QUICK NOTE: STAYING, NOT DISMISSING, ARBITRABLE DISPUTES UNDER FEDERAL ARBITRATION ACT

Posted on June 23, 2024June 23, 2024 by David Adelstein

As you hopefully know from posted articles, arbitration is a creature of contract. Stated differently, there must be a contractual basis to have a dispute resolved through binding arbitration. The Federal Arbitration Act (FAA) applies to transactions involving interstate commerce. Oftentimes, lawsuits are filed despite an arbitration provision in a contract because parties can, if they desire, waive their rights to have their dispute resolved through binding arbitration.

In what should not be a shocker, the United States Supreme Court in Smith v. Spizzirri, 144 S.Ct. 1173, 1178 (2024), held that when a federal “district court finds that a lawsuit involves an arbitrable dispute, and a party requests a stay pending arbitration, section 3 of the FAA compels the court to stay the proceeding.” Dismissing the lawsuit should not be the option. Staying the lawsuit should.

[S]taying rather than dismissing a suit comports with the supervisory role that the FAA envisions for the courts. The FAA provides mechanisms for courts with proper jurisdiction to assist parties in arbitration by, for example, appointing an arbitrator; enforcing subpoenas issued by arbitrators to compel testimony or produce evidence; and facilitating recovery on an arbitral award. Keeping the suit on the court’s docket makes good sense in light of this potential ongoing role, and it avoids costs and complications that might arise if a party were required to bring a new suit and pay a new filing fee to invoke the FAA’s procedural protections.

Smith, supra, at 1178 (internal citations omitted).

If you have questions or concerns regarding an arbitration provision, the best time to ask is before you sign the contract that includes binding arbitration as the method to resolve disputes.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

BE STRATEGIC WHEN SUING A MANUFACTURER UNDER A WARRANTY WITH AN ARBITRATION PROVISION

Posted on August 20, 2023August 20, 2023 by David Adelstein

I’ve said this before, and I’ll say it again: arbitration is a creature of contract. If you don’t want to arbitrate, don’t agree to an arbitration provision as the means to resolve your dispute. Now, with that said, there are times you may not have a choice. An arbitration provision in a warranty from a manufacturer of a product is an example. If you are procuring the product, you are agreeing to the terms of the express warranty. Manufacturers are not negotiating their product warranty on a case-by-case basis considering they are not typically the ones selling the product directly to the end user. This does not mean that is a bad thing. It just means if you elect to sue the manufacturer directly for an alleged product defect or under the terms of the warranty, you should read the warranty and consider the strategic aspect that suing the manufacturer will have on your case.

In SICIS North America, Inc. v Sadie’s Hideaway, LLC, 48 Fla.L.Weekly D1581c (Fla. 1^st DCA 2023), an owner elected to sue a tile manufacturer, a general contractor, the architect, and a window and door company. One of the arguments the owner raised was that exterior tiles installed were defective. The tiles were procured by the general contractor. The owner sued the general contractor under various theories and sued the tile manufacturer for breaches of warranty and negligence. The general contractor asserted a crossclaim for indemnification against the tile manufacturer. The tile manufacturer moved to compel the owner’s claim and the general contractor’s crossclaim to arbitration since there was an arbitration provision in the warranty documents and the general contractor’s indemnification claim arose from that transaction. The trial court denied the motion to compel arbitration. On appeal, the appellate court reversed:

First, because [the owner] was suing [the tile manufacturer] based upon the written warranty, it was bound by the arbitration provision contained in [the general contractor’s] agreement with [the tile manufacturer]. As the Florida Supreme Court has explained, “[W]hen a plaintiff sues under a contract to which the plaintiff is not a party . . . we will ordinarily enforce an arbitration clause contained in that contract, absent some other valid defense. . . .” . [The owner] had no valid defense against arbitration, a fact which it apparently realized when it voluntarily dismissed its express warranty claim after the notice of appeal and initial brief were filed.

