Sovereign Healthcare of Tampa, LLC v. Estate of Schmitt Ex Rel. Schmitt , 2016 Fla. App. LEXIS 10176 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
SOVEREIGN HEALTHCARE OF )
TAMPA, LLC; SOUTHERN )
HEALTHCARE MANAGEMENT, LLC; )
and VICTOR J. PIPERATA, II, )
)
Appellants, )
)
v. ) Case No. 2D15-2969
)
THE ESTATE OF OTTO N. SCHMITT, )
by and through JANICE R. SCHMITT, )
Personal Representative, )
)
Appellee. )
)
Opinion filed July 1, 2016.
Appeal pursuant to Fla. R. App. P.
9.130 from the Circuit Court for
Hillsborough County; Robert A. Foster, Jr.,
Judge.
Thomas A. Valdez of Quintairos, Prieto,
Wood & Boyer, P.A., Tampa, for Appellants.
Isaac R. Ruiz-Carus, Megan L. Gisclar and
Andrea E. Nieto of Wilkes & McHugh, P.A.,
Tampa, for Appellee.
WALLACE, Judge.
Sovereign Healthcare of Tampa, LLC; Southern Healthcare Management,
LLC; and Victor Piperata, II (the Appellants), challenge a nonfinal order denying their
motion to compel arbitration and to stay the underlying nursing home negligence action
brought against them by Janice R. Schmitt, as Personal Representative of the Estate of
Otto N. Schmitt, deceased. 1 Mrs. Schmitt is the widow of Mr. Schmitt. Her claims
against the Appellants arise out of Mr. Schmitt's two residencies at Bayshore Pointe
Nursing & Rehabilitation Center from February 1, 2013, to March 6, 2013, and from
September 25, 2013, to October 18, 2013. With regard to Mr. Schmitt's initial residency,
the Appellants' arbitration motion was based on an arbitration provision included in a
Resident Admission and Financial Agreement dated February 7, 2013. With regard to
the second residency, the Appellants' arbitration motion was based on an identical
arbitration provision included in a Resident Admission and Financial Agreement dated
September 26, 2013.
We affirm the circuit court's order with regard to the agreement dated
February 7, 2013, because Mr. Schmitt did not sign it and the evidence established that
Mrs. Schmitt was not authorized to sign that agreement on her husband's behalf.
Accordingly, the arbitration provision in the initial agreement is unenforceable against
Mr. Schmitt's estate. Cf. Sovereign Healthcare of Tampa, LLC v. Estate of Yarawsky,
ex rel. Yarawsky, 150 So. 3d 873, 877-78 (Fla. 2d DCA 2014) (holding that an
arbitration provision included in a resident admission and financial agreement was not
enforceable against the resident's estate where the resident did not sign the agreement
and the resident's wife, who signed the agreement only in her capacity as the
1Wehave jurisdiction in accordance with Florida Rule of Appellate
Procedure 9.130(a)(3)(C)(iv).
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responsible party, did not have the authority to sign the agreement on her husband's
behalf).
The circuit court reserved ruling and expressly declined to decide the
issue of whether Mr. Schmitt's estate was bound to arbitrate under the arbitration
provision in the agreement dated September 26, 2013. Because the question of the
Appellants' right to enforce the arbitration provision in the second agreement has not
been decided adversely to them, we do not address this issue. See Clear Channel
Commc'ns, Inc. v. City of N. Bay Vill., 911 So. 2d 188, 189 (Fla. 3d DCA 2005)
("Appellate review is confined to issues decided adversely to appellant's position.").
Affirmed.
KELLY and MORRIS, JJ., Concur.
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