FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-4896

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CEFCO d/b/a WHICH WICH 

SUPERIOR SANDWICHES,

Appellant,

v.

JAIME ODOM,

Appellee.

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On appeal from the Circuit Court for Santa Rosa County.

David Rimmer, Judge.

September 9, 2019

LEWIS, J.

Appellant, CEFCO d/b/a Which Wich Superior Sandwiches,

appeals the trial court’s order denying its motion to compel 

arbitration and motion to stay proceedings and, in the alternative, 

petitions for a writ of certiorari. For the reasons that follow, we 

affirm the trial court’s ruling and deny the petition.

BACKGROUND

Appellee, Jaime Odom, filed an amended complaint against 

Appellant, alleging that she was hired as a marketing manager for 

Appellant’s Milton, Florida store and worked there from around 

January 30 to April 29, 2017, during which time she was sexually 

harassed, retaliated against for complaining about the harassment 
2

and other unlawful conduct, and not paid the wages she earned. 

Appellee filed interrogatories and a request for production of 

documents. 

Appellant, in turn, filed a motion to compel arbitration and 

motion to stay proceedings, in which it argued that Appellee’s 

claims must be resolved through arbitration pursuant to the 

Mutual Arbitration Agreement (“Agreement”) she entered into as 

a requirement of her employment and sought a stay of all

proceedings until the arbitration proceedings were completed. 

Appellant attached to its motion a copy of the Agreement, which 

sets forth the disputes and claims to be resolved by binding 

arbitration, specifies that it is governed by the Federal Arbitration 

Act (“FAA”), and provides that the applicant “will electronically 

sign this agreement as part of the onboarding process” and “by 

checking the confirmation box and clicking the ‘next’ button,” the 

applicant acknowledges reading and understanding the 

Agreement and agrees to its terms and to the use of an electronic 

signature. The Agreement does not contain a confirmation box, a 

date, Appellee’s name, or her signature. Appellant filed a 

supplemental motion to stay proceedings including discovery 

pending resolution of the motion to compel arbitration.

In her memorandum in opposition to the motion to compel 

arbitration, Appellee argued that the motion must be denied 

because Appellant failed to establish the existence of a valid 

written agreement to arbitrate. Appellee submitted her affidavit, 

attesting that she was hired by General Manager Justin Croxton

and did not go through an on-boarding process, she was never 

presented with the Agreement and did not see it until Appellant 

filed its motion, she never entered into the Agreement or agreed to 

its terms, and “[i]f anyone purportedly entered into the agreement 

on [her] behalf, he or she did so without [her] knowledge or 

consent.” 

Appellant filed a reply, contending as follows: Michael 

Raisbeck serves as Appellant’s Vice President of Human 

Resources, Custodian of Employment Records and Related 

Documents, and Systems Administrator for the PeopleMatter 

Applicant Tracking System, and he provided an affidavit 

“outlining [Appellant’s] employment and application procedures as 
3

applied at the time of [Appellee’s] application for employment.” In 

order to apply for a position with Appellant, one must complete an 

application electronically. On January 22, 2017, Appellee 

electronically signed Appellant’s E-Signature Disclosures & 

Consent, thereby agreeing to electronically receive, access, review, 

and/or sign materials related to her employment application. 

When a store manager decides to hire an applicant, an email is 

sent to the prospective employee with a conditional offer of 

employment and a link that takes him or her “into the system to 

complete additional required On-Boarding hiring documents.” The 

prospective employee must enter a unique username and 

password, which no one within the company can access unless the 

employee shares it. Upon signing in, the prospective employee is 

taken to the on-boarding, where he or she must view and complete 

eighteen items, including the Agreement. The person must click a 

link to download each document and check the box to consent, 

authorize, and confirm understanding thereof before clicking 

“Next” to move onto the next item. On January 31, 2017, Appellee 

completed the eighteen on-boarding items required for 

employment, including the Agreement. 

In his affidavit, Raisbeck explained Appellant’s application 

and on-boarding process as Appellant did in its reply. Raisbeck 

attested in part that to the best of his knowledge, Appellee 

completed the on-boarding items on January 31, 2017, and the 

task log shows she completed the Agreement. 

