NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FIL ED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

DONALD HOCHBAUM , by and through ) JOANN HOCHBAUM, Attorney-in-Fact, ) ) Appellant, ) ) v. ) Case No. 2D16-89 ) PALM GARDEN OF WINTER HAVEN, LLC;) PALM GARDEN HEALTHCARE ) HOLDINGS, LLC; PALM HEALTHCARE ) MANAGEMENT, LLC; SUMMIT CARE ) CONSULTING, INC.; SUMMIT CARE, ) INC.; SUMMIT CARE II, INC.; CYPRESS ) HEALTH GROUP, LLC; CYPRESS ) MASTER HOLDING, LLC; and HC ) NAVIGATOR, LLC a/k /a HEALTH CARE ) NAVIGATOR, LLC (as to PALM GARDEN ) OF WINTER HAVEN), ) ) Appellees. ) ) Opinion filed October 5, 2016. Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Polk County; Mark Carpinini, Judge. Isaac R. Ruiz-Carus and Megan L. Gisclar of Wilkes & McHugh, P.A., Tampa, for Appellant. Kirsten K. Ullman and Amy D. Prevatt of Lewis Brisbois Bisg aard & Smith, LLP, Tampa, for Appellees.- 2 - MORRIS, Judge. Joann Hochbaum, on behalf of her deceased husband Donald Hoch baum, appeals an order granting a motion to compel arbitration filed by defendants Palm Garden of Winter Haven, LLC; Pal m Garden Healthcare Holdings, L LC; Palm Garden Healthcare Management, LLC, Summi t Care II, Inc.; S ummit Care C onsulting, Inc.; and Summit Care, Inc. (collectively re ferred to as the nursing home defendants). We conclude that the arbitration agr eements at issue contain an at torneys' fees provision that violates public policy bu t that the offending provision ma y be severed from the agreements. Accordingly, we affi rm the order compelling arbitr ation but remand for the

trial court to strike the attor neys' fees provision from the ar bitration agreements. In 2015, Hochbaum filed a three- count complaint against the n ursing home defendants. Count one alleged negligence in violation of section 400.022, Florida Statutes (2013), count two allege d a breach of fiduciary duty, and count three alleged violations of section 415.1111, F lorida Statutes (2013). The n ursing home defendants filed a motion to compel arbitr ation, arguing that Hochbaum, as attorney-in-fact for her husband, had signed arbitration agreements in connection with h er husband's residency at the nursing home.

The trial court held a heari ng on the nursing home defendants' motion to compel arbitration on Decem ber 1, 2015. The nursing home defen dants relied on three arbitration agreements si gned by Hochbaum in 2013 and 2014. 1 Hochbaum argued

1 On July 26, 2013, Hochbaum signed an Optional Arbitration Agree ment and a separate Resident and Fac ility Arbitration Agreement. On January 14, 2014, she- 3 - that all three arbitration agr eements violate public policy bec ause they require each party to pay for their own attor neys' fees, thereby eliminating the fee-shifting provision of

section 415.1111. The trial cour t then inquired about procedur al and substantive unconscionability, and Hochbaum argued that the agreements are both unconscionable and void as against public policy . The trial court ruled that Hochbaum had not established unconscionability and granted the nursing home defe ndants' motion to compel arbitration. Hochbaum first argues on appeal t hat the arbitration agreements are unenforceable because they violate public policy by limiting Ho chbaum's statutory right to attorneys' fees under section 415.1111. In her complaint, H ochbaum asserted a count for violation of secti on 415.1111, alleging that the nurs ing home defendants' "acts or omissions constitute exploit ation of a vulnerable adult in v iolation of" the statute. Section 415.1111 provides that " [a] vulnerable adult who has be en abused, neglected, or exploited as specified in th is chapter has a cause of action against any perpetrator and may recover actual and punit ive damages for such abuse, neg lect, or exploitation." It also provides that "[a] party who prevails in any such actio n may be entitled to recover reasonable attorney's fees, costs of the action, and damages." Hochbaum claims that this remedial provision is elim inated by the language of the ar bitration agreements requiring that each party pay thei r own attorneys' fees and tha t the agreements are void as against public policy because they defeat the remedial purpo se of the statute. The trial court mistakenly under stood the issue to be one of unconscionability and rejected Hochbaum's challenge to the nurs ing home defendants'

