425 FLORIDA, INC., BRIAN SPARKS AND LAWYER'S SURETY CORPORATION, PETITIONERS,
v.
GEORGE V. BEHAN CONSTRUCTION, INC., GEORGE V. BEHAN AND RICHARD L. HUNGATE, RESPONDENTS
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The Fifth District Court of Appeal granted certiorari to review a trial court's denial of a stay pending arbitration. The court held that while fraud counts alleging collusion between a general contractor and architect must be stayed pending arbitration of the dispute with the architect, other contract counts between the owner and general contractor need not be stayed because they involve separate, severable issues.
The court held that the fraud counts alleging collusion must be stayed pending arbitration because the fraud issues are identical and not severable between the lawsuit and the arbitration. However, the trial court properly denied a stay as to other contract counts because they involve separate, severable issues with different parties and different contracts.
[1] A court must stay a lawsuit involving an issue subject to arbitration if an order for arbitration or an application therefor has been made.
[2] A stay of a lawsuit pending arbitration is not precluded by the fact that the parties in the lawsuit are not identical to the parties in the arbitration, so long as the s…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 682.03(3), Florida Statutes q1985) requires a court to stay a lawsuit which involves the same issue as ones sought to be arbitrated. It provides: Any action or proceeding involving an issue subject to arbitration under this law shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only.”
Establishes the statutory requirement for mandatory stay of litigation involving arbitrable issues
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Join FLexlaw to unlock all legal intelligence425 Florida, Inc., the owner of a condominium project, was sued by general contractor George V. Behan Construction, Inc. for foreclosure of a mechanic…
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SHARP, Judge.
We grant certiorari to review the lower court’s order denying petitioners’ motion to stay the trial of a lawsuit pending arbitration of a dispute between petitioners and a third party defendant. Petitioner is the owner of a condominium project, and a defendant in the lawsuit below. Respondent is the general contractor. It is seeking to foreclose a mechanic’s lien and recover damages for breach of contract. The petitioner filed a counterclaim against respondent for breach of contract and fraud and it also filed a third party complaint against the architect of the project for breach of contract and fraud. The fraud counts allege collusion between the general contractor and the architect.
The trial judge ruled the issues between the architect and owner were subject to arbitration under the contract provisions binding those parties. Its order has been appealed to this court1 and petitioner has sought to consolidate that case in this court with this certiorari proceeding. This proceeding involves the order of the trial court which denied a stay of the lawsuit while arbitration was being determined and handled.
Section 682.03(3), Florida Statutes q1985) requires a court to stay a lawsuit which involves the same issue as ones sought to be arbitrated.2 It provides:
Any action or proceeding involving an issue subject to arbitration under this law shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.
The statute does not require the parties be identical in both proceedings so long as the same issues are determinable. Sabates v. International Medical Centers, Inc., 450 So. 2d 514 (Fla. 3rd DCA 1984); Post Tensioned Engineering Corp. v. Fairways Plaza Associates, 429 So. 2d 1212 (Fla. 3rd DCA 1983).
In this case the fraud issues in both cases are identical and not separable, since the petitioner alleges the architect and general contractor colluded together in perpetrating the fraud. Therefore the stay order should have been granted as to the fraud count in the lawsuit between the petitioner and general contractor, pending the resolution of the fraud issue by the arbitrator or the determination of this court that the matter should not be arbitrated.
However, the other matters and counts in the lawsuit do not involve any of the other issues which may be arbitrated since they are separate and severable, and involve different parties and different contracts. We approve the trial court’s ruling not to stay the trial of those counts.3
Since this certiorari proceeding is completely disposed of by this opinion, we see no utility or justification for consolidating it with the non-final appeal. In addition, it involves different issues, and different parties. We therefore deny petitioner’s motion for consolidation.
PETITION FOR CERTIORARI GRANTED; TRIAL COURT DIRECTED TO ISSUE STAY ORDER CONSISTENT HEREWITH.
DAUKSCH and COBB, JJ., concur. . 425 Florida, Inc., et al. v. George V. Behan Construction, Inc., et al., Case No. 86-1536.
. Sabates v. International Medical Centers, Inc., 450 So. 2d 514 (Fla. 3rd DCA 1984).
.Post Tensioned Engineering Corp. v. Fairways Plaza Associates, 429 So. 2d 1212 (Fla. 3rd DCA 1983).
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Citator
Cited By
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Wayne H.L. Rohlfing v. Tomorrow Realty & Auction Co., Inc., 528 So. 2d 463 (Fla. 5th DCA 1988)…certiorari cases, and more particularly because all prior holdings to the effect that certiorari was an appropriate method to review an order denying a motion to compel arbitration (See, e.g., 425 Florida, Inc. v. George V. Behan Construction, Inc., 497 So. 2d 1340 (Fla. 5th DCA 1986); Graham Contracting, Inc. v. Flagler County, 444 So. 2d 971 (Fla. 5th DCA 1983), rev. denied, 451 So. 2d 848 (Fla.1984); Paine, Webber, Jackson & Curtis, Inc. v. Lucas, 411 So. 2d 1369 (Fla. 5th DCA 1982)) have been rendered moot…
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Okeelanta Corp. v. United States Sugar Corp., 712 So. 2d 814 (Fla. 2d DCA 1998)…“[a]ny action or proceeding involving an issue subject to arbitration.” “The statute does not require the parties be identical in both proceedings so long as the same issues are determinable.” 425 Florida, Inc. v. George V. Behan Construction, Inc., 497 So. 2d 1340, 1341 (Fla. 5th DCA 1986). Because USSC’s action involves an issue subject to arbitration, the trial court must stay the litigation pending the outcome of the arbitration. While this court makes no determination regarding the effect the arbitration…
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NCR Credit Corp. v. Reptron Elecs., Inc., 863 F. Supp. 1561 (M.D. Fla. 1994)…courts to stay a lawsuit that involves same issue as one sought to be arbitrated, does not require parties to be identical in both proceedings so long as the same issue is determinable. 4-25 Florida, Inc. v. George V. Behan Construction, Inc., 497 So.2d 1340, 1341 (5th Cir. 1986). In 425 Florida, Inc., the court found that an owner was entitled to a stay of his counterclaim against a general contractor alleging fraud in construction of a condominium project, pending resolution by an arbitrator of…
Authorities Cited
- William I. Sabates, M.D. v. Int'l Med. Ctrs., Inc., 450 So. 2d 514 (Fla. 3d DCA 1984)
- Post Tensioned Eng'g Corp. & Commercial Constr. Corp. v. Fairways Plaza Assocs., 429 So. 2d 1212 (Fla. 3d DCA 1983)