St. Dominic Ambulatory Surgery Center, LLC v. Cailton Shaffer, II, Individually and on behalf of the Estate of Shelia Shaffer, and Wrongful Death Beneficiaries of Shelia Shaffer v. Lori Marshall, M.D.

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CA-01158-COA

ST. DOMINIC AMBULATORY SURGERY APPELLANT
CENTER, LLC

v.

CAILTON SHAFFER, II, INDIVIDUALLY AND APPELLEE/
ON BEHALF OF THE ESTATE OF SHELIA CROSS-APPELLANT
SHAFFER, DECEASED AND WRONGFUL
DEATH BENEFICIARIES OF SHELIA
SHAFFER, DECEASED

v.

LORI MARSHALL, M.D. CROSS-APPELLEE

DATE OF JUDGMENT: 07/11/2019
TRIAL JUDGE: HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: MILDRED M. MORRIS
TREMARCUS D’RAY KESHON ROSEMON
TIMOTHY LEE SENSING
ATTORNEYS FOR APPELLEES: JOE N. TATUM
WHITMAN B. JOHNSON III
LORRAINE WALTERS BOYKIN
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: ON DIRECT APPEAL: AFFIRMED. ON
CROSS-APPEAL: AFFIRMED - 06/08/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ.

GREENLEE, J., FOR THE COURT:

¶1. Cailton Shaffer, individually and on behalf of the estate of Shelia Shaffer, sued Dr.

Lori Marshall, St. Dominic Ambulatory Surgery Center LLC (Surgery Center), and St.
Dominic Hospital in the Hinds County Circuit Court. Subsequently, on August 14, 2018, Dr.

Marshall filed a motion to compel arbitration. On October 23, 2018, the Surgery Center

moved to join Dr. Marshall’s motion to compel arbitration. Cailton objected to arbitration,

claiming that Shelia’s signature on the arbitration agreement had been forged. After a hearing

on the forgery allegation, the circuit court granted the motion to compel arbitration for the

claims against Dr. Marshall but denied arbitration as to the Surgery Center’s claims. From

this judgment, the Surgery Center appeals, and Cailton cross-appeals. We affirm the circuit

court’s decision, finding that the circuit court did not err in granting the motion to compel

arbitration of Dr. Marshall’s claims, and denying the Surgery Center’s joinder to compel

arbitration.

FACTS AND PROCEDURAL HISTORY

¶2. On January 5, 2016, during a medical appointment, Shelia was presented with a

Clinic-Physician-Patient Arbitration Agreement. The terms of the agreement provided that

if a claim or controversy arose from Dr. Lori Marshall’s medical services, those claims would

be submitted to arbitration according to the Federal Arbitration Act (FAA). The agreement

had to be signed by both the patient and a witness. Shelia signed the agreement on January

5, 2016. Dr. Marshall’s business and office manager, Gwen Brister, signed as the witness.

¶3. On August 9, 2017, Shelia underwent a cervical epidural steroid injection procedure.

Dr. Marshall performed this procedure at St. Dominic Ambulatory Surgery Center. After

being given the steroid injection, Shelia became apneic and unresponsive. Dr. Marshall

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attempted to use a defibrillator machine provided by the Surgery Center, but the device

malfunctioned, causing a delay in Dr. Marshall’s efforts to resuscitate Shelia. On August 17,

2017, nine days after being admitted to St. Dominic Hospital’s Intensive Care Unit, Shelia

died.

¶4. On June 29, 2018, Shelia’s husband, Cailton Shaffer, brought a negligence action

against Dr. Marshall, the Surgery Center, and St. Dominic Hospital. The complaint alleged

that Dr. Marshall, the Surgery Center, and St. Dominic Hospital were negligent in the care

and treatment of Shelia during and after the surgical procedure.

¶5. On August 14, 2018, Dr. Marshall filed a motion to compel arbitration. The basis for

this motion was the arbitration agreement executed during Shelia’s January 5 appointment.

