Arbitration & Mediation

Unsigned Addendum and Post-Contract Letter Establish No "Meeting of the Minds" on Arbitration

By Christopher B. Hopkins, Esq.

Given the number of arbitration enforcement decisions in Florida over the last several years, we are suspicious of a decision these days which takes several pages but provides only one case as precedent. You be the judge.

The Fourth District (Shahood, Warner and Hazouri) considered the arbitration clause in a residential construction contract in Toll Jupiter Limited Partnership, Toll FL GP Corp., and Michael Sheriff v. Michael A. Motto, Jr. At the trial level, the court had denied the motion to compel arbitration.

Admittedly, the facts are confusing. The agreement had an arbitration clause with a space for the buyer to initial. Instead of doing so, the buyer wrote, "See Addendum." On that addendum, among other terms and revisions, the buyer struck the arbitration clause. The buyer signed the addendum, the seller did not. In fact, upon signing the agreement, the seller sent a copy to the buyer but did not include the addendum. About two weeks later, the buyer wrote to seller acknowledging that the Seller had not agreed to the Addendum.

Thus, the buyer signed Contract + Addendum, which struck the arbitration clause, while the seller signed the Contract, and not the Addendum, despite (apparently) knowing that the buyer had intended the Addendum to be part of the contract. Basically, the seller essentially pretended to ignore the Addendum. Then, to confuse matters, both sides proceeded to perform.

Citing the three part rule on assessing the enforcement of arbitration in Seifert, the Panel held there was no meeting of the minds. No other case was cited. Right decision or wrong decision?

Full post as published by Florida Arbitration Law on September 18, 2009 (boomark / email).