ESTATE OF ELLEN LUCILLE SMITH, ETC., APPELLANT,

v.

SOUTHLAND SUITES OF ORMOND BEACH, LLC., ET AL., APPELLEE

Fla. 5th DCA | 2010-01-08

No. 5D08-3383

MONACO, C.J., and LAWSON and JACOBUS, JJ., concur.

28 So. 3d 103 Florida District Court of Appeal, Fifth District (2010) Caution

Cited by 7 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Holding

The court held that a broad, general grant of authority in a durable power of attorney is sufficient to authorize an attorney-in-fact to consent to arbitration on behalf of the principal.

Headnotes

[1] A broad, general grant of authority in a durable power of attorney may be sufficient to authorize an attorney-in-fact to consent to arbitration on behalf of the principal…

[2] A durable power of attorney granting broad authority to effectuate legal rights and transact business generally encompasses the power to enter into binding arbitration ag…

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Facts & Procedural History

The Estate of Ellen Smith appealed a non-final order compelling arbitration of nursing home abuse claims. The estate argued that the durable power of …

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Topics

Arbitration Agreement

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Opinion of the Court

PER CURIAM.

The Estate of Ellen Smith (“the estate”) appeals a non-final order compelling arbi*104tration of its claims against Southland Group and the other appellees for nursing home abuse associated with Smith’s death. This Court has jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). The estate argues that the durable power of attorney (“DPOA”) Smith’s daughter acted under in executing Smith’s nursing home admission contract did not authorize her to consent to arbitrate claims arising from Smith’s nursing home care. We disagree, and affirm.

The DPOA in this case did not specifically reference arbitration agreements, but gave Smith’s daughter broad authority to effectuate Smith’s legal rights. The language of the DPOA is clearly broad enough to encompass arbitration and to authorize Smith’s daughter to enter a binding arbitration agreement on her mother’s behalf. The document granted Smith’s daughter the power

“generally to do and perform all matters and things, transact all business, make, execute, and acknowledge all contracts, whether involving real property or not, orders, deeds, writings, assurances, and instruments which may he requisite or proper to effectuate any matter or thing appertaining to or belonging to me, and generally to act for me in all matters affecting my business or property....”

(Emphasis added). Under applicable statutes and cases, this provision included the power to consent to arbitration. See § 709.08(6), Fla. Stat. (2008) (providing that “[ujnless otherwise stated in the durable power of attorney, the durable power of attorney applies to any interest in property owned by the principal, including ... all other contractual or statutory rights or elections”); Jaylene, Inc. v. Steuer ex rel. Paradise, 22 So.3d 711 (Fla. 2d DCA 2009) (concluding that a DPOA was “sufficiently broad” to confer authority on attorney-in-fact to bind principal to arbitration provision in nursing home admissions contract); Sovereign Healthcare of Tampa, LLC v. Estate of Huerta ex rel. Huerta, 14 So.3d 1033 (Fla. 2d DCA 2009) (same); Five Points Health Care, Ltd. v. Mallory, 998 So.2d 1180 (Fla. 1st DCA 2008) (same); Jaylene, Inc. v. Moots, 995 So.2d 566, 570 (Fla. 2d DCA 2008), rev. denied, 995 So.2d 566 (Fla. 2d DCA 2008) (holding that a “broad, general grant of authority” in a power of attorney authorized the attorney-in-fact to consent to arbitration on behalf of the principal); Schriver v. Schriver, 441 So.2d 1105, 1106-07 (Fla. 5th DCA 1983) (interpreting a DPOA authorizing the donor’s daughter to “execut(e) ... any instrument which may be requisite ... to effectuate any ... thing pertaining ... to me” as “obviously meant to be all-inclusive to allow the donee to do any legal act the donor could do on her own,” including “signing documents which secure and protect any legal interest of the donor”); see also Alterra Healthcare Corp. v. Bryant, 937 So.2d 263, 269 (Fla. 4th DCA 2006) (citing approvingly to Schriver in holding that a similarly broad grant of authority included the power to consent to arbitration); but cf. McKibbin v. Alterra Health Care Corp. (In re Estate of McKibbin), 977 So.2d 612 (Fla. 2d DCA 2008).1

AFFIRMED.

MONACO, C.J., and LAWSON and JACOBUS, JJ., concur.

