Timber Pines Plaza, LLC v. Zabrzyski , 2017 Fla. App. LEXIS 3194 ( 2017 )


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  •           IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FIFTH DISTRICT
    NOT FINAL UNTIL TIME EXPIRES TO
    FILE MOTION FOR REHEARING AND
    DISPOSITION THEREOF IF FILED
    TIMBER PINES PLAZA, LLC,
    Appellant,
    v.                                                          Case No. 5D16-3275
    RICHARD ZABRZYSKI and
    GRAZYNA B. MACHNIK,
    Appellees.
    ________________________________/
    Opinion filed March 10, 2017
    Non-Final Appeal from the Circuit Court
    for Hernando County,
    Donald E. Scaglione, Judge.
    Randall P. Mueller and Michael P. Quinn,
    of Carey, O'Malley, Whitaker & Mueller,
    P.A., Tampa, for Appellant.
    George G. Angeliadis, of The Hogan Law
    Firm, Spring Hill, for Appellees.
    WALLIS, J.
    Timber Pines Plaza, LLC ("Timber Pines"), appeals the trial court's order denying
    its motion to compel arbitration on a counterclaim brought by Richard Zabrzyski and
    Grazyna B. Machnik (collectively, "Appellees"). For reasons that follow, we reverse the
    trial court's order and remand with instructions to grant Timber Pines' motion to compel
    arbitration.
    Timber Pines owns the Shopping Outlet Mall in Spring Hill, Florida (the "Outlet
    Mall"). The Outlet Mall contains two outparcels, the North Outparcel and the South
    Outparcel. In April 2014, Timber Pines contracted to sell the North Outparcel to Appellees
    for $550,000. The contract contains the following broad arbitration provision:
    14. DISPUTE RESOLUTION: This Contract will be construed
    under Florida law. All controversies, claims, and other matters
    in question arising out of or relating to this transaction or
    Contract or its breach will be settled as follows:
    (a) Disputes concerning entitlement to deposits made
    and agreed to be made: Buyer and Seller will have 30 days
    from the date conflicting demands are made to attempt to
    resolve the dispute through mediation. . . .
    (b) All other disputes: Buyer and Seller will have 30 days
    from the date a dispute arises between them to attempt to
    resolve the matter though mediation, failing which the parties
    will resolve the dispute through neutral binding arbitration in
    the county where the Property is located. The arbitrator may
    not alter the Contract terms or award any remedy not provided
    for in this Contract. . . .
    Before the purchase and sale closed, Timber Pines imposed Amended Deed
    Restrictions (the "ADR") on the North Outparcel, which provide:
    All future buildings or structures, property or building uses or
    ancillary or related uses, plans, site plans, on site parking,
    remodeling, renovations or additions as to building type,
    construction and set backs, Tract replats or subdivisions and
    the like must be previously submitted to and approved by
    [Timber Pines], its successors, heirs, assigns or successors
    in title in its sole discretion without necessity of consent of any
    other tract owner. Failure of [Timber Pines] to grant approval
    shall not be considered a waiver. [Timber Pines] also reserves
    for itself, its assignees and successors the right to approve
    and make any such changes described above for any
    property it owns, at any time without consent or approval by
    any tract owner.
    2
    (emphasis added). Appellees signed an acknowledgment form consenting to the ADR's
    terms. The transaction closed in October 2014, after which Appellees obtained building
    permits for the construction of a 6124 square foot building on the North Outparcel.
    Crucially, the contract for the sale of the North Outparcel does not reference, much less
    incorporate, the ADR.
    In October 2015, Timber Pines filed a complaint for injunctive relief and damages,
    alleging that Appellees commenced construction on the North Outparcel without obtaining
    approval pursuant to the ADR. Timber Pines requested that Appellees cease construction
    and comply with the restrictions, but Appellees refused. The trial court denied Timber
    Pines' request for an injunction, and our court per curiam affirmed the trial court's ruling.
    Timber Pines Plaza, LLC v. Zabrzyski, No. 5D16-95, 
    2016 WL 7405671
    , at *1 (Fla. 5th
    DCA Dec. 20, 2016).
    In March 2016, Appellees answered the original complaint and included a counter-
    claim for breach of contract, alleging that Timber Pines "failed or refused to object or
    otherwise provide any input on the building plans." Appellees further argued Timber Pines
    breached the contract by failing to provide them with a cross-parking easement. Timber
    Pines responded by moving to dismiss and compel arbitration on Appellees' counterclaim
    pursuant to the contract's arbitration provision. Appellees responded that Timber Pines
    waived its right to compel arbitration by asserting claims under the ADR that were
    "inextricably intertwined" with the contract. Neither party requested a hearing on Timber
    Pines's motion to compel arbitration, and the trial court ultimately denied Timber Pines's
    motion. The trial court's order does not include any factual findings or detail its reasons
    for denying the motion.
    3
    contained an arbitration provision covering "any dispute" with the employer "arising under
    [the employee's] employment." The court found that, although the employee's worker's
    compensation claim arose from his employer-employee relationship, that claim was
    separate and distinct from the employment agreement containing the arbitration
    provision. 
    Id. Similarly, Timber
    Pines's claim arose in part because it agreed to sell the
    North Outparcel to Appellees. However, once that sale closed, the ADR controlled the
    relationship between the parties regarding approval of construction plans—the only claim
    Timber Pines asserts in this case.
    Based on the foregoing, we find that Timber Pines did not waive its right to compel
    arbitration on Appellees' counterclaim. Therefore, we reverse and remand with
    instructions to grant Timber Pines's motion to stay litigation of Appellees' counterclaim1
    and to compel arbitration.
    REVERSED and REMANDED with Instructions
    ORFINGER, J., and JACOBUS, B.W., Senior Judge, concur.
    1  See § 682.03(7), Fla. Stat. (2016) ("If the court orders arbitration, the court on
    just terms shall stay any judicial proceeding that involves a claim subject to the arbitration.
    If a claim subject to the arbitration is severable, the court may limit the stay to that claim.").
    7
    A "significant relationship" between a claim and an arbitration
    provision does not necessarily exist merely because the
    parties in the dispute have a contractual relationship. Rather,
    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 inimitable 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.
    Jackson v. Shakespeare Found., Inc., 
    108 So. 3d 587
    , 593 (Fla. 2013) (citations omitted).
    The determination as to whether a party waived the right to arbitrate "should be
    analyzed much the same way as in any other contractual context. The essential question
    is whether, under the totality of the circumstances, the . . . party has acted inconsistently
    with the arbitration right." Raymond James Fin. Servs., Inc. v. Saldukas, 
    896 So. 2d 707
    ,
    711 (Fla. 2005) (quoting Nat'l Found. for Cancer Research v. A.G. Edwards & Sons, Inc.,
    
