SOVEREIGN HEALTHCARE OF TAMPA, LLC; SOVEREIGN HEALTHCARE HOLDINGS, LLC; SOUTHERN HEALTHCARE MANAGEMENT, LLC; JOHN J. NOTERMANN; R. MARK CRONQUIST; TRACY NICOLE CRYREE; BRUCE S. BONSEL; KIRK ALAN COPLEY; and SANDRA ANN CAVANAUGH-SUTKUS (as to Bayshore Point Nursing & Rehab Center), Appellants, v. THE ESTATE OF WILLIAM S. YARAWSKY, by and through Theresa Yarawsky, personal representative, Appellee.
Case No. 2D13-2083
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
November 7, 2014
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
Appeal pursuant to
Thomas A. Valdez of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for Appellants.
Isaac R. Ruiz-Carus, Kathleen Clark Knight, and Megan L. Gisclar of Wilkes & McHugh, P.A., Tampa, for Appellee.
Sovereign Healthcare of Tampa, LLC, and other nursing home defendants (collectively referred to as Sovereign) appeal a trial court order rescinding an earlier order granting arbitration. We affirm the order on appeal for the reasons explained below.
I. Background
Mr. Yarawsky was a resident of Sovereign‘s nursing home for ten months. After his death, his estate filed suit against Sovereign alleging negligence and other violations of his nursing home resident‘s rights. In October 2011, Sovereign moved to compel arbitration on the basis of an arbitration provision contained in the resident admission and financial agreement executed when Mr. Yarawsky became a resident of the nursing home. In April 2012, the trial court entered an order compelling arbitration.
In September 2012, the estate filed a motion to reconsider the order compelling arbitration, raising an objection to the arbitrator selected by Sovereign. In November 2012, the estate filed an amended motion to reconsider, further arguing that the Fifth District had recently held that a similar arbitration provision was unenforceable under similar circumstances. See Perry ex rel. Perry v. Sovereign Healthcare of Metro W., 100 So. 3d 146 (Fla. 5th DCA 2012) (decided October 12, 2012). The estate argued that Mr. Yarawsky did not sign the resident admission and financial agreement and that Mrs. Yarawsky, who signed the agreement as the responsible party, did not have authority to sign on Mr. Yarawsky‘s behalf. After holding a hearing in November 2012, the trial court stayed the matter pending the issuance of the mandate in Perry. After the mandate issued in Perry, the trial court held a second hearing in February
II. Analysis
Even though the trial court did not explicitly set forth its reason for rescinding the order compelling arbitration, the record indicates that the trial court likely based its decision on Perry, which was argued by the estate below. In Perry, the nursing home moved to compel arbitration based on the terms of a residency agreement signed by the daughter of the resident. Id. at 146-47. The Fifth District noted that even though the residency agreement was between the nursing home and the resident, the resident never signed the agreement and the resident‘s name never appeared in the agreement. Id. at 147. The agreement allowed a person to sign on the resident‘s behalf and provided a place for that person to indicate his or her relationship to the resident, but that portion of the agreement was left blank. The daughter signed the agreement where it provided for a signature for a responsible party, but the court stated that “[i]t is apparent from the agreement that [the daughter] signed as the responsible party who undertakes the obligation of a guarantor for payment on behalf of the resident.” Id. at 147-48. The court noted that nobody signed the agreement on behalf of the resident and held that the agreement could therefore not be enforced as to the resident. Id. at 148.
The Perry court went on to hold that there was “no evidence [that the resident] was incapable of signing the agreement on her own behalf” and that even if the daughter had signed on the mother‘s behalf, there was “absolutely no evidence that [the daughter] had the authority to bind [the resident] to the arbitration agreement.” Id.
