No. 20-0680, Beckley Health Partners, LTD, d/b/a The Villages at Greystone; Chancellor 

Senior Management, LTD; and Megan Ward Wilson, Residence Manager v. Cynthia F. 

Hoover, Durable Power of Attorney of Elveria M. Faw.1

Armstead, Justice, concurring, in part, and dissenting, in part:

The petitioners in this matter, Beckley Health Partners, LTD, d/b/a The 

Villages at Greystone, Chancellor Senior Management, LTD, and Megan Ward Wilson, 

Residence Manager, (together, “Greystone”) challenge the circuit court’s refusal to compel 

the respondent, Cynthia Hoover, in her capacity as the administratrix of her mother’s estate 

(the “Estate”), to submit to arbitration. The majority opinion affirms the circuit court’s 

refusal to compel arbitration, and I concur with most of the majority opinion’s analysis. 

Nevertheless, because I believe that the Estate is bound by the Residential and Community 

Arbitration Agreement (“Arbitration Agreement”) under the doctrine of estoppel, I 

respectfully dissent and would reverse the circuit court on this issue.

Estoppel. 

Ms. Faw signed neither the Arbitration Agreement nor the Assisted Living 

Residency Agreement (“Residency Agreement”). Although Ms. Hoover signed both 

agreements as “Responsible Party,” the majority finds that she lacked authority to bind her 

1 This is how the petitioners have styled their appeal. However, as the 

majority opinion notes, Ms. Hoover actually appears as Ms. Faw’s administratrix. 

FILED

June 15, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2 

mother at the time she executed these documents.2 Nevertheless, there are “five traditional 

theories under which a signatory to an arbitration agreement may bind a non-signatory[,]” 

including “estoppel[,]” which is the one most relevant to the facts of this case. Syl. Pt. 4,

in part, Bayles v. Evans, 243 W. Va. 31, 842 S.E.2d 235 (2020) (quoting Syl. Pt. 10, 

Chesapeake Appalachia, L.L.C. v. Hickman, 236 W. Va. 421, 781 S.E.2d 198 (2015)).3 “A 

nonsignatory is estopped from refusing to comply with an arbitration clause ‘when it 

receives a “direct benefit” from a contract containing an arbitration clause.’” Int’l Paper 

Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 418 (4th Cir. 2000) 

(quoting American Bureau of Shipping v. Tencara Shipyard S.P.A., 170 F.3d 349, 353 (2d 

Cir.1999)). The logic for this rule is simple: “a nonsignatory who seeks to reap the benefits 

of a contract must bear its burdens as well.” Bayles, 243 W. Va. at 41, 842 S.E.2d at 245. 

As Bayles explains, 

“[d]irect-benefit estoppel involve[s] non-signatories who, 

during the life of the contract, have embraced the contract

despite their non-signatory status but then, during litigation, 

attempt to repudiate the arbitration clause in the contract.” 

Hellenic Inv. Fund, Inc. v. Det Norske Veritas, 464 F.3d 514, 

517-18 (5th Cir. 2006). “A non-signatory can ‘embrace’ a 

contract containing an arbitration clause in two ways: (1) by 

knowingly seeking and obtaining ‘direct benefits’ from that 

contract; or (2) by seeking to enforce the terms of that contract 

or asserting claims that must be determined by reference to that 

contract.” Noble Drilling Servs., Inc. v. Certex USA, Inc., 620 

2 As the majority opinion correctly observes, Ms. Hoover did not have a 

power of attorney from her mother until days after she signed the Residency Agreement 

and the Arbitration Agreement. Moreover, the power of attorney subsequently granted to 

Ms. Hoover expressly excluded the ability to enter into arbitration agreements.

3 The remaining four theories are “(1) incorporation by reference; (2) 

assumption; (3) agency; [and] (4) veil-piercing/alter ego[.]” Id.
3 

F.3d 469, 473 (5th Cir. 2010). When the nonsignatory 

knowingly exploits the contract containing the arbitration 

clause and obtains a direct benefit from that contract, “[c]ourts 

have applied direct benefits estoppel to bind a non-signatory to 

an arbitration agreement[.]” Id. 

Id. at 41–42, 842 S.E.2d at 245–46 (emphasis and first alteration added).

In this case, the Estate admittedly seeks compensatory and punitive damages 

occasioned by Greystone’s alleged statutory violations and negligence and does not appear

to seek to enforce the Residency Agreement or assert claims that must be determined by 

reference to that document. However, I believe that Ms. Faw embraced the Residency 

Agreement and obtained benefits under such agreement by residing at Greystone. 

