Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DIAMOND EDGE CONSTRUCTION, LLC, Appellant, v. THE MOORINGS OF PINELLAS COUNTY CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation; C.F. TUOHEY CONSTRUCTION, INC. d/b/a DIAMOND EDGE CONSTRUCTION; and ROBERT J. JACKSON, individually, Appellees. No. 2D2026-0713 October 30, 2026 Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pinellas County; Michael F. Andrews, Judge. Matthew J. Brinzo, Thomas E. Bishop, and Alexander T. Briggs of Bishop & Page, PLLC, Jacksonville, for Appellant. Gregory S. Grossman and Scott M. Gross of Greenberg Nikoloff, P.A., Dunedin, for Appellee The Moorings of Pinellas County Condominium Association, Inc. No appearance for remaining Appellees. GUARD, Judge. Diamond Edge Construction, LLC appeals the denial of its motion to compel arbitration in a construction related dispute with The Moorings of Pinellas County Condominium Association, Inc. Because we conclude that the trial court was correct in determining Diamond Edge failed to prove there was an enforceable agreement, we affirm. I. Moorings is a condominium association located in Pinellas County, Florida. On September 26, 2024, at least forty of its units were damaged by Hurricane Helene when the hurricane skirted Florida's west coast before making landfall near Perry, Florida. The appendix submitted by Diamond Edge does not detail the extent of that damage. At some point in time, Moorings began negotiating with Diamond Edge for Diamond Edge to provide construction related services to "[f]inish out work for 40 Hurricane Effected Units" at Moorings. On June 2, 2025, Diamond Edge provided Moorings with a Construction Services Agreement (the Agreement) signed by its Chief Executive Officer. On its first page, the Agreement indicated Diamond Edge had a Florida general contractor license and provided a license number. But Diamond Edge was an unlicensed contractor, and the license number on the Agreement was a State of Florida fictitious name registration number. The Agreement did not contain a construction price. The Agreement did not contain a scope of work to be performed. The Agreement did provide: Upon execution of this [Agreement], Diamond [Edge] will inspect the site where the work is to be performed and provide an initial scope to [Moorings] and its insurance adjuster for review. After review of the scope, the parties shall mutually develop and agree upon, by execution of a Change Order in accordance with Section 2.7 herein, the scope of Work and cost ("Contract Price"). For all work covered by Company's flood insurance policy, the total Contract Price shall reflect the portion of proceeds [Moorings] receives from its insurance carrier less an amount equal to [Moorings]'s public Adjuster's fee (the "Discount"). The Discount shall not exceed 8% of Diamond's total Contract Price for such Work. 2 The Agreement provided for payment of an initial deposit but again did not provide an amount. Finally, the Agreement contained an arbitration provision: The Parties shall, for at least 15 days before any formal action, make a good faith effort to resolve any dispute. Should such efforts fail, the Parties agree that all disputes will be resolved by arbitration as provided by the Federal Arbitration Act, in accordance with the Construction Industry Arbitration Rules of the AAA. The Agreement was unsigned by Moorings. At some point between June 2, 2025, and August 28, 2025, Moorings remitted $818,266.02 to Diamond Edge. It is unclear why these monies were remitted. As the complaint here alleges, it was "to finish work in forty (40) hurricane effected units within [Moorings]." It does not appear that the parties ever agreed to a scope of work. There does not appear to have been an agreed-to construction price or anything that looks like a contract price or discount as detailed in the Agreement. Sometime before August 28, 2025, Moorings learned that Diamond Edge was an unlicensed contractor. On that day, Moorings, through its counsel, sent a letter to Diamond Edge terminating, to the extent that there was a contract, the Agreement and demanding certain records to account for the $818,266.02. That letter revealed that work may have started on the project and an amount of materials may have been procured. But nothing in the appendix provided