Dr. Marshall argued that Cailton was bound by this agreement, as the agreement stated it was

binding on Shelia’s “heirs-at-law or personal representatives.” On October 23, 2018, the

Surgery Center sought to join Dr. Marshall’s motion to compel arbitration.

¶6. In response, Cailton contended that the arbitration agreement was invalid. He argued

that cutting and pasting Shelia’s signature to the agreement constituted forgery. On June 28,

2019, the circuit court held an evidentiary hearing on Dr. Marshall’s motion to compel

arbitration. In support of his position, Cailton offered the testimony of a handwriting expert,

Robert Foley. Foley concluded that while Shelia’s signature was likely genuine, the signature

was not the original and had been “cut and pasted” to the arbitration agreement from another

document in Dr. Marshall’s possession.

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¶7. Dr. Marshall and Brister testified on Dr. Marshall’s behalf. Brister explained that

while she did not personally remember Shelia, it was the policy of the clinic to give patients

documents to sign upon checking in for their appointment. Although Brister did not

physically watch Shelia sign the documents, she confirmed that she only signs the agreements

after the patients returned the signed forms to her.

¶8. In order to determine if Shelia’s signature had been forged or copied, Dr. Marshall

engaged and submitted an affidavit from a computer-science expert, Dr. April Tanner. Dr.

Tanner explained that to preserve Dr. Marshall’s medical records, the arbitration agreement

had been scanned into a cloud-based health records storage system. Dr. Tanner also

explained that the software used did not allow modifications to a document after it was

uploaded into the system. The software verified that the agreement had been scanned in on

January 5, 2016.

¶9. After hearing expert testimony, it was uncontested that the signature on the agreement

was indeed Shelia’s. Finding that Cailton failed to meet his burden and prove that the

signature had been fabricated or “cut and pasted,” the circuit court entered an order granting

Dr. Marshall’s motion to compel arbitration and, in a separate order, denied the Surgery

Center’s request to arbitrate. The Surgery Center appeals and argues that the circuit court

erred by not compelling Cailton to arbitrate his claims against the Surgery Center. Cailton

cross-appealed arguing that the court erred in compelling arbitration on the claims against

Dr. Marshall.

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DISCUSSION

¶10. When determining whether a party may compel arbitration, the court applies a two-

prong analysis. Smith v. Express Check Advance of Miss. LLC, 153 So. 3d 601, 606 (¶11)

(Miss. 2014). The first prong is to determine whether the parties agreed to arbitrate the

dispute, and second, if they did agree to arbitrate, “whether legal constraints external to the

parties’ agreement foreclosed the arbitration of those claims.” Scruggs v. Wyatt, 60 So. 3d

758, 766 (¶11) (Miss. 2011). “The first prong is two-fold in that the court considers whether

there is a valid arbitration agreement and whether the parties’ dispute is within the scope of

the arbitration agreement.” Id. The second prong requires the court to ask whether “any

federal statute or policy renders the claims nonarbitrable.” Sherer v. Green Tree Servicing

LLC, 548 F.3d 379, 381 (5th Cir. 2008). For ease of discussion, we address the issue on

cross-appeal first.

I. Cailton’s Cross-Appeal

¶11. Mississippi law favors valid arbitration agreements. B&S MS Holdings LLC v.

Landrum, 302 So. 3d 605, 609 (¶11) (Miss. 2020) (citing Harrison Cnty. Com. Lot LLC v.

H. Gordon Myrick Inc., 107 So. 3d 943, 949 (¶12) (Miss. 2013)). For this reason, we review

the grant or denial of a motion to compel arbitration de novo. Cmty. Bank of Miss. v. Stuckey,

52 So. 3d 1179, 1181 (¶12) (Miss. 2010).

¶12. Cailton asserts that the circuit court erred in compelling arbitration on the claims

against Dr. Marshall and should have invalidated Dr. Marshall’s arbitration agreement.

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Specifically, Cailton contends that Shelia’s signature was “cut and pasted” from another

document and placed on Dr. Marshall’s arbitration agreement and is thus a forgery.