    821 F.2d 772
    , 774 (D.C. Cir. 1987)). A party acts inconsistently with the arbitration right
    by prosecuting or defending "a lawsuit on issues subject to arbitration." Green Tree
    Servicing, LLC v. McLeod, 
    15 So. 3d 682
    , 687 (Fla. 2d DCA 2009) (quoting Seville Condo.
    #1, Inc. v. Clearwater Dev. Corp., 
    340 So. 2d 1243
    , 1245 (Fla. 2d DCA 1976)). Once a
    party waives the right to arbitrate, "the party may not reclaim the arbitration right without
    the consent of his or her adversary." 
    Id. We find
    that there exists no significant relationship between Timber Pines's claims
    under the ADR and the arbitration clause contained in the contract for the purchase and
    5
    sale of the North Outparcel. Accordingly, we find that Timber Pines did not waive its right
    to compel arbitration on Appellees' counterclaim. See 
    id. Timber Pines
    referenced the
    contract in its complaint only to provide context for the parties' relationship and events
    leading up to the dispute. Timber Pines sought relief on the sole basis that Appellees
    commenced construction on the North Outparcel without obtaining approval as required
    by the ADR. The Florida Supreme Court has stressed that a "contractual nexus" requires
    that the claim "emanate[] from an inimitable duty created by the parties' unique contractual
    relationship." 
    Jackson, 108 So. 3d at 593
    . Here, the contract creates no "inimitable duty"
    concerning prior approval before commencing construction; the contract is silent on this
    issue. See 
    id. Only the
    ADR provides that Appellees must obtain approval before
    beginning construction on the North Outparcel. Thus, we agree with Timber Pines that
    there exists no significant relationship between its claim for injunctive relief under the ADR
    and Appellees' counterclaim under the contract because resolution of Timber Pines's
    claims does not require any "reference to or construction of some portion of the contract
    itself." Kolsky v. Jackson Square, LLC, 
    28 So. 3d 965
    , 969 (Fla. 3d DCA 2010) (quoting
    
    Seifert, 750 So. 2d at 638
    ).
    Of course, the instant dispute would not exist had the parties not contracted for the
    purchase and sale of the North Outparcel, but "the mere fact that the dispute would not
    have arisen but for the existence of the contract and consequent relationship between the
    parties is insufficient by itself to transform a dispute into one 'arising out of or relating to'
    the agreement." 
    Seifert, 750 So. 2d at 638
    . The Fourth District Court addressed
    analogous facts in AMS Staff Leasing, Inc. v. Taylor, 
    158 So. 3d 682
    , 685 (Fla. 4th DCA
    2015), where the employer and employee had an existing employment agreement that
    6
    contained an arbitration provision covering "any dispute" with the employer "arising under
    [the employee's] employment." The court found that, although the employee's worker's
    compensation claim arose from his employer-employee relationship, that claim was
    separate and distinct from the employment agreement containing the arbitration
    provision. 
    Id. Similarly, Timber
    Pines's claim arose in part because it agreed to sell the
    North Outparcel to Appellees. However, once that sale closed, the ADR controlled the
    relationship between the parties regarding approval of construction plans—the only claim
    Timber Pines asserts in this case.
    Based on the foregoing, we find that Timber Pines did not waive its right to compel
    arbitration on Appellees' counterclaim. Therefore, we reverse and remand with
    instructions to grant Timber Pines's motion to stay litigation of Appellees' counterclaim1
    and to compel arbitration.
    REVERSED and REMANDED with Instructions
    ORFINGER, J., and JACOBUS, B.W., Senior Judge, concur.
    1  See § 682.03(7), Fla. Stat. (2016) ("If the court orders arbitration, the court on
    just terms shall stay any judicial proceeding that involves a claim subject to the arbitration.
    If a claim subject to the arbitration is severable, the court may limit the stay to that claim.").
    7