       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 10, 2018.
         Not final until disposition of timely filed motion for rehearing.

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                               No. 3D17-2666
                          Lower Tribunal No. 17-8546
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                           Brickell Motors, LLC,
                                    Appellant,

                                        vs.

                          Yunior Uraldes Torres,
                                    Appellee.


     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Eric William Hendon, Judge.

      Law Offices of Charles M-P George, and Charles M-P George; Boyd,
Richards, Parker & Colonnelli, P.L., and Peter R. Restani, for appellant.

      Goldberg & Rosen, P.A., and Judd G. Rosen, Brett M. Rosen, and
Khristopher R. Salado, for appellee.

Before EMAS, FERNANDEZ, and LOGUE, JJ.

     LOGUE, J.
      Appellant Brickell Motors, LLC, seeks review of the trial court’s denial of

its Motion to Compel Arbitration. For the reasons below, we reverse.

                                   Background

      Yunior Torres purchased a car from Brickell Motors. The purchase

agreement contained an arbitration provision, which provided in pertinent part:

            Any claim or disputed, whether in contract, tort, statute,
            or otherwise (including the interpretation and scope of
            the Arbitration Provision, and the arbitrability of the
            claim or dispute), between you and us or our employees,
            agents, successors or assigns, which arises out of or
            relates to your credit application, purchase or condition
            of this Vehicle, this Order and Agreement or any
            resulting transaction or relationship (including any such
            relationship with third parties who do not sign this Order
            and Agreement) shall, at your election, be resolved by
            neutral, binding arbitration and not by a court action.

      Several hours after Torres purchased the vehicle, he was involved in a car

accident. On April 10, 2017, Torres filed suit against Brickell Motors alleging the

accident was caused by defects in the vehicle.

      Brickell Motors moved to compel arbitration on July 18, 2017, prior to

submitting any other filing. Subsequently, on July 27, 2017, Brickell Motors

moved for a 20-day extension of time to respond to the complaint. In October

2017, Brickell Motors noticed its Motion for Extension of Time to be heard on

November 8, 2017.




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      At the hearing, Brickell Motors argued, among other things, that it could not

answer the complaint in light of the pending Motion to Compel Arbitration.

Neither party noticed the Motion to Compel Arbitration for hearing. Torres had

filed no written opposition to Brickell’s Motion to Compel Arbitration and, at the

hearing, made no argument why the motion should be denied. Nevertheless, the

trial court sua sponte denied the Motion to Compel Arbitration and ordered

Brickell Motors to answer the complaint. Brickell Motors timely appealed.

                                       Analysis

      “This Court reviews an order granting or denying a motion to compel

arbitration de novo.” Duty Free World, Inc. v. Miami Perfume Junction, Inc., ---

So. 3d ----, 2018 WL 3747725 at *2 (Fla. 3d DCA Aug. 8, 2018) (citing Mukamal

v. Marcum, LLP, 223 So. 3d 422, 425 n.3 (Fla. 3d DCA 2017)).

      Section 682.03(1)(a), Florida Statutes, mandates that “[o]n motion of a

person showing an agreement to arbitrate and alleging another person’s refusal to

arbitrate pursuant to the agreement[,] [i]f the refusing party does not appear or does

not oppose the motion, the court shall order the parties to arbitrate.”

      Under the circumstances of this case, it was error to consider and deny

Brickell Motors’ Motion to Compel Arbitration. The motion was not noticed for

hearing. “This was error because the granting of relief, which is not sought by the

notice of hearing or which expands the scope of a hearing and decides matters not



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noticed for hearing, violates due process.” Connell v. Capital City Partners, LLC,

932 So. 2d 442, 444 (Fla. 3d DCA 2006) (citing Khan v. Dep’t of Revenue, 901

So. 2d 992, 992 (Fla. 4th DCA 2005)). Moreover, Torres had filed no objection or

memorandum of law in opposition to the motion and therefore the motion was not

briefed; Torres did not argue for denial at the hearing; the transcript of the hearing

indicates that the trial court provided no verbal explanation for its decision; and the

order itself provides no rationale. Indeed, on appeal, Torres provides no argument

why the motion should have been denied. Because the basis for the denial is

unclear, effective and meaningful appellate review is impossible. Douglas v.

Douglas, 795 So. 2d 99, 100 (Fla. 5th DCA 2001) (citing Harbin v. Harbin, 762

So. 2d 561 (Fla. 5th DCA 2000)).

      Accordingly, we reverse the order denying the motion to compel and

remand without prejudice to the trial court deciding the Motion to Compel

Arbitration when it is either properly noticed or briefed, consistent with the

requirements of section 682.03.

      Reversed and remanded.




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