¶13. If the court finds, as it did here, that a valid arbitration agreement exists and the

allegations fall within the agreement’s scope, the second prong of the test is triggered. The

second prong asks “whether legal constraints external to the parties’ agreement foreclosed

arbitration . . . .” Rogers-Dabbs Chevrolet-Hummer Inc. v. Blakeney, 950 So. 2d 170, 173

(¶12) (Miss. 2007). “[S]tate contract defenses may invalidate the agreement to arbitrate as

they would any other contractual provision.” Smith, 153 So. 3d at 606 (¶11). An arbitration

agreement may be invalidated under state contract law without offending the FAA if an

applicable contract defense such as fraud, duress, or unconscionability is available. E. Ford

Inc. v. Taylor, 826 So. 2d 709, 713 (¶10) (Miss. 2002). The party resisting arbitration carries

the burden of proving that a contract defense is applicable. Norwest Fin. Miss. Inc. v.

McDonald, 905 So. 2d 1187, 1193 (¶11) (Miss. 2005).

¶14. Our supreme court is clear that “when . . . consider[ing] whether legal constraints exist

external to the agreement, which might invalidate the arbitration provisions, the existence of

fraud in the formation of the contract may be considered.” Blakeney, 950 So. 2d at 177 (¶17)

(citing Cleveland v. Mann, 942 So. 2d 108, 112 (¶9) (Miss. 2006)). By definition, forgery is

a form of fraud and must be proven by clear and convincing evidence. Cotton v. McConnell,

435 So. 2d 683, 686 (Miss. 1983). Clear and convincing evidence is a high standard. Id.

¶15. Cailton argues that no valid arbitration agreement existed since Shelia’s signature

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constituted forgery. In support of this defense, Cailton offered the opinion of a forensic

document examiner and handwriting expert, Robert Foley. Foley compared Shelia’s signature

from the arbitration agreement to her other signatures found on several different personal

documents. He testified that the signature on the agreement was

originally a genuine signature appearing on an unknown document which was
copied and affixed to the Q-1 questioned document via fabrication, i.e., by an
electronic/digital/physical cut out process similar to what is causally known as
a “cut and paste” method.

¶16. After examining the signed arbitration agreement and a blank arbitration form, Foley

also determined that the documents were two different forms based on several

inconsistencies. These discrepancies included toner depth and debris, different font designs

and sizes, and various text deviations.

¶17. The expert’s opinion, given during an evidentiary hearing on April 16, 2019, did not

leave the court with a firm conviction that Shelia’s signature was forged. The court found

that there was no dispute that the signature was Shelia’s. The circuit judge acknowledged the

document’s inconsistencies that showed that the form appeared to have been copied.

However, the judge also pointed out that the appearance is expected based on the passage of

time and whether the documents were produced in different years. On cross-examination,

Foley admitted that in reaching his conclusion, he never saw the screenshot of the signed

arbitration agreement found in Dr. Marshall’s computer system. He also admitted that at the

time he compared the blank arbitration agreement to that of Shelia’s, he was unaware that

the blank document was not created until 2018 and, thus, not the same document as Shelia’s

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signed arbitration agreement. Foley testified further that his opinion was not based on a

degree of certainty but rather a degree of probability. Therefore, the court ruled that the

discrepancies “in no way indicate[] to the court by a preponderance of the evidence or either

by clear and convincing evidence that it had been altered or that it was a cut and paste job.”

¶18. Cailton argues that in compelling arbitration, the circuit court basically granted a

summary judgment. In support of his argument, Cailton relies on American Family Life

Assurance Co. of Columbus v. Biles, No. 3:10CV667TSL-FKB, 2011 WL 4014463, at *11

(S.D. Miss. Sept. 8, 2011). Therein, the court held that if the plaintiff’s expert survived a

Daubert1 challenge, then summary judgment should be denied, and the parties should

proceed to trial. However, in our present case, the court did not grant summary judgment but

compelled arbitration because the party opposing arbitration failed to meet its burden.

Norwest Fin., 905 So. 2d at 1193 (¶11). The decision on compelling arbitration is for the

court. See Federal Arbitration Act, 9 U.S.C. § 1-16. Our Court has held “[t]he right to compel

arbitration is a legal question.” Citibank N.A. v. Stovall, 211 So. 3d 700, 701 (¶6) (Miss. Ct.

