RENDERED: AUGUST 5, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0051-MR

CV LOUISVILLE OPCO I, LLC D/B/A 

OR A/K/A SYCAMORE HEIGHTS 

HEALTH AND REHABILITATION; 

THE PORTOPICCOLO GROUP, LLC; 

THOMAS RAWLINS IN HIS 

CAPACITY AS ADMINISTRATOR 

OF SYCAMORE HEIGHTS HEALTH 

AND REHABILITATION; AND 

ULTRACARE MANAGEMENT 

GROUP, LLC APPELLANTS 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE SUSAN SCHULTZ GIBSON, JUDGE

ACTION NO. 20-CI-004497

SHEILA DOUGLAS AS 

ADMINISTRATRIX OF THE ESTATE 

OF LARRY DOUGLAS APPELLEE 

OPINION

AFFIRMING IN PART, REVERSING IN PART, 

AND REMANDING

**   **  **

BEFORE: ACREE, CETRULO, AND TAYLOR, JUDGES.
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TAYLOR, JUDGE: CV Louisville Opco I, LLC d/b/a or a/k/a Sycamore Heights 

Health and Rehabilitation; the Portopiccolo Group, LLC; Thomas Rawlins in his 

capacity as Administrator of Sycamore Heights Health and Rehabilitation; and 

Ultracare Management Group, LLC (collectively referred to as Sycamore) bring 

this appeal from an Order entered December 14, 2020, by the Jefferson Circuit 

Court denying their motion to compel arbitration of negligence and wrongful death 

claims brought by Sheila Douglas as the Administratrix of the Estate of Larry 

Douglas (herein referred to as the resident or decedent) on behalf of beneficiaries 

of the decedent against Sycamore (a nursing home). As will be discussed, Douglas 

entered into an arbitration agreement in her role as attorney-in-fact under a power 

of attorney (POA) as part of a larger Admissions Agreement to ensure the 

resident’s care at Sycamore. For the reasons stated herein, we affirm in part, 

reverse in part, and remand for proceedings consistent with this Opinion.

BACKGROUND

In 2019, Larry Douglas appointed his sister, Sheila Douglas, as his 

lawful attorney-in-fact pursuant to an executed power of attorney, which is not in 

dispute in this appeal. In February of 2019, Sheila executed the Admissions 

Agreement on Larry’s behalf for his admission to Sycamore’s facility. Larry was 

treated at the facility between February 1, 2019, and May 29, 2019. Larry died on 

June 4, 2019. Thereafter, Douglas filed an action in Jefferson Circuit Court on 
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August 3, 2020, as administratrix of the Estate, asserting negligence and wrongful 

death claims against Sycamore. The circuit court denied Sycamore’s motion to 

compel arbitration by order entered December 14, 2020. This appeal followed.

STANDARD OF REVIEW

The standard of review for this Court of an order below denying a 

motion to compel arbitration can be summarized as follows:

Ordinarily, such orders are interlocutory and are not 

immediately appealable. However, an order denying a 

motion to compel arbitration is immediately appealable. 

[Kentucky Revised Statutes] KRS 417.220(1). See

also Conseco Finance Servicing Corp. v. Wilder, 47 

S.W.3d 335, 340 (Ky. App. 2001). The enforcement and 

effect of an arbitration agreement is governed by the 

Kentucky Uniform Arbitration Act (KUAA), KRS 

417.045 et seq., and the Federal Arbitration Act, (FAA) 9 

U.S.C.4 §§ 1 et seq. “Both Acts evince a legislative 

policy favoring arbitration agreements, or at least 

shielding them from disfavor.” Ping v. Beverly

Enterprises, Inc., 376 S.W.3d 581, 588 (Ky. 2012).

But under both Acts, a party seeking to compel 

arbitration has the initial burden of establishing the 

existence of a valid agreement to arbitrate. Id. at 589. 

