FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-4896
_____________________________
CEFCO d/b/a WHICH WICH
SUPERIOR SANDWICHES,
Appellant,
v.
JAIME ODOM,
Appellee.
_____________________________
On appeal from the Circuit Court for Santa Rosa County.
David Rimmer, Judge.
September 9, 2019
LEWIS, J.
Appellant, CEFCO d/b/a Which Wich Superior Sandwiches,
appeals the trial court’s order denying its motion to compel
arbitration and motion to stay proceedings and, in the alternative,
petitions for a writ of certiorari. For the reasons that follow, we
affirm the trial court’s ruling and deny the petition.
BACKGROUND
Appellee, Jaime Odom, filed an amended complaint against
Appellant, alleging that she was hired as a marketing manager for
Appellant’s Milton, Florida store and worked there from around
January 30 to April 29, 2017, during which time she was sexually
harassed, retaliated against for complaining about the harassment
and other unlawful conduct, and not paid the wages she earned.
Appellee filed interrogatories and a request for production of
documents.
Appellant, in turn, filed a motion to compel arbitration and
motion to stay proceedings, in which it argued that Appellee’s
claims must be resolved through arbitration pursuant to the
Mutual Arbitration Agreement (“Agreement”) she entered into as
a requirement of her employment and sought a stay of all
proceedings until the arbitration proceedings were completed.
Appellant attached to its motion a copy of the Agreement, which
sets forth the disputes and claims to be resolved by binding
arbitration, specifies that it is governed by the Federal Arbitration
Act (“FAA”), and provides that the applicant “will electronically
sign this agreement as part of the onboarding process” and “by
checking the confirmation box and clicking the ‘next’ button,” the
applicant acknowledges reading and understanding the
Agreement and agrees to its terms and to the use of an electronic
signature. The Agreement does not contain a confirmation box, a
date, Appellee’s name, or her signature. Appellant filed a
supplemental motion to stay proceedings including discovery
pending resolution of the motion to compel arbitration.
In her memorandum in opposition to the motion to compel
arbitration, Appellee argued that the motion must be denied
because Appellant failed to establish the existence of a valid
written agreement to arbitrate. Appellee submitted her affidavit,
attesting that she was hired by General Manager Justin Croxton
and did not go through an on-boarding process, she was never
presented with the Agreement and did not see it until Appellant
filed its motion, she never entered into the Agreement or agreed to
its terms, and “[i]f anyone purportedly entered into the agreement
on [her] behalf, he or she did so without [her] knowledge or
consent.”
Appellant filed a reply, contending as follows: Michael
Raisbeck serves as Appellant’s Vice President of Human
Resources, Custodian of Employment Records and Related
Documents, and Systems Administrator for the PeopleMatter
Applicant Tracking System, and he provided an affidavit
“outlining [Appellant’s] employment and application procedures as
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applied at the time of [Appellee’s] application for employment.” In
order to apply for a position with Appellant, one must complete an
application electronically. On January 22, 2017, Appellee
electronically signed Appellant’s E-Signature Disclosures &
Consent, thereby agreeing to electronically receive, access, review,
and/or sign materials related to her employment application.
When a store manager decides to hire an applicant, an email is
sent to the prospective employee with a conditional offer of
employment and a link that takes him or her “into the system to
complete additional required On-Boarding hiring documents.” The
prospective employee must enter a unique username and
password, which no one within the company can access unless the
employee shares it. Upon signing in, the prospective employee is
taken to the on-boarding, where he or she must view and complete
eighteen items, including the Agreement. The person must click a
link to download each document and check the box to consent,
authorize, and confirm understanding thereof before clicking
“Next” to move onto the next item. On January 31, 2017, Appellee
completed the eighteen on-boarding items required for
employment, including the Agreement.
In his affidavit, Raisbeck explained Appellant’s application
and on-boarding process as Appellant did in its reply. Raisbeck
attested in part that to the best of his knowledge, Appellee
completed the on-boarding items on January 31, 2017, and the
task log shows she completed the Agreement.
