Mobile Nursing and Rehabilitation Center, LLC, and Michael Britton v. Jeanne Sliman, as personal representative of the Estate of Ernest Sliman

Rel: October 17, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2025-2026

_________________________

SC-2025-0303
_________________________

Mobile Nursing and Rehabilitation Center, LLC, and Michael
Britton

v.

Jeanne Sliman, as personal representative of the Estate of
Ernest Sliman, deceased

Appeal from Mobile Circuit Court
(CV-25-900191)

SHAW, Justice.
SC-2025-0303

Mobile Nursing and Rehabilitation Center, LLC ("MNRC"), and

Michael Britton, who are defendants below, appeal from the Mobile

Circuit Court's order denying their motion to compel arbitration of the

wrongful-death claim asserted against them by the plaintiff, Jeanne

Sliman ("Jeanne"), as the personal representative of the estate of Ernest

Sliman ("Ernest"), deceased. 1 We reverse and remand.

Facts and Procedural History

On May 15, 2023, following a history of recent falls, 84-year-old

Ernest was admitted to Providence Hospital ("Providence"). Records

documenting Ernest's admission reflect that while Ernest was "[a]ble [to]

answer limited questions" from Providence emergency personnel, he had

"a past medical history of dementia" and was "a difficult historian."

Accordingly, those same records indicate, Providence personnel relied on

accompanying family members and records from Ernest's prior

hospitalizations to establish his relevant medical history.

Ernest's discharge plan provided for his discharge from Providence

for follow-up treatment at MNRC's facility ("the nursing home"), which

1Michelle Newsome, MNRC's "Director of Nursing," was also named

as a defendant. However, the record suggests that she never appeared
or answered below.
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provides, among other medical care, inpatient rehabilitation services.

Britton was, at all relevant times, MNRC's administrator.

In connection with and in preparation for Ernest's admission to the

nursing home, Jeanne met with MNRC staff on May 18, 2023, at which

time she executed various documents, including an optional "Jury Trial

Waiver and Arbitration Agreement" ("the arbitration agreement"). The

arbitration agreement, which identified Jeanne as Ernest's "Authorized

Representative," provided, in pertinent part:

"1. Parties to the Agreement: This Arbitration
Agreement ('Agreement') is made and entered into between
[MNRC] ('Facility') and [Ernest] ('Resident'). This Agreement
may be executed by 'Resident's Authorized Representative,'
who is duly authorized to execute this Agreement for and on
behalf of the Resident. The parties to this Agreement
acknowledge and agree that upon execution, this Agreement
becomes part of the Admission Agreement, and that the
individuals signing this Agreement have the authority to bind
their respective parties to this Agreement.

"2. Scope of Agreement: The parties understand and
agree that all claims, disputes, and controversies of any kind
between the parties arising out of or relating in any way to
the Admission Agreement or any service or health care
provided by the Facility to the Resident shall be resolved
exclusively by binding arbitration. ...

"It is the intention of the parties to this Agreement that
it shall bind the Facility, including, but not limited to, its
members, affiliated entities, parent companies, subsidiaries,
representatives, medical directors, employees, officers,
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directors, managers, successors, assigns, agents, and the
Resident and all persons whose claim arises from or relates to
any service or health care provided by Facility to Resident or
Resident's stay at the Facility, including, but not limited to,
Resident's parents, spouse, children, grandchildren,
guardian, executor, executrix, administrator, administratrix,
personal representative, successor, assigns, agents,
attorneys, third-party beneficiaries, insurers, trustees, next
friends, legal representatives, and heirs."

(Capitalization omitted; some emphasis added.) Elsewhere, the

arbitration agreement also provided: "The parties acknowledge that the

Facility regularly engages in transactions involving interstate commerce

and that the services provided by the Facility to the Resident involve such

interstate commerce. The parties expressly agree that this Agreement

shall be governed by the Federal Arbitration Act, 9 U.S.C, § 1 et seq."

On May 19, 2023, Ernest was formally discharged from Providence

to the nursing home for inpatient rehabilitation. Providence's records

discharging Ernest indicate that, at the time of discharge, Ernest

remained "[a] poor historian [at] baseline dementia" who was "unable to

recall [the] year [and had] difficulty remembering why he was

[hospitalized]" but who remained "[a]wake[,] alert and oriented to self."