Second, the trial court erred in not compelling arbitration based upon the agency relationship that existed between [the owner] and [the general contractor]. The essential elements of an actual agency relationship are: (1) acknowledgement by the principal that the agent will act for him; (2) the agent’s acceptance of the undertaking; and (3) control by the principal over the actions of the agent.

***

[T]he record evidence establishes that [the owner] authorized [the general contractor] as its general contractor to act as its agent when purchasing the tiles from [the tile manufacturer]. Article 3 of the parties’ agreement provides that [the general contractor] “accept[ed] the relationship of trust and confidence established by the [a]greement,” it would “exercise [its] skill and judgment in furthering the interests of the Owner,” it would “furnish efficient business administration and supervision,” and it would “furnish at all times an adequate supply of workers and materials.” Section 10.1 authorizes [the general contractor] to obtain bids from “suppliers of materials,” and Section 12.1.9 provides that “the Contractor will not be required to make payments to subcontractors or suppliers unless and until the Owner pays Contractor for their work and materials.” In line with its duties pursuant to the agreement, [the general contractor] alleged below in its indemnification claim that a special relationship existed between it and [the tile manufacturer] because [the tile manufacturer] provided “certain materials” to it to install on the project. In addition, [the tile manufacturer] filed with the trial court a signed copy of its purchase agreement with [the general contractor]. Because [the general contractor’s purchase of the tiles was within the scope of work that [the owner] hired it to do, it was unnecessary for [the owner] to expressly authorize [the general contractor] to enter into the arbitration agreement with [the tile manufacturer]. [The owner] is bound by that agreement by virtue of its agency relationship with [the general contractor].

SICIS North America, supra (internal citations omitted).

The owner did not need to sue the tile manufacturer. It could have just sued the general contractor for the tiles. Also, in numerous cases, it is not the product that is the problem; it is the installation. Did the warranty cover installation or only defects in the product itself? It may likely be the latter and the warranty probably limited the scope of the manufacturer’s liability. It is uncertain in this instance, but even if there was an inherent product defect in the tiles, there are also economic loss rule considerations. The point is – suing the manufacturer was likely overkill in this case by the owner as it could have sued the general contractor that procured the tiles and was responsible for installing the tiles. Now, the owner and general contractor are tasked with arbitrating claims against a manufacturer under a warranty that probably has favorable terms to the manufacturer if indeed the tiles are proven to be defective and the root of the owner’s construction defect claim.

UNPREDICTABLE OPINION REGARDING CONSTRUCTION LIEN (REINSTATEMENT??)

Posted on January 14, 2023January 14, 2023 by David Adelstein

Here comes the discussion of an appeal I was intimately involved in dealing with a construction lien. See Suntech Plumbing and Mechanical Corp. v. Bella Isla, LLC, 2022 WL 14672765 (Fla. 3d DCA 2022). Unfortunately, it was a losing result on my end but not a losing result to the issue at-hand. You should ask what in the world does this mean. I will tell you.

Here is the fact pattern. A subcontractor files a construction lien foreclosure lawsuit against an owner for unpaid contract balance. In the same lawsuit, the subcontractor sues the general contractor for breach of contract and unjust enrichment associated with an approximate three-year delay on a construction project. The project was scheduled to be completed in 2019. It was not. The project was pushed into COVID and into 2022. (The subcontractor did not sue the general contractor for amounts subject to the lien foreclosure claim.) The general contractor, assuming the defense of the owner, moved to stay the lawsuit pending the outcome of arbitration based on an arbitration provision in the subcontract. The subcontractor did not dispute the arbitration provision, but argued that arbitration provision should not extend to the owner that was (a) not bound by the subcontract, (b) would not be a party to the arbitration, and (c) the amounts pled against the general contractor did not include the amounts subject of the lien foreclosure lawsuit. At a minimum, the lawsuit should be stayed, not dismissed. Nevertheless, the trial court dismissed the entire lawsuit in an order that states that it is a final order with language that the lien may be “reinstated” after the outcome of the arbitration (that the owner is not a party to).

