Durant Healthcare, LLC a/k/a Holmes County Long Term Care Center and C. Bruce Kelly v. Deaundray Garrette, Individually, and as Administrator of The Estate of Zion Garrette, and on Behalf of and for the Use and Benefit of the Wrongful Death Beneficiaries of Zion Garrette

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CA-00823-COA

DURANT HEALTHCARE, LLC A/K/A HOLMES APPELLANTS
COUNTY LONG TERM CARE CENTER AND C.
BRUCE KELLY

v.

DEAUNDRAY GARRETTE, INDIVIDUALLY, AND APPELLEE
AS ADMINISTRATOR OF THE ESTATE OF ZION
GARRETTE, AND ON BEHALF OF AND FOR THE
USE AND BENEFIT OF THE WRONGFUL DEATH
BENEFICIARIES OF ZION GARRETTE

DATE OF JUDGMENT: 06/25/2021
TRIAL JUDGE: HON. BARRY W. FORD
COURT FROM WHICH APPEALED: HOLMES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: JOSEPH SPENCER YOUNG JR.
ATTORNEYS FOR APPELLEE: RICHARD PAUL WILLIAMS III
COURTNEY McREYNOLDS WILLIAMS
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED - 11/29/2022
MOTION FOR REHEARING FILED:

EN BANC.

McDONALD, J., FOR THE COURT:

¶1. Durant Healthcare LLC a/k/a Holmes County Long Term Care Center and C. Bruce

Kelly (collectively “Durant Healthcare”) appeal from the Holmes County Circuit Court’s

order denying Durant Healthcare’s motion to compel arbitration and its motion for

arbitration-related discovery in this wrongful death case. Durant Healthcare argues that the

deceased, Zion Garrette, was mentally competent at the time of his admission to the nursing

home and bound himself to an arbitration provision in an agreement that he signed. Durant

Healthcare further argues that Zion is also bound because his daughter, Debbie Carter, signed
as his agent, and Zion was the third-party beneficiary of the admission agreement. In the

alternative, Durant Healthcare contends that the circuit court erred in denying arbitration-

related discovery. Considering the evidence in the record and the arguments of counsel, we

affirm the circuit court’s decision.

Facts and Court Proceedings

¶2. Zion was a welder most of his life but became permanently disabled and unable to

work when he was in his fifties. He suffered from rhabdomyolysis, the breakdown of

damaged muscle tissue (which can cause pain), weakness, vomiting, and confusion. He had

also been diagnosed with bipolar disorder and had several psychiatric hospitalizations over

the years. However, his family never instituted any guardianship or conservatorship

proceedings.

¶3. In May of 2017, when he was sixty-eight, Zion was treated at the University of

Mississippi Medical Center at Grenada. At various times during his stay, Zion exhibited

mental confusion. The first medical record provided was a May 15, 2017 presentation to the

emergency room for Zion’s increased weakness. According to Dr. Frank Brown, Zion was

“unable to give a history of present illness because he is confused but able to verbalize

some.” However, in Dr. Brown’s physical exam of Zion, he noted Zion as being alert and

“oriented to person, place and time” with normal behavior and thought content.

¶4. Zion was transferred from UMMC Grenada to UMMC Holmes County on May 20,

2017. On May 28, 2017, Dr. Brown found Zion to be “confused slightly,” but neurologically

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alert with a GCS score of 15.1 Between then and May 30, 2017, Zion’s medical records

noted that he had impaired mental status with decreased orientation. An undated discharge

summary (made sometime after May 19, 2017) indicated his condition as “unable to complete

ADL’s; mental status impaired with decreased orientation.”

¶5. However, on June 7, 2017, in his assessment of Zion’s neurological condition, Dr.

Elias Abboud found him to be alert and oriented to person, place, and time. Throughout May

and June 2017, Zion was treated for several conditions, including encephalopathy (a disease

or damage to the brain that affects one’s mental state), and dysphagia (a swallowing

disorder). He also was diagnosed with fluid build-up on the brain (hydrocephalus), bipolar

disorder, and depression and treated with psychotropic medications.

¶6. On June 15, 2017, Zion, accompanied by his daughter, Carter, presented to Durant

Healthcare for admission to the facility. At that time, they both signed an admission

agreement that contained a provision entitled “Arbitration.” Under this provision, Durant

Healthcare and Zion and his family would agree to mutually choose an arbitrator who would

settle any legal disputes or claims between them. According to the provision, the arbitration

would be conducted using the American Arbitration Association’s commercial rules, but the

Association’s arbitrators would not be used. The arbitration provision was not a document

separately signed by Zion and Carter; rather it was only a provision included in the overall

1
“GCS” refers to the Glasgow Coma Scale, which assesses a patient’s level of
consciousness based on the patient’s reaction to different stimuli.

3
admission agreement. Zion signed the admission agreement in a nearly illegible hand, which

required someone to write the words “his signature” by it. In addition to signing the

admission agreement as Zion’s responsible party, Carter also signed a separate

acknowledgment that said that Zion was competent to sign the admission agreement.

¶7. Nurse Practitioner Amy Johnson completed her admitting physician’s orders and

Progress Note on June 15, 2017. In it, she confirmed Zion’s medical diagnosis on admission

including, among other things, hydrocephalus, and a bipolar condition. The note contained

Zion’s medical history, a review of systems, vital signs, a physical exam, her diagnosis, and

an assessment. Under her review of Zion’s neurological system, Johnson wrote “no loss of

consciousness, transient ischemic symptoms, or seizures.” But unlike prior neurological

exams by other doctors, Johnson did not indicate whether Zion was oriented to person, place,

and time. Under her physical exam, Johnson relates “cranial nerves: Cns II-XII are grossly

intact.” There is nothing else in her assessment relating to Zion’s cognitive abilities.

