          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


REUNION WEST DEVELOPMENT PARTNERS, LLLP,

             Appellant,

 v.                                                     Case No. 5D16-3665

AFRANIO SANFORD GUIMARAES, JR.
AND SANDRA FALCAO AURELIANO S. GUIMARAES,

             Appellees.

________________________________/

Opinion filed July 7, 2017

Non-Final Appeal from the
Circuit Court for Osceola
County,
Kevin B. Weiss, Judge.

Jose G. Sepulveda and Veronica L. De
Zayas, of Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A., Miami, for
Appellant.

Scott R. Rost, of South Milhausen, P.A.,
Orlando, for Appellees.

PALMER, J.

      Reunion West Development Partners (Reunion) appeals the order entered by the

trial court denying its Motion to Compel Arbitration.1 We reverse.




      1 Appellate jurisdiction is proper pursuant to rule 9.130 of the Florida Rules of
Appellate Procedure.
       The Guimaraes (the buyers) filed a breach of contract action against Reunion. The

complaint alleged a claim of breach of a Home Purchase Agreement and a claim for

declaratory relief regarding the arbitration provision contained in said agreement. The

arbitration provision provides, in relevant part:

              ARBITRATION. BY ENTERING INTO THIS AGREEMENT,
              BUYER AND SELLER AGREE THAT ANY CONTROVERSY,
              CLAIM OR DISPUTE, ARISING OUT OF OR RELATED TO
              THIS AGREEMENT OR BUYER’S PURCHASE OF THE
              PROPERTY OR ANY RIGHTS AND OBLIGATIONS
              BETWEEN THE PARTIES WILL BE RESOLVED BY
              BINDING ARBITRATION PURSUANT TO THE FEDERAL
              ARBITRATION ACT (TITLE 9 OF THE UNITED STATES
              CODE). THE ARBITRATION SHALL BE CONDUCTED IN
              ACCORDANCE WITH THE CONSTRUCTION INDUSTRY
              ARBITRATION RULES OF THE AMERICAN ARBITRATION
              ASSOCIATION (“AAA”) AND THE TERMS OF THIS
              AGREEMENT.

Importantly, the Construction Industry Arbitration Rules of the American Arbitration

Association authorizes the arbitrator to rule on the arbitrability of a dispute:

              R-9. Jurisdiction
              (a) The arbitrator shall have the power to rule on his or her
              own jurisdiction, including any objections with respect to the
              existence, scope or validity of the arbitration agreement.

       The buyers filed a Motion to Determine Arbitrability, and Reunion responded by

filing a Motion to Compel Arbitration and to Stay the Proceedings. The trial court

conducted a hearing on the parties' motions. Counsel for the buyers argued that the

arbitration clause was not enforceable because there was no meeting of the minds and

because its terms were unconscionable, citing to Basulto v. Hialeah Automotive, 141 So.

3d 1145 (Fla. 2014). Counsel for Reunion asserted that the issue of arbitrability was

expressly reserved for the arbitrator to decide, citing to Glasswall, LLC v. Monadnock




                                              2
Construction, Inc., 187 So. 3d 248 (Fla. 3rd DCA 2016). The trial court entered an order

denying Reunion’s Motion to Compel Arbitration, citing to Basulto.

       Reunion argues that the trial court reversibly erred in relying on Basulto and in

rejecting its claim that the issue of arbitrability was for the arbitrator to decide. We agree.

        Appellate courts "review de novo a trial court's ruling on a motion to compel

arbitration, but . . . defer to the trial court's factual findings provided that they are supported

by competent, substantial evidence." Timber Pines Plaza, LLC v. Zabrzyski, 211 So. 3d

1147, 1150 (Fla. 5th DCA 2017).

       While arbitrability is generally an issue for trial courts to decide, courts must

delegate the authority to the arbitrator if the parties' contract so provides. Morton v.

Polivchak, 931 So. 2d 935, 938–39 (Fla. 2d DCA 2006); accord Glasswall, 187 So. 3d at

251; Grant v. Rotolante, 147 So. 3d 128, 130-31 (Fla. 5th DCA 2014); Rintin Corp., S.A.

v. Domar, Ltd., 766 So. 2d 407, 409 (Fla. 3d DCA 2000). "[W]hen . . . parties explicitly

incorporate rules that empower an arbitrator to decide issues of arbitrability, the

incorporation serves as clear and unmistakable evidence of the parties' intent to delegate

such issues to an arbitrator." Contec Corp. v. Remote Solution, Co., Ltd., 398 F. 3d 205,

208 (2nd Cir. 2005); accord Glasswall. Where, like here, the language of the contract

clearly states that AAA rules govern, then said rules are expressly incorporated into the

contract. Younessi v. Recovery Racing, LLC, 88 So. 3d 364, 365 (Fla. 4th DCA 2012)

(citing Terminix Int'l Co. v. Palmer Ranch Ltd., 432 F. 3d 1327, 1333 (11th Cir. 2005)).

        Based on this case law, the trial court erred in denying Reunion's Motion to

Compel Arbitration because the parties' contract expressly incorporates the Construction




                                                3
Construction, Inc., 187 So. 3d 248 (Fla. 3rd DCA 2016). The trial court entered an order

denying Reunion’s Motion to Compel Arbitration, citing to Basulto.

       Reunion argues that the trial court reversibly erred in relying on Basulto and in

rejecting its claim that the issue of arbitrability was for the arbitrator to decide. We agree.

        Appellate courts "review de novo a trial court's ruling on a motion to compel

arbitration, but . . . defer to the trial court's factual findings provided that they are supported

by competent, substantial evidence." Timber Pines Plaza, LLC v. Zabrzyski, 211 So. 3d

1147, 1150 (Fla. 5th DCA 2017).

       While arbitrability is generally an issue for trial courts to decide, courts must

delegate the authority to the arbitrator if the parties' contract so provides. Morton v.

Polivchak, 931 So. 2d 935, 938–39 (Fla. 2d DCA 2006); accord Glasswall, 187 So. 3d at

251; Grant v. Rotolante, 147 So. 3d 128, 130-31 (Fla. 5th DCA 2014); Rintin Corp., S.A.

v. Domar, Ltd., 766 So. 2d 407, 409 (Fla. 3d DCA 2000). "[W]hen . . . parties explicitly

incorporate rules that empower an arbitrator to decide issues of arbitrability, the

incorporation serves as clear and unmistakable evidence of the parties' intent to delegate

such issues to an arbitrator." Contec Corp. v. Remote Solution, Co., Ltd., 398 F. 3d 205,

208 (2nd Cir. 2005); accord Glasswall. Where, like here, the language of the contract

clearly states that AAA rules govern, then said rules are expressly incorporated into the

contract. Younessi v. Recovery Racing, LLC, 88 So. 3d 364, 365 (Fla. 4th DCA 2012)

(citing Terminix Int'l Co. v. Palmer Ranch Ltd., 432 F. 3d 1327, 1333 (11th Cir. 2005)).

        Based on this case law, the trial court erred in denying Reunion's Motion to

Compel Arbitration because the parties' contract expressly incorporates the Construction




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