UATP Mgmt., LLC v. Barnes

• Decision Date: 16 April 2021
• Docket Number: Case No. 2D20-1301
• Parties: UATP MANAGEMENT, LLC, Appellant, v. Kimberly BARNES, individually and as natural guardian for E.J.P.R., a minor; and Carter & Dean, LLC d/b/a Urban Air Adventure Park, Appellees.
• Court: Florida District Court of Appeals

320 So.3d 851

UATP MANAGEMENT, LLC, Appellant,

v.Kimberly BARNES, individually and as natural guardian for E.J.P.R., a minor; and Carter & Dean, LLC d/b/a Urban Air Adventure Park, Appellees.

Case No. 2D20-1301

District Court of Appeal of Florida, Second District.

Opinion filed April 16, 2021.

Joyce A. Delgado and Michael D. Joblove of Genovese, Joblove and Battista, Miami, for Appellant.

Kristin A. Norse and Stuart C. Markman of Kynes, Markman & Felman, P.A., Tampa, for Appellee Kimberly Barnes.

No appearance for remaining Appellee.

LaROSE, Judge.

UATP Management, LLC, appeals the trial court's order denying its motion to compel arbitration of Kimberly Barnes' negligence lawsuit brought on behalf of her minor son. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iv) (authorizing appeals from nonfinal orders that determine a party's "entitlement ... to arbitration"). We affirm because UATP failed to prove that the parties agreed to arbitrate the dispute.¹ See City of Clearwater v. Sch. Bd. of Pinellas Cnty., 905 So. 2d 1051, 1057 (Fla. 2d DCA 2005) ("[T]he 'tipsy coachman' doctrine ... allows an appellate court to affirm a trial court decision that 'reaches the right result, but for the wrong reasons' so long as 'there is any basis which would support the judgment in the record.' " (quoting Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) )).

Background

UATP franchises indoor amusement parks featuring trampolines, climbing walls, and zip lines. Carter & Dean, LLC, a franchisee, operates one such park, Urban Air Adventure Park, in Lakeland.

An adult friend of Ms. Barnes, Jenny Fluty, took Ms. Barnes' son to Urban Air for a birthday party. In order to be admitted, Ms. Fluty signed a "Customer Release, Assumption of Risk, Waiver of Liability, and Indemnification Agreement." The document included an arbitration agreement and delegation provision requiring that

ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, BREACH THEREOF, THE PREMISES, ACTIVITIES, PROPERTY DAMAGE (REAL OR PERSONAL), PERSONAL INJURY (INCLUDING DEATH), OR THE SCOPE, ARBITRABILITY, OR VALIDITY OF THIS ARBITRATION AGREEMENT (DISPUTE) SHALL BE BROUGHT BY THE PARTIES IN THEIR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE CAPACITY, AND SETTLED BY BINDING ARBITRATION BEFORE A SINGLE ARBITRATOR ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA) PER ITS COMMERCIAL INDUSTRY ARBITRATION RULES IN EFFECT AT THE TIME THE DEMAND FOR ARBITRATION IS FILED.

The document also required Ms. Fluty to "represent[ ]" and to further "warrant and represent" that she had the "actual and implied authority to execute" the document on Ms. Barnes' behalf:

Authority. As the parent or legal guardian of the Child Participant(s), the undersigned represents to the Protected Parties [s]he has the legal capacity and authority to act for and on behalf of the Child Participant(s), and agrees to INDEMNIFY AND DEFEND THE PROTECTED PARTIES FROM AND AGAINST ALL CLAIMS OR LIABILITIES RESULTING FROM OR RELATING TO ANY INSUFFICIENCY OF THE UNDERSIGNED'S LEGAL CAPACITY OR AUTHORITY TO ACT FOR OR ON BEHALF OF THE CHILD PARTICIPANT(S) .

....

Authority. IF I AM SIGNING THIS DOCUMENT ON BEHALF OF MY SPOUSE, CHILD, FAMILY MEMBER, FRIEND, MINOR CHILD, OR OTHER PERSON, I EXPRESSLY WARRANT AND REPRESENT TO URBAN AIR THAT I HAVE SUCH PERSON'S ACTUAL AND IMPLIED AUTHORITY TO EXECUTE THIS AGREEMENT ON THEIR BEHALF, INCLUDING, BUT NOT LI[M]ITED TO, THE ARBITRATION CLAUSE, WAIVER AND RELEASE, INDEMNITY

AGREEMENT, AND LICENSE.²

Additionally, the document included a severability provision:

Misc. Terms. This Agreement constitutes the entire agreement between the Protected Parties and the Participant, supersedes all previous oral or written promises or agreements, and may only be modified in writing. Participant expressly agrees that this Agreement is intended to be as broad and inclusive as is permitted by the laws of the state in which the Premises is located and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.

Ms. Fluty electronically signed the document. Urban Air admitted Ms. Barnes' son to its facility. While riding a zipline-type attraction, he fell and suffered serious injuries.