¶8. However, on an “MDS Nurses Summary” of Zion’s condition covering June 15, 2017,

to June 21, 2017, Nurse Palmertree indicated that Zion was disoriented as to place and time;

that he had a short-term memory problem; that he could not name the current season, the

location of his room, any staff names or faces, or that he was even in a nursing home. The

nurse concluded in her “BIMS” assessment (Brief Interview for Mental Status) that Zion was

a “6” on a scale of 1-15, putting him in the severe cognitive impact category.2 On the same

2
In Deaundray’s reply to Durant Healthcare’s motion to compel arbitration,
Deaundray explained how a BIMS assessment is conducted: that a patient is asked to repeat

4
day of his admission, June 15, 2017, the nursing home’s social services director and director

of nursing noted that there were no plans for Zion’s discharge; that he needed nursing home

care because of “wandering behavior warranting 24N supervision,” and that Zion’s stay was

indefinite.

¶9. Although a nutrition record signed by the nursing home’s dietary manager and dated

June 21, 2017, noted Zion’s mental status as alert, on June 26, 2017, Dr. Todd Fulcher noted

that “the pt’s congnition [sic] and processing are limiting him.”3 At that time, Dr. Fulcher

noted Zion was only oriented to person and purpose. The occupational therapist assessment

noted that when Zion began therapy, “he was largely nonresponsive verbally.”

¶10. Durant Healthcare’s Resident Care Plan for Zion indicated that on June 26, 2017, Zion

required assistance for, among other things, cognitive deficits. On a similar undated

document, it was indicated that staff was setting goals for Zion’s “severe” cognitive deficits

noted.

¶11. On July 15, 2017, a month after admission, Zion began speech therapy. At that time,

the therapist assessed his ability to understand “yes/no” questions and follow one-step

commands at less than 25%. The speech therapist set as a goal that the “patient will

demonstrate adequate comprehension to improve ability to respond to yes/no and open/ended

three words, which he is told he needs to remember later in the interview; that the patient is
asked the year, month, and day of the week; and that the patient is asked to recall the three
words and given cues if necessary.
3
In addition, Zion’s diagnosis noted in the nutrition record included hydrocephalus,
unspecified altered mental status, and cognitive communication deficits.

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questions, follow directions, and participate in meaningful conversations.” On that same

date, Dr. Fulcher noted that a barrier to Zion’s functioning was his “altered mental status.”

¶12. Dr. Fulcher did not complete a Pre-Admission Screening (PAS) Application for

Zion’s qualification for Medicaid until July 19, 2019, a month after his admission. At that

time, Dr. Fulcher found Zion to be totally dependent and needing assistance for all ten of his

daily activities.4 He found Zion to be incontinent two or more times a week, and that Zion

gave incorrect answers to person, place, and time questions four out of eleven times. Dr.

Fulcher said Zion did not have dementia but that he had a diagnosis of a major mental illness

and a history of taking psychotropic medications. He determined that Zion’s judgment

impairment level was “mild to moderate.” He confirmed the primary medical diagnosis of

encephalopathy and dysphagia.

¶13. On that same assessment form, Social Worker Lana Richardson screened Zion, and

circled “yes” to a category that “[p]erson has a history of, or presents any evidence of

cognitive or behavior functions that indicate the need for an MR evaluation.” Interestingly,

this Medicaid form was not signed by Zion, but by Carter in a section reading “I hereby

acknowledge my participation in this screening process, agree that I have had long term care

program options explained to me and have indicated my choice by initialing the appropriate

box above.” Moreover, Carter signed this form on June 15, 2017, which given the dates of

4
These included ambulation, bathing, eating, medication management, toileting,
transferring, personal hygiene, community mobility, dressing, and meal preparation.

6
the professional staff entries, had to have been blank at that time.

¶14. Nurse Palmertree again evaluated Zion on July 21, 2017, and noted that he still had

an “altered level of consciousness.” On her “MDS Nurses Summary” from July 27 and July

28, 2017, she noted that Zion was only alert and oriented to himself, that he had both short-

and long-term memory problems, and that he still could not recall the current season, location

of his room, staff names, or whether he was in a nursing home. He now had an even lower

BIMS score of 2. He sometimes could understand others, but rarely or never was able to

express his own ideas or wants.

¶15. Based on Durant Healthcare’s Pre-Screening Assessments, on July 26, 2017, the

Mississippi Department of Mental Health approved Zion for nursing-home level of care and

specialized treatment for mental illness.

¶16. During the course of his stay at Durant Healthcare, Zion suffered from severe

bedsores and on July 19, 2019, Zion died. The list of causes on his death certificate included

cardiopulmonary arrest, decubitus ulcers with infection, dementia, and malnutrition.

¶17. On January 21, 2021, Zion’s son, Deaundray, filed a complaint in the Holmes County

Circuit Court against Durant Healthcare on behalf of Zion’s estate and wrongful death

beneficiaries. Among other things, Deaundray alleged that the negligent care provided by

Durant Healthcare proximately caused or contributed to Zion’s death.

¶18. On February 25, 2021, Durant Healthcare filed a motion to compel arbitration. It

claimed that Zion had the mental capacity at the time of his admission to sign the admissions

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agreement in which he agreed on behalf of himself and his heirs to submit any claims or

disputes with Durant Healthcare to arbitration, foreclosing any judicial actions concerning

the circumstances of his death. Durant Healthcare also pleaded that Zion’s daughter, Carter,

signed an acknowledgment that confirmed her father’s mental capacity to sign the arbitration

agreement. Durant Healthcare further asserted that Carter represented herself to be Zion’s

authorized agent. The nursing home also pleaded that Zion was a third-party beneficiary of

the contract and, thus, his estate and heirs were estopped from denying the enforceability of

the arbitration agreement under the doctrine of beneficiary estoppel. Durant Healthcare

requested that the action be dismissed or stayed pending arbitration. Durant Healthcare

attached Deaundray’s complaint and the arbitration agreement as exhibits to its motion.