Appellee filed a second affidavit, attesting as follows: Appellee 

never met or interacted with Raisbeck and, to her knowledge, he 

had no involvement in her employment. Raisbeck was not at the 

store at any time Appellee was there; thus, he has no personal 

knowledge about her hiring and whether she received the alleged 

documents. Prior to applying, Appellee knew the store’s manager, 

Croxton, and he offered her a job. Appellee then applied online

from the store while Croxton was sitting next to her. A few days 

later, Appellee received a conditional job offer with a start date of 

January 30, 2017. When Appellee arrived on January 30th, 

Croxton asked her for information such as her social security 

number, driver’s license, voided check for direct deposit, and tax 

form and said he would “take it from there,” and she “was promptly 

then put to work.” Appellee did not go through any on-boarding
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process and was not informed about any of the various forms 

Raisbeck referred to in his affidavit. Croxton later told Appellee 

that he had established a password and user ID for her, which she 

never used. Croxton may have entered the on-boarding 

information without Appellee’s knowledge, but she did not 

authorize or consent to his doing so. Appellee “never saw or agreed 

to anything regarding arbitration.” 

The trial court entered an order on Appellant’s motion to 

compel arbitration and motion to stay proceedings, whereby it 

denied the motion without prejudice and gave Appellant twenty 

days to respond to the complaint and outstanding discovery 

requests. The trial court stated that by responding to the 

complaint and discovery requests, Appellant “is not waving its 

ability to file a motion to compel arbitration at a later date” and 

“[s]hould [Appellant] uncover competent evidence in the course of 

discovery that [Appellee] executed a purported agreement to 

arbitrate, [it] may promptly file another motion to compel 

arbitration should it so desire.” This appeal and, in the 

alternative, petition for writ of certiorari followed.

ANALYSIS

We review a trial court’s factual findings for competent, 

substantial evidence, but review its construction of an arbitration 

agreement and its application of the law to the facts de novo. 

Gainesville Health Care Ctr., Inc. v. Weston, 857 So. 2d 278, 283 

(Fla. 1st DCA 2003); see also Kendall Imports, LLC v. Diaz, 215 So. 

3d 95, 98 (Fla. 3d DCA 2017). Under the FAA, as well as the 

Florida Arbitration Code, there are three elements for courts to 

consider in ruling on a motion to compel arbitration: (1) whether a 

valid written agreement to arbitrate exists, (2) whether an 

arbitrable issue exists, and (3) whether the right to arbitrate was 

waived. Gainesville Health Care Ctr., Inc., 857 So. 2d at 282 (citing 

Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999)); see also 

Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 

(Fla. 2005) (explaining the same and noting that arbitration 

provisions are generally favored). 

In this case, only the first element is at issue, i.e., whether a 

valid written agreement to arbitrate exists. The Agreement 

expressly states that the FAA applies to it. 
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The FAA provides:

A written provision in . . . a contract evidencing a 

transaction involving commerce to settle by arbitration a 

controversy thereafter arising out of such contract . . . 

shall be valid, irrevocable, and enforceable, save upon 

such grounds as exist at law or in equity for the 

revocation of any contract.

9 U.S.C. § 2 (2017). It further provides:

The court shall hear the parties, and upon being satisfied 

that the making of the agreement for arbitration or the 

failure to comply therewith is not in issue, the court shall 

make an order directing the parties to proceed to 

arbitration in accordance with the terms of the 

agreement. . . . If the making of the arbitration agreement 

or the failure, neglect, or refusal to perform the same be 

in issue, the court shall proceed summarily to the trial 

thereof. If no jury trial be demanded by the party alleged 

to be in default, or if the matter in dispute is within 

admiralty jurisdiction, the court shall hear and 

determine such issue. 

9 U.S.C. § 4 (2017).

It is a well-established principle that one who signs a contract 

is generally bound by it, and a party to a written contract cannot 

defend against its enforcement on the sole ground that he or she 

signed it without reading it. Kendall Imports, LLC, 215 So. 3d at 

100. Electronic signatures are valid. Haire v. Fla. Dep’t of Agric. 

& Consumer Servs., 870 So. 2d 774, 789 (Fla. 2004). In fact, no 

signature is required to satisfy the FAA’s written agreement 

requirement. BDO Seidman, LLP v. Bee, 970 So. 2d 869, 874 (Fla. 

4th DCA 2007). Similarly, under state law contract principles, a 

contract may be binding on a party who did not sign it where 

assent can be shown by that party’s acts or performance. Id. 

“However, ‘there must be sufficient proof that the parties actually 

agreed to arbitrate.’” Id. (citation omitted). 

“[G]enerally applicable contract defenses under state law, 

such as fraud, duress, or unconscionability, may be applied to 
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invalidate arbitration agreements without contravening section 2 

of the FAA.” Glob. Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 397 

(Fla. 2005); see also Gainesville Health Care Ctr., Inc., 857 So. 2d 

at 283 (“Both the Federal Arbitration Act and the Florida 

Arbitration Code permit a challenge to the validity of an 

arbitration provision based upon any state-law contract defense.”); 

S.D.S. Autos, Inc. v. Chrzanowski, 976 So. 2d 600, 605 (Fla. 1st 

DCA 2007) (same). 

