                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 10-15480         ELEVENTH CIRCUIT
                                                      OCTOBER 27, 2011
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________          CLERK

                   D. C. Docket No. 2:10-cv-00099-JES-SPC

RONALD GILMORE,
as Personal Representative of the Estate of Vera Gilmore,

                                                    Plaintiff - Appellee,

                                     versus

LIFE CARE CENTERS OF AMERICA, INC.,
LIFE CARE CENTERS OF AMERICA, INC., OF TENNESSEE,
LEE COUNTY MEDICAL INVESTORS, LLC,
agent of Life Care Center of Estero,

                                                    Defendants - Appellants.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (October 27, 2011)

Before BARKETT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
      Life Care Centers of America, Inc. (Life Care) appeals the district court’s

denial of its motion to compel arbitration in a nursing home negligence suit

brought by Ronald Gilmore on behalf of the estate of his mother, Vera Gilmore.

Life Care claimed arbitration was required because Vera Gilmore signed a two-

page Voluntary Agreement for Arbitration upon her arrival at the Life Care

facility. Ronald Gilmore asserted that his mother lacked capacity to enter into the

arbitration agreement, and the agreement was therefore void. Following an

evidentiary hearing at which it heard testimony from Ronald Gilmore and accepted

exhibits from both sides, the district court concluded Vera Gilmore lacked the

capacity to enter into the arbitration agreement. The court therefore denied Life

Care’s motion to compel arbitration. Having carefully considered the record and

the briefs, we affirm.

      In reviewing a district court’s order denying a motion to compel arbitration,

this Court “accepts the district court’s findings of fact that are not clearly

erroneous.” Multi-Financial Secs., Corp. v. King, 386 F.3d 1364, 1366 (11th Cir.

2004).

      As the district court explained in its Oct. 7, 2010, order, we look to Florida

contract law to determine whether Vera Gilmore had the capacity to enter into the

arbitration agreement in this case. See First Options of Chicago, Inc. v. Kaplan,

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514 U.S. 938, 944 (1995) (explaining that courts generally apply ordinary state-

law contract principles in deciding whether the parties have agreed to arbitration).

Under Florida law, a contracting party is presumed competent unless it is shown

by a preponderance of the evidence that the party could not comprehend the nature

and effect of the transaction. Saliba v. James, 196 So. 832, 835 (Fla. 1940). The

testimony of a lay witness may be competent evidence of a party’s capacity, even

when contradicted by medical testimony. In re Estate of Hammerman, 387 So. 2d

409, 411 (Fla. 4th DCA 1980).

      The evidence presented by the Ronald Gilmore showed that he was not

present when his mother arrived at the Life Care facility and did not participate in

the intake process. One month earlier, however, when Vera Gilmore was admitted

to another facility and asked to sign a similar set of intake paperwork, she was

deemed incapable of making her own healthcare decisions, and Ronald Gilmore

signed the paperwork as her legal representative. An intake evaluation completed

by a nurse upon Vera Gilmore’s arrival at Life Care’s facility shows that the nurse

had originally checked that Ms. Gilmore’s cognitive status was “oriented,” but

then crossed that out. Ronald Gilmore testified that at the time his mother was

admitted to the Life Care facility, she was in and out of lucidity, had

hallucinations, and could not understand anything very complex. She had been

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diagnosed with dementia and prescribed an anti-psychotic medication. Medical

records submitted by the plaintiff indicated that Vera Gilmore had been declining

into a state of dementia for several years. An evaluation by a physician’s assistant

less than two weeks after Vera Gilmore signed the arbitration agreement indicated

that Ms. Gilmore was “distraught, anxious, frail” and suffering dementia. Her

mental status was listed as “oriented to person, confused.”

      Life Care, on the other hand, relies on evidence that when a psychologist

interviewed Vera Gilmore six days after her admission to Life Care, he found her

capable of making medical decisions and questioned the need for her anti-

psychotic medication.

      Given the facts before the district court, we cannot say the district court

clearly erred in determining that Vera Gilmore lacked capacity to enter into the

arbitration agreement. We therefore affirm.

      AFFIRMED.




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