Tampa HCP, LLC v. Bachor

72 So. 3d 323, 2011 Fla. App. LEXIS 16986, 2011 WL 5061541
CourtDistrict Court of Appeal of Florida
DecidedOctober 26, 2011
DocketNo. 2D11-505
StatusPublished
Cited by7 cases

This text of 72 So. 3d 323 (Tampa HCP, LLC v. Bachor) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tampa HCP, LLC v. Bachor, 72 So. 3d 323, 2011 Fla. App. LEXIS 16986, 2011 WL 5061541 (Fla. Ct. App. 2011).

Opinion

VILLANTI, Judge.

Tampa HCP, LLC; Emeritus Corporation; HCP, Inc.; and SOTAM, LLC, (collectively referred to as Emeritus) appeal the trial court’s order denying their motion to compel arbitration of the claims brought against them by Nancy Bachor, as personal representative of the Estate of Kathleen Truxell. The trial court concluded that Ms. Bachor had not knowingly and voluntarily waived the right to trial by jury. We reverse because the trial court’s factual findings are not supported by competent, substantial evidence and its construction of the arbitration agreement was erroneous as a matter of law.

As a result of Kathleen Truxell’s stay at an Emeritus facility, Ms. Bachor filed a lawsuit against Emeritus asserting negligence and violations of chapter 429, Florida Statutes. All of Ms. Truxell’s admissions documents related to her stay at [325]*325Emeritus were executed by Ms. Bachor,1 pursuant to a durable power of attorney. Relevant to this case is the two-page arbitration agreement signed by Ms. Bachor. The agreement was clearly labeled “RESIDENT AND FACILITY BINDING ARBITRATION AGREEMENT (READ CAREFULLY).” It read, in relevant part:

[A]ny legal dispute, controversy, demand or claim ... that arises out of or relates to that certain Resident Admission Agreement ... executed by the Resident and the Facility, or any service or health care provided by the Facility to the Resident, shall be resolved exclusively by binding arbitration to be conducted at a place agreed upon by the parties, or in the absence of such agreement, at the Facility, in accordance with the Florida Arbitration Code (which is incorporated into this Arbitration Agreement), and not by a lawsuit or resort to court process except to the extent that applicable state or federal law provides for judicial review of arbitration proceedings or the judicial enforcement of arbitration awards.

The agreement did not contain any limitations on damages, discovery, appellate rights, or any other limitations typically associated with nursing home or assisted living facility arbitration agreements. It provided that any damages awarded in arbitration would be “determined in accordance with the provisions of the state or federal law applicable to a comparable civil action.”

The agreement clearly stated that the person signing

understands that (1) he/she has the right to seek legal counsel concerning this Arbitration Agreement, (2) the execution of the Arbitration Agreement is not a precondition to the furnishing of services to the Resident by the Facility, and (3) this Arbitration Agreement may be rescinded by written notice given to the Facility by the Resident within thirty (30) days of signature.

(Emphasis added.) Immediately before the signature line, it read:

THE PARTIES UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS ARBITRATION AGREEMENT THEY ARE GIVING UP AND WAIVING THEIR CONSTITUTIONAL RIGHT TO HAVE ANY CLAIM DECIDED IN A COURT OF LAW BEFORE A JUDGE AND JURY.

The evidence presented to the trial court also reflects that Ms. Bachor signed the arbitration agreement three days before her mother moved into the facility. The meeting in which the admissions documents were signed was ten to fifteen minutes long, partly because Ms. Bachor may have been returning to work after the meeting. No one affirmatively told Ms. Bachor that she was required to sign the arbitration agreement in order to have her mother admitted to the facility. There was no suggestion that anyone at the facility “tricked” or induced her to sign the agreement. However, Ms. Bachor subjectively believed that she needed to sign all the documents in the admissions packet given to her — including the arbitration agreement — in order to have her mother admitted to the facility. She testified that no one expressly told her that the arbitration agreement was optional and that she was afraid there would not be a room available for her mother if she did not immediately sign all the documents and pay a deposit. In Ms. Bachor’s words:

