GMRI, INC. D/B/A LONGHORN STEAKHOUSE, DARDEN RESTAURANTS, INC., DARDEN CORPORATION, RARE HOSPITALITY MANAGEMENT, LLC, AND RARE HOSPITALITY INTERNATIONAL, INC.

v.

KIMBERLEY BRAUTIGAN

PER CURIAM. GMRI, Inc. d/b/a Longhorn Steakhouse (“Longhorn”) appeals the trial court’s denial of its motion to enforce an arbitration agreement. Longhorn argues it satisfied its burden of showing an enforceable arbitration agreement existed.

However, without further factfinding we cannot conclude whether Longhorn did or did not meet its burden, thus we reverse and remand for an evidentiary hearing. I In 2000, Kimberley Brautigan began working for Longhorn. Over the years she moved around the company and eventually took a position as a bartender at Longhorn’s Fort Walton Beach location in 2012. Brautigan remained in that position until she was laid off in 2020 during the economic downturn related to the COVID-19 pandemic. Then, in 2022, Brautigan filed a claim jointly with the U.S. Equal Employment Opportunity Commission and the Florida Commission on Human Relations. Brautigan then brought the underlying action against Longhorn. Longhorn filed a motion to dismiss the action (“the motion”), arguing the parties were bound to arbitrate. In support of the motion, Longhorn attached the declaration of its Associate Manager of Dispute Resolution, Jeanette Varela. In her declaration, Varela stated that “[t]he [Dispute Resolution Process (“DRP”)] is a term and condition of employment for all employees across the country and sets forth the dispute resolution process to which Darden and its employees must adhere.” Further, Varela stated that Longhorn’s DRP policies have been in place since 2005 and were updated periodically. Longhorn did not have a signed DRP handbook from Brautigan.

However, it produced a copy of the DRP handbook from 2005; an updated DRP handbook from 2015; a notice about the 2015 update to the DRP handbook, which stated that “By coming to work here on or after June 30, 2015, you and the Company agree to be bound by the updated Dispute Resolution Process” (the 2015 notice); and an “Understanding & Acknowledgement By Employee” form signed by Appellee, which stated the following:

Longhorn also produced the Team Member Handbook, which references the DRP and binding arbitration policy, and Varela’s declaration, which stated that the 2015 notice was “sent by email to all LongHorn Steakhouse locations (including Store No. 5250 where Plaintiff[] worked) direct[ing] management to post the Company’s notice regarding the updated DRP in visible and conspicuous locations.” Longhorn argued that all the evidence it presented showed an agreement to arbitrate existed. Brautigan opposed the motion and argued that the trial court could not compel arbitration because no signed arbitration agreement existed. Brautigan’s support of her position saw her analogize her case to CEFCO v. Odom, 278 So. 3d 347, 351 (Fla. 1st DCA 2019).

There, we held that the evidence supported the fact that the employee had not signed an arbitration agreement and that there was no evidence that she was ever aware of the binding arbitration provision. See id. at 354–55.

The trial court heard arguments on the motion but did not hear testimony or receive evidence, and held that Longhorn failed to show Brautigan assented to be bound by the DRP process and denied the motion. This interlocutory appeal follows.² II We begin with the premise that “arbitration agreements are favored” in Florida. See Wick v. Orange Park Mgt, LLC, 327 So. 3d 369, 372 (Fla. 1st DCA 2021) (citing Jackson v Shakespeare Found., Inc., 108 So. 3d 587, 593 (Fla. 2013)). Longhorn filed its motion to dismiss because of an alleged binding arbitration agreement between the parties.

Thus, we treat the motion as one to compel arbitration and stay the proceeding. See AMS Staff Leasing, Inc v. Ocha Eng’g Corp., 139 So. 3d 452, 453 n.1 (Fla. 3d DCA 2014) (“A motion to dismiss based on a contractual arbitration clause is to be treated as a motion to compel arbitration.” (citing Balboa Ins. Co. v. W.G. Mills, Inc., 403 So. 2d 1149, 1150–51 (Fla. 2d DCA 1981))). “When evaluating a motion to compel arbitration, a trial court must consider three factors: ‘(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitrate was waived.’” Wick, 327 So. 3d at 372 (quoting Basulto v. Hialeah Auto., 141 So. 3d 1145, 1152 (Fla. 2014)).

Here, however, the trial court denied the motion before reaching any of these three factors. Some courts have construed the first factor, “whether a valid written agreement to arbitrate exists,” to include contract formation, but “[a] difference exists . . . between the validity of a contract and the formation of a contract.” HHH Motors, LLP v. Holt, 152 So. 3d 745, 748 (Fla. 1st DCA 2014) (emphasis supplied) (citing Solymar Invs., Ltd. v. Bano Santander S.A., 672 F. 3d 981, 992 (11th Cir. 2012)); compare § 682.02(1), Fla. Stat. (“An agreement contained in a record to submit to arbitration . . . is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.” (emphasis added)) with § 682.02(2), Fla. Stat. (“The court shall decide whether an agreement to arbitrate exists . . . .” (emphasis supplied)).

Thus, the trial court’s order rests on contract formation, not the validity of the agreement—post-formation. A contract to arbitrate must exist before a court can determine whether said contract is valid so as to adjudicate on a motion to compel arbitration. See § 682.02(2), Fla. Stat. (“The court shall decide whether an agreement to arbitrate exists . . . .” (emphasis supplied)); § 682.03(2), Fla. Stat. (“If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.” (emphasis supplied)).