During his subsequent stay at the nursing home, Ernest allegedly

developed a sacral pressure wound that became septic and caused his

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family to, on June 4, 2023, remove Ernest from the nursing home against

the advice of his treating physician at the nursing home. Ernest was, at

that time, again hospitalized and diagnosed as being "septic secondary to

[a] sacral decubitus ulcer." On July 13, 2023, Ernest died, purportedly

as a result of that infection. Jeanne was appointed personal

representative of his estate.

In January 2025, Jeanne, in her capacity as personal

representative, filed a complaint against MNRC, Britton, and Michelle

Newsome, see note 1, supra, generally alleging medical negligence in

connection with Ernest's treatment at the nursing home and seeking

damages. Her complaint also specifically alleged the following regarding

Ernest: "At the time of his admission to [the nursing home], Ernest ...

was incompetent and incapable of making decisions for himself, having

previously been diagnosed with dementia, and remained in such mental

condition during his entire admission to [the nursing home]."

In a subsequent joint answer, MNRC and Britton ("the MNRC

defendants") asserted, among other defenses to Jeanne's claims, that "the

parties are due to resolve this matter through binding arbitration."

Shortly thereafter, the MNRC defendants filed a motion and supporting

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brief formally requesting that the trial court compel the parties to

arbitrate, in which they argued that Jeanne, who had signed the

arbitration agreement as Ernest's wife and purported authorized

representative, had possessed actual and/or apparent authority to bind

Ernest to the arbitration agreement. Attached, among other exhibits,

was a copy of the arbitration agreement and Britton's affidavit, in which

he both authenticated the arbitration agreement and attested, on various

grounds, that MNRC's services involved interstate commerce.

Jeanne subsequently filed a response opposing the motion to

compel arbitration. Her response does not appear to dispute that an

arbitration agreement that affects interstate commerce exists; in fact,

she admits both the arbitration agreement's existence and that it bears

her signature. Jeanne, however, disputed that she had possessed either

actual or apparent authority to bind Ernest to the arbitration agreement.

In particular, she maintained that the motion to compel was not

accompanied by any evidence of her actual authority -- for example, a

valid power of attorney -- and that, because Ernest allegedly had been

"permanently incapacitated due to a diagnosis of dementia," he had been

"incompetent at all times while a patient at [the nursing home]" and,

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thus, could not be deemed to have bestowed her with apparent authority

to bind him to the arbitration agreement. Jeanne's response also argued

that the arbitration agreement was unenforceable to the extent that, in

purported violation of federal law, see generally 42 C.F.R. § 483.70(n)(1),

the MNRC defendants allegedly had failed both to inform her that its

execution was optional and to verbally explain it to her.

In an attempt to demonstrate Ernest's permanent incapacity and,

more particularly, his incapacity at the time of his admission to the

nursing home on May 19, 2023, Jeanne's response explained that Ernest

"had a previous diagnosis of dementia" from his primary physician and

was, at all relevant times, purportedly taking two prescription

medications to combat symptoms of that condition. She further relied on

the Providence admission records, which are discussed above and which

Jeanne characterized as "show[ing] that [Ernest's] mental condition had

deteriorated to the point where he was unable to provide any information

to the Providence doctors and nurses" at the time of his hospital

admission.

Jeanne also attached to her response copies of MNRC's own records

evaluating and documenting Ernest's mental acuity during his stay at

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the nursing home, which, she asserted, confirmed Ernest's dementia

diagnosis and confusion, classified his level of consciousness as being "[in

a] stupor," described him as mentally suffering "severe impairment,"

indicated that both his "recent memory" and "remote memory" were

"abnormal," and documented his "[d]eficits in judgment." Jeanne further

cited the results of an assessment performed by MNRC employees, which

concluded that Ernest lacked the ability to make personal medical

decisions and was, in fact, unable to recall that he was housed in a

skilled-nursing facility.2

Finally, Jeanne submitted in support of her response, her own

affidavit, attesting, in pertinent part:

"… Based on my personal observations of living with
[Ernest], it was clear to me and my children that [Ernest] was
not capable of handling his own affairs as of May 18, 2023. He
had significant issues with memory, both short-term and
long-term, beginning 2-3 years prior to him passing.
Beginning in 2020, [Ernest's] ability to make decisions for
himself began to worsen, as he began to not understand what
needed to be done to take care of himself. As a result,
beginning in 2021, I was required to take over all of the
decisions related to [Ernest's] health, welfare, and financial
needs.

2That same assessment, which was administered on May 26, 2023,

ultimately concluded that Ernest was "moderately impaired" at the time,
such that he made poor decisions and required supervision.
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"… I began to notice [Ernest's] inability to care for
himself and make decisions for himself in 2020. At that time,
I was becoming worried for my husband, as he was becoming
more and more forgetful.

