FOURTH DIVISION

DILLARD, P. J.,

MERCIER and COLVIN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

June 2, 2021

In the Court of Appeals of Georgia

A21A0173. EMORY HEALTHCARE, INC. et al. v. FARRELL.

DILLARD, Presiding Judge.

Georgia has a robust policy of favoring the resolution of legal disputesthrough

arbitration. But arbitration agreements are still contracts, and the presumption of

arbitrability—strong as it is—cannot displace the traditional rules of contract

formation. And here, we are asked to consider the contractual effect of a hospital’s

practice of re-presenting patients with admission forms that include an ostensibly

indefinite arbitration agreement on any previously signed arbitration agreements by

those patients. So, here is how it works. A patient seeks admittance to a hospital for

healthcare services and is presented with paperwork to sign as a condition of being

admitted. These admissions forms include an arbitration agreement governing this

visit and all future admittances. If the patient signs the arbitration agreement during
each hospital stay, then there is no issue as to the formation of those agreements. But

what if—as in this case—a patient signs an indefinite arbitration agreement during

one visit, later seeks admission for additional or other healthcare services, is represented with the same arbitration agreement, refuses to sign it, and is still admitted

to the hospital? Can the hospital rely upon the prior arbitration agreement to force the

patient to arbitrate any claims arising out of the subsequent hospital stay? The short

answer is: No. By re-presenting an indefinite arbitration agreement to a patient who

has already executed one, the hospital has contractually abandoned the prior

agreement.

This brings us to Richard Farrell’s lawsuit against the Emory Defendants,

1

in

which he alleges that he suffered injuries as a result of the defendants’ professional

negligence in performing a surgical procedure. The Emory Defendantsfiled a motion

to compel arbitration based on an agreement contained in admissions paperwork

signed by Farrell several months earlier, when he sought treatment unrelated to that

at issue in his lawsuit. The trial court denied the Emory Defendants’ motion, and they

1 Farrell sued Robert M. Ermentrout, M.D., Irwin M. Best, M.D., Younis

Alazzawi, M.D., Emory University, Emory University Hospital, and Emory

Healthcare, Inc., but we refer to these parties as the “Emory Defendants” for the sake

of simplicity. 

2
now appeal. In doing so, they argue the trial court erred in ruling that their practice

of re-presenting an arbitration agreement to a previously admitted patient constitutes

an abandonment of any prior arbitration agreement signed by that patient. For the

reasons set forth infra, we affirm.

This Court reviews the grant or denial of a motion to compel arbitration de

novo to see if the trial court’s decision is correct as a matter of law;2

but we defer to

the trial court’s factual findings unless they are clearly erroneous.

3 So viewed, the

record shows that in March and April of 2018, Farrell sought treatment with Emory

for medical issues on several occasions. Each time, Emory presented Farrell with an

identical Admission/Registration Agreement, which outlined the terms of his

2

See Schinazi v. Eden, 351 Ga. App. 151, 156 (830 SE2d 531) (2019) (“[T]his

Court reviews the record de novo to determine whether the trial court’s denial of the

motion to compel arbitration is correct as a matter of law.” (punctuation omitted));

Kindred Nursing Ctrs. Ltd. P’ship v. Chrzanowski, 338 Ga. App. 708, 708-09 (791

SE2d 601) (2016) (same).

3

See Schinazi, 351 Ga. App. at 156 (“[W]e defer to the trial court’s findings

of fact upon which its denial was based unlessthose findings are clearly erroneous.”);

Ed Voyles Jeep-Chrysler, Inc. v. Wahls, 294 Ga. App. 876, 877 (670 SE2d 540)

(2008) (explaining that, in context of determining whether a party has waived itsright

to arbitrate, “the findings upon which the conclusion is based are predicate questions

of fact, which may not be overturned unless clearly erroneous” (punctuation

omitted)).

3
admission. Paragraph VI of this agreement is titled “Agreement to Alternative

Dispute Resolution,” and provides as follows:

I agree that any claim or dispute arising out of or related to the provision

of health care services to me by Emory University, Inc. d/b/a [numerous

Emory-related entities], or their employees or agents (“Emory”), except

as otherwise provided herein, shall be resolved by final and binding

arbitration. I agree that this provision is governed by the terms of the

Federal Arbitration Act. I understand and agree that this agreement

includes and encompasses any claims arising out of or relating to health

care services which shall be provided to me upon this admission as well

as all health care services provided to me by Emory in the future,

provided, however, that this agreement does not include and encompass

any claim or dispute by either party arising out of or related to the

billing or payment for health care services. I understand and agree that

by agreeing to arbitrate, I am waiving my right to a jury trial (if

otherwise available). I understand that this agreement is also binding on

any individual or entity claiming by or through me or on my behalf. I

understand that this agreement is voluntary and is not a precondition to

receiving health care services. . . . I understand that I have the right to

revoke this agreement no later than ten (10) days following signature

and that, if I choose to revoke, I must request and execute a revocation

form within this time period. 

