William WIENER and Elizabeth S. Wiener, Appellants,
TAYLOR MORRISON SERVICES, INC., f/k/a Morrison Homes, Inc., d/b/a Morrison Homes, Appellee.
appeal from the Circuit Court for Duval County. Robert M.
Popham Decunto, Kevin A. Schoeppel, and Morgan Orender of
Durant, Schoeppel & Decunto, P.A., Jacksonville, for
R. Davis, Tallahassee, and Edward J. Kuchinski, Tampa, of
Carlton Fields, P.A., for Appellee.
William and Elizabeth Wiener appeal a non-final order which
stays their civil complaint and refers the cause to
arbitration. As arbitration is not required pursuant to the
specific terms of the applicable agreement between the
parties, we reverse.
Wieners filed a complaint seeking damages from Taylor
Morrison Services, Inc., which constructed the Wieners
residence and sold it to them. Two warranties were provided
by Taylor Morrison for the Wieners residence. The warranties
were a two-year "blanket" warranty, which is not
applicable here, as well as a ten-year "structural"
warranty. In their complaint, the Wieners alleged that the
construction of their residence was in violation of various
provisions of the Florida Building Code, sections
583.70-553.898, Florida Statutes, particularly with regard to
the installation of the stucco. They did not allege a claim
under either warranty.
receipt of the complaint, Taylor Morrison moved to stay the
proceedings in circuit court and to compel arbitration. After
a non-evidentiary hearing, the trial court granted that
motion finding that the issues raised by the Wieners were
arbitrable under the structural warranty agreement and that
Taylor Morrison has not waived its right to require
arbitration. An order compelling arbitration is subject to de
novo review. See Mora v. Abraham
Chevrolet-Tampa, Inc., 913 So.2d 32 (Fla. 2d DCA 2005).
structural warranty granted by Taylor Morrison has numerous
limitations. The structural warranty states:
6. This warranty does not apply to non-load-bearing
elements which are deemed NOT to have the potential for a
Major Structural Defect:
a) non-load-bearing partitions and walls;
b) wall tile or paper, etc.;
c) plaster, laths, or drywall;
d) flooring and sub-flooring ...