This is a big deal. Construction liens are creatures of statute. And, a construction lien, no different than a mortgage, is only as good as its lien priority. (The priority of a lien is critical!). Well, there is NO statutory procedure to reinstate a construction lien. None. There is also no authority that even contemplates such a procedure. Thus, what happens to the priority of the lien and what happens to the corresponding lis pendens? I have no clue other than the best recourse was to immediately appeal on two fronts: (1) appeal the trial court’s ruling as a final order based on language in the order stating it is a final order, and (2) in an abundance of caution, move for a petition of writ of certiorari due to the irreparable harm posed by the dismissal of a lien foreclosure lawsuit (regardless of the unheard-of reinstatement language). This is the recourse pursued with the appeals consolidated. The sentiment was that, at worst case, the appellate court would remand for the lawsuit to be stayed, not dismissed, so as not to impact the integrity (priority) of the lien and lis pendens. The worst thought was that if the appeal was lost, there was not really a loss in this case because a loss would ultimately mean the lien and lis pendens are still in play where an argument cannot be made otherwise. Although, honestly, a loss was not really considered here because there is no such thing as reinstating a lien.

Welcome to the unpredictability of the law.

First, the appellate court ruled that the trial court’s order, despite saying it was a final order, was not really a final order subject to an automatic appeal. “Because the trial court’s order of dismissal, however, is neither a final order nor an appealable nonfinal order we lack jurisdiction to consider [subcontractor’s] appeal of the dismissal order.” See Suntech, supra, at *1.

Second, the appellate court ruled that the reinstatement language did not constitute irreparable harm to support the basis of certiorari relief.

[Subcontractor] alternatively seeks certiorari review of the trial court’s order of dismissal; however, the trial court’s order expressly retained jurisdiction to enforce any arbitration award and to reinstate [subcontractor’s] lien foreclosure claim against [owner] should arbitration not resolve the matter. [Subcontractor] has therefore failed to establish irreparable harm necessitating exercise of our certiorari jurisdiction.

Suntech, supra, at *1.

Ok. So, the lien (and lis pendens) should remain in effect. But what about their priority? How do you reinstate a dismissed construction lien (and how does this effect lien priority)? Why is the lien even dismissed when the owner is not a party to the arbitration and not bound by any arbitration award? How is a dismissed lien not irreparable harm when the lien serves as the collateral for nonpayment? What happens to the lis pendens? Does this mean that a general contractor can always move to dismiss a lien foreclosure claim from a subcontractor based on an arbitration provision that the owner is not bound to or an arbitration the owner is not a party to?

I don’t know the answers to any of these questions. Do you? The continued lack of answers prompted a motion for rehearing seeking clarity because the ruling, frankly, benefits no one in the construction industry and extends to buyers, sellers, title companies, etc. You can’t ignore the lien and lis pendens based on the appellate court’s ruling. But how do you treat the lien from a priority standpoint (including the lis pendens) and how the lien gets reinstated is another thing.

And, again, welcome to the law! In my view, this is a bad opinion for the construction industry as a whole. It will be used in the wrong fashion to create a situation where the lien and lis pendens are in some unknown legal purgatory with an undefined outcome.

IF YOU WANT TO ARBITRATE, DON’T WAIVE YOUR RIGHTS TO DO SO

Posted on June 12, 2022June 12, 2022 by Edward Garber

I have said this before, but it is worth saying it again. Arbitration is a creature of contract. This means if you want your dispute to be decided by an arbitrator through a binding arbitration process, you need have a written arbitration agreement. Such agreement is oftentimes included in the dispute resolution provision of your construction contract. It is always advisable to have counsel draft your arbitration provision since this can be an important provision if a dispute ensues down the road. Arbitration provisions are common in construction contracts.