"… [Ernest] was still driving, a little, in 2021. However,
he began forgetting where he was going or why he was
driving. Eventually, his memory deteriorated so bad that he
could not remember how to get home. Because of this, he
stopped driving in 2021.

"… From that point, [Ernest's] mental condition
continued to decline. Beginning in 2021, I had to start making
decisions for him, including handling all of the financial
aspects of our home, as well as making sure [Ernest] had
regular doctor visits. By 2022, it was clear that there was
something significantly wrong with my husband from a
mental standpoint. I would therefore … go with him when he
met with his doctors, as he could not remember why he needed
to see a doctor, or explain to his doctors any issues he had with
his health. And he certainly could not remember what the
doctor's orders were or the recommendations that the doctors
gave him. Finally, about a year or a year and a half before he
died, I explained all these issues to Dr. Eric Johnson,
[Ernest's] primary care physician, at one of [Ernest's] doctor
appointments. After conducting his examination, Dr. Johnson
diagnosed my husband with dementia.

"… Unfortunately, [Ernest's] mental issues only got
worse after his diagnosis, which we were told would happen.
He could not remember when to take his medicine, or even
that he needed to take his medicine, as he was not capable of
understanding the instructions on his medicine label.
Because of this, each Sunday I would fill his pill box with his
daily medications. Then, each morning and evening, I would
be the one to make sure [Ernest] took his medicine, because
he could not remember on his own.

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"… After he stopped driving, [Ernest] pretty much
stayed home with me. [Ernest] liked to watch TV. But when
he watched TV, he would often look at me and ask me what
he was watching. And when he watched a movie that he liked
or that he had seen before, he would ask after watching the
movie[,] 'What did I just watch?' I would have to explain to
him that he just watched one of his favorite shows or movies.

"… [Ernest] was also a huge New Orleans Saints fan.
However, I recall the season before he passed that he would
call our son, George, to find out when the game started.
George would tell him, and he would hang up. Then, five
minutes later, he would call George again to ask him when
the game started. This is just an example of how the dementia
had taken away [Ernest's] short term memory.

"… [Ernest] knew who I was, and his children, but when
I would mention his grandchildren or great-grandchildren by
name, he would ask[,] 'Who are you talking about?' I would
tell him I was talking about the grandchildren, and tell him
their names. ... After telling him the names of some of our
grandchildren or great grandchildren, and asking if he
remembered them, he would respond by saying[,] 'I don't
know who you are talking about. I don't have any
grandchildren.' This started I believe in 2022 and continued
until he went into the nursing home.

"… Further, in the months prior to his passing, [Ernest]
also could not remember to eat, or that he had just eaten. So
I was responsible for preparing the meals, making his plate,
and then telling him its time to eat.

"… By the time that [Ernest] was admitted to
Providence in May of 2023, just before he was admitted to [the
nursing home, Ernest] was 100% dependent upon me and his
family for making decisions for him, as he simply was not able
to understand the situation he may be in, be able to express
his needs, or make decisions for himself. This occurred when
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he was admitted to Providence in May of 2023, and later to
the nursing home. At both of these admission[s], [Ernest] was
not able to explain where he was at the time, why he was
there, or what type of problems he was having. And if he did
respond, it would be wrong or something that happened years
ago. Because of this, the doctors and nurses were required to
talk to either myself, one of our children, or grandchildren.

"… Another example of how bad [Ernest's] mental status
had deteriorated was during his admission to [the nursing
home]. Every time I would talk to [Ernest], he would tell me[,]
'Get me out of here. These people are trying to kill me.' I
knew this was not true, and was just an example of him being
delusional. After he would tell me this, I would just try to
comfort and talk to him so as to calm him down. He never
even knew he was in a nursing home, or the reason we
admitted him into a nursing home.

"… And then there were times when the nursing home
nurses and physical therapists could not get [Ernest] to take
his medicine, eat his food, or participate in [physical therapy].
The staff would tell me about this, and I would have to go in
and try to explain to [Ernest] that the people at the nursing
home were there to help him get better. He would respond by
saying[,] 'I don't know who these people are,' and that he 'just
wanted to go home.'

"… These are just a few examples of how bad [Ernest's]
dementia had progressed. In summary, prior to and
throughout his admission to the nursing home, [Ernest] was
not mentally capable of handling his own affairs. He did not
understand or have the ability to comprehend a given
situation, how to address a situation, or to make decisions for
himself. [Ernest] relied 100% upon me and my children to
handle all of his decisions for him."