¶19. On March 16, 2021, Deaundray responded to the motion. He contended that Zion,

who was seventy years old at the time of his death, was mentally incapacitated at the time of

his admission to the nursing home. Thus, Deaundray argued, Zion could not legally execute

any contract. Moreover, Carter had no power of attorney, conservatorship, or guardianship

order that gave her any authority to sign on Zion’s behalf. In addition, Deaundray argued,

Mississippi law has rejected the creation of an informal agency relationship when it comes

to having authority to execute arbitration agreements. He attached numerous portions of

Zion’s medical records at or near the time of his admission to Durant Healthcare to support

his opposition to Durant Healthcare’s motion to compel arbitration.

¶20. On May 24, 2021, Durant Healthcare filed its reply to Deaundray’s response to its

8
motion to compel arbitration. It too attached portions of Zion’s medical records. Notably,

neither party attached any affidavits from either Carter or personnel from Durant Healthcare

who were involved in the admission process, concerning the events that transpired at the time

of the execution of the admission agreement.

¶21. After receiving Deaundray’s response, Durant Healthcare filed a motion for arbitration

discovery. It said that, although there was adequate information in the record to determine

that Zion was competent at the time of his admission to the nursing home, Durant Healthcare

sought further discovery on (1) Zion’s mental capacity at the time of admission and (2) on

the circumstances surrounding the execution of the documents and Zion’s expressed

appointment of Carter as his authorized agent. It did not identify any specific documents or

depositions that it would seek through such discovery.

¶22. On June 22, 2021, the circuit court heard arguments on Durant Healthcare’s motion

to compel arbitration. Deaundray’s counsel argued that the BIMS evaluation prepared by

Nurse Palmertree on June 15, 2017, the date of Zion’s admission, showed that Zion did not

have the capacity to execute the agreement; that he was disoriented to both place and time;

that he had short-term memory problems; and that he was severely impaired when it came

to Zion’s cognitive skills for daily decision making. At that point, the circuit court stopped

Deaundray’s counsel and engaged in the following exchange with Durant Healthcare’s

counsel:

THE COURT: Let me stop you there a minute. You’ve just heard what
-- what he -- do you agree with what -- his assessment or

9
do you disagree?

MR. YOUNG: Your Honor, I would disagree to the extent that the
medical records speak for themselves. And that - -

THE COURT: I don’t want to know about the medical records speaking
for themselves. About his [Zion’s] knowledge of person,
place, and time.

MR. YOUNG: Well, Your Honor, I think that the medicals do -- they--
they’re conflicting. That when you look at May the 20,
2017 - -

THE COURT: When they interviewed him, did that - - did that
interview check what he had just told me?

MR. YOUNG: Yes, Your Honor. But when you look at the medical
records after [the] fact and before, it says that he is
oriented to person, place, and time on May the 20 of
2017, which is less than a month prior to. There’s - -

THE COURT: Yeah. But this wasn’t the date that he was admitted.

At the end of arguments by counsel, the circuit court ruled that on the date of admission Zion

was not competent to sign the admission/arbitration agreement and that Zion had not

conferred any authority on his daughter to sign for him. Accordingly, the court denied the

motion to compel. Durant Healthcare’s counsel asked about its motion for arbitration-related

discovery and the circuit court denied that as well. Both parties submitted proposed orders

concerning the court’s ruling. Durant Healthcare objected to the factually detailed order that

Deaundray proposed. The court adopted the order proposed by Durant Healthcare, which

was entered on June 25, 2021. Durant Healthcare appealed that order on July 20, 2021.

¶23. On appeal, Durant Healthcare presents five arguments: first, that the arbitration

10
agreement was enforceable because Zion had the mental capacity to sign the agreement;

second, that the agreement was binding because it was signed by Carter, Zion’s authorized

representative; third, that both Zion and his heirs are equitably estopped from denying the

terms of the admission agreement by virtue of the third-party beneficiary doctrine; fourth,

that the arbitration agreement was procedurally and substantially conscionable; and fifth,

that, in the alternative, arbitration-related discovery was improperly denied.

Standard of Review

¶24. “The grant or denial of a motion to compel arbitration is reviewed de novo.”

McIntosh Transp. LLC v. Love’s Travel Stops & Country Stores Inc., 339 So. 3d 141, 145

(¶7) (Miss. Ct. App. 2022) (quoting Rogers-Dabbs Chevrolet-Hummer Inc. v. Blakeney, 950

So. 2d 170, 173 (¶11) (Miss. 2007)). Factual findings by the trial court are reviewed for

abuse of discretion. Id. (citing Virgil v. Sw. Miss. Elec. Power Ass’n, 296 So. 3d 53, 59 (¶11)

(Miss. 2020)).

Discussion

¶25. Arbitration agreements may be enforced in the nursing home/long-term care setting.

See Dalon v. MS HUD Ocean Springs LLC, 283 So. 3d 90, 94 (¶10) (Miss. 2019) (finding

general power of attorney granted to son authorized son to sign arbitration agreement on

father’s behalf). To determine whether there is a valid arbitration agreement, we apply the

legal principles of contract law. Trinity Mission Health & Rehab of Holly Springs LLC v.

