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Author Topic: F.S.A. 682, the Florida Arbitration Code Annotated  (Read 11181 times)
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« on: December 12, 2006, 07:19:52 PM »

Starting with 682.13: Vacating an Arbitration Award


>>682.13. Vacating an award (1) Upon application of a party, the court shall vacate an award when: (a) The award was procured by corruption, fraud or other undue means. (b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party. (c) The arbitrators or the umpire in the course of her or his jurisdiction exceeded their powers. (d) The arbitrators or the umpire in the course of her or his jurisdiction refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party. (e) There was no agreement or provision for arbitration subject to this law, unless the matter was determined in proceedings under s. 682.03 and unless the party participated in the arbitration hearing without raising the objection. But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award. (2) An application under this section shall be made within 90 days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within 90 days after such grounds are known or should have been known. (3) In vacating the award on grounds other than those stated in paragraph (1)(e), the court may order a rehearing before new arbitrators chosen as provided in the agreement or provision for arbitration or by the court in accordance with s. 682.04, or, if the award is vacated on grounds set forth in paragraphs (1)(c) and (d), the
court may order a rehearing before the arbitrators or umpire who made the award or their successors appointed in accordance with s. 682.04. The time within which the agreement or provision for arbitration requires the award to be made is applicable to the rehearing and commences from the date of the order therefor. (4) If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award. 1. In general Confirmation of arbitration award was warranted, where party challenging the award failed to timely challenge the award or present a viable issue to trial court that had not been submitted to arbitration. Hinshaw v. Wachovia Bank, N.A., App. 5 Dist., 2006 WL 2190728 (2006). Alternative Dispute Resolution Key Number graphic 354 Party's ability to contest an arbitration award is regulated by statute and court rule. Friendly Homes of the South Inc. v. Fontice, App. 2 Dist., 2006 WL 1879000 (2006). Alternative Dispute Resolution Key Number graphic 361 Unless one of the statutory grounds for vacating an arbitration award has been proved, an arbitration award may not be vacated. Della Penna v. Zabawa, App. 5 Dist., 931 So.2d 155 (2006), rehearing denied. Alternative Dispute Resolution Key Number graphic 362(2) A party desiring changes to an arbitration award or clarification is required to seek timely modification or clarification from either the arbitrator or the court; otherwise, the award becomes ripe for confirmation. Coral-Tech Associates, Inc. v. Plumbing Contractors, Inc., App. 4 Dist., 916 So.2d 958 (2005), rehearing denied. Arbitration Key Number graphic 73.9 Unsuccessful parties in arbitration were not precluded from attacking the entire award as being result of a void proceeding by their failure to timely move to vacate award where award was result of proceeding conducted without them before arbitrator unilaterally chosen by other party after that party unilaterally dismissed arbitrator chosen by agreement. Austin v. Stovall, App. 3 Dist., 475 So.2d 1014 (1985). Arbitration Key Number graphic 82(3) Arbitration award providing for sale of all joint venture assets and conferring upon defendant a right of first refusal for ten days on any bona fide written offer for any person involved could not be vacated
without first remanding matter for a rehearing before arbitration panel. Ripple v. Packard, App. 3 Dist., 471 So.2d 1293 (1985). Arbitration Key Number graphic 77(1) As to controversies submitted in substantial compliance with former statute (see, now, § 682.01 et seq.), award of arbitrators had effect of a judgment and could not be impeached, except in an appropriate proceeding on sufficient grounds. Johnson v. Wells, 72 Fla. 290, 73 So. 188 (1916). Arbitration Key Number graphic 76(1) 2. Due process Language in arbitration clause in franchise agreement between city and electrical utility company providing that, if parties could not agree on arbitrator, court would appoint one did not violate utility company's due process rights, despite company's contention that arbitrator's lack of familiarity with electric utility asset valuation would result in under valuation of its assets, where once appraisal was made parties would be afforded opportunity to object or critique appraisal reports. Florida Power Corp. v. City of Casselberry, App. 5 Dist., 793 So.2d 1174 (2001). Constitutional Law Key Number graphic 306(3) Employee's complaint to set aside binding arbitration award made pursuant to collective bargaining agreement must allege that employee has been deprived of procedural due process in the arbitration proceeding through union's failure to fulfill its duty to safeguard employee's interest. Harper v. Continental Can Co., Inc., App. 5 Dist., 411 So.2d 1002 (1982). Labor And Employment Key Number graphic 1612 Where collective bargaining agreement between airline and union, pursuant to federal law, created system board of adjustment for arbitration of disputes arising out of contract, with decisions of board in all cases properly referable to it to be final and binding, neither federal nor state courts would be authorized in retrying merits of controversy submitted to board which has made an award thereon, but agreement to arbitrate and be bound by the award did not preclude a review of procedural due process and jurisdictional limitations. National Airlines, Inc. v. Metcalf, App. 3 Dist., 114 So.2d 229 (1959). Labor And Employment Key Number graphic 1625 3. Powers of court The District Court of Appeal is not empowered to set aside arbitration awards for mere errors of judgment as to law or facts, or because of equitable principles. Dasso v. Fernandez, App. 3 Dist., 831 So.2d 714 (2002), rehearing denied, review denied 845 So.2d 889. Arbitration Key Number graphic 63.1; Arbitration Key Number graphic 63.2; Arbitration Key Number graphic 76(1)
Grounds enumerated in Florida Arbitration Code are the sole grounds upon which arbitration award may be challenged. Verzura Const., Inc. v. Surfside Ocean, Inc., App. 3 Dist., 708 So.2d 994 (1998), rehearing denied. Arbitration Key Number graphic 76(2) Circuit court erred in entering order vacating arbitration award, which exceeded panel's authority, without directing rehearing. Fridman v. Citicorp Real Estate, Inc., App. 2 Dist., 596 So.2d 1128 (1992). Arbitration Key Number graphic 77(7) Court hearing chancery action to set aside award entered by arbitrator appointed pursuant to uninsured motorist provision of automobile policy providing for settlement of disputes by arbitration had no authority to hear testimony of witnesses who had testified before arbitrator. Bohlmann v. Allstate Ins. Co., App. 2 Dist., 171 So.2d 23 (1965). Insurance Key Number graphic 3331(6) 4. Discretion of court Refusal to postpone arbitration hearing for ten days at the request of one party's third attorney was not an abuse of discretion following two prior adjournments including one for withdrawal of party's second attorney. Flavio Development Corp. v. Laguna East Club Condominium Ass'n, Inc., App. 3 Dist., 756 So.2d 186 (2000). Arbitration Key Number graphic 33 Absent timely motion to vacate, modify or correct arbitrator's award, trial court had no discretion but to confirm award as rendered, irrespective of whether alleged error in failing to offset unemployment compensation benefits against back pay award was characterized as a miscalculation or was founded on notion that arbitrator exceeded his powers by awarding a greater sum than the law allowed. Broward County Paraprofessional Ass'n v. School Bd. of Broward County, App. 4 Dist., 406 So.2d 1252 (1981). Labor And Employment Key Number graphic 1604 Where both school board and teacher filed petitions to vacate and to modify arbitrator's award of back pay due to teacher, trial court had authority and discretion to refer the matter back to arbitrator to determine amount of back pay due. School Bd. of Seminole County v. McGregor, App. 5 Dist., 383 So.2d 694 (1980). Labor And Employment Key Number graphic 1629 Where movant in support of motion to set aside arbitration award presented affidavits which contained hearsay statements, court's denial of continuance to secure live testimony of persons named in affidavits was not abuse of discretion. Carol City Utilities, Inc. v. Gaines Const. Co., App. 3 Dist., 201 So.2d 242 (1967), certiorari denied 210 So.2d 221. Pretrial Procedure Key Number graphic 717.1
5. Grounds for vacating award--In general Courts are generally prohibited from vacating arbitration awards on the basis of errors of law or interpretation. Roberson v. Charles Schwab & Co., Inc., S.D.Fla.2003, 339 F.Supp.2d 1337. Arbitration Key Number graphic 63.1 Party requesting vacatur of an arbitration award must refute every rational basis upon which arbitrator could have relied. Roberson v. Charles Schwab & Co., Inc., S.D.Fla.2003, 339 F.Supp.2d 1337. Arbitration Key Number graphic 77(6) If no rationale is given for arbitration award by arbitrators, and reviewing court cannot find a rational basis for the award, the award may be vacated on three non-statutory bases: (1) the award is arbitrary and capricious, (2) enforcement of the award is contrary to public policy, and (3) the award was entered in manifest disregard of the law. Roberson v. Charles Schwab & Co., Inc., S.D.Fla.2003, 339 F.Supp.2d 1337. Arbitration Key Number graphic 56; Arbitration Key Number graphic 61; Arbitration Key Number graphic 63.1; Arbitration Key Number graphic 76(2) Fact that the relief granted by arbitration award is such that it could not or would not be granted by a court of law or equity is not a ground for vacating or modifying the award. Marr v. Webb, App. 3 Dist., 930 So.2d 734 (2006), rehearing denied. Alternative Dispute Resolution Key Number graphic 362(3) In the absence of one of the five factors set forth in statute that governs vacating arbitration awards, neither the trial court nor the District Court of Appeal has the authority to overturn the arbitration award. Marr v. Webb, App. 3 Dist., 930 So.2d 734 (2006), rehearing denied. Alternative Dispute Resolution Key Number graphic 374(1) In context of provision of Florida Arbitration Code permitting arbitration award to be vacated when there was "evident partiality" by neutral arbitrator, particular circumstance that party relies on to show evident partiality must be something that logically would reasonably tend to tilt decision of arbitrator; only with such circumstance could "evident partiality" possibly be shown. Brandon Jones Sandall Zeide Kohn Chalal & Musso, P.A. v. Beasley & Hauser, P.A., App. 4 Dist., 925 So.2d 1142 (2006). Arbitration Key Number graphic 64.3 Absent one of the statutory grounds for vacating an arbitration award, neither a trial court nor an intermediate appellate court may overturn an arbitration award. Episcopal Diocese of Cent. Florida v. Prudential Securities, Inc., App. 5 Dist., 925 So.2d 1112 (2006). Arbitration Key
Number graphic 76(2) It is error for a circuit court to enter an order vacating an arbitration award without directing a rehearing by the arbitration panel. Loewenstein, Inc. v. Draheim, App. 4 Dist., 914 So.2d 1106 (2005). Arbitration Key Number graphic 77(7) Where the party moving to vacate an arbitration award fails to prove one of the five statutory grounds justifying vacating an award, neither a circuit court nor a district court of appeal has the authority to overturn the award. LeNeve v. Via South Florida, L.L.C., App. 4 Dist., 908 So.2d 530 (2005), rehearing denied. Arbitration Key Number graphic 76(2) To vacate an arbitration award, a party must establish one of the five statutory grounds justifying vacating an award. LeNeve v. Via South Florida, L.L.C., App. 4 Dist., 908 So.2d 530 (2005), rehearing denied. Arbitration Key Number graphic 76(2) Award of arbitrators in statutory arbitration proceedings cannot be set aside for mere errors of judgment either as to the law or as to the facts; if the award is within the scope of the submission, and the arbitrators are not guilty of the acts of misconduct set forth in the statute, the award operates as a final and conclusive judgment. Communications Workers of America v. Indian River County School Bd., App. 4 Dist., 888 So.2d 96 (2004), review denied 901 So.2d 873. Arbitration Key Number graphic 63.1; Arbitration Key Number graphic 63.2; Arbitration Key Number graphic 64.2 A court may not set aside an arbitration award except upon those grounds set forth by statute. Davenport v. Dimitrijevic, App. 4 Dist., 857 So.2d 957 (2003). Arbitration Key Number graphic 76(2) Arbitration panel's written award with respect to dispute involving alleged breach of a residential purchase and sale agreement did not require findings of fact, where, prior to panel's appointment, parties did not make written request that findings of fact be included in written award, pursuant to American Arbitration Association (AAA) rules under which parties agreed to proceed. Dasso v. Fernandez, App. 3 Dist., 831 So.2d 714 (2002), rehearing denied, review denied 845 So.2d 889. Arbitration Key Number graphic 52.5 An arbitration award can be vacated only upon statutorily specified grounds and cannot be set aside for mere errors of judgment either as to the law or as to the facts. State Dept. of Ins. v. First Floridian Auto and Home Ins. Co., App. 1 Dist., 803 So.2d 771 (2001), rehearing denied. Arbitration Key Number graphic 63.1; Arbitration Key Number graphic 63.2; Arbitration Key Number graphic 76(2)
Arbitrators' failure to conduct hearing within sixty days of demand for arbitration in rate-making case did not justify vacating the award absent allegations by Insurance Department that no good or sufficient cause was shown for scheduling and conducting the hearing more than sixty days after the demand for arbitration. State Dept. of Ins. v. First Floridian Auto and Home Ins. Co., App. 1 Dist., 803 So.2d 771 (2001), rehearing denied. Arbitration Key Number graphic 32.5 Administrative Code Rule which requires the final hearing no more than sixty days after the filing of the initial demand for arbitration, unless otherwise stipulated by the parties with the consent of the arbitration panel, could not prohibit arbitrators from scheduling hearings in a rate-making case more than sixty days after the demand for arbitration; such a construction would render the rule at odds with statutes which require the Insurance Department's rules to be consistent with the arbitration rules of the American Arbitration Association and which require vacating of the award for failure to postpone the hearing upon sufficient cause being shown, and an Association rule entitled the arbitrators to set the date, time, and place for each hearing. State Dept. of Ins. v. First Floridian Auto and Home Ins. Co., App. 1 Dist., 803 So.2d 771 (2001), rehearing denied. Arbitration Key Number graphic 32.5 Arbitrator's use of stricter standard of proof in determining whether city established good cause to discharge police officer was not ground for vacating arbitration award in favor of officer. City of Tallahassee v. Big Bend Police Benev. Ass'n, App. 1 Dist., 710 So.2d 214 (1998). Arbitration Key Number graphic 61 Five statutory grounds for vacating arbitration award are only basis on which arbitrator's award may be vacated. City of Tallahassee v. Big Bend Police Benev. Ass'n, App. 1 Dist., 710 So.2d 214 (1998). Arbitration Key Number graphic 76(2) Arbitration award may not be set aside by the court except upon the grounds set forth in statute, namely specified, extrinsic acts of misconduct or procedural errors. Boyhan v. Maguire, App. 4 Dist., 693 So.2d 659 (1997). Arbitration Key Number graphic 76(1) Arbitrator's award which stated that "just cause" existed for grievant's demotion but that demotion penalty was "too excessive and severe" was patently ambiguous and, therefore, trial court should have remanded matter to arbitrator for clarification or vacated the award and ordered a rehearing, rather than granting defendant's motion to vacate. Dade County Police Benev. Ass'n v. City of Homestead, App. 3 Dist., 642 So.2d 24 (1994), rehearing denied. Arbitration Key Number graphic 52.5; Arbitration Key Number graphic 77(7) Fact that relief granted by arbitration award was such that it could
not or would not be granted by court of law or equity is not ground for court to vacate or refuse to confirm the award. Applewhite v. Sheen Financial Resources, Inc., App. 4 Dist., 608 So.2d 80 (1992). Arbitration Key Number graphic 29.6 Where city had agreed to submission of issue that it subsequently claimed was beyond scope of arbitration, arbitration award would not be vacated upon that ground. City of Miami v. Fraternal Order of Police, App. 3 Dist., 368 So.2d 56 (1979). Arbitration Key Number graphic 76(5) Where issue of liability of insurer under uninsured motorist provision of liability policy for damage caused by alleged tort-feasor whose name and license tag number insured wrote down on paper which insured lost, which issue was submitted to arbitration at the request of insurer, was a matter properly subject to determination in arbitration and where insurer failed to allege any of the grounds upon which arbitration award in favor of insured could be vacated and was simply attempting to again litigate the merits of the controversy, arbitration award was properly confirmed. Industrial Fire & Cas. Ins. Co. v. Coquemard, App. 3 Dist., 332 So.2d 636 (1976). Insurance Key Number graphic 3323 Where none of grounds listed in this section for vacating arbitration award were set forth in motion by insured to vacate award entered in arbitration proceeding between insured and uninsured motorist insurer, and none of the grounds listed in the motion or in court's order as basis for setting aside award were among those set forth in this section, vacation of award was improper. Dairyland Ins. Co. v. Hudnall, App. 3 Dist., 279 So.2d 905 (1973). Insurance Key Number graphic 3317 Participant in arbitration proceeding pursuant to arbitration code could not challenge sufficiency of proof of claim by means of application to vacate award. Bankers & Shippers Ins. Co. v. Gonzalez, App. 3 Dist., 234 So.2d 693 (1970). Arbitration Key Number graphic 76(3) 6. ---- Partiality of arbitrators, grounds for vacating award Fact that arbitrators appoint each other to panels does not per se manifest "evident partiality or corruption," within meaning of subsec. (1)(b) of this section. Lozano v. Maryland Cas. Co., C.A.11 (Fla.)1988, 850 F.2d 1470, certiorari denied 109 S.Ct. 1136, 489 U.S. 1018, 103 L.Ed.2d 197. Arbitration Key Number graphic 64.3 Third arbitrator selected by those previously appointed by parties to decide insurance dispute did not have to disclose his membership in same limited partnerships as insured's arbitrator, and his failure to do so did not affect validity of award, where partnerships were totally unrelated to dispute. Lozano v. Maryland Cas. Co., C.A.11 (Fla.)1988, 850 F.2d 1470, certiorari denied 109 S.Ct. 1136, 489 U.S. 1018, 103
L.Ed.2d 197. Insurance Key Number graphic 3314 Third arbitrator selected by those previously appointed by parties to decide insurance dispute did not have to disclose his law firm's representation of clients who were adversaries of insurance company, where there is no evidence that arbitrator was even aware that these cases existed or were active at time arbitration took place. Lozano v. Maryland Cas. Co., C.A.11 (Fla.)1988, 850 F.2d 1470, certiorari denied 109 S.Ct. 1136, 489 U.S. 1018, 103 L.Ed.2d 197. Insurance Key Number graphic 3314 In interest of processing expeditiously great volume of business, nationwide insurer is entitled to rely on representations of potential arbitrator without investigating all of its files to determine if candidate is committing fraud, and such statement is equally applicable to facts concerning partiality of neutral third arbitrator which come to attention of different departments within large insurance corporation subsequent to rendition of arbitration award. Middlesex Mut. Ins. Co. v. Levine, C.A.11 (Fla.)1982, 675 F.2d 1197. Insurance Key Number graphic 3296 Where arbitrator was selected because he withheld information which he had affirmative duty to disclose and where information creating appearance of partiality arose from dealings between arbitrator and parties outside ordinary course of business and in view of fact that Congress placed arbitrators under heavy obligation to act out of strict morality and fairness, insurance companies were not estopped, nor did they waive their right, to assert bias on part of third arbitrator despite contention that, because of information in insurance company files, insurers knew or should have know of partiality prior to arbitration and failed to exercise diligence in investigating his identity and background. Middlesex Mut. Ins. Co. v. Levine, C.A.11 (Fla.)1982, 675 F.2d 1197. Insurance Key Number graphic 3320 In view of fact that arbitrator when he took oath was aware that insurance company owned by his family had been entangled in dispute with two of the parties to arbitration and that arbitrator was then under investigation by state bar concerning alleged trust account violation involving such insurers, and where arbitrator nonetheless failed to disclose his adversary relationship, there was violation of duty to reveal potential bias, and arbitration award was properly vacated. Middlesex Mut. Ins. Co. v. Levine, C.A.11 (Fla.)1982, 675 F.2d 1197. Arbitration Key Number graphic 64.3 Evidence in action by union to enforce arbitration award, including lack of credible evidence indicating that compensation paid to arbitrator by union in any way warranted or constituted preferential treatment or treatment by reason of which bias or prejudice ensued either for or against either party, was insufficient to establish bias,
partiality or any other statutory ground requiring vacation of award which provided that collective bargaining agreement covered and included employees classified as checkers, cashiers and beach boys. Hotel, Motel, Restaurant and Hi-Rise Employees and Bartenders Union, Local 355, AFL-CIO v. Fontainebleau Hotel Corp., S.D.Fla.1976, 423 F.Supp. 83. Labor And Employment Key Number graphic 1612 In view of arbitrator's decision itself as well as evidence presented at trial, court was required to find that there was evident partiality and possible misconduct prejudicing rights of one party to arbitration, placing in question neutrality of arbitrator and requiring that arbitrator's decision be vacated in accordance with this section. Matter of Pacre Corp., Bkrtcy.S.D.Fla.1982, 21 B.R. 759. Arbitration Key Number graphic 64.3 Under provision of Florida Arbitration Code permitting arbitration award to be vacated when there was "evident partiality" by neutral arbitrator, complaining party to arbitration must prove evident partiality prejudicing rights of party; partiality of neutral arbitrator must be obvious and plan and must be shown to have unfairly affected rights of complaining party. Brandon Jones Sandall Zeide Kohn Chalal & Musso, P.A. v. Beasley & Hauser, P.A., App. 4 Dist., 925 So.2d 1142 (2006). Arbitration Key Number graphic 64.3 Arbitration Code requires an arbitrator to avoid even the appearance of partiality. Deen v. Oster, App. 4 Dist., 814 So.2d 1065 (2001), rehearing denied, review denied 829 So.2d 917. Arbitration Key Number graphic 64.3 Arbitration award must be set aside upon showing of circumstances which would reasonably tend to bias the judgment of an impartial arbitrator. Deen v. Oster, App. 4 Dist., 814 So.2d 1065 (2001), rehearing denied, review denied 829 So.2d 917. Arbitration Key Number graphic 64.3 Lender's allegations of bias on part of arbitrator for having ex parte conversations with borrower were legally insufficient to warrant vacation of arbitration award in favor of borrower, where alleged ex parte conversation occurred after arbitration proceedings were concluded and action to vacate the award had been filed, there were no allegations that arbitrator had ex parte conversations with borrower while matter was pending before her, comments on merits of ruling simply indicated that arbitrator did not believe there was any basis for appeal, and there was no evidence of any prior relationship between arbitrator and borrower. Deen v. Oster, App. 4 Dist., 814 So.2d 1065 (2001), rehearing denied, review denied 829 So.2d 917. Arbitration Key Number graphic 64.3 Arbitration award did not have to be reversed based on "evident
partiality" of arbitrator, as partiality of which party complained was nothing more than reaction of arbitrator to one party's evidence. Boyhan v. Maguire, App. 4 Dist., 693 So.2d 659 (1997). Arbitration Key Number graphic 64.3 Showing of circumstances which would reasonably tend to bias the judgment of impartial arbitrator will suffice for vacation of arbitration award. Boyhan v. Maguire, App. 4 Dist., 693 So.2d 659 (1997). Arbitration Key Number graphic 64.3 Circuit court's order granting county employee new hearing before grievance appeal panel to reargue his entitlement to back pay on grounds that grievance panel was improperly constituted would be reversed, since record was devoid of any proper objection by employee regarding composition of grievance panel or procedures it employed nor did employee demonstrate any prejudice which would justify vacation of panel decision determining his lack of entitlement to back pay. Metropolitan Dade County v. Molloy, App. 3 Dist., 456 So.2d 1280 (1984). Counties Key Number graphic 75(2) In regard to tripartite arbitration, neither fact that arbitrator appointed by a party was an attorney, who shared offices with such party's lawyer, nor fact that such relationship was concealed from opposing party until after the arbitration afforded a basis on which arbitration award could be set aside. Lee v. Marcus, App. 3 Dist., 396 So.2d 208 (1981). Arbitration Key Number graphic 76(3) Arbitrators designated by the parties need not be entirely disinterested or impartial. Lee v. Marcus, App. 3 Dist., 396 So.2d 208 (1981). Arbitration Key Number graphic 27 Where conduct of arbitrator which occurred after initial award was vacated constituted, at the most, acts of pique precipitated by what the arbitrator probably viewed as an unwarranted invasion into his prerogatives, the record did not establish sufficient partiality on the part of the arbitrator to justify setting aside the award. Affiliated Marketing, Inc. v. Dyco Chemicals & Coatings, Inc., App. 2 Dist., 340 So.2d 1240 (1976), certiorari denied 353 So.2d 675. Arbitration Key Number graphic 64.3 Where arbitrator was susceptible to having his judgment biased by his conduct toward and his association with an officer and/or stockholder of one of corporate parties to arbitration during the course of arbitration, award must be set aside. Gaines Const. Co. v. Carol City Utilities, Inc., App. 3 Dist., 164 So.2d 270 (1963). Arbitration Key Number graphic 64.3 7. ---- Exceeding powers, grounds for vacating award
Relief to be accorded through arbitration proceeding need not conform concisely to relief which might be accorded in court of law, but where arbitrator had not even read state court complaint prior to making his decision, and in light of intent of parties, arbitrator in awarding substantial damages to purchasers over and above return of deposit monies and giving purchasers option to close on property and receive credits or elect not to close and receive substantial damages exceeded powers in course of his jurisdiction. Matter of Pacre Corp., Bkrtcy.S.D.Fla.1982, 21 B.R. 759. Arbitration Key Number graphic 29.6 Defamation suit brought by Department of Correction' employee against supervisor was not subject to arbitration under provision in collective bargaining agreement that only Police Benevolent Association could request arbitration. Byars v. Thomas, App. 3 Dist., 2006 WL 2683636 (2006). Labor And Employment Key Number graphic 1549(7) Trial court that vacated arbitration award in dispute between manufacturer and sales representative over sales commissions, on the ground that arbitrator exceeded the powers granted to him, was required to order another arbitration, where parties contractually agreed to arbitrate. Loewenstein, Inc. v. Draheim, App. 4 Dist., 914 So.2d 1106 (2005). Arbitration Key Number graphic 77(7) An arbitrator exceeds her power, so as to support vacating an arbitration award, when she goes beyond the authority granted by the parties or the operative documents and decides an issue not pertinent to the resolution of the issue submitted to arbitration. LeNeve v. Via South Florida, L.L.C., App. 4 Dist., 908 So.2d 530 (2005), rehearing denied. Arbitration Key Number graphic 57.1 Arbitrator exceeds his or her power when he or she goes beyond the authority granted by the parties or the operative documents and decides an issue not pertinent to the resolution of the issue submitted to arbitration. Communications Workers of America v. Indian River County School Bd., App. 4 Dist., 888 So.2d 96 (2004), review denied 901 So.2d 873. Arbitration Key Number graphic 57.1 Arbitrator exceeded his authority by not only finding that joint venture existed, but that engineering contractor was entitled to damages to the extent of his initial contribution into the venture, where both arbitration agreement and court's mandate indicated that the arbitrator was to determine whether a partnership existed and, if so, order an accounting. Soler v. Secondary Holdings, Inc., App. 3 Dist., 832 So.2d 893 (2002). Arbitration Key Number graphic 29.2 An arbitrator exceeds his or her power when he or she goes beyond the authority granted by the parties and decides an issue not pertinent to the resolution of the matter submitted to arbitration. Soler v. Secondary Holdings, Inc., App. 3 Dist., 832 So.2d 893 (2002).
