INSIGNIA HOMES, INC., APPELLANT,
v.
ROBERT HINDEN AND JULIE HINDEN, HIS WIFE AND EAST SIDE SAVINGS AND LOAN ASSOCIATION, APPELLEES
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A homeowner counterclaimed against a contractor alleging breach of a home construction contract. The trial court denied the contractor's motion to compel arbitration on the counterclaim. The appellate court reversed in part, holding that claims arising out of or relating to the contract should be arbitrated, while affirming the denial of arbitration for a slander of title claim that was specifically excluded from arbitration by the contract's express terms.
The court held that breach of contract claims arising out of or relating to the subject matter of the agreement must be arbitrated pursuant to the arbitration clause. However, the slander of title claim based on the contractor's lien filing was properly excluded from arbitration because the contract expressly excluded lien claims from arbitration. The court also held that the homeowners waived any argument that they were not parties to the arbitration agreement by admitting execution of the contract in their pleadings and entering into arbitration on other issues.
[1] A contractual arbitration clause requiring arbitration of all claims arising out of or relating to the subject matter of the agreement encompasses claims for breach of co…
[2] A contractual arbitration provision that specifically excludes claims of liens by a contractor from arbitration means that a claim of slander of title based on the filing…
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Join FLexlaw to unlock all legal intelligence“all claims, disputes and other matters in contention between BUYER and SELLER under this AGREEMENT, or arising out of or relating to the subject matter of this AGREEMENT or any failures or breach resulting therefrom or thereunder (excluding only claims under any insurance or settlements in connection therewith or claims for monies due from BUYER and/or claims of liens by SELLER) shall be submitted for arbitration”
Establishes the scope of the arbitration clause and the specific exclusions for insurance claims and lien claims
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Join FLexlaw to unlock all legal intelligenceInsignia Homes, Inc. entered into a home construction contract with Robert and Julie Hinden. The contract contained an arbitration clause specifying t…
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PER CURIAM.
We reverse in part the trial court’s order denying arbitration in a dispute between a contractor and a homeowner. The parties had entered into a contract for construction of a home. The arbitration clause in the contract provides:
14. ARBITRATION: Anything to the contrary notwithstanding, BUYER agrees with SELLER that, (a) all claims, disputes and other matters in contention between BUYER and SELLER under this AGREEMENT, or arising out of or relating to the subject matter of this AGREEMENT or any failures or breach resulting therefrom or thereunder (excluding only claims under any insurance or settlements in connection therewith or claims for monies due from BUYER and/or claims of liens by SELLER) shall be submitted for arbitration to the “American Arbitration Association” (or such other arbitration association which may be mutually agreed upon by SELLER and the BUYER) in Broward County, Florida. Any arbitration arising out of or relating to this Agreement shall not include by consolidation or joinder or in any other manner any additional person not a party to this AGREEMENT or parties which are specifically excluded by reference in this AGREEMENT, (b) in the event that any party shall allege that this AGREEMENT was induced by fraud, failure of consideration or any other defenses or claims which may relate, question or dispute the enforceability or validity of this AGREEMENT (or any portions thereof), then such disputes or claims shall also be arbitrated in accordance with the herein provisions;
The homeowner counterclaimed against the contractor claiming in count I that the contractor breached the contract through shoddy workmanship, building inspection failures, delays, and other breaches. These claims arose “out of or relating to the subject matter of [the contract],” and the court erred in failing to grant arbitration as to count I.
Count II of the complaint alleged a slander of title based upon the contractor’s filing of a claim of lien against the property. The arbitration provision specifically excludes from arbitration claims of liens by the contractor. Therefore, we hold that the trial court did not err in denying the motion to compel arbitration as to this count.
Appellees also argue that Julie Hin-den is not a party to the contract which includes the arbitration clause. However, we disagree as the record indicates that she waived the issue by admitting to execution of the contract in her pleadings and by entering into arbitration with the contractor on other issues. See generally Koch v. Waller & Co., 439 So. 2d 1041, 1043 (Fla. 4th DCA 1983).
Finally, we do not address the issue of res judicata with respect to the trial court’s order denying the motion to dismiss the appellees’ counterclaim. An order denying a motion to dismiss is a nonappealable, nonfinal order. See Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987).
Reversed in part; affirmed in part.
GUNTHER, C.J., and WARNER and POLEN, JJ., concur.,
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Grosseibl v. J. Chris Howard Builders, Inc., 739 So. 2d 1255 (Fla. 5th DCA 1999)…reement and the warranty does not cover any of the disputes or claims alleged in Grosseibl’s complaint. Thus the arbitration provision in the warranty does not require that these disputes and claims be arbitrated. See Insignia Homes, Inc. v. Hinden, 675 So. 2d 673 (Fla. 4th DCA 1996) (homeowner’s slander of title claim against contractor for filing a lien against the property was not subject to the arbitration provision of the construction contract where claims of liens by contractors were specifically exclud…
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Royal Atl. Health SPA, Inc. v. B.L.N., Inc., 677 So. 2d 1385 (Fla. 4th DCA 1996)…determination of an arbitrable issue waive that right by participating in arbitration.” Victor v. Dean Witter Reynolds, Inc., 606 So. 2d 681, 685 (Fla. 5th DCA 1992), review denied, 614 So. 2d 502 (Fla.1993); see also Insignia Homes, Inc. v. Hinden, 675 So. 2d 673 (Fla. 4th DCA 1996) (homeowner waived defense that she was not party to contract including arbitration clause by admitting to execution of contract in pleadings and by entering into arbitration with contractor on other issues). In Koch v. Waller &…
Authorities Cited
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- State v. Metcalf, 439 So. 2d 1041 (Fla. 4th DCA 1983)
- Koch v. Waller & Co., Inc., 439 So. 2d 1041 (Fla. 4th DCA 1983)