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

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

THOMAS R. DAVIS, JR., as Personal ) Representative of the Estate of Cathleen ) Sandy, Deceased, ) ) Appellant, ) ) v. ) Case No. 2D14-2079 ) HEARTHSTONE SENIOR COMMUNITIES, ) INC.; BRIGID HEALTH MANAGEMENT, ) LLC n/k/a BRIGID HEALTH SERVICES, ) LLC; AIRAMID FLORIDA, LLC; AIRAMID ) HEALTH CONSULTING, LLC; ) SUN COAST NURSING CENTERS, INC.; ) DEBRA HOWE; and ELLIS J. WILLIAMS ) (as to LAKELAND HILLS CENTER), ) ) Appellees. ) ) Opinion filed January 23, 2015. Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Polk County; Ellen S. Masters, Judge. Isaac R. Ruiz-Carus, Kathleen Clark Knight, and Megan L. Gisclar of Wilkes & McHugh, P.A., Tampa, for Appellant. James D. Moriarty of Spector Gadon & Rosen, LLP, St. Peter sburg, for Appellees.- 2 - DAVIS, Chief Judge. Thomas R. Davis, as personal r epresentative of the Estate of Cathleen Sandy, challenges the trial court's order granting the motion t o compel arbitration filed by Hearthstone Senior Communities, Inc., and its related entiti es (the nursing home). Because the record does not include sufficient facts to support the order, we must

reverse. Upon Ms. Sandy's entering Lakeland Hills Center, she signed s everal documents as part of the admissions process, including one that was alleged to be an arbitration agreement. While s ubsequently residing at the nurs ing home, she suffered certain injuries and eventually died. Mr. Davis, acting on beh alf of the Estate, filed an action against the nursing home a lleging violations of Ms. Sand y's rights as provided for in chapter 400, Florida Statutes. The nursing home then filed a motion to compel arbitration pursuant to the ar bitration agreement signed during the admissions process. During discovery, the Estate requested that the nursing home provide a complete copy of the set of documents signed by Ms. Sandy upon her admission. But the documents provided included only the signature page of what was alleged to be the arbitration agreement. Witnesses testified that the original a rbitration document consisted of seven pages but that it was the practice of the nu rsing home to retain in its file only the signature page of the arbitration agreement and t o provide the first six pages to the resident. Based on the absence of the original si x pages, the Estate argued that the nursing home had failed to prove that there was a binding, valid, and enforceable arbitration agreement.- 3 - At the hearing, the signature page was admitted into evidence and contained the following language, which appears to be a continu ation of a statement beginning on the previous, unadmitted page: from fully reviewing the arbitration agreement and the informational video, that I have been provided an opportunity to seek the advice of counsel prior to signing this agreement and have no questions about the information contained in this arbitration agreement or in the informational video and have agreed to arbitration freely and voluntarily. Based on this language, the nursing home argued below, and argu es now on appeal, that by signing the agreement Ms. Sandy clearly agreed to arbit ration. The nursing home presented the testimony of a former employee who supervised the admissions process. She testified that Ms. Sand y signed the last page of the arbitration agreement and that it was the nursing home's practice to retain only the signature page. However, when counsel for the nursing home presented her with a copy of the first six pages of the arbitration agreement purpor tedly used by the nursing home, she was unable to verify the terms or to assure the court that this agreement was the agreement that was in standard use at the nursing home at t he time of Ms. Sandy's admission. Because that witness could not verify the document, the trial court sustained the Estate's objection to the admission of the six pa ges containing the terms of the arbitration agreement. The nursing home did not call ot her witnesses and did not further attempt to admit into evidence the first six pages of t he agreement. The trial court acknowledged it s frustration at what it recog nized was missing from the evidence at the close of the hearing by statin g, "I don't know why defense counsel didn't just bring somebody to say[,] 'These wer e [the six pages] we were using that would have been attached [to page seven] on thi s particular date.' But- 4 - Defendant didn't do that, and that's causing a little frustrati on for me this morning." The

trial court concluded that Ms. S andy did sign the agreement and that the complete arbitration agreement does exist but that the "essential terms have not been introduced into evidence." Stating that it was satisfied, however, that t he nursing home could show the complete terms of the arbitration agreement, the trial cour t granted the motion to compel arbitration. The Estate suggested below that it was prejudiced by this rul ing because there may be objectionable terms of the agreement that it will be precluded from litigating due to the failure of the nursing home to present th e full agreement at the hearing. In an attempt to provide the Estate relief from this potential prejudice, the trial court suggested that if the nursing home could subsequently pro vide a copy of the first six pages of the agreement in use at the time Ms. Sandy signed the agreement, the trial court would entertain a motion for reconsideration filed by the Estate seeking review of any particular terms of the agreement. No such motion was file d, and the Estate now appeals the order granting the motion to compel. To enforce the arbitration agreement, the nursing home had to show (1) that there is a valid written agreement to arbitrate, (2) that an arbitrable issue exists, and (3) that the right to arbitration has not been waived. See Gre enbrook NH, LLC v. Estate of Sayre, 150 So. 3d 878, 878 (Fla. 2d DCA 2014). The issue ra ised by this appeal is related to whether the nursing home met its burden to show the first requirement—the existence of a valid written agreement. We conclude that they did not meet this burden

based on the evidence introduced on the record. As described i n Greenbrook, "[t]here can be no quarrel that a contract cannot stand if it is missing the essential terms of an- 5 - agreement." Id. (internal quotation marks omitted). In Malone & Hyde, Inc. v. RTC Transportation, Inc., 515 So. 2d 365, 366 (Fla. 4th DCA 1987), the court defined the essential terms of an arbitration agreement to include "the for m and procedure for arbitration, the number of arbitrators, how the arbitrators wer e to be selected, or . . . the issues to be decided by arbitration." In Greenbrook, we opined that "[t]he terms must be definite enough so that the parties have some idea as to wha t matters are to be arbitrated and provide some procedure by which arbitration is t o be effected." 150 So.

3d at 878. Our record does not include any of the terms of the alleged a rbitration agreement. It therefore fails to indicate whether the arbitrat ion is binding or nonbinding, how many arbitrators are to be used, how the arbitrator will be selected, or what issues are to be included. Although these details may be included in the missing six pages and may become available as part of the record on remand, as of the time the trial court granted the motion to compel arbitration, the record was devoid of these details, and thus the nursing home failed to meet the first requirement to e nforce the agreement. See id. Based on the evidence of record, there is no way the t rial court could determine the intent of the parties at the time they entered the agreemen t. 1 Accordingly, under Greenbrook, the trial court erred in granting the motion to com pel. We therefore reverse the order compelling arbitration and remand for further proceed ings consistent with this opinion.

1 We recognize that there are circumstances under which the trial court may determine from context that certain missing elements in an arbitration agreement do exist. See Fla. R. Civ. P. 1.830(a)(2); see also §§ 682.01- .22, Fla. Stat. However, in this case, the signature page of the agreement contains no term s from which the court could otherwise infer the intent of the parties.- 6 - Reversed and remanded.

VILLANTI and BLACK, JJ., Concur.