In a reply to Jeanne's response, the MNRC defendants, while

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conceding that Ernest admittedly had some level of mental impairment,

disputed that Jeanne's response demonstrated Ernest's actual, legal

incompetency at the precise time she executed the arbitration agreement

on his behalf. They noted that no mental assessment had been performed

contemporaneously with the execution of the arbitration agreement and

that MNRC's records, on which Jeanne had relied in opposing arbitration

and in asserting that MNRC also had agreed that Ernest had lacked the

ability to make his own medical decisions, had all been completed after

Ernest's admission to the nursing home.

According to the MNRC defendants, the admission records, while

noting some "confusion" by Ernest at the time he arrived at the nursing

home on May 19, 2023, also reflected that Ernest was "alert" and was

"verbally responsive." The MNRC defendants further attached to their

reply an activities-assessment form, which also was completed on May

19, that reflected that Ernest was, at that time, able to state his preferred

times for rising and going to bed and for napping, knew that he was

married with children, preferred to listen to rock-n-roll music, and

enjoyed watching certain types of television programs. Based on her

interaction with Ernest on May 19, the MNRC activities director

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indicated on the form supplied by MNRC that Ernest was not suffering

from any apparent cognitive impairment during the interview on that

date and that he was, at least at that time, "[a]ble to make [his] own

decisions."

Moreover, according to the MNRC defendants, Jeanne, regardless,

possessed apparent authority to execute the arbitration agreement under

"the doctrine of 'passive ratification.' " They further disputed whether,

even if true, Jeanne's representations about the MNRC defendants'

purported failure to adequately explain the arbitration agreement to her

would invalidate it.

Jeanne, nonetheless, continued to dispute that Ernest was

intermittently competent. In further rebuttal of the MNRC defendants'

position, she submitted additional documentation reflecting that another

MNRC employee had, on May 19, 2023, described Ernest as "moderately

impaired" while attempting to evaluate his bladder function.

The trial court apparently agreed with Jeanne, and, following a

hearing, 3 denied the motion of the MNRC defendants seeking to compel

3A transcript of the hearing was not included with the record on

appeal; however, there is nothing to suggest that additional evidence on
the issue of Ernest's incapacity was submitted at that hearing.
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arbitration.

Thereafter, the MNRC defendants filed a postjudgment motion

seeking relief from the trial court's order based on purported new

evidence. In support, they included records generated on June 5, 2023,

and June 8, 2023, in connection with Ernest's hospitalization upon his

removal from the nursing home, which, they maintained, had not been

produced by Jeanne until after the hearing on the motion to compel

arbitration. According to the MNRC defendants, even through the

exercise of due diligence, these newly discovered records could not have

been discovered by them before the entry of the trial court's order denying

their motion to arbitrate. Specifically, the MNRC defendants argued that

the additional records, which they characterized as relevant to Ernest's

disputed competency, had not been available to them at the time of their

motion to compel or at the time of the hearing on that motion for the

following reasons: the records were not included in Ernest's MNRC

medical chart because they had not been generated until after his

discharge from the nursing home, no order authorizing the MNRC

defendants to obtain Ernest's complete medical records or other protected

health information under the federal Health Insurance Portability and

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Accountability Act had yet been entered by the trial court, and the MNRC

defendants had not engaged in discovery in order to avoid any potential

argument that they had waived the right to arbitrate.

As emphasized in their accompanying motion, the June 5, 2023,

record submitted by the MNRC defendants reflected that Ernest had

been, "[a]t baseline, ... able to ambulate with a walker and ... hold a

conversation and do activities of daily living" and that he "was at his

baseline after recent discharge and [his] mental status change occurred

in [the] last few days." The record allegedly generated on June 8, 2023,

further represented that, as reported by Ernest's daughters, "2 months

ago [Ernest] was ambulating with a walker and eating just fine" --

characteristics that, according to the MNRC defendants, were relevant

to and supported their position that Ernest was not permanently

incompetent, as Jeanne alleged.

The trial court denied the MNRC defendants' postjudgment

motion; 4 they now appeal. See Rule 4(d), Ala. R. App. P.