Appellee filed a second affidavit, attesting as follows: Appellee
never met or interacted with Raisbeck and, to her knowledge, he
had no involvement in her employment. Raisbeck was not at the
store at any time Appellee was there; thus, he has no personal
knowledge about her hiring and whether she received the alleged
documents. Prior to applying, Appellee knew the store’s manager,
Croxton, and he offered her a job. Appellee then applied online
from the store while Croxton was sitting next to her. A few days
later, Appellee received a conditional job offer with a start date of
January 30, 2017. When Appellee arrived on January 30th,
Croxton asked her for information such as her social security
number, driver’s license, voided check for direct deposit, and tax
form and said he would “take it from there,” and she “was promptly
then put to work.” Appellee did not go through any on-boarding
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process and was not informed about any of the various forms
Raisbeck referred to in his affidavit. Croxton later told Appellee
that he had established a password and user ID for her, which she
never used. Croxton may have entered the on-boarding
information without Appellee’s knowledge, but she did not
authorize or consent to his doing so. Appellee “never saw or agreed
to anything regarding arbitration.”
The trial court entered an order on Appellant’s motion to
compel arbitration and motion to stay proceedings, whereby it
denied the motion without prejudice and gave Appellant twenty
days to respond to the complaint and outstanding discovery
requests. The trial court stated that by responding to the
complaint and discovery requests, Appellant “is not waving its
ability to file a motion to compel arbitration at a later date” and
“[s]hould [Appellant] uncover competent evidence in the course of
discovery that [Appellee] executed a purported agreement to
arbitrate, [it] may promptly file another motion to compel
arbitration should it so desire.” This appeal and, in the
alternative, petition for writ of certiorari followed.
ANALYSIS
We review a trial court’s factual findings for competent,
substantial evidence, but review its construction of an arbitration
agreement and its application of the law to the facts de novo.
Gainesville Health Care Ctr., Inc. v. Weston,
857 So. 2d 278, 283
(Fla. 1st DCA 2003); see also Kendall Imports, LLC v. Diaz,
215 So.
3d 95, 98 (Fla. 3d DCA 2017). Under the FAA, as well as the
Florida Arbitration Code, there are three elements for courts to
consider in ruling on a motion to compel arbitration: (1) whether a
valid written agreement to arbitrate exists, (2) whether an
arbitrable issue exists, and (3) whether the right to arbitrate was
waived. Gainesville Health Care Ctr., Inc.,
857 So. 2d at 282 (citing
Seifert v. U.S. Home Corp.,
750 So. 2d 633 (Fla. 1999)); see also
Raymond James Fin. Servs., Inc. v. Saldukas,
896 So. 2d 707, 711
(Fla. 2005) (explaining the same and noting that arbitration
provisions are generally favored).
In this case, only the first element is at issue, i.e., whether a
valid written agreement to arbitrate exists. The Agreement
expressly states that the FAA applies to it.
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The FAA provides:
A written provision in . . . a contract evidencing a
transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract . . .
shall be valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the
revocation of any contract.
9 U.S.C. § 2 (2017). It further provides:
The court shall hear the parties, and upon being satisfied
that the making of the agreement for arbitration or the
failure to comply therewith is not in issue, the court shall
make an order directing the parties to proceed to
arbitration in accordance with the terms of the
agreement. . . . If the making of the arbitration agreement
or the failure, neglect, or refusal to perform the same be
in issue, the court shall proceed summarily to the trial
thereof. If no jury trial be demanded by the party alleged
to be in default, or if the matter in dispute is within
admiralty jurisdiction, the court shall hear and
determine such issue.
9 U.S.C. § 4 (2017).
It is a well-established principle that one who signs a contract
is generally bound by it, and a party to a written contract cannot
defend against its enforcement on the sole ground that he or she
signed it without reading it. Kendall Imports, LLC, 215 So. 3d at
100. Electronic signatures are valid. Haire v. Fla. Dep’t of Agric.
& Consumer Servs.,
870 So. 2d 774, 789 (Fla. 2004). In fact, no
signature is required to satisfy the FAA’s written agreement
requirement. BDO Seidman, LLP v. Bee,
970 So. 2d 869, 874 (Fla.
4th DCA 2007). Similarly, under state law contract principles, a
contract may be binding on a party who did not sign it where
assent can be shown by that party’s acts or performance.
Id.
“However, ‘there must be sufficient proof that the parties actually
agreed to arbitrate.’”
Id. (citation omitted).
“[G]enerally applicable contract defenses under state law,
such as fraud, duress, or unconscionability, may be applied to
5
invalidate arbitration agreements without contravening section 2
of the FAA.” Glob. Travel Mktg., Inc. v. Shea,
908 So. 2d 392, 397
(Fla. 2005); see also Gainesville Health Care Ctr., Inc.,
857 So. 2d
at 283 (“Both the Federal Arbitration Act and the Florida
Arbitration Code permit a challenge to the validity of an
arbitration provision based upon any state-law contract defense.”);
S.D.S. Autos, Inc. v. Chrzanowski,
976 So. 2d 600, 605 (Fla. 1st
DCA 2007) (same).
