

OPINION filed: We AFFIRM the district court s order, decision not for publication. Damon J. Keith, Circuit Judge; Deborah L. Cook (authoring), Circuit Judge and David W. McKeague, Circuit Judge.

Case: 15-1793

Document: 28-2

Filed: 05/09/2016

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0247n.06
Case No. 15-1793
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
SCOTT ROWAN, next friend of George
Rowan,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff-Appellant,
v.
BROOKDALE SENIOR LIVING
COMMUNITIES, INC., dba Wynwood of
Portage,
Defendant-Appellee.

May 09, 2016
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
MICHIGAN

BEFORE: KEITH, COOK, and McKEAGUE, Circuit Judges.
COOK, Circuit Judge. George Rowan, by Scott Rowan, his son and next friend, appeals
the district court’s order granting Brookdale Senior Living Communities, Inc.’s motion to
compel arbitration and dismissing the case. Rowan contends the district court erred in discerning
no genuine issue of material fact regarding the validity or the enforceability of the arbitration
clause. Disagreeing, we AFFIRM.
I.
After a stroke diminished his physical and mental functioning, Rowan Sr. moved into an
assisted-living facility operated by Brookdale. He struggled with this new living arrangement
and one evening wandered from the facility to a nearby residential subdivision. He tripped and

Case: 15-1793

Document: 28-2

Filed: 05/09/2016

Page: 2

Case No. 15-1793
Rowan v. Brookdale Senior Living Communities, Inc.
fell on a resident’s driveway, leaving him unable to move. Later that night, the resident pulled
out of the driveway and ran him over, causing severe injuries. Rowan, his father’s next friend,
sued Brookdale for negligence, gross negligence, and fraud.
Brookdale moved to compel arbitration, citing the Residency Agreement that Rowan Sr.
signed when he moved in. Rowan opposed arbitration, contesting the validity of the Residency
Agreement on grounds that his father lacked mental competence to contract. And even if his
father were competent when signing, Rowan said that various contract defenses would prevent
enforcement of the arbitration clause. The district court granted Brookdale’s motion to compel
arbitration and dismissed the case, finding the evidence insufficient to raise a genuine issue of
material fact regarding the validity or enforceability of the arbitration clause. This appeal
followed.
II.
As applicable here, before compelling arbitration a court must determine whether a valid
arbitration agreement exists and whether the dispute falls within that agreement’s scope. See
Fazio v. Lehman Bros., Inc., 340 F.3d 386, 392 (6th Cir. 2003) (citing Stout v. J.D. Byrider, 228
F.3d 709, 714 (6th Cir. 2000)). The Federal Arbitration Act (FAA) guides us in determining the
validity of an arbitration agreement, reading in relevant part:
The court shall hear the parties, and upon being satisfied that the making of the
agreement for arbitration or the failure to comply therewith is not in issue, the
court shall make an order directing the parties to proceed to arbitration in
accordance with the terms of the agreement. . . . If the making of the arbitration
agreement . . . be in issue, the court shall proceed summarily to the trial thereof.
9 U.S.C. § 4. “The party opposing arbitration must show a genuine issue of material fact as to
the validity of the agreement to arbitrate”—a standard “mirror[ing] that required to withstand

-2-

Case: 15-1793

Document: 28-2

Filed: 05/09/2016

Page: 3

Case No. 15-1793
Rowan v. Brookdale Senior Living Communities, Inc.
summary judgment in a civil suit.” Great Earth Cos. v. Simons, 288 F.3d 878, 889 (6th Cir.
2002) (citing Doctor’s Assocs., Inc. v. Distajo, 107 F.3d 126, 129–30 (2d Cir. 1997)). The
nonmoving party, here Rowan, may challenge an arbitration agreement “upon such grounds as
exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.
Rowan raises on appeal the same two arguments he presented to the district court. We
review de novo an order compelling arbitration, viewing all facts in the light most favorable to
the nonmoving party and determining whether a reasonable fact finder could conclude from the
presented evidence that no valid agreement to arbitrate exists. See Great Earth Cos., 288 F.3d at
889 (citing Aiken v. City of Memphis, 190 F.3d 753, 755 (6th Cir. 1999)).
A. Contract Formation
Rowan asserts that his father lacked mental capacity to contract citing: his father’s shortterm memory problems before signing the Residency Agreement, his emotional and mental state
after signing, and the circumstances of his wandering-off.
Rowan bears the burden of proving his father’s lack of mental capacity to contract. See
Klein v. Kent, 95 N.W.2d 864, 867 (Mich. 1959). To possess mental capacity to contract,
Michigan law evaluates whether:
[T]he person in question possesses sufficient mind to understand, in a reasonable
manner, the nature and effect of the act in which he is engaged. However, to
avoid a contract it must appear not only that the person was of unsound mind or
insane when it was made, but that the unsoundness or insanity was of such a
character that he had no reasonable perception of the nature or terms of the
contract.
Howard v. Howard, 352 N.W.2d 280, 282 (Mich. Ct. App. 1984) (quoting Van Wagoner v. Van
Wagoner, 346 N.W.2d 77, 81–82 (Mich. Ct. App. 1983)). Though capacity is determined at
contract formation, a contracting party can rely on his condition before and after formation to
-3-