Lawrence, 19 So. 3d 647, 649 (¶5) (Miss. 2009) (“To conclude that there was an agreement

11
to arbitrate, there must be a valid contract.”).

¶26. The elements of a contract are “(1) two or more contracting parties, (2) consideration,

(3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a

contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation.” Est.

of Humphrey ex rel. Humphrey v. Tunica Cnty. Health & Rehab LLC, 329 So. 3d 563, 567

(¶14) (Miss. Ct. App. 2021); Tarvin v. CLC of Jackson LLC, 193 So. 3d 633, 637 (¶11)

(Miss. 2016); Adams Cmty. Care Ctr. LLC v. Reed, 37 So. 3d 1155, 1158 (¶7) (Miss. 2010).

¶27. “The burden of establishing the existence of an arbitration agreement, in line with the

burden of establishing the existence of a contract, rests on the party seeking to invoke it.”

Diversicare of Meridian LLC v. Shelton, 334 So. 3d 487, 493 (¶18) (Miss. Ct. App. 2022)

(quoting Wellness Inc. v. Pearl River Cnty. Hosp., 178 So. 3d 1287, 1292 (¶14) (Miss.

2015)). If the record establishes that the parties did enter into a valid contract, then the party

resisting arbitration has the burden of proving any other defense. McIntosh Transp. LLC, 339

So. 3d at 145 (¶7) (citing Norwest Fin. Miss. Inc. v. McDonald, 905 So. 2d 1187, 1193 (¶11)

(Miss. 2005)). As the proponent of the arbitration agreement in this case, Durant Healthcare

contends that either Zion was competent to sign or that Carter had the authority to sign the

arbitration agreement on Zion’s behalf.

I. Whether Zion had the legal capacity to sign the arbitration
agreement.

¶28. The Mississippi Supreme Court has held that “a party cannot be required to submit

to arbitration any dispute which he has not agreed so to submit.” Wellness Inc., 178 So. 3d

12
at 1292 (¶14) (quoting Trinity Mission Health & Rehab. of Holly Springs, 19 So. 3d at 651

(¶14)). The law presumes that a person is sane and mentally capable of entering into a

contract. Frierson v. Delta Outdoor Inc., 794 So. 2d 220, 224 (¶8) (Miss. 2001) (citing

Foster v. Wright, 240 Miss. 566, 572, 127 So. 2d 873, 876 (1961)). “The burden is upon the

party seeking to avoid an instrument on the ground of insanity or mental incapacity to

establish it by a preponderance of proof.” Manhattan Nursing & Rehab. Ctr. LLC v.

Hollinshed, 341 So. 3d 991, 993 (¶6) (Miss. Ct. App. 2022). To be considered competent,

an individual must be able to “know or understand his legal rights sufficiently well to manage

his personal affairs.” Est. of St. Martin v. Hixson, 145 So. 3d 1124, 1131 (¶16) (Miss. 2014)

(quoting Rockwell v. Preferred Risk Mut. Ins. Co., 710 So. 2d 388, 391 (¶9) (Miss. 1998)).

¶29. To establish incapacity to contract, the proof must show more than “a general mental

weakness or condition” of mind. Richardson v. Langley, 426 So. 2d 780, 784 (Miss. 1983).

The test asks, “Is his mind so unsound, or is he so weak in mind, or so imbecile, no matter

from what cause, that he cannot manage the ordinary affairs of life?” Shippers Exp. v.

Chapman, 364 So. 2d 1097, 1100 (Miss. 1978). The Mississippi Supreme Court has held

that a “trial court may also determine whether a party is competent for purposes of executing

a will or signing an option, where there was no previous legal adjudication of unsoundness

of mind.” Rockwell, 710 So. 2d at 390-91 (¶10) (citing In re Est. of Briscoe, 293 So. 2d 6,

7-8 (Miss.1974); Alford v. Crocker, 221 So. 2d 363, 363 (Miss. 1969)).

¶30. The “ordinary affairs of life” relate to a person’s “ability to make important personal,

13
business and life decisions.” Liberty Health & Rehab of Indianola LLC v. Howarth, 11 F.

Supp. 3d 684, 687 (N.D. Miss. 2014). In that nursing-home case, where the decedent’s

mental capacity to sign an arbitration agreement was challenged, the federal district court

explained:

Having reviewed Mississippi case law discussing this term, however, it seems
reasonably clear that the “affairs” in question relate to the ability to make
important personal, business and life decisions. In other words, the standard
does not inquire as to whether the individual is able to brush his teeth, but
rather looks to his capacity to make coherent decisions regarding important
matters.

Id. In that case, the district court found that the decedent, Peacock, lacked capacity based on

a nurse’s assessment at the time of admission as follows:

[T]he court finds most enlightening Nurse Smith’s finding that he was unable,
on the date he signed the arbitration agreement, to state what year it was,
within five years. The court views this fact to be one which is very difficult
to “spin,” and plaintiff has made little effort to do so. In the court’s view, an
inability to state what year it was, within five years, reflects a profound
diminishment of mental capacity and a significant disconnect from reality. In
her examination of the decedent, Nurse Smith also found that he was unable
to recall simple words such as “sock,” “blue” and “bed” mere minutes after
they had been spoken to him, and she found that this inability persisted even
after she gave him verbal hints. Clearly, this finding is further indicative of a
very significant mental impairment on the part of Mr. Peacock.

Id.

¶31. In Hollinshed, we found that the decedent Adams did not have the mental capacity to

sign an arbitration agreement based on, among other things, notations in the nursing home’s

records as well. We noted that the facility’s admission notes and care plan for Adams

showed that he was diagnosed with “depression with altered mood & behavior,” such as

14
“yelling out disruptively, [being] anxious and easily annoyed; [and a] decline in psychosocial

well being.” Hollinshed, 341 So. 3d at 994 (¶9). The notes described his demeanor and

behavior as “agitated frequently; confused at times;” and that he was taking thirteen

medications, including Norco and Valium. Id.

