DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MUNICOMMERCE LLC,

Appellant,

v.

NAVIDOR, LTD. (Sic),

Appellee.

No. 4D15-169

[ February 3, 2016 ]

Appeal of a non-final order from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Lucy Chernow Brown, Judge; L.T. 

Case No. 2014CA010501XXXXMB.

Robin Bresky of the Law Offices of Robin Bresky, Boca Raton, for 

appellant.

Stephen M. Cohen, Palm Beach Gardens, for appellee.

TAYLOR, J.

In this commercial contract case, MuniCommerce LLC appeals from a 

non-final order compelling mediation and arbitration. We agree that the 

trial court failed to apply the plain language of the Independent Sales 

Agent Agreement between MuniCommerce and Appellee, Navidor, Ltd., in 

compelling mediation and arbitration. Navidor waived its contractual right 

to mediation and/or arbitration when MuniCommerce terminated the 

Agreement upon an alleged violation under Section 10(e) of the Agreement.

MuniCommerce is a limited liability company in Boca Raton that offers 

merchant accounts and payment solutions for merchants. Navidor, Ltd

was a non-exclusive, independent sales agent for MuniCommerce. Navidor 

solicited prospective merchants and performed other services on behalf of 

MuniCommerce pursuant to an Independent Sales Agent Agreement.

The Agreement between the parties included a provision for mediation 

and arbitration, except “in the case of termination by MuniCommerce, LLC 

under Section 10 of this agreement. Subsection 10(e) permitted 

MuniCommerce to terminate the agreement if it determined in good faith 
2

that the sales agent’s conduct under the agreement constituted unsound 

business practices.

Pursuant to Section 10(e) of the Agreement, MuniCommerce terminated 

the Agreement after determining that Navidor had engaged in unsound 

business practices. MuniCommerce subsequently filed a complaint 

against Navidor for breach of contract, equitable relief, injunction, unjust 

enrichment, tortious interference, and punitive damages. The complaint 

alleged that Navidor interfered with MuniCommerce’s client relationships, 

misused proprietary and confidential information in an attempt to start a 

new business, stole and registered several of appellant’s merchant 

accounts, depriving MuniCommerce of commissions and fees, and 

received commissions without deducting minimum fees.

Navidor moved to compel mediation and arbitration. It argued that the 

waiver provision in Section 17 of the Agreement is unenforceable and 

unconscionable because it allows MuniCommerce the unilateral ability to 

terminate the contract and avoid mediation and arbitration. Navidor 

pointed out in a memorandum of law that before MuniCommerce’s notice 

of termination on August 11, 2014, Navidor declared MuniCommerce was 

in breach of the agreement in a July 29, 2014 letter. The letter alleged a 

breach for nonpayment of equipment rental fees and improper charges for 

quota and ISO fees not authorized by the agreement. Navidor contended 

that the waiver provision did not apply because Navidor claimed a breach 

first. It argued that the waiver provision was unconscionable because it 

allowed MuniCommerce to opt out of mediation and arbitration after 

Navidor declared a breach, and without giving Navidor a chance to

establish that termination of the contract was unfounded.

The trial court concluded that the waiver was not enforceable because 

it would allow MuniCommerce to avoid arbitration any time Navidor 

declared a breach, and the waiver did not apply if Navidor alleged a breach 

first.

Construction of an arbitration provision is reviewed de novo. Bari 

Builders, Inc. v. Hovstone Props. Fla., LLC, 155 So. 3d 1160, 1162 (Fla. 4th 

DCA 2014).

By its plain terms, the mediation and arbitration provision does not 

apply to MuniCommerce’s termination for cause under subsection 10(e) of 

the contract. There was no agreement to mediate or arbitrate these 

grounds for termination.

Navidor’s prior letter to MuniCommerce was not a termination of the 
3

contract, and there was no evidence that MuniCommerce’s grounds for 

termination were pretextual. There was no basis for the court to find that 

the waiver of arbitration and mediation did not apply if a sales agent 

alleged a breach by MuniCommerce before MuniCommerce terminated the 

contract. The court could not rewrite the contract.

For the waiver to be unconscionable, Navidor had to show at least a 

modicum of both procedural and substantive unconscionability. See 

Basulto v. Hialeah Auto., 141 So. 3d 1145, 1159 (Fla. 2014) (quoting with 

approval VoiceStream Wireless Corp. v. U.S. Commc'ns, Inc., 912 So. 2d 34, 

39 (Fla. 4th DCA 2005)).

The waiver in the Independent Sales Agent Agreement does not allow 

MuniCommerce to terminate for any reason to unilaterally avoid mediation 

and arbitration. And the waiver is not so outrageously unfair that it is 

substantively unconscionable. See Woebse v. Health Care & Ret. Corp. of 

Am., 977 So. 2d 630, 632 (Fla. 2d DCA 2008) (discussing substantive 

unconscionability).

We therefore reverse the order compelling mediation and arbitration.

Reversed.

CIKLIN, C.J., and GROSS, J. concur.

* * *

Not final until disposition of timely filed motion for rehearing.