Arbitration Key Number graphic 29.1; Arbitration Key Number graphic 57.1 An arbitrator exceeds his or her power under statute authorizing vacation of award when he or she goes beyond the authority granted by the parties or the operative documents and decides an issue not pertinent to the resolution of the issue submitted to arbitration. Simmons v. City of Avon Park, App. 2 Dist., 788 So.2d 1076 (2001), rehearing denied. Arbitration Key Number graphic 57.1 Arbitrator exceeds his or her power when he or she goes beyond the authority granted by the parties or the operative documents, and decides an issue not pertinent to the resolution of the issues submitted to arbitration. Chandra v. Bradstreet, App. 5 Dist., 727 So.2d 372 (1999), review denied 741 So.2d 1134. Arbitration Key Number graphic 29.1; Arbitration Key Number graphic 57.1 Arbitrator exceeds his or her power by going beyond authority granted by the parties or by operative documents and deciding issue not pertinent to resolution of issue submitted for arbitration. Applewhite v. Sheen Financial Resources, Inc., App. 4 Dist., 608 So.2d 80 (1992). Arbitration Key Number graphic 57.1 Arbitrator did not overstep authority or grant relief not provided for in employment agreement by enjoining former employees from conducting business with all of employer's clients; noncompetition clause in employment agreements provided that leads and clients remained property of employer permanently regardless of reason for termination or future employment. Applewhite v. Sheen Financial Resources, Inc., App. 4 Dist., 608 So.2d 80 (1992). Arbitration Key Number graphic 57.1 Arbitrator did not exceed his authority in deciding procedural arbitrability of whether police officers' union failed to comply with arbitration agreement when it failed to submit its request for arbitrators until 49 days after notice of intent to arbitrate; city did not respond to union's notice of intent to arbitrate, nor did city contact union about joint request for arbitrators. City of Mount Dora v. Central Florida Police Benev. Ass'n, Inc., App. 5 Dist., 600 So.2d 520 (1992). Labor And Employment Key Number graphic 1595(1) Arbitrators exceeded their power in dispute over agreement to purchase corporate stock when they treated purchaser as full shareholder but cancelled her stock purchase obligation, thereby extinguishing shareholder's agreement which contained arbitration clause. Hymowitz v. Drath, App. 4 Dist., 567 So.2d 540 (1990). Arbitration Key Number graphic 29.6 Where parties arbitrate, arbitrators exceed their powers if their award
rescinds very obligation which is foundation of contract from which they derive their authority. Hymowitz v. Drath, App. 4 Dist., 567 So.2d 540 (1990). Arbitration Key Number graphic 29.6 Subsection (1)(c) of this section pursuant to which arbitration award could be vacated if it was shown that arbitrator exceeded his or her power did not include arbitrator's departure from accepted rule of law, but only his or her exceeding authority granted by parties or operative documents and deciding issue not pertinent to resolution of issues submitted to arbitration. Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327 (1989). Arbitration Key Number graphic 76(5) In absence of showing that arbitrator exceeded his powers, arbitrator's award, entered pursuant to collective bargaining agreement between city and fire fighter's union, was not subject to vacation under this section. City of Miami v. Aparicio, App. 3 Dist., 503 So.2d 966 (1987). Labor And Employment Key Number graphic 1619 Arbitrators, in employment dispute, did not exceed their powers by considering employee's termination claim under § 812.035 where there had been prior judicial determination that employee's civil theft claim was properly subject of arbitration and there was abundant evidence from which fact finder could determine that multiple fraud had occurred, thereby supporting civil theft claim. International Medical Centers, Inc. v. Sabates, App. 3 Dist., 498 So.2d 1292 (1986), review denied 508 So.2d 14. Labor And Employment Key Number graphic 1595(10) Trial court correctly determined that grievance appeal panel exceeded its jurisdiction by reducing county employee's classification, since correctness of employee's reclassification was not necessary subissue to employees' entitlement to back pay which was subject of grievance, and reclassification question was not framed by the pleadings, tried by consent, or otherwise put into issue by employee. Metropolitan Dade County v. Molloy, App. 3 Dist., 456 So.2d 1280 (1984). Counties Key Number graphic 67 Arbitrator did not act outside of his jurisdiction in directing teacher's suspension without pay, notwithstanding fact that arbitration award stated that teacher's grievance was sustained, since arbitrator's conclusion that grievance was sustained could not be equated with finding that charges against teacher had not been sustained, where arbitrator's report indicated that arbitrator believed that teacher's performance was far from satisfactory, but that teacher should not be discharged because school administration had not fully complied with requisite procedures designed to assist a teacher in correcting his shortcomings before he becomes subject to termination. McDonald v. Hardee County School Bd., App. 2 Dist., 448 So.2d 593 (1984), petition for review denied 456 So.2d 1181. Labor And Employment Key Number graphic 1595(Cool
Even if teacher's failure to request county school board to remove all six letters from her personnel file was excusable during grievance procedure, lack of specificity in her demand for arbitration, which merely requested that "disputed materials" be removed, prevented board from having opportunity to object or defend against removal of four additional letters not specifically identified and thus supported circuit court's decision vacating arbitration award in part based on finding that arbitrator exceeded his powers in removing four documents from teacher's personnel file. Watson v. Duval County School Bd., App. 1 Dist., 408 So.2d 1053 (1981). Labor And Employment Key Number graphic 1616 Essence of arbitration is agreement to be bound by factual determination of arbitrator and thus end factual controversy and party cannot relitigate merits of controversy by labelling factual controversy an excess of jurisdiction. Bankers & Shippers Ins. Co. v. Gonzalez, App. 3 Dist., 234 So.2d 693 (1970). Arbitration Key Number graphic 82(1) 8. ---- Undue means, grounds for vacating award For purposes of federal and state statutes providing for setting aside of arbitration award on theory that award was procured by "undue means," "undue means" refers to such matters as ex parte communications or undisclosed relationships between arbitrator and one of contestants and does not cover circumstance where evidence is offered to arbitration panel during its proceedings. Sorren v. Kumble, App. 3 Dist., 578 So.2d 836 (1991). Arbitration Key Number graphic 76(3) 8.5. ---- Surprise, Grounds for vacating award Arbitrator who presided over arbitration proceeding between roofing contractor and corporation did not abuse his discretion by refusing to allow corporation to submit additional evidence after the close of the proceedings to rebut an affidavit as to which it was allegedly surprised by the contents, and thus trial court could not vacate arbitration award on the basis of arbitrator's refusal to consider the additional evidence; both parties had the opportunity to present evidence and call witnesses at the arbitration, and corporation chose not to depose affiant, did not get its own affidavit from him for use in the arbitration, and did not call him to testify. Murton Roofing Corp. v. FF Fund Corp., App. 3 Dist., 930 So.2d 772 (2006). Alternative Dispute Resolution Key Number graphic 326 9. ---- Mistake, grounds for vacating award Arbitration award could not be vacated based on arbitrator's alleged mistake of law. Lozano v. Maryland Cas. Co., C.A.11 (Fla.)1988, 850
F.2d 1470, certiorari denied 109 S.Ct. 1136, 489 U.S. 1018, 103 L.Ed.2d 197. Arbitration Key Number graphic 63.1 Contractor's argument that arbitration panel made an erroneous determination that contractor's lien and amended claim of lien were wrong did not provide a ground for challenging award. Verzura Const., Inc. v. Surfside Ocean, Inc., App. 3 Dist., 708 So.2d 994 (1998), rehearing denied. Arbitration Key Number graphic 63.3 Trial court has no authority to overturn arbitration award except for statutory ground, and awards will not be set aside for mere errors of judgment as to the law. Cochran v. Broward County Police Benev. Ass'n, Inc., App. 4 Dist., 693 So.2d 134 (1997), review denied 699 So.2d 1372. Arbitration Key Number graphic 63.1; Arbitration Key Number graphic 76(2) Trial court has no authority to vacate attorney fees award by arbitrator on ground that award was legally incorrect, as arbitration award cannot be vacated based on error of law. Service Station Aid, Inc. v. Turnberry Associates, App. 3 Dist., 629 So.2d 204 (1993), review granted 639 So.2d 983, approved 651 So.2d 1173. Arbitration Key Number graphic 42 Arbitration award based on arbitrator's erroneous interpretation of statute could not be vacated because error of law was not one of five specific grounds for vacating award. Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327 (1989). Arbitration Key Number graphic 63.1 An arbitration award may not be vacated upon a mistake of fact or law and only upon one of the statutory grounds. McDonald v. Hardee County School Bd., App. 2 Dist., 448 So.2d 593 (1984), petition for review denied 456 So.2d 1181. Arbitration Key Number graphic 63.3; Arbitration Key Number graphic 76(2) Arbitration award in which contract between port authority and corporation for the nonexclusive furnishing of concession services at airport held to be not void was not subject to being vacated on ground that arbitrators committed errors of law and fact. Dade County v. Dobbs Houses, Inc., App. 3 Dist., 283 So.2d 886 (1973). Arbitration Key Number graphic 63.3 An award of arbitration may not be reversed for mistake of law on part of the arbitrators. Newport Motel, Inc. v. Cobin Restaurant, Inc., App. 3 Dist., 281 So.2d 234 (1973). Arbitration Key Number graphic 63.1 Error of law, if any, in awarding recovery in arbitration award of interest upon the amounts due under lease was error of arbitrators and was not subject to reversal on ground of a mistake of law. Newport Motel, Inc. v. Cobin Restaurant, Inc., App. 3 Dist., 281 So.2d 234
(1973). Arbitration Key Number graphic 63.1 Arbitration award in favor of insurer on basis claimant under uninsured motorist coverage was guilty of contributory negligence and assumption of risk was not subject to be vacated on grounds of mistake or errors of fact of law by the arbitrators. Dairyland Ins. Co. v. Hudnall, App. 3 Dist., 279 So.2d 905 (1973). Insurance Key Number graphic 3317 Arbitrators' making of erroneous conclusions of fact was not ground for avoidance of their award, even though they might come to a different conclusion upon reconsidering the same evidence, where award was their deliberate conclusion, reached by their reason and judgment on the facts before them. Johnson v. Wells, 72 Fla. 290, 73 So. 188 (1916). 10. ---- Misconduct, grounds for vacating award Provision of Federal Arbitration Act permitting award to be vacated if arbitrators were guilty of misconduct in refusing to postpone hearing superseded state law; interstate commerce was involved in arbitration of claim under brokerage agreement. Lee v. Dean Witter Reynolds, Inc., App. 2 Dist., 594 So.2d 783 (1992). Commerce Key Number graphic 80.5 Action of arbitrators, in employment dispute, in placing telephone call to demonstrate what was presented during hearing regarding ease with which employer could have obtained required information concerning employee, did not require vacation of arbitration award based on arbitrator misconduct absent showing of prejudice to employer. International Medical Centers, Inc. v. Sabates, App. 3 Dist., 498 So.2d 1292 (1986), review denied 508 So.2d 14. Labor And Employment Key Number graphic 1595(10) 11. ---- Fraud, grounds for vacating award Evidence that plaintiff shareholder may, in fact, have had substance abuse and domestic violence problems was discoverable by exercise of due diligence before or during arbitration hearing, and thus, defendant shareholders were not entitled to relief, based on plaintiff's alleged fraud in offering his perjured testimony at arbitration hearing, from circuit court's final judgment confirming arbitration award of approximately $995,000 in favor of plaintiff for defamation, breach of contract, and breach of fiduciary duty, relating to defendants' statements to corporation's customers and potential customers that plaintiff had substance abuse and domestic violence problems; defendants were aware of plaintiff's denials, they offered only plaintiff's former wife as witness to counter plaintiff's testimony, arbitration decision was based on arbitrators' rejection of former wife's version of the facts, and defendants could have discovered the evidence, offered by plaintiff's former girlfriend after the arbitration proceeding, that plaintiff allegedly had substance abuse
and domestic violence problems. Davenport v. Dimitrijevic, App. 4 Dist., 857 So.2d 957 (2003). Arbitration Key Number graphic 64.1 A claim of fraud in obtaining the arbitration award is not an opportunity to obtain a second bite of the apple to correct a party's deficiencies of proof at an arbitration. Davenport v. Dimitrijevic, App. 4 Dist., 857 So.2d 957 (2003). Arbitration Key Number graphic 64.1 Post-arbitration affidavit of plaintiff shareholder's former girlfriend, stating that plaintiff did in fact have substance abuse and domestic violence problems, was not evidence of sufficient quality to establish that plaintiff perjured himself at arbitration hearing and therefore obtained arbitration award through fraud, as basis for granting defendant shareholders relief from circuit court's final judgment confirming arbitration award of approximately $995,000 in favor of plaintiff for defamation, breach of contract, and breach of fiduciary duty, relating to defendants' statements to corporation's customers and potential customers that plaintiff had substance abuse and domestic violence problems; former girlfriend was simply another witness who disagreed with plaintiff's opinion about his use of alcohol and propensity for spouse abuse, her affidavit related to three incidents that occurred after the arbitration award, and she was not an unbiased source, because of the breakup of her relationship with plaintiff. Davenport v. Dimitrijevic, App. 4 Dist., 857 So.2d 957 (2003). Arbitration Key Number graphic 64.1 Perjury constitutes "fraud" in obtaining an arbitration award, as basis for relief from arbitration award under Federal Arbitration Act (FAA) and Florida arbitration statutes. Davenport v. Dimitrijevic, App. 4 Dist., 857 So.2d 957 (2003). Arbitration Key Number graphic 64.1 The statute allowing an arbitration award to be set aside based on fraud in obtaining it requires a stronger showing of fraud than the civil procedure rule allowing a judgment to be vacated based on fraud in obtaining it. Davenport v. Dimitrijevic, App. 4 Dist., 857 So.2d 957 (2003). Arbitration Key Number graphic 64.1 Fact issue existed as to whether consent to arbitration agreement was induced through oral misrepresentations and as to reliance, precluding summary judgment on petition to vacate arbitration award. Murray v. Ferdie, App. 3 Dist., 431 So.2d 724 (1983). Judgment Key Number graphic 181(19) Where there was no evidence that one party to arbitration may have perpetrated a fraud in the arbitration proceedings, and where it was also acknowledged that, if the explanation offered by that party were true, that party was entitled to the award, it was improper to vacate the award with directions to the arbitrator to seek corroboration of the verity of the explanation offered by the party. Affiliated
Marketing, Inc. v. Dyco Chemicals & Coatings, Inc., App. 2 Dist., 340 So.2d 1240 (1976), certiorari denied 353 So.2d 675. Arbitration Key Number graphic 77(7) Bill to set aside award for fraud of one party in making false entries in copartnership books and submitting them to arbitrators was not demurrable for want of equity. Johnson v. Wells, 72 Fla. 290, 73 So. 188 (1916). Arbitration Key Number graphic 78 12. ---- Refusal to postpone, grounds for vacating award Refusal to postpone an arbitration hearing does not automatically require a decision to vacate the award. Flavio Development Corp. v. Laguna East Club Condominium Ass'n, Inc., App. 3 Dist., 756 So.2d 186 (2000). Arbitration Key Number graphic 33 Where the circumstances clearly show that the arbitrators did not abuse their discretion 1 in refusing to postpone a hearing, denial of a motion to vacate the resulting arbitration award is required. Flavio Development Corp. v. Laguna East Club Condominium Ass'n, Inc., App. 3 Dist., 756 So.2d 186 (2000). Arbitration Key Number graphic 33 Declining party's second request for postponement of arbitration hearing did not warrant vacation of arbitration award, where hearing was scheduled to be heard on expedited basis by parties' agreement. Open Bible Community Church v. Paragon Const. Ultd., Inc., App. 3 Dist., 751 So.2d 188 (2000), review denied 770 So.2d 159. Arbitration Key Number graphic 33 13. ---- Excessive awards, grounds for vacating award Arbitration award of $725,000 in breach of contract action involving lease was well within range of evidence as to lost profits, out-of-pocket expenses, and interest sought on unliquidated claim, and thus, unassailable under this section. Hialeah Park, Inc. v. Ocala Breeders' Sales Co., App. 3 Dist., 528 So.2d 1227 (1988). Arbitration Key Number graphic 62 Arbitration award of $58,000 for investment of individual's money in unsuitable securities and risky investment schemes could not be reversed merely on grounds that it was excessive under substantive law absent showing that upholding arbitrator's award and denying motion to vacate or modify award was improper. Prudential-Bache Sec., Inc. v. Shuman, App. 3 Dist., 483 So.2d 888 (1986). Arbitration Key Number graphic 91 13.5. ---- Rational basis, grounds for vacating award On review of arbitration award to determine whether award had rational
basis, and thus whether non-statutory bases for vacating arbitration award should be considered, question of whether arbitrators correctly determined the issues was not relevant. Roberson v. Charles Schwab & Co., Inc., S.D.Fla.2003, 339 F.Supp.2d 1337. Arbitration Key Number graphic 61 Arbitration award does not lack a rational basis simply because it was founded upon errors of law or interpretation. Roberson v. Charles Schwab & Co., Inc., S.D.Fla.2003, 339 F.Supp.2d 1337. Arbitration Key Number graphic 61 14. ---- Lack of arbitration agreement, grounds for vacating award Arbitrators acted within their authority in making arbitration award concerning division of profits between property owner and contractors from sales of homes, and thus award would not be vacated; contracts empowered arbitrators to resolve all claims or disputes arising out of or related to contract documents, and that contractual authority allowed arbitrators to determine meaning and intent of addendum governing distribution of sales funds, meaning and intent of letter in which contractors stated that they were modifying contract, and amount of costs incurred and chargeable to project. Marr v. Webb, App. 3 Dist., 930 So.2d 734 (2006), rehearing denied. Alternative Dispute Resolution Key Number graphic 314 Under § 682.13 providing, inter alia, that a party may apply to circuit court to vacate an arbitration award when there was no agreement or provision for arbitration, unless matter was determined in proceedings under § 682.03 and unless the party participated in arbitration hearing without raising objection, a party may move to vacate unless court has already ruled on issue or party participated in arbitration and failed to object. Koch v. Waller & Co., Inc., App. 4 Dist., 439 So.2d 1041 (1983). Arbitration Key Number graphic 76(3) 15. Pleadings Where defending partner failed to plead any of statutory grounds provided for in this section for vacation of arbitration award in his affirmative defense or counterclaim, confirmation of award and entry of final judgment for complaining partner was not error. Harris v. Haught, App. 1 Dist., 435 So.2d 926 (1983). Partnership Key Number graphic 312 In action which was essentially a suit by discharged employees to set aside arbitration award upholding their discharge, complaint was fatally deficient in failing to allege that union failed to perform its duty to protect employees' interest. Harper v. Continental Can Co., Inc., App. 5 Dist., 411 So.2d 1002 (1982). Labor And Employment Key Number graphic 1219(Cool
In order to vacate arbitration award some affirmative action by party seeking relief from award must be made within time period provided under this section. Haskell v. Forest Land and Timber Co., App. 1 Dist., 408 So.2d 811 (1982). Arbitration Key Number graphic 77(2) Where purchaser, who was not satisfied with arbitration award made pursuant to binding arbitration agreement, filed action for breach of contract against builder, the trial court should consider purchaser's complaint as application to vacate award of arbitrator and answer and counterclaim of builder as request to confirm award and court should then determine issues in accordance with provisions of arbitration code. Kest v. Nathanson, App. 4 Dist., 184 So.2d 690 (1966). Arbitration Key Number graphic 72.3; Arbitration Key Number graphic 77(3) 16. Limitation of actions Employee's action against union for breach of duty of fair dealing arising from union's handling of grievance which resulted in arbitration award unfavorable to employee was governed by four-year statute of limitations for negligence or intentional torts, and not by statute of limitations for seeking order to vacate arbitration award. Hand v. International Chemical Workers Union, C.A.11 (Fla.)1982, 681 F.2d 1308, rehearing granted 692 F.2d 714, on rehearing 712 F.2d 456, on remand 712 F.2d 1350. Labor And Employment Key Number graphic 1219(4) When a rational basis for challenged arbitration award can be inferred, non-statutory grounds for vacating award are unavailable and the award should be confirmed. Roberson v. Charles Schwab & Co., Inc., S.D.Fla.2003, 339 F.Supp.2d 1337. Arbitration Key Number graphic 61 Applicable limitations period for bringing suit on arbitration decision rendered under Railway Labor Act, § 3, subd. 1(q), 45 U.S.C.A. § 153, subd. 1(q), is six months, rather than 90-day period allowed under Florida arbitration code, West's F.S.A. § 682.01 et seq. Norman v. International Ass'n of Machinists & Aerospace Workers, Dist. 100, S.D.Fla.1985, 622 F.Supp. 1000. Labor And Employment Key Number graphic 1614 Florida 90-day statute of limitations contained in this section governing actions to vacate arbitration awards, and not the Florida four-year statute contained in § 95.11 applicable to suits founded upon tort, applied to former employee's action against former employer for alleged wrongful termination and against union for alleged breach of duty of fair representation, even though union's executive board voted against taking employee's grievance through arbitration and the grievance never reached impartial arbitration. Sanders v. Grand Union Co., M.D.Fla.1982, 541 F.Supp. 621, affirmed 720 F.2d 1247, rehearing
denied 727 F.2d 1116, certiorari denied 105 S.Ct. 292, 469 U.S. 916, 83 L.Ed.2d 227. Labor And Employment Key Number graphic 1219(4); Labor And Employment Key Number graphic 1322 Jurisdiction of arbitrator to enter award in favor of teachers in salary dispute could not be challenged by school board when it failed to comply with ninety-day rule set by statute for contesting award [West's F.S.A. §§ 682.13, 682.14] and thus failed to comply with the very condition on which the right to relief was explicitly conditioned. Burt v. Duval County School Bd., App. 1 Dist., 481 So.2d 55 (1985). Labor And Employment Key Number graphic 1614 Grounds for seeking vacation or modification of an arbitration award limit the applicability of 90-day period prescribed by Florida arbitration code (this chapter) to issues submitted to an arbitration panel. Meade v. Lumbermens Mut. Cas. Co., 423 So.2d 908 (1982). Arbitration Key Number graphic 73.5; Arbitration Key Number graphic 76(2) This section of the arbitration code, which required that application to vacate arbitration award be made within 90 days, was applicable to action which discharged employees filed as third-party beneficiaries of master collective bargaining agreement and which was essentially a suit to set aside arbitration award upholding their discharge. Harper v. Continental Can Co., Inc., App. 5 Dist., 411 So.2d 1002 (1982). Labor And Employment Key Number graphic 1614 Court must confirm arbitration award upon application of any party to award unless, within 90 days after receipt of award, party thereto has filed motion with court to vacate, modify or correct award, except that, where motion to vacate award is based on corruption, fraud, or other undue means, motion may be filed within 90 days after such grounds are known or should have been known to injured party. Travelers Ins. Co. v. Allen, App. 3 Dist., 356 So.2d 1287 (1978), certiorari denied 364 So.2d 893. Arbitration Key Number graphic 72.1; Arbitration Key Number graphic 77(2) Plaintiff's suit for breach of contract within 90 days of arbitration award could not be construed as a motion to vacate the award, where plaintiff filed suit without any mention of the award and first time any reference to arbitration proceeding appeared was when defendant moved for confirmation of the award, at which point more than 90 days had elapsed from entry of the award. Lopez & Roque Tile Co., Inc. v. Clearwater Development Corp., App. 2 Dist., 291 So.2d 126 (1974). Arbitration Key Number graphic 77(3) 17. Notice Failure of arbitrator to determine whether professional football
player's agent received sufficient notice of arbitration proceeding invoked by professional football player precluded confirmation of award to professional football player of a sum equivalent to amount that agent allegedly overcharged; although judgment confirming award appeared to be based on conclusion that arbitrator had found that agent was given sufficient notice of hearing by way of letter, there was no evidence that arbitrator ever considered merits of lack of notice claim and issue of whether agent received sufficient notice of arbitration hearing was one to be resolved in arbitration proceeding itself, not by the court. Allen v. McCall, App. 3 Dist., 521 So.2d 182 (1988). Labor And Employment Key Number graphic 1608 18. Defenses Employers were not barred from raising defenses to enforcement of arbitration award, although employers did not file motions to vacate order within 90 days of delivery of arbitrator's decision in view of fact that employers' affirmative defenses to motion to confirm arbitration award, filed within 90 days after service of arbitrator's decision, were tantamount to a motion to vacate. International Broth. of Elec. Workers, Local Union No. 323 v. Coral Elec. Corp., S.D.Fla.1983, 576 F.Supp. 1128. Labor And Employment Key Number graphic 1614 Where policy limits were not in issue in the arbitration, insurer could allege as defense, in an arbitration confirmation action filed in circuit court, that the arbitration award exceeded applicable policy limits notwithstanding fact that award was not challenged by insurer within 90-day time limit prescribed by Florida arbitration code; disapproving Travelers Insurance Co. v. Allen, 356 So.2d 1287. Meade v. Lumbermens Mut. Cas. Co., 423 So.2d 908 (1982). Insurance Key Number graphic 3323 Assertion of nonstatutory defense of accord and satisfaction is not precluded by passage of 90 days after receipt of arbitration award. McDonald v. Allstate Ins. Co., App. 4 Dist., 408 So.2d 580 (1981). Arbitration Key Number graphic 76(3) Even though company providing uninsured-underinsured protection failed to move to modify or vacate arbitration award against it within 90-day period provided by arbitration code (this section and § 692.14), insurer, in its response to confirmation action by insured, could assert defense that insured had settled his case with tort-feasor and tort-feasor's insured for precisely the same amount as arbitration award. Bruno v. Travelers Ins. Co., App. 3 Dist., 386 So.2d 251 (1980). Insurance Key Number graphic 3323 Where automobile insurer refused to pay arbitration award made pursuant to uninsured motorist provisions of automobile liability insurance
policy and failed to file motion to vacate, modify or correct award within 90 days after receipt thereof, and where no contention was raised that award was based on corruption, fraud or undue means, insurer waived objection that arbitration was outside jurisdiction of arbitrators to make because it exceeded applicable policy limits. Travelers Ins. Co. v. Allen, App. 3 Dist., 356 So.2d 1287 (1978), certiorari denied 364 So.2d 893. Insurance Key Number graphic 3317 19. Presumptions and burden of proof A high degree of conclusiveness attaches to an arbitration award because the parties themselves have chosen to go that route in order to avoid the expense and delay of litigation. Davenport v. Dimitrijevic, App. 4 Dist., 857 So.2d 957 (2003). Arbitration Key Number graphic 81 A party who alleges that an arbitration award was procured by corruption, fraud, or other undue means must: (1) establish the fraud by clear and convincing evidence; (2) demonstrate that the fraud was not discoverable by the exercise of due diligence before or during the arbitration hearing; and (3) demonstrate that the fraud was materially related to an issue in the arbitration. Davenport v. Dimitrijevic, App. 4 Dist., 857 So.2d 957 (2003). Arbitration Key Number graphic 64.4; Arbitration Key Number graphic 77(6) Party pursuing motion to vacate award on ground of bias or prejudice of arbitrator must sustain burden of establishing bias or prejudice of arbitrator or award will be affirmed. Carol City Utilities, Inc. v. Gaines Const. Co., App. 3 Dist., 201 So.2d 242 (1967), certiorari denied 210 So.2d 221. Arbitration Key Number graphic 66.2 19.5. Sufficiency of evidence Clients failed to present sufficient evidence of partiality of neutral arbitrator, and thus arbitration award settling fee dispute between clients and attorneys would not be vacated under Florida Arbitration Code; undisclosed contacts by neutral arbitrator did not demonstrate obvious case of bias, and there was nothing showing that contacts prejudiced outcome in any way. Brandon Jones Sandall Zeide Kohn Chalal & Musso, P.A. v. Beasley & Hauser, P.A., App. 4 Dist., 925 So.2d 1142 (2006). Arbitration Key Number graphic 64.3 20. Waiver Waiver or estoppel to complain of appearance of partiality on part of arbitrator would be inappropriate in view of code of strict morality and fairness which shapes arbitrator's affirmative duty of disclosure. Middlesex Mut. Ins. Co. v. Levine, C.A.11 (Fla.)1982, 675 F.2d 1197. Arbitration Key Number graphic 46.2
Redeveloper failed to avail itself of statutory procedure for arguing that arbitration provision did not bind redeveloper and thus waived issue; redeveloper failed to contest award within 90 days of its receipt of the award, and redeveloper failed to seek relief when commercial vendor who initiated arbitration against original purchaser joined redeveloper as party to arbitration. Avatar Properties, Inc. v. N.C.J. Inv. Co., App. 5 Dist., 848 So.2d 1259 (2003). Arbitration Key Number graphic 46.1 By failing to raise an objection in arbitration proceedings, defendant waived right to contest personal liability in circuit court, where a demand for arbitration, with which defendant was admittedly familiar, plainly listed corporation and three individuals, including defendant, as defendants, proposed arbitrator recognized that defendant was a defendant and expressly disqualified himself on that basis, defendant failed to avail himself of stay provision of § 682.03, and defendant appeared after arbitration hearing and failed to object to or otherwise contest personal liability. Koch v. Waller & Co., Inc., App. 4 Dist., 439 So.2d 1041 (1983). Arbitration Key Number graphic 73.4 21. Attorney's fees Neither contractor nor subcontractor was the prevailing party entitled to attorney fees in arbitration that resolved a contractual dispute, even though arbitrator awarded subcontractor $982.07 on its claims, and denied contractor's $27,000 counterclaim; arbitrator adopted contractor's breakdown and pay schedule, it was therefore not clear from the face of the arbitration award which party prevailed, arbitrator did not designate either party as the prevailing party, and time to seek modification or clarification of arbitration award was past. Coral-Tech Associates, Inc. v. Plumbing Contractors, Inc., App. 4 Dist., 916 So.2d 958 (2005), rehearing denied. Arbitration Key Number graphic 42 Subcontractor's failure to timely seek modification or clarification of arbitration award that declared that there was no prevailing party precluded award of attorney fees to subcontractor; arbitration award failed to state the basis for its award, such that trial court was unable to determine which party prevailed on the significant issues. A-1 Duran Roofing, Inc. v. Select Contracting, Inc., App. 4 Dist., 865 So.2d 601 (2004), rehearing denied. Arbitration Key Number graphic 42; Arbitration Key Number graphic 73.4 Party who had procured favorable arbitration award was precluded from claiming attorney's fees by failing to move to vacate arbitrator's order denying fees, or to modify that order, within statutory time or to make allegations upon which extension of period in which to file motion could be b
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« Reply #1 on: December 12, 2006, 07:21:20 PM »

682.20. Appeals (1) An appeal may be taken from: (a) An order denying an application to compel arbitration made under s. 682.03. (b) An order granting an application to stay arbitration made under s. 682.03(2)-(4). (c) An order confirming or denying confirmation of an award. (d) An order modifying or correcting an award. (e) An order vacating an award without directing a rehearing. (f) A judgment or decree entered pursuant to the provisions of this law. (2) The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action. 1. Validity Complete waiver of right to appeal arbitration decision pursuant to arbitration clause of agreement between assisted living facility and resident was void as against public policy, given that provision was in contravention of Florida arbitration Code provision that provided for a limited right of appeal. Alterra Healthcare Corp. v. Bryant, App. 4 Dist., 937 So.2d 263 (2006). Alternative Dispute Resolution Key Number graphic 134(1) Statute providing that appeal may be taken from order confirming or denying confirmation of arbitration award violated provision of state Constitution in that state Constitution permitted District Courts of Appeal to review non-final orders to extent provided by Supreme Court's own rules, and no rule of Supreme Court authorized review of order vacating arbitration award. Loewenstein, Inc. v. Draheim, App. 4 Dist., 898 So.2d 1129 (2005). Arbitration Key Number graphic 73.2 Statute providing for appellate review of interlocutory orders confirming, modifying or vacating arbitration award is invalid, in light of provision of Constitution which reposes in the Supreme Court the power to determine the jurisdiction of district courts of appeal