¶32. We previously dealt with the issue of mental capacity in Magee Cmty. Care Ctr. LLC

v. Perkins, 333 So. 3d 34 (Miss. Ct. App. 2021). In that case, Williams, a fifty-five-year-old

resident of a nursing center who had a history of mental and physical health issues was

required to sign an admission agreement that contained an arbitration provision upon his

transfer to the Magee facility known as Hillcrest. Id. at 37 (¶¶2-3). His brother also signed

the agreement as a responsible party along with an acknowledgment of competency that

stated that he believed his brother was mentally competent. Id. at (¶3). Williams had resided

at two other nursing homes prior to his admission to Hillcrest. Id. at (¶4). At the last one,

approximately twenty-five days before his transfer, Williams scored a 5 out of 15 on his

BIMS (Brief Interview for Mental Status) evaluation and was diagnosed with severe

cognitive impairment. Id. at 38 (¶5). Within five days of his admission to Hillcrest,

Williams had multiple instances of combative and irregular behavior. Id. at (¶6). On day six

post-admission, Hillcrest records indicated he had memory problems and that “he had a

severely impaired cognitive status for making decisions regarding tasks of daily life.” Id. at

(¶7).

¶33. When Williams died and his mother filed suit, Magee Care Center filed a motion to

15
compel arbitration. Id. at 37 (¶1). The trial court denied the motion and on appeal, we

affirmed the trial court’s denial. Id. at 43 (¶30). We specifically reviewed the record and

found there was a wealth of documentary evidence showing that Williams was mentally

incompetent. Id. at 41 (¶22). However, we specifically noted the important question was

“what proof was present as to Williams’s mental capacity on the date the contract was

entered.” Id. at 42 (¶24). The mother’s counsel was asked at oral argument what proof there

was of lack of capacity “on the legally important date.” Id. Counsel pointed to Williams’s

diagnosis of dementia and psychotic disorder with delusions, that Williams suffered from

short-term memory loss, was confused as to time, and signed his agreement “Hawrence

Williams” instead of “Lawrence Williams.” Id. Based on the record in that case, we found

no abuse of discretion by the trial court in determining that Williams did not have the mental

or legal capacity to sign. Id.

¶34. In the case at hand, Durant Healthcare points to medical records before and after

Zion’s admissions to argue that he was competent on June 15, 2017. We agree that the

records show that Zion’s mental status fluctuated between May and July 2017. However, the

circuit court noted, as we did in Perkins, that what is important is Zion’s condition on the

date that the agreement was signed. On that date, we have two medical assessments by

Durant Healthcare personnel. One was from Nurse Practitioner Johnson, which covered her

physical examination of Zion. Although she found him physically neurologically intact, she

made no assessment of his cognitive abilities. But she continued orders for eight medications

16
for Zion, including psychotropic drugs. The other assessment by Nurse Palmertree did

include an evaluation of Zion’s cognitive abilities, including the results of her BIMS of Zion.

She found Zion had short-term memory problems, was disoriented to place and time, and

could not recall the current season or whether he was even in a nursing home. She concluded

that his “cognitive skills for daily decision making” were “severely impaired.” She noted

Zion’s score on the BIMS, which we referred to in Perkins, was a 6 out of 15, indicating

severe impairment. Significantly, during the argument on the motion before the circuit court,

Durant Healthcare admitted that Nurse Palmertree’s assessment did reflect Zion’s condition

on the day of admission.

¶35. The dissent points to two other sections in Nurse Palmertree’s admission assessment

where she checked the box indicating that Zion was “alert and oriented” and that he could

understand “verbal content” with “clear comprehension.” However, a closer examination of

the “alert and oriented x 3” section shows that Nurse Palmertree had crossed out the “x 3”

and also checked that Zion is disoriented in two of the three categories, place and time.

Moreover, the section where there are check-marked boxes that Zion could understand verbal

content with clear comprehension is entitled “Hearing, Speech and Vision,” which merely

determined that Zion could hear, talk, and see. As previously noted, Nurse Palmertree

definitively determined that Zion’s cognition was severely impaired, not just impacted, with

a BIMS score of 6.5

5
The dissent also notes the reason for Zion’s admission—“generalized muscle
weakness with physical deconditioning”—as a fact relating to Zion’s mental capacity at the

17
¶36. The dissent also notes that Zion’s mental evaluation in January 2018 found him

“oriented x3” and able to maintain focus and that he had a higher BIMS score (11 out of 15)

in April 2018. But the dissent also agrees that the most weight should be given to evidence

of Zion’s mental capacity at the time he signed the admission agreement. Post at ¶50. So

his mental capacity seven to ten months later, after he had received mental health services,

is irrelevant to his condition on June 15, 2017. The dissent points to other entries in Zions’s

medical records made during the month before his admission where he was alert and oriented

to person, place, and time.6 We recognize that the Mississippi Supreme Court has noted in

cases dealing with the conveyance of property that mental capacity can change over time,

saying “[t]his Court has recognized that mental incapacity or insanity is not always

permanent, and a person may have lucid moments or intervals when that person possesses

necessary capacity to convey property.” Smith v. Smith, 574 So. 2d 644, 652 (Miss. 1990).