Standard of Review

" ' "[T]he standard of review of a trial court's

4It is unclear whether, in doing so, the trial court considered the

purported new evidence offered by the MNRC defendants.
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ruling on a motion to compel arbitration at the
instance of either party is a de novo determination
of whether the trial judge erred on a factual or
legal issue to the substantial prejudice of the party
seeking review." Ex parte Roberson, 749 So. 2d
441, 446 (Ala. 1999). Furthermore:

" ' "A motion to compel arbitration is
analogous to a motion for summary
judgment. TranSouth Fin. Corp. v.
Bell, 739 So. 2d 1110, 1114 (Ala. 1999).
The party seeking to compel
arbitration has the burden of proving
the existence of a contract calling for
arbitration and proving that that
contract evidences a transaction
affecting interstate commerce. Id.
'After a motion to compel arbitration
has been made and supported, the
burden is on the non-movant to present
evidence that the supposed arbitration
agreement is not valid or does not apply
to the dispute in question.' "

" 'Fleetwood Enters., Inc. v. Bruno, 784 So. 2d 277,
280 (Ala. 2000) (quoting Jim Burke Auto., Inc. v.
Beavers, 674 So. 2d 1260, 1265 n.1 (Ala. 1995)
(emphasis omitted)).'

"Vann v. First Cmty. Credit Corp., 834 So. 2d 751, 752-53
(Ala. 2002)."

Elizabeth Homes, L.L.C. v. Cato, 968 So. 2d 1, 3 (Ala. 2007).

Discussion

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As the parties separately represent to this Court, it appears

undisputed that the MNRC defendants carried their initial burden of

demonstrating that a written arbitration agreement affecting interstate

commerce exists and that the agreement, which indisputably was not

signed by Ernest, bears Jeanne's signature. See Elizabeth Homes, supra.

See also Stephan v. Millennium Nursing & Rehab Ctr., Inc., 279 So. 3d

532, 539 (Ala. 2018) (explaining that, "[i]n general, 'a nonsignatory to an

arbitration agreement cannot be forced to arbitrate [his] claims,' " but

noting an exception to that general rule " 'when arbitration agreements

[are] executed by the owners and operators of nursing homes and their

residents and/or their residents' family members' " (citations omitted)).

The parties disagree, however, regarding whether, in response, Jeanne

demonstrated that she is nonetheless not bound to arbitrate. 5

5The parties further disagree regarding whether the circumstances

surrounding MNRC's presentation of the arbitration agreement to
Jeanne complied with federal law when, according to Jeanne, she was
informed that she had to sign all provided paperwork to complete
Ernest's admission and purportedly received only the signature page
rather than the entire document containing the arbitration agreement.
See 42 C.F.R. § 483.70(n)(1) (explaining that a facility receiving Medicare
or Medicaid funding may not require a resident to sign an arbitration
agreement as a condition of admission). The record reflects, however,
that, despite her representations as to the circumstances surrounding the
execution of the arbitration agreement, Jeanne specifically initialed the
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Under Alabama law, to avoid being bound to arbitrate the wrongful-

death claim against the MNRC defendants, Jeanne, in response to the

MNRC defendants' showing, was required to demonstrate either that

Ernest was permanently incapacitated, i.e., that Ernest experienced no

lucid intervals, or that he was temporarily incapacitated at the time she

signed the arbitration agreement, thus divesting him of the ability to

bestow on her apparent authority to act on his behalf. See Stephan, 279

So. 3d at 539-46 (holding that the doctrine of apparent authority does not

apply when a nursing-home resident lacked the mental capacity to give

the signatory the authority to act on his behalf).

The Court, in Stephan, explained:

page of the arbitration agreement both identifying it as "[v]oluntary" and
explaining the fact that its execution was "not a condition of admission"
to the nursing home. In any event, Jeanne fails to identify any authority
establishing that the circumstances she alleges surrounding the
presentation of the arbitration agreement to her would actually
invalidate the arbitration agreement, and her allegation that she was
fraudulently induced to execute it was not raised to or addressed by the
trial court. See also Northport Health Servs. of Arkansas, LLC v. United
States Dep't of Health & Hum. Servs., 14 F.4th 856, 868 (8th Cir. 2021)
(explaining that if a "facility entered into an arbitration agreement with
a resident without complying with the Revised Rule by requiring the
resident to sign as a condition of admission to the facility, see 42 C.F.R.
§ 483.70(n)(1), the arbitration agreement would nonetheless be
enforceable, absent a showing of 'generally applicable contract defenses,
such as fraud, duress, or unconscionability' " (quoting AT&T Mobility
LLC v. Concepcion, 563 U.S. 333, 339 (2011)).
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"Before determining whether [the alleged agent] had the
apparent authority to execute the agreement, the Court must
decide whether [the resident], on whose behalf the agreement
was signed, was mentally competent at the time [the alleged
agent] signed the agreement. [The nursing home] argues that
[the alleged agent] has not met her burden of proving [the
resident's] incapacity. Specifically, [the nursing home] argues
that [the alleged agent] has failed to demonstrate that [the
resident's] advanced age and dementia resulted in anything
more than short-term memory loss.