us with the amount of work completed, supplies procured, or whether that work or those supplies were part of the scope of the project. Nor is there any mention of building permits being obtained. At some point in time, Moorings also learned that Diamond Edge had entered into a Joint Venture Agreement with another company, Bosch Brothers Industries, LLC. And that Bosch was transferred 3 $350,000 of the monies that Moorings remitted Diamond Edge. The joint venture was terminated after a dispute arose between Bosch and Diamond Edge related to a third company, C.F. Tuohey Construction, Inc. Bosch later returned $350,000 to Moorings. On September 22, 2025, Moorings sued Diamond Edge, Diamond Edge's Chief Executive Officer, Bosch, and Tuohey. Moorings asserted claims for (1) declaratory relief seeking a declaration that the Agreement was void and unenforceable, (2) fraud in the inducement against Jackson, (3) fraud in the inducement against Tuohey, (4) fraud in the inducement against Diamond Edge,1 and (5) unjust enrichment against Diamond Edge. Diamond Edge moved to compel arbitration under the Agreement. The trial court denied the motion to compel, concluding that "Diamond Edge has not met its burden to prove that there was an enforceable agreement to arbitrate as there was no evidence beyond the unsigned contract, and contents of the Complaint submitted into the Court evidencing [Moorings] agreement to arbitrate any claim." Diamond Edge timely appealed that nonfinal order. II. As we have said multiple times, "Florida favors arbitration." Kennedy v. Slockett, 414 So. 3d 318, 320 (Fla. 2d DCA 2025) (citing UATP Mgmt., LLC v. Barnes, 320 So. 3d 851, 857 (Fla. 2d DCA 2021)). We review orders denying motions to compel arbitration de novo. The Hillier Grp., Inc. v. Torcon, Inc., 932 So. 2d 449, 452 (Fla. 2d DCA 2006). In ruling on a motion to compel arbitration, a court must consider three elements: (1) whether a valid agreement to arbitrate among the parties 1 Moorings pled two counts of fraud in the inducement against Diamond Edge. One count is against the Appellant Diamond Edge. The other count is against Diamond Edge as a fictitious entity owned by Jackson and Tuohey. 4 exists, (2) whether the issue litigated is arbitrable, and (3) whether the party seeking to compel arbitration waived that right. Jackson v. Shakespeare Found., Inc., 108 So. 3d 587, 593 (Fla. 2013) (citing Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999)). An arbitrator, not a court, considers the validity of a contract under state or federal law. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46 (2006) ("[U]nless the challenge is to the arbitration clause itself, the issue of the contract's validity is considered by the arbitrator in the first instance"); Sachse Constr. & Dev. Corp. v. Affirmed Drywall, Corp., 251 So. 3d 1005, 1011-12 (Fla. 2d DCA 2018) (reversing an order denying a contractor's motion to compel arbitration concluding invalidity under Florida law was an issue for an arbitrator); Charles Boyd Constr., Inc. v. Vacation Beach, Inc., 959 So. 2d 1227, 1228-29 (Fla. 5th DCA 2007) (holding similarly). In this case, the parties' arguments focused solely on whether an agreement to arbitrate exists. Initially, Moorings argued that there was no agreement to arbitrate because it never executed the Agreement. We and other district courts have rejected such arguments and concluded that whether a valid agreement exists does not necessarily require an arbitration agreement to be executed. Hayslip v. U.S. Home Corp., 276 So. 3d 109, 113 (Fla. 2d DCA 2019); GMRI, Inc. v. Brautigan, 392 So. 3d 1098, 1102-04 (Fla. 1st DCA 2024); Jean v. Bayview Loan Servicing, LLC, 352 So. 3d 908, 909 (Fla. 3d DCA 2022); CEFCO v. Odom, 278 So. 3d 347, 351 (Fla. 1st DCA 2019); Fi-Evergreen Woods, LLC v. Robinson, 135 So. 3d 331, 335 (Fla. 5th DCA 2013); Santos v. Gen. Dynamics Aviation Servs. Corp., 984 So. 2d 658, 660 (Fla. 4th DCA 2008). For example, in Hayslip, we concluded that home buyers "acquiesced" to an arbitration provision when they were on notice of the provision and took title and possession of a home. 276 So. 3d at 113. We stated that "a party's 5 conduct can demonstrate intent to be bound by the agreement." Id. Similarly, in Santos, the Fourth District held in absence of a signed agreement a court is to consider the "party's words and conduct to determine whether the party assented to the agreement." 