However, the right to arbitrate can be waived. If you participate in a litigation and act inconsistent with your contractual right to arbitrate, this can serve as a waiver of your right to later demand arbitration. Whether you waived your right to arbitrate has nothing to do with whether the other party was prejudiced by you acting inconsistently with your right to arbitrate. This issue was recently decided by the Supreme Court in Morgan v. Sundance, Inc., 2022 WL 1611788 (2022), where the Supreme Court held prejudice to the other party is a non-issue under the Federal Arbitration Act (which broadly applies to contracts involving interstate commerce) when it comes to determining whether a party waived his/her/its right to arbitrate.

Although this may appear insignificant, it is not. It reinforces the notion that if you want to arbitrate your dispute pursuant to your contract, you should NOT take any action inconsistent with this right. The best practice is actually to demand arbitration from the get-go. If you need to file a lawsuit, reference in the lawsuit that the dispute is subject to arbitration, you have demanded arbitration, and that you will be contemporaneously filing a motion to stay the action pending arbitration. If you are responding to the lawsuit, the best practice is to file the motion to stay the action and compel arbitration pursuant to the contract right off the bat. There is no reason to wait. These are best practices because you are not undertaking any action inconsistent with the right to arbitrate and, importantly, not giving the other side the waiver argument. Remember, whether the other party is prejudiced by any proven waiver is moot–it does not impact whether or not you waived your right to arbitrate.

DISPUTE RESOLUTION IN YOUR CONSTRUCTION CONTRACT

Posted on January 29, 2022January 29, 2022 by Edward Garber

There are important provisions in your construction contract that are geared towards dispute resolution. These are provisions you want to understand – not when a dispute arises, but BEFORE the dispute ever occurs.

Many times, dispute resolution provisions are cast aside or not appreciated until a dispute rears its ugly head. This can put you in a reactive stance versus a proactive stance, which you want to be in, because you want to proactively make sure all rights are preserved relative to the dispute. You want to proactively make strategic decisions based on the dispute resolution provisions and process in your contract.

Before your contract even gets signed, you may want to negotiate aspects of the dispute resolution process for many reasons. The process could be one-sided. It could be onerous. It could be complex. It could be unfavorable or costly with respect to how you want to progress a dispute. If you appreciate the dispute resolution process from the get-go, you will be in a more effective position to navigate the process while ensuring you are preserving your rights moving forward

Here are considerations when negotiating and entering a construction contract when it comes to dispute resolution that should not be overlooked:

(i) How does the contract address the submission and resolution of claims for additional money and/or time?

(ii) Is their an initial decision maker or dispute resolution board serving as the person/board that resolves claims, and who is this person/board?

(iii) Is there a time period to submit claims; if so, what is that time period and is it reasonable?

(iv) What happens if a claim is denied and/or the initial decision maker/board denies the claim?

(v) Does the contract require mediation as a condition precedent to litigation or arbitration?

(vi) Does the contract require anything prior to mediation as an initial step in the dispute resolution process, such as a meeting with principals to occur within a set time period?

(vii) Does the contract require litigation or binding arbitration (and if arbitration, is there a body to administer the arbitration such as the American Arbitration Association)?

(viii) If litigation, does the contract specify an exclusive venue to file the dispute?

(ix) If litigation, does the contract include a waiver of jury trial?

(x) If binding arbitration, does the contract specify the number of arbitrators and/or the expected qualifications of the arbitrator(s)?

(xi) If binding arbitration, does the contract specify whether the arbitrator(s) can decide the arbitrability of any dispute?

(xii) Does the contract include a prevailing party attorney’s fees provision?

(xiii) Does the contract include a provision that would promote a stay of a dispute pending the outcome of another dispute or claim with another party?

(xiv) Is there a choice of law provision in the contract to reflect the law that governs the contract (and the dispute)?

(xv) Does the contract include a joinder provision that would allow you to be joined in disputes with others, regardless of the venue or the forum for the dispute?

There is no one-size-fits-all model when it comes to dispute resolution and a dispute resolution process. The goal is to understand the process and negotiate those aspects of the process that are not in your interests and/or, at a minimum, factor that process into your strategic decisions moving forward in case you encounter a dispute.