A party may not be forced to submit to arbitration absent a 

valid written agreement to arbitrate, and the applicability of the 

FAA hinges on whether such an agreement exists. HHH Motors, 

LLP v. Holt, 152 So. 3d 745, 747 (Fla. 1st DCA 2014). As such, the 

threshold inquiry is whether an agreement to arbitrate was 

formed. Id. “The determination of whether a contract exists is 

governed by state law . . . .” Id.; see also Larsen v. Citibank FSB, 

871 F.3d 1295, 1302-03 (11th Cir. 2017) (stating that issues 

relating to the formation of an arbitration agreement must be 

resolved as a matter of state contract law); Basulto v. Hialeah 

Auto., 141 So. 3d 1145, 1152-56 (Fla. 2014) (explaining that “the 

threshold requirement [is] that the trial court be ‘satisfied with the 

making of the agreement for arbitration’”). 

The party seeking enforcement of an agreement has the 

burden of establishing that an enforceable agreement exists. See 

Palm Garden of Healthcare Holdings, LLC v. Haydu, 209 So. 3d 

636, 638 (Fla. 5th DCA 2017) (“Appellants, as the proponents of 

arbitration, have the burden of establishing an enforceable written 

agreement to arbitrate.”); Vance v. Thomas, 829 So. 2d 319, 320 

(Fla. 5th DCA 2002) (stating that the party asserting a settlement 

agreement has the burden of establishing it and citing for that 

proposition Williams v. Ingram, 605 So. 2d 890 (Fla. 1st DCA 

1992), where we noted that “[s]ettlement agreements are to be 

interpreted and governed by the law of contracts”). To prove the 

existence of a contract under Florida law, the party seeking to 

enforce the contract must prove offer, acceptance, consideration, 

and sufficient specification of essential terms. St. Joe Corp. v. 

McIver, 875 So. 2d 375, 381 (Fla. 2004).

In Steve Owren, Inc. v. Connolly, 877 So. 2d 918, 919-20 (Fla. 

4th DCA 2004), the Fourth District affirmed the trial court’s denial 
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of the appellant’s motion to compel arbitration upon finding that 

the appellant failed to carry its burden of proving the existence of 

an enforceable written agreement to arbitrate. The appellee 

unequivocally testified that she never signed the agreement or

agreed to arbitration, and the appellant’s “contrary evidence was 

basically habit and practice.” Id.

Similarly, in Bazemore v. Jefferson Capital Systems, LLC, 827 

F.3d 1325, 1327 (11th Cir. 2016), the Eleventh Circuit affirmed the 

denial of the defendant/appellant’s motion to compel arbitration 

upon holding that the defendant failed to establish the existence 

of an agreement to arbitrate. The purported agreement was 

governed by the FAA, and the issue of whether the agreement 

existed was governed by Georgia contract law, which required the 

proponent of the contract to prove its existence. Id. at 1329-30. 

The defendant tried to meet its burden of proof by offering the 

declaration of an employee of the company that maintained 

records on its behalf, who conclusorily stated that the 

plaintiff/appellee accepted the terms of the agreement, but did not 

assert any personal knowledge or produce documents in support, 

and merely explained what “would have been” done pursuant to 

the company’s ordinary practice. Id. at 1327-28. The Eleventh 

Circuit found that the employee’s declaration was “woefully 

inadequate” and the defendant’s motion should have been denied 

because the defendant did not present any competent evidence 

that the plaintiff entered into an arbitration agreement. Id. at 

1330-32. 

By contrast, in Buckhalter v. J.C. Penney Corporation, Inc., 

3:11-CV-752-CWR-FKB, 2012 WL 4468455, at *1-2 (S.D. Miss. 

Sept. 25, 2012), a case upon which Appellant relies, the district 

court granted the defendant’s motion to compel arbitration and 

applied Mississippi law, under which the burden of proving a valid 

contract also rested with the defendant as the party moving to 

compel arbitration pursuant to an alleged arbitration agreement 

between the parties. The plaintiff denied in his pleading that the 

signature on the arbitration agreement was his, but he offered no 

affidavit or other evidence in support of his assertion, whereas the 

defendant provided substantial evidence to the contrary. Id. at *2. 

