               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                               IN THE DISTRICT COURT OF APPEAL
                                               OF FLORIDA
                                               SECOND DISTRICT

THOMAS S. DEA, as personal                     )
representative of the Estate of Caroline       )
S. Dea, deceased,                              )
                                               )
             Appellant,                        )
                                               )
v.                                             )      Case No. 2D16-642
                                               )
PH FORT MYERS, LLC; PLATINUM                   )
HEALTH CARE, LLC; BENJAMIN                     )
KLEIN; and JOANNE P. SMITH (as to              )
Lamplight of Fort Myers),                      )
                                               )
             Appellees.                        )
                                               )

Opinion filed January 13, 2017.

Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Lee County; Alane
C. Laboda, Judge.

Megan L. Gisclar and Isaac R. Ruiz-Carus
of Wilkes & McHugh, P.A., Tampa, for
Appellant.

Scott A. Cole and Lisette Gonzalez of Cole,
Scott & Kissane, P.A., Miami, for Appellees.



LaROSE, Judge.


             Thomas Dea, as personal representative of the Estate of Caroline Dea,

appeals a nonfinal order granting a motion to compel arbitration. We have jurisdiction.
See Fla. R. App. P. 9.130(a)(3)(c)(iv). The Estate contends that (1) there was no valid

arbitration agreement between Mrs. Dea and Lamplight of Fort Myers, and (2) Douglas

Dea, who signed the arbitration agreement as attorney-in-fact for his mother, Mrs. Dea,

lacked authority to do so. We reverse.

                                             Facts

              Mrs. Dea was admitted to Emeritus of Fort Myers, an assisted living

facility, in early 2013. Thomas Dea, her son, held her durable power of attorney

(POA). The POA provided that "[i]f Thomas . . . resigns or is unable or unwilling to

serve as my attorney-in-fact, I appoint [Dougles E. Dea] to serve as my successor

attorney-in-fact." Douglas Dea, Mrs. Dea's other son, signed Emeritus's admission

documents as the "responsible party." Among those documents, Douglas 1 signed a

residency agreement and the arbitration agreement. Notably, the arbitration agreement

had no provision granting Emeritus's successors-in-interest the right to enforce it.

              Sometime in 2014, Lamplight of Fort Myers acquired Emeritus. Lamplight

purported to amend the Emeritus residence and services agreement with Mrs. Dea.

The amendment provides that "[t]his document amends the residency agreement

pertaining to your residency and receipt of services at Lamplight of Fort Myers made

between Lamplight of Fort Myers and Caroline Dea ('Resident'), dated April 16, 2014."

The amendment replaces a fee summary in its entirety. The amendment provides

further that it "shall not modify any other section of the Residency Agreement, and all

other provisions of the Resident Agreement, including any appendices and documents

incorporated by reference, shall remain in full force and effect." Our record contains no




              1For   ease, we will refer to the brothers by their first names.
                                              -2-
April 16, 2014, residency agreement between Lamplight and Mrs. Dea. We can only

assume that Lamplight attempted to amend the Emeritus admission documents and

obtain the benefits of the arbitration agreement. As discussed below, it failed to do so.

                                    Procedural History

              Mrs. Dea sustained injuries while a resident at Lamplight. The Estate

sued Lamplight, alleging violations of Florida's Assisted Living Facilities Act, chapter

429, Florida Statutes (2014). Lamplight moved to compel arbitration pursuant to the

agreement Douglas signed when Mrs. Dea was initially admitted to Emeritus in 2013. In

the trial court, Lamplight argued that the arbitration agreement was valid and

enforceable. Lamplight also argued that the amendment to the residency agreement

"reinforced and reestablished the validity of the documents previously entered between

Douglas Dea and Emeritus, such that these documents were now made part of the

agreement between the Lamplight . . . Appellees and Douglas Dea." Lamplight also

contended that Douglas executed numerous documents on his mother's behalf, naming

him as the primary contact person. The Estate argued that there was no valid

arbitration agreement because (1) the arbitration agreement did not mention

successors-in-interest, (2) Douglas was only the successor attorney-in-fact, and (3)

Lamplight failed to demonstrate that Thomas had resigned or was unable or unwilling to

serve under the POA.

              The trial court granted the arbitration motion, finding that the amendment,

in fact, amended the residency agreement between Mrs. Dea and Emeritus, including

the arbitration agreement. The trial court also found that "Thomas . . . was unwilling to

act as power of attorney [for Mrs. Dea] and it was appropriate for Douglas . . . to



                                            -3-
execute admission paper work on behalf of [Mrs.] Dea, including but not limited to the

subject arbitration agreement."

                                    Standard of Review

              We review the order to compel arbitration de novo. See The Hillier Grp.,

Inc. v. Torcon, Inc., 932 So. 2d 449, 452 (Fla. 2d DCA 2006). "In determining whether a

dispute is subject to arbitration, courts consider at least three issues: (1) whether a valid

written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3)

whether the right to arbitration was waived." Stacy David, Inc. v. Consuegra, 845 So.

2d 303, 306 (Fla. 2d DCA 2003); see also Seifert v. U.S. Home Corp., 750 So. 2d 633,

636 (Fla. 1999).

