Progressive Eldercare Services, Inc. v. Campbell

Cite as 2025 Ark. App. 597
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-24-318

PROGRESSIVE ELDERCARE SERVICES, Opinion Delivered December 10, 2025
INC., D/B/A RIVER RIDGE
REHABILITATION AND CARE CENTER APPEAL FROM THE CROSS
A/K/A PROGRESSIVE ELDERCARE COUNTY CIRCUIT COURT
SERVICES – CROSS, INC., D/B/A RIVER [NO. 19CV-20-5]
RIDGE REHABILITATION AND CARE
CENTER; ROSS M. PONTHIE; JOHN
PONTHIE; SOUTHERN HONORABLE CHRISTOPHER W.
ADMINISTRATIVE SERVICES, LLC; MLD MORLEDGE, JUDGE
PROPERTIES, LLC; CARE CAPITAL
PROPERTIES, INC.; SABRA HEALTH
CARE REIT, INC.; PROFESSIONAL
NURSING SOLUTIONS, LLC; CAREPLUS
STAFFING SOLUTIONS, LLC; JENNIFER
LYNCH, IN HER CAPACITY AS
ADMINISTRATOR OF RIVER RIDGE
REHABILITATION AND CARE CENTER;
ROBERT DAVID BRAZILE, IN HIS
CAPACITY AS ADMINISTRATOR OF
RIVER RIDGE REHABILITATION AND REVERSED AND REMANDED
CARE CENTER; BARCLAY JEAN
LACKEY, IN HIS CAPACITY AS
DIRECTOR OF NURSING OF RIVER
RIDGE REHABILITATION AND CARE
CENTER; AND BETTY JEAN COOPER, IN
HER CAPACITY AS DIRECTOR OF
NURSING OF RIVER RIDGE
REHABILITATION AND CARE CENTER
APPELLANTS

V.

JULIE ANN CAMPBELL, AS SPECIAL
ADMINISTRATOR FOR THE ESTATE OF
IMOGENE YOUNG WATSON,
DECEASED, AND ON BEHALF OF THE
WRONGFUL DEATH BENEFICIARIES OF
IMOGENE YOUNG WATSON
APPELLEE
BRANDON J. HARRISON, Judge

This appeal asks whether a plaintiff, after agreeing to arbitrate all her claims, can then

totally unwind a complete loss in arbitration by running back to the circuit court and filing

a motion for nonsuit. In other words, can a plaintiff, and only the plaintiff, test the legal

waters at arbitration, lose on merit-based orders, and then decide “never mind?”

Fundamental notions of fair play clearly prevent such a one-way release valve. So does the

Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (FAA), which the parties agreed should apply.

Who, after all, would ever agree to arbitrate claims if one side could unwind merit orders

from an arbitrator if they lose? That is what happened here. We reverse the circuit court’s

decision to permit that course of conduct.

The appellants, persons and entities associated with River Ridge Rehabilitation and

Care Center, appeal an order dismissing Julie Ann Campbell’s nursing-home negligence

complaint without prejudice. Can you appeal that? Usually not. E.g., Beverly Enters.-Ark.,

Inc. v. Hillier, 341 Ark. 1, 14 S.W.3d 487 (2000). But on these facts, you can. The circuit

court dismissed the case after ordering it stayed for arbitration under the FAA. 1 After the

arbitrator dismissed all Campbell’s claims with prejudice, she moved to dismiss them without

prejudice under Arkansas Rule of Civil Procedure 41(a) instead.

1
An order compelling arbitration under the FAA and dismissing the underlying claims
without prejudice is “a final decision with respect to an arbitration” that is appealable under
9 U.S.C. § 16(a)(3). Lamps Plus, Inc. v. Varela, 587 U.S. 176, 179 (2019). Orders that were
appealable by statute on 1 July 1979 can be appealed under Ark. R. App. P.–Civ. 2(a)(12).
That includes orders appealable under the FAA, which was then in effect. BHC Pinnacle
Pointe Hosp., LLC v. Nelson, 2020 Ark. 70, 594 S.W.3d 62.

2
Can you do that? Of course not, for reasons that touch both the jurisdictional and

merits issues in this appeal. The relevant timeline is simple. In May 2022, after the

defendants moved to compel arbitration, the circuit court entered this agreed order, signed by

counsel for all parties:

1. By agreement of the parties, Defendants’ Motion to Compel
Arbitration is granted. These proceedings are hereby stayed pending binding
arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq.

