Sovereign Healthcare of Tampa, LLC v. Estate of Schmitt Ex Rel. Schmitt

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

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

SOVEREIGN HEALTHCARE OF )
TAMPA, LLC; SOUTHERN )
HEALTHCARE MANAGEMENT, LLC; )
and VICTOR J. PIPERATA, II, )
)
Appellants, )
)
v. ) Case No. 2D15-2969
)
THE ESTATE OF OTTO N. SCHMITT, )
by and through JANICE R. SCHMITT, )
Personal Representative, )
)
Appellee. )
)

Opinion filed July 1, 2016.

Appeal pursuant to Fla. R. App. P.
9.130 from the Circuit Court for
Hillsborough County; Robert A. Foster, Jr.,
Judge.

Thomas A. Valdez of Quintairos, Prieto,
Wood & Boyer, P.A., Tampa, for Appellants.

Isaac R. Ruiz-Carus, Megan L. Gisclar and
Andrea E. Nieto of Wilkes & McHugh, P.A.,
Tampa, for Appellee.

WALLACE, Judge.

Sovereign Healthcare of Tampa, LLC; Southern Healthcare Management,

LLC; and Victor Piperata, II (the Appellants), challenge a nonfinal order denying their
motion to compel arbitration and to stay the underlying nursing home negligence action

brought against them by Janice R. Schmitt, as Personal Representative of the Estate of

Otto N. Schmitt, deceased. 1 Mrs. Schmitt is the widow of Mr. Schmitt. Her claims

against the Appellants arise out of Mr. Schmitt's two residencies at Bayshore Pointe

Nursing & Rehabilitation Center from February 1, 2013, to March 6, 2013, and from

September 25, 2013, to October 18, 2013. With regard to Mr. Schmitt's initial residency,

the Appellants' arbitration motion was based on an arbitration provision included in a

Resident Admission and Financial Agreement dated February 7, 2013. With regard to

the second residency, the Appellants' arbitration motion was based on an identical

arbitration provision included in a Resident Admission and Financial Agreement dated

September 26, 2013.

We affirm the circuit court's order with regard to the agreement dated

February 7, 2013, because Mr. Schmitt did not sign it and the evidence established that

Mrs. Schmitt was not authorized to sign that agreement on her husband's behalf.

Accordingly, the arbitration provision in the initial agreement is unenforceable against

Mr. Schmitt's estate. Cf. Sovereign Healthcare of Tampa, LLC v. Estate of Yarawsky,

ex rel. Yarawsky, 150 So. 3d 873, 877-78 (Fla. 2d DCA 2014) (holding that an

arbitration provision included in a resident admission and financial agreement was not

enforceable against the resident's estate where the resident did not sign the agreement

and the resident's wife, who signed the agreement only in her capacity as the

1Wehave jurisdiction in accordance with Florida Rule of Appellate
Procedure 9.130(a)(3)(C)(iv).

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responsible party, did not have the authority to sign the agreement on her husband's

behalf).

The circuit court reserved ruling and expressly declined to decide the

issue of whether Mr. Schmitt's estate was bound to arbitrate under the arbitration

provision in the agreement dated September 26, 2013. Because the question of the

Appellants' right to enforce the arbitration provision in the second agreement has not

been decided adversely to them, we do not address this issue. See Clear Channel

Commc'ns, Inc. v. City of N. Bay Vill., 911 So. 2d 188, 189 (Fla. 3d DCA 2005)

("Appellate review is confined to issues decided adversely to appellant's position.").

Affirmed.

KELLY and MORRIS, JJ., Concur.

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