to review interlocutory orders. Health Care Associates, Inc. v. Brevard Physicians Group, App. 5 Dist., 701 So.2d 118 (1997). Constitutional Law Key Number graphic 56 2. Construction and application Unique and exceptional circumstances existed to permit appellate court, rather than dismissing appeal from order confirming arbitration award upon concluding that order was nonfinal and nonappealable because it lacked sufficient words of finality, to instead grant appellant 30 days to obtain and file final order from trial court, where both appellant and appellee, relying on perceived inconsistency between governing statutes and on judicial precedent, had believed that order was final and appealable. City of Tallahassee v. Big Bend PBA, App. 1 Dist., 703 So.2d 1066 (1997). Arbitration Key Number graphic 73.8 Where appellant filed both interlocutory appeal and petition for writ of certiorari which were consolidated for purpose of record and briefing and District Court of Appeal concluded that it had jurisdiction of interlocutory order denying motion to stay further proceedings on third-party complaint to compel arbitration by interlocutory appeal, petition for certiorari would be dismissed. Damora v. Givotovsky, App. 4 Dist., 301 So.2d 37 (1974), certiorari discharged 324 So.2d 80. Certiorari Key Number graphic 60 Appellant is not automatically entitled to oral argument before the District Court of Appeal as a matter of right in view of court's discretion to dispense with oral argument in any case. Damora v. Givotovsky, App. 4 Dist., 301 So.2d 37 (1974), certiorari discharged 324 So.2d 80. Appeal And Error Key Number graphic 824 Former § 57.29 (now this section) authorized appeals not only from a judgment or decree entered by court on arbitrator's award, but also from various other orders which were in usual sense not final judgments or orders. State ex rel. Gaines Const. Co. v. Pearson, 154 So.2d 833 (1963). Arbitration Key Number graphic 73.2 3. Purpose In Florida a party who is denied its motion to compel arbitration has a right of immediate review of the denial of that motion; apparent purpose of subject statute (this section) being to take a state court's judgment denying a motion to compel arbitration out of the category of interlocutory appeal and its limitations under the rules. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 1981, 637 F.2d 391. Arbitration Key Number graphic 23.20 4. Law governing Florida, rather than federal law, determined whether, Florida court's order denying defendant's motions to compel arbitration under federal and state law and ordering a trial, had res judicata effect on defendant's subsequent diversity action to compel arbitration
under Federal Arbitration Act [9 U.S.C.A. § 1 et seq.]. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 1981, 637 F.2d 391. Federal Courts Key Number graphic 420 District court order granting defendant broker's motion to compel arbitration of customer's complaint of negligence, fraud and breach of fiduciary duties in handling stock option accounts was reversed and cause remanded for further proceedings where district court failed to mention effect of prior order remanding case, which had been removed from state court, for lack of jurisdiction or effect of intervening state court order that arguably denied motion for arbitration under state and federal law. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 1981, 637 F.2d 391. Federal Courts Key Number graphic 937.1 Florida Arbitration Code provision purporting to establish right to appeal from order confirming or denying confirmation of an arbitration award did not impart interlocutory jurisdiction on District Court of Appeal; only Supreme Court was empowered to grant interlocutory jurisdiction to District Court of Appeal. Friendly Homes of the South Inc. v. Fontice, App. 2 Dist., 2006 WL 1879000 (2006). Courts Key Number graphic 216 5. Enforceability of arbitration clauses Clause in contract between wireless service provider and four dealers, which excluded any right to appeal an arbitrator's decision, was in conflict with the Florida Arbitration Code and, therefore, was unenforceable. VoiceStream Wireless Corp. v. U.S. Communications, Inc., App. 4 Dist., 912 So.2d 34 (2005), rehearing denied. Arbitration Key Number graphic 6.2 Claims under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) properly may be submitted to arbitration. Orkin Exterminating Co. v. Petsch, App. 2 Dist., 872 So.2d 259 (2004), rehearing denied, review denied 884 So.2d 23. Arbitration Key Number graphic 3.3 In determining whether a dispute is subject to arbitration, courts consider: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Orkin Exterminating Co. v. Petsch, App. 2 Dist., 872 So.2d 259 (2004), rehearing denied, review denied 884 So.2d 23. Arbitration Key Number graphic 6.2; Arbitration Key Number graphic 7.5; Arbitration Key Number graphic 23.3(1) Sentence within arbitration clause of sale of assets agreement which attempted to prevent the parties from appealing any arbitration decision was in contravention to the Arbitration Code, which provided a limited right of appeal, and thus, was unenforceable. Healthcomp Evaluation Services Corp. v. O'Donnell, App. 2 Dist., 817 So.2d 1095 (2002). Arbitration Key Number graphic 73.1 6. Orders denying applications to compel
The appellate court reviews an order denying a motion to compel arbitration de novo. Orkin Exterminating Co. v. Petsch, App. 2 Dist., 872 So.2d 259 (2004), rehearing denied, review denied 884 So.2d 23. Arbitration Key Number graphic 23.25 Trial court erred when it denied purchaser's motion to compel arbitration, even though seller's complaint against purchaser was predominated by nonarbitrable claims, and last sentence of arbitration clause contained within sale of assets agreement, sentence which endeavored to preclude parties from pursuing an appeal of any kind, was unenforceable, where complaint also contained three arbitrable claims, and last sentence was severable from rest of agreement. Healthcomp Evaluation Services Corp. v. O'Donnell, App. 2 Dist., 817 So.2d 1095 (2002). Arbitration Key Number graphic 7.2 Trial court erred when it considered judicial economy in making its decision to deny a motion to compel arbitration of seller's complaint against purchaser. Healthcomp Evaluation Services Corp. v. O'Donnell, App. 2 Dist., 817 So.2d 1095 (2002). Arbitration Key Number graphic 23.13 Where parties to arbitration agreement filed interlocutory appeal from order denying motion to compel arbitration, but right of appeal was not conferred by this section, District Court of Appeal treated appeal as petition for common law certiorari. Vic Potamkin Chevrolet, Inc. v. Bloom, App. 3 Dist., 386 So.2d 286 (1980). Certiorari Key Number graphic 42(3) Provision of this section allowing party to appeal from order denying application to compel arbitration did not, following adoption of 1978 Rules of Appellate Procedure, confer right to appellate review. Vic Potamkin Chevrolet, Inc. v. Bloom, App. 3 Dist., 386 So.2d 286 (1980). Arbitration Key Number graphic 23.30 Order denying motion to dismiss suit to recover under uninsured motorist provision of automobile policy and to compel arbitration was appealable in spite of coupling motion to dismiss with motion to compel arbitration. Sun Ins. Office, Limited v. Phillips, App. 2 Dist., 230 So.2d 17 (1970). Federal Courts Key Number graphic 557 Insurer's appeal from interlocutory order by which the trial court denied insurer's application for an order directing dependent widow to proceed with arbitration in accordance with her deceased husband's liability policy was properly authorized and taken under the provisions of this section. Netherlands Ins. Co. v. Moore, App. 1 Dist., 190 So.2d 191 (1966). Insurance Key Number graphic 3292 Interlocutory order denying insurer's motion to dismiss complaint at law seeking recovery under policy provision for protection against uninsured motorist and to require plaintiffs to exhaust their remedies in arbitration, as provided in uninsured motorist provision of policy, was not "order denying application to compel arbitration" within provision of this section authorizing appeal from such an order. Southeastern Title & Ins. Co. v. Curtis, App. 3 Dist., 155 So.2d 855 (1963). Appeal And Error Key Number graphic 70(.5)
7. Orders granting applications to compel Judicial review was not available, as to arbitrator's discovery order compelling production of document which defendant hospital and other medical defendants claimed was protected by attorney-client privilege. Tenet Healthcare Corp. v. Maharaj, App. 4 Dist., 859 So.2d 1209 (2003). Arbitration Key Number graphic 73.2 Order granting motion or application to compel arbitration is nonappealable. Harris v. State Farm Mut. Auto. Ins. Co., App. 2 Dist., 283 So.2d 147 (1973). Arbitration Key Number graphic 23.20; Arbitration Key Number graphic 73.2 Even though parties to appeal did not raise point that appeal would not lie from order compelling arbitration, reviewing court was compelled to rule on such issue. Harris v. State Farm Mut. Auto. Ins. Co., App. 2 Dist., 283 So.2d 147 (1973). Appeal And Error Key Number graphic 23 Fact that trial court in effect dismissed suit by insured against insurer when trial court ordered arbitration of claim did not make order final so as to permit appeal. Harris v. State Farm Mut. Auto. Ins. Co., App. 2 Dist., 283 So.2d 147 (1973). Appeal And Error Key Number graphic 78(1) 8. Orders confirming awards Order of trial court that confirmed arbitrator's award without entering judgment thereon was not appealable nonfinal order. City of Tallahassee v. Big Bend PBA, App. 1 Dist., 703 So.2d 1066 (1997). Arbitration Key Number graphic 73.2 Even though findings and award of arbitrator did not adjudicate all issues in dispute, did not determine amount due and merely established method by which amount could be ascertained, orders of circuit court confirming arbitrator's findings and award were appealable. State ex rel. Gaines Const. Co. v. Pearson, 154 So.2d 833 (1963). Arbitration Key Number graphic 73.2 9. Orders vacating awards It is error for a circuit court to enter an order vacating an arbitration award without directing a rehearing by the arbitration panel. Loewenstein, Inc. v. Draheim, App. 4 Dist., 914 So.2d 1106 (2005). Arbitration Key Number graphic 77(7) Trial court that vacated arbitration award in dispute between manufacturer and sales representative over sales commissions, on the ground that arbitrator exceeded the powers granted to him, was required to order another arbitration, where parties contractually agreed to arbitrate. Loewenstein, Inc. v. Draheim, App. 4 Dist., 914 So.2d 1106 (2005). Arbitration Key Number graphic 77(7)
Order vacating prior arbitration award and directing rehearing before a new arbitrator was not a final, appealable order. City of Fort Lauderdale v. Fraternal Order of Police, Lodge No. 31, App. 4 Dist., 582 So.2d 162 (1991). Labor And Employment Key Number graphic 1605 Order vacating award and directing that matter be reheard de novo by arbitrators was not appealable. Carner v. Freedman, App. 3 Dist., 175 So.2d 70 (1965). Arbitration Key Number graphic 73.2 10. Orders denying setoff Order denying claim of setoff against arbitration award was not appealable final order, nor was it appealable as confirmation or denial of confirmation of arbitration award. Aetna Fire Underwriters Ins. Co. v. Brown, App. 5 Dist., 392 So.2d 53 (1981). Arbitration Key Number graphic 73.2 Order denying claim of setoff against arbitration award was not an appealable nonfinal order under Appellate Procedure Rule 9.130 because it did not decide liability in favor of one seeking affirmative relief, but instead denied a claim against that party. Aetna Fire Underwriters Ins. Co. v. Brown, App. 5 Dist., 392 So.2d 53 (1981). Arbitration Key Number graphic 73.2 11. Presumptions and burden of proof Everything is presumed and every reasonable intendment made in favor of an award. Blood v. Shine, 2 Fla. 127 (1848). 12. Mandamus Mandamus was proper remedy to determine correctness of determination of district court of appeal dismissing appeal from circuit court's orders on ground orders were not appealable and to compel reinstatement of appeal. State ex rel. Gaines Const. Co. v. Pearson, 154 So.2d 833 (1963). Mandamus Key Number graphic 57(1) Where circuit court had entered order confirming arbitrator's findings and award and requiring utility to pay construction company a sum of money and thereafter had entered second order, amending first order by deleting requirement of payment of money, first order, as amended, was same as second order and mandamus could not be used to compel useless review of first order. State ex rel. Gaines Const. Co. v. Pearson, 154 So.2d 833 (1963). Mandamus Key Number graphic 16(1) 13. Waiver of right to appeal Complete waiver of right to appeal arbitration decision pursuant to arbitration clause of agreement between assisted living facility and resident was void as against public policy, given that provision was in contravention of Florida arbitration Code provision that
provided for a limited right of appeal. Alterra Healthcare Corp. v. Bryant, App. 4 Dist., 937 So.2d 263 (2006). Alternative Dispute Resolution Key Number graphic 134(1) Failure of union to voice specific objection at impasse resolution hearing to city commission's elimination of statutory right of appeal of arbitration awards did not constitute a waiver of its right to challenge that action. City of Hollywood v. Florida Public Employees Relations Com'n, App. 1 Dist., 476 So.2d 1340 (1985). Labor And Employment Key Number graphic 1616 City commission could not eliminate statutory right of appeal, West's F.S.A. § 682.01 et seq., from arbitration awards without agreement of union. City of Hollywood v. Florida Public Employees Relations Com'n, App. 1 Dist., 476 So.2d 1340 (1985). Labor And Employment Key Number graphic 1615 Where insurer denied uninsured motorist coverage until after insured had instituted action and then insurer admitted coverage and moved for arbitration, but did not appeal from denial of motion, insurer had waived right to arbitration on issue of damages. American Southern Ins. Co. v. Daniel, App. 1 Dist., 198 So.2d 850 (1967). Insurance Key Number graphic 3270 14. Scope of review When arbitrators do not recite their rationale for an award, reviewing court must determine if there is a rational basis for the award. Roberson v. Charles Schwab & Co., Inc., S.D.Fla.2003, 339 F.Supp.2d 1337. Arbitration Key Number graphic 61 Courts grant arbitrators considerable leeway when reviewing most arbitration decisions, and arbitrators' decisions can be set aside only in narrow circumstances. Roberson v. Charles Schwab & Co., Inc., S.D.Fla.2003, 339 F.Supp.2d 1337. Arbitration Key Number graphic 73.7(1); Arbitration Key Number graphic 77(4) Courts do not review findings of fact contained in an arbitration award or attempt to substitute its judgment for that of the arbitrator. Communications Workers of America v. Indian River County School Bd., App. 4 Dist., 888 So.2d 96 (2004), review denied 901 So.2d 873. Arbitration Key Number graphic 73.7(1) For purposes of judicial review, a very high degree of conclusiveness attaches to an arbitration award. Communications Workers of America v. Indian River County School Bd., App. 4 Dist., 888 So.2d 96 (2004), review denied 901 So.2d 873. Arbitration Key Number graphic 73.7(1) The determination of whether an issue is subject to arbitration is a matter of contract interpretation, and appellate review on that issue is de novo. Tropical Ford, Inc. v. Major, App. 5 Dist., 882 So.2d 476 (2004). Arbitration Key Number graphic 23.25
An appellate court reviews de novo a trial court's ruling on a motion to compel arbitration. Tropical Ford, Inc. v. Major, App. 5 Dist., 882 So.2d 476 (2004). Arbitration Key Number graphic 23.25 A trial court, in reviewing a motion to compel arbitration, must consider three elements: (1) whether a valid, written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitrate has been waived. Healthcomp Evaluation Services Corp. v. O'Donnell, App. 2 Dist., 817 So.2d 1095 (2002). Arbitration Key Number graphic 6.2; Arbitration Key Number graphic 7.5; Arbitration Key Number graphic 23.3(1) Courts' standard of review to be applied to arbitration awards is very limited and high degree of conclusiveness attaches to award. Andrew H. Warner, Inc. v. Siga, Inc., App. 4 Dist., 690 So.2d 626 (1997), rehearing denied. Arbitration Key Number graphic 73.7(1) Standard of judicial review applicable to challenger of awards made by arbitrators is very limited and a high degree of conclusiveness attaches to an arbitration award because parties themselves have chosen to go that route in order to avoid expense and delay of litigation. City of West Palm Beach v. Palm Beach County Police Benev. Ass'n, App. 4 Dist., 387 So.2d 533 (1980). Arbitration Key Number graphic 73.7(1) High degree of conclusiveness attaches to an arbitration award since the parties themselves have chosen to go that route in order to avoid the delay and expense of litigation. Affiliated Marketing, Inc. v. Dyco Chemicals & Coatings, Inc., App. 2 Dist., 340 So.2d 1240 (1976), certiorari denied 353 So.2d 675. Arbitration Key Number graphic 82(1) Proceedings before an arbitrator are not generally to be examined by the court for the purpose of determining how the arbitrator arrived at his award. Affiliated Marketing, Inc. v. Dyco Chemicals & Coatings, Inc., App. 2 Dist., 340 So.2d 1240 (1976), certiorari denied 353 So.2d 675. Arbitration Key Number graphic 73.7(1) Issue as to market value of buildings and other improvements including landscaping and plants in connection with determining purchase price on lessor's termination of lease was factual issue and arbitrators' finding thereon was properly upheld by trial court. Weeki Wachee Orchid Gardens, Inc. v. Florida Inland Theatres, Inc., App. 2 Dist., 239 So.2d 602 (1970), appeal dismissed 246 So.2d 110, certiorari denied 246 So.2d 110. Arbitration Key Number graphic 73.7(7) Proceedings before arbitrator are not generally to be examined by trial court or appellate court in determining how arbitrator arrived at his award. Carol City Utilities, Inc. v. Gaines Const. Co., App. 3 Dist., 201 So.2d 242 (1967), certiorari denied 210 So.2d 221. Arbitration Key Number graphic 73.7(2) Upon writ of error, only grounds upon which appellate court would, under former statute (see, now, this section) review award of umpire and arbitrators, when legally appointed,
qualified, and made a rule of court, were fraud, corruption, negligence or misbehavior, evident mistake acknowledged, and then only after some one or more of these grounds had been raised before judge of circuit in which the arbitration had been had upon motion to set aside the award. Ogden v. Baile, 73 Fla. 1103, 75 So. 794 (1917). Court would not substitute its judgment as to weight and sufficiency of evidence for that of umpire and arbitrators. Ogden v. Baile, 73 Fla. 1103, 75 So. 794 (1917).
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« Reply #2 on: December 12, 2006, 07:22:16 PM »

F.S.A. § 682.01 1. Construction and application Federal Arbitration Act applies by its terms to an arbitration clause in a contract involving interstate commence; with respect to these contracts, federal law supersedes the Florida Arbitration Code, and the Florida Arbitration Code is applied in such cases only to the extent it is not inconsistent with federal law. Della Penna v. Zabawa, App. 5 Dist., 931 So.2d 155 (2006), rehearing denied. Institution of arbitration proceedings pursuant to statute divests circuit court of jurisdiction to make any determination on issue of abandonment of arbitration, or any factual issue other than the making of the agreement or provision. Modern Health Care Services, Inc. v. Puglisi, App. 3 Dist., 597 So.2d 930 (1992). Courts favor arbitration to expedite claims and reduce litigation. Midwest Mut. Ins. Co. v. Santiesteban, 287 So.2d 665 (1973), conformed to 291 So.2d 106. Requirements of former statute relating to arbitration (see, now, § 682.01 et seq.) had to be substantially complied with. Readdy v. Tampa Electric Co., 51 Fla. 289, 41 So. 535 (1906). 2. Construction with other laws Clause requiring arbitration in Indianapolis if parties could not agree on forum for mediation or arbitration of subcontract disputes was a nullity, and thus arbitration clause was to be governed by the Florida Arbitration Code; Indianapolis forum language of the subcontract was the only hindrance to enforcement of arbitration provisions of subcontract by a Florida court and could be struck under terms of arbitration agreement that provided if forum clause was invalid, it was severable and did not affect validity of remainder of mediation and arbitration provisions. K.P. Meiring Const., Inc. v. Northbay I & E, Inc., App. 2 Dist., 761 So.2d 1221 (2000). Insured's demand that determination of amount of uninsured motorist coverage benefits be arbitrated rather than litigated fell within parameters of this chapter, and not § 627.727(Cool. Leaf v. State Farm Mut. Auto. Ins. Co., App. 4 Dist., 544 So.2d 1049 (1989). Arbitration of issues of alleged fraud, misrepresentation and breach of fiduciary duties of stockbrokers is inconsistent with policy and language of Florida Securities Law (ch. 517), which will control over provisions of Florida arbitration code (this chapter). Shearson, Hammill & Co. v. Vouis, App. 3 Dist., 247 So.2d 733 (1971), certiorari denied 253 So.2d 444. 3. Construction with federal law
Once district court assumed jurisdiction of defendant's petition under Federal Arbitration Act to compel arbitration it was error for the court to deny plaintiff's motion to reconsider where within ten-day vacation period for judgments the plaintiff brought court's attention to prior state court order denying defendant's original motion, as made under Federal Arbitration Act [9 U.S.C.A. § 1 et seq.], and postremand motion, as made under Florida Arbitration Code [§ 682.01 et seq.], to compel arbitration and ordering the case to trial, especially as state court had jurisdiction over the cause and, also, it was error to fail to address effect of prior order remanding the case, which had been remanded from state court. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 1981, 637 F.2d 391. Interstate commerce was not involved, and thus Florida Arbitration Code, rather than the Federal Arbitration Act, applied in determining whether arbitration clause compelled arbitration of dispute between Florida corporations involved in Florida construction projects. O'Keefe Architects, Inc. v. CED Const. Partners, Ltd., 2006 WL 2971783 (2006). Under the Supremacy Clause of the United States Constitution, the Federal Arbitration Act (FAA) supersedes any inconsistent state law, and Florida courts are obligated to enforce valid arbitration agreements within the scope of the FAA, even if such agreements would otherwise be unenforceable under Florida law. Gilman Key Number graphic Ciocia, Inc. v. Wetherald, App. 4 Dist., 885 So.2d 900 (2004), rehearing denied. As a general proposition, an otherwise valid arbitration agreement is voidable at the election of either party, making it unenforceable under the Florida Arbitration Code, if it incorporates an agreement to arbitrate under the laws of another state; however, the arbitration agreement may still be enforceable by Florida courts under applicable federal law. Gilman Key Number graphic Ciocia, Inc. v. Wetherald, App. 4 Dist., 885 So.2d 900 (2004), rehearing denied. Contract between hotel owner and renovation company that contained arbitration provision evidenced a transaction involving interstate commerce, and thus Federal Arbitration Act, rather than state's arbitration code, applied to contract, where portion of transaction included importation of furniture from foreign country. Rewards Hotel Management Co., LLC v. Elite General Contractors, Inc., App. 3 Dist., 860 So.2d 1011 (2003). Both the Federal Arbitration Act and the Florida Arbitration Code permit a challenge to the validity of an arbitration provision based upon any state-law contract defense. Gainesville Health Care Center, Inc. v. Weston, App. 1 Dist., 857 So.2d 278 (2003), rehearing denied. Where contract falls within scope of Federal Arbitration Act, federal law generally applies, however, where United States Supreme Court has not ruled on specific question, state courts are free to apply state law on that question. Marine Environmental Partners, Inc. v. Johnson, App. 4 Dist., 863 So.2d 423 (2003).
The Florida Arbitration Code applies in arbitration cases only to the extent that it is not in conflict with federal law. Florida Power Corp. v. City of Casselberry, App. 5 Dist., 793 So.2d 1174 (2001). Florida Arbitration Code applies in cases regarding contracts involving interstate commerce only to the extent that Code is not in conflict with federal law. West's F.S.A. §§ 682.01 et seq. Powertel, Inc. v. Bexley, App. 1 Dist., 743 So.2d 570 (1999), rehearing denied, review denied 763 So.2d 1044. Federal arbitration code supersedes state arbitration code where interstate commerce is involved; thus, state court must enforce valid arbitration clause which provides for arbitration in foreign jurisdiction, where contract concerns interstate commerce. United Services General Life Co. v. Bauer, App. 2 Dist., 568 So.2d 1321 (1990). Dispute between Iowa insurer and its Florida agent over commissions involved interstate commerce, and therefore, federal law applied and required Florida court to enforce arbitration clause which provided for Iowa arbitration. United Services General Life Co. v. Bauer, App. 2 Dist., 568 So.2d 1321 (1990). As option trading is an area of interstate commerce, provisions of the Federal Arbitration Act (9 U.S.C.A. § 1 et seq.) apply and preempt provisions of the Florida Arbitration Code. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Westwind Transp., Inc., App. 2 Dist., 442 So.2d 414 (1983). Contract for employment of stock broker and registered representative of brokerage firm which was member of New York Stock Exchange was one involving interstate commerce, and controversy as to compensation and certain refundable advances paid to employee was arbitrable under state Arbitration Act and Federal Arbitration Act. Ross Stebbins, Inc. v. Nystrum, App. 4 Dist., 422 So.2d 1105 (1982). State courts must recognize and apply Federal Arbitration Act (9 U.S.C.A. § 1 et seq.) and arbitration agreements which are valid and enforceable under federal law are also valid and enforceable in state courts. Merrill, Lynch, Pierce, Fenner & Smith Inc. v. Melamed, App. 4 Dist., 405 So.2d 790 (1981). Provisions of § 3 of Federal Arbitration Act (9 U.S.C.A. § 1 et seq.) which generally require courts of United States to stay judicial proceedings upon showing that disputes are subject to valid and enforceable arbitration agreement apply to state courts. Merrill, Lynch, Pierce, Fenner & Smith Inc. v. Melamed, App. 4 Dist., 405 So.2d 790 (1981). Federal Arbitration Act (9 U.S.C.A. § 1 et seq.), which was enacted pursuant to commerce clause of United States Constitution, supersedes inconsistent state laws. Merrill, Lynch, Pierce, Fenner & Smith Inc. v. Melamed, App. 4 Dist., 405 So.2d 790 (1981).
4. Appraisals Insurance appraisal process did not have to conform to rules of arbitration requiring attorney participation, court reporter transcriptions, and quasi-judicial hearing. Allstate Ins. Co. v. Martinez, App. 3 Dist., 790 So.2d 1151 (2001), review granted 805 So.2d 804, approved 833 So.2d 761. Processes for appraisal and arbitration are not identical; appraisers are expected to act on their expertise and only needed to meet to iron out any differences in their opinions. Allstate Ins. Co. v. Martinez, App. 3 Dist., 790 So.2d 1151 (2001), review granted 805 So.2d 804, approved 833 So.2d 761. 5. Construction contracts Contract provisions for arbitration of all claims, disputes or other matters arising out of or relating to a construction contract are enforceable in accordance with the Florida Arbitration Code. K.P. Meiring Const., Inc. v. Northbay I & E, Inc., App. 2 Dist., 761 So.2d 1221 (2000). 6. Tax assessments Statutory review of tax assessment by arbitration was subject to arbitration code, and challenge to award under tax assessment arbitration state, § 194.033 (repealed), had to state grounds under arbitration code. Collins 20th St. Realty Corp. v. Metropolitan Dade County, App. 3 Dist., 259 So.2d 527 (1972). Taxpayer's right to relief by general suit in equity, even if assessment was void, was barred by invoking statutory review of assessment by arbitration. Collins 20th St. Realty Corp. v. Metropolitan Dade County, App. 3 Dist., 259 So.2d 527 (1972). 9.5. Defenses Under the Florida Arbitration Code, a broad agreement to arbitrate includes determining defenses to an otherwise arbitrable claim, including the statute of limitations, disapproving Reuter Recycling of Florida, Inc. v. City of Dania Beach, 859 So.2d 1271. O'Keefe Architects, Inc. v. CED Const. Partners, Ltd., 2006 WL 2971783 (2006). Under the Florida Arbitration Code, party's statute of limitations defense to otherwise arbitrable claim was subject to arbitration, where arbitration agreement provided that claims, disputes, or other matters arising out of or relating to the contract were to be decided by arbitration, but also provided that a demand for arbitration could not be made when institution of legal or equitable proceedings based on the underlying claim would be barred by the applicable statute of limitations; there was nothing in agreement that established that the parties agreed to have statute of limitations defense to an otherwise arbitrable claim decided by the court. O'Keefe Architects, Inc. v. CED Const. Partners, Ltd., 2006 WL 2971783 (2006).
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« Reply #3 on: December 12, 2006, 07:23:47 PM »

>>682.02. Arbitration agreements made valid, irrevocable, and enforceable; scope Two or more parties may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. This section also applies to written interlocal agreements under ss. 163.01 and 373.1962 in which two or more parties agree to submit to arbitration any controversy between them concerning water use permit applications and other matters, regardless of whether or not the water management district with jurisdiction over the subject application is a party to the interlocal agreement or a participant in the arbitration. Such agreement or provision shall be valid, enforceable, and irrevocable without regard to the justiciable character of the controversy; provided that this act shall not apply to any such agreement or provision to arbitrate in which it is stipulated that this law shall not apply or to any arbitration or award thereunder. UNITED STATES SUPREME COURT Arbitration, judicial determination as to whether parties have agreed to arbitrate, see First Options of Chicago, Inc. v. Kaplan, U.S.Pa.1995, 115 S.Ct. 1920, 514 U.S. 938, 131 L.Ed.2d 985. Arbitration agreements, enforceability conditioned on compliance with special notice requirements, preemption, see Doctor's Associates, Inc. v. Casarotto, 1996, 116 S.Ct. 1652, 517 U.S. 681, 134 L.Ed.2d 902. Federal Arbitration Act, state anti-arbitration policy, enforceability of written arbitration provisions, interstate commerce, see Allied-Bruce Terminix Companies, Inc. v. Dobson, 1995, 115 S.Ct. 834, 513 U.S. 265, 130 L.Ed.2d 753, on remand 684 So.2d 102, rehearing denied. Franchise statute prohibiting arbitration enforcement, supremacy of federal law, see Southland Corp. v. Keating, U.S.Cal.1984, 104 S.Ct. 852, 465 U.S. 1, 79 L.Ed.2d 1. 1. Compliance with statute Agreements to arbitrate are generally favored by the courts, but the jurisdiction of the courts cannot be invoked to compel arbitration unless an agreement to arbitrate complies with the Arbitration Code. Avid Engineering, Inc. v. Orlando Marketplace Ltd., App. 5 Dist., 809 So.2d 1 (2001), rehearing denied.
Unless agreement to arbitrate complies with Florida Arbitration Code (this chapter), agreement is not specifically enforceable in judicial proceeding in Florida. Knight v. H. S. Equities, Inc., App. 4 Dist., 280 So.2d 456 (1973). Parties who resort to statutory mode of arbitration must substantially comply with statutory requirements. Readdy v. Tampa Electric Co., 51 Fla. 289, 41 So. 535 (1906). 2. Common law agreements Under common law of Florida, agreement to arbitrate future controversies was deemed contrary to public policy and unenforceable as tending to oust courts of jurisdiction. Wickes Corp. v. Industrial Financial Corp., 1974, 493 F.2d 1173. Where parties to contract intended, by their provision for arbitration, to be bound by common law of Florida, under which agreement to arbitrate future controversies is deemed contrary to public policy and unenforceable as tending to oust courts of jurisdiction, such provision of contract meant that parties intended voluntarily to use arbitration to settle any controversies, but that, notwithstanding such intention, either party could refuse to arbitrate. Wickes Corp. v. Industrial Financial Corp., 1974, 493 F.2d 1173. Where Florida law permitted arbitration provision stipulating that Florida Arbitration Code (this chapter) would not apply, and such provision was included in contract, Florida Arbitration Code was inapplicable and arbitration provision was to be interpreted in light of common-law principles. Wickes Corp. v. Industrial Financial Corp., 1974, 493 F.2d 1173. 3. Provisions for arbitration in another state Contract requiring arbitration in New York according to New York law was not enforceable under Florida Arbitration Code (this chapter). Williams v. Hardy, App. 5 Dist., 468 So.2d 429 (1985). Clause in contract providing for arbitration in another state was unenforceable. Donmoor, Inc. v. Sturtevant, App. 5 Dist., 449 So.2d 869 (1984). Rule that Florida will not enforce a contract requiring arbitration pursuant to laws of foreign jurisdiction if either party objects does not result from lack of subject-matter jurisdiction over arbitration proceedings. Romar Transports, Ltd., Inc. v. Iron and Steel Co. of Trinidad and Tobago, Ltd., App. 4 Dist., 386 So.2d 572 (1980), review denied 392 So.2d 1375. Contract requiring arbitration pursuant to laws of foreign jurisdiction is not enforceable in Florida if either party objects prior to an arbitration award. Romar Transports, Ltd., Inc.
v. Iron and Steel Co. of Trinidad and Tobago, Ltd., App. 4 Dist., 386 So.2d 572 (1980), review denied 392 So.2d 1375. Contractual provision that parties to contract would arbitrate future disputes in another jurisdiction constituted a rejection of the State Arbitration Code; thus, the agreement to arbitrate was voidable at instance of either party and could not be used as a bar to action by either party in a court of competent jurisdiction. Damora v. Stresscon Intern., Inc., 324 So.2d 80 (1975). Where customer's agreement between Florida customer and foreign corporate stockbroker doing business in Florida specifically stipulated that laws of New York should govern the enforcement of agreement, the arbitration provisions were unenforceable in Florida. Knight v. H. S. Equities, Inc., App. 4 Dist., 280 So.2d 456 (1973). Where it is stipulated that agreement to arbitrate and its enforcement are governed by laws of another state, such agreement does not comply with Florida Arbitration Code (this chapter) and is not specifically enforceable in Florida. Knight v. H. S. Equities, Inc., App. 4 Dist., 280 So.2d 456 (1973). 4. Preemption Federal Arbitration Act [9 U.S.C.A. § 2] superseded this section depriving Florida courts of authority to enforce agreements to arbitrate under law of other states when underlying contract involved interstate commerce and, therefore, it was within authority of circuit court to grant motion to compel arbitration pursuant to provisions in licensing agreement and to stay action pending arbitration in another state. Trojan Horse, Inc. v. Lakeside Games, App. 3 Dist., 526 So.2d 194 (1988). Rule that a contract requiring arbitration pursuant to laws of a foreign jurisdiction is not enforceable in Florida if either party objects prior to an arbitration award does not apply to valid and enforceable arbitration agreements applying federal law, even though foreign state law is incorporated in arbitration agreement. Butcher & Singer, Inc. v. Frisch, App. 4 Dist., 433 So.2d 1360 (1983). 5. Scope of arbitration All questions about waivers of arbitration should be construed in favor of arbitration rather than against it. Doctors Associates, Inc. v. Thomas, App. 4 Dist., 898 So.2d 159 (2005). To determine whether a claim falls within the scope of an arbitration agreement, the court must look beyond the legal cause of action and examine the factual allegations of the complaint. Singer v. Gaines, App. 3 Dist., 896 So.2d 851 (2005).