2. Subject to the provisions set forth herein, the Arbitration shall be
conducted pursuant to the Federal Arbitration Act, 9 U.S.C, § 1, et seq.

The docket went quiet. The parties chose Chris Gomlicker of Hamlin Dispute

Resolution, LLC, to arbitrate. On 22 June 2022, they entered a written agreement with

him about what they would arbitrate, how the arbitration would be conducted, and other

particulars, including the cost. On 25 August 2023, Gomlicker ordered that “Plaintiff’s

claims against all Defendants in this matter are hereby DISMISSED, with prejudice.”

Campbell filed the nonsuit motion in circuit court some days later.

Though the parties’ June 22 agreement is titled “Arbitration Agreement,” in

substance it was a “submission agreement” of the kind we discussed in Griffin v. Arkansas

Healthcare Services, LLC:

True to its title, a “submission to arbitration” or “submission
agreement” is a contract in which parties refer disputed matters to a third party
to settle their legal rights and duties with a binding decision. Alderman &
Alderman v. Pollack, 917 A.2d 60, 63 (2007) (quoting 4 Am. Jur. 2d 143
Alternative Dispute Resolution §§ 85 & 86 (1995)). An award outside its scope
“binds no one,” so an award “should not exceed the powers granted by the
submission.” 21 Williston on Contracts § 57:118 (4th ed.); see also Coleman Co.
v. Int’l Union, United Auto., Aircraft & Agr. Implement Workers of Am. (UAW-
CIO), 317 P.2d 831 (1957). The submission can differ from what the parties
had committed to arbitrate before the dispute arose. Finally, what has (and

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has not) been submitted to an arbitrator is often determined by the procedural
rules of the arbitration forum.

2024 Ark. App. 116, at 5, 684 S.W.3d 639, 642 (footnotes omitted).

In Griffin, the plaintiff moved to modify an arbitration award, arguing the arbitrator

had made an award on a claim the parties had not submitted. After deciding what

“submitted to the arbitrator” meant, we compared the submission agreement to the

arbitrator’s award at the end and held that the arbitrator had stayed within his jurisdiction.

This appeal also involves a dispute about whether a claim was “submitted” to the

arbitrator (in a different sense than in Griffin), and the submission agreement is central here,

too. In it, the parties agreed as follows:

These parties desire that this arbitration fully and finally resolve all issues only
between themselves. These parties also agree and are bound by the Arkansas
Rules of Civil Procedure and the Arkansas Rules of Evidence in this
Arbitration.

In the first sentence, the parties “submitted” all issues in their dispute to the arbitrator

in the sense we discussed in Griffin. Piggly Wiggly Operators’ Warehouse, Inc. v. Piggly Wiggly

Operators’ Warehouse Indep. Truck Drivers Union, Loc. No. 1, 611 F.2d 580, 584 (5th Cir.

1980) (“If the parties enter into a submission agreement, this later contract is the substitute

for legal pleadings; it joins the issues between the parties and empowers the arbitrator to

decide it.”). Next, they agreed to arbitrate using the Arkansas Rules of Civil Procedure

(the “Rules”). That reference seeded this appeal. Because the Rules include the voluntary-

dismissal provision in Rule 41, Campbell concluded she could nonsuit until “the final

submission of the case to the jury, or to the court where the trial is by the court,” Ark. R.

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Civ. P. 41(a)(1)—a point no arbitration could reach as she construes the rule. 2 The

defendants argued the FAA controlled the court’s options and that Campbell’s claims had

been “finally submitted” (in the Rule 41 sense) to the arbitrator. But they did not question

that the circuit court could have granted a nonsuit until that critical-mass point. The circuit

court decided the Rule 41 issue head-on:

This case has never been to a finder of fact as recognized by Rule 41 of the
Arkansas Rules of Civil Procedure. An arbitrator is NOT a finder of fact, and
the parties did NOT agree as to the finality of the arbitrator’s decision as
required by Arkansas Rule of Civil Procedure 41(a)(2).

It should have abstained. The parties submitted all disputed issues for arbitration.

Afterward, what procedural cards the FAA did not reserve for the court moved to the

arbitrator’s deck. Generally, “procedural questions which grow out of the dispute and bear

on its final disposition” are for the arbitrator, not the courts, to decide. Howsam v. Dean

Witter Reynolds, Inc., 537 U.S. 79, 84 (2002) (internal quotations omitted). Whether

Campbell could nonsuit her claims under Rule 41 after the arbitrator dismissed them was a

question for the arbitrator, not the court. Indeed, Campbell traces her right to nonsuit to

the parties’ submission agreement with the arbitrator to govern the arbitration after the case

was stayed. Because the circuit court had no authority under the FAA to dismiss without

prejudice after it ordered the parties to arbitrate and stayed the case, we reverse and remand.

