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McCullough v. Emeritus Corp.

Court of Appeals of Iowa

July 5, 2018

ELLEN MCCULLOUGH by and through her Conservator, LYNN COLLINS SEABA, Plaintiff-Appellee,
v.
EMERITUS CORPORATION d/b/a EMERITUS AT SILVER PINES, et. al, Defendants-Appellants.

          Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.

         Defendants appeal from the district court's ruling denying their motion to compel arbitration.

          Skylar J. Limkemann of Scheldrup Blades Schrock Smith, P.C., Cedar Rapids, for appellants.

          Benjamin P. Long and Pressley Henningsen of RSH Legal, P.C., Cedar Rapids, for appellee.

          Heard by Vogel, P.J., and Doyle and Bower, JJ.

          DOYLE, JUDGE.

         Defendants appeal from the district court's ruling denying their motion to compel arbitration. Because the district court did not err in determining defendants waived their right to arbitration, we affirm the district court's ruling.

         I. Background Facts and Proceedings.

         In February 2015, Dennis McCullough, one of Ellen McCullough's six children, filed suit on Ellen's behalf as her court-appointed guardian and conservator (collectively "plaintiffs") against various defendants related to the Silver Pines residential care facility. The defendants included Emeritus Corporation and other legal entities that did business as Emeritus at Silver Pines (collectively Silver Pines), as well as Silver Pines's nursing director Jodie Bevans and its administrator Michael Hunter (all defendants collectively "defendants").

         The underlying facts related to this appeal are not in dispute. The parties agree that in March 2013, Ellen was admitted to Silver Pines by James McCullough, another of Ellen's children, who, at that time, had Ellen's power of attorney. As a part of the admissions process, Jim signed an "Agreement to resolve disputes by binding arbitration" with Silver Pines on Ellen's behalf. The agreement stated, among other things, that the parties to the agreement would first attempt to settle any disputes between themselves, then, if they were unable to do so, the matter "shall be resolved exclusively by binding arbitration and not by lawsuit or resort to the judicial process, except to the extent that applicable law provides for judicial review of arbitration proceedings."

         Plaintiffs filed their petition in the Iowa District Court in February 2015. Defendants filed their answer in April 2015, generally denying the claims asserted against them. They also asserted affirmative defenses, including "that some or all of the plaintiffs have committed a prior breach of contract with the defendants." The arbitration agreement was not mentioned nor was arbitration demanded. Defendants never amended their answer.

         The matter proceeded forward in district court, and a jury trial was set for November 7, 2016. Additionally, in May 2015, the parties agreed to a case schedule and discovery plan, including that plaintiffs' expert witnesses would be disclosed no later than 210 days before trial and defendants' expert witnesses disclosed no later than 150 days before trial. In August 2015, the parties agreed to a twenty-day extension of their expert designation deadlines. Plaintiffs filed their designation of expert witnesses September 22, 2015.

         On May 20, 2016, defendants filed a motion to extend their expert witness disclosure deadline. For reasons unknown to the district court, defendants' motion was not administratively placed in the court's pending-motions queue and did not come before the court until August 10, 2016. On that date, the court filed an order noting defendants' requested extension date had passed. The parties were directed to advise the court as to whether an issue remained regarding the relevant expert report. The court informed the parties that if an issue remained, the court would take up the matter at an upcoming hearing set for August 24, 2016, when the court was also to hear plaintiffs' pending motion to compel discovery. Following that hearing, the court denied defendants' motion, finding that good cause for an extension of the expert deadline had not been established. The court's order granting plaintiff's motion to compel was granted September 11, 2016.

          On September 13, 2016, about two months before the trial date, defendants served on plaintiffs a written arbitration demand demanding plaintiffs "submit to arbitration," with the scope of arbitration to include "the allegations giving rise to [plaintiffs'] lawsuit" pending in district court. Plaintiffs were requested "respond no later than September 16, 2016." On September 16, 2016, defendants filed a notice of arbitration demand in district court. Defendants subsequently filed a motion to compel arbitration, stating plaintiffs had refused to arbitrate. Plaintiffs resisted. Following a hearing, the district court denied the ...


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