SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0418-19T2

FRANCES JACKSON-BILLIE

and CARELL BILLIE, w/h,

Plaintiffs-Appellants

v.

VIRTUA MEMORIAL HOSPITAL

BURLINGTON COUNTY, INC., 

d/b/a VIRTUA MEMORIAL HOSPITAL,

VIRTUA HEALTH, INC., 200 MARTER 

AVENUE OPERTIONS, LLC, d/b/a

POWERBACK REHABILITATION

MOORESTOWN and GENESIS NJ

HOLDINGS, LLC,

Defendants-Respondents.

___________________________________

Submitted March 30, 2020 – Decided April 27, 2020

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, 

Law Division, Burlington County, Docket No. L2798-18.

Swartz Culleton PC, attorneys for appellants (Matthew 

E. Gallagher, on the briefs).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
A-0418-19T2 2

Buchanan Ingersoll & Rooney PC, attorneys for 

respondents 200 Marter Avenue Operations LLC d/b/a 

Powerback Rehabilitation Moorestown and Genesis 

NJ Holdings LLC (David Lee Gordon, Philip James

Anderson, and David Robert Drake, of counsel and on 

the brief). 

Respondents Virtua Memorial Hospital of Burlington 

County, Inc. and Virtua Health, Inc. have not filed a 

brief. 

PER CURIAM 

Plaintiffs Frances Jackson-Billie (Frances) and Carell Billie appeal a 

September 13, 2019 order granting defendant 200 Marter Avenue Operations, 

LLC d/b/a Powerback Rehabilitation Moorestown and Genesis N.J. Holdings, 

LLC's (Powerback) motion to compel binding arbitration. The judge 

concluded Frances was competent and understood the arbitration agreement, 

and that the parties delegated its enforceability to an arbitrator. We agree and 

affirm. 

Powerback is a nursing facility in which Frances stayed during 

November 2017. On November 13, 2017, Frances signed the arbitration 

agreement included in her admission paperwork. In their complaint, plaintiffs 

allege Powerback rendered negligent care to Frances during her stay. 

Powerback moved to compel arbitration, and plaintiffs opposed the motion,

claiming that the agreement was unenforceable because Frances lacked mental 

capacity to sign it and because it was a contract of adhesion. 
A-0418-19T2 3

A judge denied Powerback's motion without prejudice and ordered 

limited discovery on the competency issue. The discovery included 

depositions of Frances and Powerback's representative Cherie Foley, and the 

exchange of Frances's medical records, including nurses's notes and 

assessments, a social specialist's report, an occupational therapist's initial 

evaluation, and Dr. Akhil Sethi's report. Powerback renewed its motion to 

compel binding arbitration, which led another judge to enter the order under 

review.

On appeal, plaintiffs argue the limited discovery demonstrated that 

Frances lacked the mental capacity to bind herself to the terms of the 

arbitration agreement. Alternatively, they contend that the agreement is 

unenforceable as a contract of adhesion.

This court applies a de novo standard of review when determining the 

enforceability of contracts, including arbitration agreements. Goffe v. Foulke 

Mgmt. Corp., 238 N.J. 191, 207 (2019). "The enforceability of arbitration 

provisions is a question of law; therefore, it is one to which [this court] need 

not give deference to the analysis by the trial [judge.]" Ibid. However, a trial 

judge's factual findings are reviewed for an abuse of discretion. Cumberland 

Farms, Inc. v. N.J. Dep't of Envtl. Prot., 447 N.J. Super. 423, 437-38 (App. 

Div. 2016). "The general rule is that findings by the trial [judge] are binding 
A-0418-19T2 4

on appeal when supported by adequate, substantial, credible evidence." Ibid.

(quoting Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)). 

An agreement to arbitrate is treated like any other contract. Atalese v. 

U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 442 (2014) (stating "[a]n agreement 

to arbitrate, like any other contract, 'must be the product of mutual assent, as 

determined under customary principles of contract law'" (quoting NAACP of 

Camden Cty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 424 (App. Div. 

2011))). "State law governs not only whether the parties formed a contract to 

arbitrate their disputes, but also whether the parties entered [into] an 

agreement to delegate the issue of arbitrability to an arbitrator." Morgan v. 

Sanford Brown Inst., 225 N.J. 289, 303 (2016). Incapacitation is a defense in 

contract law, and plaintiffs have the burden of demonstrating that Frances was 

incapacitated by clear and convincing evidence. S.T. v. 1515 Broad St., LLC, 

___ N.J. ___ (2020) (slip op. at 43); see also Jennings v. Reed, 381 N.J. Super. 

217, 227 (App. Div. 2005). 

