NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

REGINALD ANDERSON and MICHELLE ) 

ANDERSON, ) 

 ) 

 Appellants, ) 

 ) 

v. ) Case No. 2D16-314 

 ) 

TAYLOR MORRISON OF FLORIDA, INC., ) 

 ) 

 Appellee. ) 

___________________________________ ) 

Opinion filed May 31, 2017. 

Appeal Pursuant to Fla. R. App. P. 9.130 

from the Circuit Court for Hillsborough 

County; Cheryl K. Thomas, Judge. 

Matthew L. Wilson and Joshua E. Burnett 

of Burnett Wilson Reeder, Tampa, for 

Appellants. 

J. Carlton Mitchel and Neal A. Sivyer of 

Sivyer Barlow & Watson, P.A., Tampa, 

for Appellee. 

SILBERMAN, Judge. 

 Reginald and Michelle Anderson appeal a nonfinal order that stays 

proceedings in the trial court and compels arbitration in this action against their home 

builder, Taylor Morrison of Florida, Inc. (the Builder). Because the arbitration provision 

contained in the limited warranty (the Warranty) that the Builder provided to the 
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Andersons limits their statutory remedies, we conclude that the provision is void as 

against public policy. Therefore, we reverse the trial court's order and remand for 

further proceedings. Based on this disposition, we do not reach the remaining issue the 

Andersons raise of unconscionability. 

 In April 2009, the Andersons entered into a sales agreement with the 

Builder to purchase a home. The Andersons took possession of the home in November 

2009. In June 2015, the Andersons provided notice to the Builder pursuant to section 

558.004, Florida Statutes (2015), of construction defects based on building code 

violations. The notice referred to an attached engineering report and stated that the 

report found "construction defects associated with the application of the exterior stucco 

system to [the Andersons'] home." The report specified that the installation failed to 

meet the applicable building code provisions and that at multiple locations the cladding 

material had an inadequate thickness. 

 Unable to resolve the matter, the Andersons filed a three-count complaint 

in September 2015 alleging (1) violation of the Florida Building Code under section 

553.84, Florida Statutes (2009); (2) breach of contract; and (3) violation of the Florida 

Deceptive and Unfair Trade Practices Act (FDUTPA), §§ 501.201-.213, Fla. Stat. 

(2009). The Andersons alleged that the Builder violated the building code "by 

inadequately and improperly installing the stucco system on" their home. They claimed 

that the code violations were latent and not readily observable or known to them "until 

damages began to manifest themselves in the form of cracking to the exterior stucco 

years after construction ended." They also alleged that the Builder knew or should have 
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known that the building code was violated during the construction of the home and that 

the violations caused damages to them. 

 The Builder sought to compel arbitration on the basis of a provision in the 

Warranty provided with the purchase of the home. The Andersons argued that the 

arbitration provision was void as against public policy because it barred recovery of all 

statutory and contractual claims and that it was unconscionable. After a hearing, the 

trial court granted the motion to compel arbitration and found the arbitration provision 

valid. In doing so, the trial court appeared to implicitly reject the argument that the 

provision was void as against public policy. The Andersons now challenge the order 

compelling arbitration, focusing on the statutory remedy for the alleged building code 

violations. 

 The sales agreement between the parties states that the Builder will 

provide the Andersons with a warranty in place of all other warranties, including those 

arising under state law. After closing, the Builder's sole responsibility "is to cover items 

under warranty." The Builder provided a copy of the three-page Warranty with the sales 

agreement. The Andersons signed an acknowledgement that they had received the 

copy, reviewed it, and agreed to its terms and conditions. The Warranty includes a oneyear warranty providing that materials and workmanship in the home will be in 

compliance with the review criteria that are contained in "the Customer Care 

Guidelines," a separate document. The Warranty also includes a ten-year warranty for 

"Major Structural Issues" as defined in the document. 

 Based on the definition of major structural defect in the Warranty, which 

includes items such as foundation systems, load-bearing beams, and bearing walls, the 
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inadequate application of exterior stucco does not appear to fall within the coverage of 

the ten-year limited warranty. The one-year limited warranty addresses stucco finishes 

by reference to the review criteria, which provides that small cracks are common and 

that cracks that exceed one-eighth inch in width "are considered excessive" and are 

covered. The warranty does not otherwise address the proper application of stucco, 

including any required thickness. The complaint and notice allege violations of the 

building code based on improper application of stucco but do not specifically address 

whether the cracks in the home fall within the one-year warranty's definition of 

excessive. Rather, the Andersons asserted that the building code violations were not 

readily observable or known until the cracking appeared well after the one-year 

warranty expired. 