[326]*326Q. You mentioned that you wanted to get your mother admitted to this facility and you were handed a packet of documents to sign. Did you feel that you were in any way forced or coerced into signing these ... documents ... including the Arbitration Agreement?
[[Image here]]
A. I felt that we were — we were told that there was a room available that was becoming — or that was available for her. So I didn’t feel forced. I felt that I was on a short time line to get her admitted. And she was ready to be released, so we had a lot — my sister and I had a lot to prepare for once the paperwork was signed. We had to get movers and pack her belongings, and we were trying to get her settled into Southerland before — before her release. So we wanted to get all her furniture moved in and ready to go. And that was all within a few days time of this happening.

(Emphasis added.)

The arbitration agreement was presented to Ms. Bachor as part of an admissions “packet,” and no one affirmatively prevented her from reading any of the documentation. In fact, she asked questions during the meeting, but they were related to services to be provided to her mother. Several of the documents in the packet required Ms. Bachor to affirmatively select or decline specific services for her mother, and she made those choices. Although she received copies of the documents she had signed, she did not know if she reviewed them. And she did not exercise the right of rescission set forth in the arbitration agreement.

At the hearing on Emeritus’ motion to compel arbitration, Ms. Bachor argued that the arbitration agreement was both substantively and procedurally unconscionable. After considering the parties’ arguments, the trial court denied arbitration, concluding that Ms. Bachor “did not make a knowing and voluntary waiver.”2 Under the circumstances of this case, the trial court’s ruling was error.

When a trial court’s ruling is based in part on factual findings, our review of its factual findings is limited to whether they are supported by competent, substantial evidence. Woebse v. Health Care & Ret. Corp. of Am., 977 So.2d 630, 632 (Fla. 2d DCA 2008). But we review de novo the court’s construction of the arbitration provision and its application of the law to the facts. Id.

Courts generally favor arbitration agreements, Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005), but such agreements are subject to state law contract defenses such as unconscionability, Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 264 (Fla. 2d DCA 2004). To succeed in an unconscion-ability argument, both procedural and substantive unconscionability must be shown. Bland, ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So.2d 252, 256 (Fla. 2d DCA 2006). If the arbitration agreement is not procedurally unconscionable, the court does not reach substantive uncon-scionability. Id. at 257; Eldridge v. Integrated Health Servs., Inc., 805 So.2d 982, 982 (Fla. 2d DCA 2001).

Procedural unconscionability relates to the manner in which the contract was made. Bland, 927 So.2d at 256. It [327]*327involves issues such as the parties’ relative bargaining power and their ability to know and understand disputed contract terms. Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Florida Holdings III, LLC v. Duerst Ex Rel. Duerst
198 So. 3d 834 (District Court of Appeal of Florida, 2016)
Greenbrook NH, LLC v. Estate of Sayre Ex Rel. Raymond
150 So. 3d 878 (District Court of Appeal of Florida, 2014)
Brea Sarasota, LLC v. Bickel ex rel. Wasdin
95 So. 3d 1015 (District Court of Appeal of Florida, 2012)
John Knox Village of Tampa Bay, Inc. v. Perry
94 So. 3d 715 (District Court of Appeal of Florida, 2012)
Connell v. Connell
93 So. 3d 1140 (District Court of Appeal of Florida, 2012)
SA-PG SUN CITY CENTER, LLC v. Kennedy
79 So. 3d 916 (District Court of Appeal of Florida, 2012)
Cornwell v. Kennedy
79 So. 3d 935 (District Court of Appeal of Florida, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
72 So. 3d 323, 2011 Fla. App. LEXIS 16986, 2011 WL 5061541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tampa-hcp-llc-v-bachor-fladistctapp-2011.