"In Troy Health & Rehabilitation Center v. McFarland,
187 So. 3d 1112 (Ala. 2015), this Court discussed the
enforceability of an arbitration agreement and whether a
nursing-home resident was mentally competent when he
executed a durable power of attorney naming his nephew as
his attorney-in-fact. We find the following reasoning from
that case to be analogous:

" ' "[T]he standard for determining
whether a person is competent to
execute a power of attorney is whether
that person is able to understand and
comprehend his or her actions. Queen
v. Belcher, 888 So. 2d 472, 477 (Ala.
2003). The burden initially falls on the
party claiming that the person who
executed the power of attorney was
incompetent when he or she executed
the power of attorney. Id. If, however,
it is proven that the person who
executed the power of attorney was
habitually or permanently incompetent
before executing the power of attorney,
the burden shifts to the other party to
show that the power of attorney was
executed during a lucid interval. Id."
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" 'Yates v. Rathbun, 984 So. 2d 1189, 1195 (Ala.
Civ. App. 2007).'

"187 So. 3d at 1119.

"We held that the presumption is that every person has
the capacity to understand until the contrary is proven.
McFarland, 187 So. 3d at 1119 (citing Yates v. Rathbun, 984
So. 2d 1189, 1195 (Ala. Civ. App. 2007), Thomas v. Neal, 600
So. 2d 1000, 1001 (Ala. 1992), and Hardee v. Hardee, 265 Ala.
669, 93 So. 2d 127 (1956)). The Court differentiated between
the burden of proving permanent incapacity and temporary
incapacity. Specifically, we held that proof of incapacity

" ' " ' "at intervals or of a temporary character would
create no presumption that it continued up to the
execution of the instrument, and the burden would
be upon the attacking party to show [incapacity] at
the very time of the transaction." ' " Wilson v.
Wehunt, 631 So. 2d 991, 996 (Ala. 1994) (quoting
Hall v. Britton, 216 Ala. 265, 267, 113 So. 238, 239
(1927) (emphasis added)).

"McFarland, 187 So. 3d at 1119.

"Thus, a party seeking to avoid a contract based on the
defense of incapacity must prove either permanent incapacity
or contractual incapacity at the very time of contracting. See
Ex parte Chris Langley Timber & Mgmt., Inc., 923 So. 2d
1100, 1106 (Ala. 2005). The party seeking to avoid the
contract bears the burden of proving incapacity to contract by
a preponderance of the evidence. See Hester v. Hester, 474
So. 2d 734, 736 (Ala. Civ. App. 1985)."

279 So. 3d at 539-40 (footnotes omitted).

A. Permanent Incapacity
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Here, Jeanne's response opposing enforcement of the arbitration

agreement included her representations that Ernest was totally and

permanently incapacitated at the time of his admission to the nursing

home. As support for that contention, Jeanne's affidavit included

anecdotes evidencing, in addition to his formal dementia diagnosis, the

onset of Ernest's memory loss and his purported deteriorated mental

state, which, she says, required her to handle the couples' business affairs

and rendered Ernest incapable of caring for himself.

As explained above, our precedent explicitly rejects the notion that

even a diagnosis of chronic dementia, alone, equates to permanent

incapacity. See, e.g., Troy Health & Rehab. Ctr. v. McFarland, 187 So.

3d 1112, 1120 (Ala. 2015) (plurality opinion). Instead, as our decisions

observe, a dementia diagnosis suggests, in addition to intervals of

confusion, the possibility of lucid intervals during which the individual

would be capable of either bestowing authority to act on his or her behalf

or capable of ratifying actions taken on his or her behalf. See id. at 1119.

See also Wells v. Wells, 49 So. 3d 216, 223 (Ala. Civ. App. 2010). Under

Stephan, Jeanne bore the burden of proving Ernest's incapacity. 279 So.

3d at 540.

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Here, the Providence records generated immediately before

Ernest's admission to the nursing home suggest that, while he suffered

from documented memory issues, Ernest remained, at least at times,

awake, alert, oriented, and capable of responding to direct questions.