That question is controlled by state law rules of contract 

formation. Id. at 590. The FAA does not preempt state 

law contract principles, including matters concerning the 

authority of an agent to enter into a contract and which 

parties may be bound by that contract. Arthur Andersen

LLP v. Carlisle, 556 U.S. 624, 630-31, 129 S. Ct. 1896, 

1902, 173 L. Ed. 2d 832 (2009). Since this matter is 

entirely an issue of law, our standard of review is de

novo. Conseco, 47 S.W.3d at 340.

Genesis Healthcare, LLC v. Stevens, 544 S.W.3d 645, 648-49 (Ky. App. 2017).
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The circuit court, in denying Sycamore’s motion to compel 

arbitration, found that Douglas signed the Admissions Agreement, which contained 

the arbitration agreement, only in her representative capacity. The court also found 

that the arbitration agreement was unconscionable. Although the circuit court did 

not cite any authority in support of its decision, we agree that Douglas signed only 

in her representative capacity as attorney-in-fact and affirm in that regard. 

However, as concerns the conscionability of the arbitration agreement, for the 

reasons stated, we conclude the arbitration agreement was not unconscionable. 

Further facts will be developed as necessary.

ANALYSIS

The Admissions Agreement presented to Douglas upon the decedent’s 

admission to Sycamore is an eleven-page document, excluding the signature pages. 

It is divided into ten sections and various subsections within. Several sections 

and/or subsections within the Admissions Agreement contain lines for a signature 

or initials of either the Resident or the Resident’s Sponsor. Douglas signed or 

initialed each item as “Sponsor.” Section 4 of the Admissions Agreement defines 

“Sponsor,” in relevant part, as:

[A] person legally responsible for the Resident or must 

be in the process of obtaining such status, including a 

guardian, a person holding a durable power of attorney 

and/or a conservator. The Facility must receive written 

documentation from the person who will act as the 

Sponsor showing the legal right to act on behalf of the 
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Resident and the date on which the person was appointed 

by a court and/or the Resident.

 The arbitration agreement is found in Section 10(G), of the 

Admissions Agreement, entitled “Disputes,” and does not have an accompanying 

line for signatures or initials as found in other sections and/or subsections. Section 

10 contains the final substantive provisions of the Admissions Agreement. 

Following Section 10 is a separate signature page for the Admissions Agreement. 

Appearing at the top of the signature page is the following:

THE UNDERSIGNED ACKNOWLEDGE THAT 

EACH OF THEM HAVE READ AND UNDERSTOOD 

THIS AGREEMENT, INCLUDING THE 

ARBITRATION PROVISION IN SECTION 10.G. AND 

HAS RECEIVED A COPY OF THIS AGREEMENT, 

AND THAT EACH OF THEM VOLUNTARILY 

CONSENTS TO AND ACCEPTS ALL OF ITS 

TERMS[.]

 Douglas signed her name on the line below that says “(Resident 

(individual or by legal representative)[)].” However, below that is a section for the 

Sponsor to sign. It has a similar statement preceding the signature line that appears 

in all caps and boldface type and reads:

SPONSOR MUST COMPLETE AND SIGN BELOW 

AS ACKNOWLEDGMENT OF HIS/HER HAVING 

READ AND FULLY UNDERSTOOD, AND 

AGREED TO THE PERSONAL UNDERTAKINGS 

OF THE SPONSOR, AS PROVIDED FOR IN THE 

AGREEMENT[.]
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 Douglas printed her name, provided her signature, and on the 

“Relation” line wrote “Sister/POA.” Notably, there is no dispute over Douglas’s 

role as attorney-in-fact, and whether, as such, she had the authority to sign the 

Admissions Agreement which included the arbitration agreement. However, 

“Sister” does not in any way comport with the nursing home’s definition of a 

Sponsor in Section 4 of the Admissions Agreement. Douglas’s role as “Sister”

would not provide the necessary authority to sponsor the decedent for 

admission. Only her role as attorney-in-fact under the POA does that. 

Accordingly, this language in the agreement is not sufficient to bind Douglas 

individually to the arbitration provisions including her personal wrongful death 

claim. We can find no definitive statement that Douglas was signing in her 

individual capacity.

