in this case the pallies rely primarily on two cases supporting both their argument and the district court's reasoning for denying the motion to compel the first with i'm sorry the first case is the badge case which i know judge merritt you are very familiar with having authored the case we argue that that case is distinguishable from this case namely the distinction is that in that case the parties executed a subsequent contract that rescinded their prior arbitration agreement in this case we have a circumstance where there is no subsequent executed contract that repudiates that prior agreement secondly the texaco  case which was relied upon by the district court in that case the parties agreed to one thing the texaco company least some equipment to the lessee and the parties entered into a contract where the less agreed to assume responsibility for maintaining the equipment and subsequent to and as part of that contract the lessee exonerated texaco of any responsibility for maintaining the equipment and any damage that might have result from failing to maintain it subsequent to that contract the parties did the opposite the lessee assumed the texaco assumed responsibility for maintaining the equipment and absolved the lyce of that responsibility and so later when a dispute arose texaco attempted to invoke the exoneration clause in that first agreement and the parties agreement and the court of appeals held that the parties had abandoned that prior contract because they took actions that were manifestly inconsistent with what they had previously agreed to that is not what we have here we do not have the parties agreeing to one thing in a contract and then doing another in practice what we have here is a signed arbitration agreement this court in badgett acknowledged the breadth of that agreement in terms of the scope we do not have that they're relying on to argue that there is no arbitration agreement is they subsequently presented an executed arbitration agreement we do not believe that that is sufficient under kentucky law why do you think that  them both you guys got to be on the supposition that they don't have a arbitration agreement why would you keep sending them an arbitration agreement when you think agreement your honor we address this and we make sense we address this point very candidly in our brief and i'll be very candid with you all here today obviously looking back i would not have advised them to do that i would  advised them to have a system in place where they could see if a resident who had previously been admitted had signed an arbitration agreement then i would have recommended that they not present a subsequent agreement because as you illustrate or as you indicate there is no reason to do that but i don't think that we can extradite certainly make an inference from doing this that this was not the procedure well there is an affidavit in the record below from the admissions coordinator and she testified in her affidavit that the facility had had multiple admissions in a given month and that they did not she did not necessarily keep track of who had previously signed an arbitration agreement and who had not so the facility made the judgment apparently that it was easier to include this arbitration agreement in a it's a preprinted balland perforated edge kind of book that is presented to each resident there's not one book that's presented to a resident who's been at the facility before and one book that's presented to those who have not it's the same book and so the other day i think the key distinction from that from badgett which again your honor is very familiar with is there's no no vacation here there's no subsequent contract so what do we look to we look to the language of the parties agreement there's no question that it's a broad agreement there are a few years as because of the contract well i don't know that they refuse and they didn't sign another contract they did not sign another kind of presented what they were presented with one after mr mr brymer left the facility he was only there for a day a subsequent agreement was sent to was sent to mrs bramer mr brymer power of attorney she did not sign or return any of the documents that were sent to her and there was more than just an arbitration agreement that was  nothing there were some documents in that and i apologize i don't have the specific documents there are certain documents upon admission that are necessary to obtain medical treatment those documents are presented according to miss hancock affidavit the admissions coordinator at the facility those documents are presented immediately upon admission because otherwise the facility cannot treat the resident other documents like the admissions agreement the arbitration agreement legal documents that are not necessary for medical treatment are typically presented if a resident is admitted late in the evening they're presented the next day or at the first opportunity that the admissions director has to present them what is that what is it that you say illustrates the consent of the residents to arbitrate what is generally speaking or with respect to this particular case in this particular case we have an agreement that was signed on january twenty sixth of two thousand and fifteen by mr bremer's power of attorney i don't believe in this appeal that the apologies are contesting that she had authority to sign for him i don't think that's at issue here she signed the agreement for him on his behalf and why are you saying if the january twenty fifth one as opposed to the january one the january fifth agreement there is a factual dispute between the parties that was on resolved by the district court the dispute was whether that was in fact