The relevant portions of the agreement in this case appear to be identical to those in Perry. And as in Perry, no one signed the agreement on behalf of the resident.1 There was a line for a person to sign for the resident, but that line was left blank. In addition, the agreement stated that “[i]f an individual other than the [r]esident signs on behalf of the [r]esident,” the individual should “indicate the relationship and obtain copies of relevant documentation at the time of admission.” This section was also left blank. Instead, Mrs. Yarawsky signed the agreement in the place designated for the responsible party. As was the case in Perry, the agreement makes clear that the responsible party is the person obligated to pay for the resident‘s services out of the resident‘s assets. We note that even if Mrs. Yarawsky had signed “on behalf of the [r]esident,” there was no evidence that she had the authority to sign on Mr. Yarawsky‘s behalf. The trial court properly relied on Perry in concluding that Mr. Yarawsky‘s estate was not bound by Mrs. Yarawsky‘s signature on the agreement. See also Stalley v. Transitional Hosps. Corp. of Tampa, 44 So. 3d 627, 630 (Fla. 2d DCA 2010) (holding that the resident was not bound by the arbitration agreement signed by the resident‘s wife because the resident‘s wife had authority to sign only papers for his admission and for medical treatment, which did not include the optional arbitration agreement);
Sovereign argues that it is irrelevant whether Mrs. Yarawsky signed the contract on Mr. Yarawsky‘s behalf and whether she had the authority to sign on his behalf because Mr. Yarawsky was an intended third-party beneficiary of the agreement and was bound by the agreement because he received the benefit of the bargain of the agreement. See Alterra Healthcare Corp. v. Estate of Linton, 953 So. 2d 574, 579 (Fla. 1st DCA 2007) (holding that resident was bound by arbitration agreement signed by son because resident was an intended third-party beneficiary of the agreement). Many cases hold that a nonsignatory third-party beneficiary is bound by the terms of a contract containing an arbitration agreement. See, e.g., Germann v. Age Inst. of Fla., Inc., 912 So. 2d 590, 592 (Fla. 2d DCA 2005); Estate of Linton, 953 So. 2d at 579;
The concept of a third-party beneficiary applies when “the parties to the contract intended that a third person should be benefited thereby,” 11 Fla. Jur. 2d Contracts § 203 (2014), and there is no requirement that the third-party have knowledge of or accept the contract, see id. at § 209. But the concept of third-party beneficiary requires that there be at least two parties to the contract, i.e., a promisor and a promisee. See Zac Smith & Co., Inc., 472 So. 2d at 1324 (“A third-party beneficiary‘s rights depend upon, and are measured by, the terms of the contract between the promisor and the promisee.“); 11 Fla. Jur. 2d Contracts §§ 203, 209; 3A Fla. Jur. 2d Arbitration and Award § 26 (2014) (“Where a contract contains an arbitration clause which is legally enforceable, a third-party beneficiary of the contract is bound thereby to the same extent that the promisee is bound.“).2 In this case, similar to the facts in
It is undisputed that Mr. Yarawsky did not sign the agreement and that no one signed as his legal representative in the spaces provided for the resident and his legal representative; Mrs. Yarawsky signed only in her individual capacity as the responsible party. See Lepisto v. Senior Lifestyle Newport P‘ship, 78 So. 3d 89, 92 (Fla. 4th DCA 2012) (holding that although the wife had the authority to sign contract and arbitration addendum on behalf of her husband, the resident, “there [was] no evidence that she did so when she merely signed the [c]ontract and [a]ddendum in her individual capacity as the financially responsible party“); Fletcher v. Huntington Place P‘ship, 952 So. 2d 1225, 1227 (Fla. 5th DCA 2007) (holding that admissions agreement, which included arbitration agreement, was not enforceable against resident‘s estate because resident‘s daughter “did not sign the agreement in her capacity as her mother‘s representative” but only signed as the financially responsible party). And the arbitration provision in this case expressly provides that “[i]t is the express intent of the parties to have a binding arbitration agreement[] and [that] the Facility and the Resident and/or the Resident‘s Legal Representative acknowledge that, by their signatures of the
Recently, the Third District disagreed with Perry, Lepisto, and Fletcher in Mendez v. Hampton Court Nursing Center, LLC, 140 So. 3d 671 (Fla. 3d DCA 2014). In Mendez, the court stated that “[t]he principle that a third-party beneficiary is bound by an arbitration provision does not depend upon whether the party to the agreement signs only as the ‘financially responsible party.’ It turns on whether the party that is being bound was the third-party beneficiary.” Id. at 675. In Mendez, the court held that the resident of the nursing home was the intended third-party beneficiary of the contract for care and had received the benefit of the bargain under the contract and therefore was bound by the arbitration provision in that contract, even though the resident himself did not sign the contract. However, the facts in Mendez are different from the facts in this case and the facts in Perry. In Mendez, on the day of admission, a doctor at the nursing home had “determined the [resident] lacked the capacity to give informed consent or
We recognize that while these issues arise in the common circumstance of a resident‘s admission into a nursing home, these cases often involve different factual scenarios surrounding the patient‘s mental state and the specific terms of the agreement containing the arbitration provisions. In applying the case law above to the facts of this case, we conclude that Mr. Yarawsky was not a third-party beneficiary of the agreement containing the arbitration provision because no person with authority signed the agreement on his behalf. This holding is consistent with the general rule that “[o]ne who has not agreed, expressly or implicitly, to be bound by an arbitration agreement cannot be compelled to arbitrate.” Regency Island Dunes, Inc. v. Foley & Assocs. Constr., 697 So. 2d 217, 218 (Fla. 4th DCA 1997) (citing Tartell v. Chera, 668 So. 2d 1105 (Fla. 4th DCA 1996)); see also Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999) (“[N]o party may be forced to submit a dispute to arbitration that the
Affirmed.
KHOUZAM and CRENSHAW, JJ., Concur.