DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
OAKMONT CUSTOM HOMES, LLC,
Appellant,
v.
JENNIFER A. BILLINGS, AS TRUSTEE OF THE JENNIFER A.
BILLINGS REVOCABLE LIVING TRUST DATED 5/22/2007,
Appellee.
No. 4D20-1263
[January 6, 2021]
Appeal of a nonfinal order from the Circuit Court for the Nineteenth
Judicial Circuit, Martin County; Jennifer Alcorta Waters, Judge; L.T. Case
No. 432019CA001181.
Louis E. Lozeau, Jr. of Wright, Ponsoldt & Lozeau, Trial Attorneys,
L.L.P., Stuart, for appellant.
Roger C. Brown of Morgan & Morgan, P.A., Business Trial Group, West
Palm Beach, for appellee.
PER CURIAM.
Oakmont Custom Homes, LLC, a defendant home builder, appeals a
nonfinal order denying a motion to dismiss or compel arbitration. We
agree with the trial court that the plaintiff is not bound by an arbitration
provision in a building agreement that she was not a party to and affirm.
A second owner of the home, Jennifer A. Billings, has sued the builder
for negligence (based on construction defects) and building code violations
that have resulted in water damage and mold. The builder seeks to enforce
an arbitration provision in the building agreement it entered with the
original owner.
Importantly, Billings was never provided a copy of and never agreed to
be bound by the building agreement when she purchased the home. Her
amended complaint does not seek relief pursuant to the limited warranty
in the building agreement. The builder, however, contends that she is still
bound by the arbitration provision because she accepted assignment of
the limited warranty and her claims are sufficiently related to the building
agreement.
In an addendum to Billings’ purchase contract, the original owner
transferred all warranties to her. The addendum did not reference the
builder’s limited warranty or the building agreement. Billings’ purchase
contract did not state that it was subject to the building agreement, and
she did not receive a copy of the building agreement before closing on the
home. Her claims against the builder do not seek to enforce the building
agreement or otherwise depend on the building agreement.
The trial court concluded that Billings could not be compelled to
arbitrate under these facts. We agree.
The builder asks this Court to follow Pulte Home Corp. v. Bay at Cypress
Creek Homeowners’ Ass’n,
118 So. 3d 957 (Fla. 2d DCA 2013), which
reversed an order denying a builder’s motion to compel arbitration of an
HOA’s complaint that alleged a statutory violation. The Second District
reversed pursuant to Pulte Home Corp. v. Vermillion Homeowners Ass’n,
109 So. 3d 233 (Fla. 2d DCA 2013).
In Vermillion, the Second District explained that the homeowners
association was required to arbitrate even though it did not sign a
purchase agreement or limited warranty because it was suing in its
representative capacity.
109 So. 3d at 234. The association did not have
rights superior to its members, and it was obliged to comply with
arbitration agreements signed by each of the members.
Id. at 235.
Here, unlike the homeowners in Vermillion, Billings did not sign the
building agreement or any agreement to arbitrate with the builder.
In Bay at Cypress Creek, the Second District also rejected an argument
that subsequent purchasers were not bound by the arbitration agreement.
The court concluded that they could be compelled to arbitrate as third-
party beneficiaries because they were permitted to assume the builder’s
limited warranty.
118 So. 3d at 958.
We do not know whether the subsequent purchasers in that case are
similarly situated to Billings. In any event, we agree with the trial court
that the builder cannot compel arbitration under the circumstances in this
case. Here, nothing in Billings’ contract indicated that by accepting
transfer of all warranties she agreed to be bound by the building agreement
and to arbitrate any non-warranty claim against the builder, and she is
not seeking to enforce the third-party contract. See Hymowitz v. Delcrest
2
Bldg. Corp.,
770 So. 2d 1271 (Fla. 4th DCA 2000); Temple Emanu-El of
Greater Fort Lauderdale v. Tremarco Indus., Inc.,
705 So. 2d 983 (Fla. 4th
DCA 1998) (reversing orders compelling arbitration where the agreement
between the parties referenced but did not specifically incorporate a
separate agreement containing an arbitration provision). No evidence
exists that she was even aware of the building agreement and the builder’s
limited warranty when she purchased the home. Under these facts, the
builder failed to prove an enforceable agreement to arbitrate the claims in
the amended complaint. The trial court did not err in denying the motion
to compel arbitration.
Accordingly, we affirm.
LEVINE, C.J., WARNER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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