              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



PETER ADKINS,                                )
                                             )
             Appellant,                      )
                                             )
v.                                           )          Case No. 2D18-1596
                                             )
MEMORIAL MOTORS, INC.,                       )
d/b/a LAKELAND TOYOTA,                       )
                                             )
             Appellee.                       )
                                             )

Opinion filed November 28, 2018.

Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Polk County;
Catherine L. Combee, Judge.

Philip A. Rhodes, Patrick J. Cremeens, and
Jeanne M. Cremeens of The Law Office of
Patrick Cremeens, P.L., Tampa, for
Appellant.

Walter C. Thomas, Jr., Lakeland, for
Appellee.


VILLANTI, Judge.


             Peter Adkins appeals an order granting Memorial Motors, Inc., d/b/a

Lakeland Toyota's motion to stay litigation and compel arbitration.1 Because the record


             1We   have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iv).
does not support Adkins' argument that Lakeland Toyota waived its right to arbitrate, we

affirm.

              Adkins purchased a used Audi from Lakeland Toyota, and as part of this

purchase he signed a retail installment sale contract which contained a provision

requiring the parties to arbitrate any dispute "which arises out of or relates to . . . [the]

condition of this vehicle" if either party so requested. After Adkins experienced several

problems with the Audi, he requested arbitration of the dispute by filing documents with

the American Arbitration Association (AAA). However, because Lakeland Toyota had

failed to pay certain arbitration fees several years earlier in a different arbitration

proceeding before the AAA, the AAA initially refused to arbitrate the dispute.

              As soon as Lakeland Toyota learned of the AAA's refusal, it took the

necessary steps to pay the past due fees to the AAA and then notified Adkins that

arbitration could move forward. By then, however, Adkins had changed his mind and no

longer wanted to arbitrate. Instead, he filed suit against Lakeland Toyota, which

responded by filing a motion to stay the litigation and compel arbitration. At a hearing

on Lakeland Toyota's motion, the trial court determined that a legally binding agreement

to arbitrate existed, that the parties' dispute fell within the scope of that arbitration

agreement, and that Lakeland Toyota had not waived its right to arbitrate. Therefore,

the court granted the motion. Adkins then filed this appeal, arguing as he did below that

Lakeland Toyota's failure to pay the earlier AAA fees, which resulted in the AAA

refusing to arbitrate the dispute, constituted a form of waiver of the right to arbitrate.

              Both parties in this case agree that the elements a court must consider

when determining whether to order arbitration are whether a valid written agreement to




                                              -2-
arbitrate exists, whether an arbitrable issue exists, and whether the right to arbitrate has

been waived. See Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). They

also agree that only the third element—waiver—is at issue in this appeal. Adkins

contends that Lakeland Toyota's act of failing to pay the AAA fees in a different case

several years earlier constituted a waiver of its right to arbitrate in this case because its

conduct amounted to a voluntary relinquishment of a known right to arbitrate. See

Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005) (defining

"waiver" as "the voluntary and intentional relinquishment of a known right or conduct

which implies the voluntary and intentional relinquishment of a known right" (citing Major

League Baseball v. Morsani, 790 So. 2d 1071, 1077 n.12 (Fla. 2001))). In contrast,

Lakeland Toyota contends that its failure to pay the earlier fees is irrelevant because

that act, in a different case with a different purchaser under a different contract, cannot

constitute an intentional relinquishment of its contractual right to arbitrate the current

dispute with Adkins.

               While Lakeland Toyota's actions in the prior proceeding may have

constituted a waiver of its right to arbitrate in that proceeding, none of the actions it took

in this proceeding are inconsistent with its right to arbitrate in this proceeding. When

Lakeland Toyota received Adkins' request to arbitrate, it promptly took the necessary

steps to resolve its earlier dispute with the AAA so that it could arbitrate the current

dispute with Adkins. Neither that action nor any of its other actions were inconsistent

with its right to arbitrate in this case. Therefore, the trial court's rationale in rejecting

Adkins' argument is fully supported by the record.




                                              -3-
              Moreover, Adkins' reliance on the AAA Consumer Arbitration Rules is

unavailing in this case for two reasons. First, the contractual right of a party to

arbitration is not governed by rules unilaterally adopted by a private entity such as the

AAA unless those rules are explicitly incorporated into the contract. Cf. Younessi v.

Recovery Racing, LLC, 88 So. 3d 364, 365 (Fla. 4th DCA 2012) (holding that if the

language of the contract clearly indicates that the AAA rules govern, then those rules

are expressly incorporated into the contract and will govern resolution of the parties'

dispute). Here, the contract between Adkins and Lakeland Toyota does not expressly

incorporate the AAA Consumer Arbitration Rules. Therefore, they cannot be applied to

negate Lakeland Toyota's contractual right to arbitrate.

              Second, the unavailability of the AAA to conduct the arbitration does not

negate the parties' agreement to arbitrate. See New Port Richey Med. Inv'rs, LLC v.

Stern ex rel. Petscher, 14 So. 3d 1084, 1087 (Fla. 2d DCA 2009). Here, the parties'

arbitration agreement provides that Adkins may choose the AAA "or any other

organization to conduct the arbitration subject to" Lakeland Toyota's approval.

Therefore, even if the AAA rules bar the AAA from arbitrating this dispute, those rules

do not prevent Lakeland Toyota from enforcing its contractual right to have the dispute

arbitrated by "any other organization" authorized to conduct arbitrations. Instead, in

compliance with the contract, Adkins may select a different organization to arbitrate this

dispute.

              Accordingly, because the trial court was eminently correct in granting

Lakeland Toyota's motion to stay litigation and compel arbitration, we affirm.




                                            -4-
          Affirmed.


SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                  -5-