 The arbitration agreement in Section 10(G) reads as follows:

Disputes. (i) To the fullest extent allowed by law, 

Resident and/or the Resident’s legally authorized 

representative who signs this Agreement, on behalf of the 

Resident, the Resident’s heirs, assigns, and all others 

acting or purporting to act for the Resident or the 

Resident’s estate, and Facility agree that all civil claims 

arising in any way out of this Agreement or the 

nursing care that Facility, its employees, or agents 

provide to Resident, other than claims by the Facility to 

collect unpaid bills for services rendered, or to 

involuntarily discharge the Resident, shall be resolved 

exclusively through mandatory mediation, and, if 

such mediation does not resolve the dispute, through 

binding arbitration using the commercial mediation 
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and arbitration rules and procedures of 

JAMS/Endispute. JAMS shall hold such mediation and, 

if needed, such arbitration in its office located closest to 

the Facility. If any mediator, arbitrator, or court of 

competent jurisdiction finds any portion of this Section 

unenforceable for any reason, then they shall delete those 

unenforceable provisions and enforce the remaining 

provisions. Except as stated in this paragraph, 

JAMS/Endispute’s commercial mediation and arbitration 

rules shall apply to any mediation or arbitration[;] (ii) 

Resident and Facility also agree that, to the greatest 

extent allowed by law, both Resident and Facility 

shall seek only actual damages in any such mediation 

or arbitration, and that neither of them will pursue 

any claim for punitive damages, treble damages or 

any other type of damages the purpose of which are to 

punish one party in an amount greater than the actual 

damages allegedly caused by the other party; (iii) If 

circumstances justifying a temporary restraining order or 

a preliminary injunction exist, then either party may seek 

such a temporary restraining order and/or such a 

preliminary injunction from any court with jurisdiction 

over the dispute. After the court rules on such motion for 

temporary restraining order or preliminary injunction, 

however, the parties will then engage in the mediation 

and, if necessary, arbitration, detailed in paragraphs A 

and B of this Section above; [and] (iv) Resident, 

Resident’s authorized representative, and Facility all 

agree that they have read this section, that they 

understand all of its provisions, and that they agree to all 

of the provisions detailed in this Section[.]

 Despite the language purporting to bind the decedent’s “heirs, assigns, 

and others acting or purporting to act for the Resident or the Resident’s estate,” it 

is well-settled law in Kentucky that a decedent cannot bind wrongful death 

claimants to an arbitration agreement. “[T]he decedent whose death becomes the 
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basis of a wrongful death claim had no authority during his lifetime, directly or 

through the actions of his attorney-in-fact, to prospectively bind the beneficiaries 

of the wrongful death claim to an arbitration agreement.” Extendicare Homes, Inc.

v. Whisman, 478 S.W.3d 306, 313 (Ky. 2015), judgment rev’d in part, vacated in 

part sub nom. Kindred Nursing Centers Ltd. P’ship v. Clark, 137 S. Ct. 1421, 

(2017) (emphasis added).1 Similarly, had Douglas signed the Admissions 

Agreement in her individual capacity, which did not occur, other than herself, she 

could not have bound the Estate or any other wrongful death beneficiaries to 

arbitrate any claims under the agreement. See LP Louisville East, LLC v. Patton, 

621 S.W.3d 386, 399 (Ky. 2020). In short, Douglas, as attorney-in-fact, only 

possessed the authority to bind the decedent to the arbitration agreement. See id. at 

394. Although she indicated in the agreement that her relation was “Sister/POA,” 

the relationship of “Sister” would not create any personal liability for Douglas 

under the Admissions Agreement, including Section 4 regarding sponsors. We 

therefore affirm the circuit court in that regard. 

 The circuit court also found that the arbitration agreement is 

unconscionable, concluding that it “is a mutual agreement in name only” because 

1 As this Court has noted in Preferred Care Partners Management Group, L.P. v. Alexander, 530 

S.W.3d 919, 924 (Ky. App. 2017), KRS 411.130, Kentucky’s wrongful death statute, including

its predecessor statute preceded the enactment of the Federal Arbitration Act and is not 

antiarbitration legislation.
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only the decedent gave up the right to proceed in a court of law for any disputes. 