Financial advisor's claim that employer and its principals fraudulently induced him into entering into employment contract arose out of the employment, and thus, the claim was subject to arbitration under National Association of Securities Dealers (NASD) Code of Arbitration; advisor's claims that defendants falsely represented they would provide him with ample support staff, significant marketing programs, and guidance from producers who had made more than $2.7 million in revenue in the prior year, necessarily required evaluation of performance of defendants as an employer of a broker. Singer v. Gaines, App. 3 Dist., 896 So.2d 851 (2005). Arbitration may be required only as to those disputes concerning which the parties have expressly agreed. Vargas v. Schweitzer-Ramras, App. 3 Dist., 878 So.2d 415 (2004), rehearing denied. In the absence of express language in the parties' contract mandating arbitration of disputes, arbitration should not be compelled. Morgan Stanley DW Inc. v. Halliday, App. 4 Dist., 873 So.2d 400 (2004), rehearing denied. Wrongful death and negligence claims against nursing home were within scope of arbitration clause contained in nursing home admission agreement, where arbitration clause compelled arbitration of any claim arising out of admission agreement and strong nexus existed between dispute giving rise to lawsuit, the purported failure of nursing home to provide appropriate care for nursing home resident, and contract containing arbitration clause. Consolidated Resources Healthcare Fund I, Ltd. v. Fenelus, App. 4 Dist., 853 So.2d 500 (2003). Claims under Florida Deceptive and Unfair Trade Practices Act (FDUTPA) are subject to arbitration. Stewart Agency, Inc. v. Robinson, App. 4 Dist., 855 So.2d 726 (2003), rehearing denied. Doubts about scope of arbitration agreement, as well as any questions about waivers thereof in favor of arbitration, should be resolved in favor of arbitration rather than against it. EMSA Ltd. Partnership v. Mason, App. 4 Dist., 677 So.2d 105 (1996). Florida Arbitration Code was applicable to agreement which provided for arbitration under rules of American Arbitration Association and which does not contain language stating that Florida Arbitration Code did not apply and thus agreement to arbitrate was enforceable. Sun City Diner of Boca Raton, Inc. v. Century Financial Advisors, Inc., App. 4 Dist., 662 So.2d 967 (1995), rehearing denied. State courts should resolve all doubts about scope of arbitration agreement, as well as any questions about waivers thereof, in favor of arbitration. Ronbeck Const. Co., Inc. v. Savanna Club Corp., App. 4 Dist., 592 So.2d 344 (1992). Arbitration provision of construction contract applied to property owner's fraud, conversion, conspiracy, and civil theft claims against general contractor, even if one dispute related to agreement entered after parties' original contract; subsequent agreement
arose from original contract and encompassed "breach thereof." Ronbeck Const. Co., Inc. v. Savanna Club Corp., App. 4 Dist., 592 So.2d 344 (1992). Property owner's claim for rescission of construction contract was subject to arbitration where property owner's fraud claims that formed basis of rescission were predicated on events dealing with performance of contract, rather than its making or inducement. Ronbeck Const. Co., Inc. v. Savanna Club Corp., App. 4 Dist., 592 So.2d 344 (1992). Counts which customer brought against an account executive for securities firm and which alleged theft and breach of fiduciary duty and fraud were based upon statutory and common-law claims which were arbitrable. Strauss v. Gorman, App. 3 Dist., 471 So.2d 1303 (1985). Ophthalmologist's claim against medical center for violating state antitrust statute (§ 542.15 et seq.) was not proper subject for arbitration. Sabates v. International Medical Centers, Inc., App. 3 Dist., 450 So.2d 514 (1984). Ophthalmologist's claim against medical center for violating civil theft statute (§ 812.014) was subject to arbitration. Sabates v. International Medical Centers, Inc., App. 3 Dist., 450 So.2d 514 (1984). Even though state antitrust statute (§ 542.15 et seq.) contains no express provision preserving right to bring action in courts, because cases involving antitrust violations are generally considered to be of a character inappropriate for enforcement by arbitration, policy favoring arbitration of disputes gives way to policy that antitrust claims are better suited to be heard in the courts. Sabates v. International Medical Centers, Inc., App. 3 Dist., 450 So.2d 514 (1984). Where an agreement for arbitration existed between education association and county school board by which parties agreed to submit disputes to binding arbitration, arbitration of dispute regarding meaning of section of collective bargaining agreement concerning priority of currently employed teachers in seeking intersystem transfer to vacancies should have been permitted, even though decision might be unlawful as being contrary to authority of school superintendent under § 230.33. Manatee Ed. Ass'n v. School Bd. of Manatee County, App. 2 Dist., 400 So.2d 185 (1981). Developer and general contractor's contract, which provided that all claims, disputes and other matters in question arising out of or relating to contract or its breach shall be decided by arbitration, required arbitration of dispute concerning construction defects. William Passalacqua Builders, Inc. v. Mayfair House Ass'n, Inc., App. 4 Dist., 395 So.2d 1171 (1981). Contract provisions for arbitration of all claims, disputes or other matters arising out of or relating to construction contract are enforceable in accordance with Florida arbitration
code. William Passalacqua Builders, Inc. v. Mayfair House Ass'n, Inc., App. 4 Dist., 395 So.2d 1171 (1981). Arbitration should be only of those controversies or disputes which the parties have agreed to submit to arbitration. Pacemaker Corp. v. Euster, App. 3 Dist., 357 So.2d 208 (1978). Defendants in suit on contract for architectural services were entitled to arbitration of counts alleging misrepresentation and breach of fiduciary duty and negligence under standard arbitration clause which was contained in contract and which provided for arbitration of all claims, disputes and other matters in question arising out of, or relating to contract or breach thereof. Morton Z. Levine and Associates, Chartered v. Van Deree, App. 2 Dist., 334 So.2d 287 (1976). Where both parties voluntarily entered construction contract and mutually agreed to submit to arbitration any differences that might arise between them during progress of carrying out construction work under agreement, all contentions made by owner with reference to alleged invalidity of contract and/or allegedly wrongful actions of contractor pursuant thereto should have been resolved within framework of arbitration rather than judicial process. Merkle v. Rice Const. Co., App. 2 Dist., 271 So.2d 220 (1973), certiorari denied 274 So.2d 234. Where subcontract contained provision incorporating general contract by reference and general contract included reference to American Institute of Architects general provisions which contained arbitration clause, subcontractor was entitled to arbitration as to dispute involving items covered in subcontract. Frank J. Rooney, Inc. v. Charles W. Ackerman of Fla. Inc., App. 3 Dist., 219 So.2d 110 (1969), certiorari dismissed 230 So.2d 13. 6. Necessity for arbitration agreements A county may settle disputes arising under a contract by providing for arbitration, without reference to the Florida Arbitration Code in Chapter 682, Florida Statutes. Op.Atty.Gen. 96-23, March 28, 1996. 7. Sufficiency of arbitration agreements Alternative dispute resolution (ADR) provision in contract between property owner and general contractor failed of its essential purpose, and thus general contractor was not required to arbitrate its damages claim against owner arising out of owner's termination of contract prior to completion of construction project; ADR provision was designed to resolve disputes arising during construction without causing work to stop, and owner chose to terminate contract rather than comply with ADR provision when dispute arose over mold at work site, resulting in either waiver of the right to arbitration, or anticipatory repudiation excusing general contractor's compliance with ADR provision. Aberdeen Golf & Country Club v. Bliss Const., Inc., App. 4 Dist., 932 So.2d 235 (2005).
Alternative dispute resolution agreement signed by customers and automobile dealership required arbitration of customers' claims for fraud, false advertising, violations of Florida Deceptive and Unfair Trade Practices Act, and violations of the Motor Vehicle Retail Sales Finance Act; agreement both expressed intent that any claim would be arbitrated and specifically included all of the various claims made by customers. Bill Heard Chevrolet Corp., Orlando v. Wilson, App. 5 Dist., 877 So.2d 15 (2004), rehearing denied. Arbitration clause in contract between electrical contractor and corporation was binding, although contract was never signed by corporation, where corporation's president filled in contract's blanks after contractor signed it, contractor testified that parties did their best to comply with the terms of the contract, and contractor was paid in accordance with the contract. H.W. Gay Enterprises, Inc. v. John Hall Elec. Contracting, Inc., App. 4 Dist., 792 So.2d 580 (2001), rehearing denied. Statutory provision concerning arbitration clauses requires only that an arbitration clause be in writing, not that both parties sign it. H.W. Gay Enterprises, Inc. v. John Hall Elec. Contracting, Inc., App. 4 Dist., 792 So.2d 580 (2001), rehearing denied. Subcontractor's oral agreement with general contractor to build metal wardrobes in dormitory was not subject to arbitration, although parties had also entered into written contract for installation of doors which contained arbitration provision, where oral subcontract did not incorporate arbitration provisions from original subcontract. Eugene W. Kelsey & Son, Inc. v. Architectural Openings, Inc., App. 5 Dist., 484 So.2d 610 (1986), review denied 492 So.2d 1330. Where party to contract which contained arbitration provision acknowledged general conditions pertaining to contract, party was assumed to have known and was charged with knowledge of arbitration provision. Marthame Sanders & Co. v. 400 West Madison Corp., App. 4 Dist., 401 So.2d 1145 (1981). Provisions in a contract providing for arbitration must be definite enough so that parties at least have some idea as to what particular matters are to be submitted to arbitration and set forth some procedures by which arbitration is to be effected. Wood-Hopkins Contracting Co. v. C. H. Barco Contracting Co., Inc., App. 1 Dist., 301 So.2d 479 (1974). Ambiguous provisions dealing with arbitration will be construed against arbitration disputes arising out of contract or its performance. Wood-Hopkins Contracting Co. v. C. H. Barco Contracting Co., Inc., App. 1 Dist., 301 So.2d 479 (1974). Where contractor and subcontractor agreed in writing to submit contested costs of contract alterations to architect for final decision but did not agree in writing to submit any controversy between them to arbitration, arbitration was not a condition precedent to court action. Wiggs & Maale Const. Co. v. Stone Flex, Inc., App. 4 Dist., 263 So.2d 607 (1972).
Where subcontract contained provision incorporating general contract by reference and general contract included reference to American Institute of Architects general provisions which contained arbitration clause, subcontractor was entitled to arbitration as to dispute involving items covered in subcontract. Frank J. Rooney, Inc. v. Charles W. Ackerman of Fla. Inc., App. 3 Dist., 219 So.2d 110 (1969), certiorari dismissed 230 So.2d 13. .6 8. Effect of arbitration agreements Party who has entered into contract requiring arbitration may not flagrantly disregard this contractual prerequisite, march down to courthouse, file complaint of foreclosure and demand attorney's fee by reason of ignoring at outset his contractual duty to arbitrate. Oakdale Park, Ltd. v. Byrd, App. 1 Dist., 346 So.2d 648 (1977). When parties agreed to arbitration, they gave up some of the safeguards which are traditionally afforded those who go to court, including the right to have the evidence weighed in accordance with legal principles. Affiliated Marketing, Inc. v. Dyco Chemicals & Coatings, Inc., App. 2 Dist., 340 So.2d 1240 (1976), certiorari denied 353 So.2d 675. Where both parties voluntarily entered construction contract and mutually agreed to submit to arbitration any differences that might arise between them during progress of carrying out construction work under agreement, all contentions made by owner with reference to alleged invalidity of contract and/or allegedly wrongful actions of contractor pursuant thereto should have been resolved within framework of arbitration rather than judicial process. Merkle v. Rice Const. Co., App. 2 Dist., 271 So.2d 220 (1973), certiorari denied 274 So.2d 234. Where agreement contained provision that any controversy should be settled by arbitration before action could be brought, and plaintiff in his "action for damages" alleged that defendant made false promises and representations and falsely made inducements to get plaintiff to enter into the contract but concluded by demanding judgment for compensatory and punitive damages, complaint did not allege necessary elements of suit in rescission or cancellation but constituted suit upon contract seeking damages which plaintiff was precluded from bringing by the agreement to arbitrate. Watson v. Chase Chemical Corp., App. 1 Dist., 249 So.2d 53 (1971). Where parties include a provision for settlement by arbitration of any controversy thereafter arising between them relating to written contract they are bound thereby. Bohlmann v. Allstate Ins. Co., App. 2 Dist., 171 So.2d 23 (1965). 9. Construction of arbitration agreements Like all contracts, each arbitration agreement is unique; although it may employ some standard terms, the contract must be construed and understood in light of its whole text, context, structure, and purpose, and the entire undertaking must be considered. Aberdeen Golf & Country Club v. Bliss Const., Inc., App. 4 Dist., 932 So.2d 235 (2005).
Arbitration clause in airport terminal renovation contract between construction manager and sub-contractor was effective to resolve dispute between those parties, even though construction manager claimed arbitration clause was ineffective as prime contract and lease agreement between county and airline required resolution of disputes in court; sub-contract required arbitration only if prime contract contained no specific requirement for resolution of disputes, both lease agreement and prime contract included only permissive jurisdiction and venue clauses, and public policy favored resolution of disputes by arbitration. Turner Const. Co. v. Advanced Roofing, Inc., App. 3 Dist., 904 So.2d 466 (2005), rehearing and rehearing en banc denied. The determination of whether an arbitration clause requires arbitration of a particular dispute necessarily rests on the intent of the parties. Citigroup, Inc. v. Amodio, App. 4 Dist., 894 So.2d 296 (2005), review denied 911 So.2d 792. Arbitration provisions are construed following principles of contract interpretation. Vargas v. Schweitzer-Ramras, App. 3 Dist., 878 So.2d 415 (2004), rehearing denied. Arbitration and limitation of liability clauses of termite extermination contract, which were ambiguous as to whether they waived liability and arbitration of all claims based on causes of action for breach of contract, torts, and statutory violations, or instead waived liability and arbitration only as to claims for certain damages arising from those causes of action, would be construed as a waiver only with respect to claims for certain damages, in light of Florida's policy favoring arbitration of disputes; thus, the contract did not waive arbitration of customers' claims for damages, attorney fees, and injunctive relief under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). Orkin Exterminating Co. v. Petsch, App. 2 Dist., 872 So.2d 259 (2004), rehearing denied, review denied 884 So.2d 23. Public policy favors arbitration as an efficient means of settling disputes, because it avoids the delays and expenses of litigation. KFC Nat. Management Co. v. Beauregard, App. 5 Dist., 739 So.2d 630 (1999). Policy clause providing that if insured and insurer fail to agree on amount of loss, either could demand amount of loss be set by appraisal was in effect "arbitration agreement." Intracoastal Ventures Corp. v. Safeco Ins. Co. of America, App. 4 Dist., 540 So.2d 162 (1989). Policy authorizing either insured or insurer to reject at will arbitration award in excess of $10,000 was not contrary to this chapter or to public policy. Roe v. Amica Mut. Ins. Co., 533 So.2d 279 (1988). Provision in subcontract to effect that all claims, disputes and other matters in question arising out of, or relating to, subcontract, or breach thereof, were to be decided by arbitration conducted in same manner and under same procedure as provided in prime contract was framed in binding, obligatory language and, hence, was such as to require
arbitration of dispute as to whether contractor could "back-charge" subcontractor for remedial work performed by another subcontractor. Lake Plumbing, Inc. v. Seabreeze Const. Corp., App. 2 Dist., 493 So.2d 1100 (1986). Dispute as to whether filing of partition suit regarding real property would result in an "event of default" under related loan documents, incorporated into contract, was within provision for arbitration of "any" dispute. Riverfront Properties, Ltd. v. Max Factor III, App. 2 Dist., 460 So.2d 948 (1984). Arbitrator did not exceed his authority in interpreting collective bargaining agreement to give employer power to discipline employees for just cause but authorizing arbitrator to determine whether infractions under surrounding facts and circumstances justified the particular punishment, as agreement charged arbitrator with interpreting it; thus, determination by arbitrator that dismissal of bus driver who had pushed passenger was too severe for proven infraction was not in excess of his authority. Amalgamated Transit Union, Local 1593, AFL-CIO v. Hillsborough Area Regional Transit Authority, App. 2 Dist., 450 So.2d 590 (1984). Where buyer purchased automobile from seller and signed buyer's order which contained arbitration provision, and where plain language of buyer's order demonstrated that the parties contemplated additional documents when buyer's order was signed and accepted, subsequently executed installment sale contract, which contained no arbitration provision, did not supersede buyer's order; thus arbitration clause remained in effect. Morse Operations, Inc. v. Sonar Radio Corp., App. 4 Dist., 449 So.2d 1002 (1984). Generally, arbitration agreements are favored in the law. U.S. Fire Ins. Co. v. Franko, App. 1 Dist., 443 So.2d 170 (1983). Property owners, whose contract for construction of driveway and grading and filling their property included American Institute of Architect's General Conditions, were entitled to arbitrate their dispute with contractor over quality of fill used, despite their failure to first present dispute to architect, where no architect was involved with project. Manalili v. Commercial Mowing and Grading, App. 2 Dist., 442 So.2d 411 (1983). Phrase "net proceeds alleged to be owed," in arbitration provision, meant amount alleged in the arbitration proceedings and, hence, the party in arbitration with wife was not entitled to setoff for damages allegedly caused by husband in connection with stock purchase agreement where a dispute with husband was pending in circuit court and setoff was not available until claim for money was made in the arbitration proceedings. Heede Industries, Inc. v. Ratner, App. 4 Dist., 436 So.2d 371 (1983). Where arbitration agreement was collateral to main contractual matters, trial court did not depart from essential requirements of law in finding arbitration clause severable. R.W. Roberts Const. Co., Inc. v. St. Johns River Water Management Dist. for Use and Ben. of McDonald Elec., App. 5 Dist., 423 So.2d 630 (1982).
Language of arbitration clause providing that all claims by subcontractor against general contractor involving subcontractor project were to be submitted to arbitration in same manner as provided in general contract unless those provisions should prove invalid for arbitration in which event the arbitration provisions of state statutes should prevail was ambiguous, in view of provisions of general contract, and was thus to be given reasonable construction. R.W. Roberts Const. Co., Inc. v. St. Johns River Water Management Dist. for Use and Ben. of McDonald Elec., App. 5 Dist., 423 So.2d 630 (1982). Right of partner to compel arbitration was clear, regardless of whether arbitration clause made arbitration optional or mandatory, where partner insisted upon its option to arbitrate dispute by submitting controversy to named arbitrator simultaneously with filing motion to compel arbitration and where dispute between partners as to entitlement to funds was disagreement or controversy within meaning of arbitration clause, unless party waived its right to arbitrate by action inconsistent with arbitration. Ziegler v. Knuck, App. 3 Dist., 419 So.2d 818 (1982). Though the owner of soccer team denied any additional obligation to play and pay player beyond November 1981, owner did not and indeed could not deny that the obligation arose if at all out of contract documents, one of which explicitly required binding arbitration of disputes arising under contract, and record revealed that binding arbitration of contract disputes was required by the collective bargaining agreement between the North American soccer league and the players association, as bargaining agent; thus, parties should be directed to proceed with arbitration of dispute regarding pay and play during the indoor season. Lipton Professional Soccer, Inc. v. Mijatovic, App. 1 Dist., 416 So.2d 1236 (1982). Arbitration clause found in contract between owner and contractor, which provided that arbitration would be conducted under Rules of American Arbitration Association, was considered one which merely expressed method to be followed, not choice to arbitrate in foreign jurisdiction or stipulation that Arbitration Code did not apply. Post Tensioned Engineering Corp. v. Fairways Plaza Associates, App. 3 Dist., 412 So.2d 871 (1982), review denied 419 So.2d 1197. ; Collective bargaining agreement should be broadly construed and all doubts resolved in favor of arbitrator's authority, but arbitrator cannot rewrite agreement and he is bound by it. School Bd. of Seminole County v. Cornelison, App. 5 Dist., 406 So.2d 484 (1981), review denied 421 So.2d 67. In settlement agreement, provision for arbitration as to disputes relating to adequacy and sufficiency of required repairs to vessel would have to be read in connection with warranty, also a part of settlement agreement, that vessel would be seaworthy and would not leak for year after the required repairs were made, and breach of warranty which thus was tied in with required repairs would involve questions or disputes as to adequacy or sufficiency of such repairs, determination of which the contract provided should be by arbitration. Pacemaker Corp. v. Euster, App. 3 Dist., 357 So.2d 208 (1978).
Even if Department of Health and Rehabilitative Services and corporation which was to act as an administrator of Medicaid Pharmaceutical Benefits Program had agreed to settle question for which arbitration was sought by corporation, agreement amounted to amendment to existing contract and therefore would have been covered by arbitration clause of that contract. Paid Prescriptions v. Department of Health and Rehabilitative Services, App. 1 Dist., 350 So.2d 100 (1977). Absent statutory authority of State Arbitration Code to enforce an arbitration provision within contract, such a provision is voidable at instance of either party and may not be used as a bar to an action by either party in a court of competent jurisdiction. Damora v. Stresscon Intern., Inc., 324 So.2d 80 (1975). Agreements to arbitrate disputes are generally looked upon with favor by court. Knight v. H. S. Equities, Inc., App. 4 Dist., 280 So.2d 456 (1973). Unless agreement to arbitrate complies with Florida Arbitration Code, agreement is not specifically enforceable in judicial proceeding in Florida. Knight v. H. S. Equities, Inc., App. 4 Dist., 280 So.2d 456 (1973). Agreement to arbitrate is governed by provisions of Florida Arbitration Code (this chapter). Travelers Ins. Co. v. Luckett, App. 3 Dist., 279 So.2d 885 (1973). Mere execution of contract containing an arbitration provision did not imply an intent to relinquish contractor's right to judicial enforcement of a mechanic's lien for amounts found due under the contract. Mills v. Robert W. Gottfried, Inc., App. 4 Dist., 272 So.2d 837 (1973). Agreements to arbitrate are strictly construed. Frank J. Rooney, Inc. v. Charles W. Ackerman of Fla. Inc., App. 3 Dist., 219 So.2d 110 (1969), certiorari dismissed 230 So.2d 13. An agreement to employ rules of procedure different from those provided in Arbitration Code (now this chapter) does not constitute a stipulation that the remaining provisions of the Code shall not apply to the arbitration. Netherlands Ins. Co. v. Moore, App. 1 Dist., 190 So.2d 191 (1966). 10. Validity of agreements--In general If parties have the legal ability to enter into an agreement to arbitrate statutory causes of action, there is no legal impediment preventing parties from agreeing to arbitrate an issue which traditionally is left to a court to decide. Thomas v. United Wisconsin Life Ins. Co., M.D.Fla.2004, 348 F.Supp.2d 1320. Arbitration provision in purchase agreement between automobile buyer and automobile dealership was procedurally unconscionable, where arbitration provision was located on back of agreement, language on front of agreement alerting buyer to terms on back was in
the smallest type on the page, and dealership employees testified that it was not their practice to inform customers of terms on back of agreement or of arbitration provision, and that they did not inform buyer of these terms. Palm Beach Motor Cars Ltd., Inc. v. Jeffries, App. 4 Dist., 885 So.2d 990 (2004). Where one party is bound to arbitration of its claims but the other is not, there can be substantive unconscionability of the arbitration clause. Palm Beach Motor Cars Ltd., Inc. v. Jeffries, App. 4 Dist., 885 So.2d 990 (2004). For purposes of determining whether an arbitration clause is unconscionable, "procedural unconscionability" relates to the manner in which the contract was entered and involves such issues as the relative bargaining power of the parties and their ability to know and understand the disputed contract terms. Palm Beach Motor Cars Ltd., Inc. v. Jeffries, App. 4 Dist., 885 So.2d 990 (2004). Insured's claim that insurer breached health insurance policy by denying coverage for cost of treating her leukemia was subject to arbitration under policy's arbitration clause; clause called for arbitration of "any disputes," and there were no other provisions of the policy that specifically excluded any particular disputes from arbitration or showed an intent by the parties to exclude certain claims from arbitration. Sims v. Clarendon Nat. Ins. Co., S.D.Fla.2004, 336 F.Supp.2d 1311. The procedural component of unconscionability relates to the manner in which the contract was entered into; it involves consideration of the relative bargaining power of the parties and their ability to know and understand the disputed contract terms. Sims v. Clarendon Nat. Ins. Co., S.D.Fla.2004, 336 F.Supp.2d 1311. An agreement to submit to arbitration before the American Arbitration Association (AAA) is not substantively unconscionable simply because it is silent as to who is required to pay fees because the arbitration rules note that fees may be deferred or reduced in the event of hardship. Sims v. Clarendon Nat. Ins. Co., S.D.Fla.2004, 336 F.Supp.2d 1311. Whether an arbitration clause is unconscionable is a question of state law. Sims v. Clarendon Nat. Ins. Co., S.D.Fla.2004, 336 F.Supp.2d 1311. Where a contract specifies the state law to be applied, such provision will ordinarily be given effect in deciding the parties' right to arbitrate. Sims v. Clarendon Nat. Ins. Co., S.D.Fla.2004, 336 F.Supp.2d 1311. Arbitration agreement between nursing home and nursing home resident was not rendered invalid by resident being legally blind at time that she signed agreement; resident was not coerced into signing agreement or prevented by nursing home from knowing agreement's contents. Estate of Etting ex rel. Etting v. Regents Park at Aventura, Inc., App. 3 Dist., 891 So.2d 558 (2004), rehearing and rehearing en banc denied, review dismissed 900 So.2d 553.
Procedural unconscionability of an arbitration clause relates to the manner in which the contract was entered into and involves such issues as the relative bargaining power of the parties and their ability to know and understand the disputed contract terms. Tropical Ford, Inc. v. Major, App. 5 Dist., 882 So.2d 476 (2004). In order to invalidate an arbitration clause as unconscionable, the court must find that the clause is both procedurally and substantively unconscionable. Tropical Ford, Inc. v. Major, App. 5 Dist., 882 So.2d 476 (2004). No party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate. Morgan Stanley DW Inc. v. Halliday, App. 4 Dist., 873 So.2d 400 (2004), rehearing denied. Arbitration clause of termite extermination contract was not procedurally unconscionable; clause was contained in original contract between parties and it was in large type on first page of agreement rather than being buried in maze of fine print. Orkin Exterminating Co. v. Petsch, App. 2 Dist., 872 So.2d 259 (2004), rehearing denied, review denied 884 So.2d 23. Whether an arbitration agreement governed by the Federal Arbitration Act (FAA) was unconscionable and therefore unenforceable was a question of state law. Orkin Exterminating Co. v. Petsch, App. 2 Dist., 872 So.2d 259 (2004), rehearing denied, review denied 884 So.2d 23. Whether nursing home's contractual arbitration provision was procedurally or substantively unconscionable needed to be addressed by trial court in malpractice action against nursing home before arbitration was compelled pursuant to the provision. Algayer v. Health Center of Panama City, Inc., App. 1 Dist., 866 So.2d 75 (2003), rehearing denied. Evidence was insufficient as a matter of law to permit finding that the nursing home admission contract containing the mandatory arbitration provision was a contract of adhesion, absent any evidence to support finding that it was offered to resident's daughter who held power of attorney on a "take-it-or-leave-it" basis, that had daughter so requested, the arbitration provision would not have been deleted, and that the daughter could not have obtained a satisfactory placement for her mother except by acquiescing to the terms as written. Gainesville Health Care Center, Inc. v. Weston, App. 1 Dist., 857 So.2d 278 (2003), rehearing denied. Whether person holding power of attorney for nursing home resident was not told that, by signing the admission contract containing the arbitration provision, the resident would be giving up the right to a trial in a court, that resident's choice of arbitrators would be limited to a group likely to be biased in favor of nursing home, that the burden of persuasion on some types of claims would be greater than it would in a court, and that
resident would be subject to a different rule regarding the award of attorney's fees from that applicable in a court was insufficient, as a matter of law, to support the conclusion that the arbitration provision was procedurally unconscionable. Gainesville Health Care Center, Inc. v. Weston, App. 1 Dist., 857 So.2d 278 (2003), rehearing denied. Evidence supported a finding that there was a meeting of the minds with respect to arbitration clause contained in nursing home admission agreement; although the son of a person admitted to the nursing home testified that he did not understand the agreement contained an arbitration clause when signing it, he also testified that he had signed the agreement willingly, but had not read it, the nursing home representative testified that she had given him an opportunity to read and ask questions about the agreement, but that he had not done so, and there was no evidence that he had been forced or coerced to sign the agreement. Consolidated Resources Healthcare Fund I, Ltd. v. Fenelus, App. 4 Dist., 853 So.2d 500 (2003). Arbitration clause in nursing home admission agreement, which compelled arbitration of any controversy or claim arising out of or related to agreement, was not procedurally or substantively unconscionable; although clause did not allow signor chance to affirmatively release his right to trial, arbitration clause was fair, optional, could be refused, did not appear in small print, and was titled in boldface, and signor willingly signed agreement after opportunity to read and ask questions about it. Consolidated Resources Healthcare Fund I, Ltd. v. Fenelus, App. 4 Dist., 853 So.2d 500 (2003). Where contract between parties specifies state law to be applied, such provision will ordinarily be given effect in deciding parties' right to arbitrate. Marine Environmental Partners, Inc. v. Johnson, App. 4 Dist., 863 So.2d 423 (2003). An agreement to arbitrate statutory claims is enforceable if it provides an adequate mechanism for pursuing statutory rights and does not defeat the remedial purpose of the statute under which the claim is brought; the plaintiff should be able to obtain the same relief via arbitration as would be available in court. Brasington v. EMC Corp., App. 1 Dist., 855 So.2d 1212 (2003). Arbitration clause in employment contract, requiring employee to pay her own attorney fees and arbitration expenses and one-half arbitrator's fee if she participated in arbitrator's selection, did not deprive employee of her statutory right to fee-shifting under state Civil Rights Act and Whistleblower Act, and thus, arbitration clause was enforceable, absent any showing that expenses of arbitration would be so high as to prevent her from pursuing her claims, and considering that she would be able to recover her costs and fees if she prevailed, just as she would in court, and she could appeal any ruling by arbitrator on costs and fees to the circuit court. Brasington v. EMC Corp., App. 1 Dist., 855 So.2d 1212 (2003). In the absence of a showing that a fee-splitting provision in an arbitration clause of an employment contract would effectively deny remedies available by statute, the court must
enforce the agreement to arbitrate. Brasington v. EMC Corp., App. 1 Dist., 855 So.2d 1212 (2003). Arbitration clause of employment contract was not procedurally unconscionable, even though employer's arbitration policy was not provided to employee at time she signed contract, where policy was referenced in contract, employee could easily have obtained a copy of policy, arbitration clause was final paragraph of the contract and was printed just above the line for the employee's signature, it was headed "Arbitration," in bold print and underlined, and plainly stated that disputes relating to or arising out of the employment were subject to arbitration, and employer advised employee in writing that she should seek advice of counsel before signing. Brasington v. EMC Corp., App. 1 Dist., 855 So.2d 1212 (2003). In order to invalidate an arbitration clause as unconscionable, the court must find that the clause is both procedurally and substantively unconscionable. Stewart Agency, Inc. v. Robinson, App. 4 Dist., 855 So.2d 726 (2003), rehearing denied. In determining whether an arbitration clause is unconscionable, substantive unconscionability focuses on the actual agreement and whether the terms are unreasonable and unfair. Stewart Agency, Inc. v. Robinson, App. 4 Dist., 855 So.2d 726 (2003), rehearing denied. Arbitration clause contained in vehicle sales contract, which compelled arbitration of all controversies or claims concerning the sale, was not substantively unconscionable; arbitrators were free to enter award having injunctive or declaratory component, clause was silent as to who was required to pay fees, and arbitration rules noted that fees could be deferred or reduced in event of hardship. Stewart Agency, Inc. v. Robinson, App. 4 Dist., 855 So.2d 726 (2003), rehearing denied. In determining whether an arbitration clause is unconscionable, the cost of arbitration is a matter of substantive, not procedural, unconscionability. Stewart Agency, Inc. v. Robinson, App. 4 Dist., 855 So.2d 726 (2003), rehearing denied. Arbitration agreement contained within employment agreement between professional football coach and professional football team was unenforceable and voidable under state law. Jensen v. Rice, App. 3 Dist., 809 So.2d 895 (2002), on subsequent appeal 876 So.2d 1264. Written agreements to arbitrate are binding and enforceable. KFC Nat. Management Co. v. Beauregard, App. 5 Dist., 739 So.2d 630 (1999). Agreement to arbitrate all employment-related claims, signed by former employee after she was allegedly attacked by co-employee but before she filed complaint against employer for negligent hiring, barred former employee's action. KFC Nat. Management Co. v. Beauregard, App. 5 Dist., 739 So.2d 630 (1999).
