NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 16a0247n.06

Case No. 15-1793

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SCOTT ROWAN, next friend of George 

Rowan,

Plaintiff-Appellant,

v.

BROOKDALE SENIOR LIVING 

COMMUNITIES, INC., dba Wynwood of 

Portage,

Defendant-Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE WESTERN DISTRICT OF 

MICHIGAN

BEFORE: KEITH, COOK, and McKEAGUE, Circuit Judges.

COOK, Circuit Judge. George Rowan, by Scott Rowan, his son and next friend, appeals 

the district court’s order granting Brookdale Senior Living Communities, Inc.’s motion to 

compel arbitration and dismissing the case. Rowan contends the district court erred in discerning 

no genuine issue of material fact regarding the validity or the enforceability of the arbitration 

clause. Disagreeing, we AFFIRM.

I.

After a stroke diminished his physical and mental functioning, Rowan Sr. moved into an 

assisted-living facility operated by Brookdale. He struggled with this new living arrangement 

and one evening wandered from the facility to a nearby residential subdivision. He tripped and 
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fell on a resident’s driveway, leaving him unable to move. Later that night, the resident pulled 

out of the driveway and ran him over, causing severe injuries. Rowan, his father’s next friend, 

sued Brookdale for negligence, gross negligence, and fraud.

Brookdale moved to compel arbitration, citing the Residency Agreement that Rowan Sr. 

signed when he moved in. Rowan opposed arbitration, contesting the validity of the Residency

Agreement on grounds that his father lacked mental competence to contract. And even if his 

father were competent when signing, Rowan said that various contract defenses would prevent 

enforcement of the arbitration clause. The district court granted Brookdale’s motion to compel 

arbitration and dismissed the case, finding the evidence insufficient to raise a genuine issue of 

material fact regarding the validity or enforceability of the arbitration clause. This appeal 

followed.

II.

As applicable here, before compelling arbitration a court must determine whether a valid 

arbitration agreement exists and whether the dispute falls within that agreement’s scope. See 

Fazio v. Lehman Bros., Inc., 340 F.3d 386, 392 (6th Cir. 2003) (citing Stout v. J.D. Byrider, 228 

F.3d 709, 714 (6th Cir. 2000)). The Federal Arbitration Act (FAA) guides us in determining the 

validity of an arbitration agreement, reading in relevant part:

The court shall hear the parties, and upon being satisfied that the making of the 

agreement for arbitration or the failure to comply therewith is not in issue, the 

court shall make an order directing the parties to proceed to arbitration in 

accordance with the terms of the agreement. . . . If the making of the arbitration 

agreement . . . be in issue, the court shall proceed summarily to the trial thereof.

9 U.S.C. § 4. “The party opposing arbitration must show a genuine issue of material fact as to 

the validity of the agreement to arbitrate”—a standard “mirror[ing] that required to withstand 
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summary judgment in a civil suit.” Great Earth Cos. v. Simons, 288 F.3d 878, 889 (6th Cir. 

2002) (citing Doctor’s Assocs., Inc. v. Distajo, 107 F.3d 126, 129–30 (2d Cir. 1997)). The 

nonmoving party, here Rowan, may challenge an arbitration agreement “upon such grounds as 

exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.

Rowan raises on appeal the same two arguments he presented to the district court. We 

review de novo an order compelling arbitration, viewing all facts in the light most favorable to 

the nonmoving party and determining whether a reasonable fact finder could conclude from the 

presented evidence that no valid agreement to arbitrate exists. See Great Earth Cos., 288 F.3d at 

889 (citing Aiken v. City of Memphis, 190 F.3d 753, 755 (6th Cir. 1999)).

A. Contract Formation

Rowan asserts that his father lacked mental capacity to contract citing: his father’s shortterm memory problems before signing the Residency Agreement, his emotional and mental state 

after signing, and the circumstances of his wandering-off. 

Rowan bears the burden of proving his father’s lack of mental capacity to contract. See 

Klein v. Kent, 95 N.W.2d 864, 867 (Mich. 1959). To possess mental capacity to contract, 

Michigan law evaluates whether:

[T]he person in question possesses sufficient mind to understand, in a reasonable 

manner, the nature and effect of the act in which he is engaged. However, to 

avoid a contract it must appear not only that the person was of unsound mind or 

insane when it was made, but that the unsoundness or insanity was of such a 

character that he had no reasonable perception of the nature or terms of the 

contract.

