Kilgore v. Mullenax

Cite as 2016 Ark. App. 143

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-706

Opinion Delivered MARCH 2, 2016

JOSHUA KILGORE APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
SECOND DIVISION
V. [NO. 60CV-15-469]

ROBERT MULLENAX AND SENIOR HONORABLE CHRISTOPHER CHARLES
DENTAL CARE, LLC PIAZZA, JUDGE
APPELLEES
AFFIRMED

DAVID M. GLOVER, Judge

Joshua Kilgore appeals from the trial court’s May 28, 2015 order confirming the

arbitrator’s award (combined interim and final awards) in favor of Robert Mullenax and

Senior Dental Care, LLC. He contends the trial court erred in doing so because 1) Arkansas

public policy forbids an arbitrator from entering an award against a party who communicates

information about fraudulent insurance acts to the Arkansas Insurance Department where

the speaker reasonably believes the information to be true, and 2) the arbitrator lacked

jurisdiction under the Federal Arbitration Act (FAA). We affirm.

Undisputed Facts

In its interim award, the arbitrator set forth the basic facts of this case, which are not

in dispute. We will further condense them here. Robert Mullenax, an insurance agent and

business owner, formed Senior Dental Care, LLC (SDC) with Dr. Chad Matone, an
Cite as 2016 Ark. App. 143

Arkansas dentist. SDC operates a dental-management company, which administers dental

practices that provide dental care to residents of skilled nursing facilities.

Joshua Kilgore, a businessman and licensed nursing-home administrator, approached

Mullenax in late 2010 or early 2011 concerning the acquisition of an interest in SDC.

Kilgore was familiar with the SDC program through his work as an administrator. On

January 1, 2012, Kilgore, Mullenax, Matone, and SDC executed a purchase-and-sale

agreement by which Kilgore was able to purchase membership units in SDC. Section 7 of

the purchase-and-sale agreement provided in part:

a. In further consideration of the transfer to Buyer [Kilgore], buyer agrees that he
will not Directly or Indirectly, at any time during which he has an ownership
interest in the Company [SDC] and for two (2) years thereafter

i. form or be employed by, act as an agent for, or otherwise participate
in any sole proprietorship, venture, corporation, partnership, or other
entity that is in the business of providing dental care to residents of
skilled nursing facilities or assisted living facilities within the state of
Arkansas;

ii. solicit work from or provide such dental services to a Customer of the
Company or seek to cause any Customer to refrain, in any respect,
from acquiring services from or through the Company[.]

Although Matone subsequently left SDC, an addendum to the purchase-and-sale agreement

was executed, leaving the noncompete provisions of the agreement in full force and effect

between the remaining owners, Mullenax and Kilgore.

A conflict subsequently developed between Mullenax and Kilgore, resulting in the

May 2013 execution of a confidential-settlement agreement and full release (settlement

agreement). The parties thereby agreed that they had continuing obligations under the

purchase-and-sale agreement and that those continuing obligations included the

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noncompete provisions. They further agreed that the two-year time period for the

noncompete provisions would begin on April 1, 2013, and end on April 1, 2015.

The settlement agreement provided in part

Kilgore will not disclose, communicate, make public or publicize in any
manner any disparaging or defamatory comments about Mullenax or the Companies
[Senior Dental Care, LLC, ConceptBLU, LLC, and VitalSound, LLC] or any
statements that impugn, disparage, discredit, or detract from Mullenax or the
Companies.

....

Kilgore further agrees to terminate all contractual obligations that he or any
company controlled by him had with the Companies, including, but not limited to,
the Kilgore Consulting Group, LLC (“KCG”) Consulting Services Agreement with
SDC dated November 1, 2012.

Both the purchase-and-sale and the confidential-settlement agreements provided that

disputes were to be settled by arbitration under the rules of the American Arbitration

Association (AAA).

On June 1, 2013, Kilgore acquired an ownership interest in Care Services

Management, LLC (CSM). CSM markets the dental services of Marquis Mobile Dental

Services, LLC (MMDS) in the State of Arkansas and elsewhere. It also markets other medical

services. CSM’s offices are located in the State of Tennessee. CSM and MMDS operate out

of the same location in Tennessee. MMDS and SDC are competitors. CSM uses marketing

materials in Arkansas that contain a separate page labeled “Dental Services,” which provides

in part:

CSM is able to offer Dental services to all of our clients through the use of
two different leaders in on site Dental services, providing one of the only truly legal
means of providing dental care in the Long Term Care setting.

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SDC’s vice president testified that after Kilgore withdrew from SDC, nineteen

facilities sent termination notices to either Senior Care Solutions or Senior Works, which

are companies affiliated with the SDC dental program.