Provision in bylaws of board of realtors requiring that disputes between realtor members be submitted to arbitration constituted binding agreement to submit commission dispute to arbitration, which was enforceable under this section. Elbadramany v. Stanley, App. 5 Dist., 490 So.2d 964 (1986). An otherwise valid arbitration agreement is not enforceable if it incorporates the law of another state. Riverfront Properties, Ltd. v. Max Factor III, App. 2 Dist., 460 So.2d 948 (1984). Where no substantial issue existed as to making of agreement or provision for arbitration, trial court was obligated to send matter to arbitration regardless of "justiciable character of the controversy." Walter L. Keller & Associates, P.A. v. Health Management Foundation, App. 2 Dist., 438 So.2d 1076 (1983). Employment agreement between stock brokerage firm and its employee was a contract involving interstate commerce thereby making United States Arbitration Act (9 U.S.C.A. § 1 et seq.) applicable; thus, contract's arbitration provision was valid and enforceable in Florida courts, even though foreign state law was incorporated in arbitration agreement. Butcher & Singer, Inc. v. Frisch, App. 4 Dist., 433 So.2d 1360 (1983). There being no challenge made by owner to making of a contract with a contractor, much less making of included provision for arbitration, unchallenged arbitration clause was valid regardless of justiciable character of controversy and an alleged breach of a valid contract did not forfeit included agreement to arbitrate, but rather made question of breach one to be decided in arbitration. Post Tensioned Engineering Corp. v. Fairways Plaza Associates, App. 3 Dist., 412 So.2d 871 (1982), review denied 419 So.2d 1197. Provision of written agreement concerning arbitration of disputes among owner, broker, and developer pertaining to sale and development of certain real property was not void or unenforceable, and thus trial court properly granted motion compelling arbitration between parties pursuant to such provision and staying further proceedings in action in which plaintiffs sought injunction, accounting, and appointment of receiver. Collier Land Corp. v. Royal Palm Beach Realty, Inc., App. 3 Dist., 338 So.2d 859 (1976), certiorari denied 348 So.2d 945. Contractual provision that parties to contract would arbitrate future disputes in another jurisdiction constituted a rejection of the State Arbitration Code (this chapter); thus, the agreement to arbitrate was voidable at instance of either party and could not be used as a bar to action by either party in a court of competent jurisdiction. Damora v. Stresscon Intern., Inc., 324 So.2d 80 (1975). It could not be said that parties to subcontract had agreed to arbitrate, where the only mention of arbitration stated that subcontractor could submit evidence in any arbitration proceeding under conditions set forth in general contract, and general contract was silent on subject of arbitration. Wood-Hopkins Contracting Co. v. C. H. Barco Contracting Co., Inc., App. 1 Dist., 301 So.2d 479 (1974).
Arbitration clause contained in lease between airport authority and restaurant was invalid and inoperative where lease was executed prior to effective date of arbitration code. Bartke's, Inc. v. Hillsborough County Aviation Authority, App. 2 Dist., 217 So.2d 885 (1969), supplemented 225 So.2d 174, certiorari denied 229 So.2d 867. Rights in property clearly not covered by a lease containing arbitration clause could not be created by arbitration. Bartke's, Inc. v. Hillsborough County Aviation Authority, App. 2 Dist., 217 So.2d 885 (1969), supplemented 225 So.2d 174, certiorari denied 229 So.2d 867. 11. ---- Controversies arising in future, validity of agreements Arbitration agreement between employer and employee, containing broad, all-inclusive language that would cover any claim or dispute that might have arisen between the parties, including those arising under the Florida Civil Rights Act (FCRA), was not vague, so as to be unenforceable, just because it did not specifically set forth claims that were covered. Lemmon v. Lincoln Property Co., M.D.Fla.2004, 307 F.Supp.2d 1352. Contract provisions for arbitration of all claims disputes and other matters arising out of or relating to a construction contract were not contrary to public policy of the state, and should be enforced in accordance with the Florida arbitration code (this chapter). Mills v. Robert W. Gottfried, Inc., App. 4 Dist., 272 So.2d 837 (1973). Exception to general rule that agreements to arbitrate disputes arising in future will not be enforced by courts as tending to oust courts' jurisdiction is provided for by provisions now contained in this section which authorizes agreements to arbitrate future disputes between insurer and insured relative to injury and damage occasioned by uninsured motorist. Cruger v. Allstate Ins. Co., App. 3 Dist., 162 So.2d 690 (1964). 12. ---- Mutuality of obligation, validity of agreements Acknowledgement form that employee signed, acknowledging receipt of employee handbook and agreeing to arbitrate any complaints arising out of her employment, pursuant to procedures in handbook, formed binding arbitration agreement between employee and employer, and agreement was not rendered unenforceable by fact that employer retained right to alter handbook; employer could not unilaterally alter arbitration agreement, itself, and employer and employee were mutually bound by terms of agreement. Lemmon v. Lincoln Property Co., M.D.Fla.2004, 307 F.Supp.2d 1352. Arbitration clause of termite extermination contract was not a contract of adhesion, though it was a preprinted provision of the contract. Orkin Exterminating Co. v. Petsch, App. 2 Dist., 872 So.2d 259 (2004), rehearing denied, review denied 884 So.2d 23. Statute governing enforceability of arbitration agreements did not prohibit arbitration clause in contract under which engineering firm agreed to provide services to shopping
center developer, even though clause provided for disputes to be submitted to arbitration at the sole discretion of firm. Avid Engineering, Inc. v. Orlando Marketplace Ltd., App. 5 Dist., 809 So.2d 1 (2001), rehearing denied. Statute governing enforceability of arbitration agreements allows two or more parties to arbitrate "any controversy," including those controversies in which only one party has the right to arbitrate. Avid Engineering, Inc. v. Orlando Marketplace Ltd., App. 5 Dist., 809 So.2d 1 (2001), rehearing denied. Mutuality of obligation pertains to consideration, while mutuality of remedy pertains to the means of enforcing the contract. Avid Engineering, Inc. v. Orlando Marketplace Ltd., App. 5 Dist., 809 So.2d 1 (2001), rehearing denied. Arbitration clause in contract under which engineering firm agreed to provide services to shopping center developer was not void for lack of mutuality of obligation, where firm specifically agreed to perform engineering services in exchange for money. Avid Engineering, Inc. v. Orlando Marketplace Ltd., App. 5 Dist., 809 So.2d 1 (2001), rehearing denied. Arbitration agreements are contractual and must fulfill requirements of contract, and mutuality of obligation is requirement although means of enforcement may differ without necessarily affecting reciprocal obligations. R.W. Roberts Const. Co., Inc. v. St. Johns River Water Management Dist. for Use and Ben. of McDonald Elec., App. 5 Dist., 423 So.2d 630 (1982). Arbitration clause which required arbitration of all claims of subcontractor against general contractor but not those of general contractor lacked mutuality of obligation. R.W. Roberts Const. Co., Inc. v. St. Johns River Water Management Dist. for Use and Ben. of McDonald Elec., App. 5 Dist., 423 So.2d 630 (1982). 13. Rescission of arbitration agreements Where construction contract for extensive remodeling of residence contained an arbitration clause, arbitration was properly enjoined after general contractor sought rescission of the contract on the ground of mutual mistake. Borck v. Holewinski, App. 4 Dist., 459 So.2d 405 (1984). If a prima facie case is made to support a claim for rescission, arbitration provided for in the contract is abated pending trial of the rescission issue; if rescission is granted, the court is to continue with such further proceedings as required to return the parties to their original positions, but if rescission is denied, the court must then determine whether it will retain jurisdiction upon demand of either of the parties for arbitration. Borck v. Holewinski, App. 4 Dist., 459 So.2d 405 (1984). 14. Insurance policies--In general
Under Florida law, confirmation of appraisal award in insurance case utilizing Florida's Arbitration Code's confirmation process was appropriate, despite differences between appraisal and arbitration provisions. Three Palms Pointe, Inc. v. State Farm Fire and Cas. Co., M.D.Fla.2003, 250 F.Supp.2d 1357, affirmed 362 F.3d 1317. Appraisal clause in property insurance policy was an arbitration clause subject to the Arbitration Code. Hoenstine v. State Farm Fire and Cas. Co., App. 5 Dist., 736 So.2d 761 (1999), rehearing denied 742 So.2d 853. Appraisal provision of homeowners' insurance policy was "arbitration agreement" for issue whether coverage for loss at replacement cost required insurer to replace entire roof with unique ceramic tiles or replace only damaged and missing tiles, and, thus, arbitration code required insureds to submit to arbitration as condition precedent to maintaining action on policy. Florida Farm Bureau Cas. Ins. Co. v. Sheaffer, App. 1 Dist., 687 So.2d 1331 (1997), rehearing denied, review denied 697 So.2d 510. Dispute whether homeowners' insurer was required to replace roof built with unique ceramic tiles or replace only damaged and missing tiles was not "coverage issue," and, therefore, could be subject of arbitration or appraisal; dispute concerned only amount of loss. Florida Farm Bureau Cas. Ins. Co. v. Sheaffer, App. 1 Dist., 687 So.2d 1331 (1997), rehearing denied, review denied 697 So.2d 510. Where amount owed on insurance claim, arguably within policy coverage, is dependent on resolution of disputed issues of fact and application of policy language to those facts, extent of claim does not constitute "coverage" question reserved for court, as opposed to arbitrator. J.J.F. of Palm Beach, Inc. v. State Farm Fire and Cas. Co., App. 4 Dist., 634 So.2d 1089 (1994). Coverage question reserved for court, as opposed to arbitrator, is merely whether claim is arguably within class of claims covered by policy and, thus, arbitration provision. J.J.F. of Palm Beach, Inc. v. State Farm Fire and Cas. Co., App. 4 Dist., 634 So.2d 1089 (1994). Trial judge was not authorized to disturb arbitrator's decision in insurance dispute under rubric of deciding issue of "coverage," even if, as trial judge found, arbitrator had used legally incorrect measure of damage; under policy provision, whether claimant was actually entitled under facts of case to be paid on claim and, if so, precise amount to which claimant was entitled, were questions reserved for arbitrator. J.J.F. of Palm Beach, Inc. v. State Farm Fire and Cas. Co., App. 4 Dist., 634 So.2d 1089 (1994 Questions concerning disputed insurance coverage are generally not proper subjects for arbitration. Lumbermens Mut. Cas. Co. v. Meade, App. 5 Dist., 404 So.2d 1141 (1981), approved 423 So.2d 908. An arbitration award in an insurance proceeding should be conclusive as to issue submitted to arbitration but it should not have any binding effect as to matters which may
affect liability of insurance carrier for reasons extrinsic to issues arbitrated. Lumbermens Mut. Cas. Co. v. Meade, App. 5 Dist., 404 So.2d 1141 (1981), approved 423 So.2d 908. Valid agreement to arbitrate amount of damages between insured and insurer, and subsequent award based thereon, are binding on parties. Travelers Ins. Co. v. Luckett, App. 3 Dist., 279 So.2d 885 (1973). Agreement in fire policy to submit all matters in dispute to arbitration did not undertake to oust courts of their jurisdiction, and such arbitration was not required to be conducted in accordance with former §§ 57.01 to 57.09 (see, now, § 682.01 et seq.) Hanover Fire Ins. Co. v. Lewis, 28 Fla. 209, 10 So. 297 (1891). 15. ---- Demand for jury trial, insurance policies Arbitrator's award of $225,000 to insured against insurer for injuries sustained in automobile accident pursuant to uninsured motorist provision of policy was properly not confirmed and was subject to jury trial, as insurer made timely demand for jury trial pursuant to provision of policy permitting jury trial for awards over $10,000; policy provision allowing for jury trial after arbitration award did not violate public policy or arbitration code. Amica Mut. Ins. Co. v. Roe, App. 2 Dist., 515 So.2d 1370 (1987), approved 533 So.2d 279. Arbitration award of $40,000 to wife on her derivative consortium claim arising out of injury sustained by husband in automobile accident against insurer was properly confirmed, as insurer did not make timely demand for jury trial pursuant to provision of policy permitting such demand to be made for awards in excess of $10,000. Amica Mut. Ins. Co. v. Roe, App. 2 Dist., 515 So.2d 1370 (1987), approved 533 So.2d 279. Arbitration provision in automobile policy which provided that uninsured motorist award in excess of $10,000 was not binding and that either party, in such case, could demand trial if dissatisfied with arbitration award contravened arbitration code and public policy and was thus null and void, so that claims brought under policy must be pursued in court of law. Berger v. Fireman's Fund Ins. Co., App. 3 Dist., 515 So.2d 997 (1987), review dismissed 519 So.2d 987. 16. ---- Automobile insurance policies Where plaintiff motorist was injured in two successive automobile accidents, first by insured motorist and subsequently by uninsured motorist, and injuries sustained in such accidents allegedly could not be apportioned, plaintiff could not join his uninsured motorist carrier in law action against insured motorist, but was bound by arbitration provision of uninsured motorist policy. Wells v. Aetna Ins. Co., App. 2 Dist., 332 So.2d 630 (1976), certiorari denied 342 So.2d 1104.
Failure of insurer to make settlement offer for claim under uninsured motorist coverage did not preclude insurer from insisting on arbitration pursuant to arbitration provision of policy. Harris v. State Farm Mut. Auto. Ins. Co., App. 2 Dist., 283 So.2d 147 (1973) Failure of insurer to pay medical bills in accordance with medical payments provision of policy did not preclude insurer from relying on policy provision requiring arbitration of claim under uninsured motorist coverage. Harris v. State Farm Mut. Auto. Ins. Co., App. 2 Dist., 283 So.2d 147 (1973) Section 627.0851 (now § 627.727) governing arbitration proceeding between insurer and insured under uninsured motorist clause of liability policy did not authorize reduction of amounts representing actual damages or losses incurred by insured or any costs necessarily incurred in establishing such damages in the arbitration proceeding. State Farm Mut. Auto. Ins. Co. v. Rutkin, 199 So.2d 705 (1967). Where costs incurred in arbitration proceeding between insurer and insured under uninsured motorist provision of liability policy are reasonably and necessarily incurred to substantiate a disputed claim and are not out of line with costs in litigated cases, they should be allowed as a matter of right and justice. State Farm Mut. Auto. Ins. Co. v. Rutkin, 199 So.2d 705 (1967). Where uninsured motorist clause of policy sued upon restricted arbitration to issues of the insured's right to recover against uninsured motorist and the amount of damages suffered, issue of coverage under policy could not be considered in arbitration proceeding. Netherlands Ins. Co. v. Moore, App. 1 Dist., 190 So.2d 191 (1966). Although uninsured motorist clause in automobile liability policy contained provision for arbitration in accordance with rules of American Arbitration Association, upon election of either party arbitration must be resorted to as a means of settling any dispute under uninsured motorist clause of policy and proceedings should be in accordance with provisions of Florida Arbitration Code (now this chapter). Netherlands Ins. Co. v. Moore, App. 1 Dist., 190 So.2d 191 (1966). Appointment of arbitrator by court was not required under uninsured motorist clause of automobile policy providing other method of appointment. Bohlmann v. Allstate Ins. Co., App. 2 Dist., 171 So.2d 23 (1965). 17. Local governments Without legislative authorization, county may not enter into an interlocal agreement which contains provision requiring or authorizing compulsory or binding arbitration. Op.Atty.Gen., 074-122, April 18, 1974. 18. Securities disputes
Investor/customers' claim against investment firm that was member of National Association of Securities Dealers (NASD), alleging negligent supervision of firm-affiliated broker in connection with investments made through broker, arose "in connection with the business activities" of firm, for purposes of NASD rule enabling investors to compel arbitration of such disputes, even though company unrelated to firm had offered securities in question; fact of broker's status under NASD rules as firm's "associated person," not fact of investment with unrelated company, was determinative, and firm's duty to supervise broker was part of its business. MONY Securities Corp. v. Bornstein, C.A.11 (Fla.)2004, 390 F.3d 1340. Investors who had bought securities from broker affiliated with investment firm that was member of National Association of Securities Dealers (NASD) were "customers" of firm for purposes of NASD Code of Arbitration Procedure, as required to enable investors to compel arbitration, under Code, of their claims that firm had breached several duties in connection with sales. MONY Securities Corp. v. Bornstein, C.A.11 (Fla.)2004, 390 F.3d 1340. Provision of National Association of Securities Dealers (NASD) Code of Arbitration, requiring arbitration of disputes "between or among members or associated persons and public customers, or others," applies to disputes solely among associated persons. Singer v. Gaines, App. 3 Dist., 896 So.2d 851 (2005). In deciding securities dispute concerning whether parties are bound by agreement to arbitrate, trial court must make factual determinations including whether customer of brokerage firm opened account, how account was to be maintained, and whether there is pertinent agreement to arbitrate. Shearson, Lehman, Hutton, Inc. v. Lifshutz, App. 4 Dist., 595 So.2d 996 (1992). Securities brokers could not compel arbitration of claims involving alleged misconduct in handling a brokerage account in absence of evidence that investors signed or assented to binding agreement to arbitrate, even though brokers produced standard brokerage contract with standard arbitration provision, other brokerage agreements signed by investors, and power of attorney signed by one investor. Shearson, Lehman, Hutton, Inc. v. Lifshutz, App. 4 Dist., 595 So.2d 996 (1992). 19. Actions and proceedings Under both federal statutory provisions and state arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Curtis v. Olson, App. 1 Dist., 837 So.2d 1155 (2003). It was for trial judge to determine whether to stay any nonarbitrable claims that arose out of construction contract, after most of property owner's claims against contractor had been referred to arbitration; it was for t
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682.03. Proceedings to compel and to stay arbitration (1) A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application. (2) If an issue referable to arbitration under an agreement or provision for arbitration subject to this law becomes involved in an action or proceeding pending in a court having jurisdiction to hear an application under subsection (1), such application shall be made in said court. Otherwise and subject to s. 682.19, such application may be made in any court of competent jurisdiction. (3) Any action or proceeding involving an issue subject to arbitration under this law shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay. (4) On application the court may stay an arbitration proceeding commenced or about to be commenced, if it shall find that no agreement or provision for arbitration subject to this law exists between the party making the application and the party causing the arbitration to be had. The court shall summarily hear and determine the issue of the making of the agreement or provision and, according to its determination, shall grant or deny the application. (5) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown. 1. In general The statutory directives of the statutory arbitration guide are mandatory in nature. Tandem Health Care Of St. Petersburg, Inc. v. Whitney, App. 2 Dist., 897 So.2d 531 (2005). Arbitration Key Number graphic 31
Florida courts may decline to enforce an arbitration agreement on the ground that it is unconscionable. Palm Beach Motor Cars Ltd., Inc. v. Jeffries, App. 4 Dist., 885 So.2d 990 (2004). Arbitration Key Number graphic 6.2 The party seeking to avoid enforcement of arbitration clause based on a claim of unconscionability has the burden of presenting sufficient evidence to find that the provision is unenforceable. Sims v. Clarendon Nat. Ins. Co., S.D.Fla.2004, 336 F.Supp.2d 1311. Arbitration Key Number graphic 23.10 Insurer by the filing of its application for an order directing arbitration admitted coverage as matter of law and was bound by laws of state regarding extent of coverage provided by uninsured motorist clause of its policy. Netherlands Ins. Co. v. Moore, App. 1 Dist., 190 So.2d 191 (1966). Insurance Key Number graphic 3277 2. Right to arbitrate When a party refuses to arbitrate a dispute in accordance with the policy's arbitration clause, the other party may bring an action to compel arbitration. U.S. Fidelity & Guar. Co. v. Romay, App. 3 Dist., 744 So.2d 467 (1999), rehearing denied. Insurance Key Number graphic 3282 Claim raised in suit for declaratory judgment as to validity of amendment to condominium association bylaws prohibiting unit owners from entering into short-term leases was arbitrable dispute, and thus, unit owner was entitled to compel arbitration, where, in passing on amendment to bylaws, court would necessarily have to construe declaration of condominium to determine whether declaration impliedly permitted unit owners to enter into short-term leases. Doan v. Amelia Retreat Condominium Ass'n, Inc., App. 1 Dist., 604 So.2d 1292 (1992). Arbitration Key Number graphic 7.5 A trial court's role when considering applications to compel arbitration is limited to determining whether a valid written agreement exists containing an arbitration clause, whether an arbitrable issue exists, and whether the right to arbitrate was waived. Piercy v. School Bd. of Washington County, Fla., App. 1 Dist., 576 So.2d 806 (1991). Arbitration Key Number graphic 23.13 General contractor who was sued by plumbing subcontractor was entitled to compel arbitration, as provision of contract for the plumbing work called for arbitration of claims, disputes or other questions arising out of or relating to the subcontract. Beemik Builders & Constructors, Inc. v. Huber Plumbing, Inc., App. 4 Dist., 476 So.2d 780 (1985). Arbitration Key Number graphic 23 Fact that dispute was allegedly not over amount of loss and that nonarbitrable claim was allegedly asserted subsequent to order sub judice did not preclude arbitration. U.S. Fire Ins. Co. v. Franko, App. 1 Dist., 443 So.2d 170 (1983). Insurance Key Number graphic 3277
Although owner had not only sued contractor with which it had a contract to arbitrate, but had sued and intended to sue others with which it had no such agreement, and with which, therefore, dispute must be litigated in court, threat of such piecemeal resolution of multiple disputes was not, ipso facto, sufficient to justify denial of contractor's motion to compel arbitration. Post Tensioned Engineering Corp. v. Fairways Plaza Associates, App. 3 Dist., 412 So.2d 871 (1982), review denied 419 So.2d 1197. Arbitration Key Number graphic 23 Contractor's right to compel arbitration under a contract with owner was unaffected by fact that owner's complaint alleged fraud, sought equitable relief, and concerned a complex construction industry dispute. Post Tensioned Engineering Corp. v. Fairways Plaza Associates, App. 3 Dist., 412 So.2d 871 (1982), review denied 419 So.2d 1197. Arbitration Key Number graphic 7.5 Where right to arbitrate is not in dispute, permitting parties to litigate dispute in court instead of proceeding by arbitration as agreed would constitute departure from essential requirements of law. Vic Potamkin Chevrolet, Inc. v. Bloom, App. 3 Dist., 386 So.2d 286 (1980). Arbitration Key Number graphic 8 3. Compelling arbitration To compel arbitration under National Association of Securities Dealers (NASD) Code of Arbitration Procedure, investor must show that his claim: (1) involves dispute between NASD member and customer, or between associated person of member and customer, and (2) arises in connection with business activities of member, or in connection with activities of associated person. MONY Securities Corp. v. Bornstein, C.A.11 (Fla.)2004, 390 F.3d 1340. Arbitration Key Number graphic 91 Under Florida law, court, not arbitrator, must first determine legality of contract before compelling arbitration pursuant to clause in same contract. Penberthy v. AT & T Wireless Services, Inc., M.D.Fla.2005, 354 F.Supp.2d 1323. Arbitration Key Number graphic 23.13 Under both federal and Florida law, there are three factors for the court to consider in determining a party's right to arbitrate: (1) a written agreement exists between the parties containing an arbitration clause; (2) an arbitrable issue exists; and (3) the right to arbitration has not been waived. Sims v. Clarendon Nat. Ins. Co., S.D.Fla.2004, 336 F.Supp.2d 1311. Arbitration Key Number graphic 6.1; Arbitration Key Number graphic 7.5; Arbitration Key Number graphic 23.3(1) The party opposing a motion to compel arbitration or to stay litigation pending arbitration has the affirmative duty of coming forward by way of affidavit or allegation of fact to show cause why the court should not compel arbitration. Sims v. Clarendon Nat. Ins. Co., S.D.Fla.2004, 336 F.Supp.2d 1311. Arbitration Key Number graphic 23.10
Under Florida law, appraisal clause in property and business interruption insurance policies was enforceable arbitration provision, and thus arbitration of dispute over amount of hurricane damage to insureds' businesses and property would be compelled, notwithstanding language in clause providing that insurer retained right to deny claim, where insureds agreed to submit to appraisal procedures outlined by clause, and insurer agreed to be bound by ultimate appraisal. Childs v. State Farm Fire and Cas. Co., S.D.Fla.1995, 899 F.Supp. 613, affirmed 158 F.3d 588. Insurance Key Number graphic 3250 There are three elements for courts to consider in ruling on a motion to compel the arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration was waived. Estate of Williams ex rel. Williams v. Manor Care of Dunedin, Inc., App. 2 Dist., 923 So.2d 615 (2006). Arbitration Key Number graphic 23.3(1) A motion to compel arbitration presents three questions: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration has been waived. Mora v. Abraham Chevrolet-Tampa, Inc., App. 2 Dist., 913 So.2d 32 (2005), rehearing denied. Arbitration Key Number graphic 23.7 Franchisees could not be compelled to arbitrate claims against competitor franchisee, as they had already arbitrated claims; rather, appropriate remedy for franchisees' alleged breach of franchise agreement was for franchisor to sue for breach of contract or intervene in federal action which franchisees had filed against competitor. Maschino v. Val-Pak Direct Marketing Systems, Inc., App. 2 Dist., 902 So.2d 196 (2005), rehearing denied. Arbitration Key Number graphic 23.7; Trade Regulation Key Number graphic 871(4) There are three elements which a court considers in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration was waived. Presidential Leasing, Inc. v. Krout, App. 5 Dist., 896 So.2d 938 (2005). Arbitration Key Number graphic 6.2; Arbitration Key Number graphic 7.5; Arbitration Key Number graphic 23.3(1) In ruling on a motion to compel arbitration, there are three elements that the trial court must consider: (1) whether a valid written agreement to arbitrate exists, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration was waived. Tandem Health Care Of St. Petersburg, Inc. v. Whitney, App. 2 Dist., 897 So.2d 531 (2005). Arbitration Key Number graphic 6.2; Arbitration Key Number graphic 7.5; Arbitration Key Number graphic 23.3(1) Three factors must be considered before a trial court may grant a motion to compel arbitration: whether a valid agreement to arbitrate exists, whether an arbitrable issue exists, and whether the right to arbitration was waived. Germann v. Age Institute of Florida, Inc., App. 2 Dist., 912 So.2d 590 (2005), rehearing denied. Arbitration Key
Number graphic 6.2; Arbitration Key Number graphic 7.5; Arbitration Key Number graphic 23.3(1) In proceeding to compel arbitration, no evidentiary hearing as to validity of arbitration agreement is necessary where evidence is undisputed. Houchins v. King Motor Co. of Fort Lauderdale, Inc., App. 4 Dist., 906 So.2d 325 (2005). Arbitration Key Number graphic 23.11 Because there was dispute over validity of first set of agreements, between purchasers of new car and automobile dealer, that dealer relied on to assert arbitration privilege, evidentiary hearing was required to determine whether valid arbitration agreement existed between parties in purchasers' action against dealer for alleged violation of Florida Deceptive and Unfair Trade Practices Act, breach of contract, violation of Credit Services Organization Act, fraud in inducement, and violations of Motor Vehicle Retail Sales Finance Act. Houchins v. King Motor Co. of Fort Lauderdale, Inc., App. 4 Dist., 906 So.2d 325 (2005). Arbitration Key Number graphic 23.11 A court must compel arbitration where an arbitration agreement and an arbitrable issue exists, and the right to arbitrate has not been waived. Miller & Solomon General Contractors, Inc. v. Brennan's Glass Co., Inc., App. 4 Dist., 824 So.2d 288 (2002). Arbitration Key Number graphic 1.1; Arbitration Key Number graphic 7.5; Arbitration Key Number graphic 23.3(1) In ruling on a motion to compel arbitration, a court must consider: (1) whether the parties have entered into a valid arbitration agreement, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration has been waived. Travelers Ins. Co. v. Irby Const. Co., Inc., App. 3 Dist., 816 So.2d 829 (2002). Arbitration Key Number graphic 6.2; Arbitration Key Number graphic 7.5; Arbitration Key Number graphic 23.3(1) In ruling on a motion to compel arbitration of a given dispute, courts must consider: (1) whether a valid written agreement to arbitrate exists, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration was waived. Technical Aid Corp. v. Tomaso, App. 5 Dist., 814 So.2d 1259 (2002). Arbitration Key Number graphic 6.2; Arbitration Key Number graphic 7.5; Arbitration Key Number graphic 23.3(1) Anyone who has not agreed, expressly or implicitly, to be bound by an arbitration agreement cannot be compelled to arbitrate. Technical Aid Corp. v. Tomaso, App. 5 Dist., 814 So.2d 1259 (2002). Arbitration Key Number graphic 7.3 When deciding whether to compel arbitration, a court is limited to considering (1) whether the parties have entered into a valid arbitration agreement, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration has been waived. Flyer Printing Company, Inc. v. Hill, App. 2 Dist., 805 So.2d 829 (2001), rehearing denied. Arbitration Key Number graphic 6.2; Arbitration Key Number graphic 7.5; Arbitration Key Number graphic 23.3(1)
In ruling on a motion to compel arbitration, a court is limited to considering: (1) whether the parties have entered into a valid arbitration agreement; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration has been waived. Estate of Blanchard ex rel. Blanchard v. Central Park Lodges (Tarpon Springs), Inc., App. 2 Dist., 805 So.2d 6 (2001). Arbitration Key Number graphic 23.13; Arbitration Key Number graphic 23.14 Where there is dispute between parties to contract concerning propriety of arbitration, proper remedy is for party to apply to court for order compelling or staying arbitration. Hospitality Ventures of Coral Springs, L.C. v. American Arbitration Ass'n Inc., App. 4 Dist., 755 So.2d 159 (2000), rehearing denied. Arbitration Key Number graphic 23.1; Arbitration Key Number graphic 23.5(1) In considering motions to compel arbitration, trial court is limited to determining the following: (1) whether parties entered into valid written agreement to submit to arbitration; (2) whether arbitrable issue exists; and (3) whether moving party has waived right to submit arbitrable issue to arbitration. Gale Group, Inc. v. Westinghouse Elec. Corp., App. 5 Dist., 683 So.2d 661 (1996). Arbitration Key Number graphic 23.13; Arbitration Key Number graphic 23.14 Court must compel arbitration when arbitration agreement and arbitrable issue exist if right to arbitrate has not been waived. Gale Group, Inc. v. Westinghouse Elec. Corp., App. 5 Dist., 683 So.2d 661 (1996). Arbitration Key Number graphic 23.7 Trial court's role when considering applications to compel arbitration is limited to determining whether valid written agreement exists containing arbitration clause, whether arbitrable issue exists, and whether right to arbitrate was waived. Stinson-Head, Inc. v. City of Sanibel, App. 2 Dist., 661 So.2d 119 (1995), review granted 669 So.2d 252, review dismissed 671 So.2d 788. Arbitration Key Number graphic 23.13; Arbitration Key Number graphic 23.14 Trial court's role when considering applications to compel arbitration is limited to determining whether valid written agreement exists containing arbitration clause, whether arbitrable issue exists, and whether right to arbitrate was waived. Chicago Ins. Co. v. Tarr, App. 3 Dist., 638 So.2d 106 (1994). Arbitration Key Number graphic 23.13 Where there was no challenge to making of agreement or of the arbitration clause, court properly entered order compelling arbitration. Chemstar Corp. v. Stark, App. 3 Dist., 634 So.2d 794 (1994). Arbitration Key Number graphic 23.7 Generally, before right to compel arbitration arises, petitioners must establish that there was written agreement containing arbitration clause, that arbitrable issue exists, and that right to arbitrate has not been waived. Manalili v. Commercial Mowing and Grading, App. 2 Dist., 442 So.2d 411 (1983). Arbitration Key Number graphic 23 A motion to compel arbitration requires determination of existence of valid agreement to arbitrate, existence of arbitrable issues, and whether arbitration has been waived. William
Passalacqua Builders, Inc. v. Mayfair House Ass'n, Inc., App. 4 Dist., 395 So.2d 1171 (1981). Arbitration Key Number graphic 23.13 Arbitration pursuant to clause in securities brokerage agreement, was to be compelled by the Florida Arbitration Code (this chapter) notwithstanding customers' allegations of fraudulent misrepresentation on part of brokerage firm. Raymond, James & Associates, Inc. v. Maves, App. 2 Dist., 384 So.2d 716 (1980). Arbitration Key Number graphic 23 Where dispute as to book value of corporate stock was one to which agreement for arbitration had direct reference and dispute was involved in former corporate president's action against corporation and its officers for accounting and they made application to compel arbitration, trial court improperly denied the motion to compel arbitration. Ojus Industries, Inc. v. Mann, App. 3 Dist., 221 So.2d 780 (1969). Arbitration Key Number graphic 7.5 4. Agreements to arbitrate Issue of whether coverage existed under a medical insurance contract was arbitrable, even though the issue of coverage was normally reserved for a court under Florida law, where parties clearly and unambiguously agreed that "[a]ny disputes" were subject to arbitration. Thomas v. United Wisconsin Life Ins. Co., M.D.Fla.2004, 348 F.Supp.2d 1320. Insurance Key Number graphic 3277 Trial court in customers' breach of contract action against electronics supplier was required to hold an expedited evidentiary hearing, as requested by customers, before ruling on supplier's motion to dismiss and compel arbitration; customers submitted affidavit in opposition to the motion to compel in which they stated that the signature of their principal on document containing arbitration provision was a forgery and that they never agreed to arbitrate disputes with supplier, and such affidavit created a factual dispute as to whether there was an arbitration agreement between the parties, which was an issue to be decided by the court, rather than the arbitrator. Rowe Enterprises LLC v. International Systems & Electronics Corp., App. 1 Dist., 2006 WL 1697633 (2006). Alternative Dispute Resolution Key Number graphic 211 Trial court in home purchaser's action against home builder was required to consider the validity and enforceability of arbitration provision of contract between the parties before ordering arbitration of any arbitrable claims; purchaser challenged the arbitration provision itself, on the ground that it did not conform to the requirements of the Arbitration Code, rather than the validity of the contract as a whole. Kel Homes, LLC v. Burris, App. 2 Dist., 933 So.2d 699 (2006). Alternative Dispute Resolution Key Number graphic 199 Issue of whether city employee's prior grievance was binding or precedential as to subsequent grievance under collective bargaining agreement was required to be decided by arbitrator, not trial court hearing employee's action to compel arbitration. Alderman v.