mr bremer signature on the january fifth agreement the a pelleas argued that the that it was not his signature that someone else must have signed it the district court did not resolve that factual dispute what we argued to the district court was the january twenty sixth agreement is identical to the january fifth agreement there's the same threshold legal issue of whether these prior agreements regardless of which one we enforce is to be applied in this case attorney for mr yes in the first thing i would note obviously this court constituency that or any grounds for reversal or affirming on on appeal but the district court did not address those arguments the district court addressed only the abandonment issue but with respect to that issue we do address it in our reply brief there is case law that goes back over one hundred years and kentucky that says that an agent can sign a contract even in the agent's own name they can still sign in a representative capacity even if the person they're contracting with doesn't necessarily at that time know that the person is is acting on behalf of a third party there's numerous cases we cite in our brief to that point one case that i would point you honor's attention to specifically is the holyfield versus beverly health and rehabilitation case from two thousand and eight which involved this very issue where judge hey burns said that the fact that the nursing homes relative signed on the resident line and said that she intended to sign as a family member rather than in the capacity as power of attorney that that was not sufficient to invalidate the agreement because it was uncontested that she had authority to execute the agreement as power of attorney i want to talk briefly about the distinction between badgett because that is primarily even though there is no no they should and that's been conceded i think that's primarily the issue that the district or the q one of the two cases that the district court relied upon in support of its ruling in badgett we have specific language that tells us the moment that the prior agreement between the parties ceased to be binding it wasn't the moment when the facade i should mention resident was admitted to a nursing home sign an arbitration agreement was then admitted to another nursing home owned by the same company and signed on a declamation line saying i decline arbitration in this case in that case judge merit author that opinion the court held that the parties executed a new contract that superseded their prior contract i'm unaware of any authority in kentucky or anywhere else that holds that in an executed subsequently presented contract or offered contract covering the same family or covering the same subject matter has the effect of revoking a prior contract simply because it between signing the line and simply not getting yes and and i wouldn't to support an argument that my colleague will make which is that of course if we just had the first time these parties interacted with each other and mrs bramer or mr brymer decided not to sign an arbitration contract i would not argue of course that his failure or her failure to sign it would bind them to arbitration what i'm arguing here is they had a prior court characterized it that it was an offer to enter into a new contract to either arbitrate or to not arbitrate the distinction here is they didn't do anything so if they had because they didn't the client nothing happened and then you resort back to the oh yes there's no document that was executed by either party that is inconsistent with the prior agreement and i would also note that the as my the prior contract in light of the testimony from the admissions director about why that agreement was presented they simply didn't know that he had previously signed an arbitration agreement had they known that i suspect although like i don't want to speculate i suspect that they would not have offered that and i would add that the that the unsigned arbitration agreement specifically says that it must be signed to be binding on either the facility or the resident so i'm not sure how we can have an unsigned document that based on badgett and based on texaco that the brainers intended to repudiate their prior arbitration agreement because they didn't return the signed arbitration agreement july of twenty sixteen thank you your honors thank you please the court counsel jennifer more on behalf of the happily state of robert framer and his widow margaret bremer this is not the first time this court has addressed an issue regarding abandonment prior arbitration contract as counsel and the court was just discussing i'm just merits decision in in golden living versus badgett which is the exact same nursing home chain as we have in this case  that cases directly on point that case it was multiple admissions just like what happened in the brain where case every time that mr brymer or mr badgett was admitted into a golden living facility golden living presented a new arbitration contract that act as this court has previously held shows the clear intent of the nursing home to abandon the prior arbitration contract and to offer to give a choice to the president or the residence person acting on the residence behalf as to whether to arbitrate those claims are not the nursing home is not required to present a new arbitration contract at each admission instead it chose to do so now counsel refer to this being in a pre packaging spiral bound that's not in the evidence your owner's there is no evidence that this was something where they could have taken a part represented just the admission contract and not the arbitration contract it doesn't matter your honor it doesn't matter at all what this court has previously