signed an Optional Arbitration Agr eement. All three agreements provide that "[e]ach party shall be responsible for their own attorneys' fees."- 4 - motion to compel arbitration. B ut the question of whether an a greement is unconscionable is distinct from the question of whether it is v oid as against public policy. See Bland ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So. 2d 252, 257 (Fla. 2d DCA 2006) , abrogated in part on other grounds by B asulto v. Hialeah Auto., 141 So. 3d 1145, 1159-60 (F la. 2014), and Shotts v. OP W inter Haven, Inc., 86 So. 3d 456, 474 (Fla. 2011); Fonte v . AT&T Wireless Servs., Inc ., 903 So. 2d 1019, 1023 (Fla. 4th DCA 2005). Hochbaum 's main argument at the hear ing was that the arbitration agreement s are void as agains t public policy becaus e they defeat the remedial purpose of section 415.1111. "A remedial statute is designed to correct an existing law, red ress an existing grievance, or introduc e regulations conducive to the p ublic good. It is also defined as [a] statute giving a party a mode of remedy for a wr ong, where he had none, or a different one, before." F onte, 903 So. 2d at 1024 (altera tion in original) (quoting Adams v. Wright, 403 So. 2d 391 , 394 (Fla. 1981)). "[W]hen an arbitration agreement contains provisions that defea t the remedial purpose of the sta tute, the agreement is not enforceable." Flyer Printi ng Co. v. Hills, 805 So. 2d 829, 831 (Fla. 2d DCA 2001). In Shotts, 86 So. 3d at 474, the s upreme court held that provis ions in an arbitration agreement requiring ar bitration to be conducted in accordance with certain arbitration rules and prohibiti ng an award of punitive damages violated public policy because the provisions limited st atutory remedies created by th e legislature under the Nursing Home Resident's Right s Act. The court recognized that in enacting the Act, the legislature created a civil cause of action for violations of n ursing home residents' rights; the legislature set no cap on pain and suffering damages and pr ovided for an award of- 5 - punitive damages. Id. (relying on Romano v. Manor Care, Inc., 861 So. 2d 59, 62-63 (Fla. 4th DCA 2003)). "In ligh t of the recognized need for the se remedies and the salutary purpose they serve," t he court "conclude[d] that any a rbitration agreement that substantially diminishes or cir cumvents these remedies stands i n violation of the public policy of the State of Florida and is unenforceable." Id.; see also Gessa v. Manor Care of Fla., Inc., 86 So. 3d 484, 493 (Fla. 2011) (holding that lim itations on liability in arbitration agreement, in the forms of a cap on noneconomic dam ages and a waiver of punitive damages, " directly frustrate the remedies creat ed by the statute" and thus violate public policy). In enacting the Adult Protective Services Act in chapter 415, t he legislature "recognize[d] that ther e are many persons in this s tate who, because of age or disability, are in need of pro tective services." § 415.101( 2). The legislature intended "to provide for the detection and correction of abuse, neglect, and exploitation through

social services and criminal inv estigations and to establish a program of protective services for all vulnerable adu lts in need of them." Id. Sect ion 415.1111 creates a civil cause of action for abuse, negl ect, and exploitation committed against vulnerable adults, and it provides for act ual and punitive damages as well as prevailing party fees and costs. Thus, the Act under w hich Hochbaum seeks relief in count III is remedial in

nature.