City of Jacksonville, Fire and Rescue Div., App. 1 Dist., 902 So.2d 885 (2005). Labor And Employment Key Number graphic 1549(5) Franchise agreement between franchisor and franchisee did not exclude arbitration for disputes arising after termination and, thus, arbitration clause survived after termination of agreement and applied to franchisee's claims alleging fraud, and intentional interference with a contractual relationship and seeking an accounting. Doctors Associates, Inc. v. Thomas, App. 4 Dist., 898 So.2d 159 (2005). Arbitration Key Number graphic 6.5 Nursing home resident's estate was not bound by either consulting agreement between nursing home owner and management consulting company or financial processing services agreement between nursing home and services provider, and thus estate was not bound by arbitration clauses in agreements when pursuing action against owner and related entities for wrongful death, negligence, and other claims; resident was not a signatory to either agreement, resident was not intended third-party beneficiary of agreements, and resident received, at best, only incidental benefit from agreements. Germann v. Age Institute of Florida, Inc., App. 2 Dist., 912 So.2d 590 (2005), rehearing denied. Arbitration Key Number graphic 7.3 Arbitration provision in purchase agreement between automobile buyer and automobile dealership contained some substantive unconscionability, where agreement required buyer to arbitrate all of her claims against dealership, but did not require dealership to arbitrate all of its claims against buyer. Palm Beach Motor Cars Ltd., Inc. v. Jeffries, App. 4 Dist., 885 So.2d 990 (2004). Arbitration Key Number graphic 6.2 Under Florida law, a clause in a contract that requires the parties to submit their claims to arbitration is enforceable, and arbitration clauses are generally favored by the courts. Sims v. Clarendon Nat. Ins. Co., S.D.Fla.2004, 336 F.Supp.2d 1311. Arbitration Key Number graphic 1.2; Arbitration Key Number graphic 7.5 With arbitration agreements, the rule is effectually that the presumptive remedy is specific performance, regardless of whether the ultimate decision is for or against arbitration of the claim in issue. Reuter Recycling of Florida, Inc. v. City of Dania Beach, App. 4 Dist., 859 So.2d 1271 (2003). Arbitration Key Number graphic 23.7 Arbitration agreement between car buyers and car dealership, which authorized award of attorney fees to any party who had to resort to judicial or other relief in compelling arbitration, was unenforceable as to buyers' claims against dealership for alleged violations of the Motor Vehicle Retail Sales Finance Act (MVRSFA), Florida Deceptive and Unfair Trade Practices Act (FDUTPA), and the Truth in Lending Act (TILA); each of statutes provided for attorney fees for violations, arbitration agreements permitted dealership to recover attorney fees if it obtained court order compelling arbitration, even if buyers prevailed on their claims, and fee provision penalized buyers for exercising their rights under arbitration code. Holt v. O'Brien Imports of Fort Myers, Inc., App. 2 Dist., 862 So.2d 87 (2003), rehearing denied. Arbitration Key Number graphic 6.2
Although parties may agree to arbitrate statutory claims, even ones involving important social policies, arbitration must provide the prospective litigant with an effective way to vindicate his or her statutory cause of action in the arbitral forum. Romano ex rel. Romano v. Manor Care, Inc., App. 4 Dist., 861 So.2d 59 (2003), rehearing denied, review denied 874 So.2d 1192. Arbitration Key Number graphic 3.3 When an arbitration agreement contains provisions which defeat the remedial provisions of a statute, the agreement is not enforceable. Romano ex rel. Romano v. Manor Care, Inc., App. 4 Dist., 861 So.2d 59 (2003), rehearing denied, review denied 874 So.2d 1192. Arbitration Key Number graphic 3.3 Sufficient quantum of procedural unconscionability existed in circumstances surrounding husband of nursing home patient's signing of arbitration agreement, as element of finding agreement unenforceable, even though agreement was not hidden in fine print; husband and patient were both elderly, there was no showing that husband had legal training to understand rights he was signing away, and husband was presented with agreement along with other admission documents without explanation of its terms, and without being told that failure to sign would not affect patient's care or her ability to stay in nursing home. Romano ex rel. Romano v. Manor Care, Inc., App. 4 Dist., 861 So.2d 59 (2003), rehearing denied, review denied 874 So.2d 1192. Arbitration Key Number graphic 6.2 Buyer's breach of contract claims for substandard work against builder arising from several alleged defects with home that buyer contracted to purchase from builder were outside scope of arbitration clause in builder's 10-year warranty; buyer's claims were not for a "major structural defect" as defined in warranty, and fell outside warranty's one-year period of coverage for defects in material and workmanship. Royal Professional Builders, Inc. v. Roggin, App. 4 Dist., 853 So.2d 520 (2003). Arbitration Key Number graphic 7.6 Because arbitration provisions are contractual in nature, construction of such provisions and the contracts in which they appear remains a matter of contract interpretation. Royal Professional Builders, Inc. v. Roggin, App. 4 Dist., 853 So.2d 520 (2003). Arbitration Key Number graphic 7 The general rule is that where an arbitration agreement exists between the parties, arbitration is required only of those controversies or disputes which the parties have agreed to submit to arbitration. Royal Professional Builders, Inc. v. Roggin, App. 4 Dist., 853 So.2d 520 (2003). Arbitration Key Number graphic 1.1 If an arbitration provision in an agreement does not provide for the arbitration panel to decide whether a claim is arbitrable, the trial court, rather than the arbitration panel, should make this determination. Royal Professional Builders, Inc. v. Roggin, App. 4 Dist., 853 So.2d 520 (2003). Arbitration Key Number graphic 23.14 Any time a contract contains an arbitration clause, there is a presumption of arbitrability in the sense that an order to arbitrate the particular grievance should not be denied unless
it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Royal Professional Builders, Inc. v. Roggin, App. 4 Dist., 853 So.2d 520 (2003). Arbitration Key Number graphic 23.10 All doubts as to the scope of an arbitration agreement are to be resolved in favor of arbitration rather than against it. Royal Professional Builders, Inc. v. Roggin, App. 4 Dist., 853 So.2d 520 (2003). Arbitration Key Number graphic 7.1 Arbitration clause in admission agreement between nursing home and deceased patient was not enforceable, where agreement required that arbitration occur in another state. Northport Health Services v. Estate of Raidoja, App. 5 Dist., 851 So.2d 234 (2003). Arbitration Key Number graphic 6.2 Arbitration agreement was not unconscionable due to car buyers' failure to read the documents associated with their car purchases, and thus, buyers were compelled to arbitrate claims against car dealership, where buyers did not allege that they were prevented from reading such documents or induced not to read them by dealership. Holt v. O'Brien Imports of Fort Myers, Inc., App. 2 Dist., 2003 WL 21502001 (2003), withdrawn and superseded on rehearing 862 So.2d 87, rehearing denied. Arbitration Key Number graphic 6.2 Bank signature card did not expressly refer to or sufficiently describe disclosure statement that contained arbitration clause, and thus, customer's signing of signature card did not bind him to arbitrate dispute with bank regarding loss of funds from his account, where front side of card merely stated "see reverse for important information," reverse of signature card was blank, and there was no other reference to disclosure statement or other related documents. Gustavsson v. Washington Mut. Bank, F.A., App. 4 Dist., 850 So.2d 570 (2003), rehearing denied. Arbitration Key Number graphic 6.2 Car buyers' consumer claim against car dealer, including negligent misrepresentation, fraud, rescission, breach of warranty, and unfair and deceptive trade practices, arose from contract, and thus buyers were required to arbitrate claims under contractual provision requiring arbitration of "any controversy or claim arising out of or relating to" the contract; all claims were dependent upon the existence of a contractual relationship between the parties. Stacy David, Inc. v. Consuegra, App. 2 Dist., 845 So.2d 303 (2003). Arbitration Key Number graphic 7.7 Arbitration clause in contract between car buyers and dealer was not invalid due dealer's failure to sign retail order; record reflected that dealer executed other documents associated with sale, there was evidence that order was a valid contract enforceable against dealer once it arranged for buyers to sign agreement, and buyers admitted that they executed the arbitration agreement. Stacy David, Inc. v. Consuegra, App. 2 Dist., 845 So.2d 303 (2003). Arbitration Key Number graphic 6.1 An agreement to arbitrate statutory claims is enforceable if it provides an adequate mechanism for pursuing statutory rights and does not defeat the remedial purpose of the
statute under which the claim is brought; the plaintiff should be able to obtain the same relief via arbitration as would be available in court. Brasington v. EMC Corp., App. 1 Dist., 855 So.2d 1212 (2003). Arbitration Key Number graphic 6.2 Arbitration clause in employment contract, requiring employee to pay her own attorney fees and arbitration expenses and one-half arbitrator's fee if she participated in arbitrator's selection, did not deprive employee of her statutory right to fee-shifting under state Civil Rights Act and Whistleblower Act, and thus, arbitration clause was enforceable, absent any showing that expenses of arbitration would be so high as to prevent her from pursuing her claims, and considering that she would be able to recover her costs and fees if she prevailed, just as she would in court, and she could appeal any ruling by arbitrator on costs and fees to the circuit court. Brasington v. EMC Corp., App. 1 Dist., 855 So.2d 1212 (2003). Arbitration Key Number graphic 6.2 Requiring employee to arbitrate her employment-related claims would not prevent her from seeking an injunction from arbitrator to enjoin employer's alleged illegal practices or procedures of gender discrimination or violation of securities laws, just as employee could in court, where employer's arbitration policy stated that arbitrator could grant "any remedy or relief that would otherwise be awarded under the law." Brasington v. EMC Corp., App. 1 Dist., 855 So.2d 1212 (2003). Arbitration Key Number graphic 29.6 Arbitration clause of employment contract was not procedurally unconscionable, even though employer's arbitration policy was not provided to employee at time she signed contract, where policy was referenced in contract, employee could easily have obtained a copy of policy, arbitration clause was final paragraph of the contract and was printed just above the line for the employee's signature, it was headed "Arbitration," in bold print and underlined, and plainly stated that disputes relating to or arising out of the employment were subject to arbitration, and employer advised employee in writing that she should seek advice of counsel before signing. Brasington v. EMC Corp., App. 1 Dist., 855 So.2d 1212 (2003). Arbitration Key Number graphic 6.2 Provision in agreement of securities broker and client, requiring arbitration of any controversy "arising out of or related to" transactions with client, was broad enough to require arbitration of bad check claim asserted against client's non-signatory corporation by broker. Armas v. Prudential Securities, Inc., App. 3 Dist., 842 So.2d 210 (2003). Arbitration Key Number graphic 91 Arbitration provisions containing the language, "arising out of or related to," in certain instances can be construed to include non-signatories. Armas v. Prudential Securities, Inc., App. 3 Dist., 842 So.2d 210 (2003). Arbitration Key Number graphic 7.3 Equitable estoppel is warranted when the signatory to the contract containing the arbitration clause raises allegations of concerted conduct by both the non-signatory and one or more of the signatories to the contract. Armas v. Prudential Securities, Inc., App. 3 Dist., 842 So.2d 210 (2003). Arbitration Key Number graphic 46.1
Securities broker was equitably estopped from avoiding arbitration of all claims arising from client submitting a check from corporation's account to make payment to brokerage account, which claims were based on alleged concerted conduct by both non-signatory corporation and client. Armas v. Prudential Securities, Inc., App. 3 Dist., 842 So.2d 210 (2003). Arbitration Key Number graphic 91 Nursing home assented to terms of the admission contract, even though home did not sign contract, and thus, contract, including its arbitration clause, was valid, where home admitted resident and provided him with nursing home care for over two months. Integrated Health Services of Green Briar, Inc. v. Lopez-Silvero, App. 3 Dist., 827 So.2d 338 (2002). Contracts Key Number graphic 35 When the party opposing arbitration disputes the existence or validity of the agreement to arbitrate, the trial court must resolve that issue as a part of its consideration of the motion seeking to compel arbitration. Estate of Blanchard ex rel. Blanchard v. Central Park Lodges (Tarpon Springs), Inc., App. 2 Dist., 805 So.2d 6 (2001). Arbitration Key Number graphic 23.13 Arbitration clause in roof system manufacturer's warranty was not binding on building owner in owner's action against contractor, even though contract between owner and contractor mentioned manufacturer's warranty; contract did not state that it was "subject to" manufacturer's warranty, but merely stated that contractor agreed to "provide" manufacturer's warranty, and contract did not contain words even remotely indicating intention that owner and contractor agreed to be bound by manufacturer's warranty and its arbitration provision. Temple Emanu-El of Greater Fort Lauderdale v. Tremarco Industries, Inc., App. 4 Dist., 705 So.2d 983 (1998), rehearing denied. Arbitration Key Number graphic 7.3 Florida Arbitration Code was applicable to agreement which provided for arbitration under rules of American Arbitration Association and which does not contain language stating that Florida Arbitration Code did not apply and thus agreement to arbitrate was enforceable. Sun City Diner of Boca Raton, Inc. v. Century Financial Advisors, Inc., App. 4 Dist., 662 So.2d 967 (1995), rehearing denied. Arbitration Key Number graphic 2; Arbitration Key Number graphic 6.2 Arbitration code mandates that courts yield to arbitration where making of agreement and arbitration clause are admitted and issue relates only to whether that agreement was abandoned or no longer in effect due to subsequent events. Florida Educ. Association/United v. Sachs, App. 1 Dist., 627 So.2d 1240 (1993), review granted 639 So.2d 977, quashed 650 So.2d 29. Arbitration Key Number graphic 8 Consumers were not entitled to avoid unambiguous agreement to arbitrate and proceed to district court based solely on their inability to pay deposit to cover expenses of arbitrating; arbitration agreement was valid, arbitrable issue existed, and right to arbitration had not been waived. North American Van Lines v. Collyer, App. 5 Dist., 616 So.2d 177 (1993). Arbitration Key Number graphic 10.20
Trial court correctly determined that teacher's union and school board mutually agreed to continue to operate under terms of expired collective bargaining agreement, which contained a valid arbitration clause, while they were in the process of negotiating a new contract and thus that a valid written agreement containing an arbitration clause existed at the time of teacher's nonrenewal. Piercy v. School Bd. of Washington County, Fla., App. 1 Dist., 576 So.2d 806 (1991). Labor And Employment Key Number graphic 1546(2) Trial court could not compel arbitration before it determined as factual matter whether parties intended to continue to be bound by arbitration clause in written contracts after written contracts had terminated. Thomas W. Ward & Assoc., Inc. v. Spinks, App. 4 Dist., 574 So.2d 169 (1990), review denied 583 So.2d 1037. Arbitration Key Number graphic 10.20 Threshold issue of whether "life commission schedule," upon which insurer based its claim that agent had to return certain commissions, was part of parties' contractual agreement could be decided by the court before allowing arbitration called for in contract to proceed. United Services General Life Co. v. Bauer, App. 2 Dist., 568 So.2d 1321 (1990). Arbitration Key Number graphic 23.13 Subsections (1) and (4) of this section mandate that courts yield their jurisdiction to arbitration where the making of the agreement and the arbitration clause therein are admitted and the issue in dispute between the parties relates only to whether the contract has been abandoned or whether the arbitration clause is no longer in force and effect due to events which have transpired since the making of the contract. Feather Sound Country Club, Inc. v. Barber, App. 2 Dist., 567 So.2d 10 (1990). Arbitration Key Number graphic 23.13 Where dispute as to book value of corporate stock was one to which agreement for arbitration had direct reference and dispute was involved in former corporate president's action against corporation and its officers for accounting and they made application to compel arbitration, trial court improperly denied the motion to compel arbitration. Ojus Industries, Inc. v. Mann, App. 3 Dist., 221 So.2d 780 (1969). Arbitration Key Number graphic 7.5 Party is never required to submit to arbitration any question which he has not agreed to submit. G & N Const. Co. v. Kirpatovsky, App. 3 Dist., 181 So.2d 664 (1966). Arbitration Key Number graphic 1 Where contract for construction of house contained 44 separate articles, and six of them specifically provided for arbitration of disputes arising thereunder, owners were not entitled to arbitration, under article 22 providing that if contractor be guilty of substantial violation of any provision of contract, then owners, on certificate of architect that sufficient cause exists to justify such action, may, after giving contractor and surety seven days' written notice, terminate employment of contractor and take possession and finish
work. G & N Const. Co. v. Kirpatovsky, App. 3 Dist., 181 So.2d 664 (1966). Arbitration Key Number graphic 7.6 Arbitration provision of contract between contractor and owners for construction of house that if either party should suffer damages because of wrongful act or neglect of other party, claim should be made in writing to party liable within reasonable time of first observance of such damage and not later than final payment and shall be adjusted by agreement or arbitration was not applicable, where owners did not notify contractor in writing of first observance of alleged damage. G & N Const. Co. v. Kirpatovsky, App. 3 Dist., 181 So.2d 664 (1966). Arbitration Key Number graphic 23.1 5. Arbitrable issues Client did not agree in retainer agreement to arbitrate legal malpractice claims against lawyer and law firm; arbitration clauses specifically mentioned fee disputes and collection disputes but failed to mention malpractice allegations, and agreement was construed against lawyer and law firm both as drafters and as attorneys. Vargas v. Schweitzer-Ramras, App. 3 Dist., 878 So.2d 415 (2004), rehearing denied. Arbitration Key Number graphic 6.2 An ambiguity as to who should determine arbitrability means that the parties have not clearly and unmistakably manifested an intent to have arbitrators decide the issue as to what specific claims they have agreed to arbitrate; thus if the agreement is ambiguous, then it is for the court to say what claims should be arbitrated. Reuter Recycling of Florida, Inc. v. City of Dania Beach, App. 4 Dist., 859 So.2d 1271 (2003). Arbitration Key Number graphic 23.14 Under the Arbitration Code, courts should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so. Reuter Recycling of Florida, Inc. v. City of Dania Beach, App. 4 Dist., 859 So.2d 1271 (2003). Arbitration Key Number graphic 23.14 Under the Arbitration Code, the question whether the arbitrators or the courts have the primary power to determine arbitrability depends on whether the parties agreed to submit the question of arbitrability itself to arbitration. Reuter Recycling of Florida, Inc. v. City of Dania Beach, App. 4 Dist., 859 So.2d 1271 (2003). Arbitration Key Number graphic 23.14 Parties to arbitration agreement did not clearly and unmistakably agree to have the arbitrators determine arbitrability as to time-barred claims; the clause prohibited a demand for arbitration when institution of legal or equitable proceedings based on such claim, dispute, or other matter in question would be barred by the applicable statute of limitations. Reuter Recycling of Florida, Inc. v. City of Dania Beach, App. 4 Dist., 859 So.2d 1271 (2003). Arbitration Key Number graphic 23.15
Before a court can compel a party to participate in arbitration, there must first exist an arbitrable issue. U.S. Fidelity & Guar. Co. v. Romay, App. 3 Dist., 744 So.2d 467 (1999), rehearing denied. Arbitration Key Number graphic 23 Trial court properly refused to compel arbitration of dispute between owner and contractor, where there was issue as to whether contract existed between parties and if it did, whether original contract or addendum constitute that contract. Acumen Const., Inc. v. Neher, App. 2 Dist., 616 So.2d 98 (1993). Arbitration Key Number graphic 1.1 Where no substantial issue existed as to making of agreement or provision for arbitration, trial court was obligated to send matter to arbitration regardless of "justiciable character of the controversy." Walter L. Keller & Associates, P.A. v. Health Management Foundation, App. 2 Dist., 438 So.2d 1076 (1983). Arbitration Key Number graphic 23 Where there was no justiciable issue regarding contractual right to arbitrate, motion to compel arbitration should have been granted. Vic Potamkin Chevrolet, Inc. v. Bloom, App. 3 Dist., 386 So.2d 286 (1980). Arbitration Key Number graphic 23.7 A motion filed in an action for foreclosure of a mechanic's lien, for an order directing plaintiff to arbitrate its claim was properly denied where agreement contemplated submission to arbitration of real controversies, and where at time motion for arbitration was filed there was in fact no controversy to submit to arbitration but merely an uncontroverted claim for payment of a sum certain and a demand for a lien to enforce the payment. Mills v. Robert W. Gottfried, Inc., App. 4 Dist., 272 So.2d 837 (1973). Arbitration Key Number graphic 23.8; Arbitration Key Number graphic 4.1 6. Demand for arbitration Although trial court found that it was not clear whether an affirmative and formal demand for arbitration was ever made by insurer, insurer's motion to dismiss insureds' action seeking recovery on policy constituted such a demand. U.S. Fire Ins. Co. v. Franko, App. 1 Dist., 443 So.2d 170 (1983). Insurance Key Number graphic 3285 7. Securities disputes Under Florida law, investor's claims against securities brokerage firm, including fraud and failure to supervise, arising from purchase of stock based on allegedly fraudulent recommendation by firm's broker, were within scope of arbitration clause in investor's account application, covering "any controversy ... arising out of your business or this agreement," even though stock purchase did not occur until after investor closed her account at firm and followed broker to his new firm; investor's claims arose due to her business relationship with firm, since they were based on acts or failures to act occurring while account was open. SII Investments, Inc. v. Jenks, M.D.Fla.2005, 370 F.Supp.2d 1213. Arbitration Key Number graphic 91
Provision of National Association of Securities Dealers (NASD) Code of Arbitration, requiring arbitration of claims arising out of employment, does not require that the dispute arise from an employment contract. Singer v. Gaines, App. 3 Dist., 896 So.2d 851 (2005). Arbitration Key Number graphic 92 In deciding securities dispute concerning whether parties are bound by agreement to arbitrate, trial court must make factual determinations including whether customer of brokerage firm opened account, how account was to be maintained, and whether there is pertinent agreement to arbitrate. Shearson, Lehman, Hutton, Inc. v. Lifshutz, App. 4 Dist., 595 So.2d 996 (1992). Arbitration Key Number graphic 91 Securities brokers could not compel arbitration of claims involving alleged misconduct in handling a brokerage account in absence of evidence that investors signed or assented to binding agreement to arbitrate, even though brokers produced standard brokerage contract with standard arbitration provision, other brokerage agreements signed by investors, and power of attorney signed by one investor. Shearson, Lehman, Hutton, Inc. v. Lifshutz, App. 4 Dist., 595 So.2d 996 (1992). Arbitration Key Number graphic 91 8. Parties Where the claims involving a third party are based on the same operative facts and are inherently inseparable" from the claims subject to arbitration, third party is entitled to a stay of proceedings pending arbitration even though it is not a signatory to the arbitration agreement and has no right to compel arbitration. American Intern. Group, Inc. v. Cornerstone Businesses, Inc., App. 2 Dist., 872 So.2d 333 (2004). Arbitration Key Number graphic 23.9 Insurer's contractual right to arbitrate disputes with insured was not waived by failure of insurer's parent corporation to assert that right in insured's action against parent and agent arising from failure to refund premium down payment after insurer cancelled commercial insurance coverage; parent corporation was not party to payment agreement containing arbitration clause, there was no evidence that insurer was mere instrumentality of parent for which parent was liable, and insurer was not party to suit. American Intern. Group, Inc. v. Cornerstone Businesses, Inc., App. 2 Dist., 872 So.2d 333 (2004). Insurance Key Number graphic 3270 Only proper parties to lawsuit to determine the propriety of arbitration are parties to the arbitration agreement, not potential arbitrators; law does not require potential arbitrators to expend time and money to participate in a lawsuit where the parties are fighting over the arbitrability of a dispute. Hospitality Ventures of Coral Springs, L.C. v. American Arbitration Ass'n Inc., App. 4 Dist., 755 So.2d 159 (2000), rehearing denied. Arbitration Key Number graphic 23.7 Insureds who brought suit to compel arbitration on underinsured motorist claim against one of two underinsured motorist carriers were not required to join second underinsured
motorist carrier as necessary party. Balarin v. Allstate Ins. Co., App. 3 Dist., 481 So.2d 1263 (1986). Insurance Key Number graphic 3282 A party to a contract calling for arbitration may not, by joining as defendants in lawsuit others with which said party has no such agreement, defeat right of other party to contract to obtain stay of all proceedings involving arbitrable issue. Post Tensioned Engineering Corp. v. Fairways Plaza Associates, App. 3 Dist., 429 So.2d 1212 (1983). Arbitration Key Number graphic 23.9 Where parties agreed to arbitrate "any controversy or claim arising out of, or relating to this agreement," such language was broad enough to include persons within respondeat superior doctrine; thus, employees of car dealership were party to arbitration contract between buyers and dealership, and motion to compel arbitration should have been granted. Vic Potamkin Chevrolet, Inc. v. Bloom, App. 3 Dist., 386 So.2d 286 (1980). Arbitration Key Number graphic 7.3 9. Third-party beneficiaries Nonsignatory to an arbitration agreement may be bound to arbitrate if the nonsignatory has received something more than an incidental or consequential benefit of the contract, or if the nonsignatory is specifically the intended third-party beneficiary of the contract. Germann v. Age Institute of Florida, Inc., App. 2 Dist., 912 So.2d 590 (2005), rehearing denied. Arbitration Key Number graphic 7.3 Vendor could not be compelled to refer a dispute for arbitration which arose from alleged breach of a written agreement for sale and purchase of unimproved real property, even assuming vendor qualified as third party beneficiary of related construction contract that contained arbitration clause, where land sale agreement did not contain an arbitration clause, and vendor did not sign a written consent to be joined in the arbitration process as expressly required by language of construction contract's arbitration clause. International Bullion and Metal Brokers, Inc. v. West Pointe Land, LLC, App. 4 Dist., 846 So.2d 1276 (2003). Arbitration Key Number graphic 6.1 This section providing that party to an agreement for arbitration may make application to court for order directing parties to proceed with arbitration applies to third-party beneficiaries to a contract containing an arbitration clause and subjects third-party beneficiary to the arbitration agreement. Zac Smith & Co., Inc. v. Moonspinner Condominium Ass'n, Inc., App. 1 Dist., 472 So.2d 1324 (1985). Arbitration Key Number graphic 7.3 10. Jurisdiction Under either Federal Arbitration Act (FAA) or Florida Arbitration Code, once district court was satisfied that parties to construction contract had actually agreed to arbitrate dispute, it was for arbitration panel, not court, to determine whether underlying contracts had been rendered unenforceable by violation of Florida law proscribing use of
unlicensed subcontractors. John B. Goodman Ltd. Partnership v. THF Const., Inc., C.A.11 (Fla.)2003, 321 F.3d 1094. Arbitration Key Number graphic 23.13 Trial court, rather than the arbitration panel, was to make the determination as to whether parties' claims were arbitrable, where arbitration provision in contract between the parties did not provide for the arbitration panel to decide such issue. Premier Medical Management, Ltd. v. Salas, App. 1 Dist., 830 So.2d 959 (2002). Arbitration Key Number graphic 23.14 Determination of whether there was an agreement to extend employment beyond the potential termination date in accordance with the Employment Agreement, was a matter that arose out of, and was directly related to, Employment Agreement, which contained arbitration clause, and thus circuit court was without jurisdiction to stay arbitration, where resolution of dispute was reasonably within meaning of arbitration clause "arising out of or related to" the Employment Agreement. Mirson v. Corradino Group, Inc., App. 3 Dist., 751 So.2d 699 (2000), certification denied. Arbitration Key Number graphic 23.5(1) When faced with a motion to compel arbitration, a trial court is limited to considering whether (1) the agreement contains a valid arbitration clause, (2) an arbitrable issue exists, and (3) the right to arbitration has been waived. Florida Select Ins. Co. v. Keelean, App. 2 Dist., 727 So.2d 1131 (1999). Arbitration Key Number graphic 23.7 Should trial court determine, on remand from reversal of its denial of stay of arbitration, that, at one time, valid contract and arbitration clause existed, effect of any postcontracting event on that clause would be issue for arbitrators. Florida Educ. Association/United v. Sachs, App. 1 Dist., 627 So.2d 1240 (1993), review granted 639 So.2d 977, quashed 650 So.2d 29. Arbitration Key Number graphic 23.13 Whether or not dispute should be submitted to arbitration is question for court to determine from contract of parties; trial court cannot leave it to arbitrators themselves to determine which claims are subject to arbitration when court has not established that arbitration agreement applies. Thomas W. Ward & Assoc., Inc. v. Spinks, App. 4 Dist., 574 So.2d 169 (1990), review denied 583 So.2d 1037. Arbitration Key Number graphic 23.14 Trial court, by referring issues in breach of lease contract suit between corporate lessor and lessee's assignee to arbitration, did not lose jurisdiction to subsequently allow lessee's assignee to pursue its misrepresentation claim individually against corporate president, who had been excluded from the arbitration by stipulation, notwithstanding that there was no express reservation of jurisdiction in the order of referral. Ocala Breeders' Sales Co. v. Brunetti, App. 3 Dist., 567 So.2d 490 (1990), review dismissed 576 So.2d 285. Arbitration Key Number graphic 23.8 If arbitration clause of contract calls for arbitration to take place in foreign jurisdiction, Florida courts cannot, over objection, compel arbitration. Post Tensioned Engineering