Similarly, the purported new evidence submitted by the MNRC

defendants in support of their postjudgment motion reflects that Ernest

reportedly was at his baseline at the time of his discharge from

Providence and transfer to the nursing home and was capable of

intelligible conversation and to "do activities of daily living." The MNRC

records, while likewise noting Ernest's confusion, also indicated that on

May 19, 2023 -- the day following the execution of the arbitration

agreement -- he was able to clearly respond to direct questions about his

interests and preferences and was considered by MNRC staff to be

capable of making his own decisions at that time. In fact, in her brief to

this Court, Jeanne acknowledges that Ernest's medical records reflect

that, despite his dementia diagnosis, Ernest remained "[a]ble [to] answer

limited questions."

Even assuming that Ernest required assistance with the activities

of daily living or with his personal business affairs, as Jeanne's affidavit

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asserts, those circumstances would not be determinative on the issue of

his permanent incapacity. Cf. TitleMax of Alabama, Inc. v. Falligant, 328

So. 3d 244, 255 (Ala. 2020) (plurality opinion) ("[E]vidence indicating that

[an individual] suffers from an undefined mental illness, that she lacks

the ability to manage her financial affairs, and that she did not

understand the terms of the contracts is not sufficient evidence to create

a genuine question of fact as to whether she is permanently incapacitated

and, thus, unable to contract." (emphasis added)). We further note that

the majority of the incidents Jeanne describes and Ernest's documented

inability to recount his own medical history suggest that Ernest's

dementia primarily affected his short-term memory and produced related

confusion. Despite that, Jeanne's affidavit suggests that Ernest

nonetheless remembered immediate family members, including Jeanne,

knew how to contact them via telephone, and also remembered and was

able to engage in activities he enjoyed. Moreover, MNRC records

supplied by Jeanne in opposing arbitration indicate that, while he was in

the nursing home, Ernest was able to accurately "state[] that he lives at

home with his wife." An MNRC physical-therapy progress report

recounting the circumstances of Ernest's living arrangements further

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reflected that, although he required daily assistance, Ernest "may be left

alone 6-8 hours or more."

Accordingly, as in Stephan, it has not been established that Ernest

was permanently incapacitated at the time of his admission to the

nursing home. 279 So. 3d at 540 (rejecting claim of permanent incapacity

when, despite records indicating that the nonsignatory was " 'not

oriented' " and clearly suffered from progressive memory loss, the

nonsignatory nonetheless remained "able to follow commands and

sometimes converse with the physician"). See also Troy Health & Rehab.

Ctr., 187 So. 3d at 1121 (declining to find determinative an alleged

incapacitated person's inability "to correctly state the year, month, or day

of the week" on one medical form when other forms indicated that he "had

clear speech, that he was usually able to make himself understood, that

he was usually able to understand others, and that he did not have any

signs of inattention, disorganized thinking, or an altered level of

consciousness"). Cf. Diversicare Leasing Corp. v. Hubbard, 189 So. 3d

24, 37 (Ala. 2015) (affirming trial court's denial of a motion to compel

arbitration when the undisputed evidence demonstrated that, at the time

of the patient's admission, he "had the mental capacity of 'an infant' or a

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'toddler' and that he was totally dependent upon others for his care

because he was confined to a wheelchair; he had no use of his hands; he

could not speak; and he could not feed, clean, or dress himself"), and

Noland Health Servs., Inc. v. Wright, 971 So. 2d 681, 686 (Ala. 2007)

(plurality opinion) (finding representative's signature ineffective in

binding to arbitration " 'an 86 year old demented female' ... who was '[n]ot

oriented to person, place or time' " and was ' "always confused' " (emphasis

omitted)).

B. Temporary Incapacity at Execution

Alternately, to avoid arbitration, Jeanne could have demonstrated

that, on May 18, 2023, when she executed the arbitration agreement as

Ernest's purported authorized representative, Ernest was, at that precise

time, temporarily incapacitated so as to render him incapable of

authorizing her to have done so. See Stephan, 279 So. 3d at 540. In this

case, as we have concluded above, the evidence failed to establish that

Ernest was permanently incapacitated. Jeanne would thus have had to

successfully demonstrate that, when she completed his admission

paperwork to the nursing home, including the arbitration agreement, on

May 18, 2023, Ernest was not experiencing one of the intervals during

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which he remained lucid and communicative with medical staff.

