Ronbeck Const. Co., Inc. v. Savanna Club Corp.

• Decision Date: 08 January 1992
• Docket Number: No. 91-0912,91-0912
• Citation: 592 So.2d 344
• Parties: RONBECK CONSTRUCTION CO., INC., and Ronald Ferschke, Appellants, v. SAVANNA CLUB CORPORATION and Savanna Club Realty Inc., By and Through its Trustees, Former Directors, Joyce Bronson, Thomas Checca and Deborah Scott; and H.K. "Buddy" Montgomery, Appellees. 592 So.2d 344, 17 Fla. L. Week. D214
• Court: Florida District Court of Appeals

Page 344

592 So.2d 344

RONBECK CONSTRUCTION CO., INC., and Ronald Ferschke, Appellants, v. SAVANNA CLUB CORPORATION and Savanna Club Realty Inc., By and Through its Trustees, Former Directors, Joyce Bronson, Thomas Checca and Deborah Scott; and H.K. "Buddy" Montgomery, Appellees.

No. 91-0912.

592 So.2d 344, 17 Fla. L. Week. D214

District Court of Appeal of Florida Fourth District.

Jan. 8, 1992.

Franklin L. Hileman, Miami, for appellants.

Leonard K. Samuels of Berger & Shapiro, P.A., Fort Lauderdale, for appellees.

FARMER, Judge.

This is a dispute between an owner and a general contractor over money due under a construction contract. In April 1987 the parties entered into a contract for the construction of recreational facilities, using the standard AIA form A107 (Sept. 1970 ed.). Because of a relationship between the parties, their contract expressly provided that neither was to make a profit in the transaction. The initial contract price was $400,000.

Two months later, the parties also orally agreed that Ronbeck would set up manufactured housing units at the same development and would construct the "amenities packages" for these units. No price was apparently specified for this oral agreement, except that again no profit would be earned by either party. Later on, several change orders adding more than $175,000 to the initial price were made under the original written contract in December 1987 and January 1988.

Then in May 1988 the parties signed a written agreement reciting that there were unpaid supplier and subcontractor invoices exceeding $51,000 incurred under the original contract as modified and changed; that the owner had paid or would pay these suppliers and subcontractors; that the owner had already paid other lumber suppliers; that as a result of these payments Ronbeck owed the owner $21,558.89, which Ronbeck agreed to pay in installments; that Ronbeck would complete the construction described in the original contract; and that upon payment in full Ronbeck would get a release from the owner.

In its lawsuit against Ronbeck, the owner alleges that the May oral agreement was procured by misrepresentations by Ronbeck, and that Ronbeck concealed profits from the owner that Ronbeck had improperly made in the transaction by duplicative billing under the written contract and the later oral agreement. It sought rescission of the May 1988 agreement, rescission of the original contract, damages for breach of all agreements, and damages for fraud, conversion, civil theft and conspiracy. In addition to Ronbeck, the owner named the corporate president of Ronbeck and one of its employees. Neither of these additional defendants was a party to the written construction contract or, for that matter, any of the later agreements.

The original contract contains article 15, which says in full that:

All claims or disputes arising out of this Contract or the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. Notice of the demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association and shall be made within a reasonable time after the dispute has arisen. [e.s.]

At first the trial court ordered arbitration of those claims arising out of the original contract, but allowed the claims relating to the oral agreement to be resolved in court. Later the owner amended its complaint, and a successor trial judge changed the ruling on arbitration. Specifically he held:

1. Defendant's Motion To Stay and Compel Arbitration of all counts set forth in Plaintiffs' Second Amended Complaint is denied. The basis of [sic-is?] 4 Fla.Jur.2d, Arbitration and Award, Sec. 7 (1978).

2. This Court's earlier Order * * * is rescinded due to allegations of alleged criminal activity set forth in Plaintiffs' Second Amended Complaint.

3. This case is specially set for a non-jury trial for the week of July 9, 1991.

It is that non-final order which Ronbeck asks us to review under rule 9.130(a)(3)(C)(v).

Section 682.02, Florida Statutes (1989), provides:

Two or more parties may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. Such agreement or provision shall be valid, enforceable, and irrevocable without regard to the justiciable character of the controversy; provided that this act shall not apply to any such agreement or provision to arbitrate in which it is stipulated that this law shall not apply or to any arbitration award thereunder.

Our supreme court pointed out in Roe v. Amica Mutual Insurance Co., 533 So.2d 279 (Fla.1988), that "arbitration is a favored means of dispute resolution and courts indulge every reasonable presumption to uphold proceedings resulting in an award." 533 So.2d at 281. See also Intracoastal Ventures Corp. v. Safeco Ins. Co. of America, 540 So.2d 162 (Fla. 4th DCA 1989).

As the federal courts do with comparable provisions under the United States Arbitration Act, 9 U.S.C. sections 1-14 (1982), we too should resolve all doubts about the scope of an arbitration agreement as well as any questions about waivers thereof in favor of arbitration, rather than against it. See Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). We construed a nearly identical provision in William Passalacqua Builders Inc. v. Mayfair House Association Inc., 395 So.2d 1171 (Fla. 4th DCA 1981), to require arbitration of claims indistinguishable from some of the claims presented in this suit.

In this case, the agreement was to arbitrate "all claims or disputes arising out of this Contract or the breach thereof." No interpretation is needed for "all claims or disputes", as plainly the claim for damages under the original contract fits within those words. And we construe the term "or the breach thereof" to cover even a dispute relating to the May 1988 agreement, for it arose from the original contract and it surely encompassed an alleged "breach thereof". Moreover, all of the owner's fraud, conversion, conspiracy and civil theft damages claims against Ronbeck arose from the original contract, because the basis for these alleged claims lies in obligations accruing or resulting from it. Hence these claims come within the arbitration provision.

And even the owner's claim for rescission of the original contract is subject to the arbitration provision, because the alleged basis for rescission does not include any allegation that the arbitration provision itself was fraudulently induced. Indeed all of the grounds for the fraud claims are predicated on events dealing with performance under the original contract, rather than its making.

There is no doubt that Florida arbitration law makes an arbitration provision in a contract separate from the rest of the contract. Section 682.03, Florida Statutes (1989), contains...