Opinion
No. 28737
May 16, 2008
Appeal from the Circuit Court of Dunklin County, Honorable Stephen R. Sharp, Circuit Judge.
Stephen M. Strum; Thais Ann Folta of St. Louis. MO, Attorneys for Appellants.
Deborah Truby Riordan of Little Rock, AR, and David W. Terry of St. Louis, MO, Attorneys for Respondents.
Before: Lynch, C.J., Rahmeyer, J., Concurs.
This case arises from a denial of National Health Care Corporation's, National Healthcare, L.P.'s, and NHC Healthcare/Kennett, L.L.C.'s and NHC, Inc.'s (collectively "NHC") motion to enforce arbitration.
Nona Woods ("Woods") was admitted to NHC Healthcare, Kennett, a nursing home, on May 16, 2003. At the time of her admission, both Woods and her daughter, Bobby Rouse ("Rouse"), apparently signed an "Admission and Financial Contract" (the "Contract") with NHC Healthcare, Kennett, as both parties agree in their briefs that such an agreement existed and that both Woods and Rouse signed it. Cone v. Mo. Dept. of Social Services, Family Support Div. , 227 S.W.3d 540, 542 n. 3 (Mo.App.S.D. 2007).
In August of 2005, Rouse filed the underlying action against NHC and other defendants, asserting that the defendants' negligent acts led to the death of Woods on October 19, 2003. NHC later filed a motion to compel arbitration based on a clause the parties assert was contained in the Contract. NHC attached and incorporated by reference into its motion to compel arbitration what is purported to be a copy of the Contract as Exhibit A. Rouse filed a legal memorandum in opposition to NHC's motion to compel arbitration. According to one of the trial court's docket entries, a hearing was then held on the motion to compel arbitration and evidence was adduced.
We have not been provided with a transcript of that hearing or any other indication of what, if any, evidence was presented to the trial court at that time. We cannot locate any stipulation by the parties that the document attached to NHC's motion to enforce arbitration was, in fact, the contract entered into by the parties or that it was received into evidence by the trial court. There were no exhibits deposited with this court pursuant to Rule 81.16 and our Special Rule 4. As a result, this court has no way of knowing if the alleged copy of the Contract attached to NHC's motion or any other evidence was received by the trial court before it made its ruling. The trial court took NHC's motion to enforce arbitration under advisement at the conclusion of the hearing and later denied it without stating its reasons for having done so. NHC appeals from the trial court's refusal to dismiss the case and order arbitration.
Special Rule 4 of the Special Rules of the Missouri Court of Appeals, Southern District (2007)
Standard of Review
Both federal and Missouri law allow for an immediate appeal and de novo review of a denial of a motion to compel arbitration. Triarch Industries, Inc. v. Crabtree , 158 S.W.3d 772, 774 (Mo. banc 2005); Finney v. National Healthcare Corp. , 193 S.W.3d 393, 394 (Mo.App.S.D. 2006). Doubts as to whether a party has waived its right to arbitrate a dispute should be resolved in favor of arbitration. Mueller v. Hopkins Howard, P.C. , 5 S.W.3d 182, 187 (Mo.App.E.D. 1999). Principles of contract law apply when interpreting an agreement to arbitrate. Crabtree , 158 S.W.3d at 776.
Analysis
NHC presents three points of alleged error. The first and third points are based on the language of the parties' agreement as set forth in the Contract. The second point alleges that the interpretation and enforcement of the Contract is governed by the Federal Arbitration Act ("FAA"), and not Missouri law, because it "involves commerce."
All three of NHC's points would require this court to review the actual language of the agreement entered into by the parties. The second point also cites to four types of factual situations that various reviewing courts have found to be sufficient to show that a contract should be governed by the FAA because it "involves commerce:" 1) materials were purchased from suppliers in other states; 2) the U.S. Postal Service is used by the parties; 3) materials are transported over state borders; and 4) the contracting parties are from separate states. We have no idea whether any such evidence was presented to the trial court in this case.
Under Rule 81.12, appellants are required to ensure that the record on appeal contains "all of the record, proceedings and evidence necessary to the determination of all questions to be presented[.]" Appellants have the burden of preparing and compiling the record for appeal. Rule 81.12(c). As previously noted, NHC has failed to provide us with any indication of what evidence was before the trial court when it made its decision. Without a proper record, this court has nothing to review. Krastanoff v. Williams , 231 S.W.3d 205, 206 (Mo.App.E.D. 2007). The failure of an appellant to provide a sufficient record to permit determination of the issues on appeal requires that the allegations of error be dismissed. City of Plattsburg v. Davidson , 176 S.W.3d 164, 169 (Mo.App.W.D. 2005).
All references to rules are to Missouri Rules of Civil Procedure (2007).
In the case at bar, the record indicates that the trial court held a hearing on NHC's motion at which some type of evidence was adduced. NHC has failed to provide this court with a means of reviewing that evidence and their appeal must, for that reason, be dismissed.