Please make sure to work with experienced construction counsel if you need assistance with your construction contract, whether it is understanding the dispute resolution process, negotiating the dispute resolution process, or simply working on an equitable contract for your project or business.

ASSOCIATION BOUND BY ARBITRATION PROVISION IN PURCHASE-AND-SALE CONTRACTS AND DEEDS

Posted on December 24, 2021December 24, 2021 by Edward Garber

When an association files a lawsuit pertaining to matters of common interest, the lawsuit is typically filed as a class on behalf of the owners that make up the association (i.e., the association’s members). How do you deal with an arbitration provision that is included in an owner’s purchase-and-sale agreement or recorded in the deed? The recent opinion in Lennar Homes, LLC v. Martinique at the Oasis Neighborhood Association, Inc., 47 Fla. L. Weekly D15c (Fla 3rd DCA 2021) dealt with this exact issue with a homeowner’s association ruling that the association was required to arbitrate its latent construction defect claims against the developer (homebuilder).

In this case, a community in Miami consisted of 26 townhouse buildings. There was a broad arbitration provision in each owner’s purchase-and-sale agreement that included disputes relating to property damage. Further, with each closing, a special warranty deed was recorded that included a nearly identical arbitration provision.

The association became aware of latent defects relating to the exterior walls of the buildings and filed a lawsuit against the developer (homebuilder). The developer moved to compel the dispute to arbitration which was denied by the trial court because there was no specific agreement between the association and the developer that required arbitration and the lawsuit dealt with matters that the association was obligated to maintain.

The developer appealed contending that the association was bound by the arbitration provision in its members’ (the real property owners) purchase-and-sale agreements and deeds. The Third District Court of Appeal, relying on the Second District Court of Appeal’s decision in Pulte Home Corp. v. Vermillion Homeowners Ass’n, Inc., 109 So.3d 233, 235 (Fla. 2d DCA 2013), agreed with the developer: “Consistent with our sister court’s analysis in Pulte, we hold that the Association’s right to proceed in its representative capacity in this case required it to abide by the members’ agreement with [the developer] to arbitrate this dispute.” Lennar Homes, supra.

As an aside, the association also argued that the arbitration provision in the purchase-and-sale agreement and special warranty deed should be deemed void against public policy under Florida Statute s. 720.3075(1)(b) that provides in material part: “It is declared that the public policy of this state prohibits the inclusion or enforcement of certain types of clauses in homeowners’ association documents, including declaration of covenants, articles of incorporation, bylaws, or any other document of the association which binds members of the association, which either have the effect of or provide that: A homeowners’ association is prohibited or restricted from filing a lawsuit against the developer, or the homeowners’ association is otherwise effectively prohibited or restricted from bringing a lawsuit against the developer.” The Third District Court of Appeal found this argument unavailing as the purchase-and-sale agreement and special warranty deed, both of which included the arbitration provision, are not association documents (e.g., declarations of covenants, articles of incorporation, bylaws, etc.).

GENERAL CONTRACTOR INTERVENING TO COMPEL ARBITRATION PER THE SUBCONTRACT

Posted on November 21, 2021November 21, 2021 by Edward Garber

It is not uncommon that a general contractor’s subcontract will include an arbitration provision. Or it will allow the general contractor to select binding arbitration as the method to resolve disputes at the general contractor’s SOLE OPTION. A general contractor’s subcontract should absolutely give the general contractor this important right. (Keep this in mind when drafting dispute resolution provisions for a general contractor.)

It is also not uncommon for a subcontractor the sue a general contractor’s payment bond surety, and NOT the general contractor. One reason to do this is to create an argument to avoid the dispute resolution provision in the subcontract. (Another reason is to avoid any pay-if-paid defense.) When this occurs, a general contractor may still want to arbitrate the subcontractor’s payment bond dispute and a way to do so is for the general intervene in the lawsuit and move to compel arbitration. Sometimes, it is even practical for the general contractor to immediately initiate the arbitration process against the subcontractor, particularly if the general contractor wants to assert a counterclaim, so that the motion to compel is supported by the formal demand for arbitration (and filed with the American Arbitration Association or other body administering the arbitration). I have done this on a number of occasions.

