CITY OF MIAMI

v.

YESID ORTIZ AND REYNALDO IRIAS

Third District Court of Appeal

State of Florida

Opinion filed March 10, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-297 Lower Tribunal No. 18-23514

________________

City of Miami,

Appellant,

vs.

Yesid Ortiz And Reynaldo Irias, Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Alan Fine, Judge. Victoria Méndez, City Attorney, and Eric J. Eves, Assistant City Attorney, for appellant. Law Offices of Adorno-Cunill & Damas, PL, and John Cunill, for appellees. Before EMAS, C.J., and HENDON and GORDO, JJ. GORDO, J. The City of Miami appeals the trial court’s order granting a motion for summary judgment and ordering the parties to arbitrate in this declaratory action, which seeks application of the terms of the Collective Bargaining Agreement¹ with respect to two former City police officers. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). The City argues summary judgment was improvidently granted because the parties disagree over whether the Officers resigned voluntarily, a threshold question of fact. It further argues that under the plain language of the Agreement, the parties did not agree to arbitrate questions of arbitrability, and thus, the trial court must resolve the question of voluntariness. We conclude a question of fact exists for the court as to whether the resignations were voluntary or involuntary. Accordingly, we reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND The City alleged that the Officers were among those involved in a tow truck scheme whereby the Officers would call a tow truck operator from the scene of an accident who would then tow the cars to a particular repair shop.

LEGAL ANALYSIS

I. Whether Summary Judgment was Appropriate A trial court’s ruling on summary judgment is reviewed de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. (citation omitted).

The Officers asserted below that their resignations were executed “under duress and not of [their] own free will.” The City refuted this allegation and provided evidence in support of its position that the Officers had resigned voluntarily. Thus, there was an issue of fact for the trial court to resolve that prevented a grant of summary judgment. II. Whether an Arbitrable Issue Exists We next turn to the City’s argument that the trial court erred in ordering the parties to arbitrate. “[T]he standard of review applicable to the trial court’s construction of the arbitration provision, and to its application of the law to the facts found, is de novo.” MetroPCS Commc’ns, Inc. v. Porter, 273 So. 3d 1025, 1027 (Fla. 3d DCA 2018) (quoting Gainesville Health Care Ctr., Inc. v. Weston, 857 So. 2d 278, 283 (Fla. 1st DCA 2003)). Florida courts have long acknowledged a strong public policy in favor of arbitration. See, e.g., Waterhouse Constr. Grp., Inc. v. 5891 SW 64th St., LLC, 949 So. 2d 1095, 1099 (Fla. 3d DCA 2007). “All questions concerning the scope or waiver of the right to arbitrate under contracts should be resolved in favor of arbitration rather than against it.” Zager Plumbing, Inc. v. JPI Nat’l Constr., Inc., 785 So. 2d 660, 662 (Fla. 3d DCA 2001) (quoting Beverly Hills Dev. Corp. v. George Wimpey of Fla., Inc., 661 So. 2d 969, 971 (Fla. 5th DCA 1995)). “Although Florida law . . . favors arbitration, it is still true that ‘no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate.’” Beck Auto Sales, Inc. v. Asbury Jax Ford, LLC, 249 So. 3d 765 (Fla. 1st DCA 2018) (citing Perdido Key Island Resort Dev., L.L.P. v. Regions Bank, 102 So. 3d 1, 3 (Fla. 1st DCA 2012)) (internal citations omitted). “Arbitration is a matter of contract.” City of Miami v. Fraternal Order of Police Lodge #20, 248 So. 3d 273, 276 (Fla. 3d DCA 2018). “An arbitrator’s authority to conduct an arbitration and the issue(s) to be arbitrated are granted and limited by the operative document(s) in question or by agreement of the parties themselves.” Id. Accordingly, “[a] trial court’s role in determining arbitrability under the Revised Florida Arbitration Code is limited to the following inquiries: ‘(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.’” Id. at 275 (quoting 3A Fla. Jur. 2d Arbitration and Award § 54).

The issue presented to the trial court below and to be reviewed on appeal in this case is whether an arbitrable issue exists. Necessary to that determination here is whether the Officers voluntarily resigned because voluntary resignations are not explicitly covered by the terms of the Agreement.⁵ This Court has previously interpreted the exact contract at issue here in Fraternal Order of Police Lodge #20, 248 So. 3d 273. There, we held that the Agreement should be construed narrowly and excludes claims not expressly covered by its terms. Id. at 277. Section 6.2 of the Agreement defines “grievance” as “any dispute, controversy or difference” between the parties “with respect to, on account of or concerning the meaning, interpretation or application of this Agreement or any terms or provisions thereof.” The Officers argue that because the Agreement has a broad, mandatory arbitration provision, their grievances must be arbitrated. But the express terms of the Agreement afford different enumerated rights and grievance procedures to employees who are terminated as compared to those who voluntarily resign. The Agreement’s arbitration provision expressly limits a union member to “appeal a suspension, demotion, or dismissal through the grievance procedure.” Agreement at § 6.6 (emphasis added). The Officers acknowledge that the voluntariness of the resignation is a question of fact but contend that

CONCLUSION

A question of fact remains, which precluded the entry of summary judgment—whether the officers resigned voluntarily or involuntarily. Under the plain language of the Agreement, this disputed fact issue was a threshold question for the trial court, not the arbitrator. Reversed and remanded for further proceedings consistent with this opinion.