A party may not be forced to submit to arbitration absent a
valid written agreement to arbitrate, and the applicability of the
FAA hinges on whether such an agreement exists. HHH Motors,
LLP v. Holt,
152 So. 3d 745, 747 (Fla. 1st DCA 2014). As such, the
threshold inquiry is whether an agreement to arbitrate was
formed.
Id. “The determination of whether a contract exists is
governed by state law . . . .” Id.; see also Larsen v. Citibank FSB,
871 F.3d 1295, 1302-03 (11th Cir. 2017) (stating that issues
relating to the formation of an arbitration agreement must be
resolved as a matter of state contract law); Basulto v. Hialeah
Auto.,
141 So. 3d 1145, 1152-56 (Fla. 2014) (explaining that “the
threshold requirement [is] that the trial court be ‘satisfied with the
making of the agreement for arbitration’”).
The party seeking enforcement of an agreement has the
burden of establishing that an enforceable agreement exists. See
Palm Garden of Healthcare Holdings, LLC v. Haydu,
209 So. 3d
636, 638 (Fla. 5th DCA 2017) (“Appellants, as the proponents of
arbitration, have the burden of establishing an enforceable written
agreement to arbitrate.”); Vance v. Thomas,
829 So. 2d 319, 320
(Fla. 5th DCA 2002) (stating that the party asserting a settlement
agreement has the burden of establishing it and citing for that
proposition Williams v. Ingram,
605 So. 2d 890 (Fla. 1st DCA
1992), where we noted that “[s]ettlement agreements are to be
interpreted and governed by the law of contracts”). To prove the
existence of a contract under Florida law, the party seeking to
enforce the contract must prove offer, acceptance, consideration,
and sufficient specification of essential terms. St. Joe Corp. v.
McIver,
875 So. 2d 375, 381 (Fla. 2004).
In Steve Owren, Inc. v. Connolly,
877 So. 2d 918, 919-20 (Fla.
4th DCA 2004), the Fourth District affirmed the trial court’s denial
6
of the appellant’s motion to compel arbitration upon finding that
the appellant failed to carry its burden of proving the existence of
an enforceable written agreement to arbitrate. The appellee
unequivocally testified that she never signed the agreement or
agreed to arbitration, and the appellant’s “contrary evidence was
basically habit and practice.”
Id.
Similarly, in Bazemore v. Jefferson Capital Systems, LLC,
827
F.3d 1325, 1327 (11th Cir. 2016), the Eleventh Circuit affirmed the
denial of the defendant/appellant’s motion to compel arbitration
upon holding that the defendant failed to establish the existence
of an agreement to arbitrate. The purported agreement was
governed by the FAA, and the issue of whether the agreement
existed was governed by Georgia contract law, which required the
proponent of the contract to prove its existence. Id. at 1329-30.
The defendant tried to meet its burden of proof by offering the
declaration of an employee of the company that maintained
records on its behalf, who conclusorily stated that the
plaintiff/appellee accepted the terms of the agreement, but did not
assert any personal knowledge or produce documents in support,
and merely explained what “would have been” done pursuant to
the company’s ordinary practice. Id. at 1327-28. The Eleventh
Circuit found that the employee’s declaration was “woefully
inadequate” and the defendant’s motion should have been denied
because the defendant did not present any competent evidence
that the plaintiff entered into an arbitration agreement. Id. at
1330-32.
By contrast, in Buckhalter v. J.C. Penney Corporation, Inc.,
3:11-CV-752-CWR-FKB,
2012 WL 4468455, at *1-2 (S.D. Miss.
Sept. 25, 2012), a case upon which Appellant relies, the district
court granted the defendant’s motion to compel arbitration and
applied Mississippi law, under which the burden of proving a valid
contract also rested with the defendant as the party moving to
compel arbitration pursuant to an alleged arbitration agreement
between the parties. The plaintiff denied in his pleading that the
signature on the arbitration agreement was his, but he offered no
affidavit or other evidence in support of his assertion, whereas the
defendant provided substantial evidence to the contrary. Id. at *2.
