       Third District Court of Appeal
                               State of Florida

                           Opinion filed June 17, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-1992
                         Lower Tribunal No. 13-36250
                             ________________


             The Residences at the Bath Club, etc., et al.,
                                   Appellants,

                                        vs.

                     Bath Club Entertainment, LLC,
                                    Appellee.


      Appeal from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez,
Judge.

      Legon Fodiman, P.A., and Todd R. Legon and William F. Rhodes, for
appellants.

     Shubin & Bass, P.A., and John K. Shubin, Juan J. Farach, and Lauren G.
Brunswick, for appellee.

Before ROTHENBERG, SALTER and SCALES, JJ.

     SCALES, J.
        The Residences at the Bath Club Condominium Association, Inc.

(“Condominium Association”), and the Residences at the Bath Club Maintenance

Association, Inc. (“MXA”) (collectively referred to as “Appellants”) appeal the

trial court’s order denying their Motion to Enforce Arbitration Award (“Motion to

Enforce”) and compelling arbitration of two claims raised in Appellants’ Motion to

Enforce.

        Because certain determinations in the trial court’s order denying Appellants’

Motion to Enforce are not consistent with the parties’ Arbitration Award, or are

unsupported by competent substantial evidence, we reverse those portions of the

order. We affirm that part of the order that compelled arbitration of one of the

“new” claims raised in Appellants’ Motion to Enforce, i.e., Appellant’s claim that

Bath Club Entertainment, LLC (the “Developer”) is required to provide indoor

dining amenities to Appellants.

   I.      FACTS

        In 2010, the Developer and Appellants (two associations representing unit

owners of condominiums that the Developer constructed) entered into a Settlement

Agreement to conclude over three years of litigation involving the parties’

respective rights and responsibilities related to the Bath Club Property (“Bath

Club” or “the Property”) located on Collins Avenue in Miami Beach. The




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Settlement Agreement incorporated several collateral governing documents related

to the Property.

       Pursuant to the terms of the parties’ Settlement Agreement, all future

disputes between the parties related to the agreement were subject to arbitration.

       Shortly after the parties executed the Settlement Agreement, the Developer

initiated   arbitration   proceedings   against   Appellants,   essentially   seeking

declarations as to the parties’ rights and obligations under the Settlement

Agreement and its incorporated documents.

       Appellants filed a multiple-count counterclaim in the arbitration proceeding.

Only one of the Developer’s claims, and only two counts of Appellants’

counterclaim, are relevant to this appeal: (i) the Developer’s claim challenging the

enforceability of Rule 2a of the Amended Rules and Regulations promulgated by

MXA (requiring the Developer, when conducting special events on the Property, to

provide Appellants with proof of insurance); (ii) Count IV of Appellants’

counterclaim, in which the Appellants sought to compel the Developer to comply

with a governing document provision requiring the Developer to provide outdoor

food and beverage service as an amenity at the Bath Club, and (iii) Count V of

Appellants’ counterclaim, in which Appellants sought to compel the Developer to

rent unused cabanas to unit owners at reduced prices.




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        In the summer of 2013, a three-person arbitration panel conducted a four-

day evidentiary hearing on Developer’s claims and Appellants’ counterclaims,

resulting in a detailed twenty-four-page Arbitral Award, rendered in November

2013.

        Relevant to this appeal, the Arbitral Award determined that Appellants had

prevailed on Counts IV and V of their counterclaim, and that the Developer was

therefore required to: (i) provide outdoor dining service “during all Regular

Hours”1 pursuant to the terms of one of the agreements incorporated into the

parties’ Settlement Agreement, and (ii) make cabanas available to unit owners on a

short-term basis at the same rates paid by “Facility Permittees.”2

        The Arbitral Award also held enforceable Rule 2a of the Amended Rules

and Regulations promulgated by MXA (requiring the Developer, when conducting

special events on the Property, to provide Appellants with proof of insurance).

        Pursuant to section 682.15, Florida Statutes, the Arbitral Award was

confirmed in a final judgment rendered by the trial court in May 2014.



