        IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FIFTH DISTRICT

                                             NOT FINAL UNTIL TIME EXPIRES TO
                                             FILE MOTION FOR REHEARING AND
                                             DISPOSITION THEREOF IF FILED


ROCKLEDGE NH, LLC, GREYSTONE
HEALTHCARE MANAGEMENT CORP.
AND JULIE D. MORRIS (AS ROCKLEDGE
HEALTH AND REHABILITATION CENTER),

             Appellants,

 v.                                                 Case No. 5D16-812

MARY ELIZABETH MILEY, BY AND
THROUGH, BRUCE W. MILEY,
ATTORNEY IN FACT,

             Appellee.

________________________________/

Opinion filed May 19, 2017

Non-Final Appeal from the Circuit Court
for Brevard County,
George B. Turner, Judge.

Thomas A. Valdez, Karen M. Shimonsky,
and Jade M. Gummer, of Quintairos,
Prieto, Wood & Boyer, P.A., Tampa, for
Appellants.

Megan L. Gisclar, and Joanna Greber
Dettloff, of Wilkes & McHugh, P.A., Tampa,
for Appellee.


EVANDER, J.

      Rockledge NH, LLC, Greystone Healthcare Management Corp., and Julie D.

Morris (“Appellants”) appeal an order denying their motion to compel arbitration. We
conclude that the arbitration agreement at issue contains an attorneys’ fee provision that

violates public policy. However, because the attorneys’ fee provision could be properly

severed from the arbitration agreement, it was error for the trial court to deny the motion

to compel arbitration.

       In September 2013, Mary Miley was admitted to Rockledge Health and

Rehabilitation Center (“the facility”). During her admission process, Miley signed an

admission agreement that included an arbitration provision:

                     The facility and the resident or the resident’s
              authorized     representative      recognize      that     future
              disagreements or disputes may arise and these parties both
              wish to agree now, in advance, to submit any disputes which
              may arise between the parties which they cannot otherwise
              resolve to binding arbitration instead of court litigation. The
              parties believe binding arbitration to be a speedy and
              economical alternative to what is generally a more protracted,
              more expensive, more public and more unpredictable means
              of resolving disputes. The parties hereto have entered into
              the attached arbitration agreement which is hereby
              incorporated by reference.

                     The foregoing arbitration clause does not apply to
              actions brought by the facility to collect accounts receivable,
              unless specifically set forth in writing in a separate instrument.

       Attached to the admission agreement and incorporated by reference was an

“Addendum to Admission Agreement Optional Arbitration Agreement,” wherein the

parties agreed to resolve any disputes related to Miley’s stay at the facility by arbitration.

The arbitration agreement contained a fee provision that provided that each party would

be responsible for its own attorneys’ fees. Finally, the arbitration agreement contained

the following severability clause:

                    The foregoing notwithstanding, the Parties agree that
              all of the provisions contained in this Agreement are
              severable. In the event any provision of the agreement, or



                                              2
              portion thereof, or any rule incorporated by reference in the
              agreement, is held to be invalid by a court of competent
              jurisdiction, this agreement shall be interpreted as if the invalid
              provision or portion was not contained herein, and the
              remaining provisions of the agreement will remain in full force
              and effect. This agreement to arbitrate will not fail because
              any part, clause or provision hereof is held to be indefinite or
              invalid.

       In June 2015, Miley, by and through her attorney-in-fact (and husband), Bruce

Miley, sued the facility owner—Rockledge NH, LLC, the facility management company—

Greystone Healthcare Management Corp., and the facility administrator—Julie Morris.

The four-count complaint included a count for violation of Florida’s Nursing Home

Residential Rights Act, sections 400.022-.023, Florida Statutes (2013), two counts for

violation of Florida’s Adult Protective Services Act, section 415.1111, Florida Statutes

(2013), and one count for breach of fiduciary duty.

       Appellants responded to the complaint by filing a Motion to Dismiss and to Compel

Arbitration. The trial court denied the motion, finding that the attorneys’ fee provision

violated public policy because it effectively “replaced” the prevailing party provision set

forth in section 415.1111 with a provision requiring each party to be responsible for its

own attorneys’ fees. The trial court further found that the attorneys’ fee provision was not

severable. This appeal followed.

       Florida’s Adult Protective Services Act is remedial in nature. Hochbaum v. Palm

Garden of Winter Haven, LLC, 201 So. 3d 218, 220 (Fla. 2d DCA 2016). Accordingly, an

arbitration agreement provision that purports to preclude application of the Act’s prevailing

party fee provision is unenforceable because it violates public policy. See id. at 221

(holding that arbitration agreement that limits statutory remedy of attorneys’ fees pursuant

to section 415.1111 violates public policy).



                                               3
       Based on the determination that the arbitration agreement attorneys’ fee provision

violates public policy, we must next determine whether the provision is severable. Here,

the parties’ arbitration agreement contained a severability clause expressly providing that

in the event a provision in the agreement was determined to be invalid, the agreement

was to be interpreted “as if the invalid provision or portion was not contained herein, and

the remaining provisions of the agreement [would] remain in full force and effect.”

       The existence of a severability clause is not dispositive of whether a void clause

invalidates the entire arbitration agreement. Estate of Novosett v. Arc Villages II, LLC,

189 So. 3d 895, 896 (Fla. 5th DCA 2016). Rather, the controlling issue is whether an

offending clause goes to “the very essence of the agreement.” Shotts v. OP Winterhaven,

Inc., 86 So. 3d 456, 459, 478 (Fla. 2011); Estate of Novosett, 189 So. 3d at 896. On the

other hand, a contract provision can be severed from a bilateral contract “where the illegal

portion of the contract does not go to its essence, and where, with the illegal portion

eliminated, there still remains of the contract valid legal promises on one side which are

wholly supported by valid legal promises on the other.” Shotts, 86 So. 3d at 475.

       In Hochbaum, our sister court was similarly confronted with an arbitration

agreement between a nursing home and one of its residents that contained an attorneys’

fee provision that was inconsistent with the prevailing party attorneys’ fee provision set

forth in section 415.1111. The Hochbaum court concluded that the attorneys’ fees

provision did not go to the essence of the parties’ agreement:

                      Here, the offending provision deals only with attorneys’
              fees. The provision does not require the arbitration to be
              conducted in accordance with certain rules, and it does not
              limit the compensatory or punitive damages that Hochbaum
              may recover in arbitration. . . . It is clear from the agreements
              in this case that the parties agreed to bind themselves to



                                             4
              arbitration for any disputes arising out of Donald Hochbaum’s
              residency at the nursing home. The attorneys’ fees provision
              does not go to the heart of the contracts, and severance of the
              attorneys’ fees provision would not require a drastic rewriting
              of the agreements and would preserve the intent of the parties
              to adjudicate their disputes in arbitration.

Hochbaum, 201 So. 3d at 223 (citations omitted).

       We agree with the reasoning of the Hochbaum court quoted above.1 Because the

offending attorneys’ fee provision was severable from the arbitration agreement, we

conclude that the trial court erred in denying the motion to compel arbitration.

       REVERSED and REMANDED.




BERGER and EDWARDS, JJ., concur.




       1  In Hochbaum, the arbitration agreements at issue did not contain a severability
clause. We do not address the question of whether we would have reached a different
result in this case in the absence of a severability clause.


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