The circuit court pointed to the fact that the part of the agreement binding the 

decedent to arbitration appears in boldface type while the language that reserves 

Sycamore’s right to bring its actions in court does not. The court found that this 

“borders on fraud and certainly appears to be in bad faith.” We disagree. 

A fundamental rule of contract law holds that, 

absent fraud in the inducement, a written agreement duly 

executed by the party to be held, who had an opportunity 

to read it, will be enforced according to its terms. The 

doctrine of unconscionability has developed as a narrow 

exception to this fundamental rule. The doctrine is used 

by the courts to police the excesses of certain parties who 

abuse their right to contract freely. It is directed against 

one-sided, oppressive and unfairly surprising contracts, 

and not against the consequences per se of uneven 

bargaining power or even a simple old-fashioned bad 

bargain.

An unconscionable contract has been characterized 

as “one which no man in his senses, not under delusion, 

would make, on the one hand, and which no fair and 

honest man would accept, on the other.” 

Unconscionability determinations being inherently factsensitive, courts must address such claims on a case-bycase basis.

Conseco Fin. Serv. Corp. v. Wilder, 47 S.W.3d 335, 334-42 (Ky. App. 2001)

(footnotes omitted).

 This Court, in Conseco, also defined the different types of 

unconscionability applicable to a contract dispute:
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Procedural, or unfair surprise, unconscionability pertains 

to the process by which an agreement is reached and the 

form of an agreement, including the use therein of fine 

print and convoluted or unclear language . . . . [It] 

involves, for example, material, risk-shifting contractual 

terms which are not typically expected by the party who 

is being asked to assent to them and often appear [ ] in 

the boilerplate of a printed form. The notion of 

procedural unconscionability thus includes many of the 

concerns raised by contracts of adhesion. Substantive 

unconscionability refers to contractual terms that are 

unreasonably or grossly favorable to one side and to 

which the disfavored party does not assent.

Id. at 343 n.22 (internal quotation marks and citations omitted).

 In the case sub judice, Douglas does not claim she was misled by 

Sycamore. Nor does she claim that she did not read or did not have an opportunity 

to read the arbitration agreement. The provision itself is not hidden or obscured in

fine print. Indeed, it is the only subsection within the entirety of the Admissions 

Agreement containing portions that are in both boldface type and underlined. It is 

the only section of the Admissions Agreement that mentions arbitration. We are 

unpersuaded by Douglas’s argument using Flesch-Kincaid scores to convince this 

Court that the language in the arbitration agreement is incomprehensible to a 

person of ordinary experience and education. Douglas points to no examples in 

Kentucky law where Flesch-Kincaid scores have been used in contract 

interpretation. The language in the Arbitration Agreement is such that its general 

import is understandable to a person of ordinary experience and education. 
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 Although the arbitration agreement does provide that Sycamore may 

use the courts for “unpaid bills for services rendered, or to involuntarily discharge 

the Resident,” we are not persuaded that this renders the agreement 

unconscionable. These potential claims of Sycamore are such that they could be 

decided expeditiously in the courts. “The potential for uneven remedies does not 

render the arbitration clause unconscionable.” Hathaway v. Eckerle, 336 S.W.3d 

83, 89 (Ky. 2011). Accordingly, we reverse and remand the circuit court’s finding 

that the arbitration agreement was unconscionable for lack of mutuality.

In summation, we conclude that the arbitration agreement is 

enforceable against the Estate except as concerns any wrongful death claims. And, 

Douglas is not personally liable under the Admissions Agreement. Accordingly, 

we affirm in part, reverse in part, and remand for proceedings consistent with this 

Opinion.

ALL CONCUR.

BRIEFS FOR APPELLANTS:

James P. Grohmann

A. Pete Pullen

Louisville, Kentucky

BRIEF FOR APPELLEE:

Matthew D. Swindle

Robert W. Francis

Little Rock, Arkansas