held is that once they present the arbitration contract a new arbitration contract that act under kentucky law shows their intent to abandon the prior contract and that's exactly what the texaco court held and that court which was kentucky's highest court at the time it's the appellate court but it was the one nine hundred sixty nine held very clearly that rape or no they were not because that had been abandoned and but that's not the evidence in this case your honor what the evidence shows us is that the bramer chose not to sign the new arbitration  do know that we know that they did not sign the new arbitration contract and miss bramer kept that document in her records she maintained it showing that those lines were blank that affidavit she tell she swore that she did receive the that and missions across contract an arbitration contract the third time the july two thousand and sixteen and she stays she did not sign it so that is in the  record because there's no reason given in that affidavit your honor but that doesn't matter that the question under the texaco case your honor is very clear and this is what the court said contract may be rescinded or discharged by x or conduct of the parties inconsistent with the continued existence of the contract and mutual assent to abandon a contract may be nursing home to the bremer's did that in fact rescind the arbitration agreement yes your honor when you show that the other party acquiesced in that recession there are two things that have to happen one is the by the nursing home and the second the acquiescence or the agreement either one by the what i would say or it is acquiescence or are in the texaco case it says while as a general rule  contract will be treated as abandoned or rescinded where x and conduct one party inconsistent with his existence are acquiesced in by the other party and so when you look at that this court has already determined under the badgett decision that the act of presenting the new arbitration contract is an abandonment of the cheney wherry contracts and then in this case you have the acquiescence of that by the by the failing signing the new arbitration agreement and i'd like to go back to one of the questions that the panel asked of my colleague and that is about whether it matters if the bramer signed that line we declined to arbitrate and it does not what they conceded in their brief is that they would never argue that failing to simply a manifestation of a lack of agreement with the whole idea of being presented with a new one well figure our what we know is that under kentucky law it's the axing conduct of the nursing home in this case and then it's whether it was acquiesced to by the resident or in this case mr brymer as well and and what we know is that there was no acquiescence it doesn't matter if she signed on the line declining it because the act is the work of no i'm saying there is acquiescence i'm sorry i misspoke whether she signed on the line declining or did not sign the contract at all it's the combo like where is the acquiescence what constituted the well i don't believe there is me or silence in this case because what we have is someone who received a new arbitration contract did not sign that new arbitration contract and then kept that arbitration contract that has this she did not sign in her records and then when she filed the lawsuit on behalf of her husband's estate she has that to present to the other side to say who will hear her say they sent a folder that has the admissions contract and the arbitration contract and there is no evidence that she signed admission contract or the arbitration hundred percent your house after her husband had already left the nursing home what's in the record your honor is that her husband was presented from the hospital to the nursing home in an evening around midnight that night he fell out of the bat sustained a severe blow to his head resulting in a brain bleed the next day he was at the nursing home for the almost the entire day before he was then transferred to a local hospital at the end of the day there is no evidence in the record as to when this document this packet was provided to miss framer we know that it was provided to her we know that she did not sign that document we do know that the facility signed that document this is a new admissions director at that time signed the document for the new arbitration agreement and the date on the was around twenty four hours later it was a little bit under twenty four hours of you know he did not he lived for about two weeks after that elsewhere in a hospital yes or i don't recall that there was a date on that we did attach the arbitration agreement to well i'm not sure if it's attached to the break but it is in the record your honor i don't recall if there is a date on that i know that the letter that a kentucky law is on the acts and conduct of each party which can be manifested in different ways kentucky law under the texaco case does not require it to be in writing an order to acquiesce in the abandonment by the nursing ho presentation of the new arbitration contract shows the intent on the part of the nursing home to abandon it and the lower court found that the acquiescence by the brain tumors by not signing that show that there was the talladega that was an abandonment of the prior contract so that funding has been made by the lower court and that when you have banned in the prior contract there is no valid arbitration contract to to then hold bramer to and force them to waive their right to a jury trial in this case why do we infer that there's acquiescence rather than inferring that the bremer's were so busy well i don't think you need to infer that your honor i think what