R.W. Roberts Const. Co., Inc. v. St. Johns River Water Management Dist. for Use and Ben. of McDonald Elec.

• Decision Date: 22 December 1982
• Docket Number: No. 82-383,82-383
• Citation: R.W. Roberts Const. Co., Inc. v. St. Johns River Water Management Dist. for Use and Ben. of McDonald Elec., 423 So.2d 630 (Fla. App. 1982)
• Parties: R.W. ROBERTS CONSTRUCTION CO., INC., etc. and the American Insurance Co., Petitioners, v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT for the Use and Benefit of McDONALD ELECTRIC and Repair Service, Inc., and Robert R. Perry, Circuit Judge, Seventh Circuit, in and for Putnam County, Florida, Respondents.
• Court: Florida District Court of Appeals

Page 630

423 So.2d 630

R.W. ROBERTS CONSTRUCTION CO., INC., etc. and the American Insurance Co., Petitioners, v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT for the Use and Benefit of McDONALD ELECTRIC and Repair Service, Inc., and Robert R. Perry, Circuit Judge, Seventh Circuit, in and for Putnam County, Florida, Respondents.

No. 82-383.

District Court of Appeal of Florida Fifth District.

Dec. 22, 1982.

William A. Harmening of Stanley, Harmening, Lovett, Turner & Livingston, Orlando, for petitioners.

Joe C. Miller, II, of Clark, Miller & Shine, P.A., Palatka, for respondents.

FRANK D. UPCHURCH, Jr., Judge.

Petitioner R.W. Roberts Construction Company, Inc., the general contractor for the construction of the administration building for the St. Johns River Water Management District, entered into a sub-contract with McDonald Electric to do certain electrical work. Under the general contract, Roberts posted a performance and payment bond with American Insurance Company, as surety, covering payment to sub-contractors. Upon completion of the work by McDonald on October 7, 1980, Roberts refused to pay $23,721.81, the amount claimed by McDonald to be due.

On March 3, 1981, McDonald filed a complaint against Roberts seeking recovery under the bond pursuant to section 255.05, Florida Statutes (1979).

The portion of the bond which concerns us here states:

It is stipulated, understood and agreed that the payment bond provisions hereof are statutory in nature, strictly limited to the provisions of section 255.05, Florida Statutes, and all third parties claiming under the payment bond provisions hereof are limited to all procedures and requirements of section 255.05, Florida Statutes....

On March 19, 1981, Roberts mailed to McDonald a demand for arbitration pursuant to the following provision of the subcontract:

All claims by Subcontractor against General Contractor or (sic) whatever nature which involve this subcontract or the project shall be submitted to arbitration in the same manner as provided in the General Contract unless those provisions should prove invalid for arbitration in which event the arbitration provisions of the Florida Statutes shall prevail.

The general contract provides that (1) claims must be submitted to the Architect/Engineer within thirty days from the date they arise; (2) the claim must contain certain enumerated information, including a statement of ultimate facts relevant to the claim, a concise statement of the relevant contract provisions and applicable law, and a demand for the relief sought; (3) the decision of the Architect/Engineer is final unless a petition for arbitration is filed within twenty days thereafter; (4) this petition must also contain information similar to that in the claim.

On March 20, 1981, Roberts moved the trial court for an order compelling arbitration. Also on March 20, 1981, American moved to stay the proceedings against it until after the arbitration demanded by Roberts was completed.

On February 18, 1982, the trial court entered its order denying these motions. The order stated that the arbitration clause lacked mutuality in that it did not require disputes of the contractor to be arbitrated as it did the disputes of the subcontractor. The court further found that the language of the bond required the remedy provided for by statute and that the surety was not a party to the subcontract between Roberts and McDonald.

By this petition for writ of certiorari, Roberts and American seek to quash the order denying the motion to compel arbitration and to stay proceedings. A petition for common law certiorari is appropriate for review of an order denying a motion to compel arbitration. Paine, Webber, Jackson & Curtis, Inc. v. Lucas, 411 So.2d 1369 (Fla. 5th DCA 1982); Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980). A writ of common law certiorari should issue only upon a clear showing that the court below departed from the essential requirements of law resulting in petitioner's irreparable injury. United Cab Co., Inc. v. Yellow Cab Co. of Tampa, Inc., 310 So.2d 32 (Fla. 2d DCA 1975).

McDonald contends that the trial court properly found that the arbitration clause in the instant case was invalid. This argument is based on the fact that the arbitration clause only requires arbitration of claims by the sub-contractor against the general contractor but not of claims by the general contractor against the sub-contractor, the general contractor being free to litigate.

On the other hand, Roberts argues that the clause does exhibit a mutual obligation in that both parties were obligated to arbitrate, but that the subject matter was limited to claims by the subcontract against the general contractor. Apparently, no cases construing such a clause have been reported in Florida.

A New York case best illustrates the position of the parties in the instant action. In Deutsch v. Long Island Carpet Cleaning Co. Inc., 5 Misc.2d 684, 158 N.Y.S.2d 876 (1956), a claim was brought against a carpet cleaning company by a customer. The company argued that a receipt given the customer bound the customer to a condition on the reverse side which called for claims of the customer to be referred to arbitration.

The Deutsch majority held that the conditions on the reverse side of the receipt lacked mutuality of obligation because the customer's claims, but not the company's, were required to be arbitrated and the company at its option was free to litigate. The court found it important that the arbitration clause was unilaterally inserted with no specific reference to it.

In dissent, Justice Hecht found that mutual obligations were...