Longhorn argues it met its burden that such an agreement existed, but the trial court disagreed. That is where our analysis lies. III Brautigan argues that Longhorn did not produce a DRP handbook signed by her, and therefore it failed to show that an arbitration agreement exists. But “an arbitration agreement does not need to be signed to satisfy the written agreement requirement of the FAA.” Santos v. Gen. Dynamics Aviation Servs. Corp., 984 So. 2d 658, 660 (Fla. 4th DCA 2008); see also Jean v. Bayview Loan Servicing, LLC, 352 So. 3d 908, 909 (Fla. 3d DCA 2022) (same (citing Santos, 984 So. 2d at 661)); Hayslip v. U.S. Home Corp., 276 So. 3d 109, 113 (Fla. 2d DCA 2019) (same); Fi-Evergreen Woods, LLC v. Robinson, 135 So. 3d 331, 335 (Fla. 5th DCA 2013) (same); CEFCO, 278 So. 3d at 351. If the moving party cannot show a signed agreement exists, the court must examine “a party’s words and conduct to determine whether the party assented to the agreement.” Santos, 984 So. 2d at 661. Longhorn provided evidence that purportedly showed Brautigan assented, through her conduct, to the binding arbitration policy that Longhorn imposed on all its employees.

The evidence was as follows:

1. Brautigan was onboarded in 2000 and should have received an employment contract and Team Member Handbook as part of Longhorn’s regular course of employment.3 2.

On June 7, 2013, Brautigan signed an “Understanding & Acknowledgment [b]y Employee” form for “new and updated policies,” which Longhorn distributed to all its employees.

3. The “Understanding & Acknowledgment [b]y Employee” form incorporated by reference an assent to the Team Member Handbook.

4. Longhorn provided an unsigned copy of the Team Member Handbook which referenced Longhorn’s binding dispute resolution process and stated that by signing the handbook an employee “agree[d] to abide by all the policies, procedures, and guidelines set forth in the handbook.” 5.

In June 2015, Longhorn sent and required the posting of a “Notice of Dispute Resolution Process Updates” at all its restaurants. The Notice of Dispute Resolution Process Updates stated that “By coming to work here on or after June 30, 2015, you and the Company agree to be bound by the updated Dispute Resolution Process.” 6. Brautigan signed certain updated policies and continued to work well after the June 30, 2015 date until she was laid off during the 2020 COVID-19 pandemic. Parties who do not sign a contract “may be bound by the provisions of the contract, if the evidence supports that they acted as if the provisions of the contract were in force.” Sosa v. Shearform Mfg., 784 So. 2d 609, 610 (Fla. 5th DCA 2001) (first citing James Register Constr. Co. v. Bobby Hancock Acoustics, Inc., 535 So. 2d 339, 340 (Fla. 1st DCA 1988); then citing Gateway Cable T.V., Inc. v. Vikoa Constr. Corp., 253 So. 2d 461, 463 (Fla. 1st DCA 1971)).

But even if we were persuaded by Longhorn’s evidence, we cannot determine—at this time—whether Brautigan agreed or assented to be bound to arbitrate because the trial court’s order and comments at the hearing did not reference any facts related to Brautigan’s purported actions. Rather, the trial court relied on our

decision in CEFCO⁴ to conclude that Brautigan did not assent to be bound by Longhorn’s dispute resolution process. In CEFCO, however, we noted that “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.” 278 So. 3d at 351.

Thus, because assent to an arbitration agreement may be shown through action, the lack of a signature in this case is not dispositive and it was erroneous for the trial court to end its inquiry there. As the Third District Court of Appeal held in CT Miami, LLC v. Samsung Electronics Lationamerica Miami, Inc., 201 So. 3d 85, 95 (Fla. 3d DCA 2015), “a trial court should conduct an evidentiary hearing when a substantial issue regarding contract formation is raised.” (citations omitted).

A “substantial issue” may be present in a case when a party “identif[ies] factual disputes that, if resolved in its favor, would compel a different result.” Id. Here, a “substantial issue” of contract formation was present, requiring an evidentiary hearing. Longhorn asserted an arbitration agreement was formed through assent, and Brautigan disagreed. That alone should have alerted the trial court that an evidentiary hearing was necessary. Indeed, Brautigan’s position led to a result that could have been different if the trial court agreed with Longhorn if an evidentiary hearing had been held.

Therefore, the trial court erred in failing to hold an evidentiary hearing. See, e.g., Seduction Cosmetic Center Corp. v. Dunbar, 48 Fla.

L. Weekly D2010 (Fla. 3d DCA Oct. 18, 2023) (“Drawing upon well-settled precedent, we conclude that the court should have, at a minimum, conducted an evidentiary hearing to resolve the parties’ competing contentions.” (citations omitted)); Factor Brokers, Inc. v. J&C Enters., Inc., 48 Fla.

L. Weekly D1874 (Fla. 3d DCA Sept. 20, 2023) (same); Rowe Enters. LLC v. Int’l Sys. & Elecs. Corp., 932 So. 2d 537, 538 (Fla. 1st DCA 2006) (same). IV Accordingly, we REVERSE and REMAND for the trial court to conduct an evidentiary hearing on whether Brautigan’s actions showed her assent to be bound by Longhorn’s dispute resolution process. B.L. THOMAS and BILBREY, JJ., concur; WINOKUR, J., concurs in part and dissents in part with opinion. _____________________________