Univ. Nursing Associates, PLLC, et al. v. Phillips
| Docket Number: | 2001-CA-01375-SCT Linked Case(s): 2001-CA-01375-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 02-13-2003 Opinion Author: Waller, J. Holding: Affirmed in Part; Reversed and Rendered in Part; and Remanded |
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| Additional Case Information: |
Topic: Arbitration of accounting - Fiduciary relationship - Waiver of arbitration - Hearing Judge(s) Concurring: Pittman, C.J., Smith, P.J., Cobb and Carlson, JJ. Dissenting Author : McRae, P.J., and Diaz, J. Concur in Part, Dissent in Part 1: Easley and Graves, JJ., Concur in Part and Dissent in Part Without Separate Written Opinion Procedural History: Motion to Compel Arbitration Nature of the Case: CIVIL - ARBITRATION |
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| Trial Court: |
Date of Trial Judgment: 07-02-2001 Appealed from: Hinds County Chancery Court Judge: Patricia D. Wise Disposition: Denied a motion to compel arbitration and granted an accounting. Case Number: G2000-1723 W/4 |
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| Note: | NATURE OF THE CASE: CIVIL - ARBITRATION PITTMAN, C.J., SMITH, P.J., COBB AND CARLSON, JJ., CONCUR. McRAE, P.J., AND DIAZ, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION. EASLEY AND GRAVES, JJ., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION. | |
| Party Name: | Attorney Name: | |||
| Appellant: | University Nursing Associates, PLLC and The University of Mississippi Medical Center |
JERRALD L. SHIVERS
M. CURTISS McKEE |
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| Appellee: | Billie Phillips | SHARON MARIE GARNER MARY MARVEL FYKE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Arbitration of accounting - Fiduciary relationship - Waiver of arbitration - Hearing |
| Summary of the Facts: | As a member of the faculty of the University of Mississippi School of Nursing, Billie Phillips was required to sign an "Employment Agreement" with University Nursing Associates, PLLC. The agreement contained an arbitration clause. Phillips participated in the Nursing PLLC plan for approximately two years, but was unhappy. Because of her unhappiness, Phillips balked at signing an annual renewal of the PLLC Employment Agreement. The School of Nursing relieved Phillips of all of her duties, did not offer to renew her contract, and requested Phillips to vacate her office. Phillips filed a petition for an accounting naming the Nursing PLLC, the University of Mississippi Medical Center and Unacare Health Center. The University and the Nursing PLLC maintained that any disputes concerning the agreement were to be settled by arbitration. The court granted the petition for accounting, and the Nursing PLLC appeals. |
| Summary of Opinion Analysis: | Issue 1: Accounting An accounting is a detailed statement of the debits and credits between parties arising out of a contract or a fiduciary relation. A fiduciary relationship may exist where the activities of the parties go beyond their operating on their own behalf, and the activities for the benefit of both; where the parties have a common interest and profit from the activities of the other; where the parties repose trust in one another; and where one party has dominion or control over the other. A fiduciary relationship existed between Phillips, the University and the Nursing PLLC. The facts show that Phillips was required by her employment contract to work at a University-operated clinic and was required to contribute all of her nurse-related earnings in excess of $10,000. The activities that Phillips was required to perform were to her benefit and that of the University and the Nursing PLLC. Because a fiduciary relationship existed between Phillips, the University, and the Nursing PLLC, and the University and the Nursing PLLC had possession and dominion over Phillips' earnings and has refused to give her any information about the management of her earnings, she is entitled to an accounting. Issue 2: Waiver of arbitration Phillips argues that the University and the Nursing PLLC waived their right to arbitrate because they filed a response to her petition for an accounting and objections to her discovery requests and attended a hearing on her motion to compel. There is a presumption against waiver of arbitration particularly when the party seeking arbitration has included a demand for arbitration in its answer. Serving an answer and filing a motion to dismiss does not constitute a waiver of arbitration by participation in litigation. The minimal pretrial activities of the University and the Nursing PLLC did not constitute a waiver of arbitration. The University and the Nursing PLLC did not propound any discovery requests to Phillips. They objected to Phillips' discovery requests, raised arbitration in their answer, and asserted the right to arbitration at a subsequent hearing on a motion to compel. Phillips also argues that University and the Nursing PLLC waived their right to arbitrate by their delay in asserting their right to arbitration, because the University and the Nursing PLLC chose to dispute this matter with Phillips outside the arbitration process by resorting to an internal grievance process. There was no undue delay by the University or the Nursing PLLC in asserting arbitration before the chancellor. Phillips was terminated by letter dated August 31, 2000, and on November 9, 2000, the University and the Nursing PLLC asserted arbitration as an affirmative defense in their answer. In addition, Phillips made no showing of prejudice due to delay, expense, or damage to her legal position. Neither the University nor the Nursing PLLC invoked the judicial proceedings. Issue 3: Hearing The University and the Nursing PLLC argue that the chancellor erred by summarily ordering an accounting without notice and hearing. A court must have a hearing if it would be fundamentally unjust to take away a citizen's valuable rights without an opportunity to be heard. It would not be fundamentally unjust to require the University and the Nursing PLLC to provide an accounting. In addition, a hearing was not required under these circumstances. Phillips’ petition for an accounting is meritorious, the University and the Nursing PLLC have continued to claim that she is not entitled to an accounting, and Phillips cannot acquire the information from any other source. Issue 4: Arbitration of accounting The performance of an accounting is not subject to arbitration, because it does not involve any dispute except for whether the person seeking an accounting is entitled to one. If a dispute arises during the accounting, the chancellor must then decide whether that dispute is arbitrable. |
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