. In McKibbin, the Second District held that an estate was not bound by an arbitration agreement signed by the decedent’s attorney-in-fact because ”[n]othing in that power of *105attorney ... gave ... [the attomey-in-fact] legal authority to enter into an arbitration agreement on behalf of [the principal]." Appellants read McKibbin as holding that an attomey-in-fact is not authorized to execute an arbitration agreement on behalf of the principal unless the agreement expressly lists arbitration as a type of agreement within the attorney-in-fact’s authority to enter for the principal. However, less than a year after McKibbin was decided, the Second District held in Moots that McKibbin was "not controlling” because it did not recite language of the DPOA in that case for comparison to other cases. Consistent with our holding in this case, Moots held that a broad, general grant of authority in a DPOA was sufficient to encompass arbitration. Moots, 995 So.2d at 570. Additionally, the McKibbin DPOA was included in the record below and in this appeal. A review of it makes clear the basis for the court's reasoning and its distinction from the instant DPOA. The document at issue in McKibbin began by granting the attomey-in-fact specific powers related to the donor's real estate, tangible personal property, intangible personal property, income taxes, and tmst. Then it granted the power to "do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises.” Black’s Law Dictionary defines the term "premises” as "[t]hat which is put before, that which precedes, the forgoing statements.” Black’s Law Dictionary, 1180 (6th ed. 1990). Thus, the seemingly broad grant of authority in the McKibbin DPOA was limited to the areas that preceded it. The McKibbin DPOA also contained an "Appointment of Health Care Surrogate” clause, which granted authority to "authorize my admission to ... a health care facility” and "provide ... consent on my behalf." These powers took effect only in the event that the donor was "determined to be incapacitated.” In contrast, the instant DPOA contains no similar limiting phrases and applies regardless of capacity. This would explain why the court in McKibbin focused on the lack of evidence of incapacity, which is not relevant in this case.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Smith v. Southland Suites OF Ormond Beach, LLC., 148 So. 3d 1251 (Fla. 2014)

…PER CURIAM. We initially accepted jurisdiction to review the decision of the Fifth District Court of Appeal in Estate of Smith v. Southland Suites of Ormond Beach, LLC., 28 So. 3d 103 (Fla. 5th DCA 2010), based on express and direct conflict. See art. V, § 3(b)(3), Fla. Const. After further consideration, we conclude that jurisdiction was improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss this review…
The Est. OF Nettie Irons v. Arcadia Healthcare, L.C., 66 So. 3d 396 (Fla. 2d DCA 2011)

…exercise all of [her] legal rights and powers, including all rights and powers that [she] may acquire in the future,” encompassed the authority to consent to arbitration. Id. at 568; see also Estate of Smith v. Southland Suites of Ormond Beach, LLC, 28 So. 3d 103, 104 (Fla. 5th DCA 2010) (holding power of attorney’s broad authority for attorney in fact to effectuate principal’s legal rights authorized consent to binding arbitration agreement where arbitration not mentioned specifically). Arcadia stresses th…
LTCSP-ST. Petersburg, LLC v. Robinson, 96 So. 3d 986 (Fla. 2d DCA 2012)

…eneral, to see that my needs are met and that I am provided for in the event I am unable to take care of myself.” The powers are not restricted to specific types of transactions or tasks. See Estate of Smith v. Southland Suites of Ormond Beach, LLC, 28 So. 3d 103, 104 n. 1 (Fla. 5th DCA 2010) (distinguishing McKibbin v. Alterra Health Care Corp., 977 So. 2d 612 (Fla. 2d DCA 2008)).…

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Authorities Cited

Alterra Healthcare Corp. (as to Alterra Sterling House of Vero Beach & Clare Bridge Cottage of Vero Beach) v. Bryant, 937 So. 2d 263 (Fla. 4th DCA 2006)
Pleasant v. State, 977 So. 2d 612 (Fla. 1st DCA 2008)
Jaylene, Inc. v. Moots, 995 So. 2d 566 (Fla. 2d DCA 2008)
Jaylene, Inc. v. Steuer, 22 So. 3d 711 (Fla. 2d DCA 2009)
In re the Est. OF Lester O. Schriver v. Merritt L. Schriver, 441 So. 2d 1105 (Fla. 5th DCA 1983)
Sovereign Healthcare OF Tampa, LLC v. The Est. OF Florinda Huerta, 14 So. 3d 1033 (Fla. 2d DCA 2009)
Five Points Health Care, Ltd. v. Carlene Mallory, 998 So. 2d 1180 (Fla. 1st DCA 2008)

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ESTATE OF ELLEN LUCILLE SMITH, ETC., APPELLANT, v. SOUTHLAND SUITES OF ORMOND BEACH, LLC., ET AL., APPELLEE

Cases With Similar Vibessemantic neighbors from the corpus

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Cited By

Authorities Cited

ESTATE OF ELLEN LUCILLE SMITH, ETC., APPELLANT,

v.

SOUTHLAND SUITES OF ORMOND BEACH, LLC., ET AL., APPELLEE