App. 2016) (quoting Briovarx LLC v. Transcript Pharm. Inc., 163 So. 3d 311, 315 (¶14)

(Miss. 2010)).

¶19. Our caselaw is well-established that “[a] claim of fraud has to be clearly alleged, and

. . . the facts and circumstances relied upon must be proved by clear and convincing

evidence.” Frisby v. Warden, 269 So. 3d 371, 376 (¶13) (Miss. Ct. App. 2018). Cailton failed

1
Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 589 (1993).

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to meet this burden. While the judge noted the inconsistences mentioned by Foley in the

document, she also explained that “said testimony is overshadowed by Plaintiff[’s]

stipulation that the signature on the arbitration agreement is authentic.” Furthermore, the

judge heard testimony by Brister, who confirmed that she only signed the agreements after

the patients returned the signed forms to her. The circuit court did not err by finding that the

evidence of forgery did not rise to the level of clear and convincing. We affirm the circuit

court’s order granting Dr. Marshall’s motion to compel arbitration.

II. The Surgery Center’s Direct Appeal

¶20. The Surgery Center asserts that the circuit court erred by denying its joinder in the

motion to compel arbitration because Cailton’s allegations against the Surgery Center

touched the matters covered within its scope and were inextricably intertwined with those

against Dr. Marshall. The Surgery Center also asserts that Cailton’s allegations arose out of

services rendered by Dr. Marshall and the Surgery Center and, therefore, fall within the

arbitration agreement.

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

Inc., 826 So. 2d at 713 (¶9).

¶22. Mississippi acknowledges the strong federal policy favoring arbitration. Adams v.

Greenpoint Credit LLC, 943 So. 2d 703, 708 (¶14) (Miss. 2006). However, “a party will not

be required to submit to arbitration any dispute which he has not agreed so to submit.”

Pinnacle Trust Co. LLC v. McTaggart, 152 So. 3d 1123, 1127 (¶14) (Miss. 2014). Despite

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that, in rare circumstances, “a nonsignatory party may be bound to an arbitration agreement

if so dictated by the ordinary principles of contract and agency.” Miss. Care Ctr. of

Greenville LLC v. Hinyub, 975 So. 2d 211, 216 (¶11) (Miss. 2008) (quoting Washington Mut.

Fin. Group LLC v. Bailey, 364 F.3d 260, 266 (5th Cir. 2004)).

¶23. Whether this case presents one of those rare circumstances where arbitration may be

compelled against a non-party turns solely on the first prong—whether the parties agreed to

arbitrate the dispute. In other words, we are asked to determine whether Cailton has agreed

to arbitration with a non-signatory, the Surgery Center. If this Court determines that the

parties did not agree to arbitrate the dispute at issue, the analysis ends. Caplin Enters. Inc.

v. Arrington, 145 So. 3d 608, 613 (¶8) (Miss. 2014). Otherwise, we continue our analysis by

addressing the second prong—“whether legal constraints external to the parties’ agreement

foreclosed arbitration of those claims.” Id.

i. Whether the parties agreed to arbitrate the dispute.

¶24. As discussed above, “[w]ho is actually bound by an arbitration agreement is a function

of the intent of the parties, as expressed in the terms of the agreement.” Sherer, 548 F.3d at

381 (citing Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 347, 355 (5th Cir. 2003)).

Where an agreement’s terms fail to identify when a signatory may be compelled to arbitrate

with a non-signatory, the court may explore various contract and agency law theories,

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including equitable estoppel,2 to determine the rights of a non-signatory. Here, the Surgery

Center claims that this Court has no reason to explore these other theories since the

arbitration agreement’s language is broad and indicates “the Surgery Center’s ability to join

the arbitration.”