The defendant presented the declaration of its director, who 

explained what each new employee must do once hired, which 
8

included the creation of a confidential password and then the 

completion of an on-boarding process during which he has to 

review, complete, and/or electronically sign forms that include the 

arbitration agreement. Id. “Although [the director’s] declaration 

is detailed, it only attests to [the defendant’s] general practice and 

does not provide testimony of direct knowledge of what happened 

in this particular case.” Id. The defendant also offered the 

affidavit of the manager of the store where the plaintiff was

employed concerning the circumstances surrounding the plaintiff’s 

hiring and on-boarding process. Id. at *3. The manager attested 

that he hired the plaintiff and was present when the plaintiff 

began employment, the plaintiff created a password and did not 

share it with him, the plaintiff electronically signed various 

documents that included the arbitration agreement, and he knew 

the plaintiff completed and signed the forms because he had to 

complete one of them in conjunction with the plaintiff. Id. In

response to that evidence, the plaintiff “does not dispute or offer 

evidence that he did not create a password, nor does he deny that 

he used that password to review and electronically sign the other 

documents.” Id. “Moreover, he has not provided any evidence that 

others had access to his password and used it to retrieve his 

information and affix his electronic signature.” Id. “Without 

evidence to the contrary, the Court must find that [the plaintiff] 

assented to the arbitration agreement and that a valid arbitration 

agreement existed between the parties.” Id.

Moreover, in Bazemore, the Eleventh Circuit rejected the 

defendant’s argument that pursuant to section 4 of the FAA, the 

case should be remanded for trial upon concluding that the 

defendant failed to prove the existence of the alleged arbitration 

agreement. 827 F.3d at 1333. “[Defendant] would have us hold, 

essentially, that a party cannot lose a motion to compel arbitration 

for failure to prove that an arbitration agreement exists without 

being afforded a second bite at the apple—an opportunity to prove 

the agreement’s existence at trial. This we decline to do.” Id. In 

considering the “standard for determining whether a trial is 

necessary to determine the existence of an arbitration agreement,” 

the Eleventh Circuit looked to the decisions of other circuit courts 

and concluded:
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We agree with our sister circuits that a summary 

judgment-like standard is appropriate and hold that a 

district court may conclude as a matter of law that parties 

did or did not enter into an arbitration agreement only if 

“there is no genuine dispute as to any material fact” 

concerning the formation of such an agreement. Fed. R. 

Civ. P. 56(a). A dispute is not “‘genuine’ if it is 

unsupported by the evidence or is created by evidence 

that is ‘merely colorable’ or ‘not significantly probative.’” 

Baloco v. Drummond Co., 767 F.3d 1229, 1246 (11th Cir. 

2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 249–50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 

(1986)), cert. denied, ––– U.S. ––––, 136 S. Ct. 410, 193 

L.Ed.2d 317 (2015). “This court has consistently held that 

conclusory allegations without specific supporting facts 

have no probative value” for a party resisting summary 

judgment. See Leigh v. Warner Bros., 212 F.3d 1210, 1217 

(11th Cir. 2000) (quotation marks omitted).

Id. (concluding that the defendant’s motion had to be denied as a 

matter of law without trial because the defendant offered no 

competent evidence to demonstrate the existence of a genuine 

issue of material fact regarding the existence of an arbitration 

agreement, and noting that while the plaintiff “provided almost no 

evidentiary support for her contention that she never entered into 

an arbitration agreement,” and did not submit an affidavit, it was 

the defendant’s burden to prove the existence of the contract it 

sought to enforce and the entry of summary judgment is proper 

against a party who fails to establish the existence of an essential 

element on which it will bear the burden of proof at trial).

Here, Appellant challenges the trial court’s denial of its 

motion to compel arbitration. Appellant correctly asserts that one 

who signs a contract is presumed to know and agree to its terms 

and that an electronic signature is valid, but those arguments

overlook the issue at hand, which is whether Appellee entered into 

the Agreement. Appellant contends it presented ample proof that 

Appellee received, reviewed, and signed the Agreement, whereas 

she provided only a self-serving affidavit and did not dispute her 

creation of a password and completion of the on-boarding process 

or claim that someone had access to her password and used it to 
10

complete the on-boarding process for her. Appellant’s arguments 

are refuted by the record. 

Appellant filed a motion to compel arbitration, arguing that 

the parties agreed to arbitration by entering into the Agreement. 

Notably, the Agreement does not contain a date or any reference 

to Appellee. In opposition to the motion, Appellee filed her sworn 

affidavit, attesting that she had never seen, signed, or agreed to 

the terms of the Agreement and that anyone who may have done 

so on her behalf did it without her knowledge and consent. 