That is why Zion’s condition on June 15, 2017, the day he signed the agreement, is the most

critical evidence for determining whether he had the ability to enter into a binding contract,

as the dissent acknowledges.

time of admission. The dissent misses the point; the issue is not whether Zion was admitted
for physical or mental limitations, but rather whether on the date of his admission he had the
mental capacity to enter into a contract.
6
The dissent notes that prior to his admission to the nursing home, a hospital record
showed that he was alert with a GCS (Glasgow Coma Scale) score of 15, the highest
possible. However, the GCS scale merely measures a person’s level of consciousness after
a brain injury, based on the person’s ability to perform eye movements, speak, and move his
or her body. G. Teasdale & B. Jennett, Assessment of Coma and Impaired Consciousness.
A Practical Scale, 304 The Lancet 7872, at 81-84 (July 13, 1974).

18
¶37. Durant Healthcare argues that Zion’s daughter, Carter, signed a form on that day

saying that she believed Zion was competent. However, there is no proof that Carter was a

medical professional or qualified in any way to form such an opinion. Moreover, the pre-

printed form Carter signed contained no specifics of Zion’s condition that would contradict

the medical assessment made by Nurse Palmertree. We also note that Zion was taking eight

medications, including psychotropic drugs, and his signature on the agreement was nearly

illegible. Given the record before us, we agree with the circuit court that Zion lacked the

mental capacity to sign the agreement on admission and, therefore, the circuit court did not

abuse its discretion.

¶38. Durant Healthcare claimed the need for additional discovery concerning Zion’s

capacity, and the dissent agrees. But nothing prevented Durant Healthcare from submitting

affidavits from Nurse Practitioner Johnson, Nurse Palmertree, or Lana Richardson, the social

worker who witnessed the execution of the admission agreement, as to their recollection of

Zion’s condition, actions, and demeanor at that time, to counter the facility’s own records.

Because a party seeking to compel arbitration may waive that right should it participate in

the litigation process, Miss. Credit Ctr. Inc. v. Horton, 926 So. 2d 167, 180 (¶42) (Miss.

2006), affidavits are routinely used to support or oppose a motion to compel. See E. Ford

v. Taylor, 826 So. 2d 709, 712 (¶¶6-8) (Miss. 2002) (involving a dispute over whether a truck

sold to Taylor was new or used and considering affidavits of Taylor, Taylor’s expert, and the

salesman to determine if an arbitration agreement was enforceable); Dalon v. Ruleville

19
Nursing & Rehab. Ctr LLC., 161 F. Supp. 3d 406, 416 (N.D. Miss. 2016) (considering a

son’s affidavit concerning his mother’s mental capacity).

¶39. There must be a compelling showing that discovery is needed. Am. Gen. Life Ins. Co.

v. Harper, No. 3:15cv605-DPJ-FKB, 2016 WL 430609, at *2 (S.D. Miss. Fed. 3, 2016). In

Harper’s challenge to the arbitration agreement in an insurance policy, the federal district

court reasoned:

Even assuming Harper could now attack the arbitration agreement itself, he
fails to provide a more specific theory as to why the arbitration agreement
might be void or what he hopes to discover about it. Presumably, Harper
possesses personal knowledge regarding what he was told, or should at least
be able to explain a theory. See Bell v. Koch Foods of Miss., LLC, 358 Fed.
Appx. 498, 501 (5th Cir. 2009) (affirming denial of arbitration-related
discovery where movant had personal knowledge of facts and otherwise failed
to show why discovery was needed).

Id. Similarly, here Durant Healthcare had its own personnel who had personal knowledge

of the events on the day of admission and who could provide testimony through their

affidavits. Durant Healthcare did not need to depose Carter to establish those facts.7 Here

there is a nurse’s assessment of Zion’s mental incapacity on the day he signed the agreement,

similar to what the court relied upon in Liberty Health & Rehab of Indianola LLC, 11 F.

7
In its motion for arbitration-related discovery, Durant Healthcare only identified one
person it wanted to depose, Carter. Otherwise it only generically stated that it wanted
discovery “on the issues of (1) Zion Garrette’ s mental competency at the time of admission
to the nursing facility and (2) the circumstances surrounding the execution of the Admission
Agreement.” The dissent goes further to identify other needed depositions, i.e., of treating
physicians, which Durant Healthcare did not name when presenting its motion to the trial
court.

20
Supp. 3d at 687. The dissent contends that discovery is needed because there is no physician

testimony that Zion was incapacitated on that day. However, there is no record that his

treating physician even saw him that day to render such an opinion. Thus, Durant made no

compelling showing of the need for discovery.

¶40. In summary, whether Zion was competent before June 15, 2017, or after is not

relevant when the record contains Durant Healthcare’s own assessment of Zion’s incapacity,

which it admitted was made on the critical day in question. Those assessments show that

Zion was not competent to sign the admission agreement and there was no need for formal

discovery when Durant Healthcare could have presented any evidence to dispute its own

records by affidavit and it did not.

II. Whether Carter had the authority to sign the admission agreement
as Zion’s legal representative.

¶41. Durant Healthcare admits that Carter did not possess a power of attorney,

conservatorship, or other formal legal device to act on Zion’s behalf. However, Durant

Healthcare argues that when Carter signed the admission agreement on a line indicating that

she signed as Zion’s responsible agent, she had the authority to do so. We disagree.

¶42. “The burden of proving an agency relationship rests squarely upon the party asserting

it.” Diversicare, 334 So. 3d at 495 (¶24) (quoting Forest Hill Nursing Ctr. Inc. v. McFarlan,

995 So. 2d 775, 781 (¶13) (Miss. Ct. App. 2008)). Although there is no formality required

for the creation of an agency relationship, “an express agency is generally based on an oral

or written agreement between the principal and the agent.” Id. “Actual authority, also

21
termed express or direct authority, is the authority actually conferred by the principal.”

