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


                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


THOMAS R. DAVIS, JR., as Personal  )
Representative of the Estate of Cathleen
                                   )
Sandy, Deceased,                   )
                                   )
            Appellant,             )
                                   )
v.                                 )                 Case No. 2D14-2079
                                   )
HEARTHSTONE SENIOR COMMUNITIES, )
INC.; BRIGID HEALTH MANAGEMENT,    )
LLC n/k/a BRIGID HEALTH SERVICES,  )
LLC; AIRAMID FLORIDA, LLC; AIRAMID )
HEALTH CONSULTING, LLC;            )
SUN COAST NURSING CENTERS, INC.; )
DEBRA HOWE; and ELLIS J. WILLIAMS )
(as to LAKELAND HILLS CENTER),     )
                                   )
            Appellees.             )
                                   )

Opinion filed January 23, 2015.

Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Polk County;
Ellen S. Masters, Judge.

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

James D. Moriarty of Spector Gadon &
Rosen, LLP, St. Petersburg, for Appellees.
DAVIS, Chief Judge.

              Thomas R. Davis, as personal representative of the Estate of Cathleen

Sandy, challenges the trial court's order granting the motion to compel arbitration filed

by Hearthstone Senior Communities, Inc., and its related entities (the nursing home).

Because the record does not include sufficient facts to support the order, we must

reverse.

              Upon Ms. Sandy's entering Lakeland Hills Center, she signed several

documents as part of the admissions process, including one that was alleged to be an

arbitration agreement. While subsequently residing at the nursing home, she suffered

certain injuries and eventually died. Mr. Davis, acting on behalf of the Estate, filed an

action against the nursing home alleging violations of Ms. Sandy's rights as provided for

in chapter 400, Florida Statutes. The nursing home then filed a motion to compel

arbitration pursuant to the arbitration agreement signed during the admissions process.

              During discovery, the Estate requested that the nursing home provide a

complete copy of the set of documents signed by Ms. Sandy upon her admission. But

the documents provided included only the signature page of what was alleged to be the

arbitration agreement. Witnesses testified that the original arbitration document

consisted of seven pages but that it was the practice of the nursing home to retain in its

file only the signature page of the arbitration agreement and to provide the first six

pages to the resident. Based on the absence of the original six pages, the Estate

argued that the nursing home had failed to prove that there was a binding, valid, and

enforceable arbitration agreement.




                                            -2-
             At the hearing, the signature page was admitted into evidence and

contained the following language, which appears to be a continuation of a statement

beginning on the previous, unadmitted page:

             from fully reviewing the arbitration agreement and the
             informational video, that I have been provided an opportunity
             to seek the advice of counsel prior to signing this agreement
             and have no questions about the information contained in
             this arbitration agreement or in the informational video and
             have agreed to arbitration freely and voluntarily.

Based on this language, the nursing home argued below, and argues now on appeal,

that by signing the agreement Ms. Sandy clearly agreed to arbitration.

             The nursing home presented the testimony of a former employee who

supervised the admissions process. She testified that Ms. Sandy signed the last page

of the arbitration agreement and that it was the nursing home's practice to retain only

the signature page. However, when counsel for the nursing home presented her with a

copy of the first six pages of the arbitration agreement purportedly used by the nursing

home, she was unable to verify the terms or to assure the court that this agreement was

the agreement that was in standard use at the nursing home at the time of Ms. Sandy's

admission. Because that witness could not verify the document, the trial court

sustained the Estate's objection to the admission of the six pages containing the terms

of the arbitration agreement. The nursing home did not call other witnesses and did not

further attempt to admit into evidence the first six pages of the agreement.

             The trial court acknowledged its frustration at what it recognized was

missing from the evidence at the close of the hearing by stating, "I don't know why

defense counsel didn't just bring somebody to say[,] 'These were [the six pages] we

were using that would have been attached [to page seven] on this particular date.' But



                                           -3-
Defendant didn't do that, and that's causing a little frustration for me this morning." The

trial court concluded that Ms. Sandy did sign the agreement and that the complete

arbitration agreement does exist but that the "essential terms have not been introduced

into evidence." Stating that it was satisfied, however, that the nursing home could show

the complete terms of the arbitration agreement, the trial court granted the motion to

compel arbitration.

              The Estate suggested below that it was prejudiced by this ruling because

there may be objectionable terms of the agreement that it will be precluded from

litigating due to the failure of the nursing home to present the full agreement at the

hearing. In an attempt to provide the Estate relief from this potential prejudice, the trial

court suggested that if the nursing home could subsequently provide a copy of the first

six pages of the agreement in use at the time Ms. Sandy signed the agreement, the trial

court would entertain a motion for reconsideration filed by the Estate seeking review of

any particular terms of the agreement. No such motion was filed, and the Estate now

appeals the order granting the motion to compel.

              To enforce the arbitration agreement, the nursing home had to show (1)

that there is a valid written agreement to arbitrate, (2) that an arbitrable issue exists, and

(3) that the right to arbitration has not been waived. See Greenbrook NH, LLC v. Estate

of Sayre, 150 So. 3d 878, 878 (Fla. 2d DCA 2014). The issue raised by this appeal is

related to whether the nursing home met its burden to show the first requirement—the

existence of a valid written agreement. We conclude that they did not meet this burden

based on the evidence introduced on the record. As described in Greenbrook, "[t]here

can be no quarrel that a contract cannot stand if it is missing the essential terms of an




                                            -4-
agreement." Id. (internal quotation marks omitted). In Malone & Hyde, Inc. v. RTC

Transportation, Inc., 515 So. 2d 365, 366 (Fla. 4th DCA 1987), the court defined the

essential terms of an arbitration agreement to include "the form and procedure for

arbitration, the number of arbitrators, how the arbitrators were to be selected, or . . . the

issues to be decided by arbitration." In Greenbrook, we opined that "[t]he terms must

be definite enough so that the parties have some idea as to what matters are to be

arbitrated and provide some procedure by which arbitration is to be effected." 150 So.

3d at 878.

              Our record does not include any of the terms of the alleged arbitration

agreement. It therefore fails to indicate whether the arbitration is binding or nonbinding,

how many arbitrators are to be used, how the arbitrator will be selected, or what issues

are to be included. Although these details may be included in the missing six pages

and may become available as part of the record on remand, as of the time the trial court

granted the motion to compel arbitration, the record was devoid of these details, and

thus the nursing home failed to meet the first requirement to enforce the agreement.

See id. Based on the evidence of record, there is no way the trial court could determine

the intent of the parties at the time they entered the agreement.1 Accordingly, under

Greenbrook, the trial court erred in granting the motion to compel. We therefore reverse

the order compelling arbitration and remand for further proceedings consistent with this

opinion.



              1
               We recognize that there are circumstances under which the trial court
may determine from context that certain missing elements in an arbitration agreement
do exist. See Fla. R. Civ. P. 1.830(a)(2); see also §§ 682.01-.22, Fla. Stat. However, in
this case, the signature page of the agreement contains no terms from which the court
could otherwise infer the intent of the parties.


                                            -5-
            Reversed and remanded.



VILLANTI and BLACK, JJ., Concur.




                                     -6-