The defendant presented the declaration of its director, who
explained what each new employee must do once hired, which
7
included the creation of a confidential password and then the
completion of an on-boarding process during which he has to
review, complete, and/or electronically sign forms that include the
arbitration agreement. Id. “Although [the director’s] declaration
is detailed, it only attests to [the defendant’s] general practice and
does not provide testimony of direct knowledge of what happened
in this particular case.” Id. The defendant also offered the
affidavit of the manager of the store where the plaintiff was
employed concerning the circumstances surrounding the plaintiff’s
hiring and on-boarding process. Id. at *3. The manager attested
that he hired the plaintiff and was present when the plaintiff
began employment, the plaintiff created a password and did not
share it with him, the plaintiff electronically signed various
documents that included the arbitration agreement, and he knew
the plaintiff completed and signed the forms because he had to
complete one of them in conjunction with the plaintiff. Id. In
response to that evidence, the plaintiff “does not dispute or offer
evidence that he did not create a password, nor does he deny that
he used that password to review and electronically sign the other
documents.” Id. “Moreover, he has not provided any evidence that
others had access to his password and used it to retrieve his
information and affix his electronic signature.” Id. “Without
evidence to the contrary, the Court must find that [the plaintiff]
assented to the arbitration agreement and that a valid arbitration
agreement existed between the parties.” Id.
Moreover, in Bazemore, the Eleventh Circuit rejected the
defendant’s argument that pursuant to section 4 of the FAA, the
case should be remanded for trial upon concluding that the
defendant failed to prove the existence of the alleged arbitration
agreement. 827 F.3d at 1333. “[Defendant] would have us hold,
essentially, that a party cannot lose a motion to compel arbitration
for failure to prove that an arbitration agreement exists without
being afforded a second bite at the apple—an opportunity to prove
the agreement’s existence at trial. This we decline to do.” Id. In
considering the “standard for determining whether a trial is
necessary to determine the existence of an arbitration agreement,”
the Eleventh Circuit looked to the decisions of other circuit courts
and concluded:
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We agree with our sister circuits that a summary
judgment-like standard is appropriate and hold that a
district court may conclude as a matter of law that parties
did or did not enter into an arbitration agreement only if
“there is no genuine dispute as to any material fact”
concerning the formation of such an agreement. Fed. R.
Civ. P. 56(a). A dispute is not “‘genuine’ if it is
unsupported by the evidence or is created by evidence
that is ‘merely colorable’ or ‘not significantly probative.’”
Baloco v. Drummond Co.,
767 F.3d 1229, 1246 (11th Cir.
2014) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S.
242, 249–50,
106 S.Ct. 2505, 2511,
91 L.Ed.2d 202
(1986)), cert. denied, ––– U.S. ––––,
136 S. Ct. 410,
193
L.Ed.2d 317 (2015). “This court has consistently held that
conclusory allegations without specific supporting facts
have no probative value” for a party resisting summary
judgment. See Leigh v. Warner Bros.,
212 F.3d 1210, 1217
(11th Cir. 2000) (quotation marks omitted).
Id. (concluding that the defendant’s motion had to be denied as a
matter of law without trial because the defendant offered no
competent evidence to demonstrate the existence of a genuine
issue of material fact regarding the existence of an arbitration
agreement, and noting that while the plaintiff “provided almost no
evidentiary support for her contention that she never entered into
an arbitration agreement,” and did not submit an affidavit, it was
the defendant’s burden to prove the existence of the contract it
sought to enforce and the entry of summary judgment is proper
against a party who fails to establish the existence of an essential
element on which it will bear the burden of proof at trial).
Here, Appellant challenges the trial court’s denial of its
motion to compel arbitration. Appellant correctly asserts that one
who signs a contract is presumed to know and agree to its terms
and that an electronic signature is valid, but those arguments
overlook the issue at hand, which is whether Appellee entered into
the Agreement. Appellant contends it presented ample proof that
Appellee received, reviewed, and signed the Agreement, whereas
she provided only a self-serving affidavit and did not dispute her
creation of a password and completion of the on-boarding process
or claim that someone had access to her password and used it to
9
complete the on-boarding process for her. Appellant’s arguments
are refuted by the record.
Appellant filed a motion to compel arbitration, arguing that
the parties agreed to arbitration by entering into the Agreement.
Notably, the Agreement does not contain a date or any reference
to Appellee. In opposition to the motion, Appellee filed her sworn
affidavit, attesting that she had never seen, signed, or agreed to
the terms of the Agreement and that anyone who may have done
so on her behalf did it without her knowledge and consent.