Case: 15-1793

Document: 28-2

Filed: 05/09/2016

Page: 4

Case No. 15-1793
Rowan v. Brookdale Senior Living Communities, Inc.
prove incapacity, and a “prior or subsequent condition may be presumed to exist at the time [of
contract formation].” Beattie v. Bower, 287 N.W. 900, 903 (Mich. 1939).
First, Rowan argues that the short-term memory problems his father experienced before
he signed the Residency Agreement demonstrate his incapacity to contract. But the evidence
Rowan offers in support falls short. While Rowan’s sister described her father’s memory as
“compromised,” she also attested that she had no reservations regarding his contractual capacity
around the time that he signed the Residency Agreement. Similarly, though a cognitive therapist
doubted that Rowan Sr. “would have been able to recall the entire [Residency Agreement]” and
“may have had some difficulty” interpreting its interrelated provisions, the therapist also
expressed confidence in Rowan Sr.’s ability to “comprehend each section [of the Residency
Agreement].” Neither the daughter’s nor the therapist’s testimony supports the proposition that
Rowan Sr.’s memory deficiency was “of such a character that he had no reasonable perception of
the nature or terms of the [Residency Agreement].” See Howard, 352 N.W.2d at 282.
Next, Rowan cites Dr. Kameswara Tatineni’s conclusion that, after moving into the
Brookdale facility, his father suffered from anxiety, depression, and limited insight/judgment as
a result of either mild vascular dementia or delirium. Dr. Tatineni, however, did not assess
competence. In fact, Dr. Tatineni expressed no opinion on Rowan Sr.’s ability to read and
understand the Residency Agreement.
Finally, Rowan contends that because his father wandered from Brookdale’s facility
previously and needed extra supervision the day prior to his injury, a fact finder could infer
incapacity to contract. Yet the Michigan Department of Human Services reported that the
incident “could not have [been] reasonably expected,” and grounded its conclusion in part on an
assessment finding Rowan Sr. “capable of independent decision making,” “oriented to person,
-4-

Case: 15-1793

Document: 28-2

Filed: 05/09/2016

Page: 5

Case No. 15-1793
Rowan v. Brookdale Senior Living Communities, Inc.
place and time,” and able to communicate effectively.

In any event, Rowan’s conclusory

assertion that the circumstances of his father’s injury evidence incapacity is insufficient to
withstand summary judgment. See, e.g., Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir.
2004) (noting that “mere speculation, conjecture, or fantasy” cannot overcome a summaryjudgment motion).
That Rowan Sr. executed at least five legal documents in the month before he moved into
the Brookdale facility also counsels against finding incapacity. For example, he signed a durable
power of attorney for health-care purposes—a single-spaced, nine-page document—and another
for financial purposes—a single-spaced, twelve-page document.

Plus, he also signed two

personal protection orders as well as a verified complaint for divorce. No one has challenged his
mental capacity regarding these signings. Indeed, one of the documents includes an attorney’s
and a doctor’s sworn declarations that Rowan Sr. appeared to be of sound mind.
Accordingly, drawing all reasonable inferences in Rowan’s favor, we discern no genuine
issue of material fact regarding whether Rowan’s father lacked a reasonable perception of the
nature or terms of the Residency Agreement.
B. Enforceability of the Arbitration Clause
Even if his father possessed contractual capacity, Rowan continues, the arbitration clause
is unenforceable because it: (1) violates public policy, (2) lacks mutual assent, (3) needs
consideration, (4) fails to provide a knowing and voluntary waiver of his father’s jury-trial right,
and (5) imposes a financial burden. State law “governs ‘generally applicable contract defenses
to an arbitration clause.’” Great Earth Cos., 288 F.3d at 889 (quoting Doctor’s Assocs. v.
Casarotto, 517 U.S. 681, 687 (1996)) (brackets omitted). We address each defense in turn.

-5-

Case: 15-1793

Document: 28-2

Filed: 05/09/2016

Page: 6

Case No. 15-1793
Rowan v. Brookdale Senior Living Communities, Inc.

