14 April

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Equitable Estoppel SOMETIMES Allows a Non-Signatory the Right to Compel Arbitration

“Where a contract subjects to arbitration claims between certain enumerated parties, that limiting language matters. Under appropriate circumstances, a non-signatory might invoke equitable estoppel to access an arbitration clause, but not to excavate it and fill it with new terms.” Florida Roads Trucking, LLC v. Zion Jacksonville, LLC, 49 Fla.L.Weekly D819a (Fla. 5th DCA 2024). Arbitration is a creature of contract. In Florida Roads Trucking, a non-signatory to a contract tried to compel arbitration of a dispute arguing that the arbitration provision in the plaintiff’s contract with another party should apply. This argument is based on a theory of equitable estoppel: Florida and federal...

21 November

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Timely Moving for Trial De Novo after Non-Binding Arbitration Award

Posted by David Adelstein

in Trial Perspectives

When involved in litigation, there are courts that will require you to go to non-binding arbitration as a method to resolve the dispute before proceeding to trial. While courts will always require you to mediate, some courts will take it a step further and require you to proceed to non-binding arbitration. See Florida Rule of Civil Procedure 1.820 and Florida Statute s. 44.103. And there are times parties will voluntarily agree to this process. I am not a fan of non-binding arbitration. I don’t find it to be a productive vehicle to resolve disputes compared to mediation (even multiple mediations). ...

21 March

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Non-Signatory Compelling Arbitration based on Equitable Estoppel

Posted by David Adelstein

in Trial Perspectives

Many times, parties will prefer to arbitrate their disputes instead of litigate their disputes. Because arbitration is a creature of contract, an arbitration provision must be included in the parties’ contract. There are pros and cons to arbitration and it is important to discuss these pros and cons with your counsel when negotiating a contract that includes an arbitration provision. The pros and cons may change over time. (For example, in this COVID-19 world, there are pros with arbitration that did not exist before the COVID-19 pandemic.) Notwithstanding, there are instances where a non-signatory to the contract with the arbitration provision...

09 January

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In Ruling on Motion to Compel Arbitration, Trial Court Must Determine whether Parties Bound by Arbitration Provision

Posted by David Adelstein

in Trial Perspectives

Arbitration is a creature of contract. This means if you want to arbitrate, instead of litigate, your dispute, you need to include an arbitration provision in your contract. However, this does not mean that parties do not try to avoid arbitration, albeit there being an arbitration provision in the contract, by filing a lawsuit. This leads to parties moving to compel arbitration and, upon the trial court’s ruling, a right to appeal. A party may feel the nature of the dispute will play out better for them in arbitration versus litigation, or there are other important strategic reasons to arbitrate...

22 August

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Evidentiary Hearing Warranted before Compelling Non-Signatories to Arbitration

Posted by David Adelstein

in Appeal, Trial Perspectives

With the current post-COVID-19 state of affairs with the judicial system, there is attraction to arbitrating disputes as an efficient means to dispute resolution. Arbitration is a creature of contract and is a binding method to resolve a dispute outside of the judicial system. Just because there may be an agreement to arbitrate a dispute does not mean parties will concede that their particular dispute falls within the scope of the contractual arbitration provision. A party may still prefer to litigate certain disputes and preserve the right to appeal the outcome, a right which does not exist in arbitration. There...

04 April

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Arbitrability of a Dispute – Does a Judge or Arbitrator Decide?

Posted by David Adelstein

in Trial Perspectives

If you are involved in a dispute, the initial sentiment is to file a lawsuit and let a judge or jury decide the merits if it is not resolved in the interim. Another way to resolve a dispute is through binding arbitration. Frankly, with the uncertainty surrounding the judicial system right now, arbitration is not a bad way to go and likely the more efficient way to go, irrespective of the added administrative costs. The key with arbitration is that it is a creature of contract. This means there needs to be an arbitration provision in an agreement for the...

02 September

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Arbitration Provision Involving Non-Florida Entities and a Non-Florida Transaction

Posted by David Adelstein

in Appeal, Trial Perspectives

It is permissible for non-Florida persons/entities to agree to arbitration in Florida. Such arbitration agreement will be enforceable and Florida courts can enforce the arbitration agreement even if the underlying transaction is conducted outside of Florida. Section 682.18(1) of Florida’s Arbitration Code provides in material part: The making of an agreement or provision for arbitration subject to this law and providing for arbitration in this state shall, made within or outside this state, confer jurisdiction on the court to enforce the agreement or provision under this law, to enter judgment on an award duly rendered in an arbitration thereunder and to vacate, modify...

14 July

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What is a Covenant Running with the Land?

Posted by David Adelstein

in Trial Perspectives

What is a covenant running with the land? A recent case explains the difference between a covenant running with the land and a personal covenant that does not run with the land: “Covenants are loosely defined as ‘promises in conveyances or other instruments pertaining to real estate' . . . [and] are divided into two categories, real and personal.” A real covenant, or covenant running with the land, “differs from a merely personal covenant in that the former concerns the property conveyed and the occupation and enjoyment thereof, whereas the latter covenant is collateral or is not immediately concerned with the...

28 April

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The Contractual Right to Arbitrate a Dispute Can be Waived

Posted by David Adelstein

in Trial Perspectives

Arbitration is a form of dispute resolution. Instead of litigating your case in court with a judge, you arbitrate your case with an arbitrator. Arbitration is less formal and, ideally, the arbitrator will have more of a background relating to the issues driving the dispute. The parties either agree to an arbitrator or an arbitrator is appointed through a selection process. With everything, there are pros and cons to arbitration to be discussed in detail with your counsel. There are many disputes I prefer arbitration and there are many disputes I do not. Arbitration is a creature of contract so if...

14 October

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A Party may Not Expand the Scope of Judicial Review of an Arbitration Clause

Posted by David Adelstein

in Trial Perspectives

Arbitration is a creature of contract. This means if you are going to arbitrate a dispute, as opposed to litigating a dispute, there must be an agreement to arbitrate. However, whether a dispute should be arbitrated pursuant to the terms of the contract is an area that has been heavily litigated for a couple of reasons: 1) a party does not want to arbitrate the dispute and, therefore, files a lawsuit versus a demand for arbitration and 2) an opposing party that has been sued wants to enforce an arbitration provision in a contract. As a result, an order granting...