ROBERT BATES v. CITY OF CHATTANOOGA

No. 706 August 6, 2025 399 IN THE COURT OF APPEALS OF THE STATE OF OREGON Antonio CORNELIO, as Personal Representative of the Estate of Vickie Marie Pobanz, Plaintiff-Respondent, v. PREMERE REHAB, LLC, an Oregon limited liability company, dba Infinity Rehab, Defendant-Appellant. Deschutes County Circuit Court 21CV48494; A180698 Michelle A. McIver, Judge. Argued and submitted January 29, 2025. Michael J. Estok argued the cause and filed the briefs for appellant. Also on the briefs was Lindsay Hart, LLP. Christopher J. Kuhlman argued the cause and filed the brief for respondent. Also on the brief was Kuhlman Law, LLC. Before Shorr, Presiding Judge, Powers, Judge, and Pagán, Judge. SHORR, P. J. Affirmed. 400 Cornelio v. Premere Rehab, LLC Cite as 342 Or App 399 (2025) 401 SHORR, P. J. Defendant Premere Rehab, LLC, dba Infinity Rehab appeals from an interlocutory order denying its motion to compel arbitration. ORS 36.730(1)(a). Plaintiff is the personal representative of the estate of Vickie Pobanz (decedent), who died following complications that arose during her residence at Bend Transitional Care (BTC). Defendant is a separate legal entity that provided therapy services to decedent at BTC. Defendant moved to compel arbitration of plaintiff’s wrongful death action against it based on an arbitration agreement that decedent had executed with BTC. The trial court denied that motion. Defendant appeals, raising two assignments of error, arguing that the trial court erred in deciding the issue of arbitrability and in denying arbitration on the merits. For the reasons that follow, we affirm. The relevant facts are undisputed. In March 2018, decedent was admitted as a resident at BTC to recover from an ankle fracture. Upon her admission, decedent signed an Admission Agreement and an Arbitration Agreement. There is no dispute that decedent had the mental capacity to sign those agreements. A representative of BTC countersigned the agreements for “the Facility.” Both agreements were between the Facility and the Resident and both had Bend Transitional Care’s name and address printed on the first page. Defendant is not named in either document. The Admission Agreement references a Resident Handbook, which states that the Facility provides various therapy services to its residents. The arbitration agreement provides, in relevant part: “The Resident and/or Legal Representative and/or Resident Representative, collectively known as the ‘Resident Group’ and the Facility, on behalf of themselves and all others claiming by, through or under them, agree that they shall submit to binding arbitration all disputes against each other and their respective Legal Representatives, affili- ates, governing bodies and employees, arising out of, or in any way connected with, the care provided at this Facility under the terms of the Admission Agreement. * * * “All such disputes shall be determined by binding arbitra- tion in the county in which the Facility is located, before one arbitrator. The arbitration shall be administered 402 Cornelio v. Premere Rehab, LLC by JAMS (a private arbitration service) pursuant to its Comprehensive Arbitration Rules and Procedures * * *.” As relevant to this appeal, JAMS Rule 11(b) (the delega- tion provision) delegates initial issues of arbitrability to the arbitrator: “Jurisdictional and arbitrability disputes, including dis- putes over the formation, existence, validity, interpreta- tion or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.” The JAMS Rules do not appear to have been attached to the Arbitration Agreement or provided to decedent. While at BTC, decedent developed wounds on her hips, which became infected and led to her death in August 2019. In 2020, plaintiff filed a wrongful death and survival action against BTC and other affiliated entities and individ- uals allegedly involved in the operation, management, and/ or ownership of BTC. The defendants in the first lawsuit filed a motion to compel arbitration. The court granted the motion, and the parties accordingly submitted to arbitration. Plaintiff then filed the complaint commencing this case against defendant, who was not a party in the first lawsuit, alleging that defendant improperly sized decedent for a wheelchair, which led to her hip wounds. Defendant provides therapy and rehab services a