¶25. “Courts often characterize arbitration language as either broad or narrow.” MS Credit

Ctr. Inc. v. Horton, 926 So. 2d 167, 175 (¶24) (Miss. 2006). “Broad arbitration language

governs disputes ‘related to’ or ‘connected with’ a contract, and narrow arbitration language

requires arbitration of disputes that directly ‘arise out of’ a contract.” Id. at 176 (¶24)

(quoting Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1067 (5th

Cir. 1998)). “Because broad arbitration language is capable of expansive reach, courts have

held that ‘it is only necessary that the dispute ‘touch’ matters covered by [the contract] to be

arbitrable.’” Id. at (¶25) (quoting Pennzoil, 139 F.3d at 1068). The arbitration agreement

given by Dr. Marshall’s clinic, Premier Pain Care, states in relevant part:

[“Patient”] engages Premier Pain Care, P.C. or employee thereof (“Clinic”)
and each Physician or Nurse Practitioner who renders medical care and
services in conjunction with Patient’s medical care. For and in partial
consideration of the rendition of any and all present and future medical care
and services, Patient agrees that in the event of any dispute, claim, or
controversy arising out of the performance of medical services, including but
not limited to, patient fees, informed consent, negligence or medical
malpractice, between Patient (whether a minor or an adult) or the heirs-in-laws
or personal representative of Patient, as in the case may be, and the Clinic and

2
Other theories considered by the court include: (1) incorporation by reference, (2)
assumption, (3) agency, (4) veil-piercing or alter ego, and (5) third-party beneficiary. Bridas,
345 F.3d at 356.

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each Physician individually, where the claim or the amount in controversy
exceeds $5,000, such dispute or controversy shall be submitted to JAMS, or
its successor, on an arbitration form for final and binding arbitration.

(Emphasis added).

¶26. According to the Surgery Center, the phrase “arising out of” as used in the above

arbitration agreement is classified as a broad provision. Pennzoil, 139 F.3d at 1067.

However, the above language does not include the “related to” type language but rather

states, “arising out of the performance of medical services . . . .” That language is narrower

and is limited to the “Clinic and each Physician individually.” “[I]f the clause is ‘narrow,’

arbitration should not be compelled unless the court determines that the dispute falls within

the clause.” Sealey v. Johanson, 175 F. Supp. 3d 681, 686 (S.D. Miss. 2016) (quoting Sedco

Inc. v. Petroleos Mexicanos Mexican Nat’l Oil Co. (Pemex), 767 F.2d 1140, 1145 n.10 (5th

Cir. 1985)).

¶27. Based on its language, the arbitration agreement is not so broad as to allow the

Surgery Center, as a non-signatory, to compel arbitration. We now address whether Cailton’s

claims against the Surgery Center fall within the scope of the arbitration agreement.

ii. Whether Cailton’s claims against the Surgery Center fall
within the scope of the arbitration agreement.

¶28. The Surgery Center argues that the allegations against it fall within the scope of the

arbitration agreement. However, the agreement governs claims between the patient or

patient’s representative and the clinic, Premier Pain Care, and each of the clinic’s physicians

in their individual capacity.

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¶29. Arbitration provisions are “contractual in nature,” and therefore, “the general rule is

that ‘a party cannot be required to submit to arbitration any dispute which he has not agreed

to submit.’” Scruggs, 60 So. 3d at 767 (¶20) (citing Qualcomm Inc. v. Am. Wireless License

Group, 980 So. 2d 261, 269 (¶15) (Miss. 2007)). Since Shelia was unaware that by signing

the arbitration agreement she would agree to arbitrate any claims against the Surgery Center,

a non-signatory not listed as an entity covered by the agreement, we cannot find that these

claims fall within the scope of the arbitration agreement.

¶30. Given that Shelia did not agree to arbitrate with the Surgery Center, a non-signatory,

our arbitration analysis concerning the Surgery Center ends here. The circuit court did not

err by denying the Surgery Center’s motion to compel arbitration.

iii. Whether the “intertwined claims” test grants the Surgery
Center standing to compel arbitration.

¶31. Since this Court disagrees with the Surgery Center’s assertion regarding the broad

language of the agreement “touching” Cailton’s claims and thus allowing the center to

compel arbitration, the Surgery Center asks this Court to consider alternative theories on

which a non-signatory may compel arbitration.

