           IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FIFTH DISTRICT

                                                    NOT FINAL UNTIL TIME EXPIRES TO
                                                    FILE MOTION FOR REHEARING AND
                                                    DISPOSITION THEREOF IF FILED

AMERICAN EAGLE VETERAN
CONTRACTING, LLC,

               Appellant,

 v.                                                        Case No. 5D15-4483

MARK D. EILAND AND ARCHITECTURAL
DRYWALL SYSTEMS, INC.,

           Appellees.
________________________________/

Opinion filed October 14, 2016

Appeal from the Circuit Court
for Volusia County,
Sandra C. Upchurch, Judge.

Craig A. Brand, of The Brand
Law Firm, P.A., Orlando, for Appellant.

No Appearance for Appellees.

PER CURIAM.

      American Eagle Veteran Contracting, LLC (“American Eagle”), appeals the trial

court’s final order of summary judgment entered in favor of Mark D. Eiland and

Architectural Drywall Systems, Inc. (“Architectural Drywall”). 1 American Eagle argues the

trial court erred in entering summary judgment against it without ruling on its motion to

compel arbitration. We agree.




      1   Neither Eiland nor Architectural Drywall filed a brief in this appeal.
       According to the complaint, American Eagle is a contractor on a larger project

owned by Kellogg, Brown, and Root. American Eagle subcontracted with Architectural

Drywall. Architectural Drywall claimed that American Eagle failed to make payments

under the contract and brought suit for breach of contract. 2 In response, American Eagle

filed a motion to stay the proceedings pending arbitration, pursuant to Article 10 of the

contract. 3 American Eagle did not file an answer or any other pleading in response to the

complaint. Subsequently, American Eagle moved for a protective order preventing

Architectural Drywall from serving discovery until the trial court ruled on the motion to stay

pending arbitration.

       Without further discovery or pleadings from American Eagle, Architectural Drywall

moved for summary judgment based on the affidavit of Mark Eiland, the company’s

managing member. American Eagle responded by again filing a motion to stay the

proceedings, compel arbitration, and strike Architectural Drywall’s motion for summary

judgment. In response to an order to compel a joint status report, American Eagle

reiterated that its motion to compel arbitration remained outstanding and explained that it

would not file additional responses in order to avoid waiving its right to arbitrate. Without




       2Architectural Drywall further alleged that the parties had an oral agreement to
extend the rental of several pieces of equipment, at American Eagle’s expense, but that
American Eagle did not pay for the rental equipment.
       3   Article 10 provides, in relevant part:

                DISPUTES AND ARBITRATION: Any controversy arising out
                of this Agreement or a breach of it may be settled by
                arbitration under the rules of the American Arbitration
                Association applicable to the construction industry at
                CONTRACTOR’S option.


                                                2
reverse the entry of summary judgment and remand for the trial court to rule on American

Eagle’s motion to compel arbitration.

      REVERSED and REMANDED.

TORPY, COHEN and WALLIS, JJ., concur.




                                           4
reverse the entry of summary judgment and remand for the trial court to rule on American

Eagle’s motion to compel arbitration.

      REVERSED and REMANDED.

TORPY, COHEN and WALLIS, JJ., concur.




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