Affinity Internet v. Consolidated Credit

• Decision Date: 01 March 2006
• Docket Number: No. 4D05-1193.,4D05-1193.
• Citation: 920 So.2d 1286
• Parties: AFFINITY INTERNET, INC., d/b/a SkyNetWEB, Appellant, v. CONSOLIDATED CREDIT COUNSELING SERVICES, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

920 So.2d 1286

AFFINITY INTERNET, INC., d/b/a SkyNetWEB, Appellant, v. CONSOLIDATED CREDIT COUNSELING SERVICES, INC., a Florida corporation, Appellee.

No. 4D05-1193.

District Court of Appeal of Florida, Fourth District.

March 1, 2006.

Douglas E. Ede of Salas, Ede, Peterson & Lage, LLC, South Miami, for appellant.

Todd A. Armbruster of Moskowitz, Mandell, Salim & Simowitz, P.A., Fort Lauderdale, for appellee.

SHAHOOD, J.

This is an appeal from an order denying appellant's motion to compel arbitration. The issue before us is whether the trial court erred in denying appellant's motion to compel arbitration without an evidentiary hearing to determine whether the contract contained a valid agreement to arbitrate. We hold the trial court did not err and affirm the order of the trial court.

Consolidated Credit Counseling Services, Inc. (Consolidated) and Affinity Internet, Inc., d/b/a/ SkyNetWEB (Affinity) entered into a contract pursuant to which Affinity was to provide computer and web hosting internet services to Consolidated. Some time later, Consolidated filed a complaint against Affinity alleging breach of contract, unjust enrichment, fraud in the inducement, and Violation of Florida's Deceptive and Unfair Trade Practices Act. Affinity responded with a motion to compel arbitration and to stay discovery and further proceedings in the circuit court, asserting that all of Consolidated's claims arose out of the contractual relationship and were, therefore, subject to arbitration.

Consolidated opposed the motion, arguing that the contract between the parties did not contain an arbitration clause and that any collateral documents relied upon by Affinity to show otherwise were not a part of the contract.

The contract between the parties stated: "This contract is subject to all of SkyNetWEB's terms, conditions, user and acceptable use policies located at http://www.skynetweb. com/company/legal/ legal.php." A copy of the document was attached to Consolidated's Motion to Arbitrate. Paragraph seventeen of the User Agreement states that "[a]ny controversy or claim arising out of, relating to or in connection with this Agreement, or the breach thereof, shall be subject to arbitration administered by the American Arbitration Association." Affinity's vice-president stated in her affidavit that the contract expressly incorporated the user agreement at http://www.skynetweb. com/company/legal/ user — agreement.php.

At the hearing on the motion, Consolidated argued that there was no arbitration clause in the contract and, even if the collateral document were sufficient to impose an obligation to arbitrate, the website for the user agreement, which was listed in the contract, was different from the website given by the company's representative in her affidavit. Thus, counsel argued that Affinity had not even established that the user agreement was at the website listed in the contract. Finally, counsel argued that the user agreement was never signed by Consolidated and no copy of the agreement was ever given to Consolidated. The court agreed that there was no valid, written agreement to arbitrate in the contract and that the collateral document allegedly containing the arbitration clause was "neither expressly referred to nor sufficiently described by the Contract."

The issue in this case is not the scope of the arbitration agreement, but rather, whether a written agreement to arbitrate exists at all. See generally Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (elements to consider in determining whether to compel arbitration are "(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.") The intent of the parties is determinative of whether an agreement to arbitrate exists. Id. at 636.

The contract in this case does not contain an express agreement to arbitrate. It contains only a statement that the contract is "subject to all of SkyNetWEB's terms, conditions, user and acceptable use policies located" which are found at a stated website. The arbitration provision is contained in the user agreement. No printed version of the policies allegedly located at that website was attached to the contract.

The doctrine of incorporation "requires that there must be some expression in the incorporating document ... of an intention to be bound by the collateral document.... A mere reference to another document is not sufficient to incorporate that other document into a contract, particularly where the incorporating document makes no specific reference that it is `subject to' the collateral document." Temple Emanu-El of Greater Fort Lauderdale v. Tremarco Indus., Inc., 705 So.2d 983, 984 (Fla. 4th DCA 1998) (citing Kantner v. Boutin, 624 So.2d 779 (Fla. 4th...