IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

REUNION WEST DEVELOPMENT PARTNERS, LLLP,

Appellant, 

v. Case No. 5D16-3665

AFRANIO SANFORD GUIMARAES, JR.

AND SANDRA FALCAO AURELIANO S. GUIMARAES,

Appellees.

________________________________/

Opinion filed July 7, 2017

Non-Final Appeal from the 

Circuit Court for Osceola 

County,

Kevin B. Weiss, Judge.

Jose G. Sepulveda and Veronica L. De 

Zayas, of Stearns Weaver Miller Weissler 

Alhadeff & Sitterson, P.A., Miami, for 

Appellant.

Scott R. Rost, of South Milhausen, P.A., 

Orlando, for Appellees.

PALMER, J.

Reunion West Development Partners (Reunion) appeals the order entered by the 

trial court denying its Motion to Compel Arbitration.1 We reverse.

 

1 Appellate jurisdiction is proper pursuant to rule 9.130 of the Florida Rules of 

Appellate Procedure.
2

The Guimaraes (the buyers) filed a breach of contract action against Reunion. The 

complaint alleged a claim of breach of a Home Purchase Agreement and a claim for 

declaratory relief regarding the arbitration provision contained in said agreement. The 

arbitration provision provides, in relevant part: 

ARBITRATION. BY ENTERING INTO THIS AGREEMENT, 

BUYER AND SELLER AGREE THAT ANY CONTROVERSY, 

CLAIM OR DISPUTE, ARISING OUT OF OR RELATED TO 

THIS AGREEMENT OR BUYER’S PURCHASE OF THE 

PROPERTY OR ANY RIGHTS AND OBLIGATIONS 

BETWEEN THE PARTIES WILL BE RESOLVED BY 

BINDING ARBITRATION PURSUANT TO THE FEDERAL 

ARBITRATION ACT (TITLE 9 OF THE UNITED STATES 

CODE). THE ARBITRATION SHALL BE CONDUCTED IN 

ACCORDANCE WITH THE CONSTRUCTION INDUSTRY 

ARBITRATION RULES OF THE AMERICAN ARBITRATION 

ASSOCIATION (“AAA”) AND THE TERMS OF THIS 

AGREEMENT. 

Importantly, the Construction Industry Arbitration Rules of the American Arbitration 

Association authorizes the arbitrator to rule on the arbitrability of a dispute: 

R-9. Jurisdiction

(a) The arbitrator shall have the power to rule on his or her 

own jurisdiction, including any objections with respect to the 

existence, scope or validity of the arbitration agreement. 

The buyers filed a Motion to Determine Arbitrability, and Reunion responded by 

filing a Motion to Compel Arbitration and to Stay the Proceedings. The trial court 

conducted a hearing on the parties' motions. Counsel for the buyers argued that the 

arbitration clause was not enforceable because there was no meeting of the minds and 

because its terms were unconscionable, citing to Basulto v. Hialeah Automotive, 141 So. 

3d 1145 (Fla. 2014). Counsel for Reunion asserted that the issue of arbitrability was 

expressly reserved for the arbitrator to decide, citing to Glasswall, LLC v. Monadnock 
3

Construction, Inc., 187 So. 3d 248 (Fla. 3rd DCA 2016). The trial court entered an order 

denying Reunion’s Motion to Compel Arbitration, citing to Basulto.

Reunion argues that the trial court reversibly erred in relying on Basulto and in 

rejecting its claim that the issue of arbitrability was for the arbitrator to decide. We agree.

Appellate courts "review de novo a trial court's ruling on a motion to compel 

arbitration, but . . . defer to the trial court's factual findings provided that they are supported 

by competent, substantial evidence." Timber Pines Plaza, LLC v. Zabrzyski, 211 So. 3d 

1147, 1150 (Fla. 5th DCA 2017). 

While arbitrability is generally an issue for trial courts to decide, courts must 

delegate the authority to the arbitrator if the parties' contract so provides. Morton v. 

Polivchak, 931 So. 2d 935, 938–39 (Fla. 2d DCA 2006); accord Glasswall, 187 So. 3d at 

251; Grant v. Rotolante, 147 So. 3d 128, 130-31 (Fla. 5th DCA 2014); Rintin Corp., S.A. 

v. Domar, Ltd., 766 So. 2d 407, 409 (Fla. 3d DCA 2000). "[W]hen . . . parties explicitly 

incorporate rules that empower an arbitrator to decide issues of arbitrability, the 

incorporation serves as clear and unmistakable evidence of the parties' intent to delegate 

such issues to an arbitrator." Contec Corp. v. Remote Solution, Co., Ltd., 398 F. 3d 205, 

208 (2nd Cir. 2005); accord Glasswall. Where, like here, the language of the contract 

clearly states that AAA rules govern, then said rules are expressly incorporated into the 

contract. Younessi v. Recovery Racing, LLC, 88 So. 3d 364, 365 (Fla. 4th DCA 2012) 

(citing Terminix Int'l Co. v. Palmer Ranch Ltd., 432 F. 3d 1327, 1333 (11th Cir. 2005)).

Based on this case law, the trial court erred in denying Reunion's Motion to 

Compel Arbitration because the parties' contract expressly incorporates the Construction 
4

Industry Arbitration Rules, and those rules provide that the arbitrator is authorized to rule 

on the arbitrability of the instant contract. 

The trial court's reliance on Basulto was misplaced for several reasons. In that 

case, the buyers were challenging the existence of an enforceable contract, whereas here 

the buyers are only challenging the enforceability of the arbitration clause of their Home 

Purchase Agreement. Also, the arbitration clause at issue in Basulto did not incorporate 

the Construction Industry Arbitration Rules. Lastly, the terms of the contract in Basulto

were substantively changed after signing, and contained inherently inconsistent 

provisions.

Accordingly, the trial court's order denying Reunion's Motion to Compel Arbitration 

is reversed and this matter remanded for further proceedings. Bank of America, N.A. v. 

Beverly, 183 So. 3d 1099 (Fla. 4th DCA 2015).

2

REVERSED and REMANDED.

ORFINGER and EVANDER, JJ., concur.

 

2

In light of the court's ruling on this issue, Reunion's other points on appeal are 

moot.