¶32. The general rule that non-signatories may not be bound is not without several

recognized exceptions. Qualcomm Inc., 980 So. 2d at 269 (¶17). Our supreme court has

acknowledged that “[s]tate law principles might provide for the arbitration of disputes

between a non[-]signatory and a signatory to a contract, where there are allegations of

substantially interdependent and concerted misconduct.” Sawyers v. Herrin-Gear Chevrolet

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Co., 26 So. 3d 1026, 1038 (¶32) (Miss. 2010). “However, a third party who is a non-

signatory to a contract should not be able to enforce an arbitration agreement, under the

intertwined claims test, where there is no alter ego, parent/subsidiary, agency, or other form

of close legal relationship alleged, and where the ‘intertwined claims’ do not depend on the

agreement . . . .” Id. at 1038-39 (¶32). In other words, “a non-signatory may be able to

enforce an arbitration agreement against a signatory where the non-signatory has a close legal

relationship with a signatory of the agreement.” Qualcomm, 980 So. 2d at 269 (¶17).

¶33. The Surgery Center asserts that Cailton’s allegations against the Surgery Center and

Dr. Marshall involve “substantially interdependent and concerted misconduct” between Dr.

Marshall (a signatory) and the Surgery Center (a non-signatory). The Surgery Center also

claims that Cailton “clearly alleged that a close legal relationship exist[ed] between Dr.

Marshall and the Surgery Center,” and, therefore, the Surgery Center is entitled to compel

arbitration. However, this issue is a question of contract interpretation.

¶34. This Court must “accept the plain meaning of a contract as the intent of the parties if

no ambiguity exists.” B.C. Rogers Poultry Inc. v. Wedgeworth, 911 So. 2d 483, 487 (¶8)

(Miss. 2005). “Contracts are solemn obligations and the Court must give them effect as

written.” IP Timberlands Operating Co. Ltd. v. Denmiss Corp., 726 So. 2d 96, 108 (¶50)

(Miss. 1998). Furthermore, we do “not override the clear intent of the parties, or reach a

result inconsistent with the plain text of the contract, simply because the policy favoring

arbitration is implicated.” Olshan Found. Repair Co. of Jackson LLC v. Moore, 251 So. 3d

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725, 728 (¶7) (Miss. 2018) (quoting B.C. Rogers, 911 So. 2d at 487 (¶8)).

¶35. Here, based on the contract’s plain terms, it is clear that the parties did not agree to

include the benefit of the arbitration agreement to non-signatories. The arbitration

agreement’s language does not include a single word or phrase that expresses an intent by

the parties that the arbitration clause should include the Surgery Center. On the contrary, the

plain language states otherwise.

¶36. The title of the arbitration agreement reads: “Clinic-Physician-Patient Arbitration

Agreement.” Directly above the title line is the heading “Premier Pain Care, P.C.” On

January 5, 2016, Dr. Marshall’s clinic provided Shelia with the arbitration agreement, which

she signed. Brister, in her capacity as Dr. Marshall’s business and office manager, signed as

the document’s witness.

¶37. Furthermore, the contract reads that disputes may be submitted to arbitration by either

of the parties. Since the Surgery Center was neither a party nor a signatory to the arbitration

agreement, it is not entitled to arbitration. As stated above, this Court must “accept the plain

meaning of a contract as the intent of the parties if no ambiguity exists.” B.C. Rogers, 911

So. 2d at 487 (¶8).

¶38. For these reasons, the circuit court did not err by refusing to allow the Surgery

Center’s joinder compelling arbitration. The provision’s plain language is clear as to who

may seek arbitration.

CONCLUSION

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¶39. For the foregoing reasons, we affirm the judgment of the circuit court.

¶40. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.

BARNES, C.J., WESTBROOKS, McDONALD, LAWRENCE, McCARTY,
SMITH, AND EMFINGER, JJ., CONCUR. WILSON, P.J., CONCURS IN PART
AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON,
P.J., NOT PARTICIPATING.

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