By way of example, in U.S. f/u/b/o American Electric Co., LLC, 2021 WL 5280665 (M.D.Fla. 2021), the general contractor hired a subcontractor for a federal construction project. The subcontract included a binding arbitration provision.

As required, the general contractor had a Miller Act payment bond. The subcontractor filed a Miller Act payment bond lawsuit in federal district court against the payment bond surety. The general contractor moved to intervene in the lawsuit to compel arbitration of the dispute and stay the dispute pending the outcome of arbitration. The general contractor also claimed that if arbitration is not compelled, it will assert a counterclaim against the subcontractor. The district court agreed that that the general contractor was entitled to permissively intervene under the Federal Rules of Civil Procedure:

[The general contractor] and [subcontractor] are the parties to the Subcontract, and, pursuant to the Payment Bond, [the general contractor] is jointly and severally liable for any sum the Court may find the Surety Defendants owe to [the subcontractor]. Under the circumstances similar to those presented in this action, other courts have found that the intervening general contractor’s claims share common questions of law or fact with the subcontractor’s suit against the general contractor’s surety. The Court reaches the same conclusion here. [The general contractor’s] claims and defenses share common questions of law and fact with the [payment bond] action pending, and, thus, [the general contractor] has shown that its interest is based on the action pending before the Court.

American Electric Company, supra, at *3 (internal citations omitted).

Additionally, the district court further found that the subcontractor would not be prejudiced by staying the action and compelling arbitration:

Here, all considerations weigh in favor of permitting [the general contractor] to intervene. First, allowing [the general contractor] to intervene in this action will further judicial economy by preventing a multiplicity of suits and the risk of inconsistent results. If denied intervention, [the general contractor] could still initiate an arbitration action or a separate lawsuit against [the subcontractor] on the underlying contract dispute. Similarly, if [the general contractor] is barred from intervening and [the subcontractor] recovers against the Surety Defendants, the Surety Defendants may file a separate action for indemnity against [the general contractor]. These various proceedings would waste resources dealing with the same dispute and would present the untenable risk of inconsistent results.

American Electric Company, supra, at *5 (internal citations omitted).

DISPUTES WILL NOT BE SUBJECT TO ARBITRATION PROVISION IF THERE IS NO “SIGNIFICANT RELATIONSHIP”

Posted on November 14, 2021November 14, 2021 by Edward Garber

As you know from prior articles, arbitration is a creature of contract. This means if you want your disputes to be resolved by binding arbitration, as opposed to litigation, you want to make sure there is an arbitration provision in your contract. If there are certain types of disputes you do not want subject to arbitration, you want to specify those types of disputes/claims in your arbitration provision. If you are not sure, make sure to discuss the pros and cons of arbitration with your counsel when drafting and negotiating the contract. However, even with a broad arbitration provision, there are times where a dispute may still fall out of the scope of the arbitration provision, i.e., the dispute is not arbitrable. If this occurs, such dispute will be resolved by litigation. Parties that have buyer’s remove and do not want to arbitrate their dispute may try to make this argument that the dispute is not subject to the scope of the arbitration provision. There are times this argument carries weight because the dispute has no significant relationship to the agreement with the arbitration provision, as shown below.

In Deweees v. Johnson, 46 Fla. L. Weekly D2356b (Fla. 4^th DCA 2021), a plaintiff purchased a home in a private residential community. The purchase contract with the developer contained a broad arbitration provision that materially provided that, “all post-closing claims, disputes, and controversies…between purchaser and seller will be resolved by binding arbitration except those arising under section G.5 and G.6 above.” Dewees, supra. Sections G.5 and G.6 provided that the purchaser will not interfere in the sales process with other purchasers and will not interfere with workmen during the construction process. There was also a workmanship and structural defect warranty for the dwelling that also contained an arbitration provision.

