TEMPLE EMANU-EL OF GREATER FORT LAUDERDALE, APPELLANT,
v.
TREMARCO INDUSTRIES, INC., APPELLEE
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Temple Emanu-El contracted with Tremarco Industries to install a roof system. Tremarco's contract referenced a Firestone 12-year warranty that contained an arbitration clause. The court held that merely referencing a warranty in a contract does not incorporate the warranty's arbitration provision by reference, and reversed the trial court's order compelling arbitration.
The court held that mere reference to another document is insufficient to incorporate that document into a contract by reference. The Tremarco contract did not contain language indicating the parties intended to be bound by the Firestone warranty or its arbitration provision, and therefore the arbitration clause was not binding on Tremarco and the owner.
[1] A mere reference to another document in a contract is insufficient to incorporate that document by reference, especially when the incorporating document does not express…
[2] For a collateral document to be incorporated by reference into a contract, the incorporating document must contain an expression of intent to be bound by the collateral d…
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Join FLexlaw to unlock all legal intelligence“the doctrine [of incorporation by reference] requires that there must be some expression in the incorporating document ... of an intention to be bound by the collateral document_ A mere reference to another document is not sufficient to incorporate that other document into a contract, particularly where the incorporating document makes no specific reference that it is 'subject to' the collateral document.”
Establishes the legal standard for incorporation by reference, requiring clear expression of intent to be bound, not merely a reference to another document.
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Join FLexlaw to unlock all legal intelligenceTemple Emanu-El (owner) contracted with Tremarco Industries (contractor) to install a Firestone SBS Modified Bitumen Roof System. The Tremarco contrac…
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FARMER, Judge.
Appellant, as owner, contracted with appel-lee, as contractor, to install a “new Firestone SBS Modified Bitumen Roof System.” After listing all of the products and services included, their contract then contains the following general provisions (which we quote exactly as they are stated in the written document):
“10.) Price includes Tremareo 3 year Guarantee against leaks caused by defects in material and workmanship.
“11.) Provide Firestone 12 year performance warranty.”
There are no other provisions applicable to the dispute we now confront. The Firestone warranty contains a clause providing that “any dispute, controversy or claim between the Owner and Firestone ... shall be settled by final and binding arbitration....” There is no such provision in Tremarco’s contract. When the owner sued Tremarco and Firestone, as well as some participating architects, engineers and subcontractors, Tre-marco and Firestone moved to require arbitration on the basis of the clause in Firestone’s warranty. The owner consented to Firestone’s motion but contested Tremareo’s. The trial court agreed with Tremarco and entered an order abating the owner’s action against Tremarco in favor of arbitration. We reverse.
Tremarco argues that the contract between the owner and Tremarco contained a “sufficient reference to the Firestone warranty ... to conclude that the parties intended that the Tremarco contract and the Firestone Standard Warranty be construed together.” The legal principle argued by Tremarco is clearly erroneous.
No serious contention could be made that the Tremarco contract incorporates by reference the Firestone warranty and its arbitration provision. As we made clear in Kantner v. Boutin, 624 So. 2d 779 (Fla. 4th DCA 1993):
“the doctrine [of incorporation by reference] requires that there must be some expression in the incorporating document ... of an intention to be bound by the collateral document_ A mere reference to another document is not sufficient to incorporate that other document into a contract, particularly where the incorporating document makes no specific reference that it is ‘subject to’ the collateral document.”
624 So. 2d at 781; see also Sharpe v. Lytal & Reiter, Clark, Sharpe, Roca, Fountain, Williams, 702 So. 2d 622 (Fla. 4th DCA 1998). Here the Tremarco contract does not even state that the agreement between the owner and Tremarco is “subject to” the Firestone warranty. Rather, it merely states that Tre-marco agrees to “provide” a Firestone warranty. We are unable to find anywhere in the Tremarco contract words remotely indicating an intention that the owner and Tre-marco agree, between themselves, to be bound by the Firestone. warranty and its arbitration provision.
Section 682.08, Florida Statutes (1997), states that:
“A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.”
The right to compel arbitration in this ease required that Tremarco prove up an agreement to arbitrate. We are unable to discern in its contract anything suggesting an agreement to arbitrate disputes.
REVERSED.
DELL and SHAHOOD, JJ., concur.
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Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So. 2d 627 (Fla. 1st DCA 1999)…if the contract specifically describes the document and expresses the parties’ intent to be bound by its terms. See Kantner v. Boutin, 624 So. 2d 779, 781 (Fla. 4th DCA 1993); Temple Emanu-El of Greater Fort Lauderdale v. Tremarco Industries, Inc., 705 So. 2d 983 (Fla. 4th DCA 1998). The contract must contain more than a mere reference to the collateral document, but it need not state that it is “subject to” the provisions of the collateral document to incorporate its terms. See Quix Snaxx, Inc. v. Sorensen,…
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MV Ins. Consultants, LLC v. Nafh Nat'l Bank & Allstate Ins. Co., 87 So. 3d 96 (Fla. 3d DCA 2012)…s. See, e.g., LBC Design & Constr. v. Serruya, 57 So. 3d 994 (Fla. 3d DCA 2011); Gen. Impact Glass & Windows Corp. v. Rollac Shutter of Tex., Inc., 8 So. 3d 1165 (Fla. 3d DCA 2009); Temple Emanu-El of Greater Fort Lauderdale v. Tremarco Indus., Inc. 705 So. 2d 983 (Fla. 4th DCA 1998). However, a closer review of these cases reveals that they all share one thing in common: the collateral document or agreement to which they refer is deemed “collateral” not because of its relative importance in the un [*101] der…
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Affinity Internet, Inc. v. Consol. Credit Counseling Servs., Inc., 920 So. 2d 1286 (Fla. 4th DCA 2006)…ient to incorporate that other document into a contract, particularly where the incorporating document makes no specific reference that it is ‘subject to’ the collateral document.” Temple Emanu-El of Greater Fort Lauderdale v. Tremarco Indus., Inc., 705 So. 2d 983, 984 (Fla. 4th DCA 1998) (citing Kantner v. Boutin, 624 So. 2d 779 (Fla. 4th DCA 1993)). While the contract in this case does state that it is subject to the collateral document, that simple statement, with nothing more, is insufficient to bind Cons…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frank J. Rooney, Inc. v. Leisure Resorts, Inc., 624 So. 2d 779 (Fla. 4th DCA 1993)
- Sharpe v. Lytal & Reiter, 702 So. 2d 622 (Fla. 4th DCA 1997)