Jaylene, Inc. v. Moots, — So.2d —-, 2008 WL 4181140 (Fla. 2d DCA Sep 12, 2008)
It’s not uncommon for intermediate-level appellate courts to disagree with each each other, that’s why we have supreme courts. But here’s something you don’t see every day: the 2d DCA disagreeing with itself by ruling two different ways on the same issue within a single 12-month period.
In January 2008 the 2d DCA reversed a trial judge’s order in In re Estate of McKibbin [click here] holding that a decedent’s estate was NOT bound by an arbitration agreement signed prior to her death by her attorney-in-fact because the power of attorney did not specifically grant the attorney-in-fact authority to enter into an arbitration agreement. Fast forward to the current linked-to opinion: the 2d DCA reversed a trial judge’s order by basically ignoring its own prior opinion (trial courts in the 2d Circuit must love this). This time around the 2d DCA held that a decedent’s estate IS bound by an arbitration agreement signed prior to her death by her attorney-in-fact, in the absence of specif arbitration authority, based on general language contained in the decedent’s power of attorney. Here’s how the 2d DCA explained its current ruling:
. . . In the POA, the principal gave the attorney-in-fact “full power and authority to act on my behalf.” This full power and authority extended to include the authority “to manage and conduct all of my affairs and to exercise all of my legal rights and powers.” The POA provided further that it was to “be construed broadly as a General Power of Attorney.” The POA unequivocally expresses the principal’s intent to make a comprehensive grant of authority to the attorney-in-fact. We conclude that the grant of authority in the POA was broad enough to authorize the attorney-in-fact to consent to arbitrate claims arising out of the Agreement. See Bryant, 937 So.2d at 269.
Ms. Moots correctly points out that the power of attorney under review in the Bryant case specifically authorized the attorney-in-fact to agree to arbitration. Id. at 268. Here, the power to consent to arbitrate the principal’s claims was not one of the powers specifically listed in the extensive list of powers explicitly granted. Nevertheless, the POA also provided that “[t]he listing of specific powers is not intended to limit or restrict the general powers granted in this Power of Attorney in any manner.” (Emphasis added.) In light of this provision, Ms. Moots’ argument that the absence of an express grant of authority to arbitrate in the POA compels a restrictive interpretation precluding the authority to consent to arbitration is unpersuasive.
When the 2d DCA was reminded of it’s own prior opinion, the court brushed it aside as follows:
In support of affirmance, Ms. Moots relies on this court’s decision in McKibbin v. Alterra Health Care Corp. (In re Estate of McKibbin), 977 So.2d 612 (Fla. 2d DCA 2008). In McKibbin, the resident at an assisted living facility did not sign the residency agreement that included an arbitration agreement. Id. at 613. Instead, the resident’s son signed on his mother’s behalf under a durable power of attorney from the resident. Id. The McKibbin court noted the limitations of the power of attorney under review in that case as follows:
Nothing in that power of attorney, however, gave Ms. McKibbin’s son the legal authority to enter into an arbitration agreement on behalf of his mother. See Kotsch v. Kotsch, 608 So.2d 879, 880 (Fla. 2d DCA 1992) (holding that powers of attorney are strictly construed to grant only the powers specified). Furthermore, there was no other basis upon which to bind Ms. McKibbin to the arbitration agreement. Hence, the Estate was not bound to arbitrate….
Id. For this reason, the McKibbin court held that the circuit court erred in granting Alterra’s motion to compel arbitration. Id.
However, McKibbin does not compel a different result here. The McKibbin case is controlling only to the extent that it is possible to determine from the court’s opinion that the power of attorney at issue in that case was similar to the POA held by Ms. Moots. See Shaw v. Jain, 914 So.2d 458, 461 (Fla. 1st DCA 2005). But the opinion in McKibbin does not set forth the language of the power of attorney under review in that case. Id. Thus McKibbin is not controlling here where the POA unambiguously makes a broad, general grant of authority to the attorney-in-fact.