1“Regular Hours” is defined by the Settlement Agreement and its incorporated
documents as “the hours during which any of the Bath Club Facilities or
Additional Facilities shall be available for use by Facility Permittees. . . .”
2“Facility Permittees” is defined by the Settlement Agreement and its incorporated
documents as “Resort Guests, Association Members [i.e., the owners of the
condominium units] and Condominium Guests.”


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      In February 2014, even before the award was confirmed in a final judgment,

Appellants filed their Motion to Enforce.

      Appellants’ motion sought enforcement by the trial court of the Arbitral

Award with regard to Count IV (regarding the Developer’s alleged failure to

provide outdoor dining amenities as required by the Settlement Agreement) and

Count V (regarding the Developer’s alleged failure to offer cabanas to the unit

owners for lease pursuant to the Settlement Agreement) of its counterclaim, and of

Rule 2a of MXA’s Amended Rules and Regulations. In regard to Count IV,

however, Appellants’ Motion to Enforce also requested that the trial court require

the Developer to provide indoor restaurant service to unit owners. In regard to

Count V, Appellants’ motion specifically requested that the trial court compel the

Developer to “make unleased cabanas available to unit owners at the same rental

rate as that to be paid by Club Members . . . .” (emphasis added). Appellants’

Motion to Enforce was supported by a seven-page affidavit of Thomas Ireland, the

president of the Appellants.

      The Developer responded to Appellants’ Motion to Enforce by filing a

Motion to Compel Arbitration (“Motion to Compel”). The Developer asserted that

Appellants’ indoor restaurant demand and cabana pricing demand were “new”

claims that were not part of the Arbitral Award.




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            The trial court conducted a non-evidentiary hearing and ultimately agreed

with the Developer; the trial court entered the order on appeal, which concludes

that these two claims are “new” claims that are subject to arbitration. Without

elaboration, the trial court’s order simply denied Appellants’ Motion to Enforce.

The only evidence before the trial court was Mr. Ireland’s affidavit.

      II.      ANALYSIS

            A. Standard of Review

            The trial court’s decision to deny Appellants’ Motion to Enforce and refer

Appellants’ indoor dining request and cabana pricing claims to arbitration was

based in part on findings of fact, presenting us with a mixed question of law and

fact. New Port Richey Med. Investors, LLC v. Stern ex rel. Petscher, 14 So. 3d

1084, 1086 (Fla. 2d DCA 2009). Our review of the trial court’s factual findings is

limited to determining whether they are supported by competent substantial

evidence. Id. We use a de novo standard to review the trial court’s construction of

the

Arbitral Award and its application of the law to the facts found. Id.

            B. Indoor Food and Beverage Service Claim

            Appellants seek to require the Developer to provide indoor food and

beverage services to Appellants. We agree with the trial court that this claim was

not resolved by the parties’ prior arbitration claim; therefore this claim is a “new



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claim” subject to the Settlement Agreement’s arbitration provision. We therefore

affirm that part of the trial court’s order compelling the parties to arbitrate this

claim.

         C. Cabana Pricing Claim

         Citing a document incorporated into the Settlement Agreement, the Arbitral

Award determined that the Developer was required to make the cabanas “available

. . . for short-term use by Facility Permittees and Club Members3 alike, on a first-

come, first-served basis and at the same rates paid by Facility Permittees

therefore.” (emphasis added).

         Appellants’ Motion to Enforce alleged that, despite the findings of the

Arbitral Award, the Developer has not made unleased cabanas available to

Appellants “at the same rental rate as that to be paid by Club Members . . . .”

         The trial court denied Appellants’ Motion to Enforce this portion of the

Arbitral Award and referred Appellants’ claim to arbitration. The trial court

determined that Appellants’ claim constituted a “new and different claim than what

was presented to the panel.”

         We disagree, and conclude that the trial court erred in referring this claim to

arbitration. As reflected in the Arbitral Award, this claim was presented to, and

determined        by,    the    arbitration       panel.   Thus,   the    trial   court

3 The term “Club Members” is defined by the Settlement Agreement and its
incorporated documents as members of the historic Bath Club.

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was required to adjudicate this claim in the context of Appellants’ Motion to

Enforce.