The Residency Agreement functioned, for all intents and purposes, as a 

quasi-lease agreement between Greystone and Ms. Faw.4 The Residency Agreement 

identified the apartment that Ms. Faw would occupy and provided that Greystone who 

would be responsible for utilities and maintenance of the apartment. In addition, the 

Residency Agreement stipulated the services—like housekeeping, meals, transportation, 

and nursing care—that Ms. Faw would receive. Perhaps most importantly, the Residency 

Agreement established the Monthly Rental Fee that Ms. Faw paid for her use of the 

apartment and receipt of services. Ultimately, and as the circuit court found, Ms. Faw “was

provided with care and services under the terms of the Residency Agreement” for “the 

period of time that Ms. Faw resided at Greystone[.]” 

4 According to the Residency Agreement, it did not convey “the rights of a 

‘tenant’ as that term is defined by state law.”
4 

Arbitration Agreement.

Because Ms. Faw “reap[ed] the benefits of” the Residency Agreement during 

her time as a resident, the Estate “must bear its burdens as well.” Bayles, 243 W. Va. at 

41, 842 S.E.2d at 245. Thus, the question becomes whether the Residency Agreement 

bound the Estate to submit its claims to arbitration, and I believe it did. The Residency 

Agreement expressly provides that the “Arbitration Agreement of even date herewith shall 

govern any and all disputes of the parties.” The majority opinion attempts to avoid the 

significance of this language by pointing out that the Arbitration Agreement, which was 

contained in a separate document, states that its “execution . . . is not a precondition to the 

furnishing of services to the Resident by the Community” and that “this Arbitration 

Agreement may be rescinded by written notice to the Community from the Resident within 

30 days of signature.” Thus, according to the majority opinion, “Ms. Faw’s acceptance of 

the benefits of the Residency Agreement [does not] equate[] to acceptance of the terms of 

the Arbitration Agreement[,]” and it cannot be said that “it is inequitable for Ms. Faw to 

have benefited from the Residency Agreement while permitting Administratrix Hoover to 

pursue the Estate’s claims in court[.]” I disagree.

The Residency Agreement stated that the “Arbitration Agreement . . . shall 

govern any and all disputes of the parties.” (Emphasis added.) Reading the two documents 

together—as we must5

—I believe that it was possible for Ms. Faw or Ms. Hoover to refuse 

5 Syl. Pt. 2, in part, Miller v. WesBanco Bank, Inc., 245 W. Va. 363, 859 

S.E.2d 306 (2021) (“Separate written instruments will be construed together and 
5 

to be bound by the Arbitration Agreement by either (1) declining to execute it initially, in 

that the provision of services under the Residency Agreement was not contingent upon 

such execution, or (2) executing the Arbitration Agreement initially but also executing a 

written notice of rescission within thirty days. There is no indication that Ms. Faw or Ms. 

Hoover followed either such course. 

The Residency Agreement provided that “any and all disputes of the parties” 

would be subject to arbitration in accordance with the terms and conditions set forth in the 

Arbitration Agreement. The majority is correct that the Arbitration Agreement states that 

the “execution of this Arbitration Agreement is not a precondition to the furnishing of 

services to the Resident by the Community.” However, the key word is “execution.” In 

other words, it is true that the Petitioners could not turn Ms. Faw away if she or her 

Responsible Party, Ms. Hoover, declined to execute the Arbitration Agreement. However, 

that is not what occurred here. Ms. Hoover signed both the Arbitration Agreement and the 

Residency Agreement (which referenced and incorporated the terms of the Arbitration 

Agreement) as Responsible Party. There is no indication that Ms. Faw or Ms. Hoover ever 

rescinded the Arbitration Agreement, and Ms. Faw benefitted from the residential and care 

services provided by Petitioners pursuant to the Residency Agreement. Accordingly, I 

believe Ms. Hoover is estopped from denying application of the Arbitration Agreement 

and the Estate is bound by the Arbitration Agreement. Indeed, I believe that the majority 

considered to constitute one transaction where the parties and the subject matter are the 

same, and where there is clearly a relationship between the documents.”).
6 

opinion gives insufficient weight to the words “shall govern any and all disputes of the 

parties” from the Residency Agreement. Syl. Pt. 2, Antero Res. Corp. v. Directional One 

Servs. Inc. USA, No. 20-0965, 2022 WL 1055592, at *1 (W. Va. Apr. 8, 2022) (“‘A contract 

must be considered as a whole, effect being given, if possible, to all parts of the instrument.’ 

Syllabus, Clayton v. Nicely, 116 W. Va. 460, 182 S.E. 569 (1935).”). Accordingly, I 

respectfully dissent as to the issue of estoppel and would reverse the circuit court and 

remand this case for application of the Arbitration Agreement.