Corp. v. Fairways Plaza Associates, App. 3 Dist., 412 So.2d 871 (1982), review denied 419 So.2d 1197. Arbitration Key Number graphic 23.8 Arbitration clause found in contract between owner and contractor, which provided that arbitration would be conducted under Rules of American Arbitration Association, was considered one which merely expressed method to be followed, not choice to arbitrate in foreign jurisdiction or stipulation that Arbitration Code did not apply. Post Tensioned Engineering Corp. v. Fairways Plaza Associates, App. 3 Dist., 412 So.2d 871 (1982), review denied 419 So.2d 1197. Arbitration Key Number graphic 7; Arbitration Key Number graphic 7.8 Although insurer's complaint for declaratory relief sought a resolution of matters in addition to question of coverage, where complaint created a bona fide issue over question of coverage under uninsured motorist provisions of policy, question of coverage was a proper one for declaratory relief and, hence, was to be determined by court rather than by arbitration. Travelers Ins. Co. v. Lee, App. 3 Dist., 358 So.2d 88 (1978). Declaratory Judgment Key Number graphic 168 Contention that contractor could not be required to arbitrate dispute because owner's claim was exclusively against the architect and, therefore, that there was no liability on contractor went to the merits of the arbitration and was not a matter to be determined by the circuit court on motion to compel arbitration. Frank J. Rooney, Inc. v. Food Fair Industries, Inc., App. 3 Dist., 254 So.2d 30 (1971). Arbitration Key Number graphic 23.16 11. Time for motion to compel Questions of timeliness regarding demand for arbitration are to be decided by an arbitrator, not a trial court; this is true even if the time requirement for arbitration is labeled a condition precedent. Alderman v. City of Jacksonville, Fire and Rescue Div., App. 1 Dist., 902 So.2d 885 (2005). Arbitration Key Number graphic 23.15 Issue of whether city employee's demand for arbitration of grievance under collective bargaining agreement was timely was required to be decided by arbitrator, not trial court that was hearing employee's action to compel arbitration. Alderman v. City of Jacksonville, Fire and Rescue Div., App. 1 Dist., 902 So.2d 885 (2005). Labor And Employment Key Number graphic 1549(6) Where arbitration clause provided that demand for arbitration be filed within reasonable time, motion to compel arbitration filed more than nine months after first written notice of dispute and four months after decision of architects was not filed within reasonable time. Lyons v. Krathen, App. 3 Dist., 368 So.2d 906 (1979), certiorari denied 378 So.2d 346. Arbitration Key Number graphic 23.2 Circuit court did not err in ordering arbitration of dispute under contract on ground that time limit for invocation of arbitration clause had passed where, reading contract as a
whole, only time limitation as to right of arbitration was that demand should be made within a reasonable time after discovery of dispute. Frank J. Rooney, Inc. v. Food Fair Industries, Inc., App. 3 Dist., 254 So.2d 30 (1971). Arbitration Key Number graphic 23.2; Arbitration Key Number graphic 32 12. Stay of judicial proceedings Under Florida law, where arbitration procedures concerning amount of hurricane damage to insureds' businesses and property had been compelled pursuant to appraisal clause in insureds' property and business interruption policies, dismissal of insureds' pending coverage action was not required; rather, action would be stayed. Childs v. State Farm Fire and Cas. Co., S.D.Fla.1995, 899 F.Supp. 613, affirmed 158 F.3d 588. Insurance Key Number graphic 3258 Where the claims involving a third party are based on the same operative facts and are inherently inseparable" from the claims subject to arbitration, third party is entitled to a stay of proceedings pending arbitration even though it is not a signatory to the arbitration agreement and has no right to compel arbitration. American Intern. Group, Inc. v. Cornerstone Businesses, Inc., App. 2 Dist., 872 So.2d 333 (2004). Arbitration Key Number graphic 23.9 Corporate parent of insurer was entitled to stay of proceedings against it brought by insured pending arbitration between insurer, which was not a party to proceedings, and insured regarding refund of partial premium payment after insurer cancelled insured's insurance coverage, even though parent was not signatory to premium payment agreement that contained arbitration clause; insured's claims against corporate parent were based on, and inseparable from, insurer's failure to refund partial premium payment after coverage was cancelled. American Intern. Group, Inc. v. Cornerstone Businesses, Inc., App. 2 Dist., 872 So.2d 333 (2004). Insurance Key Number graphic 3284 Any action or proceeding involving an issue subject to arbitration should be stayed if an application thereof has been made. Miller & Solomon General Contractors, Inc. v. Brennan's Glass Co., Inc., App. 4 Dist., 824 So.2d 288 (2002). Arbitration Key Number graphic 23.9 Stay of judicial proceedings is required when the action involves an issue subject to arbitration, an application for arbitration has been made, and the trial court determines the arbitration decision may have an effect on the litigation. Rittman v. Allstate Ins. Co., App. 1 Dist., 727 So.2d 391 (1999). Arbitration Key Number graphic 23.9 Action brought by sugar processor to remove alleged cloud on its interest in, and equitable ownership of, certain sugar cane, by establishing that third party's grinding contracts with sugar growers had terminated and that third party had no interest in sugar pursuant to these contracts, had to be stayed pending arbitration between third party and sugar growers, pursuant to contractual arbitration clause, to resolve the same issue raised
by processor's lawsuit. West's F.S.A. §§ 682.03(3). Okeelanta Corp. v. U.S. Sugar Corp., App. 2 Dist., 712 So.2d 814 (1998). Arbitration Key Number graphic 23.9 Statute requiring court to stay any action or proceeding involving an issue subject to arbitration applies without regard to whether parties to lawsuit and parties to arbitration are identical, as long as the same issues are determinable. West's F.S.A. §§ 682.03(3). Okeelanta Corp. v. U.S. Sugar Corp., App. 2 Dist., 712 So.2d 814 (1998). Arbitration Key Number graphic 23.9 Motion to dismiss employment contract dispute would be treated as motion to stay, and granted, where contract contained mandatory arbitration clause. EMSA Ltd. Partnership v. Mason, App. 4 Dist., 677 So.2d 105 (1996). Arbitration Key Number graphic 23.9 Where only two counts of five-count complaint were subject to nonbinding arbitration before Division of Florida Land Sales, Condominiums, and Mobile Homes of the Department of Business and Professional Regulation, it was appropriate to stay nonarbitrable claims pending arbitration of arbitrable claims. Woodlake Redevelopment Corp. v. Woodlake Condominium Ass'n of Marco Shores, Inc., App. 2 Dist., 671 So.2d 253 (1996). Arbitration Key Number graphic 10.5 When ordering arbitration, court properly stayed all discovery sought in action for declaratory judgment to determine right to arbitration. Chemstar Corp. v. Stark, App. 3 Dist., 634 So.2d 794 (1994). Arbitration Key Number graphic 23.9 Subsection (3) of this section requiring stay of actions concerning issues subject to arbitration if order for arbitration or application therefor had been made was inapplicable when no such order or application had been made. Kidder Elec. of Florida, Inc. v. U.S. Fidelity & Guar. Co., App. 5 Dist., 530 So.2d 475 (1988). Arbitration Key Number graphic 23.9 Owner was entitled to stay of his counterclaim against contractor alleging fraud in construction of condominium project pending resolution of fraud issue by arbitrator in owner's third-party action against architect, where fraud issues in both cases involved alleged collusion between architect and general contractor. 425 Florida, Inc. v. George V. Behan Const., Inc., App. 5 Dist., 497 So.2d 1340 (1986). Arbitration Key Number graphic 23.9 Ophthalmologist's claim against hospital for interference with contract relationship was independent of claims against medical center for breach of contract, and thus claim against hospital did not have to be stayed pending arbitration of claim against medical center. Sabates v. International Medical Centers, Inc., App. 3 Dist., 450 So.2d 514 (1984). Arbitration Key Number graphic 23.5(1) Ophthalmologist's claim against medical center for violating civil theft statute (§ 812.014) was not independent of ophthalmologist's claim for breach of contract, and thus judicial resolution of civil theft claim was properly stayed pending outcome of arbitration
of contract claim. Sabates v. International Medical Centers, Inc., App. 3 Dist., 450 So.2d 514 (1984). Arbitration Key Number graphic 23.5(1) Ophthalmologist's antitrust claim against medical center was not dependent upon ophthalmologist's claim for breach of contract, and thus antitrust claim did not have to be stayed pending outcome of arbitration of contract claim. Sabates v. International Medical Centers, Inc., App. 3 Dist., 450 So.2d 514 (1984). Arbitration Key Number graphic 23.5(1) Where general contractor, the only party in construction project whose contract with project owner contained an arbitration clause, would be responsible for negligence of its subcontractors under doctrine of respondeat superior, so that a determination in arbitration that general contractor was not negligent would necessarily be a determination that general contractor's subcontractors were not negligent, owner's action against general contractor's subcontractors involved an issue subject to arbitration between general contractor and owner and would have to be stayed pending arbitration. Post Tensioned Engineering Corp. v. Fairways Plaza Associates, App. 3 Dist., 429 So.2d 1212 (1983). Arbitration Key Number graphic 23.9 In action against securities brokerage firm for negligence and fraud in options transactions, trial court erred in staying proceedings and compelling arbitration where firm waived their rights by answering complaint without demanding arbitration, even though it asserted failure to arbitrate as affirmative defense. Hansen v. Dean Witter Reynolds, Inc., App. 3 Dist., 408 So.2d 658 (1981), review denied 417 So.2d 328. Arbitration Key Number graphic 23.3(2) Certiorari was appropriate method of review to challenge trial court order staying proceedings and compelling arbitration of claims against securities brokerage firm for negligence and fraud in options transaction. Hansen v. Dean Witter Reynolds, Inc., App. 3 Dist., 408 So.2d 658 (1981), review denied 417 So.2d 328. Certiorari Key Number graphic 15 Where developer and general contractor were obligated to arbitrate disputes concerning construction defects, and where first suit, a lien foreclosure action filed by general contractor, had been stayed pending arbitration, developer's claim for construction defects was already being arbitrated and had already been stayed for litigation when it was again asserted in subsequent case brought by representative of condominium unit owners, and thus trial court did not err in denying developer's motion for continuance on eve of trial concerning same claim against general contractor in representative's suit. William Passalacqua Builders, Inc. v. Mayfair House Ass'n, Inc., App. 4 Dist., 395 So.2d 1171 (1981). Pretrial Procedure Key Number graphic 714 Where grievance filed by probationary teacher did not seek to arbitrate issue of school board's nonrenewal of his contract, and grievance indicated that it related to evaluation procedures and right of employee to respond to complaints made against him, dispute came under broad language of arbitration agreement between teache
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« Reply #5 on: December 12, 2006, 07:27:31 PM »

F.S.A. § 682.06 Unless otherwise provided by the agreement or provision for arbitration: (1)(a) The arbitrators shall appoint a time and place for the hearing and cause notification to the parties to be served personally or by registered or certified mail not less than 5 days before the hearing. Appearance at the hearing waives a party's right to such notice. The arbitrators may adjourn their hearing from time to time upon their own motion and shall do so upon the request of any party to the arbitration for good cause shown, provided that no adjournment or postponement of their hearing shall extend beyond the date fixed in the agreement or provision for making the award unless the parties consent to a later date. An umpire authorized to hear and decide the cause upon failure of the arbitrators to agree upon an award shall, in the course of his or her jurisdiction, have like powers and be subject to like limitations thereon. (b) The arbitrators, or umpire in the course of his or her jurisdiction, may hear and decide the controversy upon the evidence produced notwithstanding the failure or refusal of a party duly notified of the time and place of the hearing to appear. The court on application may direct the arbitrators, or the umpire in the course of his or her jurisdiction, to proceed promptly with the hearing and making of the award. (2) The parties are entitled to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing. (3) The hearing shall be conducted by all of the arbitrators but a majority may determine any question and render a final award. An umpire authorized to hear and decide the cause upon the failure of the arbitrators to agree upon an award shall sit with the arbitrators throughout their hearing but shall not be counted as a part of their quorum or in the making of their award. If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrator, arbitrators or umpire appointed to act as neutrals may continue with the hearing and determination of the controversy.
1. Duties of arbitrators Arbitrators were appointees with but a single duty, and performance of that duty terminated their authority. Citizens Bldg. of West Palm Beach v. Western Union Tel. Co., 1941, 120 F.2d 982. Arbitration Key Number graphic 29.7 2. Powers of arbitrators and umpires Generally, unless prohibited from doing so, arbitrators have the power to fashion equitable remedies. Orkin Exterminating Co. v. Petsch, App. 2 Dist., 872 So.2d 259 (2004), rehearing denied, review denied 884 So.2d 23. Arbitration Key Number graphic 29.6 Arbitrator's interpretation of collective bargaining agreement with city as allowing him to reduce employee's punishment where he concluded from the evidence that just cause for discipline short of discharge existed constituted one plausible interpretation of contract, as contract empowered arbitrator with authority to uphold the discharge or reinstate the employee and thereby vested arbitrator with authority to reduce disciplinary action ordered by city, even though another section of contract purported to vest sole authority for determining just cause for discharge in the city; arbitrator therefore did not exceed his authority in interpreting the agreement or in reinstating employee who had been discharged following three disciplinary actions. Communications Workers of America, AFL-CIO, Local 3172 v. City of Largo, App. 2 Dist., 463 So.2d 454 (1985). Labor And Employment Key Number graphic 1595(12) Arbitrator lacked authority to revise collective bargaining agreement in manner parties did not contemplate and to which they did not assent. School Bd. of Seminole County v. Cornelison, App. 5 Dist., 406 So.2d 484 (1981), review denied 421 So.2d 67. Labor And Employment Key Number graphic 1580 Arbitrator is the sole and final judge of the evidence and the weight to be given to it. Affiliated Marketing, Inc. v. Dyco Chemicals & Coatings, Inc., App. 2 Dist., 340 So.2d 1240 (1976), certiorari denied 353 So.2d 675. Arbitration Key Number graphic 73.7(7) Arbitrator may not decide matters outside his authority. Tassinari v. Loyer, App. 2 Dist., 189 So.2d 651 (1966). Arbitration Key Number graphic 29.1 Where arbitrators agree upon some of the facts, but differ with respect to others not connected with the first, there seems to be no good reason why the umpire, if he thinks proper, may not take those points on which the arbitrators agree to be as they report them, provided a re-examination is not required by the submission, or by either of the
parties before he makes his award. Blood v. Shine, 2 Fla. 127 (1848). Arbitration Key Number graphic 39 3. Qualifications of arbitrators Where lease agreement between plaintiff and defendant required parties to settle disputes by appointment of tripartite arbitration panel, defendant was not "an arbitrator appointed as a neutral" within meaning of arbitration code, and thus could not appoint himself to tripartite panel. Finkelstein v. Smith, App. 1 Dist., 326 So.2d 39 (1976). Arbitration Key Number graphic 27 Clear implication of concept of arbitration is that, because disputants themselves are unable to resolve their controversy, others appointed by them or by their appointees can and should do so, and thus disputants to tripartite arbitration agreement cannot appoint themselves to arbitration panel. Finkelstein v. Smith, App. 1 Dist., 326 So.2d 39 (1976). Arbitration Key Number graphic 27 4. Impartial arbitrators Where arbitrator was susceptible to having his judgment biased by his conduct toward and his association with an officer and/or stockholder of one of corporate parties to arbitration during the course of arbitration, award must be set aside. Gaines Const. Co. v. Carol City Utilities, Inc., App. 3 Dist., 164 So.2d 270 (1963). Arbitration Key Number graphic 64.3 Arbitrator is required to be no less impartial than juror sitting in trial of cause and if he fails in that his usefulness as arbitrator is destroyed. Gaines Const. Co. v. Carol City Utilities, Inc., App. 3 Dist., 164 So.2d 270 (1963). Arbitration Key Number graphic 27 5. Nature of proceedings Appraisal clause in homeowners' insurance policy was not an agreement to arbitrate and required an informal appraisal proceeding, rather than a formal arbitration hearing, and, thus, the formal procedures of the Arbitration Code were inapplicable; the provision unambiguously required each party to select a competent and impartial appraiser and the appraisers to select an umpire; disapproving Hoenstine v. State Farm Fire & Casualty Co., 736 So.2d 761, and Florida Farm Bureau Casualty Insurance Co. v. Sheaffer, 687 So.2d 1331. Allstate Ins. Co. v. Suarez, 833 So.2d 762 (2002). Insurance Key Number graphic 3249; Insurance Key Number graphic 3258; Insurance Key Number graphic 3272 Arbitration proceedings are judicial or quasi-judicial proceedings and as such are to have same procedural safeguards as judicial proceedings even though they are not meant to be conducted with formality of court,
and each party must have full hearing in presence of other party, unless such right is waived by agreement or conduct. Tassinari v. Loyer, App. 2 Dist., 189 So.2d 651 (1966). Arbitration Key Number graphic 32.6 6. Conduct of proceedings As long as grievance procedure was still pending, teacher should have notified county school board of all letters in her personnel file involving same factual dispute which she wished to have removed so as to give school board opportunity to reconsider its position on question whether letters were "communications" subject to grievance, and if so whether letters contained defamatory material. Watson v. Duval County School Bd., App. 1 Dist., 408 So.2d 1053 (1981). Labor And Employment Key Number graphic 1583 Although it was not necessary that teacher proceed through each step of grievance procedure as more and more letters accumulated in her personnel file concerning same incident challenged in her initial grievance, disputed documents had to be specified during some point in grievance procedure, assuming that letters were added to personnel file while grievance was still pending, and thus arbitrator exceeded his powers in removing four letters from teacher's personnel file where no grievance was filed with respect to those documents. Watson v. Duval County School Bd., App. 1 Dist., 408 So.2d 1053 (1981). Labor And Employment Key Number graphic 1595(Cool Arbitrators, appointed by disputants to tripartite panel, are expected by disputants to act as partisans, only one step removed from controversy, and should be so understood by courts. Finkelstein v. Smith, App. 1 Dist., 326 So.2d 39 (1976). Arbitration Key Number graphic 64.3 Arbitrator's method of inspecting corrected work by plaintiff subcontractor, without presence of defendant general contractor claiming failure of subcontractor to complete work as required, and without notice to defendant general contractor, vitiated arbitrator's award. Tassinari v. Loyer, App. 2 Dist., 189 So.2d 651 (1966). Arbitration Key Number graphic 32; Arbitration Key Number graphic 32.6 Insurer's liability for loss was not within arbitrator's sphere of inquiry in proceeding under uninsured motorist clause, his award was binding as to extent of damages incurred by insureds but did not determine insurer's liability for loss questioned by insurer's counterclaim in proceedings to confirm award. American Fidelity Fire Ins. Co. v. Richardson, App. 3 Dist., 189 So.2d 486 (1966), certiorari denied 200 So.2d 814. Insurance Key Number graphic 3317 7. Necessity of hearing
Where lease gave tenant option of renewal and provided for arbitration in case of disagreement regarding renewal rental, arbiters made an award without hearing and on landlord's petition vacated the award and after hearing rendered a second award, in suit for specific performance of the agreement to re-lease, the court should have ordered a new arbitration in accordance with the still existing terms of the agreement, since no valid award had been made. Citizens Bldg. of West Palm Beach v. Western Union Tel. Co., 1941, 120 F.2d 982. Specific Performance Key Number graphic 126(2) Appraisal provision in homeowners insurance policy that specified method for resolving disputes over value of damages to homeowners' house and personal property relieved neutral appraiser of requirement to hold formal arbitration hearing pursuant to Arbitration Code; policy specifically provided for appraisal, and it was unlikely that parties contemplated formal arbitration hearing when they entered agreement. Allstate Ins. Co. v. Suarez, App. 3 Dist., 786 So.2d 645 (2001), review granted 805 So.2d 804, approved 833 So.2d 762. Insurance Key Number graphic 3249; Insurance Key Number graphic 3265 Arbitration provision of life policy as regards disability claims was not invalid as failing to provide for evidentiary hearing. Hall v. Metropolitan Life Ins. Co., App. 1 Dist., 454 So.2d 711 (1984). Insurance Key Number graphic 3273 8. Notice Arbitration award was not null and void because of alleged lack of proper notice concerning arbitration hearing. Murray v. Ferdie, App. 3 Dist., 431 So.2d 724 (1983). Arbitration Key Number graphic 32 9. Fact issues Issue whether party seeking arbitration of dispute between police department and city failed to comply with collective bargaining agreement was factual issue for arbitrators, not legal issue for determination solely on pleadings. City of Pompano Beach v. Meiroff, App. 4 Dist., 410 So.2d 663 (1982). Labor And Employment Key Number graphic 1549(5) 10. Presumptions and burden of proof It is to be presumed that the parties to an arbitration, under a bond of submission, will bring before the arbitrators all the matters in dispute. Blood v. Shine, 2 Fla. 127 (1848). Arbitration Key Number graphic 66.1 11. Interest
Absent justification to vacate or modify arbitration award which foreclosed mechanics' lien but denied interest for the period predating the award, circuit court, which confirmed the award, was without authority to assess preaward interest. Goldberger v. Hofco, Inc., App. 4 Dist., 422 So.2d 898 (1982). Interest Key Number graphic 39(1) Writ of prohibition restraining arbitration board from entering judgment allowing interest on award for work done under contract with state road department should not issue if interest might be adjudged against state agency in some classes of cases and not in others, unless there was no jurisdiction to award interest against state agency in case being considered, and, if all facts were not shown in record, writ should be denied unless interest could not be awarded against state agency in any case of nature or of class of one involved. Treadway v. Terrell, 117 Fla. 838, 158 So. 512 (1935). Prohibition Key Number graphic 1 Arbitration board had jurisdiction to adjudge interest on award for work done under contract with state road department, since presumption existed that former statute (see, now, § 337.19) permitting suit against department on any claim for work done under contract authorized award of interest against state where necessary to do complete justice and to accomplish purposes of statute. Treadway v. Terrell, 117 Fla. 838, 158 So. 512 (1935). States Key Number graphic 171 12. Costs Remand and evidentiary hearing was necessary, after appeal from confirmation of arbitration award where trial court added on costs, to determine whether arbitrators included costs in their award, intended to deny costs, contemplated trial court would make cost award, or whether costs were simply overlooked; award was ambiguous on cost issue, but issue had been submitted to arbitrators. Zac Smith & Co., Inc. v. Moonspinner Condominium Ass'n, Inc., App. 1 Dist., 534 So.2d 739 (1988). Arbitration Key Number graphic 73.8 Former ch. 57 (now this chapter) governing arbitration proceeding between insurer and insured under uninsured motorist clause of liability policy did not authorize reduction of amounts representing actual damages or losses incurred by insured or any costs necessarily incurred in establishing such damages in the arbitration proceeding. State Farm Mut. Auto. Ins. Co. v. Rutkin, 199 So.2d 705 (1967). Insurance Key Number graphic 3317 Where costs incurred in arbitration proceeding between insurer and insured under uninsured motorist provision of liability policy are reasonably and necessarily incurred to substantiate a disputed claim and are not out of line with costs in litigated cases, they should be
allowed as a matter of right and justice. State Farm Mut. Auto. Ins. Co. v. Rutkin, 199 So.2d 705 (1967). Insurance Key Number graphic 3317 13. Review District Court of Appeal could not consider insurer's contention that supplemental award of arbitrators' fees made by two of the arbitrators subsequent to rendition of initial award on liability was void ab initio because signed by only two of the arbitrators and rendered without notice and an opportunity to be heard by insurer, since, inter alia, the supplemental award was not such a change, correction or modification of original award as to fall within provisions of arbitration statute requiring prefatory notice and a hearing. Carter v. State Farm Mut. Auto. Ins. Co., App. 1 Dist., 224 So.2d 802 (1969). Insurance Key Number graphic 3307
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« Reply #6 on: December 12, 2006, 07:29:34 PM »

>>682.09. Award (1) The award shall be in writing and shall be signed by the arbitrators joining in the award or by the umpire in the course of his or her jurisdiction. They or he or she shall deliver a copy to each party to the arbitration either personally or by registered or certified mail, or as provided in the agreement or provision. (2) An award shall be made within the time fixed therefor by the agreement or provision for arbitration or, if not so fixed, within such time as the court may order on application of a party to the arbitration. The parties may, by written agreement, extend the time either before or after the expiration thereof. Any objection that an award was not made within the time required is waived unless the objecting party notifies the arbitrators or umpire in writing of his or her objection prior to the delivery of the award to him or her. 1/2. Purpose Under Florida Arbitration Code, role of judiciary in arbitration decisions was meant to be quite limited and rare. Brandon Jones Sandall Zeide Kohn Chalal & Musso, P.A. v. Beasley & Hauser, P.A., App. 4 Dist., 925 So.2d 1142 (2006). Arbitration Key Number graphic 73.7(1) 1. Sufficiency of awards Award which does not in terms decide all the matters submitted to arbitrators is sufficient if the thing awarded necessarily includes the other things mentioned in the submission. Blood v. Shine, 2 Fla. 127 (1848). An award of payment of a specific sum is sufficient without directing a release from the party to whom it is to be paid. Blood v. Shine, 2 Fla. 127 (1848). Arbitration Key Number graphic 58 2. Finality of awards Arbitration order requiring assets-seller to indemnify buyer from damages stemming from pre-sale litigation against seller was binding arbitral decision, within meaning of provision in parties' purchase agreement entitling buyer to exercise right of setoff based on binding arbitral decision requiring seller's indemnification of buyer, even though arbitration order was not confirmed until after buyer effected setoff based on seller's failure to comply with arbitration order, and therefore setoff did not breach contract. Centurion Air Cargo, Inc. v. United Parcel Service Co., S.D.Fla.2004, 300 F.Supp.2d 1281, affirmed 420 F.3d 1146. Set-off And Counterclaim Key Number graphic 20
Arbitrator's order was not final, notwithstanding failure of either party to move to vacate order within 90 days, where court and both parties had anticipated that further arbitration proceedings would be held. Air Conditioning Equipment, Inc. v. Rogers, App. 4 Dist., 551 So.2d 554 (1989). Arbitration Key Number graphic 59 3. Conclusiveness of awards Under Florida Arbitration Code, very high degree of conclusiveness attaches to arbitration award. Brandon Jones Sandall Zeide Kohn Chalal & Musso, P.A. v. Beasley & Hauser, P.A., App. 4 Dist., 925 So.2d 1142 (2006). Arbitration Key Number graphic 82(1) Where issue is voluntarily submitted to arbitration, award cannot be vacated based upon reargument of issue decided by arbitrator. Harris v. Haught, App. 1 Dist., 435 So.2d 926 (1983). Arbitration Key Number graphic 76(1) Where counsel for employer waived employer's right to be heard and impliedly revoked or waived employer's previous designation of employer's arbitrator by stonewalling all attempts of former employee's counsel to move arbitration proceedings to hearing and conclusion, where, prior to entry of arbitration award, employer's counsel made no objection to the procedure which employee's counsel advised him would be followed, and where employer's counsel clearly indicated that he had no intention of participating in the arbitration proceedings, employee's arbitrator was authorized under employment agreement to proceed as sole arbitrator without further notice to employer; thus trial court properly granted employee's motion to enforce arbitration award. Manor Dinner Theatres of America, Inc. v. Johnson, App. 1 Dist., 394 So.2d 511 (1981), review denied 402 So.2d 611. Labor And Employment Key Number graphic 1582 Builder and purchaser who entered into an arbitration agreement to settle dispute concerning construction of house were bound by the decision of the arbitrator unless set aside in accordance with the arbitration code. Kest v. Nathanson, App. 4 Dist., 184 So.2d 690 (1966). Arbitration Key Number graphic 82(1) 4. Agreement to open awards If an agreement to open an award is signed by the attorney of one of the parties, though he has no authority, yet, if the party for whom he assumed to act subsequently ratifies the act, it is valid. O'Bryan v. Reed, 2 Fla. 448 (1849). 5. Presumptions and burden of proof Arbitration agreements are generally favored by the courts and every reasonable presumption is indulged to uphold the proceedings resulting in an award, but procedures nevertheless do exist for confirming, vacating, or modifying arbitrator's awards, and provision is also made for the costs of the subsequent court proceedings. Beach Resorts
Intern., Inc. v. Clarmac Marine Const. Co., App. 2 Dist., 339 So.2d 689 (1976). Costs Key Number graphic 57 Every reasonable presumption will be indulged to uphold arbitration proceedings which have resulted in an award. Knight v. H. S. Equities, Inc., App. 4 Dist., 280 So.2d 456 (1973). Arbitration Key Number graphic 66.1 Everything is presumed and every reasonable intendment made in favor of an award. Blood v. Shine, 2 Fla. 127 (1848). 6. Time of payment When award does not fix the time of payment of the sum awarded, the money is payable immediately. Blood v. Shine, 2 Fla. 127 (1848). 7. Waiver Party waived any objection to timeliness of arbitration award by failing to notify arbitrator in writing of objection prior to delivery of award; parties had fixed time for award in arbitration agreement. Vista Gardens Condominium Ass'n, Inc. v. Bauer, App. 4 Dist., 705 So.2d 1008 (1998). Arbitration Key Number graphic 46.3 8. Attorney's fees Where a party brings claims in arbitration based upon several theories, one or more of which provide for the recovery of attorney fees, the arbitration award must specify the theory under which the claimant prevailed, or otherwise clearly indicate whether the claimant has prevailed on a theory that would permit the trial court to award fees; in the event that the award fails to reflect such a finding, the circuit court may remand the matter to the arbitration panel for the purpose of resolving the issue; thereafter, the circuit court may determine the fee issue in accord with the finding of the arbitrators. Moser v. Barron Chase Securities, Inc., 783 So.2d 231 (2001), on remand 794 So.2d 649. Arbitration Key Number graphic 42; Arbitration Key Number graphic 73.8 9. Judicial review Judiciary should minimize its role in arbitration as judge of arbitrator's impartiality; that role is best consigned to parties, who are architects of their own arbitration process, and are far better informed of prevailing ethical standards and reputations within their business. Brandon Jones Sandall Zeide Kohn Chalal & Musso, P.A. v. Beasley & Hauser, P.A., App. 4 Dist., 925 So.2d 1142 (2006). Arbitration Key Number graphic 64.3
