Consolidated Res. Healthcare Fund I, Ltd. v. Fenelus, 4D03-563.

• Decision Date: 30 July 2003
• Docket Number: No. 4D03-563.,4D03-563.
• Citation: 853 So.2d 500
• Parties: CONSOLIDATED RESOURCES HEALTHCARE FUND I, LTD., d/b/a Lakeside Health Center, Appellant, v. Deborah FENELUS, as Personal Representative of the Estate of Ruth Spruill, deceased, Appellee.
• Court: Florida District Court of Appeals

853 So.2d 500

CONSOLIDATED RESOURCES HEALTHCARE FUND I, LTD., d/b/a Lakeside Health Center, Appellant, v. Deborah FENELUS, as Personal Representative of the Estate of Ruth Spruill, deceased, Appellee.

No. 4D03-563.

District Court of Appeal of Florida, Fourth District.

July 30, 2003.

Scott M. Fischer and Christopher B. Hopkins of Cole, Scott & Kissane, P.A., West Palm Beach, for appellant.

Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, L.L.P., and Craig M. Goldenfarb of Law Offices of Craig Goldenfarb, West Palm Beach, for appellee. OWEN, WILLIAM C., JR., Senior Judge.

On this non-final appeal from an order denying appellant's motion to compel arbitration, the issue is the validity of a nursing home admission agreement which contained an arbitration clause. The trial court found the agreement invalid because it had not been signed by a representative of the nursing home and was "boiler plate." We reverse.

Appellee, as personal representative of the estate of her mother, Ruth Spruill (the decedent), filed a negligence and wrongful death action against appellant, the operator of the nursing home in which the decedent lived during her last three years. Essentially, the complaint alleged appellant failed to provide the decedent adequate health care, protective services, and support services, causing the decedent various health problems which eventually led to her death.

Appellant filed a motion to compel arbitration based on an "agreement for care" (the agreement) which the decedent's son, Eugene Spruill (Eugene), executed on her behalf as her health care surrogate in connection with the decedent's admission to the nursing home. The agreement, the relevant portions of which were attached to the motion, required the nursing home, among other things, to "[f]urnish room, meals as required by the resident, nursing care, personal care, or custodial care, as may be required for the well-being of the resident." Of particular significance to this case, it also provided, in Paragraph 12, as follows:

12. OPTIONAL ARBITRATION CLAUSE (If the parties to this Agreement do not wish to include the following arbitration provision, please indicate so by marking an "X" through this clause. Both parties shall also initial that "X" to signify their agreement to refuse arbitration.) Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled by arbitration in accordance with the provisions of the Florida Arbitration Code found at Chapter 682, Florida Statutes, and judgement upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

The provision was not "X"ed through or initialed.

Although the court held two "evidentiary" hearings on the motion, the only evidence consisted of Eugene's deposition and a deposition of Susan Taylor (Taylor), Director of Admissions and Marketing for the nursing home. The relevant facts developed by the depositions are neither complex nor disputed on material matters. As fifty year old Eugene, himself in poor health, watched his once active seventy-two year old mother begin to mentally decline, he concluded he could no longer care for her by himself. He and his mother then decided that she should move into appellant's nursing facility. Mrs. Spruill was admitted into the nursing home on December 2, 1997, but because Eugene had to work that day he, as her health care surrogate, did not sign the admission paperwork until two days later. The admission packet, which Taylor gave him to read and to sign, contained at least five items, including the agreement. Eugene testified he had a college education and had taught school for eleven years, but that he did not read the documents nor did he ask Taylor to explain them, since he believed he was signing forms simply to admit his mother into the nursing home. Taylor testified she also signed the various documents and that she did so in her capacity as a nursing home representative. The problem here, however, and central to the trial court's ruling, is that Taylor, instead of signing the agreement on the line designated for the nursing home representative's signature, signed on the line designated "witness" to the right of Eugene's signature. When questioned about this, she testified that it was her practice to do so when someone other than the resident himself or herself signed the agreement; otherwise, if the resident signed, then she would ordinarily sign on the line for the nursing home representative.¹

In its order denying the motion, the court stated its grounds: that no valid contract existed because the nursing home representative signed the agreement only as a witness and not in her capacity as the nursing home representative; that this case is distinguishable from the case on which appellant relied, Integrated Health Services of Green Briar, Inc. v. Lopez-Silvero, 827 So.2d 338 (Fla. 3d DCA 2002), because in that case there was no place for the nursing home representative to sign, whereas in this case there was; and, furthermore, that a valid contract did not exist because the subject contract was a "boiler plate contract."

At the outset, the parties dispute the standard of review, appellant contending that the de novo standard applies as the issue is one of law, while appellee contends that the abuse of discretion standard applies because the trial court, in making its findings, considered the evidence surrounding the execution of the agreement. The trial court undoubtedly did consider the evidence in making its finding that Taylor signed the agreement solely as a witness and not as a representative of the nursing home. The issue here, however, is not whether we accord deference to the trial court's factual finding but whether the finding will sustain the court's legal conclusion based thereon, i.e., that the agreement containing the arbitration clause is thereby rendered invalid. Our review on that issue is de novo.

We disagree that this case is distinguishable from Lopez-Silvero in any meaningful respect. In that case, as in this one, a suit was brought against a nursing home alleging improper care and the nursing home sought to compel arbitration pursuant to its admission contract. The Third District reversed the trial court's denial of the motion, concluding that even though the nursing home did not sign the contract at all, the contract was still binding:

A contract is binding, despite the fact that one party did not sign the contract, where both parties have performed under the contract. See Gateway Cable T.V., Inc. v. Vikoa Contruction [sic] Corp., 253 So.2d 461 (Fla. 1st DCA 1971). As noted in Gateway Cable T.V., Inc. v. Vikoa Contruction [sic] Corp., 253 So.2d at 463, "A contract may be binding on a party despite the absence of a party's signature. The object of a signature is to show mutuality or assent, but these facts may be shown in other ways, for example, by the acts or conduct of the parties." See also Sosa v. Shearform Mfg., 784 So.2d 609 (Fla. 5th DCA 2001)

(parties may be bound to the provisions of an unsigned contract if they acted as though the provisions of the contract were in force.)

Here, both the resident and IHS acted as if they had a valid contract. IHS performed under the contract by admitting the resident and providing him with nursing home care for over two months. Moreover, IHS signed five other documents relating to the resident's admission, which were incorporated by reference in the admission contract. Clearly IHS assented to the terms of the admission contract, including its arbitration clause.

Id. at 339. The court reversed and remanded with instructions to grant the motion. Id.

The fact that the contract in the Lopez-Silvero case had no place for the nursing home to sign, whereas the contract in the instant case did, is a distinction without a difference. The Lopez-Silvero case turned on assent by performance, not the presence or absence of a space for a signature. Here...