we know is that mrs bremer mr bremer presented with these documents what the evidence in the case of the record shows is that they did not sign that in and of itself is the acquiescence in this case and just to back up a little bit because the focus as this court held and badge it is the presentation of the new arbitration contract as a judge merit asked why do you present a new arbitration contract if you believe that you were already balam to arbitration by the earlier agreement and just more as you asked there is the january fifth agreement the january twenty sixth agreement originally the nursing home argued that the january fifth agreement should apply and should bound the bramer to arbitration that was their original petition and they said that should apply from hits going forward then they amended their petition and said no we're not going to argue that now we're going to argue that the january twenty sixth agreement the arbitration agreement should apply and bind them to arbitration it is clear that if each admission this nursing home chain presents a new arbitration agreement thereby giving the residents a choice again as to whether or not they want to choose to arbitrate their claims and as the court held in badge you can have the right to change your mind that's what happened in badgett this was at a different facility by the same nursing home the same nursing home in this case and at that subsequent admission the resident and that in that situation have a written contract in this case in in the badge a case there was the admission con admission contract that was signed in this case we do not have that what we do have is what we  texaco in the texaco case the court determined that there was an abandonment based on the acts and conduct of the party there was no subsequent contract in the texaco case in that case you had the exoneration clause that said that the store owner was going to have to be responsible for maintaining the equipment but what happened subsequent to that was that the conduct was that texaco maintain that equipment over the years and so when when the parties filed suit against texaco texaco then try to use the exoneration clause to say well then we don't have to be responsible for this and the court rejected that argument hands down and said now based on your own conduct you've abandoned your prior caught prior contract and therefore you are held accountable for this it's the same thing in this case this court has already held that the nursing home the very same nursing home chain as in this case in the badge a case presented a new arbitration contract gave the parties a choice of whether to arbitrate and that act in a self abandon the january contract and for these reasons we would ask this court affirm the lower court's opinion and find that the petition for to compel arbitration be denied and that this case almost two years later be allowed to move forward thank your hon your owners very briefly i'd like to address the timing issue because i believe that's the key distinction between this case and the badge it case quoting directly from in terms of timing in terms of when exactly the prior agreement if it was in fact rescinded was rescinded in badgett quoting when the parties subsequently entered into the second arbitration agreement each gave up their contractual obligation to arbitrate they could not win a gate disputes up until that point that point being the point at which they executed the subsequent contract not the point at which g g n s c presented the proposed agreement to mr badgett in that case the court  length about why i g g n a c did or did not you know what their intention was in terms of presenting that subsequent contract it did not hold as a matter of law that simply by presenting that subsequent contract that standing alone was sufficient to extinguish the prior one and i think the point about silence is is also critical silence is not sufficient to create a contract i would respectfully submit that it is not sufficient to rescind one either we have silence in this case to the extent that we want to construe the nursing home as offering a choice to repudiate a prior arbitration agreement g g n a c is the master of that offer they get to say how it is that you exercise that choice how it is that you accept that offer they did so by providing a decline line and by saying in the agreement that it's only binding if signed it's not signed in this case i would also remind the court that the stout case from two from the year two thousand which is the seminal case in the circuit on petitions to compel arbitration says that if there are doubts about the party's intentions then we resolve those doubts in favor of arbitration i would also point out that abandonment must be proven by clear and convincing evidence so to the extent my colleague is arguing that we should draw inferences from the party's conduct the question is not what  can we infer the question is what can we prove by clear and convincing evidence we have a signed broad arbitration agreement in this case we have no subsequent contract we're sending that the last thing that i would like to just appoint the court attention to is i do think it is significant that if you look at the record it becomes clear that these documents were sent to the after mr bremer left the facility the cover letter transmitting the documents is not dated but if you read the letter it it's clear that it was at a time after the brainers had been at the facility he was only there for a day  court reversed the district court's order and remand with instructions to compel arbitration thank you all very thank you both for your argument the case will be submitted to the court called the next case