      Therefore, we reverse that portion of the trial court’s order that referred this

claim to arbitration, and remand so that the trial court may enforce the relevant

provisions of the Arbitral Award that specifically addressed this issue.

      D. Outdoor Food and Beverage Service Claim

      The Arbitral Award determined that the Developer was required to provide

outdoor food and beverage service consistent with the requirements of an

agreement incorporated into the parties’ Settlement Agreement. Specifically, the

Arbitral Award determined that the Developer was required to provide such

outdoor dining service during all “Regular Hours.” The Arbitral Award granted the

Appellants the remedy of specific performance in this regard.

      Appellants’ Motion to Enforce alleged that, notwithstanding the requisites of

the Arbitral Award, the Developer failed to provide the required outdoor food and

beverage service.

      The Developer argues that, sometime prior to the entry of the trial court’s

August 8, 2014 order denying, without elaboration, Appellants’ Motion to Enforce,

the Developer came into compliance with the requisites of the Arbitral Award

regarding outdoor food service. Appellants dispute this.




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      At the time of the June 3, 2014 hearing on Appellants’ Motion to Enforce,

however, the only evidence before the trial court was Mr. Ireland’s unrebutted

affidavit in which Mr. Ireland averred that Appellants failed to provide outdoor

food and beverage service during “Regular Hours.” This evidence, coupled with

the Developer’s seeming admission in its brief and during oral argument, that the

Developer’s alleged compliance occurred after the June 3, 2014 hearing, requires

us to reverse this portion of the trial court’s order. The trial court’s order denying

Appellants’ Motion to Enforce in this regard is not supported by competent

substantial evidence.

      Therefore, we reverse that portion of the trial court’s order that denied,

without elaboration, Appellants’ claim that the Developer had failed to comply

with the Arbitral Award’s remedy on Count IV of Appellants’ counterclaim, and

remand for proceedings consistent herewith.4

      E. Insurance Claim

      In the arbitration proceedings, the Developer challenged the validity and

enforceability of Rule 2a of MXA’s Amended Rules and Regulations. In relevant

part, Rule 2a requires the Developer to provide Appellants with proof of liability

insurance when functions occur at the Property. Rule 2a requires limits of no less

4 We express no opinion as to whether, on remand, the Developer may be able to
establish compliance with this portion of the Arbitral Award. In adjudicating this
issue, however, we urge the trial court to elaborate on the basis for its
determination.

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than $500,000 per individual and $5,000,000 per occurrence, and that MXA be

named as an additional insured.

      The Arbitral Award expressly determined that Rule 2a was enforceable.

Appellants’ Motion to Enforce sought the trial court to enter an order compelling

the Developer to comply with Rule 2a.

      At oral argument, the Developer conceded that, at or before the June 3, 2014

hearing on Appellants’ Motion to Enforce, it had not met the obligations of Rule

2a. Again, the only record evidence before the trial court on this issue was Mr.

Ireland’s affidavit asserting that the Developer had not complied with Rule 2a. Yet,

without elaboration, the trial court denied Appellants’ Motion to Compel in this

regard.

      This portion of the trial court’s order is not supported by competent

substantial evidence, and therefore requires reversal; we remand for proceedings

consistent herewith.5

    III. CONCLUSION

      In sum, we affirm that portion of the trial court’s order that compelled

arbitration of Appellants’ request that the Developer provide indoor food and

beverage service.


5 Again, we express no opinion as to whether, on remand, the Developer may be
able to establish compliance with this part of the Arbitral Award, but we encourage
the trial court to elaborate on the basis of its determination in this regard.

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      We reverse that portion of the trial court’s order that referred Appellants’

cabana pricing claim to arbitration, and we direct the trial court to enforce the

relevant provisions of the Arbitral Award.

      We reverse that portion of the trial court’s order that denied Appellants’

Motion to Enforce the outdoor food and beverage service claim, and remand for

the trial court to adjudicate whether the Developer has complied with the relevant

provisions of the Arbitral Award.

      Finally, we reverse that portion of the trial court’s order that denied

Appellants’ Motion to Enforce compliance with Rule 2a.

      Affirmed in part; reversed and remanded in part.




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