FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Nonfinal Appeal from the Circuit Court for Brevard County,
Jeffrey Mahl, Judge.
C. Prichard, Evan J. Small, Megan A. Picataggio, and Greg K.
Demers, of Ball Janik LLP, Orlando, for Appellant.
Jeffrey M. Paskert and Dara L. Dawson, of Mills Paskert
Divers P.A., Tampa, for Appellee, Construction Enterprises
Inc. of Tennessee d/b/a Construction Enterprises, Inc.
Appearance for Other Appellees.
MOTION FOR REHEARING OR CLARIFICATION
grant in part Construction Enterprises Inc. of Tennessee
d/b/a Construction Enterprises, Inc.'s ("CEI")
motion for rehearing or clarification, withdraw our prior
opinion, and substitute the following corrected opinion.
Palms Senior Apartments Limited Partnership ("Royal
Palms") appeals the nonfinal order entered in favor of
CEI staying Royal Palms's lawsuit pending mediation and
arbitration. Royal Palms argues that the trial court erred in
finding that a valid arbitration agreement existed and that
its claim was subject to arbitration. We affirm the trial
court's finding that the parties had a valid agreement to
arbitrate certain claims. However, because it is unclear
whether Royal Palms's claim was one subject to
arbitration, we remand for a determination of that issue.
December 2006, the parties entered into a contract for CEI to
construct the Royal Palms Senior Apartments. The agreement
was comprised of the "AIA Document A201-1997 General
Conditions of the Contract for Construction"
("General Conditions") and a supplementary document
("Supplementary Conditions"), which modified and
deleted portions of the General Conditions and controlled if
the two documents conflicted.
October 2017, Royal Palms filed a complaint against CEI
alleging negligence, vicarious liability, breach of contract,
and breach of applicable building codes. CEI moved to dismiss
or alternatively, to compel mandatory and exclusive dispute
resolution procedures, including mediation and arbitration.
After a hearing on CEI's motion, the trial court
determined that the mediation and arbitration provisions of
the General Conditions were binding and enforceable. It
stayed the case and ordered mediation followed by arbitration
if mediation was unsuccessful. This appeal followed.
both federal statutory provisions and Florida's
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."
Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.
1999) (quoting Terminix Int'l Co. v. Ponzio, 693
So.2d 104, 106 (Fla. 5th DCA 1997)). Here, Royal Palms's
arguments implicate only the first two prongs of the
courts generally favor arbitration, "no party may be
forced to submit a dispute to arbitration that the party did
not intend and agree to arbitrate." Id. (citing
Seaboard Coast Line R.R. v. Trailer Train Co., 690
F.2d 1343, 1352 (Fla. 1982)). Thus, while ambiguities
regarding prong two-the scope of an arbitration clause-should
be resolved in favor of arbitration, prong one-the existence
of an enforceable arbitration clause-should not. See
Seaboard, 690 F.2d at 1352 ("Although Federal
policy requires us to resolve any doubt about the application
of an arbitration clause in favor of arbitration, the Federal
policy cannot serve to stretch a contract beyond the scope
originally intended by the parties." (citations
the Supplemental Conditions eliminated some of the General
Conditions related to arbitration, ...