AMADEO TRINCHITELLA, AL BRASS, AL TURNER, JOE KOPPEL, SAM GEVIRTZ AND MILTON GORDON, APPELLANTS,
v.
D.R.F., INC., A DELAWARE CORPORATION, APPELLEE
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Appellants challenged a trial court's order compelling arbitration based on a 1981 Amendment. The court reversed, holding that a 1987 Agreement containing an integration clause superseded the 1981 Amendment and its arbitration provision, eliminating any obligation to arbitrate.
The 1987 Agreement superseded the 1981 Amendment pursuant to the clear language of the integration clause in paragraph 11 of the 1987 Agreement. Since the 1987 Agreement contained no arbitration provision and expressly superseded all prior agreements not contained within it, the arbitration provision in the 1981 Amendment was no longer in effect.
[1] An "entire agreement" clause in a subsequent contract supersedes prior agreements that contain no arbitration provision, thereby negating any arbitration clause in the pr…
[2] An appellate court cannot consider issues raised for the first time in a motion for rehearing in the trial court.
Previewing 2 of 2 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“This instrument constitutes the entire agreement between the parties hereto and neither party has been induced by the other by representations, promises, or understandings not expressed herein nor are there any collateral agreements, stipulations, promises, or undertakings whatsoever in any way touching upon the subject matter of this instrument which are not expressly contained herein”
The integration clause in paragraph 11 of the 1987 Agreement that the court used to determine that prior agreements were superseded.
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Join FLexlaw to unlock all legal intelligenceThe parties executed a 1981 Amendment containing an arbitration provision. In 1987, they entered into a new agreement that contained no arbitration pr…
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GUNTHER, Judge.
Appellants, defendants below, appeal the trial court’s order granting appellee/plain-tiff D.R.F., Inc.’s (DRF) motion to compel arbitration. We reverse.
DRF moved the trial court to have its case against the appellants/defendants submitted to arbitration pursuant to the terms of the 1981 Amendment and the 1987 Agreement. The transcript of the hearing on the motion clearly reflects that the appellants/defendants opposed the motion on the sole ground that the 1987 Agreement constitutes the entire agreement between the parties and thus, there is no agreement to arbitrate between the parties. They argued that by express contractual language, the 1987 Agreement, which contains no arbitration provision, superseded the 1981 Amendment, which contains the only arbitration provision.
Although the appellants/defendants in their motion for rehearing on the order granting arbitration attempted to raise new and different issues in support of their opposition to DRF’s motion to compel arbitration, we are precluded from considering those in this appeal. We cannot consider the issues raised for the first time in a motion for rehearing in the trial court. School Board of Pinellas County v. Pinellas County Commission, 404 So. 2d 1178 (Fla. 2d DCA 1981), rev. denied, 413 So. 2d 877 (Fla.1987).
Thus, in the instant case, the only issue properly before this court is whether the 1987 Agreement, which contains no provision for arbitration, superseded the 1981 Amendment so that the arbitration clause of the 1981 Amendment was no longer in effect. The 1987 Agreement, paragraph 11 states:
11. ENTIRE UNDERSTANDING
This instrument constitutes the entire agreement between the parties hereto and neither party has been induced by the other by representations, promises, or understandings not expressed herein nor are there any collateral agreements, stipulations, promises, or undertakings whatsoever in any way touching upon the subject matter of this instrument which are not expressly contained herein, (emphasis added)
We conclude that pursuant to the clear language of paragraph 11 of the 1987 Agreement, the 1981 Amendment providing for arbitration was superseded. Consequently, since the 1987 Agreement contained no provision for arbitration and superseded the 1981 Amendment containing the arbitration provision, the trial court erred in granting DRF’s motion to compel arbitration.
REVERSED AND REMANDED.
LETTS and POLEN, JJ., concur.
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BAY RAG & Grading, Inc. v. C & H Clothing, Inc., 652 So. 2d 893 (Fla. 3d DCA 1995)…PER CURIAM. Affirmed. Trinchitella v. D.R.F., Inc., 584 So. 2d 35 (Fla. 4th DCA 1991); School Bd. v. Pinellas County Comm’n, 404 So. 2d 1178 (Fla.2d DCA 1981) (appellate court cannot consider issues raised for the first time in a motion for rehearing in the trial court), rev. denied, 413 So. 2d 877 (Fla.1982).…
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Donesia Best v. Educ. Affiliates, Inc., 82 So. 3d 143 (Fla. 4th DCA 2012)…davit on a motion for rehearing; it is quite another to allow a nonmovant to initially create an issue of fact at this late stage.”). Nor can we consider an issue raised for the first time in a motion for rehearing. See Trinchitella v. D.R.F., Inc., 584 So. 2d 35 (Fla. 4th DCA 1991). Thus, this issue has not been preserved for appeal. [*147] Appellants also argue that the court erred in compelling arbitration because the arbitration agreement is invalid on its face due to its limitation on remedies, contrary…
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Elser v. LAW Offs. OF James M. Russ, P.A., 679 So. 2d 309 (Fla. 5th DCA 1996)…on personal knowledge. Russ answers that this court should not consider this issue because the Elsers raised it for the first time in their motion for rehearing at the trial level. To support its contention, Russ cites Trinchitella v. D.R.F., Inc., 584 So. 2d 35 (Fla. 4th DCA 1991) and School Board of Pinellas County v. Pinellas County Commission, 404 So. 2d 1178 (Fla. 2d DCA 1981), rev. [*312] denied, 413 So. 2d 877 (Fla.1982). In Trinchitella, the Fourth District Court of Appeal stated that it could not c…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Sch. Bd. OF Pinellas Cnty. v. The Pinellas Cnty. Comm'n & Metric Constructors, Inc., 404 So. 2d 1178 (Fla. 2d DCA 1981)
- Midflorida Schs. Fed. Credit Union v. Fansler, 404 So. 2d 1178 (Fla. 2d DCA 1981)