The Florida Second District’s recent opinion in Estate of Dea v. PH Fort Myers, LLC et al. illustrates the complexity of enforcing arbitration in the assisted living / long term care context which requires consistent lawyering in writing arbitration clauses, admission agreements, and agreements for the sale of businesses as well as good lawyering in the courtroom establishing and introducing evidence to enforce arbitration.
In this case, the Resident was admitted to the facility in 2013 but the facility was sold a year later in 2014. The new owner (Lamplight) sought to enforce the arbitration clause between the original owner (Emeritus) and the Resident. That agreement was not signed by the Resident but her second son; the first son was the POA but it was listed that the second son could act as POA if the first son was unable or unwilling. Lamplight sought to amend the initial admission agreement, rather than execute a new document, and oddly referenced a purported April 2014 agreement which was never introduced into evidence.
The Second District could not find enough reasons to deny enforcement of arbitration. It is hard to assess whether this involved some sort of strategy (choosing not to review the sales agreement for some reason) or a lack of thoroughness in discovering, establishing, and introducing evidence (and/or it could simply be some of these documents never existed). First, the original contract did not mention successors-in-interest, a fairly standard provision in contracts. Second, the new owner sought to amend the original agreement and/or execute a new agreement but, for reasons not clearly explained, that failed and/or those documents don’t exist. Third, the new owner introduced no evidence that the first son was unavailable or unwilling to act as POA in order to give the second son authority to sign the agreement.