Howard v. Howard, 352 N.W.2d 280, 282 (Mich. Ct. App. 1984) (quoting Van Wagoner v. Van

Wagoner, 346 N.W.2d 77, 81–82 (Mich. Ct. App. 1983)). Though capacity is determined at 

contract formation, a contracting party can rely on his condition before and after formation to 
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prove incapacity, and a “prior or subsequent condition may be presumed to exist at the time [of 

contract formation].” Beattie v. Bower, 287 N.W. 900, 903 (Mich. 1939). 

First, Rowan argues that the short-term memory problems his father experienced before 

he signed the Residency Agreement demonstrate his incapacity to contract. But the evidence 

Rowan offers in support falls short. While Rowan’s sister described her father’s memory as 

“compromised,” she also attested that she had no reservations regarding his contractual capacity

around the time that he signed the Residency Agreement. Similarly, though a cognitive therapist 

doubted that Rowan Sr. “would have been able to recall the entire [Residency Agreement]” and 

“may have had some difficulty” interpreting its interrelated provisions, the therapist also 

expressed confidence in Rowan Sr.’s ability to “comprehend each section [of the Residency 

Agreement].” Neither the daughter’s nor the therapist’s testimony supports the proposition that 

Rowan Sr.’s memory deficiency was “of such a character that he had no reasonable perception of 

the nature or terms of the [Residency Agreement].” See Howard, 352 N.W.2d at 282.

Next, Rowan cites Dr. Kameswara Tatineni’s conclusion that, after moving into the

Brookdale facility, his father suffered from anxiety, depression, and limited insight/judgment as 

a result of either mild vascular dementia or delirium. Dr. Tatineni, however, did not assess 

competence. In fact, Dr. Tatineni expressed no opinion on Rowan Sr.’s ability to read and 

understand the Residency Agreement. 

Finally, Rowan contends that because his father wandered from Brookdale’s facility 

previously and needed extra supervision the day prior to his injury, a fact finder could infer 

incapacity to contract. Yet the Michigan Department of Human Services reported that the 

incident “could not have [been] reasonably expected,” and grounded its conclusion in part on an

assessment finding Rowan Sr. “capable of independent decision making,” “oriented to person, 
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place and time,” and able to communicate effectively. In any event, Rowan’s conclusory 

assertion that the circumstances of his father’s injury evidence incapacity is insufficient to 

withstand summary judgment. See, e.g., Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 

2004) (noting that “mere speculation, conjecture, or fantasy” cannot overcome a summaryjudgment motion).

That Rowan Sr. executed at least five legal documents in the month before he moved into 

the Brookdale facility also counsels against finding incapacity. For example, he signed a durable 

power of attorney for health-care purposes—a single-spaced, nine-page document—and another

for financial purposes—a single-spaced, twelve-page document. Plus, he also signed two 

personal protection orders as well as a verified complaint for divorce. No one has challenged his 

mental capacity regarding these signings. Indeed, one of the documents includes an attorney’s 

and a doctor’s sworn declarations that Rowan Sr. appeared to be of sound mind. 

Accordingly, drawing all reasonable inferences in Rowan’s favor, we discern no genuine 

issue of material fact regarding whether Rowan’s father lacked a reasonable perception of the 

nature or terms of the Residency Agreement.

B. Enforceability of the Arbitration Clause

Even if his father possessed contractual capacity, Rowan continues, the arbitration clause 

is unenforceable because it: (1) violates public policy, (2) lacks mutual assent, (3) needs 

consideration, (4) fails to provide a knowing and voluntary waiver of his father’s jury-trial right, 

and (5) imposes a financial burden. State law “governs ‘generally applicable contract defenses 

to an arbitration clause.’” Great Earth Cos., 288 F.3d at 889 (quoting Doctor’s Assocs. v. 