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS TRANSPORTATION CONCEPTS, INC. § and ELOY CANALES, No. 08-24-00036-CV § Appellants, Appeal from the § v. 131st District Court § of Bexar County, Texas BRIAN RAMIREZ, § Appellee. (TC# 2021CI04603) § JUDGMENT The Court has considered this cause on the record and concludes there was error in the judgment. We therefore reverse and render judgment in favor of Transportation Concepts Inc., on the theory of direct liability alleged against it. We reverse and remand for new trial on Brian Ramirez’s claim against Eloy Canales. We further order that Appellants recover from Appellee all costs of this appeal, for which let execution issue. This decision shall be certified below for observance. IT IS SO ORDERED this 24th day of June 2025. GINA M. PALAFOX, Justice Before Salas Mendoza, C.J., Palafox, J., and Rodriguez, C.J. (Ret) Rodriguez, C.J. (Ret.) (Sitting by Assignment)

Third District Court of Appeal State of Florida Opinion filed August 6, 2025. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D24-0971 Lower Tribunal No. 21-7788-CA-01 ________________ Ramon International Insurance Brokers, Inc., etc., and Iris Arden, Appellants, vs. Chaucer Syndicates Limited, etc., and Anova Marine Insurance Services, LLC, Appellees. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Lisa S. Walsh, Judge. Fox Rothschild LLP, and Joseph A. DeMaria and Victor Sanabria, for appellants. Colodny Fass, and Maria Elena Abate and Fernando J. Valle (Sunrise), for appellees. Before FERNANDEZ, MILLER, and GOODEN, JJ. PER CURIAM.  Appellants Ramon International Insurance Brokers, Inc. and Iris Arden appeal the trial court’s order on dueling motions to amend for punitive damages. The trial court denied Ramon International’s request, but granted Appellees Chaucer Syndicates Limited’s and Anova Marine Insurance Services, LLC’s request. We affirm the denial of Ramon International’s motion without further discussion. But we reverse the grant of Chaucer Syndicates’ and Anova Marine Insurance’s motion. In their complaint, Anova Marine Insurance and Chaucer Syndicates assert numerous causes of action sounding in both tort and contract. The trial court permitted punitive damages to be pled against Arden in Count V for fraud and against Ramon in Count VI for fraud in the inducement. Yet the Appellees seek the same damages as their contract claims—the difference in premiums collected and wrongly retained. For this reason, we reverse the order allowing amendment for punitive damages. See S. Bell Tel. & Tel. Co. v. Hanft, 436 So. 2d 40, 42 (Fla. 1983) (“In general, punitive damages may not be awarded in cases based upon breach of contract. In order for punitive damages to be recoverable in such a case, the breach of contract must be attended by some additional wrongful conduct amounting to an independent tort.”); Ghodrati v. Miami Paneling Corp., 770 So. 2d 181, 182–83 (Fla. 3d DCA 2000) (“Punitive damages are generally not 2 recoverable for a breach of contract unless it is accompanied by a separate and independent tort claim. Plaintiff argues that because her complaint pled tort claims of fraudulent inducement, deceit and negligent misrepresentation this case falls within the exception and she is entitled to punitive damages. A plaintiff, however, may not recover damages for fraud that duplicate damages awarded for breach of contract.”) (citations omitted); see also Peebles v. Puig, 223 So. 3d 1065, 1069 (Fla. 3d DCA 2017) (“Under such circumstances, Florida does not allow a party damaged by a breach of contract to recover the exact same contract damages via a fraud claim.”); Ginsberg v. Lennar Florida Holdings, Inc., 645 So. 2d 490, 494 (Fla. 3d DCA 1994) (“It is well established that breach of contractual terms may not form the basis for a claim in tort. Where damages sought in tort are the same as those for breach of contract a plaintiff may not circumvent the contractual relationship by bringing an action in tort.”). Reversed, in part; affirmed, in part. 3 Third District Court of Appeal State of Florida Opinion filed August 6, 2025. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D24-0971 Lower Tribunal No. 21-7788-CA-01 ________________ Ramon International Insurance Brokers, Inc., etc., and Iris Arden, Appellants, vs. Chaucer Syndicates Limited, etc., Anova Marine Insurance Services, LLC, Appellees. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Lisa S. Walsh, Judge. Fox Rothschild LLP, and Joseph A. DeMaria and Victor Sanabria, for appellants. Colodny Fass, and Maria Elena Abate and Fernando J. Valle (Sunrise), for appellees. Before FERNANDEZ, MILLER, and GOODEN, JJ. PER CURIAM.  Appellants Ramon International Insurance Brokers, Inc. and Iris Arden appeal the trial court’s order on dueling motions to amend for punitive damages. The trial court denied Ramon International’s request, but granted Appellees Chaucer Syndicates