         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D18-4823
                 _____________________________

MARK ODUM, Executor de son
tort of the Estate of Joseph
Norton,

    Appellant,

    v.

LP GRACEVILLE, LLC, d/b/a
Signature Healthcare of North
Florida, a foreign corporation
and SIGNATURE HEALTHCARE
CONSULTING SERVICES, LLC, a
foreign corporation,

    Appellees.
                 _____________________________


On appeal from the Circuit Court for Jackson County.
Christopher N. Patterson, Judge.

                          July 9, 2019


WINOKUR, J.

     Appellant appeals the trial court’s order compelling
arbitration based on a delegation clause in the arbitration
agreement. 1 The order stated that only the arbitrator could

    1 We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(C)(iv).
Appellees argue that no interlocutory appeal may be taken from
determine whether Appellees were parties to the arbitration
agreement. We agree with Appellant that this statement is
inaccurate, but affirm nonetheless. 2

                                  I.

      Appellant brought suit on behalf of his deceased father
against Appellees, alleging that they were the owners, operators,
managers, and licensees of the nursing home that allegedly
neglected his father. Appellees filed a motion to compel
arbitration based on an arbitration agreement that included a
delegation provision requiring the arbitrator to decide threshold
claims such as the agreement’s enforceability. Appellant
responded that Appellees did not sign the agreement (only a
representative of the nursing home did) and only the signatory
could enforce it. At a hearing on the motion, Appellant again
argued that only the signatory to the agreement—not affiliates—
may enforce it. Appellees disagreed, noting that the agreement
explicitly included “all affiliates, parents, officers, owners,
members, agents, successors and assigns” of the nursing home.
After the trial court directed the parties to proceed to Appellant’s
second argument, Appellant asked for one more word and stated
that Appellees had not admitted any evidence that they are
affiliates of the nursing home. The trial court granted Appellees’
motion to compel arbitration, finding in its order that “any
questions about who may have entered [into the] Agreement are
to be submitted to an arbitrator” because the “parties have
delegated such ‘gateway’ issues” in the agreement’s delegation
provision.



an order directing arbitration if the agreement is governed by the
Federal Arbitration Act, see 9 U.S.C. § 16(b)(2), but this provision
only relates to proceedings in federal district courts, see 9 U.S.C.
§ 4. See also Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford
Junior Univ., 489 U.S. 468, 477 n.6 (1989) (stating that § 4 by its
“terms appear[s] to apply only to proceedings in federal court”).
    2We reject Appellant’s second argument without further
comment.

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                                 II.

     Arbitration agreements, particularly those governed by the
Federal Arbitration Act, are contracts that must be enforced
according to their terms, save for applicable contract defenses.
Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67-68 (2010).
Arbitration agreements may include a “delegation provision,”
which is an “agreement to arbitrate threshold issues concerning
the arbitration agreement.” Id. at 68. The United States Supreme
Court has made clear that “parties can agree to arbitrate
‘gateway’ questions of ‘arbitrability,’ such as whether the parties
have agreed to arbitrate or whether their agreement covers a
particular controversy.” Id. at 68-69. The Court noted however
that it was only addressing the validity of the agreement, not
whether one “was ever concluded.” Id. at 70 n.2 (quoting Buckeye
Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444 n.1 (2006)).
In Buckeye, the Court made the same distinction and stated that
it did not address questions of whether an agreement “was ever
concluded,” such as “whether the alleged obligor ever signed the
contract[.]” 546 U.S. at 444 n.1.

    This analysis was further explained by the Fifth Circuit
Court of Appeals as follows:

    Enforcement of an arbitration agreement involves two
    analytical steps. The first is contract formation—
    whether the parties entered into any arbitration
    agreement at all. The second involves contract
    interpretation to determine whether this claim is
    covered by the arbitration agreement. Ordinarily both
    steps are questions for the court. But where the
    arbitration agreement contains a delegation clause
    giving the arbitrator the primary power to rule on the
    arbitrability of a specific claim, the analysis changes.

     Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199, 201 (5th
Cir. 2016) (citations omitted). The court concluded that “if the
party seeking arbitration points to a purported delegation
clause,” the court “performs the first step—an analysis of contract
formation—as it always does,” then decides “whether the
purported delegation clause is in fact a delegation clause[.]” Id. at
202. If the parties entered into an arbitration agreement and a
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delegation clause exists, the court must grant the motion to
compel arbitration. Id.

                               III.

     The trial court concluded that “any questions about who may
have entered [into the] Agreement are to be submitted to an
arbitrator” because the “parties have delegated such ‘gateway’
issues” in the agreement. This conclusion misapplies the
framework, as it always remains the trial court’s role to
determine whether the parties entered into an agreement before
enforcing that agreement by compelling arbitration. However,
despite this misstatement, we do not find that the trial court
erred in granting Appellees’ motion in light of the argument
raised by Appellant. In its written response to the motion and at
the hearing, Appellant argued that only the nursing home as the
signatory to the agreement—and not its affiliates—could enforce
it. This argument was refuted, as Appellees pointed out, by the
agreement’s explicit statement that it applied to affiliates of the
nursing home.

     At the last second in the hearing, Appellant stated that
Appellees had not admitted any evidence that they were affiliates
of the nursing home. Now on appeal, they similarly argue that
there is no record evidence to support this finding. But Appellant
never argued below that Appellees were not affiliates of the
nursing home. Indeed, Appellant sued Appellees to hold them
liable for the nursing home’s alleged negligence, identifying them
as owners, operators, managers, and licensees of the nursing
home, and they did not argue otherwise until now. Had Appellant
made this argument, the trial court would have been required to
determine if Appellees were affiliates—i.e., whether there was an
arbitration agreement between Appellant and Appellees.
Appellant did not ask for this determination however, so the trial
court did not err in granting the motion to compel without
making it.

                               IV.

     A determination of whether a party seeking to enforce an
arbitration agreement actually entered into that agreement is
one for the trial court, regardless of a delegation clause. Here,
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there is no question that the agreement applies to the nursing
home’s affiliates, and Appellant did not argue that Appellees
were not affiliates until this appeal. Therefore, we AFFIRM the
trial court’s order granting Appellees’ motion to compel
arbitration.

RAY, C.J. and B.L. THOMAS, J., concur.


                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Charles M-P George of the Law Offices of Charles M-P George,
Coral Gables, and R. Waylon Thompson of Manuel & Thompson,
P.A., Panama City, for Appellant.

Donna J. Fudge and W. Benjamin Broadwater, of Fudge
Broadwater, P.A., St. Petersburg, for Appellees.




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