PART 2
The trial court also held that the arbitration agreement was unenforceable because it had become impossible to perform. The court noted that the agreement required the parties to submit the case to the American Arbitration Association and that the Association had already confirmed to counsel that it would not take the case.
1. In its first enumeration of error, Life Care contends that the trial court erred in concluding that the power of attorney signed by Petereit did not give Smith the legal authority to enter into the arbitration agreement. "We review the record in this case de novo to determine whether the trial court's denial of the motion to compel arbitration is correct as a matter of law." Ashburn Health Care Ctr., Inc. v. Poole, 286 Ga. App. 24 (648 SE2d 430) (2007). We also note that
The party seeking arbitration bears the burden of proving the existence of a valid and enforceable agreement to arbitrate. See TranSouth Financial Corp. v. Rooks, 269 Ga. App. 321, 324 (604 SE2d 562) (2004). Such agreement is, at base, a contract, and the Federal Arbitration Act "does not require parties to arbitrate when they have not agreed to do so." Volt Information Sciences v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478 (109 S. Ct. 1248, 103 LE2d 488) (1989).
Ashburn Health Care Ctr., supra at 25. And, "where there is a specific challenge attacking the validity of an arbitration agreement, the court and not the arbitrator should decide whether the arbitration provision is enforceable."(fn1) Harris v. Albany Lime & Cement Co., 291 Ga. App. 474, 475 (662 SE2d 160) (2008).
We agree with the trial court that the plain language of the health care power of attorney did not give Smith the power to sign away her mother's or her mother's legal representative's right to a jury trial. Although Life Care argues that the power of attorney states that the power granted is intended to be as broad as possible, that broad grant of power is "so that your agent will have authority to make any decision you could make to obtain or terminate any type of health care. . . ." We note that the agreement to arbitrate was optional and it is not contended in this case that in order for Petereit to be admitted to Life Care, Smith was required to sign the agreement to arbitrate.
Life Care relies on Owens v. National Health Corp., 263 S.W. 3d 876 (Tenn. 2007) as the best supporting authority for its argument. In Owens, the court held that the durable power of attorney for health care authorized the representative to sign an agreement to arbitrate. But the power of attorney in that case is worded differently than the one before us. That health care power of attorney also stated: "I grant to my Attorney-in-Fact the power and authority to execute on my behalf any waiver, release or other document which may be necessary in order to implement the health care decisions that this instrument authorizes my Attorney-in-Fact to assist me to make, or to make on my behalf." Id. at 880. This language is important because it appears that in order to have the resident admitted to the nursing home, her agent may have been required to sign the arbitration agreement. Id. at 888-889. Under these facts, the court held that the agent had the power to sign the agreement, but that the case must be remanded for further proceedings on the question of whether the arbitration clause was an unconscionable and therefore unenforceable contract of adhesion. Id. at 890. Therefore, we find Owens inapplicable to this case.
Likewise we find the remaining cases cited by Life Care and other similar cases are not on point.(fn2)
Although there are no Georgia cases directly on point,(fn3) Ashburn Health Care Center v. Poole, supra, is helpful. In Poole, a husband signed papers, including an arbitration agreement, when admitting his wife to a nursing home. The husband did not have a power of attorney but instead signed the papers as the "authorized representative" for his wife. Id. at 26. This court held that there was no evidence the wife knew about the arbitration agreement, authorized her husband to sign the agreement or otherwise agreed to arbitrate all claims arising out of her nursing home stay. Id.
In looking at other state's case law directly on point, we note that other states have reached this same conclusion, holding that a health care power of attorney was insufficient to bind the principal. See McNally v. Beverly Enterprises., 191 P.3d 363 (Kan. App. 2008) (durable power of attorney for health care did not encompass authority to sign arbitration agreement); Blankfeld v. Richmond Health Care, 902 So.2d 296 (Fla. App. 2005) (holder of health care proxy did not have authority to bind nursing home patient to arbitrate claims); Texas Cityview Care Center v. Fryer, 227 S.W. 3d. 345, 352 (Tex. App. 2007) (nothing in medical power of attorney indicates that it was intended to confer authority to make legal, as opposed to, health care decision). Also, in Mississippi Care Center of Greenville, LLC v. Hinyub, 975 So. 2d 211 (Miss. 2008) the court determined that the execution of an arbitration agreement is considered a health care decision within the authority of a health care surrogate, only when that arbitration provision is required for admission to the nursing home. Therefore, having found no persuasive authority to the contrary and for the reasons stated above, we conclude that the trial court did not err in holding that the health care power of attorney given by Petereit to Smith did not authorize Smith to bind Petereit to arbitration of any and all claims arising out of her care at Life Care.