 With respect to arbitration, the Warranty contains an arbitration provision 

on the third page in a section titled Dispute Settlement. That section provides as 

follows: 

Dispute Settlement 

This Dispute Settlement provision sets forth the exclusive 

remedy for all disputes, claims or controversies arising out 

of, or in any manner related to, this Warranty or any alleged 

issues in your home or property. All disputes, claims or 

controversies which cannot be resolved between TM [the 

Builder] and you shall be submitted by you, not later than 

ninety (90) days after the expiration of the applicable 

warranty period, to the American Arbitration Association 

("Arbitrator") for resolution in accordance with the rules and 

regulations of the Arbitrator. The final decision of the 

Arbitrator shall be binding on all parties and shall include 

final decisions relating to enforcement of the terms and 

provisions of this Warranty. 
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In addition, at the top of page one a statement in all capitals advises that the Warranty 

contains a binding arbitration provision, that the consumer should read the document in 

its entirety, and that the document contains exclusions. 

 The Warranty also contains a lengthy disclaimer of liability provision 

before the dispute settlement section. At the end of the disclaimer provision it states as 

follows: 

BUYER AGREES THAT THIS LIMITED WARRANTY 

SHALL BE THE EXCLUSIVE REMEDY FOR ANY ISSUES 

IN DESIGN, MATERIALS OR WORKMANSHIP. BUYER 

HERBY [sic] ASSUMES THE RISK OF ALL OTHER LOSS 

RESULTING FROM SUCH ISSUES, INCLUDING ANY 

CLAIMS FOR PROPERTY DAMAGE OR PERSONAL 

INJURY, AND WAIVE [sic] ALL OTHER CLAIMS, 

WHETHER IN CONTRACT, TORT OR OTHERWISE. 

The Andersons contend that the arbitration provision, particularly when viewed in 

context with the limitation of remedies contained in the disclaimer provision, is void as 

against public policy because it prohibits any remedy, whether in tort, contract, or by 

statute, apart from items covered by the Warranty. 

 It is for the court, not the arbitrator, to determine whether a valid arbitration 

agreement exists. Shotts v. OP Winter Haven, Inc., 86 So. 3d 456, 459 (Fla. 2011). 

Our review of the validity of an arbitration agreement on the challenge that it violates 

public policy is a question of law subject to de novo review. Id. at 471. If an arbitration 

agreement violates public policy, then no valid agreement exists. Id. at 465; Global 

Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 398 (Fla. 2005) ("No valid agreement exists 

if the arbitration clause is unenforceable on public policy grounds."). 

 An arbitration agreement is unenforceable for public policy reasons when 

it defeats the remedial purpose of a statute or prohibits the plaintiff from obtaining 
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meaningful relief under the statutory scheme. S.D.S. Autos, Inc. v. Chrzanowski, 976 

So. 2d 600, 606 (Fla. 1st DCA 2007) (dealing with FDUTPA). "A remedial statute is one 

which confers or changes a remedy." Shotts, 86 So. 3d at 473 (quoting Blankfeld v. 

Richmond Health Care, Inc., 902 So. 2d 296, 298 (Fla. 4th DCA 2005)) (dealing with 

Nursing Home Residents' Rights Act). Section 553.84 is a remedial statute because it 

provides relief for a person whose home has been built in violation of the building code, 

"[n]othwithstanding any other remedies available." 

 The Builder contends that if the challenge is to the agreement as a whole 

but not specifically to the arbitration provision, the issue of the validity of the agreement 

is for the arbitrator to decide. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 

440, 444, 449 (2006) (stating that the borrowers contended that the contract as a whole 

was invalid based on a usurious finance charge); Kaplan v. Divosta Homes, L.P., 983 

So. 2d 1208, 1210 (Fla. 2d DCA 2008) (stating that the purchasers contended that the 

entire sales contract was void due to fraud); Hound Mounds, Inc. v. Finch, 153 So. 3d 

368, 371 (Fla. 4th DCA 2014) (stating that the franchisee alleged the invalidity of the 

entire franchise agreement and did not specifically attack the arbitration provision). 

