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Vicksburg Partners9/22/2005
nd shall have all requisite powers and obligations. If the agreed method of selecting an Arbitrator(s) fails for any reason or the Arbitrator(s) appointed fails or is unable to act or the successor(s) has not been duly appointed, the appropriate circuit court, on application of a party, shall appoint one Arbitrator to arbitrate the issue. An Arbitrator so appointed shall have all the powers of the one named in this Agreement. All Parties hereto agree to arbitration for their individual respective anticipated benefit of reduced costs of pursuing a timely resolution of a claim, dispute or controversy, should one arise. The Parties agree to share equally the costs of such arbitration regardless of the outcome. Consistent with the terms and conditions of this Agreement, the Parties agree that the Arbitrator(s) may not award punitive damages and actual damages awarded, if any, shall be awarded pursuant to Section E.7.
. Taylor resided at the Nursing Home until November 20, 2002, when he passed away due to alleged failures in the care provided by the Nursing Home during his residency. Based on these alleged failures, Stephens filed this suit individually and on behalf of the estate and the wrongful death beneficiaries of Taylor. The complaint was filed on December 27, 2002, and it named as defendants Vicksburg Partners, L.P.; Vicksburg Associates Corp.; Bond, Johnson & Bond, Inc.; Magnolia Management Corporation; George T. Johnson; Peggy Mingee; Eva H. Williams; John Does 1 through 10; and unidentified entities 1 through 10 (as to Vicksburg Trace Haven Nursing Facility) ("Vicksburg Partners"). Prior to any responsive pleadings being filed, Stephens filed an amended complaint on March 13, 2003. See Miss. R. Civ. P. 15(a). By the time of the filing of the amended complaint, Stephens had received a chancery court appointment as Administratrix of her father's estate; therefore, the amended complaint provided that she was also bringing the suit as the administratrix of the estate of Leroy Taylor.
The eight-count amended complaint contained claims of (1) negligence as to specified defendants; (2) negligence as to other specified defendants; (3) medical malpractice; (4) malice and/or gross negligence; (5) fraud; and (6) breach of fiduciary duty; as well as (7) a statutory survival claim; and (8) a statutory wrongful death claim.
. On April 29, 2003, Vicksburg Partners filed their motion to stay proceedings and enforce dispute resolution/arbitration. On May 12, 2003, Stephens filed her response. After conducting two hearings, receiving multiple briefs and allowing limited discovery on the issue, the circuit court entered an order on May 4, 2004, denying Vicksburg Partners' motion to stay and submit to arbitration.
. Shortly thereafter, Vicksburg Partners filed a motion for reconsideration or for an order granting certification for interlocutory appeal. On June 22, 2004, the circuit court denied this motion without addressing Vicksburg Partners' request for certification for Interlocutory appeal. Vicksburg Partners thereafter filed its Petition for Interlocutory Appeal by Permission and Request for Stay. By order entered on August 23, 2004, a three-justice panel of this Court considered this petition for interlocutory appeal by permission and request for stay and accepted this petition for filing as a notice of appeal.
. While the trial court record was being prepared in this case, Stephens's attorneys filed a motion with this Court requesting permission to withdraw as counsel, which motion was eventually granted. The documentation before us at the time clearly revealed that Stephens did not wish for her trial counsel to represent her on appeal. Thus, by order ent
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