1. Void for Public Policy
Rowan claims that the arbitration clause violates Michigan public policy by waiving jurytrial rights secured by Michigan’s Truth in Renting Act, Mich. Comp. Laws § 554.633(1)(f), and
by limiting liability for gross negligence, thereby promoting elder abuse. Though Michigan
invalidates contracts that violate public policy, Michelson v. Voison, 658 N.W.2d 188, 190
(Mich. Ct. App. 2003), Rowan’s argument fails for two reasons. First, to the extent Rowan
contends that provisions in the Residency Agreement aside from the arbitration clause violate
Michigan law, those issues are reserved for arbitration. See Masco Corp. v. Zurich Am. Ins. Co.,
382 F.3d 624, 628 (6th Cir. 2004) (“One seeking to challenge an arbitration clause must make an
argument that is specific to the arbitration clause . . . and . . . does not simply challenge the
contractual obligation to which the arbitration clause applies.” (citing Burden v. Check Into
Cash of Ky., LLC, 267 F.3d 483, 491 (6th Cir. 2001))). Second, though Rowan argues that the
arbitration clause violates Michigan’s prohibition on arbitration in the residential context, the
Federal Arbitration Act emphatically favors arbitration and displaces conflicting state statutes or
policies. Marmet Health Care Ctr., Inc. v. Brown, 132 S. Ct. 1201, 1203 (2012) (per curiam)
(citations omitted).
2. Lack of Mutual Assent
Next, Rowan alleges that the arbitration clause lacked mutual assent because Brookdale
failed to allow his father an opportunity to read the agreement at signing.

True, contract

formation requires mutual assent on all essential terms. See Quality Prods. & Concepts Co. v.
Nagel Precision, Inc., 666 N.W.2d 251, 258 (Mich. 2003). But Michigan law “presumes that
one who signs a written agreement knows the nature of the instrument,” Watts v. Polaczyk, 619
N.W.2d 714, 717 (Mich. Ct. App. 2000), and a signatory “will not be heard to say, when
-6-

Case: 15-1793

Document: 28-2

Filed: 05/09/2016

Page: 7

Case No. 15-1793
Rowan v. Brookdale Senior Living Communities, Inc.
enforcement is sought, that he did not read it, or that he supposed it was different in its terms.”
Farm Bureau Mut. Ins. Co. v. Nikkel, 596 N.W.2d 915, 920 (Mich. 1999) (quoting Komraus
Plumbing & Heating, Inc. v. Cadillac Sands Motel, Inc., 195 N.W.2d 865, 868 (Mich. 1972)).
In any event, Rowan fails to counter Brookdale’s evidence that it provided his father a
copy of the Residency Agreement in advance of signing. Indeed, Rowan Sr. toured a number of
residential facilities with his ex-wife prior to selecting the Brookdale facility. When potential
residents visit, Brookdale provides them an informational packet that includes a copy of the
Residency Agreement along with a physician’s plan of care.

Rowan Sr. had a physician

complete the plan of care three days before signing the Residency Agreement, suggesting that he
received the packet with the Residency Agreement in advance of signing.
3. Want of Consideration
Pushing on, Rowan argues that the arbitration clause lacks consideration. But “the basic
rule of contract law is that whatever consideration is paid for all the promises is consideration for
each one.” Rowady v. K Mart Corp., 428 N.W.2d 22, 25 (Mich. Ct. App. 1988). Here, there was
a bargained-for exchange: Rowan Sr. paid money to Brookdale for housing and other services,
and both agreed to arbitrate disputes.
4. Waiver of Jury-Trial Right
Rowan further challenges the enforceability of the arbitration clause because it lacks
comprehensible language, and urges the court to apply Morrison v. Circuit City Stores, Inc.’s test
to evaluate whether his father knowingly and voluntarily waived his jury-trial right. 317 F.3d
646, 668 (6th Cir. 2003) (en banc). Morrison is inapplicable, however, because it is limited “to
the validity of arbitration clauses in employment agreements where an employee’s statutorily
created federal civil rights are at issue.” Stutler v. T.K. Constructors Inc., 448 F.3d 343, 345 (6th
-7-

Case: 15-1793

Document: 28-2

Filed: 05/09/2016

Page: 8

Case No. 15-1793
Rowan v. Brookdale Senior Living Communities, Inc.
Cir. 2006). Regardless, the arbitration clause here is clear: it twice states in bold, “The parties to
this Agreement further understand that a jury will not decide their case,” and the immediately
following section reads—using capital letters, bolding, and underlining—“waiver of trial by
jury.”
5. Imposition of Financial Burden
Finally, Rowan argues against enforceability on the grounds that the arbitration clause
imposes an impermissible financial burden upon his father and others similarly situated in
violation of Morrison, 317 F.3d at 646. Morrison, again, is inapposite. Furthermore, Rowan
fails to explain how the arbitration clause imposes intolerable costs.
III.
For these reasons, we AFFIRM the district court’s order.

-8-