Immediately below this paragraph is a date and signature line for the patient to

indicate whether he or she consentsto arbitration. And importantly, on the March and

4
April admissions forms, Farrell did not sign underneath Paragraph VI. But on May

21, 2018, Farrell again sought treatment with Emory, and on this occasion, he did

sign the line underneath Paragraph VI, indicating his consent to arbitration. 

Farrell later sought treatment with Emory again on June 4 and August 6, 2018,

but he did not sign his specific consent to Paragraph VI on either of those two

admissions forms. And then, on August 18, 2018, while still admitted and receiving

treatment under the August 6 admission form, Farrell underwent a Transjugular

Intrahepatic Portosystemic Shunt (“TIPS”) procedure,4

during which he claims the

Emory Defendants’ professional negligence resulted in an injury to one of his major

blood vessels. 

Less than one year later, Farrell filed a medical malpractice lawsuit against the

Emory Defendants based on the foregoing incident, and the defendantsfiled separate

answers. At the same time, the Emory Defendants filed motions to dismiss Farrell’s

complaint, or, alternatively, to compel arbitration. In doing so, they argued that

4 A Transjugular Intrahepatic Portosystemic Shunt is a procedure to create new

connections between two blood vesselsin a patient’sliver and, thus, assist in treating

severe liver problems. It is not a surgical procedure, but rather, is done by an

interventionalradiologist.Using x-ray guidance, the radiologist inserts a catheter into

the patient’s jugular vein and then guides the catheter to a vein in the liver where the

stent is placed to connect a portal vein to a hepatic vein, thereby easing blood flow.

See https://medlineplus.gov/ency/article/007210.htm (last visited on May29, 2021).

5
Farrell’s May 21, 2018 admissions forms—which included his signature consenting

to the arbitration agreement in Paragraph VI—required himto submit the malpractice

claims arising out of his August 6, 2018 admission to arbitration. Farrell responded,

and the trial court held a hearing before taking the matter under advisement.

Subsequently, the court issued an order denying the Emory Defendants’ motion to

compel arbitration but also granted them a certificate of immediate review. We

granted the Emory Defendants’ application for interlocutory review, and this appeal

follows. 

The Emory Defendants contend that the trial court erred in denying their

motions to compel arbitration. Specifically, they argue that the court erroneously

concluded that presenting an arbitration agreement with admissionsforms every time

a patient is admitted constitutes an abandonment of any existing arbitration agreement

signed in previous admissions forms. We disagree.

It is well established that, under both Georgia and federal law, arbitration is “a

matter of contract and a party cannot be required to submit to arbitration any dispute

which he has not agreed so to submit.”5Importantly, asthe partiesseeking arbitration,

5 Yates v. CACV of Col. LLC, 303 Ga. App. 425, 430 (1) (693 SE2d 629)

(2010) (punctuation omitted); accord Pickle v. Rayonier Forest Res., L.P., 282 Ga.

App. 295, 296 (638 SE2d 344) (2006); see Volt Info. Sci. v. Bd. of Trustees of Leland

6
the Emory Defendants bear “the burden of proving the existence of a valid and

enforceable agreement to arbitrate, which is generally governed by state law

principles of contract formation.”6 So, we must first determine if “the contract

language is ambiguous, and, if so, then we apply the appropriate rules of construction

set forth in OCGA § 13-2-2.”7 And while ambiguitiesin the language of an agreement

“should be resolved in favor of arbitration[,] we do not override the clear intent of the

parties, or reach a result inconsistent with the plain text of the contract, simply

Stanford Junior Univ., 489 U.S. 468, 479 (109 SCt 1248, 103 LE2d 488) (1989)

(noting that “[a]rbitration is a matter of consent, not coercion[.]” (punctuation

omitted)).

6 Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Landau-Taylor as Trustee of

Ga. Sortor Lerangis Trust, 357 Ga. App. 818, 821 (1) (849 SE2d 504) (2020)

(punctuation omitted); accord United Health Svcs. of Ga., Inc. v. Alexander, 342 Ga.