Casarotto, 517 U.S. 681, 687 (1996)) (brackets omitted). We address each defense in turn. 
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1. Void for Public Policy

Rowan claims that the arbitration clause violates Michigan public policy by waiving jurytrial rights secured by Michigan’s Truth in Renting Act, Mich. Comp. Laws § 554.633(1)(f), and 

by limiting liability for gross negligence, thereby promoting elder abuse. Though Michigan 

invalidates contracts that violate public policy, Michelson v. Voison, 658 N.W.2d 188, 190 

(Mich. Ct. App. 2003), Rowan’s argument fails for two reasons. First, to the extent Rowan 

contends that provisions in the Residency Agreement aside from the arbitration clause violate 

Michigan law, those issues are reserved for arbitration. See Masco Corp. v. Zurich Am. Ins. Co., 

382 F.3d 624, 628 (6th Cir. 2004) (“One seeking to challenge an arbitration clause must make an 

argument that is specific to the arbitration clause . . . and . . . does not simply challenge the 

contractual obligation to which the arbitration clause applies.” (citing Burden v. Check Into

Cash of Ky., LLC, 267 F.3d 483, 491 (6th Cir. 2001))). Second, though Rowan argues that the 

arbitration clause violates Michigan’s prohibition on arbitration in the residential context, the 

Federal Arbitration Act emphatically favors arbitration and displaces conflicting state statutes or 

policies. Marmet Health Care Ctr., Inc. v. Brown, 132 S. Ct. 1201, 1203 (2012) (per curiam)

(citations omitted). 

2. Lack of Mutual Assent

Next, Rowan alleges that the arbitration clause lacked mutual assent because Brookdale 

failed to allow his father an opportunity to read the agreement at signing. True, contract 

formation requires mutual assent on all essential terms. See Quality Prods. & Concepts Co. v. 

Nagel Precision, Inc., 666 N.W.2d 251, 258 (Mich. 2003). But Michigan law “presumes that 

one who signs a written agreement knows the nature of the instrument,” Watts v. Polaczyk, 619 

N.W.2d 714, 717 (Mich. Ct. App. 2000), and a signatory “will not be heard to say, when 
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enforcement is sought, that he did not read it, or that he supposed it was different in its terms.” 

Farm Bureau Mut. Ins. Co. v. Nikkel, 596 N.W.2d 915, 920 (Mich. 1999) (quoting Komraus 

Plumbing & Heating, Inc. v. Cadillac Sands Motel, Inc., 195 N.W.2d 865, 868 (Mich. 1972)).

In any event, Rowan fails to counter Brookdale’s evidence that it provided his father a 

copy of the Residency Agreement in advance of signing. Indeed, Rowan Sr. toured a number of 

residential facilities with his ex-wife prior to selecting the Brookdale facility. When potential 

residents visit, Brookdale provides them an informational packet that includes a copy of the 

Residency Agreement along with a physician’s plan of care. Rowan Sr. had a physician 

complete the plan of care three days before signing the Residency Agreement, suggesting that he 

received the packet with the Residency Agreement in advance of signing. 

3. Want of Consideration

Pushing on, Rowan argues that the arbitration clause lacks consideration. But “the basic 

rule of contract law is that whatever consideration is paid for all the promises is consideration for 

each one.” Rowady v. K Mart Corp., 428 N.W.2d 22, 25 (Mich. Ct. App. 1988). Here, there was 

a bargained-for exchange: Rowan Sr. paid money to Brookdale for housing and other services, 

and both agreed to arbitrate disputes.

4. Waiver of Jury-Trial Right

Rowan further challenges the enforceability of the arbitration clause because it lacks 

comprehensible language, and urges the court to apply Morrison v. Circuit City Stores, Inc.’s test 

to evaluate whether his father knowingly and voluntarily waived his jury-trial right. 317 F.3d 

646, 668 (6th Cir. 2003) (en banc). Morrison is inapplicable, however, because it is limited “to 

the validity of arbitration clauses in employment agreements where an employee’s statutorily 

created federal civil rights are at issue.” Stutler v. T.K. Constructors Inc., 448 F.3d 343, 345 (6th 
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Cir. 2006). Regardless, the arbitration clause here is clear: it twice states in bold, “The parties to 

this Agreement further understand that a jury will not decide their case,” and the immediately 

following section reads—using capital letters, bolding, and underlining—“waiver of trial by 

jury.” 

5. Imposition of Financial Burden 

Finally, Rowan argues against enforceability on the grounds that the arbitration clause 

imposes an impermissible financial burden upon his father and others similarly situated in 

violation of Morrison, 317 F.3d at 646. Morrison, again, is inapposite. Furthermore, Rowan 

fails to explain how the arbitration clause imposes intolerable costs.

III.

For these reasons, we AFFIRM the district court’s order.