2
Campbell argues that Rule 41 confers “an absolute right to nonsuit . . . until there
is a ‘final submission of the case to the jury, or to the court where the trial is by the court.’
It says nothing about an arbitrator.” Because Rule 41 would not have prevented her from
accepting a favorable arbitration award, Campbell seems to view it as the litigation equivalent
of an extra life.

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When a case is subject to arbitration under the FAA, the court “shall on application

of one of the parties stay the trial of the action until such arbitration has been had in

accordance with the terms of the agreement.” 9 U.S.C. § 3. While the case is stayed, the

trial court retains only a vestige of jurisdiction to “assist parties in arbitration by, for example,

appointing an arbitrator, enforcing subpoenas issued by arbitrators to compel testimony or

produce evidence, and facilitating recovery on an arbitral award.” Smith v. Spizzirri, 601

U.S. 472, 478 (2024) (citing 9 U.S.C. §§ 5, 7 & 9) (citations omitted). The merits, and any

other issues the parties agreed to arbitrate, are off limits. Kilgore v. Mullenax, 2017 Ark. 204,

520 S.W.3d 670 (arbitrator’s decision that FAA applied was conclusive because the parties

agreed he would determine jurisdiction); HPD, LLC v. TETRA Techs., Inc., 2012 Ark. 408,

424 S.W.3d 304 (remanding to compel arbitration where parties agreed to arbitrate

questions of arbitrability). When arbitration concludes, the court “must” confirm the

arbitration award “unless the award is vacated, modified, or corrected as prescribed in [9

U.S.C. §§] 10 and 11.” Kilgore, 2017 Ark. 204, at 3, 520 S.W.3d at 673. And the court

must stay the claims during arbitration, not dismiss them, because even if the winner could

confirm the award in a new suit, “requiring a party to file a new suit ignores the plain text

of [9 U.S.C.] § 3.” Smith, 601 U.S. at 477 n.3. Dismissing this case without prejudice was

inconsistent with all of the above.

Campbell argues the defendants’ points about the FAA were not preserved for appeal.

Why not? Because the defendants did not raise them at the “first opportunity.” This is a

meritless point. According to Campbell, the defendants’ response to her nonsuit motion,

which they filed less than twenty-four hours later, was the first opportunity. In the opening

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paragraph of that response, defendants urged the court to dismiss Campbell’s complaint with

prejudice instead “because all of Plaintiff’s claims against Defendants have been resolved in

binding arbitration.” They attached the agreed order that had compelled them to arbitrate

under the FAA and the arbitration orders resolving Campbell’s claims there. They also

requested a hearing, which was held three months later. Our preservation rules should be

construed to prevent unfairness, not inflict it. The record reflects no sandbagging or bet

hedging by the defendants in briefing the effect of the FAA on the nonsuit issues; nor any

prejudice to Campbell. 3 No informed Arkansas practitioner could fail to appreciate the

procedural “emergency” Campbell’s nonsuit motion presented if the defendants wished to

prevent this waste of time and judicial resources. 4

We find absolutely no problems with preservation here. We do, however, hold that

the circuit court’s decision must be reversed and the case remanded for further proceedings

consistent with this opinion.

Reversed and remanded.

VIRDEN and GLADWIN, JJ., agree.

Kutak Rock LLP, by: Mark Dossett, Jeff Fletcher, Zach Musgraves, and Caleb S. Sugg,

for appellants.

3
See Brian G. Brooks, Egads! Preservation Run Amok: A Call for Change to Arkansas’s
Was It Raised?, Was It Developed?, Was It Ruled On? Jurisprudence, 37 U. Ark. Little Rock L.
Rev. 267 (2015).
4
See Cap. SeniorCare Ventures, LLC v. Cir. Ct. of Pulaski Cnty., 2016 Ark. 263, 494
S.W.3d 423 (a predicament). Campbell attached a proposed dismissal order to her motion.
Neither the motion nor the proposed order acknowledged that the case was stayed for
arbitration.

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Wilkes & Associates, P.A., a/k/a Wilkes & McHugh, P.A., by: James L. Wilkes II; and

The Edwards Law Firm, PLLC, by: Robert H. Edwards, for appellee.

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