Newsome v. Peoples Bancshares, 269 So. 3d 19, 28 (¶24) (Miss. 2018). “An express agent

is one who is ‘in fact authorized by the principal to act on their behalf.’” Forest Hill Nursing

Ctr. Inc., 995 So. 2d at 781 (¶13) (citing McFarland v. Entergy Miss. Inc., 919 So. 2d 894,

902 (¶25) (Miss. 2005)). Another form of agency authority is implied authority, which is the

“authority that the principal has by words or conduct held the alleged agent out as having.”

Miss. Bar v. Thompson, 5 So. 3d 330, 336 (¶26) (Miss. 2008).

¶43. A third type of authority, apparent authority, “exists when a reasonably prudent

person, having knowledge of the nature and the usages of the business involved, would be

justified in supposing, based on the character of the duties entrusted to the agent, that the

agent has the power he is assumed to have.” Cent. Indus. Inc. v. McFarlane, 159 So. 3d 610,

614 (¶7) (Miss. Ct. App. 2015). However, in establishing apparent authority, one must first

prove the acts or conduct on the part of the principal that indicate the extent of the agent’s

authority. Id. Thus, to establish any type of agency authority, a claimant must present

sufficient evidence of words, acts, or conduct of the principal to conclude that the agent had

the authority to perform a specific act. Adams Cmty. Care Ctr. LLC, 37 So. 3d at 1160 (¶14).

At the heart of the proof allegedly creating agency, then, are the actions and words of the

principal.

¶44. In this case, other than arguing caselaw that a formal legal device is not needed to

grant actual authority to an agent, Durant Healthcare argues no facts in the record showing

22
that Zion acted in any way that established Carter’s agency. Instead, Durant Healthcare

merely points to Carter’s signature on the admission form that has pre-printed on it the words

“responsible agent.” Durant Healthcare presents no evidence that Carter made any other

independent assertion that she was Zion’s agent, nor is there any form or any document

signed by Zion that appointed Carter as his agent. In addition, Durant Healthcare presented

no affidavit from anyone present at the execution of these documents who relates any other

actions or conversations among the parties from which one could infer the creation of an

agency relationship.

¶45. Although Durant Healthcare argued that arbitration-related discovery should have

been allowed so that deposition testimony could be developed to support its position, nothing

precluded Durant Healthcare from presenting affidavits from its own personnel concerning

the events that transpired at the signing to support its position. Surely, if Zion had said or

done something at the time of admission that established Carter as his agent, those to whom

Durant Healthcare had direct access could have presented such sworn testimony by affidavit.

There was no need for formal discovery on this issue either.

¶46. Because we hold that the circuit court did not err in finding that Zion lacked capacity

to sign the admission/arbitration agreement and that Durant Healthcare failed to present

sufficient proof to establish Carter as his agent to do so, we affirm the circuit court’s denial

of Durant Healthcare’s motion to compel arbitration. Moreover, we find no abuse of

discretion by the circuit court in denying Durant Healthcare’s motion for arbitration-related

23
discovery when Durant Healthcare’s own medical records established Zion’s incapacity to

either sign himself or appoint an agent. Because there was no valid, enforceable contract,

there is no need for us to consider Durant Healthcare’s other issues concerning the

agreement’s conscionability, or equitable estoppel based on the third-party beneficiary of a

contract doctrine.8

Conclusion

¶47. Because the evidence in the record supports the circuit court’s conclusion that the

deceased lacked the mental capacity to sign Durant Healthcare’s admission agreement

containing an arbitration provision and that the decedent’s daughter did not have authority

to sign the agreement as his agent, we affirm the circuit court’s order denying Durant

Healthcare’s motion to compel arbitration. Moreover, because the proof submitted to the

circuit court was sufficiently clear on the issue, we further affirm the circuit court’s order

denying Durant Healthcare’s motion for arbitration-related discovery. These rulings moot

any other issues raised by Durant Healthcare on appeal.

¶48. AFFIRMED.

BARNES, C.J., GREENLEE, WESTBROOKS, McCARTY, SMITH AND
EMFINGER, JJ., CONCUR. LAWRENCE, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. CARLTON, P.J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY WILSON, P.J., AND LAWRENCE, J.

CARLTON, P.J., DISSENTING:

8
“For a third-party beneficiary to exist, a valid contract must first exist.” GGNSC
Batesville LLC v. Johnson, 109 So. 3d 562, 565 (¶7) (Miss. 2013).

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¶49. I respectfully dissent from the majority’s decision to affirm the circuit court’s order

denying Durant’s motion to compel arbitration and motion for arbitration-related discovery

on the issues of (1) Zion’s mental competency when he signed the nursing facility admission

agreement containing the arbitration provision; and (2) the circumstances surrounding the

execution of the admission agreement, including Zion’s express appointment of his daughter,

Carter, as his authorized agent and responsible party. Upon review of the record and the

applicable law, I find that the circuit court abused its discretion in denying Durant’s request

for arbitration-related discovery prior to ruling on Durant’s motion to compel arbitration. I

therefore would reverse the circuit court’s order and remand this case with instructions that

the parties be allowed arbitration-related discovery on these issues.

¶50. As the majority acknowledges, under Mississippi law there is a presumption of mental

competency, Deaundray has the burden of showing a lack of mental capacity on Zion’s part,

and Zion’s lack of mental capacity must be shown by a preponderance of the evidence. The

majority also points out that under Mississippi law, evidence of mental competency at the

time the instrument was executed is entitled to the most weight. See, e.g., Dalon v. Ruleville

Nursing & Rehab. Ctr. LLC, 161 F. Supp. 3d 406, 415 (N.D. Miss. 2016). In this case,

however, the circuit court denied Durant’s request for limited arbitration-related discovery

on this issue—despite the conflicting medical records and the complete lack of any clear

mental-capacity determination by a treating physician. As such, I find that the circuit court

abused its discretion when it denied Durant the opportunity to ensure that all such relevant

25
evidence was presented to the court before it ruled on Durant’s motion to compel arbitration.