Appellant, in turn, filed the affidavit of Raisbeck, who did not claim 

to have personal knowledge of the hiring and employment process 

Appellee actually underwent and could speak only of Appellant’s 

ordinary practice. As such, Raisbeck’s affidavit was not competent 

evidence that Appellee entered into the Agreement. See Steve 

Owren, Inc., 877 So. 2d at 919-20; Bazemore, 827 F.3d at 1327-28; 

Buckhalter, 2012 WL 4468455, at *2. The documentary evidence 

Appellant presented tended to show that the on-boarding process 

was began by or on behalf of Appellee and included the completion 

of the Agreement. However, Appellee filed a second affidavit, 

explaining the hiring and employment process she actually 

underwent. Appellee attested that she provided certain personal 

information to Croxton, the store manager who hired her, and he 

said he would “take it from there” and later told her that he had 

created a user ID and password for her. Appellee swore that she 

never used that log-in information, did not have any knowledge of 

or participation in any on-boarding process, did not have 

knowledge of Croxton completing the on-boarding process and did 

not authorize or consent to his doing so, and never saw or agreed 

to anything regarding arbitration. As such, Appellee clearly 

disputed her creation of a password and completion of the onboarding process. Cf. Buckhalter, 2012 WL 4468455, at *2. 

Significantly, Appellant made no assertions much less offer 

evidence to dispute Appellee’s claims. Contrary to Appellant’s

argument, the burden of proof rested with it; as the party seeking 

to enforce the Agreement, it was Appellant’s burden to establish 

its existence. Appellant failed to meet that burden.

For the first time in its reply brief, Appellant asserts that the 

trial court should have conducted a full evidentiary hearing if 

Appellee’s affidavit established a substantial dispute about the 
11

making of the Agreement. In so arguing, Appellant relies on an 

inapplicable standard and overlooks that the record evinces no 

request for such a hearing by either party. While Appellant claims 

it made an ore tenus request for an evidentiary hearing at the 

conclusion of the motion hearing, it failed to file a transcript of the 

hearing in support. Even if Appellant’s assertion is correct and its 

request was timely, it waived the argument by raising it for the 

first time in its reply brief. See Land v. Fla. Dep’t of Corr., 181 So. 

3d 1252, 1254 (Fla. 1st DCA 2015) (“It is well-settled that that ‘[a]n 

issue not raised in an initial brief is deemed abandoned and may 

not be raised for the first time in a reply brief.’” (citation omitted)). 

Furthermore, the fact remains that Appellant offered no 

competent evidence to create a genuine issue of material fact 

regarding the existence of the Agreement between the parties so 

as to warrant a trial on the matter. See Bazemore, 827 F.3d at 

1333. In fact, the trial court denied Appellant’s motion without 

prejudice, allowing it to file another motion should it “uncover 

competent evidence.” Appellant failed to come forward with any 

evidence in response to Appellee’s second affidavit or following the 

trial court’s ruling, suggesting that no such evidence exists and a 

trial on the matter would be futile. Appellant is not entitled to a 

second bite of the apple. See id. Therefore, the trial court did not 

abuse its discretion in denying Appellant’s motion to compel 

arbitration.

In the alternative, Appellant petitions for a writ of certiorari 

based on the trial court’s denial of its motion to stay proceedings. 

Appellant asserts that it will be irreparably harmed by being 

required to engage in discovery not limited in scope to matters 

related to arbitration while the issue of arbitrability is still 

pending and that the trial court departed from the essential 

requirements of law in requiring it to do so. Appellant’s argument 

is without merit because it is based on the incorrect assertion that 

a final decision on the issue of arbitrability has not been made and 

the issue is still pending in the trial court. The trial court 

unequivocally denied Appellant’s motion to compel arbitration, 

and merely did so without prejudice. Contrary to Appellant’s 

assertion, the trial court did not reserve ruling on the issue of 

arbitrability. No motion to compel arbitration or ruling thereon 

remained pending in the trial court. Thus, Appellant is not 

entitled to a writ of certiorari. 
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CONCLUSION

For the foregoing reasons, we affirm the trial court’s order on

Appellant’s motion to compel arbitration and motion to stay 

proceedings and deny the certiorari petition.

AFFIRMED.

B.L. THOMAS and ROBERTS, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Scott A. Cole and Lissette Gonzalez of Cole, Scott & Kissane, P.A., 

Miami, for Appellant.

Bradley S. Odom and Richard D. Barlow of Odom & Barlow, P.A., 

Pensacola, for Appellee.