On January 16, 2014, Mullenax and SDC filed a demand for arbitration with the

AAA. Kilgore subsequently called the Arkansas Insurance Department (Insurance

Department) and alleged possible fraudulent insurance acts committed by Mullenax and

SDC. The Insurance Department thereafter initiated an investigation concerning Mullenax

and the SDC program. Apparently, nothing of consequence resulted from the investigation,

but Mullenax testified that he and SDC spent $7,105 in attorney’s fees and related expenses

as a result of the investigation.

Mullenax testified he found it strange that shortly after Kilgore left, nineteen facilities

terminated their relationships with SDC-affiliated companies. He acknowledged, however,

he had no evidence that anyone left SDC because of any defamation.

Kilgore explained his motivation for calling the Insurance Department was to “see if

[he] could use a particular situation as a defense.” He further testified,

I wanted her [an attorney with the Insurance Department] to know that my
call was about looking at a couple of defensible angles because I felt like if I could
prove that some of the things that he was doing were not allowed under the Arkansas
insurance laws, then it would—it would essentially wipe out— . . . any other—any
claim that he would have under the noncompete. And at that point in time, that
appeared to be the biggest you know situation there, so . . . .

Kilgore then became unhappy with the progress of the Insurance Department’s

investigation, and he talked to Senator Percy Malone about it. Senator Malone contacted

the Insurance Department and reported Kilgore had some information that might interest

them.

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Also, shortly after terminating his relationship with Mullenax and SDC, Kilgore

asked Dr. Richard Wike, who was providing optometry services for the Mullenax program,

whether “he was still doing the illegal kickback deal with Bob Mullenax.” Dr. Wike had

been serving Kilgore’s nursing facilities until Kilgore terminated his relationship with

Mullenax and SDC.

At least two persons testified that Kilgore approached them about his new dental

program and stated it was better than that offered by Mullenax, offering one of the persons

the brochure that stated CSM provided one of the “only truly legal” means of providing

dental care in long-term care (LTC) settings. However, all of the witnesses who testified

on the issue stated they did not abandon SDC services because of Kilgore.

Kilgore challenges the arbitrator’s exercise of jurisdiction under the Federal

Arbitration Act as his second point of appeal. For ease of discussion, we address it first and

find no error.

Arbitrator’s Jurisdiction

The issue of whether the arbitrator’s jurisdiction should be exercised pursuant either

to the federal or to the state arbitration act was presented to the arbitrator, and he concluded

the FAA governed. The trial court confirmed the arbitration award, finding that “the

Arbitration Award of the Arbitrator was proper and that there is no basis for vacating,

modifying, or correcting the Arbitration Award,” and specifically noting in his posthearing

rulings that the arbitrator had fully discussed the jurisdiction issue.

Kilgore contends the arbitrator erred in deciding this case was governed by the FAA

because the federal act requires a contract evidencing a transaction in commerce, which he

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argues did not exist here. We find no reason to vacate the award based on the arbitrator’s

exercise of jurisdiction under the federal act.

The arbitration clauses of both agreements that were at issue in the underlying

arbitration (purchase-and-sale agreement and confidential-settlement agreement) provided

that disputes were to be settled by arbitration “in accordance with the rules . . . of” or

“under the auspices of” the AAA. As explained by the arbitrator, Rule 7 of the Rules of the

AAA provides that the “arbitrator shall have the power to rule on his or her own

jurisdiction, including any objections with respect to the existence, scope, or validity of the

arbitration agreement or to the arbitrability of any claim or counterclaim.”

In addressing the jurisdictional questions, the arbitrator explained that the FAA

applied to all contracts “evidencing a transaction involving commerce.” In addressing the

basic question of “What is a transaction involving commerce?” the arbitrator cited a 1995

United States Supreme Court case, Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S.

265, and explained the Supreme Court concluded that an expansive interpretation of the

FAA was correct, viewing “commerce” broadly, observing that the words “involving

commerce” are broader than the more commonly used words “in commerce,” and holding

that use of the term “involving commerce” in the FAA “signals an intent to exercise

Congress’ commerce power to the full.” The arbitrator further explained that the Court in

Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003), addressed the question as to whether the

contracts must involve commerce or whether they simply must be the types of contracts in

general that involve commerce and concluded that “the proper focus of the inquiry is not

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upon the individual transaction, but upon ‘consideration of the ‘general practice’ those

transactions represent.”

With that backdrop, the arbitrator explained,

In the arbitration at hand, it is noted that the parties have agreed in the
Purchase and Sale Agreement to arbitrate “[a]ny dispute or controversy between the
parties arising out of or otherwise relating to this Agreement,” and in the
Confidential Settlement Agreement and Full Release to arbitrate “any dispute arising
under this Agreement.” Although the covenant-not-to-compete covers only activity
in Arkansas, Claimant has presented evidence that Kilgore became an owner of a
Tennessee business that competes with SDC and Mullenax’s affiliated dental service
companies in Arkansas. Further, the dental services of both SDC and its Tennessee
competitor receive monies from federal Medicare and Medicaid, which are “certainly
subject to Congress’ power to regulate.” Medical supplies and equipment used in
Arkansas by both the Arkansas and Tennessee competitors are purchased and
transported in interstate commerce. Because the agreements and their prohibited
activities “involve interstate commerce” and are the type of activities that usually
“involve interstate commerce,” the FAA applies to this arbitration and both the
contract and tort claims shall be addressed and decided in this arbitration.

