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Wiener v. Taylor Morrison Services, Inc.

Florida Court of Appeals, First District

December 19, 2019

William Wiener and Elizabeth S. Wiener, Appellants,
v.
Taylor Morrison Services, Inc., f/k/a Morrison Homes, Inc., d/b/a Morrison Homes, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. Robert M. Dees, Judge.

          C. Popham Decunto, Kevin A. Schoeppel, and Morgan Orender of Durant, Schoeppel & Decunto, P.A., Jacksonville, for Appellants.

          Christine R. Davis, Tallahassee, and Edward J. Kuchinski, Tampa, of Carlton Fields, P.A., for Appellee.

          BILBREY, J.

         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.

         The 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.

         Upon 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).

         The 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 ...

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