Poole and Kent Co. v. GUSI ERICKSON CONST. COMPANY, 98-04258.
| Decision Date | 29 September 1999 |
| Docket Number | No. 98-04258.,98-04258. |
| Citation | 759 So.2d 2 |
| Parties | The POOLE AND KENT COMPANY, Appellant, v. GUSI ERICKSON CONSTRUCTION COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Herman M. Braude and Stuart H. Sakwa of Braude & Margulies, P.C., Washington, D.C.; and Stanley H. Eleff and David J. Rice of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Tampa, for Appellant.
James E. Moye and Gregory S. Martin of Moye, O'Brien, O'Rourke, Hogan & Pickert, Orlando, for Appellee.
The Poole and Kent Company (Poole) appeals the trial court's order denying an application to vacate an arbitration award and the judgment confirming the award in favor of Gusi Erickson Construction Company (Gusi). We affirm the judgment. Although several nonessential findings in the order denying the application to vacate the arbitration are incorrect or inappropriate, we affirm that order. Whether the outcome of this arbitration proceeding will affect a lawsuit pending in Dade County was not an issue that the trial court needed to determine when denying the application to vacate or when entering judgment. The impact, if any, of the arbitration proceeding on the action in Dade County is an issue for that court to resolve notwithstanding the findings in the trial court's order denying the application to vacate.
Poole entered into a contract with Hillsborough County in 1996 to build certain wastewater treatment facilities in the southern part of the county. Gusi entered into several subcontracts with Poole on September 24, 1996, to construct various portions of the facilities. The relationship between Poole and Gusi deteriorated during this construction project, and Gusi finally terminated work on the project on September 12, 1997, after much, but not all, of its work was complete.
The contract between Poole and Gusi contained a very broad arbitration clause.1 Gusi invoked the clause by filing a demand for arbitration with the American Arbitration Association in September. Poole answered and filed a counterclaim for arbitration. As is common in arbitration, these filings do not detail the issues or disputes that the parties wished to arbitrate. The arbitration was scheduled for late April 1998. It is noteworthy that the three arbitrators were very experienced with such construction projects, but none was a licensed attorney.
Two business days before the scheduled arbitration, Poole filed an action for declaratory relief in the circuit court in Hillsborough County, requesting a stay of the arbitration. Poole requested the stay on the theory that the contract was unenforceable because Gusi did not have a valid qualifying agent on the date that the contract was signed. Poole maintained that this condition essentially voided the contract, relieving it of any obligation to arbitrate or pay for work performed by Gusi pursuant to the document. It attached a self-authenticating document from the Department of Business and Professional Regulation establishing that Gusi's qualifying agent, Richard Larsen, had been a licensed general contractor in Florida since 1983, but that he was not a qualifying agent for Gusi until sometime after the signing of the contract.2 On April 24, 1998, the trial court entered a temporary injunction staying the arbitration. On April 27, it entered an order dissolving the injunction.3
The parties then presented a complex dispute to the arbitrators. The record of this proceeding is very large. After taking the matter under advisement, the arbitration panel issued a written award in June. The award denied all of Poole's counterclaims and awarded Gusi more than $700,000. The precise basis for this award is not explained by the arbitrators, but it appears likely that they awarded Gusi most of the money due for the work it performed under the contract without awarding damages beyond the terms of the contract.
While the arbitration was pending, Poole sued Gusi and other defendants in circuit court in Dade County. The Dade County complaint, in a nutshell, alleges that Poole was duped into contracting with Gusi because it thought Gusi was another contractor known as Guse Erickson Company. The complaint seeks rescission, restitution and damages from Gusi and the other defendants on theories including fraud, fraud in the inducement, conspiracy, and RICO violations. Poole and Gusi have diametrically opposed positions on whether the legal theories discussed in the Dade County action were, or by necessity must have been, litigated in the arbitration proceeding.
Gusi filed an application for confirmation of the arbitration award in the Hillsborough County action in July. Poole filed an application to vacate the award in the same action a month later. After determining that it had jurisdiction of the matter and that no statutory basis existed to justify an order vacating the award, the trial court entered judgment on the arbitration award. See §§ 682.12—.15, Fla. Stat. (1997). Poole then filed this appeal. We address four issues.
First, Poole argues that the circuit court in Hillsborough County was not the proper forum to consider the application for confirmation of the arbitration award. It claims that this motion should have been filed in the pending Dade County action. We disagree. Poole invoked the Hillsborough County Circuit Court's jurisdiction when it filed its action for declaratory relief. Although that action did not expressly describe itself as an application to stay arbitration pursuant to section 682.03(4), Florida Statutes (1997), it is clear that it constituted such an application. Section 682.19, Florida Statutes (1997), explains that once an initial application is filed, all subsequent applications must be made to the court hearing the initial application unless it orders otherwise. Thus, Gusi correctly filed the application to confirm the award in Hillsborough County, which was the only proper venue.4
Second, the parties dispute whether the order dissolving the temporary injunction was a final order. We are inclined to believe that the parties overemphasize the importance of this issue,5 but the order is a classic, nonfinal order. See Fla. R.App. P. 9.130(a)(3)(B). It contains no language of finality. Admittedly, Poole filed the declaratory action primarily to stay the arbitration, and it is not entirely clear what further relief Poole expected after the arbitration commenced. Nevertheless, the order dissolving the injunction did not dismiss the action and did not conclude the work of the circuit court in the pending dispute between the two parties. To the extent that the circuit court's order denying the motion to vacate contains language treating the order dissolving the injunction as a final order, that language is harmless error and is disapproved by this court.
Third, Poole argues that it had no contractual obligation to arbitrate or pay Gusi for work that Gusi performed because Gusi was a business organization without a qualifying agent at the time it signed the subcontracts. See § 489.119, Fla. Stat. (1995). The documents from the Department of Business and Professional Regulation establish that Richard Larsen has held a general contractor's license in Florida since 1983, but that the status of his license had not been changed to reflect that he was a qualifying agent for Gusi until November 1996, at the earliest. Apparently, Gusi was a newly created Florida corporation, but there is no dispute that it was a corporation in good standing at all material times.
Section 489.128, Florida Statutes (1995), entitled ...
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