Under the AAA rules, which the parties designated as applicable under both

agreements, the arbitrator decides jurisdictional issues. The trial court specifically noted in

its ruling at the conclusion of the hearing confirming the arbitrator’s award that the arbitrator

had fully discussed the jurisdiction issue. We agree. The arbitrator fully discussed the issue,

cited applicable cases, explained the concept of interstate commerce under those cases,

described the contracts, and concluded that the nature of the contracts involved here

brought them within interstate commerce. We are not convinced by Kilgore’s argument

that the arbitrator lacked jurisdiction under the FAA and that the arbitration award should

be vacated on that basis.

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Public Policy

Kilgore’s remaining point of appeal contends that the arbitration award should be

vacated because it violates Arkansas public policy. He asserts the arbitrator exceeded his

powers because Arkansas Code Annotated section 23-60-111 (Repl. 2012) sets forth

Arkansas public policy that “no civil cause of action of any nature shall arise against the

person for supplying any information” to the Insurance Department relating to suspected

fraudulent insurance acts. He argues this statute forbids an arbitrator from entering an award

against a party who communicates information about fraudulent insurance acts to the

Arkansas Insurance Department where the speaker reasonably believes the information to

be true. Again, we find no basis for vacating the arbitration award.

Because we have rejected Kilgore’s challenge to the arbitrator’s exercise of

jurisdiction under the FAA, we examine his public-policy challenge under the grounds for

vacating arbitration awards set forth in 9 U.S.C. § 10:

(1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of
them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the
hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent
and material to the controversy; or of any other misbehavior by which the rights
of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly executed them
that a mutual, final, and definite award upon the subject matter submitted was
not made.
The Eighth Circuit Court of Appeals, while recognizing that an arbitrator’s broad

authority is not unlimited, outlined the general parameters employed in reviewing

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arbitration decisions in Medicine Shoppe International, Inc. v. Turner Investments, Inc., 614 F.3d

485, 488 (2010):

“When reviewing a district court’s order confirming an arbitration award, we
review de novo questions of law, but we accept the district court’s factual findings
unless clearly erroneous.” Although we review de novo the district court’s legal
conclusions, we provide “an extraordinary level of deference” to the underlying
arbitration award. Courts have no authority to reconsider the merits of an arbitration
award, even when the parties allege that the award rests on factual errors or on a
misinterpretation of the underlying contract. “The bottom line is we will confirm
the arbitrator’s award even if we are convinced that the arbitrator committed serious
error, so long as the arbitrator is even arguably construing or applying the contract
and acting within the scope of his authority.”

(Citations omitted.) The Medicine Shoppe opinion further explains that, prior to the United

States Supreme Court decision in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576

(2008), a court could vacate arbitration awards on grounds other than those listed in the

FAA. In Hall, however, the Court held that “‘the text [of the FAA] compels a reading of

the §§ 10 and 11 categories as exclusive.’” Medicine Shoppe, 614 F.3d at 488.

We wrestled with Kilgore’s public-policy argument, but we concluded Arkansas

Code Annotated section 23-60-111 and the facts presented in this case do not provide

the type of basis for vacatur envisioned by 9 U.S.C. § 10(4). The arbitrator clearly had

the “power” to address the issue before him, i.e., whether Kilgore violated the

nondisparagement clause of the Settlement Agreement, and he fully explained why he

concluded that Kilgore did violate that clause. In discussing the specific disparagement

findings related to Kilgore’s contact with the Insurance Department, the arbitrator was

careful to note that Kilgore’s “primary motivation was not protecting the interest of the

public but to gain an advantage in the arbitration that SDC and Mullenax had filed against

him, thinking that to discredit or disparage Mullenax might give him an advantage and result

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in the dismissal of the arbitration.” Given the arbitrator’s broad authority, the extraordinary

level of deference we provide to the underlying arbitration award, our limited judicial

review of arbitration decisions under 9 U.S.C. section 10, and Kilgore’s acknowledgment

that his motivation for contacting the Insurance Department was strategic in nature for his

own benefit—not out of a sense of public interest—we have concluded he has not

demonstrated that the arbitrator exceeded his power to any extent necessary to vacate the

arbitration award pursuant to 9 U.S.C. section 10(4).

Affirmed.

ABRAMSON and HARRISON, JJ., agree.

Smith, Cohen & Horan, PLC, by: Matthew T. Horan and Stephen C. Smith, for

appellant.

Gill Ragon Owen, P.A., by: Dylan H. Potts and Danielle M. Whitehouse, for appellees.

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