2. In light of our holding in Division One, we need not address Life Care's remaining enumeration arguing that the trial court erred in concluding that the arbitration agreement became impossible to perform when the American Arbitration Association refused to take the case.
Case Number A09A0549
In Case Number A09A0549, Life Care argues that Smith's counsel, John Mabrey, previously executed a settlement agreement on behalf of a different client that contains language bearing on Mabrey's ability to represent other clients in actions against Life Care. Life Care did not file a motion to disqualify Mabry in this case, but instead filed a motion to compel arbitration to enforce a prior settlement agreement in another case by removing Mabry as plaintiff's counsel in this action. The trial court denied the motion, citing State of Ga. v. McMillan, 253 Ga. 154, 164 (319 SE2d 1) (1984), and the rule that "matters relating to the practice of law . . . are within the inherent and exclusive power of the Supreme Court of Georgia."
Life Care argued below and on appeal that under the settlement agreement at issue, plaintiff's counsel was required to maintain the confidentiality of all the information produced during discovery for a period of three years. In addition, Life Care contended that under paragraph 16 of the agreement titled "Future Retainer of Plaintiffs' Counsel," Plaintiff's counsel's firm was "deemed hired and retained as counsel on behalf of [Life Care]." Life Care argued that the clear intent of the parties was to preclude Plaintiff's counsel from pursuing claims against Life Care for a period of three years. Finally, Life Care contends that this matter is subject to the arbitration clause in the settlement agreement, providing that: "Any dispute arising out of, related to, or in connection with this Agreement shall be submitted to and resolved by arbitration before a single arbitrator of the American Arbitration Association."
In response, Mabry submitted an affidavit stating that although the Agreement provided that "if requested" he would agree to be retained for a period of three years by the law firm of Baker Donelson to provide advice as to how Life Care could improve, Baker Donelson never requested or retained him to provided such advice. The affidavit stated that the law firm had never provided professional advice or services to Baker Donelson or to Life Care and therefore never had any attorney client relationship with either entity such that the Georgia Rules of Professional Conduct would prohibit Mabry from representing Smith in this case. Mabry points out that Life Care is requiring the court to wrongfully assume that he has violated the confidentiality provision of the agreement without pointing to any instance of his having done so. Further, Mabry argues that this interpretation of the agreement violates Rule 5.6(b) of the Georgia Rules of Professional Conduct, which provides that: "A lawyer shall not participate in offering or making an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties." Mabry also stated in his affidavit that he has divulged no confidential information in his representation of Smith and does not have in his possession any documents or case information produced in the previous cases.
Despite its characterization of its motion to the trial court, Life Care is not seeking to enforce the settlement agreement, but rather to disqualify Mabry from representing Smith in this case. Beyond conclusory allegations, Life Care has not shown that Mabry has violated any provision in the agreement merely by accepting Smith as client. It is possible that Life Care may have a claim for breach of the agreement against Mabry but there is no evidence of this and that issue is not before us.
"The right to counsel is an important interest which requires that any curtailment of the client's right to counsel of choice be approached with great caution. . . . Because of the right involved and the hardships brought about, disqualification of chosen counsel should be seen as an extraordinary remedy and should be granted sparingly." Bernocchi v. Forcucci, 279 Ga. 460, 462 (614 SE2d 775) (2005). Moreover, "the ultimate determination of whether an attorney should be disqualified from representing a client in a judicial proceeding rests in the sound discretion of the trial judge." Duvall v. Bledsoe, 274 Ga. App. 256, 258 (617 SE2d 601) (2005). We find no abuse of discretion in the trial court's determination in this case.
Judgments affirmed.
Miller, C.J., and Barnes, J., concur.
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