A review of the record reveals that none of the medical records

submitted to the trial court appears to have been prepared on May 18,

2023. That failure alone appears potentially determinative under

Stephan. See id. Further, records created following Ernest's admission

to the nursing home would not be determinative on this issue -- especially

because they are potentially skewed by Ernest's deterioration

attributable to the potential effects of his progressing infection, as alleged

in Jeanne's complaint.6

There are, however, as explained above, available medical records

6In fact, a "Resident Information" sheet completed on May 22, 2023,

while noting that Ernest remained able to feed himself, was able to brush
his own teeth, and was "[a]lert," indicated that he did display cognitive
confusion. While also noting Ernest's preexisting dementia diagnosis,
that form also indicated that, although he remained able to generally
initiate conversation and specifically to converse regarding Jeanne and
their children, Ernest had experienced "[r]ecent changes in cognition."
By the time of an evaluation performed on May 29, 2023, Ernest's
cognition had apparently declined from the documented "moderately
impaired" condition he had displayed at admission to "severe
impairment." (Capitalization omitted.) Regardless, a physical-therapy
progress note indicated that, as of May 30, 2023, Ernest still displayed
the "[a]bility to follow 1-step directions" and was also "[a]ble to make his
needs known." Similarly, at the time that his family members removed
him from the nursing home on June 3, 2023, they reportedly described
Ernest's condition as " 'more sedative and lethargic' than usual."
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documenting Ernest's mental cognition as of May 19, 2023 -- the day

following execution of the arbitration agreement. Specifically, during his

consultation with the MNRC activities director on that date, Ernest was,

based on information that he directly provided, reportedly "alert and able

to make his needs [and preferences] known." The activities director also

specifically indicated that Ernest was not cognitively impaired at that

time and concluded that he was capable of making his own decisions.

MNRC records completed at 8:28 p.m. on that same date also suggest

that, at the time he was transferred from Providence and admitted to his

room at the nursing home, Ernest was "alert, and verbally responsive

with some noted confusion." Similarly, the Providence discharge records

later produced by the MNRC defendants suggest that Ernest was

discharged at his baseline, which family members had apparently

reported as his being able both to carry on intelligible conversations and

to perform general activities of daily living.

As Jeanne pointed out in opposing arbitration below, the record

indisputably does contain other MNRC records prepared on May 19,

2023, which suggest that MNRC, too, concluded that Ernest was

"moderately impaired" -- which MNRC described as "frequently confused

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and disoriented; decisions poor; requires care and supervision" -- as

opposed to "severely impaired" -- which it defined as "continual confusion;

decisions never or rarely made/also includes comatose resident." The

record also includes a mental-health screening prepared by Providence

staff at 11:38 a.m. on May 19, 2023, which described Ernest's "level of

consciousness" at that time as "[s]tupor." We can only conclude that

these varying reports bear out the theory established by our caselaw that

a dementia patient experiences noted -- and potentially frequent --

fluctuations in cognition.

In sum, while Ernest at times indisputably suffered from

documented memory loss and bouts of confusion, from our de novo review

of the record, we simply cannot conclude that Jeanne adequately

demonstrated that he was experiencing such significant symptoms at the

time she executed the arbitration agreement in this case. While Ernest

had suffered a series of recent falls and had been taken to Providence for

evaluation of the weakness to which he attributed his falls and a possible

resulting knee injury, testing revealed that his knee was "normal."

Similarly, no other acute injuries or treatment needs were documented

at that time, and Ernest was apparently transferred to the nursing home

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for physical therapy to target his balance and mobility issues. Moreover,

when at Providence, Ernest was reportedly "[a]wake[,] alert and oriented

to self [although] unable to recall [the] year" and was also "[a]sking when

he [could] go home." Therefore, unlike the patient in Stephan, who was

noted to have been recovering from a reconstructive hip surgery on top of

his dementia diagnosis at the operative time, or the resident in SSC

Montgomery Cedar Crest Operating Co. v. Bolding, 130 So. 3d 1194 (Ala.

2013), who had been hospitalized after suffering a stroke and a heart

attack, we see nothing suggesting an accompanying acute medical

diagnosis that might have exacerbated Ernest's noted dementia and

would accordingly establish his temporary incapacity on May 18, 2023.

See also Troy Health & Rehab. Ctr., 187 So. 3d at 1114 (rejecting, despite

submission of evidence that the plaintiff's decedent had been diagnosed

with both " 'altered mental status' " and " 'alcohol persistent dementia,' "

the notion that the plaintiff had successfully demonstrated either the

decedent's permanent incapacity or his temporary incapacity at the time

the decedent executed a power of attorney).

Conclusion

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We hold that the trial court erred in denying the MNRC defendants'

motion to compel arbitration; thus, we reverse the trial court's order

denying that motion and remand the case for further proceedings

consistent with this opinion.

REVERSED AND REMANDED.

Stewart, C.J., and Bryan, Mendheim, and McCool, JJ., concur.

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