This court has held that an arbi tration agreemen t that limits t he statutory remedy of attorneys' fees viola tes public policy. In Flyer Pri nting Co., the arbitration agreement "required the parties to equally bear the costs of th e arbitration and arbitrator's fees." 805 So. 2d at 831. But the statutes on wh ich the plaintiff's claims- 6 - were based "permit[ted] the prevailing party to seek recovery o f all her fees and costs." Id. (citing Title VII of the Civil Rights Act of 1964, 42 U.S.C . § 2000e-5(k), and the Florida Civil Rights Act, § 760.11(5), Fla. Stat. (2000)). Thi s court held that the agreement violated public poli cy because "[t]he agreement contr avened [the plaintiff's] statutory right to seek a full aw ard of her fees and costs unde r" the statutes, "thus defeating the remedial purpose of those statutes." Id. at 833. The arbitration agreements in th is case require the parties to equally bear the fees associated with arbitra tion, in contravention of Hochb aum's statutory right to seek a full award of her fees under the prevailing party attorn eys' fees provision of section 415.1111. Thus, according to Flyer Printing Co., this provision of the arbitration agreements violates public policy. 2 The nursing home defendants argue t hat the arbitrator should de cide Hochbaum's public policy concer ns. But in Shotts, the supreme court held that "it is for the court, not the arbitrator, to determine whether an arbitrat ion agreement 'is unenforceable on publi c policy grounds,' " 86 So. 3d at 459 (qu oting Global Travel

2 We note that the First District i n Brasington v. EMC Corp., 855 So. 2d 1212 (Fla. 1st DCA 2003), questi oned this court's opinion in Fl yer Printing Co. The Brasington court stated that the Flyer Printing Co. decision wa s based on a federal decision that was no longer in force because the federal court vacated the decision on a joint motion for dismissal, ref erring to Perez v . Globe Airport Security Services, Inc., 253 F.3d 1280 (11th Cir. 2001), vacat ed by 294 F.3d 1275 (11th Cir. 2002). 855 So. 2d at 1216. However, this court in Her nandez v. Colonial Grocers, In c., 124 So. 3d 408, 410 (Fla. 2d DCA 2013), rejected the argument that the fate of the Perez decision affected the holding of Flyer Printing Co. The Hernandez court clarifie d that the Flyer Printing Co. decision was based on the ra tionale set forth in Paladino v . Avnet Computer Technologies, Inc., 134 F.3d 1054 (11th Cir. 1998) , that an arb itration agreement that defeats a statute's remedial pur pose is not enforceable. 124 S o. 3d at 410. The Hernandez court held that the Flye r Printing Co. decision "is s till the law of the Second District." Id.- 7 - Mktg., Inc. v. Shea, 908 So. 2d 392, 398 (Fla. 2005)), thus abr ogating this court's decisions to the contrary in Bl and, 927 So. 2d 252, and Rollins , Inc. v. Lighthouse Bay Holdings, Ltd., 898 So. 2d 86 (Fla. 2d DCA 2005). We next consider whether the offe nsive provision may be sever ed from the agreements. Hochbaum argues t hat the provision cannot be s evered from the agreements in order to preserve the enforceability of the agree ments because the agreements do not contain severabi lity clauses and because seve rance of the offending provision would require the cour t to rewrite the parties' contr acts. Case law suggests that in order f or an offending provision to be severed from an agreement, the agreement shouldcontain a severability clause. See LTCSPSt. Petersburg, LLC v. Robins on, 96 So. 3d 986, 988 (Fla. 2d DC A 2012) (holding that offending limitation-of-liability provision could be severed fr om arbitration agreement because agreement contained "a ver y broad severability clause") ; Presidential Leasing, Inc. v. Krout, 896 So . 2d 938, 942 (Fla. 5th DCA 2005) (holding that provision in arbitration agreement violated pu blic policy and could not be s evered from agreement because severance argument had not been made below and the agre ement did not contain a severability clause). However, recent supreme court ca ses indicate that the existen ce of a severability clause is not dispositive of the issue. In Gessa, the arbitration agreement contained limitations of remedies that violated public policy. The agreement had no severability clause, but the court nonetheless analyzed whether the offensive provisions could be severed from the agreem ent. 86 So. 3d at 490. The co urt recognized that it had established a general standa rd for determining whether a contractual provision is sev erable from the whole, and that- 8 - standard provides in part: "[A] bila teral contract is severable where the illegal por tion of the contract does not go to its essence, and where, with the illegal portion e liminated, there still remains of the contract v alid legal promises on one side which are wholly s upported by valid legal promises on the other." Gessa, 86 So. 3d at 490 (quotin g Shotts, 86 So. 3d at 475). 3 The Gessa court applied