App. 1, 2 (2) (802 SE2d 314) (2017); see First Options of Chicago, Inc. v. Kaplan,

514 U.S. 938, 944 (II) (115 SCt 1920, 131 LE2d 985) (1995) (“When deciding

whether the parties agreed to arbitrate a certain matter (including arbitrability), courts

generally should apply ordinary state-law principles that govern the formation of

contracts.” (punctuation omitted)); Wedemeyer v. Gulfstream Aerospace Corp., 324

Ga. App. 47, 50 (1) (749 SE2d 241) (2013) (“Arbitration in Georgia is a matter of

contract. As such, the construction of an arbitration clause in a contract is subject to

the ordinary rules of contract construction.” (punctuation omitted)).

7 Wedemeyer, 324 Ga. App. at 50 (1) (punctuation omitted); accord Richard

Bowers & Co. v. Creel, 280 Ga. App. 199, 200 (1) (633 SE2d 555) (2006).

7
because the policy favoring arbitration isimplicated.”8

In contrast, when the language

of a contract is “plain and unambiguous, no construction is required or permissible

and the terms of the contract must be given an interpretation of ordinary

significance.”9 Furthermore, the question of arbitrability—i.e., whether an agreement

creates a duty for the parties to arbitrate the particular grievance—is “undeniably an

issue for judicial determination.”10

In this matter, we are not called upon to mine the vagaries of “ambiguities in

the language of the agreement.”11 Rather, the issue is whether Farrell consented to

arbitrate his medical malpractice claims.12 And as previously noted, the Emory

Defendants contend that Farrell’s signed consent to the arbitration agreement in his

May 21, 2018 admissions forms applied to all future admissions for treatment with

8 E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 294 (IV) (122 SCt 754, 151

LE2d 755) (2002) (punctuation omitted).

9 Wedemeyer, 324 Ga. App. at 50 (1) (punctuation omitted); accord Creel, 280

Ga. App. at 200 (1).

10 Yates, 303 Ga. App. at 430 (1) (punctuation omitted); accord Pickle, 282 Ga.

App. at 296.

11 Waffle House, 534 U.S. at 294 (IV).

12

See GGNSC Louisville Hillcreek, LLC v. Estate of Bramer, 932 F.3d 480,

485 (II) (A) (6th Cir. 2019) (“An agreement to arbitrate is fundamentally a matter of

consent.”).

8
Emory. They maintain that the subsequent presentation to Farrell of identical

admissions forms—in which he did not sign the arbitration agreement for the

admission during which he suffered his injury—is of no consequence. More simply

put, the Emory Defendants argue that re-presenting the identical admissions forms

had no effect on the previously signed arbitration agreement. We disagree. By representing the arbitration agreement to Ferrell each time he sought treatment, the

Emory Defendants engaged in behavior unmistakably demonstrating their

abandonment of the prior agreement.

13

Under Georgia law, parties may “by mutual consent abandon an existing

contract between them so as to make it not thereafter binding and the contract may

13

See Bramer, 932 F3d at 486-89 (II) (B) (holding that nursing home

operator’s conduct in presenting, each time resident wasreadmitted to nursing home,

the same arbitration agreement that had been executed for resident’s initial admission,

despite fact that each arbitration agreement contained a clause stating that the

agreement would remain in effect after discharge and readmission, coupled with

resident’srefusal to sign arbitration agreementfor second readmission, unmistakably

showed that no prior agreement controlled when resident wasreadmitted for a second

time). Importantly, our Supreme Court has held that we may look to federal case law

for guidance in arbitration cases such as this one. See Brookfield Country Club, Inc.

v. St. James-Brookfield, LLC, 287 Ga. 408, 412 (1) (696 SE2d 663) (2010) (noting

that “[b]ecause our state arbitration code closely tracks federal arbitration law, we

look to federal cases for guidance in construing our own statutes” (punctuation

omitted)).

9
be rescinded by conduct as well as by words.”

14

Indeed, for purposes of rescission,

a meeting of the minds may be shown by “the conduct of one party inconsistent with

the continued existence of a contract, or abandonment or repudiation of the contract,

and knowledge of, and acquiescence to, such abandonment or repudiation by the

other.”15 And here, the Emory Defendants’ conduct in re-presenting an identical

arbitration agreement in the August 6, 2018 admissions forms is behavior

fundamentally inconsistent with the continued viability of the earlier identical

arbitration agreement, which Farrell signed in the May 21, 2018 admissions forms.

16

Indeed, each new presentation of the arbitration agreement by the Emory Defendants

14 WorksiteRX, LLC v. DrTango, Inc., 286 Ga. App. 284, 285 (648 SE2d 775)

(2007) (punctuation omitted); accord C. Brown TruckingCo., Inc. v. Henderson, 305

Ga. App. 873, 874 (1) (700 SE2d 882) (2010);see Wise v. Tidal Constr. Co., Inc., 261

Ga. App. 670, 675 (2) (583 SE2d 486) (2003) (“An agreement to arbitrate is waived

by any action of a party which is inconsistent with the right of arbitration.”