A year-and-a-half after the plaintiff entered into the purchase contract, she injured herself while riding her bicycle in the community. The roads were still under construction and were uneven, which caused the bicycle accident.

The plaintiff sued the developer, the contractor hired to construct the road, and the general contractor. The claims against the developer sounded in negligence for the developer’s failure to ensure the roads were safe for bicyclists, failing to warn bicyclists using the road of known hazards, and breach of the nondelegable duty to maintain the premises in a safe and reasonable manner. The developer moved to compel the dispute to arbitration, which the trial court granted.

Deciding whether a particular claim is covered by a broad arbitration provision requires a determination whether a significant relationship exists between the claim and the agreement containing the arbitration clause, regardless of the legal label attached to the dispute. [A] significant relationship is described to exist between an arbitration provision and a claim if there is a ‘contractual nexus’ between the claim and the contract.

A contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract. More specifically, a claim has a nexus to a contract and arises from the terms of the contract if it emanates from an imitable duty created by the parties’ unique contractual relationship. In contrast, a claim does not have a nexus to a contract if it pertains to the breach of a duty otherwise imposed by law or in recognition of public policy, such as a duty under the general common law owed not only to the contracting parties, but also to third parties and the public.

Dewees, supra (quotations and citations omitted).

For plaintiff’s claims to be subject to the arbitration provision in the purchase contract, they must not only arise from the purchase contract, but also have a significant relationship to the purchase contract. But here, plaintiff’s claims against the developer do NOT have a significant relationship to the purchase contract. For this reason, the appellate court reversed the trial court’s order compelling the dispute to binding arbitration. Plaintiff’s claims “do not refer to or implicate contractual duties created or governed by the Purchase Contract or Dwelling Warranty but concern duties generally owed to the public, including all invitees using the roadways in [the community]. None of the allegations in the complaint require reference to or construction of any portion of the Purchase Contract or Dwelling Warranty. The allegations instead rely on obligations that would extend to anyone who might be injured by the developer’s tortious conduct.” Dewees, supra. There was no contractual nexus between the purchase contract and the plaintiff’s dispute against the developer.

WAIVER OF ARBITRATION BY NOT SUBMITTING CLAIM TO INITIAL DECISION MAKER…REALLY!

Posted on August 15, 2021August 15, 2021 by Edward Garber

Arbitration is a form of dispute resolution that is a creature of contract. If you want an arbitrator to resolve your disputes, you need to ensure there is an arbitration provision in your contract. There are pros and cons to arbitration. One con is you lose the right to appeal. A couple of pros, however, are that your arbitrator(s), which you generally have some control in the selection of, will be versed in the construction industry and it can be a more efficient forum to resolve disputes in the times of COVID. Once you have your scheduling conference with the appointed arbitrator(s), you will be able to agree upon a set final hearing (trial) time and have milestone dates that work backwards from the final hearing date. This is much more efficient than being placed on an unrealistic trial docket or having to deal with the gamesmanship of motions just to be able to get your case at-issue for trial.

However, the right to arbitrate your dispute can be waived. This was the issue in Leder v. Imburgia Construction Services, Inc., 2021 WL 3177338 (Fla. 3d DCA 2021), which I will be the first to tell you the ruling is quite baffling to me. In a nutshell, the contractor, by not complying with the submission of a claim to the Initial Decision Maker was found to have waived the dispute resolution provision in the AIA contract. Not sure this makes sense, but this was the ruling.

The contract, which was clearly an AIA contract, between the owner and contractor contained a dispute resolution provision. It contained an arbitration provision to resolve disputes. However, prior to arbitration, there were other dispute resolution steps parties had to follow. The parties were required to submit claims to the Initial Decision Maker. In this contract, the parties identified the “Miami Shores Village Building Department Official” as the Initial Decision Maker. The AIA defaults to the architect as the Initial Decision Maker, but sometimes parties will agree on a third-person to serve in this role. (I have never seen parties select a public body or official to serve in this role!). The Initial Decision Maker’s decision is a condition precedent to mediation, which is then a condition precedent to litigation. This is boilerplate AIA language in contracts with a contractor and owner.