984 So. 2d at 661. Diamond Edge counters, relying almost solely on allegations in Moorings' complaint. For example, it relies on the Moorings' allegation that "[o]n June 2, 2025, the Association [Moorings] entered into a Construction Services Agreement." The problem with Diamond Edge's argument is it assumes that these allegations are admissions rather than statements made in "preliminary pleadings" which are not treated as admissions. Brown v. Colonial Penn Ins., 666 So. 2d 226, 227 (Fla. 2d DCA 1995); Vann v. Hobbs, 197 So. 2d 43, 45 (Fla. 2d DCA 1967). In Vann, we stated that: Admissions made in the complaint and answer, upon which issue is finally joined, are accepted as facts without the necessity of supporting evidence. The litigants are bound by these admissions. However, they are not bound by admissions made in preliminary pleadings that have been successfully attacked by the opposing party, nor by admissions made in one of several separate and inconsistent defenses. Id. (citing to Olin's, Inc. v. Avis Rental Car Sys. of Fla., Inc., 104 So. 2d 508 (Fla. 1958)). This case is not at issue. There is no answer even filed. It is unclear whether the allegations in the complaint will be attacked by Diamond Edge. It is also not clear whether any attack will be successful. There are allegations in the complaint and their attachments that contradict that there was an agreement amongst these parties. Moorings stated also multiple causes of action in its complaint against Diamond Edge, one of which is inconsistent with a contract being formed. A 6 litigant can plead in the alternative both an unjust enrichment count and a count based on an express contract. See Scott v. Acuity Real Est. Servs., LLC, 359 So. 3d 881, 881 (Fla. 2d DCA 2023) (reversing a judgment that awarded monies on an unjust enrichment theory after finding that a contract existed); Haskel Realty Grp., Inc. v. KB Tyrone, LLC, 253 So. 3d 84, 86 (Fla. 2d DCA 2018) (stating that unjust enrichment is an alternative to a breach of contract claim); Diaz v. Cat Cay Holdings JHR, LLC, 51 Fla. L. Weekly D1635 (Fla. 3d DCA Aug. 12, 2026) (stating that a plaintiff may plead a breach of contract and unjust enrichment counts in the alternative but cannot recover for both). Under these circumstances, the "entered into a contract" allegation in the complaint is not, at this stage, an admission that can be held against Moorings. That said, the attachment of the unsigned contract to the complaint is evidence that Moorings had notice of the arbitration provision. If Diamond Edge could show "acquiescence" to or acceptance of the Agreement, then we could conclude a contract existed and the arbitration provision would apply. The closest conduct to acceptance that exists is Moorings remitting $818,266.02 "to finish work in forty (40) hurricane effected units within the Association." The problem is that there is nothing in the appendix connecting the $818,266.02 to the Agreement. Nowhere in the Agreement is a construction price given. Nowhere in the Agreement is there an initial scope of work. Nowhere in the Agreement is $818,266.02 listed, whether a deposit, full payment, or otherwise. It is unclear what the $818,266.02 was for, when it was paid, or why it was paid. Without any connection between the remitted amount and the contract itself, it cannot be treated as acquiescence to the contract. 7 We are then only left with the unsigned Agreement. Our review of that Agreement convinces us that the parties had not agreed on essential terms, namely the scope of the work to be performed and the construction price to be paid. In such circumstances, we have concluded that an agreement is not enforceable as the agreement was simply, at best, an agreement to agree. Certified Motors, LLC v. Aventine Hill, LLC, 369 So. 3d 1254, 1257 (Fla. 2d DCA 2023) ("Failure to include essential terms is generally fatal to a contract's enforceability." (citing Davis v. Hearthstone Senior Cmtys., Inc., 155 So. 3d 1232, 1234 (Fla. 2d DCA 2015)). Accordingly, we affirm the trial court's denial of Diamond Edge's motion to compel arbitration. Affirmed. NORTHCUTT and KHOUZAM, JJ., Concur. Opinion subject to revision prior to official publication. 8