       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

             GREEN EARTH TECHNOLOGY SOLUTIONS, INC.,
                            Appellant,

                                    v.

         GELTECH SOLUTIONS, INC. and FIREICE GEL, INC.,
                         Appellees.

                             No. 4D13-3929

                          [ November 12, 2014 ]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;    David    F.    Crow,    Judge;    L.T.   Case     No.
502013CA006154XXXXMB.

   Brigid F. Cech Samole and Rachel A. Canfield of Greenberg Traurig,
P.A., Miami, and Paul B. Ranis of Greenberg Traurig, P.A., Fort
Lauderdale, for appellant.

  William A. Fleck of Jupiter Legal Advocates, Jupiter, and John K.
Copeland of Kramer, Sopko & Levenstein, P.A., Stuart, for appellees.

TAYLOR, J.

   Appellant, Green Earth Technology Solutions, petitioned the trial court
to partially vacate the arbitration award entered on its breach of contract
claim against appellees, GelTech Solutions and FireIce Gel. Specifically,
appellant sought to vacate that portion of the award finding that neither
party prevailed in the arbitration and denying prevailing party attorney’s
fees and costs to appellant. The trial court denied appellant’s application
to partially vacate the award, concluding that “a prevailing party
determination is within the scope of the Arbitration Panel’s jurisdiction,”
and that “[e]ven if the Arbitration Panel erroneously concluded that there
was no prevailing party, this is not a basis on which the arbitration award
may be reversed.” We agree and affirm the trial court’s order.

   “To vacate an arbitration award, a party must establish one of the
enumerated statutory grounds under section 682.13(1), Florida Statutes.”
Talel Corp. v. Shimonovitch, 84 So. 3d 1192, 1193 (Fla. 4th DCA 2012).
The grounds for vacating an arbitration award are as follows:

      (a) The award was procured by corruption, fraud, or other
      undue means;
      (b) There was:
          1. Evident partiality by an arbitrator appointed as a neutral
          arbitrator;
          2. Corruption by an arbitrator; or
          3. Misconduct by an arbitrator prejudicing the rights of a
          party to the arbitration proceeding;
      (c) An arbitrator refused to postpone the hearing upon
      showing of sufficient cause for postponement, refused to hear
      evidence material to the controversy, or otherwise conducted
      the hearing contrary to s. 682.06, so as to prejudice
      substantially the rights of a party to the arbitration
      proceeding;
      (d) An arbitrator exceeded the arbitrator’s powers;
      (e) There was no agreement to arbitrate, unless the person
      participated in the arbitration proceeding without raising the
      objection under s. 682.06(3) not later than the beginning of
      the arbitration hearing; or
      (f) The arbitration was conducted without proper notice of the
      initiation of an arbitration as required in s. 682.032 so as to
      prejudice substantially the rights of a party to the arbitration
      proceeding.

§ 682.13(1), Fla. Stat. (2013).

   Appellant relies solely on subsection (d) to vacate the award, arguing
that the arbitration panel exceeded its powers in finding that “no party
prevailed, as that issue was not properly before the Arbitration Panel.”

   Contrary to appellant’s assertion on appeal, the arbitration panel acted
within its powers in determining the issue of attorney’s fees. The parties
agreed at their Case Management Conference that “the arbitrators shall
determine the issues of entitlement to and amount of the prevailing party’s
reasonable attorney’s fees and taxable costs. . . .” In determining the
threshold issue of whether a prevailing party existed, however, the panel
found that neither party was a prevailing party. We need not examine the
merits of appellant’s argument that the contract litigation had to result in
a prevailing party.     Assuming arguendo that the arbitration panel
erroneously concluded that there was no prevailing party, this is not a
basis upon which an arbitration award may be vacated or reversed. See
Schnurmacher Holding, Inc. v. Noriega, 542 So. 2d 1327, 1329-30 (Fla.

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1989) (holding that an arbitration award may not be vacated or reversed
based on an arbitrator’s error of law because error of law is not one of the
specific statutory grounds for vacating an award); Wells v. Castro, 117 So.
3d 1233, 1238 (Fla. 2d DCA 2013) (noting that an arbitration award
finding that neither party was a prevailing party could not be reversed on
the ground that the arbitrator made an error of law).

  Accordingly, we affirm the trial court’s order confirming the arbitration
award.

   Affirmed.

WARNER and MAY, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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