C & M VENTURES, INC., ETC., ET AL., APPELLANTS,
v.
LEONARD WOLF AND ANN WOLF, ETC., APPELLEES

Fla. 3d DCA | 1991-09-24
No. 91-874
Before NESBITT, COPE and GERSTEN, JJ.
587 So. 2d 512 Florida District Court of Appeal, Third District (1991) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

C & M Ventures, a home builder, and the Wolfs disputed whether an arbitration clause in their construction contract applied to both the original contract and change orders made during construction. The trial court ordered arbitration only for the original contract and trial for disputes over changes. The appellate court reversed, holding that the arbitration clause covers all disputes arising from the contract documents, including changes.


Holding

The arbitration clause applies to all disputes arising out of or relating to the contract documents, including disputes over changes, and the trial court erred in bifurcating the dispute and ordering trial for change-related disputes. The arbitration clause clearly covers contract modifications, and any technical noncompliance with change order procedures is a matter for the arbitrator to determine.


Headnotes

[1] An arbitration clause in a contract is enforceable even if there is a delay in demanding arbitration, provided the delay is not inconsistent with the right to arbitrate.

[2] A threat of possible litigation does not constitute a waiver of the right to arbitration.

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Key Quotes

“Article 13 of the contract provided that disputes arising out of or relating to the contract documents would be decided by arbitration.”

Establishes the scope of the arbitration clause that controls the case

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Facts & Procedural History

The Wolfs hired C & M Ventures to build a luxury home under a contract containing an arbitration clause. During construction, disputes arose regarding…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The Wolfs hired C & M Ventures, Inc. to build a luxury home. The contract contained an arbitration clause. In the course of construction, disputes as to the contract arose. Also, a series of changes were made during the home’s construction. The issue is to what extent the arbitration clause controls as to the contract and the changes. The trial court concluded that the arbitration clause should be enforced only as to the original contract. On appeal, C & M claims the trial court erred in ordering trial to go forward as to the changes. On cross-appeal, the Wolfs argue the trial court erred in ordering arbitration of disputes as to the original contract. We agree with builder C & M.

First, the contract clearly provides for arbitration. The delay in demanding arbitration was not inconsistent with that right. See Post Tensioned Eng’g Corp. v. Fairways Plaza Assoc., 412 So. 2d 871 (Fla. 3d DCA), review denied, 419 So. 2d 1197 (Fla.1982). A threat of possible litigation did not waive the right to arbitration. See Executive Life Ins. Co. v. John Hammer & Assoc., 569 So. 2d 855 (Fla. 2d DCA 1990). Further, the breach claimed did not permit abandonment of the arbitration provision. Feather Sound Country Club, Inc. v. Barber, 567 So. 2d 10 (Fla. 2d DCA 1990).

Next, as to the changes, the Wolfs claim they were oral. C & M submitted written documentation of each change. The Wolfs responded that although written evidence was submitted, that evidence was not in compliance with the procedure for changes required by the contract.1 C & M responds that these were technical shortcomings and not representative of a failure of condition precedent. We disagree with the Wolfs’ claim that C & M’s noncompliance with the contract’s instruction on changes disentitled the builder to enforce its right to arbitrate. The effect of such deviation would be for the arbiter to determine. Public Health Trust v. M.R. Harrison Constr., 415 So. 2d 756 (Fla. 3d DCA 1982), review denied, 427 So. 2d 737 (Fla.1983).

Article 13 of the contract provided that disputes arising out of or relating to the contract documents would be decided by arbitration. Article 7 provided contract documents consist of:

this Agreement with General Conditions, Supplementary and other Conditions, the Drawings, the Specifications, all Adden da issued prior to the execution of this Agreement, and all Modifications issued by the Architect after execution of the Contract such as Change Orders, written interpretations and written orders of minor changes in the Work. The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work.

In light of these provisions, we find bifurcation of the dispute clearly violative of the spirit and clear wording of the contract.

Accordingly, the trial court’s order is affirmed in part, reversed in part and remanded, whereupon the trial court will order arbitration of the balance of the litigation.

. ARTICLE 18

CHANGES IN THE WORK

18.1The Owner, without invalidating the Contract, may order Changes in the Work consisting of additions, deletions, or modifications, the Contract Sum and the Contract Time being adjusted accordingly. All such changes in the Work shall be authorized by written Change Order signed by the Owner and the Architect.

18.2 The Contract Sum and the Contract Time may be changed only by Change Order. 18.3 The cost or credit to the Owner from a change in the Work shall be determined by mutual agreement.


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Citator

Cited By

  • Twin Oaks AT Southwood, LLC v. Summit Constructors, Inc., 941 So. 2d 1263 (Fla. 1st DCA 2006)
    …at the PCA was therefore subject to the broad arbitration clause of the Contract. It asserted that the main issue was not whether the PCA had incorporated the Contract, but whether it had modified the Contract, citing OBS and C & M Ventures v. Wolf, 587 So. 2d 512 (Fla. 3d DCA 1991). It argued that the contractor’s efforts to distinguish Beaver based on chronology “fail to impeach its legal import” and that “[i]f [*1268] anything, the chronology of the instant case weighs more heavily in favor of arbitration…
  • OZ v. Warter, 943 So. 2d 287 (Fla. 3d DCA 2006)
    …PER CURIAM. Affirmed. See Applegate v. Barnett Bank, 377 So. 2d 1150 (Fla.1979); C & M Ventures, Inc. v. Wolf, 587 So. 2d 512 (Fla. 3d DCA 1991), review denied, 599 So. 2d 661 (Fla.1992); Post Tensioned Eng’g Corp. v. Fairways Plaza Assocs., 412 So. 2d 871 (Fla. 3d DCA 1982), review denied, 419 So. 2d 1197 (Fla.1982).…

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