On the competency issue, the judge found plaintiffs failed to offer any 

credible evidence demonstrating Frances lacked the mental capacity to 

understand the agreement. Plaintiffs produced no documentation, such as
A-0418-19T2 5

medical or expert reports, to establish Frances's incapacitation.1 Rather, 

Powerback's expert, Dr. Barry Rovner, analyzed daily neurological 

assessments, a psychiatrist's evaluation, a physical therapist's notes, an 

occupational therapist's notes, a social services assessment, and a report of 

Frances's mental status interview, and concluded⸻to a reasonable degree of 

medical certainty⸻that Frances had "intact decision-making capacity." He 

therefore opined that she suffered from no mental incapacity that would have 

interfered with her comprehension of the agreement. 

The test for mental capacity, which plaintiffs failed to satisfy, is 

whether:

[A] man [or woman] [has] the ability to understand the 

nature and effect of the act in which he [or she] is 

engaged, and the business he [or she] is transacting. 

. . . [I]f the mind be so clouded or perverted by age, 

disease, or affliction, that he [or she] cannot 

comprehend the business in which he [or she] is 

engaging, then the writing is not his [or her] deed.

[Wolkoff v. Villane, 288 N.J. Super. 282, 287 (App. 

Div. 1996) (sixth and seventh alterations in original) 

(quoting Eaton v. Eaton, 37 N.J.L. 108, 113 (1874)).]

See also Jennings, 381 N.J. Super. at 227.

 

1

 Plaintiffs submitted a confidential appendix, and, without revealing the 

contents of that submission, the documentation demonstrated Frances was alert 

and suffered from no acute mental problems, inattention issues, or signs of 

disorganized thinking. 
A-0418-19T2 6

The clear and convincing standard requires plaintiffs to "produce in the 

mind of the trier of fact a firm belief or conviction as to the truth of the 

allegations sought to be established." Liberty Mut. Ins. Co. v. Land, 186 N.J. 

163, 169-70 (2006) (quoting In re Purrazzella, 134 N.J. 228, 240 (1993)). It is 

evidence "so clear, direct, weighty in terms of quality, and convincing as to 

cause [the court] to come to a clear conviction of the truth of the precise facts 

in issue." State v. Campbell, 4f36 N.J. Super. 264, 271 (App. Div. 2014) 

(quoting Model Jury Charge (Civil), 1.19, "Burden of Proof⸻Clear and 

Convincing Evidence" (rev. Aug. 2011)); see also In re Civil Commitment of 

R.F., 217 N.J. 152, 173 (2014). 

As to the second argument—that the arbitration agreement is a contract 

of adhesion—we agree with the judge that the parties to the agreement 

delegated that question to the arbitrator. The agreement states: "Any and all 

claims or controversies arising out of or in any way relating to this Agreement 

or the Patient's stay at the Center . . . including disputes regarding 

interpretation and/or enforceability of this Agreement . . . shall be submitted to 

binding arbitration." In addition, the parties's agreement states: "The 

[a]rbitrator shall resolve all gateway disputes regarding the enforceability, 

validity, severability and/or interpretation of this Agreement, as well as resolve 
A-0418-19T2 7

issues involving procedure, admissibility of evidence, discovery or any other 

issue." 

A contract of adhesion is a contract "presented on a take-it-or-leave-it 

basis, commonly in a standardized printed form, without opportunity for the

'adhering' party to negotiate except perhaps on a few particulars." Rudbart v. 

N. Jersey Dist. Water Supply Comm'n, 127 N.J. 344, 353 (1992). A contract 

may be either procedurally or substantively unconscionable. 

Procedural unconscionability arises out of defects in the process by 

which the contract was formed, and "can include a variety of inadequacies, 

such as age, literacy, lack of sophistication, hidden or unduly complex contract 

terms, bargaining tactics, and the particular setting" at the time of the 

agreement. Delta Funding Corp. v. Harris, 189 N.J. 28, 55 (2006) (Zazzali, J., 

concurring) (quoting Sitogum Holdings, Inc. v. Ropes, 352 N.J. Super. 555, 

564 (Ch. Div. 2002)); see also Moore v. Woman To Woman Obstetrics & 

Gynecology, L.L.C., 416 N.J. Super. 30, 39 (App. Div. 2010). Substantive 

unconscionability "simply suggests the exchange of obligations so one-sided 

as to shock the court's conscience." Harris, 189 N.J. at 55 (Zazzali, J., 

concurring) (quoting Sitogum, 352 N.J. Super. at 565).

The United States Supreme Court recently held "a court may not decide 

an arbitrability question that the parties have delegated to an arbitrator." 
A-0418-19T2 8

Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. ___, 139 S. Ct. 

524, 530 (2019). If there is a valid arbitration agreement, threshold questions 

of arbitrability must be referred to an arbitrator if the agreement so stipulates 

by "'clear and unmistakable' evidence." Id. at 530 (quoting First Options of 

Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). The parties expressly agreed 

that enforceability issues were arbitrable, and this court must enforce the 

agreement by its terms. See Goffe, 238 N.J. at 208. Here, the agreement's

delegation language was clear. The judge did not err, therefore, by compelling 

arbitration.

Affirmed.