                                          Analysis

     There Was No Valid Agreement to Arbitrate Between Lamplight and Mrs. Dea

              "Because arbitration is a matter of contract, a party cannot be required to

submit to arbitration any dispute which he has not agreed so to submit." Rolls-Royce

PLC v. Royal Caribbean Cruises Ltd., 960 So. 2d 768, 770 (Fla. 3d DCA 2007) (internal

quotations omitted). "Generally, therefore, a non-signatory to a contract containing an

arbitration agreement cannot compel a signatory to submit to arbitration." Id. Lamplight

was not a party to the residency agreement between Emeritus and Mrs. Dea.

Moreover, the arbitration agreement was silent as to whether successors-in-interest,

such as Lamplight, could enforce the agreement.

              "When interpreting a contract, the court must first examine the plain

language of the contract for evidence of the parties' intent." Heiny v. Heiny, 113 So. 3d

897, 900 (Fla. 2d DCA 2013) (quoting Murley v. Wiedamann, 25 So. 3d 27, 29 (Fla. 2d

DCA 2009)). "Thus, when the terms of a voluntary contract are clear and unambiguous,

                                            -4-
as here, the contracting parties are bound by those terms, and a court is powerless to

rewrite the contract to make it more reasonable or advantageous for one of the

contracting parties." Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So. 2d 1000,

1003 (Fla. 2d DCA 1995). Lamplight argues that the amendment allows it to enforce

the Emeritus arbitration agreement; that is not what the amendment recites.

              The amendment refers to an April 16, 2014, residency agreement

between Lamplight and Mrs. Dea. No such document is in our record. Our record

contains a signed residency agreement with Emeritus from February 2013. Neither

party suggests that a residency agreement between Lamplight and Mrs. Dea was

signed on April 16, 2014. Further, our record does not reflect that Lamplight obtained

any rights to arbitrate claims asserted by Mrs. Dea, or her Estate, when it acquired

Emeritus. Accordingly, the Estate is not bound to arbitrate with Lamplight.

               Douglas Lacked Authority to Bind His Mother to Arbitration

              Alternatively, we conclude that Douglas did not have the authority to sign

the arbitration agreement under the POA. Lamplight offered no evidence that Thomas

resigned or was unable or unwilling to serve as attorney-in-fact. The trial court's

contrary finding is not supported by the record before us.

              We frequently have held that it is error for the trial court to compel

arbitration where the signatory lacked the authority to bind the resident to the

agreement. See Carrington Place of St. Pete, LLC v. Estate of Milo ex rel. Brito, 19 So.

3d 340, 341-42 (Fla. 2d DCA 2009); McKibbin v. Alterra Health Care Corp., 977 So. 2d

612, 613 (Fla. 2d DCA 2008); see also Perry ex rel. Perry v. Sovereign Healthcare of

Metro W., LLC, 100 So. 3d 146, 148 (Fla. 5th DCA 2012). There was insufficient



                                            -5-
evidence to show that Douglas could have signed the arbitration agreement for his

mother.

                                      Conclusion

             We reverse the trial court's order to compel arbitration and remand for

further proceedings.

             Reversed and remanded.



LUCAS, J., Concurs.
BLACK, J. Concurs specially with opinion.




BLACK, Judge, Specially concurring.



             I concur in the reversal of the order compelling arbitration because the

majority correctly concludes that the arbitration agreement signed by Douglas was

unenforceable. The agreement was not binding on Mrs. Dea or her Estate where there

was no evidence that Douglas held the POA or otherwise had the authority to bind his

mother to the arbitration agreement. In my view, the analysis begins and ends there.


                                            -6-
See Mendez v. Hampton Court Nursing Ctr., LLC, 41 Fla. L. Weekly S394 (Fla. Sept.

22, 2016). Although I believe the analysis and conclusion to be unnecessary, the

majority appears to conclude that even had the arbitration agreement been executed by

someone with authority to bind Mrs. Dea it would not have been enforceable by

Lamplight. I respectfully disagree.

              I note that the appendices before this court do not contain the contract

between Emeritus and Lamplight. However, we do have before us the resident

agreement between Emeritus and Mrs. Dea which contains a provision allowing

Emeritus to assign the agreement "to any successor-in-interest selected" by Emeritus.

The amendment between Lamplight and Mrs. Dea, by its terms, replaces only the fee

summary of the agreement and does not otherwise affect the terms of the agreement,

"including any appendices and Documents incorporated by reference." Further, the

arbitration agreement includes the following language: "To the fullest extent permitted

by law, this Arbitration Agreement shall apply to third parties not signatories to this

Agreement . . . . Any claims or grievances against [Emeritus's] corporate parent,

subsidiaries, affiliates, employees, officers or directors shall also be subject to and

resolved in accordance with this Arbitration Agreement." Based upon these documents,

I cannot agree that had the arbitration agreement been binding upon Mrs. Dea it would

still have been unenforceable by Lamplight. See generally Olson v. Fla. Living Options,

Inc., 41 Fla. L. Weekly D2111 (Fla. 2d DCA Sept. 9, 2016); Fla. Power & Light Co. v.

Rd. Rock, Inc., 920 So. 2d 201 (Fla. 4th DCA 2006). Given the language of the

documents, it would be incongruous to conclude that the Estate's claims—had they

been filed against Emeritus—would be subject to binding arbitration but because

Lamplight purchased Emeritus those same claims are no longer arbitrable.
                                            -7-
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