The owner filed suit against the contractor after the contractor abandoned the project due to a dispute over a change order. The contractor moved to dismiss the suit based on the arbitration provision. The owner argued the contractor waived the right to arbitrate by not complying with the dispute resolution provision prior to abandoning the project, i.e., by not submitting the change order dispute to the Initial Decision Maker. The trial court found the owners’ argument without merit and dismissed the complaint based on the arbitration provision. The appellate court, on the other hand, found the owners’ waiver argument compelling and reversed the dismissal.

The Owners contend that the arbitration provision in the contract is unenforceable as it was waived. We agree.

Although a dispute arose between the parties, neither party initiated a claim with the Initial Decision Maker. Under the contract, a condition precedent to mediation is filing a claim with the Initial Decision Maker, and a condition precedent to arbitration is demanding mediation of the Initial Decision Maker’s decision. In this case, either party had the ability to initiate a claim with the Initial Decision Maker because the dispute relating to the fifth change order affected both parties and was related to the construction contract. However, neither party elected to do so.

***

In the instant case, the Contractor waived its right to arbitrate based on its pre-litigation action and the language in the parties’ contract. As stated above, prior to binding arbitration, there are other steps that the parties to the contract must take to preserve its contractual right to arbitrate—submitting a claim to the Initial Decision Maker, and thereafter, pursuing mediation. Neither party utilized this procedure to resolve their dispute relating to the…change order, including taking the first step—initiating a claim with the Initial Decision Maker. As such, we conclude that the parties waived their right to arbitrate under the terms of their contract. Therefore, we reverse the order granting the Contractor’s motion to dismiss the amended complaint and, on remand, the trial court is instructed to order the Contractor to file an answer to the Owners’ amended complaint.

Leder, supra, at *2-3.

The morale of this case is if there is a dispute resolution provision — comply with it — versus having to deal with this bonkers ruling where the court deemed a waiver of the arbitration provision and the entire dispute resolution process just because the claim had not been submitted to the Initial Decision Maker!

COURTS GENERALLY FAVOR THE ENFORCEMENT OF ARBITRATION PROVISIONS

Posted on April 4, 2021April 4, 2021 by Edward Garber

In recent posts (here and here) I have discussed arbitration provisions and cases dealing with the enforceability of arbitration provisions.

The case of Lemos v. Sessa, 46 Fla.L.Weekly D701a (Fla. 3d DCA 2021) deals with two noteworthy principles when it comes to arbitration that warrant another post about arbitration provisions.

First, courts will and should try to resolve any ambiguity in arbitration provisions in favor of arbitration.

Second, when there is an offending arbitration provision or one that includes language that violates public policy, the trial court “should sever the offending provisions from the arbitration clause so long as such severance does not undermine the parties’ intent.” Lemos, supra. This principle is reinforced when the arbitration provision is in an agreement that contains a severability provision.

In Lemos, a client sued her former attorney. The retainer or engagement agreement included an arbitration provision. The arbitration provision contained fee-shifting and cost-shifting provisions that violated pubic policy. The engagement agreement also included a severability provision. The client claimed the arbitration provision should not apply because it was both ambiguous and violative of public policy. On appeal, the appellate court found the arbitration provision was not ambiguous as it required claims regarding the attorney’s representation to be subject to arbitration. While the appellate court did find the fee-shifting and cost-shifting clauses in the arbitration provision to be contrary to public policy, such offending and invalid clauses could be severed from the arbitration provision “because their removal neither subverts the essence of the arbitration clause, nor causes us to drastically rewrite the parties’ agreement.” Lemos, supra.

The gist is that courts generally favor the enforcement of arbitration provisions.