(punctuation omitted).

15 Estate of Bramer, 932 F3d at 487 (II) (B) (punctuation omitted).

16

See id. (finding that nursing home operator presenting resident with an

identical agreement in the admissions packet is an act fundamentally inconsistent

with the continued existence of an earlier identical agreement).

10
to Farrell “constituted a new offer that is inconsistent with a contract being in

force.”17

Even so, the Emory Defendants hinge their argument on language in the

arbitration agreement indicating that it applies to all future healthcare services.

Specifically, theymaintain thatre-presenting the identical agreement—which Farrell

did not sign—in later admissions forms did not amount to an abandonment

18

of the

earlier signed agreement but is merely a way to “ensure the broadest possible

dissemination of the offer to arbitrate among the patient population.” This contention

17

Id. Cf. Powell v. Norman Elec. Galaxy, Inc., 229 Ga. App. 99, 101 (1) (493

SE2d 205) (1997) (“An existing contract is superseded and discharged whenever the

parties subsequently enter upon a valid and inconsistent agreement completely

covering the subject matter embraced by the original contract.” (punctuation

omitted)).

18 The Emory Defendants also attempt to bolster their argument that the

agreement has not been abandoned by noting that in cases in which we have held that

waiver of an arbitration right occurred, the party seeking to rely on an arbitration

clause did not promptly invoke or seek to enforce the clause, and contrasting those

cases to their conduct here, in which they did promptly seek to arbitrate. See, e.g.,

Wise, 261 Ga. App. at 675 (2) (the party seeking to enforce the arbitration agreement

“sought to have both litigation short of trial and arbitration to avoid a jury trial, which

is grossly inconsistent with the inherent purpose for arbitration.”). But these cases are

inapposite because our holding does not rest on the Emory Defendants being dilatory

in seeking to arbitrate. Rather, our decision is based on these defendantsre-presenting

Farrell with a new arbitration agreement, which he did not sign, and which resulted

in the previous agreement being abandoned.

11
is a nonstarter. Indeed, despite the EmoryDefendants’ post hoc rationale to seemingly

veil a heads-we-win-tails-you-lose outcome, we agree with the trial court that the representment of the arbitration agreement unequivocally and objectively evinces an

intent to offer the readmitted patient with a new opportunity to choose or reject

arbitration. Otherwise, re-presentment of the identical agreement offers the patient a

choice they are not contractually allowed to make, or a choice that is meaningless.

This, of course, would run afoul of Georgia law, which “requires us to give meaning

to every term of a contract rather than construe any term as meaningless, and to

construe a contract so as to uphold the contract in whole and in every part[.]”

19 And

that is exactly what we will do here. 

19 City of Albany v. Dougherty Cty., 352 Ga. App. 664, 668 (2) (835 SE2d 681)

(2019) (punctuation omitted); see Dohn v. Dohn, 276 Ga. 826, 828 (584 SE2d 250)

(2003) (“In applying the rules of construction of contracts, we look to that

construction which will uphold the contract as a whole and not make any provision

meaningless.” (punctuation omitted)); Milliken &Co. v. Ga. PowerCo., 354 Ga. App.

98, 100 (839 SE2d 306) (2020) (“It is a cardinal rule of contract construction that a

court should, if possible, construe a contract so as not to render any of its provisions

meaningless and in a manner that gives effect to all of the contractual terms.”

(punctuation omitted)).

12
So, although the arbitration agreement language in the May 21, 2018

admissions forms did not require it to do so,20 Emory presented Farrell with a new

(albeit identical) arbitration agreement in the August 6, 2018 admissions forms and,

therefore, abandoned the previous one. And by electing not to sign the new arbitration

agreement, Farrell acquiesced in the Emory Defendants’ abandonment of the earlier

agreement.

21 As a result, there was no agreement to arbitrate in existence as of August

6, 2018, and the trial court did not err in denying the Emory Defendants’ motion to

compel arbitration.

For all these reasons, we affirm the trial court’s judgment.

Judgment affirmed. Mercier and Colvin, JJ., concur.

20

 Farrell does not argue that indefinite or infinite arbitration agreements like

the one before us are unconscionable, so nothing in this opinion should be understood

as either upholding or rejecting the legality of such agreements or clauses.

21

See supra note 13; see also Powell, 229 Ga. App. at 101 (1) (“An existing

contract is superseded and discharged whenever the parties subsequently enter upon

a valid and inconsistent agreement completely covering the subject matter embraced

by the original contract.” (punctuation omitted))

13