Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-1387 _____________________________ ANDREW J. RUSSELL, Appellant, v. HYDROPROCESSING ASSOCIATES, LLC; BREATHING SYSTEMS, INC.; and PETER THEW, Appellees. _____________________________ On appeal from the Circuit Court for Escambia County. Gary L. Bergosh, Judge. June 10, 2021 B.L. THOMAS, J. Appellant challenges the trial court’s order granting Appellees’ motion to compel arbitration. We reverse the portion of the order requiring Appellant’s claims against Breathing Systems, Inc. to be determined through arbitration. Appellate courts review a trial court’s determination of whether a valid written agreement to arbitrate exists de novo. HHH Motors, LLP v. Holt, 152 So. 3d 745, 747 (Fla. 1st DCA 2014). The Florida Arbitration Code controls the proceedings to compel and stay arbitration and states, in relevant part: (2) On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate. (3) If the court finds that there is no enforceable agreement to arbitrate, it may not order the parties to arbitrate pursuant to subsection (1) or subsection (2). § 682.03, Fla. Stat. (2020). “Absent a valid written agreement to arbitrate, no party may be forced to submit to arbitration.” Holt, 152 So. 3d at 747. Here, Appellant executed two contemporaneous employment agreements, one with Breathing Systems, Inc. and the other with Hydroprocessing Associates, LLC. The employment agreement with Hydroprocessing Associates, LLC included an arbitration provision. However, the employment agreement with Breathing Systems, Inc. did not include an arbitration provision and included an integration clause stating that the agreement was the entire agreement between the parties and it superseded all prior agreements. Evidentiary hearings were held and the focus of the argument during the hearings was whether Appellant had signed the Hydroprocessing Associates, LLC employment agreement. As a result, the trial court’s written order failed to address whether there was a valid arbitration agreement between Appellant and Breathing Systems, Inc. and how the Hydroprocessing Associates, LLC agreement affected the agreement. At the conclusion of the second evidentiary hearing, the trial court stated that it was going to “send [this issue] to the arbitrator and let him look at it.” By passing this issue to the arbitrator, the trial court determined that it did not have jurisdiction to consider whether there was a valid arbitration agreement between Appellant and Breathing Systems, Inc. The trial court’s ruling that it lacked jurisdiction to determine this issue was incorrect. 2 It is the trial court’s responsibility to determine whether a valid arbitration agreement exists, especially where the arbitration clause itself is being challenged. See Henry Schein, Inc. v. Archer and White Sales, Inc., 139 S. Ct. 524, 530 (2019); Schotts v. OP Winter Haven, Inc., 86 So. 3d 456, 465 (Fla. 2011); CEFCO v. Odom, 278 So. 3d 347, 351 (Fla. 1st DCA 2019); see also Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445 (2006). Here, Appellant challenged the existence of an arbitration agreement between himself and Breathing Systems, Inc., which related only to the arbitration provision of the agreement and not the agreement in general. As a result, it was the trial court’s responsibility to determine whether a valid arbitration agreement existed. This responsibility was not altered by the conflicting arbitration provision contained in the employment agreement submitted by Hydroprocessing Associates, LLC, because typically where multiple documents containing conflicting arbitration provisions are submitted to the court, the court will determine whether a valid arbitration agreement exists. See Holt, 152 So. 3d at 748 (finding no legal error in the trial court’s conclusion that a retail installment sales contract and its merger clause operated to negate an arbitration clause in a separate retail purchase agreement); see also Duval Motors Co. v. Rogers, 73 So. 3d 261, 268–69 (Fla. 1st DCA 2011); Careplus Health Plans, Inc. v. Interamerican Med. Ctr. Grp., LLC, 124 So. 3d 968, 972 (Fla. 3d DCA 2013). As a result, the trial court erred by failing to determine whether a valid arbitration agreement existed between Appellant and Breathing Systems, Inc. before ordering their claims be determined through binding arbitration. We reverse and remand for the trial court to determine whether a binding arbitration agreement exists between Appellant and Breathing Systems, Inc. REVERSED and REMANDED. TANENBAUM, J., concurs; MAKAR, J., concurs in result with opinion. 3 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ MAKAR, J., concurring in result. At issue is a non-final order that adjudicated arbitration rights in a dispute involving an employee who entered agreements with two different, but related, employers. The appeal was docketed in May 2020. The parties’ dispute has now been settled and the parties filed a stipulation on March 29, 2021, requesting that this appeal be dismissed, essentially rendering moot the relief sought in this Court. At this juncture, the parties have settled their underlying dispute, allocated costs and fees, and directed that the appellate clerk close the case, a request made prior to release of a written opinion on the merits. Discretion ordinarily ought to be exercised in accord with the parties’ wishes unless the legal issue presented is one of great public importance or some other important interest is served by publishing an opinion. Holly v. Auld, 450 So. 2d 217, 218 n.1 (Fla. 1984) (“It is well settled that mootness does not destroy an appellate court’s jurisdiction, however, when the questions raised are of great public importance or are likely to recur.”). An amorphously fine line is drawn between important but moot cases that deserve judicial attention and those of lesser importance that do not; this one treads that line but I respect my panel colleagues’ decision that a published opinion on the issue presented will be of general assistance to the bar. Some question whether judicial authority allows for this result, see, e.g., Pino v. Bank of N.Y., 76 So. 3d 927, 931 (Fla. 2011) (Canady, C.J., dissenting), but it assuredly does in our supreme and district courts, including this Court. See, e.g., Fla. Gas Transmission Co., LLC v. City of Tallahassee, 230 So. 3d 912, 914 (Fla. 1st DCA 2017) (noting that during the pendency of an appellate proceeding “the parties requested to dismiss their joint petition” pursuant to Rule 4 9.350 but that “nothing in the rule . . . requires this Court to dismiss the cause of action” (citing Pino, 76 So. 3d at 929)). The parties, of course, are not bound by the appellate opinion unless for some odd reason their settlement says so. For that reason, our panel ought to consider a motion to vacate the opinion if a movant makes the case that the opinion works some advantage or disadvantage to any of the parties, which seems unlikely but is a possibility given the parties’ likely expectations in entering a settlement was that their stipulation of dismissal would conclude the matter. _____________________________ Robert S. Rushing and Travis M. Morock of Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, LLC, Pensacola, for Appellant. Jeremiah J. Talbott and Mark A. Belcher of Law Office of Jeremiah J. Talbott, P.A., Pensacola, for Appellees. 5