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« Reply #7 on: December 12, 2006, 07:30:56 PM »

>>682.12. Confirmation of an award Upon application of a party to the arbitration, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in ss. 682.13 and 682.14. 1. In general A trial court may only set aside an arbitration award upon the grounds set forth in statute. Murton Roofing Corp. v. FF Fund Corp., App. 3 Dist., 930 So.2d 772 (2006). Alternative Dispute Resolution Key Number graphic 362(2) Trial court failed to follow arbitration award when it concluded that if pool contractor did not complete repairs for reasons other than a denial of access by homeowner, then no further performance was due by either party, because, in the event of non-compliance by contractor, arbitration award did not limit homeowner's damages to the contract balance, award simply provided that balance of contract was due if the work was completed. Andrews v. R.C.C. Enterprises, Inc., App. 5 Dist., 846 So.2d 1153 (2003), rehearing denied. Arbitration Key Number graphic 72.3 In absence of motion to vacate, modify, or clarify, arbitration award in insurance dispute had to be confirmed. American Reliance Ins. Co. v. Devecht, App. 3 Dist., 820 So.2d 378 (2002), rehearing denied. Insurance Key Number graphic 3323 Trial court does not have discretion and must confirm arbitrator's award unless one of the parties seeks to vacate, modify, or correct the award within 90 days of delivery of the arbitrator's award or there is an issue presented to the trial court in the motion to confirm which was not submitted to the arbitrator. Moya v. Board of Regents, State University System of Florida, App. 5 Dist., 629 So.2d 282 (1993). Labor And Employment Key Number graphic 1614 Trial court was obligated to confirm award notwithstanding pending arbitration on related claim where party opposing confirmation did not make timely application to vacate, modify or correct the award and where opposing party's motion to dismiss, even if treated as an application, did not contain any factual basis or legal grounds for relief from the award. Carpet Concepts of St. Petersburg, Inc. v. Architectural Concepts, Inc., App. 2 Dist., 559 So.2d 303 (1990). Arbitration Key Number graphic 72.1 Though partner filed complaint seeking damages for other partners' failure to comply with arbitration award, trial court properly treated proceeding as application for confirmation of arbitration award. Harris v. Haught, App. 1 Dist., 435 So.2d 926 (1983). Partnership Key Number graphic 312
Where arbitration award was signed by all three arbitrators after full arbitration hearing but one of arbitrators had second thoughts after signing award, rescinded his assent thereto and claimed award did not reflect what arbitration panel had agreed to while other two arbitrators stood by award, arbitration award had to be confirmed, notwithstanding that dissenting arbitrator kept award in his possession, later transferred it to insurer's counsel, and declined throughout to deliver award to insured, since, without dispute, two of three arbitrators were in full agreement with award. Candales v. Allstate Ins. Co., App. 3 Dist., 421 So.2d 42 (1982). Insurance Key Number graphic 3309 Builder and purchaser who entered into an arbitration agreement to settle dispute concerning construction of house were bound by the decision of the arbitrator unless set aside in accordance with the arbitration code. Kest v. Nathanson, App. 4 Dist., 184 So.2d 690 (1966). Arbitration Key Number graphic 82(1) Where purchaser, who was not satisfied with arbitration award made pursuant to binding arbitration agreement, filed action for breach of contract against builder, the trial court should consider purchaser's complaint as application to vacate award of arbitrator and answer and counterclaim of builder as request to confirm award and court should then determine issues in accordance with provisions of arbitration code. Kest v. Nathanson, App. 4 Dist., 184 So.2d 690 (1966). Arbitration Key Number graphic 72.3; Arbitration Key Number graphic 77(3) 2. Incomplete arbitration awards For purposes of a trial court's determination of a party's entitlement to attorney fees as the prevailing party in an arbitration, where the arbitrator fails to state the basis for the award, or the record is insufficient to determine the basis upon which the party prevailed on the merits, the proper procedure for the trial court to follow is to remand the matter back to the arbitrator for an explanation of the basis for the recovery. A-1 Duran Roofing, Inc. v. Select Contracting, Inc., App. 4 Dist., 865 So.2d 601 (2004), rehearing denied. Arbitration Key Number graphic 42; Arbitration Key Number graphic 73.8 Arbitrator's order was not subject to confirmation by court, where order left unresolved numerous interrelated issues and did not contain within its terms objective formula for adequately disposing of those issues, and where unresolved issues were not severable from and independent of those addressed. Air Conditioning Equipment, Inc. v. Rogers, App. 4 Dist., 551 So.2d 554 (1989). Arbitration Key Number graphic 57.3; Arbitration Key Number graphic 72.1 Incomplete arbitration award may be validly confirmed where omitted matters are found to be severable and are sufficiently independent of matters determined in arbitrator's order. Air Conditioning Equipment, Inc. v. Rogers, App. 4 Dist., 551 So.2d 554 (1989). Arbitration Key Number graphic 72.1 3. Effect of confirmation
Once an arbitration award is confirmed by a court, it then becomes judgment of court. Haskell v. Forest Land and Timber Co., Inc., App. 1 Dist., 426 So.2d 1251 (1983). Arbitration Key Number graphic 72.1 Confirmation of award under Arbitration Code (now this chapter) becomes judgment of the court. Bohlmann v. Allstate Ins. Co., App. 2 Dist., 171 So.2d 23 (1965). Arbitration Key Number graphic 72.1 4. Time for filing petitions That assets-buyer did not initially move to confirm arbitration order requiring seller to indemnify buyer from damages resulting from pre-sale litigation against seller did not affect finality or binding power of order for purposes of provision in parties' purchase agreement entitling buyer to exercise setoff right based on seller's noncompliance with arbitration order, given that rules under which parties agreed to arbitrate provided that parties were deemed to have consented to entry of judgment upon arbitration award in any state or federal court with jurisdiction. Centurion Air Cargo, Inc. v. United Parcel Service Co., S.D.Fla.2004, 300 F.Supp.2d 1281, affirmed 420 F.3d 1146. Set-off And Counterclaim Key Number graphic 20 Confirmation of arbitration award was warranted, where party challenging the award failed to timely challenge the award or present a viable issue to trial court that had not been submitted to arbitration. Hinshaw v. Wachovia Bank, N.A., App. 5 Dist., 2006 WL 2190728 (2006). Alternative Dispute Resolution Key Number graphic 354 Fact that university employee did not file motion to confirm arbitrator's award reinstating him within 90 days did not deprive court of jurisdiction over subsequent motion of the employee for order confirming the arbitrator's award; although party has 90 days after delivery of arbitrator's award to seek to vacate, modify, or correct the award, there is no time limitation within which party is required to file motion to confirm arbitrator's award. Moya v. Board of Regents, State University System of Florida, App. 5 Dist., 629 So.2d 282 (1993). Labor And Employment Key Number graphic 1614 Where employer participated in arbitration pursuant to written employment agreement and did not file timely modification petition disputing validity of the award but only challenged calculation of amount thereof and failed to petition to vacate the award the employer could not, by way of counterclaim to complaint to affirm the award, seek rescission of the employment contract. Farmer v. Polen, App. 4 Dist., 423 So.2d 1035 (1982). Labor And Employment Key Number graphic 1597 There was no requirement that petition to confirm award in arbitration proceeding pursuant to uninsured motorist clause in automobile policy be filed within 90 days after receipt of award. Fidelity & Cas. Co. of New York v. De Jesus, App. 3 Dist., 402 So.2d 15 (1981). Insurance Key Number graphic 3323
5. Motions to vacate Affidavit submitted by corporation after the close of arbitration proceedings between it and roofing contractor was not material, and thus corporation was not prejudiced by arbitrator's refusal to consider the affidavit, for purposes of corporation's motion to vacate the arbitration award, even though affiant recanted his statements made in an earlier affidavit submitted by contractor and stated that such earlier statements were made under duress; arbitrator testified at hearing on corporation's motion to vacate the award that evidence the earlier affidavit was obtained under duress would not have changed his decision. Murton Roofing Corp. v. FF Fund Corp., App. 3 Dist., 930 So.2d 772 (2006). Alternative Dispute Resolution Key Number graphic 326 Arbitrator who presided over arbitration proceeding between roofing contractor and corporation did not abuse his discretion by refusing to allow corporation to submit additional evidence after the close of the proceedings to rebut an affidavit as to which it was allegedly surprised by the contents, and thus trial court could not vacate arbitration award on the basis of arbitrator's refusal to consider the additional evidence; both parties had the opportunity to present evidence and call witnesses at the arbitration, and corporation chose not to depose affiant, did not get its own affidavit from him for use in the arbitration, and did not call him to testify. Murton Roofing Corp. v. FF Fund Corp., App. 3 Dist., 930 So.2d 772 (2006). Alternative Dispute Resolution Key Number graphic 326 Trial court erred in confirming arbitration award during the pendency of appellant's motion to vacate the award. School Bd. of Palm Beach County v. Roof Structures of Florida, Inc., App. 4 Dist., 359 So.2d 561 (1978). Arbitration Key Number graphic 72.3 Court must confirm arbitration award upon application of any party to award unless, within 90 days after receipt of award, party thereto has filed motion with court to vacate, modify or correct award, except that, where motion to vacate award is based on corruption, fraud, or other undue means, motion may be filed within 90 days after such grounds are known or should have been known to injured party. Travelers Ins. Co. v. Allen, App. 3 Dist., 356 So.2d 1287 (1978), certiorari denied 364 So.2d 893. Arbitration Key Number graphic 72.1; Arbitration Key Number graphic 77(2) Even if request for reconsideration of arbitration award could be considered as a proper application for modification, that would not stay the time for moving the court to vacate an award pending an application for modification before the arbitration board, and since plaintiff failed to move to vacate the award within 90 days of the date when the award was rendered the award was ripe for confirmation. Lopez & Roque Tile Co., Inc. v. Clearwater Development Corp., App. 2 Dist., 291 So.2d 126 (1974). Arbitration Key Number graphic 77(2) 6. Costs
Trial court's finding of accord and satisfaction, an agreement that insurer's payment of $50,000 satisfied plaintiff's claim except for $15,000 setoff and $879.65 in arbitration costs which claims were reserved for subsequent determination by negotiation or by court proceedings, was supported by substantial competent evidence, and such finding precluded confirmation of arbitration award which included arbitration costs. McDonald v. Allstate Ins. Co., App. 4 Dist., 408 So.2d 580 (1981). Accord And Satisfaction Key Number graphic 26(3) In action to review arbitration award, trial court improperly increased arbitrator's award by adding costs of arbitration to final judgment which confirmed award in light of fact that arbitrator could have awarded costs but awarded lump sum; however, plaintiff could recover costs incurred in proceeding brought to seek judicial confirmation of arbitration award. McDaniel v. Berhalter, App. 4 Dist., 405 So.2d 1027 (1981). Arbitration Key Number graphic 72.1; Arbitration Key Number graphic 73.9 In proceeding for confirmation of arbitration award under uninsured motorist's coverage of automobile insurance policy, costs could not be awarded in absence of any statute or agreement between parties providing for payment of such costs. American Service Mut. Ins. Co. v. Wilson, App. 3 Dist., 323 So.2d 645 (1975). Insurance Key Number graphic 3323 7. Attorney's fees See, also, Notes of Decisions under § 682.11. Owners of remodeled residential property were entitled to award of prejudgment interest on attorney fee award in arbitration action between owners and contractor regarding breach of contract and lien foreclosure from date of arbitration award to date that trial court confirmed arbitration award, since parties agreed that arbitrator would determine entitlement to attorney fees and costs, and owners' entitlement to attorney fees was fixed once arbitrator found that owners prevailed. Rock v. Prairie Bldg. Solutions, Inc., App. 2 Dist., 854 So.2d 722 (2003). Interest Key Number graphic 39(2.20) The 20-day, rather than the 4-year, statute of limitations applied to investors' petition for attorney fees, in proceedings to confirm arbitration award entered in their favor in dispute with securities company; investors did not seek to confirm the original award, which did not provide for attorney fees, but they instead petitioned for an altered or reformed version that contained an attorney fees award. NationsBanc Securities, Inc. v. Aron, App. 2 Dist., 787 So.2d 881 (2001), review denied 791 So.2d 1094. Arbitration Key Number graphic 72.3 Trial court, confirming arbitration award, could award attorney's fees to condominium owners who were successful in arbitration against contractor and his surety. Zac Smith & Co., Inc. v. Moonspinner Condominium Ass'n, Inc., App. 1 Dist., 534 So.2d 739 (1988). Arbitration Key Number graphic 73.1
Trial court did not abuse its discretion in allowing lessee attorney's fee of $35,000 for the services of its attorneys in resorting to the court to enforce covenant in lease for arbitration of disputes of the parties thereunder, and obtaining order restraining the lessor from ousting the lessee on grounds which were disputed and for obtaining an order confirming the arbitration award and entry of judgment thereon. Newport Motel, Inc. v. Cobin Restaurant, Inc., App. 3 Dist., 281 So.2d 234 (1973). Landlord And Tenant Key Number graphic 201 8. Appealable orders Order confirming award made by arbitrator is appealable, even if further action by arbitrator is anticipated. School Bd. of Seminole County v. Cornelison, App. 5 Dist., 406 So.2d 484 (1981), review denied 421 So.2d 67. Arbitration Key Number graphic 73.1 Even though findings and award of arbitrator did not adjudicate all issues in dispute, did not determine amount due and merely established method by which amount could be ascertained, orders of circuit court confirming arbitrator's findings and award were appealable. State ex rel. Gaines Const. Co. v. Pearson, 154 So.2d 833 (1963). Arbitration Key Number graphic 73.2
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« Reply #8 on: December 12, 2006, 07:35:37 PM »

682.14. Modification or correction of award (1) Upon application made within 90 days after delivery of a copy of the award to the applicant, the court shall modify or correct the award when: (a) There is an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award. (b) The arbitrators or umpire have awarded upon a matter not submitted to them or him or her and the award may be corrected without affecting the merits of the decision upon the issues submitted. (c) The award is imperfect as a matter of form, not affecting the merits of the controversy. (2) If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made. (3) An application to modify or correct an award may be joined in the alternative with an application to vacate the award. 1. In general Party's ability to contest an arbitration award is regulated by statute and court rule. Friendly Homes of the South Inc. v. Fontice, App. 2 Dist., 2006 WL 1879000 (2006). Alternative Dispute Resolution Key Number graphic 361 Fact that the relief granted by arbitration award is such that it could not or would not be granted by a court of law or equity is not a ground for vacating or modifying the award. Marr v. Webb, App. 3 Dist., 930 So.2d 734 (2006), rehearing denied. Alternative Dispute Resolution Key Number graphic 362(3) There is no procedure under rules of arbitration for requests for reconsideration. Deen v. Oster, App. 4 Dist., 814 So.2d 1065 (2001), rehearing denied, review denied 829 So.2d 917. Arbitration Key Number graphic 70 School board was not empowered to adjust arbitrator's award of back pay to teacher aides by offsetting amount of unemployment compensation benefits received, without benefit of motion for modification of arbitrator's award. Broward County Paraprofessional Ass'n v. School Bd. of Broward County, App. 4 Dist., 406 So.2d 1252 (1981). Labor And Employment Key Number graphic 1595(15) Absent timely motion to vacate, modify or correct arbitrator's award, trial court had no discretion but to confirm award as rendered, irrespective of whether alleged error in failing to offset unemployment
compensation benefits against back pay award was characterized as a miscalculation or was founded on notion that arbitrator exceeded his powers by awarding a greater sum than the law allowed. Broward County Paraprofessional Ass'n v. School Bd. of Broward County, App. 4 Dist., 406 So.2d 1252 (1981). Labor And Employment Key Number graphic 1604 In action to review arbitration award, trial court was not authorized to modify arbitrator's award by adding interest for period predating award in light of fact that arbitrator's failure to award interest explicitly and separately did not constitute an evident miscalculation of figures or evident mistake in description and thus any failure of arbitrator to award interest was not a mere matter of form. McDaniel v. Berhalter, App. 4 Dist., 405 So.2d 1027 (1981). Arbitration Key Number graphic 73.9 Insured's attorney fees could not be assessed against insurer, which did not deny coverage, but, rather, merely availed itself of procedures set forth in this section in order to avoid liability for that portion of $35,000 arbitration award exceeding $15,000 policy limit and whose petition for modification was dismissed on basis of parties' agreement that insurer was liable only for the policy limit. Lumbermens Mut. Ins. Co. v. American Arbitration Ass'n, App. 4 Dist., 398 So.2d 469 (1981). Insurance Key Number graphic 3360 2. Due process Language in arbitration clause in franchise agreement between city and electrical utility company providing that, if parties could not agree on arbitrator, court would appoint one did not violate utility company's due process rights, despite company's contention that arbitrator's lack of familiarity with electric utility asset valuation would result in under valuation of its assets, where once appraisal was made parties would be afforded opportunity to object or critique appraisal reports. Florida Power Corp. v. City of Casselberry, App. 5 Dist., 793 So.2d 1174 (2001). Constitutional Law Key Number graphic 306(3) 3. Miscalculation of figures In the absence of an evident miscalculation, the trial court is not empowered to set aside arbitration awards for mere errors of judgment as to law or facts. Marr v. Webb, App. 3 Dist., 930 So.2d 734 (2006), rehearing denied. Alternative Dispute Resolution Key Number graphic 330 Arbitrators did not make evident miscalculation when it awarded contractors less than amount that contractors requested in dispute with property owner concerning division of proceeds from sales of homes, and thus reviewing court would not modify award, although contractors, who claimed that over $2.5 million remained after costs and loans were paid, were awarded damages and prejudgment interest in amount of $80,000; arbitrators requested that parties each submit accounting of purported construction costs, and arbitrators considered all evidence in determining award. Marr v. Webb, App. 3 Dist., 930 So.2d 734 (2006), rehearing denied. Alternative Dispute Resolution Key Number graphic 376 There was no evident miscalculation of figures warranting modification or correction of arbitration award which used construction contractor's second amended claim to calculate direct job costs recoverable from community college. B & H Const. & Supply Co., Inc. v. District Bd. of Trustees of Tallahassee Community College, Florida, App. 1 Dist., 542 So.2d 382 (1989), review denied 549 So.2d 1013. Arbitration Key Number graphic 62
Contention that arbitrator's mathematics had been improperly affected by consideration of evidence did not provide grounds for motion to modify or vacate arbitration award. Glen Johnson, Inc. v. Ruzicka, App. 2 Dist., 517 So.2d 762 (1987). Arbitration Key Number graphic 76(1) 4. Time for application A party desiring changes to an arbitration award or clarification is required to seek timely modification or clarification from either the arbitrator or the court; otherwise, the award becomes ripe for confirmation. Coral-Tech Associates, Inc. v. Plumbing Contractors, Inc., App. 4 Dist., 916 So.2d 958 (2005), rehearing denied. Arbitration Key Number graphic 73.9 A court may modify or correct an arbitration award imperfect as to form on application made within ninety days after delivery. Coral-Tech Associates, Inc. v. Plumbing Contractors, Inc., App. 4 Dist., 916 So.2d 958 (2005), rehearing denied. Arbitration Key Number graphic 73.9 A party desiring changes to an arbitration award is required to seek timely modification or clarification from either the arbitrator or the court; otherwise, the award becomes ripe for confirmation. A-1 Duran Roofing, Inc. v. Select Contracting, Inc., App. 4 Dist., 865 So.2d 601 (2004), rehearing denied. Arbitration Key Number graphic 72.1 Jurisdiction of arbitrator to enter award in favor of teachers in salary dispute could not be challenged by school board when it failed to comply with ninety-day rule set by statute for contesting award (West's F.S.A. §§ 682.13, 682.14) and thus failed to comply with the very condition on which the right to relief was explicitly conditioned. Burt v. Duval County School Bd., App. 1 Dist., 481 So.2d 55 (1985). Labor And Employment Key Number graphic 1614 Where policy limits were not in issue in the arbitration, insurer could allege as defense, in an arbitration confirmation action filed in circuit court, that the arbitration award exceeded applicable policy limits notwithstanding fact that award was not challenged by insurer within 90-day time limit prescribed by Florida arbitration code; disapproving Travelers Insurance Co. v. Allen, 356 So.2d 1287. Meade v. Lumbermens Mut. Cas. Co., 423 So.2d 908 (1982). Insurance Key Number graphic 3323 Although insurer did not seek to vacate, modify or correct arbitrators' award within 90 days after copy was delivered to it, it could appeal award on basis that it exceeded the policy's $10,000 per person uninsured motorist coverage since defensive issues in case involved statutory and contractual scope of issues subject to arbitration and terms of policy which were not subject matter of arbitration proceeding. Lumbermens Mut. Cas. Co. v. Meade, App. 5 Dist., 404 So.2d 1141 (1981), approved 423 So.2d 908. Insurance Key Number graphic 3331(1) Even though company providing uninsured-underinsured protection failed to move to modify or vacate arbitration award against it within 90-day period provided by arbitration code (§ 682.13 and this section), insurer, in its response to confirmation action by insured, could assert defense that insured had settled his case with tort-feasor and tort-feasor's insured for precisely the same amount as arbitration award. Bruno v. Travelers Ins. Co., App. 3 Dist., 386 So.2d 251 (1980). Insurance Key Number graphic 3323 Court must confirm arbitration award upon application of any party to award unless, within 90 days after receipt of award, party thereto has filed motion with court to vacate, modify or correct award, except that, where motion to vacate award is based on corruption, fraud, or other undue means, motion
may be filed within 90 days after such grounds are known or should have been known to injured party. Travelers Ins. Co. v. Allen, App. 3 Dist., 356 So.2d 1287 (1978), certiorari denied 364 So.2d 893. Arbitration Key Number graphic 72.1; Arbitration Key Number graphic 77(2) 5. Waiver of objections to award Insurer, by having failed to apply to arbitrators for modification or correction of that portion of their award taxing all of the arbitrators' fees against it, and by having failed to apply to a court of competent jurisdiction for an order modifying or correcting that portion of the award, waived any lawful objections it might have had to the correctness and validity of the award and could not later assert its objections as a defense to the action brought by insureds to enforce the award. Carter v. State Farm Mut. Auto. Ins. Co., App. 1 Dist., 224 So.2d 802 (1969). Insurance Key Number graphic 3304 6. Remand Circuit court, in action to confirm arbitration award, is without authority, two years after award, to remand case to arbitration panel to consider allegations of misrepresentation made in arbitration hearing, which are raised by losing party for first time at confirmation hearing. Lominska v. Fleet Street Pub. Corp., App. 3 Dist., 587 So.2d 576 (1991). Arbitration Key Number graphic 72.3 7. Attorney fees Neither contractor nor subcontractor was the prevailing party entitled to attorney fees in arbitration that resolved a contractual dispute, even though arbitrator awarded subcontractor $982.07 on its claims, and denied contractor's $27,000 counterclaim; arbitrator adopted contractor's breakdown and pay schedule, it was therefore not clear from the face of the arbitration award which party prevailed, arbitrator did not designate either party as the prevailing party, and time to seek modification or clarification of arbitration award was past. Coral-Tech Associates, Inc. v. Plumbing Contractors, Inc., App. 4 Dist., 916 So.2d 958 (2005), rehearing denied. Arbitration Key Number graphic 42 Subcontractor's failure to timely seek modification or clarification of arbitration award that declared that there was no prevailing party precluded award of attorney fees to subcontractor; arbitration award failed to state the basis for its award, such that trial court was unable to determine which party prevailed on the significant issues. A-1 Duran Roofing, Inc. v. Select Contracting, Inc., App. 4 Dist., 865 So.2d 601 (2004), rehearing denied. Arbitration Key Number graphic 42; Arbitration Key Number graphic 73.4 Brokerage customer was not entitled to award of attorney fees in arbitration proceeding with brokerage; although arbitration award was subject to correction by trial court to determine whether customer prevailed on theory that would permit award of attorney fees, customer failed to make motion to modify or correct arbitration award within 90 days of delivery as required by statute governing modification or correction of award by the Circuit Court, or seek clarification of award within 20 days of delivery, as required by statute governing change of award by arbitrator. Chatfield Dean & Co., Inc. v. Kesler, App. 2 Dist., 818 So.2d 572 (2002), rehearing denied. Arbitration Key Number graphic 91 8. Costs Arbitrators' award of costs could not be remanded for clarification absent evidence of miscalculation. Applewhite v. Sheen Financial Resources, Inc., App. 4 Dist., 608 So.2d 80 (1992). Arbitration Key
Number graphic 72.3 Party who had procured favorable arbitration award was precluded from claiming attorney's fees by failing to move to vacate arbitrator's order denying fees, or to modify that order, within statutory time or to make allegations upon which extension of period in which to file motion could be based. Sachs v. Dean Witter Reynolds, Inc., App. 3 Dist., 584 So.2d 211 (1991). Arbitration Key Number graphic 42 Since insurance company was not on notice that the arbitrators' fees were included in "taxable costs" award, it could not have been expected to file motion to modify or vacate the arbitrators' award within 90-day period and could appeal issue that arbitrators' fees should not be included in "taxable costs" award. Lumbermens Mut. Cas. Co. v. Meade, App. 5 Dist., 404 So.2d 1141 (1981), approved 423 So.2d 908. Insurance Key Number graphic 3331(1) The courts would have power to review possible excessive costs in arbitration proceeding. Harris v. State Farm Mut. Auto. Ins. Co., App. 2 Dist., 283 So.2d 147 (1973). Arbitration Key Number graphic 73.7(1) Insurer's objection to that portion of arbitration award which taxed against insurer the total amount of arbitrators' fees came within scope of statutory grounds authorizing modification or correction of an arbitration award by the court. Carter v. State Farm Mut. Auto. Ins. Co., App. 1 Dist., 224 So.2d 802 (1969). Insurance Key Number graphic 3307 9. Pre-award interest Trial court was not empowered to enter amended final judgment granting pre-arbitration award interest to owner in construction dispute that was not in conformity with arbitration award, which specifically denied pre-award interest, even if owner filed motion for modification of award; arbitrator denied pre-award interest based on what it believed to be law on such interest and facts of case, rather than simply because the task was too arduous. Expressway Companies, Inc. v. Precision Design, Inc., App. 3 Dist., 882 So.2d 1016 (2004), review dismissed 885 So.2d 387. Arbitration Key Number graphic 73.9
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« Reply #9 on: December 12, 2006, 07:54:27 PM »

682.16. Judgment roll, docketing (1) On entry of judgment or decree, the clerk shall prepare the judgment roll consisting, to the extent filed, of the following: (a) The agreement or provision for arbitration and each written extension of the time within which to make the award; (b) The award; (c) A copy of the order confirming, modifying or correcting the award; and (d) A copy of the judgment or decree. (2) The judgment or decree may be docketed as if rendered in a civil action. 1. In general Unique and exceptional circumstances existed to permit appellate court, rather than dismissing appeal from order confirming arbitration award upon concluding that order was nonfinal and nonappealable because it lacked sufficient words of finality, to instead grant appellant 30 days to obtain and file final order from trial court, where both appellant and appellee, relying on perceived inconsistency between governing statutes and on judicial precedent, had believed that order was final and appealable. City of Tallahassee v. Big Bend PBA, App. 1 Dist., 703 So.2d 1066 (1997). Arbitration Key Number graphic 73.8 Proceedings had before arbitrator are not normally part of award record. Carol City Utilities, Inc. v. Gaines Const. Co., App. 3 Dist., 201 So.2d 242 (1967), certiorari denied 210 So.2d 221. Arbitration Key Number graphic 73.6
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« Reply #10 on: December 12, 2006, 07:56:46 PM »

682.17. Application to court Except as otherwise provided, an application to the court under this law shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in an action. 1. Construction and application Though partner filed complaint seeking damages for other partners' failure to comply with arbitration award, trial court properly treated proceeding as application for confirmation of arbitration award. Harris v. Haught, App. 1 Dist., 435 So.2d 926 (1983). Partnership Key Number graphic 312 Complaint by insured seeking a declaration of rights under uninsured motorist provision of policy and an award of attorney's fees and cost in addition to appointment of a third impartial arbitrator was sufficient to constitute, and should have been considered as, a motion to compel arbitration under statute. Nigaglioni v. Century Ins. Co. of New York, App. 3 Dist., 281 So.2d 570 (1973). Insurance Key Number graphic 3282 Complaint for specific performance to compel arbitration of insurance agreement was sufficient to constitute motion to compel arbitration. Keith v. State Farm Mut. Auto. Ins. Co., App. 3 Dist., 240 So.2d 202 (1970). Specific Performance Key Number graphic 114(1) Procedure to vacate, modify, or correct arbitration awards is a "civil" proceeding. Aetna Cas. & Sur. Co. v. Miller, App. 2 Dist., 172 So.2d 11 (1965). Arbitration Key Number graphic 77(1)
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