Appellant, in turn, filed the affidavit of Raisbeck, who did not claim
to have personal knowledge of the hiring and employment process
Appellee actually underwent and could speak only of Appellant’s
ordinary practice. As such, Raisbeck’s affidavit was not competent
evidence that Appellee entered into the Agreement. See Steve
Owren, Inc.,
877 So. 2d at 919-20; Bazemore, 827 F.3d at 1327-28;
Buckhalter,
2012 WL 4468455, at *2. The documentary evidence
Appellant presented tended to show that the on-boarding process
was began by or on behalf of Appellee and included the completion
of the Agreement. However, Appellee filed a second affidavit,
explaining the hiring and employment process she actually
underwent. Appellee attested that she provided certain personal
information to Croxton, the store manager who hired her, and he
said he would “take it from there” and later told her that he had
created a user ID and password for her. Appellee swore that she
never used that log-in information, did not have any knowledge of
or participation in any on-boarding process, did not have
knowledge of Croxton completing the on-boarding process and did
not authorize or consent to his doing so, and never saw or agreed
to anything regarding arbitration. As such, Appellee clearly
disputed her creation of a password and completion of the on-
boarding process. Cf. Buckhalter,
2012 WL 4468455, at *2.
Significantly, Appellant made no assertions much less offer
evidence to dispute Appellee’s claims. Contrary to Appellant’s
argument, the burden of proof rested with it; as the party seeking
to enforce the Agreement, it was Appellant’s burden to establish
its existence. Appellant failed to meet that burden.
For the first time in its reply brief, Appellant asserts that the
trial court should have conducted a full evidentiary hearing if
Appellee’s affidavit established a substantial dispute about the
10
making of the Agreement. In so arguing, Appellant relies on an
inapplicable standard and overlooks that the record evinces no
request for such a hearing by either party. While Appellant claims
it made an ore tenus request for an evidentiary hearing at the
conclusion of the motion hearing, it failed to file a transcript of the
hearing in support. Even if Appellant’s assertion is correct and its
request was timely, it waived the argument by raising it for the
first time in its reply brief. See Land v. Fla. Dep’t of Corr.,
181 So.
3d 1252, 1254 (Fla. 1st DCA 2015) (“It is well-settled that that ‘[a]n
issue not raised in an initial brief is deemed abandoned and may
not be raised for the first time in a reply brief.’” (citation omitted)).
Furthermore, the fact remains that Appellant offered no
competent evidence to create a genuine issue of material fact
regarding the existence of the Agreement between the parties so
as to warrant a trial on the matter. See Bazemore, 827 F.3d at
1333. In fact, the trial court denied Appellant’s motion without
prejudice, allowing it to file another motion should it “uncover
competent evidence.” Appellant failed to come forward with any
evidence in response to Appellee’s second affidavit or following the
trial court’s ruling, suggesting that no such evidence exists and a
trial on the matter would be futile. Appellant is not entitled to a
second bite of the apple. See id. Therefore, the trial court did not
abuse its discretion in denying Appellant’s motion to compel
arbitration.
In the alternative, Appellant petitions for a writ of certiorari
based on the trial court’s denial of its motion to stay proceedings.
Appellant asserts that it will be irreparably harmed by being
required to engage in discovery not limited in scope to matters
related to arbitration while the issue of arbitrability is still
pending and that the trial court departed from the essential
requirements of law in requiring it to do so. Appellant’s argument
is without merit because it is based on the incorrect assertion that
a final decision on the issue of arbitrability has not been made and
the issue is still pending in the trial court. The trial court
unequivocally denied Appellant’s motion to compel arbitration,
and merely did so without prejudice. Contrary to Appellant’s
assertion, the trial court did not reserve ruling on the issue of
arbitrability. No motion to compel arbitration or ruling thereon
remained pending in the trial court. Thus, Appellant is not
entitled to a writ of certiorari.
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CONCLUSION
For the foregoing reasons, we affirm the trial court’s order on
Appellant’s motion to compel arbitration and motion to stay
proceedings and deny the certiorari petition.
AFFIRMED.
B.L. THOMAS and ROBERTS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Scott A. Cole and Lissette Gonzalez of Cole, Scott & Kissane, P.A.,
Miami, for Appellant.
Bradley S. Odom and Richard D. Barlow of Odom & Barlow, P.A.,
Pensacola, for Appellee.
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