Rawl v. West Ashley Rehabilitation and Nursing Center

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Victor Rawl as Personal Representative of the Estate of
Vera Brown, Respondent,

v.

West Ashley Rehabilitation and Nursing Center -
Charleston, SC, LLC d/b/a Heartland of West Ashley
Rehab and Nursing Center, Appellant.

Appellate Case No. 2018-001142

Appeal From Charleston County
Diane Schafer Goodstein, Circuit Court Judge

Unpublished Opinion No. 2021-UP-091
Submitted February 1, 2021 – Filed March 17, 2021

AFFIRMED

Mary Agnes Hood Craig and Elloree A. Ganes, both of
Hood Law Firm, LLC, and Jean Marie Jennings, all of
Charleston, and Deborah Harrison Sheffield, of
Columbia, all for Appellant.

Eric Marc Poulin and Stefan Bjorn Feidler, both of
Anastopoulo Law Firm, LLC, and Roy T. Willey, IV, all
of Charleston, for Respondent.
PER CURIAM: Victor Rawl, as Personal Representative of the Estate of Vera
Brown, filed this tort action1 against West Ashley Rehabilitation and Nursing
Center - Charleston, SC, LLC d/b/a Heartland of West Ashley Rehab and Nursing
Center (Heartland). Heartland appeals the circuit court's denial of its motion to
dismiss and compel arbitration, arguing the court erred in finding the arbitration
agreement unenforceable due to unconscionability. We affirm.2

II. FACTS

Vera Brown was admitted to Heartland on August 25, 2014. The circuit court
found that at the time of her admission, Brown was transferred from the hospital to
Heartland via ambulance with diagnoses including chronic kidney disease, anemia,
dementia, urinary tract infection, upper respiratory disease, acute kidney failure,
congestive heart failure, hypertension, weakness, and difficulty walking. Upon her
arrival, Brown executed an admission document and a Voluntary Arbitration
Agreement (the Agreement). In bold capital letters at the top of the document, the
Agreement provided the following:

The parties are waiving their right to a trial before a
judge or jury of any dispute between them. Please read
carefully before signing. The patient will receive
services in this center whether or not this agreement is
signed. Arbitration is described in the Voluntary
Arbitration Program brochure copy, attached and made
part of this agreement.

Brown was allegedly admitted full code, meaning if she was found in cardiac
arrest, every intervention would be attempted, including cardiopulmonary
resuscitation (CPR). Brown's daughter (Daughter) regularly visited Brown and

1
Rawl alleged negligence, gross negligence, negligence per se, elder abuse,
wrongful death, survival, and conversion.
2
Because we affirm based on unconscionability, we need not address Heartland's
remaining argument, which alleges the circuit court erred in finding a lack of
consideration necessary to form a contract. See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (noting an
appellate court need not address an appellant's remaining issues when its
determination of a prior issue is dispositive).
would have dinner afterwards at a restaurant across the street from Heartland.
Four days after Brown's admission, Daughter received a telephone call while
eating dinner at the restaurant. Daughter, a nurse, rushed to Heartland and found
Brown unresponsive while several staff members "simply stood there at her
bedside." Daughter started CPR and requested the staff get oxygen. Only empty
oxygen canisters were in Brown's room at the time. When first responders arrived,
Brown was unresponsive, and she was pronounced dead at the emergency room of
the hospital due to anoxic brain injury and congestive heart failure.

Rawl, as the personal representative of Brown's estate, filed this action. Heartland
answered and moved to compel arbitration and dismiss the complaint. Rawl
responded in opposition, arguing the Agreement was unenforceable due to, inter
alia, unconscionability. After a hearing, the circuit court denied Heartland's
motion to dismiss and compel arbitration. This appeal follows.

III. REVIEW OF ARBITRATION AGREEMENTS

"Determinations of arbitrability are subject to de novo review, but if any evidence
reasonably supports the circuit court's factual findings, this court will not overrule
those findings." Pearson v. Hilton Head Hosp., 400 S.C. 281, 286, 733 S.E.2d
597, 599 (Ct. App. 2012). "In deciding whether a valid, enforceable and
irrevocable arbitration agreement exists, we apply general principles of state
contract law." Doe v. TCSC, LLC, 430 S.C. 602, 611, 846 S.E.2d 874, 878 (Ct.
App. 2020). "[T]he court, rather than an arbitrator, will decide 'gateway' issues
related to arbitration, including whether the arbitration agreement is valid and
enforceable and whether it covers the parties' dispute." Id. at 608, 846 S.E.2d at
877.

IV. LAW/ANALYSIS

Heartland argues the circuit court erred in finding the Agreement is unenforceable
on the ground of unconscionability. We disagree.

The circuit court found the Agreement was unconscionable because the Agreement
was oppressive and one-sided, and there was inherent disparity in bargaining
power between the parties. The court noted the Agreement was presented to
Brown upon her admission, when she was ill, "on a take-it-or[-]leave[-]it basis,"
without Brown's contribution to the drafting, and without the bargaining power to
negotiate. The court found the Agreement "was inconspicuously buried in the
admission paperwork and 'hastily' presented to Ms. Brown for her signature. This
is evident by the 'x's' where Ms. Brown was asked to print and sign her name and
date. . . ." The court also noted that although certain phrases in the Agreement
were in bold, the clauses in their entirety were written in standard small print and
embedded in paragraphs one through fourteen, which were drafted by the superior
party.

Heartland argues the voluntary nature of the Agreement renders the circuit court's
finding of unconscionability erroneous. According to Heartland, because the
Agreement was voluntary, it was not an adhesion contract and Brown "had a
simple choice to simply refuse to sign the agreement without any adverse
consequences."

"In South Carolina, unconscionability is defined as the absence of meaningful
choice on the part of one party due to one-sided contract provisions, together with
terms that are so oppressive that no reasonable person would make them and no
fair and honest person would accept them." Simpson v. MSA of Myrtle Beach, Inc.,
373 S.C. 14, 24-25, 644 S.E.2d 663, 668 (2007). The "[a]bsence of meaningful
choice" requirement "speaks to the fundamental fairness of the bargaining process
in the contract at issue." Id. at 25, 644 S.E.2d at 669. Even if an arbitration clause
is technically conspicuous, it may be improper if it is "sprung on [a consumer]
along with a flurry of other" documents during a hasty transaction. Doe, 430 S.C.
at 613–14, 846 S.E.2d at 879-80. "Unconscionability is gauged at the time the
contract was made." Id. at 612, 846 S.E.2d at 879. The following should be taken
into account by courts in determining unconscionability: "the nature of the injuries
suffered by the plaintiff; whether the plaintiff is a substantial business concern; the
relative disparity in the parties' bargaining power; the parties' relative
sophistication; whether there is an element of surprise in the inclusion of the
challenged clause; and the conspicuousness of the clause." Id. (quoting Simpson,
373 S.C. at 25, 644 S.E.2d at 669).

We agree with the circuit court that the Agreement was unconscionable. The
disparity in bargaining power, the manner in which the Agreement was presented
to Brown, the parties' relative sophistication, and Brown's extremely compromised
health at the time of her admission convince us the circuit court did not err in its
finding of unconscionability.

AFFIRMED.3

3
We decide this case without oral argument pursuant to Rule 215, SCACR.
WILLIAMS, THOMAS, and HILL, JJ., concur.