Ms. Barnes sued UATP and Carter & Dean. They jointly moved to compel arbitration based upon the document signed by Ms. Fluty. The trial court conducted a hearing on the motion where the parties confined themselves to legal arguments.

UATP contended that because Ms. Fluty had "legal physical custody of the minor," she could sign the document containing the arbitration agreement on the child's behalf. UATP also noted that because Ms. Fluty signed the document on behalf of a "friend," she represented that she had the authority to sign the document. UATP claimed that the issue of Ms. Fluty's authority to sign the document was reserved for the arbitrator, not the trial court.

After the hearing, the parties submitted supplemental memoranda. For the first time, UATP argued that Ms. Fluty "acted within her authority as [Ms. Barnes'] apparent agent when she signed the [document]." In a footnote, Carter & Dean's memorandum identified as "[n]otabl[e]" the fact that Ms. Barnes had "previously signed the same [document] on behalf of the minor ... on 11/23/2018, 12/1/2018[,] and 2/18/019." Carter & Dean's footnote went on to point out that "another adult ... signed the same Contract on behalf of [Ms. Barnes' son] on 1/5/2019."

The trial court denied the motion to compel arbitration. The trial court observed that "[t]he parties ... agreed that an evidentiary hearing was unnecessary because the operative issue is whether Ms. Fluty, as an undisputed temporary lawful custodian 'in loco parentis ', had the legal authority to have executed the release containing the mandatory arbitration clause." The trial court pointed out that Florida law permits only a natural guardian to execute a limited release on behalf of a child. See § 744.301(3), Fla. Stat. (2019) ("[N]atural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity."). The trial court reasoned that there was "no statutory or other legal authority" permitting "expan[sion of] the authority of anyone other than a parent" to execute such a document containing an arbitration clause. Because Ms. Fluty is not the child's parent, she lacked "the legal authority to ... execute[ ] the release on behalf of [Ms. Barnes' son] or his actual parent(s)." Consequently, the trial court concluded that "no valid written agreement existed." UATP now appeals.³

Analysis

UATP argues that the trial court should have granted its motion. UATP tells us that the trial court's role was strictly limited to the "threshold issue of whether a valid agreement to arbitrate exists." Here, UATP contends, the trial court "erroneously relied on [ section] 744.301(3) ... and determined that the entire release was invalid because [it] was not signed by a parent." In doing so, UATP claims that the trial court usurped the arbitrator's role to resolve "any disputes regarding the validity of the underlying contract." UATP's arguments require disassembly.

I. Standard of Review & Rules of Construction

"Generally, '[w]e review an order granting or denying a motion to compel arbitration de novo.' " Chaikin v. Parker Waichman LLP, 253 So. 3d 640, 643 (Fla. 2d DCA 2017) (alteration in original) (quoting Roth v. Cohen, 941 So. 2d 496, 499 (Fla. 3d DCA 2006) ); see New Port Richey Med. Invs., LLC v. Stern ex rel. Petscher, 14 So. 3d 1084, 1086 (Fla. 2d DCA 2009) ("Our 'review of the [circuit] court's factual findings is limited to determining whether they are supported by competent, substantial evidence.' However, we use a de novo standard to review the circuit court's construction of the arbitration agreement and its application of the law to the facts found." (alteration in original) (quoting and citing Shotts v. OP Winter Haven, Inc., 988 So. 2d 639, 643 (Fla. 2d DCA 2008), quashed on other grounds by, 86 So. 3d 456 (Fla. 2011) )).

Arbitration provisions are contractual in nature; the construction of these provisions and the contracts in which they appear require contract interpretation. Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). In deciding whether a dispute should go to arbitration, a trial court looks to "three fundamental elements": "(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." Jackson v. Shakespeare Found., Inc., 108 So. 3d 587, 593 (Fla. 2013) ; accord Sherwood v. Slazinski, 162 So. 3d 229, 231 (Fla. 2d DCA 2015) ("To compel arbitration, the Sherwoods had to demonstrate: (1) that a valid written agreement to arbitrate existed, (2) that an arbitrable issue existed, and (3) that the right to arbitrate had not been waived." (citing MDC 6, LLC v. NRG Inv. Partners, LLC, 93 So. 3d 1145, 1146 (Fla. 2d DCA 2012) )); Green Tree Servicing, LLC v. McLeod, 15 So. 3d 682, 686 (Fla. 2d DCA 2009) ("In determining whether a dispute is subject to arbitration, courts consider at least three issues: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." (quoting Stacy David, Inc. v. Consuegra, 845 So. 2d 303, 306 (Fla. 2d DCA 2003) )); see also ManorCare Health Servs., Inc. v. Stiehl, 22 So. 3d 96, 99 (Fla. 2d DCA 2009) ("[T]he trial court's role in deciding whether to compel arbitration is limited to [ Seifert's ] three 'gateway' issues.")....