¶51. For example, the majority emphasizes an MDS Nurses Summary covering Zion’s date

of admission (June 15, 2017) through June 21, 2017. This summary indicates that Zion was

disoriented as to the place and time; that he had a short-term memory problem; that he could

not name the current season, the location of his room, or any staff names or faces; and that

he did not know whether he was in a nursing home. The summary also indicates a “BIMS”

assessment (Brief Interview for Mental Status) of 6 on a scale of 1-15, putting him in the

severe-cognitive-impact category.

¶52. The same MDS Nurses Summary, however, also indicates that Zion was “[a]lert and

oriented” as to person and that he could understand “verbal content” with “clear

comprehension.” With respect to Zion’s BIMS score of 6 out of 15, I find that this score is

neither definitive nor consistent because Zion subsequently scored an 11 out of 15 on the

BIMS test in April 2018.

¶53. Further, numerous medical records indicate that Zion was competent both shortly

before and after his admission, which conflicts with excerpts from the same medical records

referenced by the majority indicating some cognitive impairment. For example, just one

month prior to being admitted to the nursing facility, Zion was admitted to UMMC Grenada.

Medical records from the neurological and psychiatric exam at the hospital document that

Zion “is alert and oriented to person, place, and time. . . . He has a normal mood and affect.

His behavior is normal. Thought content normal.” Similarly, when Zion was transferred to

26
UMMC Holmes County a week later, these hospital records indicate that he was “alert and

oriented to person, place and time.” Likewise, the neurological exam at the hospital

documents that Zion “is alert, GCS [Glasgow Coma Scale] score is 15,” which is the highest

possible score. To be sure, Zion has a history of psychiatric treatment for depression and

bipolar disorder, but this history of mental health problems does not show a diagnosis of

Alzheimer’s disease or any other finding of mental incompetency. I find no support for any

assumption that a psychiatric condition like bipolar disorder would render a patient unable

to make a contract, particularly when, as here, there is no physician’s finding of lack of

mental incapacity.

¶54. I also observe that on the date of his admission, Zion was evaluated by Nurse

Practitioner Amy Johnson. I find it relevant that the evaluation shows that Zion was admitted

to the nursing facility for physical reasons, “following hospitalization in a swing bed unit for

generalized muscle weakness with physical deconditioning.” Nowhere in that evaluation is

there any indication that Zion was admitted for mental incapacity issues, nor is there any

diagnosis of Alzheimer’s disease or any other condition or finding of mental incompetency.

¶55. Following admission, numerous medical records indicate that Zion was “alert,” that

he “c[ould] fully communicate,” and that he had the “ability to understand others.” A mental

evaluation in January 2018 found that Zion could “maintain[] focus,” had “appropriate and

organized [thought process],” and was “oriented to self, time and place.”

¶56. These varying neurological-function determinations and the lack of any mental

27
capacity determination by a physician made it all the more important that Durant be allowed

its requested arbitration-related discovery. I therefore find that the circuit court abused its

discretion in denying this request prior to ruling on Durant’s motion to compel arbitration.

I recognize that, in general, courts in Mississippi will deny arbitration-related discovery

“absent a compelling showing that such discovery is required.” E.g., Am. Gen. Life Ins. Co.

v. Harper, No. 3:15cv605-DPJ-FKB, 2016 WL 430609, at *2 (S.D. Miss. Feb. 3, 2016). I

find that the above-described circumstances constitute “compelling” reasons to have allowed

arbitration-related discovery in this case with respect to Zion’s mental capacity to make a

contract (i.e., depositions of Zion’s primary treating physician(s) regarding his mental

capacity) and whether an actual agency relationship had been created between Zion and his

daughter.

¶57. The majority suggests that Durant could have obtained affidavits from nursing-facility

personnel regarding Zion’s mental capacity at the time the admission agreement was

executed. This assertion ignores Durant’s inability to depose Zion’s primary treating

physician(s) or to question Carter regarding her representation in her acknowledgment that

she executed on the day of Zion’s admission (that to the best of her personal knowledge her

father had never been declared mentally incompetent and was of sound mind to execute the

admission agreement). And, as noted, Carter also executed the admission agreement on her

father’s behalf as his actual authorized agent and responsible party. Thus, I find that

arbitration-related discovery was also warranted to allow Durant to address Carter’s

28
understanding with respect to this agency relationship.

¶58. I find that an opportunity for this narrow, limited discovery is particularly important

in the arbitration context because Durant, as the party seeking to compel arbitration, was

strictly prohibited from engaging in any form of discovery absent explicit permission from

the circuit court or else risk waiver of the right to arbitrate. See, e.g., Pass Termite & Pest

Control Inc. v. Walker, 904 So. 2d 1030, 1034 (¶12) (Miss. 2004) (“In Mississippi, a party

waives the right to arbitrate when it actively participates in a lawsuit or takes other action

inconsistent with the right to arbitration. Taking advantage of pre-trial litigation such as

answers, counterclaims, motions, requests, and discovery obviates the right to arbitration.”

(citation and internal quotation marks omitted)).

¶59. For all these reasons, I find that the circuit court abused its discretion in denying the

requested limited arbitration-related discovery prior to ruling on Durant’s motion to compel

arbitration. Accordingly, I respectfully dissent.

WILSON, P.J., AND LAWRENCE, J., JOIN THIS OPINION.

29