that standard and concluded that " the limitation of liability p rovisions . . . , w hich place a $250,000 cap on noneconomic damages and waive punitive damages, are not severable from the remainder o f the agreement" because they "co nstitute the financial heart of the agreement." 86 So. 3d at 490. In Shotts, 86 So. 3d at 459, the arbitration agreement contai ned two provisions that violated public policy and a severability provision . But the Shotts court held that "the limitations of rem edies provision in the present case that calls for the imposition of [specific arbitrati on] rules is not severable fro m the remainder of the agreement. Although the arbitrati on agreement in this case con tains a severability clause, the [offending] provision goes to the very essence of t he agreement." Id. at 478. It is clear from both Shotts and Gessa that the existence of a severability clause is not determinative of w hether an offending provision m ay be severed from the agreement and that the "controlli ng issue is whether an offendi ng clause or clauses go to 'the very essence of the agreem ent.' " Estate of Yetta Novo sett v. ARC Villages II, LLC, 189 So. 3d 895, 896 (Fla. 5th DCA 2016) (applying Shotts a nd Gessa and holding that limitation-of- liability provision capping non-economic dam ages and precluding

3 The Shotts decision quoted and adopted the rationale in Local N o. 234 v. Henley & Beckwith, Inc., 66 So . 2d 818 (Fla. 1953), which consi dered whether an offensive provision could be se vered without any indication tha t the agreement at issue contained a severability clause.- 9 - punitive damages violated public policy and could not be severe d, despite the existence of a severability clause, becaus e the offending pr ovision went to the essence of the agreement); see also Place at Ver o Beach, Inc. v. Hanson, 953 S o. 2d 773, 775 (Fla. 4th DCA 2007) (refusing to sever offending provision regarding which arbitration rules should apply, even though agreem ent contained severability clau se, because the agreement was built around offendi ng provision and to sever out offending provision would require court to rewrite terms of the agreement); Lacey v . Healthcare & Ret. Corp. of Am., 918 So. 2d 333, 335 (F la. 4th DCA 2005) (refusing to sever an offending provision from arbitration claus e because the "agreement contai n[ed] no severance clause" and the offending provis ion went to the essence of the contract). Rather, the

court must determine whether the offending provision goes to th e very essence of the agreement. Here, the offending provision deals only with attorneys' fees . The provision does not require the ar bitration to be conducted in a ccordance with certain rules, and it does not limit the compensatory or punitive damag es that Hochbaum may recover in arbitration. Theref ore, the offending provision is severable from each agreement because it does not go to the essence of the agreemen t. See Estate of Deresh ex rel. Schneider v. FS Tenant Pool III Trust, 95 So. 3d 296 (Fla. 4th DCA 2012) (holding that provision limiting punitive damages, in violation of public policy, could be severed because it did not go to the heart of the arbitration a greement and because the arbitration panel could award o ther damages without limitation)

. 4 It is clear from the

4 The arbitration agreement at issue in Estate of Deresh containe d a severability clause, but as ex plained above, this fact is not d ispositive of the issue. Even though the arbitration agree ment contained such a clause, the court in Estate of- 10 - agreements in this case that the parties agreed to bind themsel ves to arbitration for any disputes arising out of Donald Hochbaum's residency at the nurs ing home. The attorneys' fees provision does n ot go to the heart of the contr acts, and severance of the attorneys' fees provision would not require a drastic rewriting of the agreements and would preserve the intent of t he parties to adjudicate their di sputes in arbitration. See

id. Because the offending provision is severable from the arbitra tion agreements, we affirm the order c ompelling arbitration but rema nd with instructions to strike the attorneys' fees p rovision from the agreements. Affirmed; remanded.

CASANUEVA and KELLY, JJ., Concur.

Deresh went on to consider whet her the offending provision went to the heart of the agreement. 95 So. 3d at 301.