Here, though, the Andersons do not challenge the Warranty as a whole or the sales 

agreement pursuant to which it was issued. Rather, they challenge the arbitration 

provision because while it "sets forth the exclusive remedy for all disputes" arising from 

or related to the Warranty and all issues with the home or property, it precludes their 

ability to pursue their statutory claim. 

 The Builder also cites to Pulte Home Corp. v. Bay at Cypress Creek 

Homeowners' Ass'n, 118 So. 3d 957, 958 (Fla. 2d DCA 2013), in which this court 
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recognized that statutory claims for violation of a building code can be subject to 

arbitration. But there the arbitration agreement applied to claims for breach of warranty 

and statutory claims. Id. 

 Here, the sales agreement specifies that the Builder's responsibility after 

closing is only as to items that are covered by the Warranty, and the disclaimer 

provision precludes any claims that are not covered by the Warranty, "whether in 

contract, tort or otherwise." The arbitration provision states that "[t]his Dispute 

Settlement provision sets forth the exclusive remedy for all disputes, claims or 

controversies arising out of" or related to the Warranty or issues with the home or 

property. The next sentence states that all unresolved "disputes, claims or 

controversies" must be submitted to arbitration. These provisions establish that the only 

remedy afforded to the Andersons through arbitration is for specified Warranty claims 

and that all other claims, including the Andersons' statutory claims, are precluded. 

 Yet the Builder insists that despite the language in the documents, a nonwarranty claim could be brought and must be arbitrated. We cannot agree. As this 

court stated in a case involving similar stucco claims, arbitration cannot be compelled 

where "the parties did not agree to arbitrate claims such as those presented here." 

Nunez v. Westfield Homes of Fla., Inc., 925 So. 2d 1108, 1109 (Fla. 2d DCA 2006). 

 In Nunez, the homeowners brought a claim alleging that the builder 

violated the building code by misapplying the exterior stucco. The builder moved to 

compel arbitration in accordance with its limited home warranty that required arbitration 

of unresolved warranty issues. Id. The court observed that the limited warranty did not 

obligate the builder to conform the home to the applicable building codes. Id. at 1110. 
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Moreover, while the warranty required the builder to repair exterior cracks in stucco that 

exceeded one-eighth of an inch in width, the homeowners' claim was not based on that 

condition. Id. The warranty in Nunez extended only to specified circumstances, not 

including building code violations, and the builder "chose to limit the scope of disputes 

subject to arbitration." Id. 

 Here, the language of the arbitration provision is seemingly broader than 

the arbitration language discussed in Nunez. The arbitration provision in the Warranty 

indicates that all issues related to the Warranty, the home, or the property are to be 

arbitrated. But read in context with other provisions in the Warranty, particularly the 

disclaimer provision, it is evident that the alleged building code violations cannot be 

remedied through arbitration because the claims are not covered by the Warranty and 

all non-Warranty claims are waived. As the Florida Supreme Court stated in Shotts, 

"any arbitration agreement that substantially diminishes or circumvents these [statutory] 

remedies stands in violation of the public policy of the State of Florida and is 

unenforceable." 86 So. 3d at 474. Simply put, the arbitration provision here effectively 

limits the Andersons' remedies to Warranty claims, as defined in the documents, and 

does not just substantially diminish the Andersons' statutory remedy for a violation of 

the building code but totally eliminates it. 

 Moreover, contrary to the Builder's argument this is not a situation where 

the challenge is to the validity of the limited warranty contract as a whole. The 

Andersons do not allege that the contract is usurious or was entered into based on 

fraud. See Buckeye Check Cashing, 546 U.S. at 444; Kaplan, 983 So. 2d at 1210. 
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Instead, they specifically challenged the arbitration provision because it precludes 

enforcement of a statutory remedy that is available to them. 

 Because the arbitration provision limited the Andersons to warranty claims 

and prevents their assertion of a statutory claim, the arbitration provision violates public 

policy and is unenforceable. See Shotts, 86 So. 3d at 474-75. Accordingly, we reverse 

the order compelling arbitration and remand to the trial court for further proceedings on 

the Andersons' complaint. 

 Reversed and remanded. 

KELLY and BLACK, JJ., Concur.