Summary
holding that, where parties have two contracts, only one of which contains an arbitration clause, and a dispute arises out of the other contract, the arbitration clause may not be extended to apply to the dispute
Summary of this case from Miami City Ballet, Inc. v. VillellaOpinion
No. 93-2721.
May 17, 1994.
Appeal from the Circuit Court, Dade County, David L. Tobin, J.
Rubin, Baum, Levin, Constant, Friedman Bilzin, and David W. Trench, Miami, for appellant.
Herzfeld Rubin, Larry E. Metz, and Jeffrey B. Shapiro, Miami, for appellee.
Before HUBBART, GERSTEN and GODERICH, JJ.
Appellant, All American Semiconductor, Inc., appeals a non-final order compelling arbitration and staying proceedings. We reverse.
Appellant's ultimate complaint against appellee, Unisys Corporation, alleged theories of fraud, negligent misrepresentation and breach of express and implied warranties. Essentially, appellant claimed that appellee's product did not perform as represented.
Although appellant originally sued on a second theory concerning a service and maintenance agreement, appellant voluntarily dismissed that count and proceeded only on the fraud, negligent misrepresentation and breach of warranty theories.
Appellee sought arbitration through a second, yet different, agreement that appellant and appellee executed. This second agreement contained an arbitration provision. The trial court, based upon this second agreement, stayed the case and compelled arbitration.
Although arbitration clauses are generally favored, the clause must refer to the subject matter being contested. In that light, we must first determine if the parties agreed to arbitrate the dispute in question. Therefore, even though the parties had one agreement to arbitrate some claims, not all claims are subject to arbitration. Eugene W. Kelsey Son, Inc. v. Architectural Openings, Inc., 484 So.2d 610, 611 (Fla. 5th DCA), review denied, 492 So.2d 1330 (Fla. 1986).
One contract cannot be extended to a separate contract between the same parties unless the parties expressly agree to arbitrate. Kimbrell Hamann, P.A. v. Popham, Haik, Schnobrich Kaufman, Ltd., 578 So.2d 368 (Fla. 3d DCA 1991); Paine, Webber, Jackson Curtis, Inc. v. Lucas, 411 So.2d 1369 (Fla. 5th DCA 1982). See also Necchi S.p.A. v. Necchi Sewing Machine Sales Corp., 348 F.2d 693 (2d Cir. 1965), cert. denied, 383 U.S. 909, 86 S.Ct. 892, 15 L.Ed.2d 664 (1966).
We determine that, here, the parties did not contract to arbitrate appellant's claims. Appellant's complaint flows from a relationship and agreement outside the scope of the second and distinct agreement. We therefore reverse the order compelling arbitration and remand for further proceedings.
Reversed and remanded.