Mavrick Law Firm has written extensively about conflicts concerning the right to have a dispute decided in arbitration. Parties will often believe that there is strategic advantage in pursuing or avoiding arbitration, and consequently, the arbitrability of a dispute is often litigated. This hotly contested issue can lead to an appeal from the aggrieved party. Litigants should be aware of their potential appellate relief to ensure that they have a way to appeal an adverse order prior to an appeal being necessary. The Florida Rules of Appellate Procedure permit non-final appeals of orders adjudicating entitlement to arbitration, however, that rule is narrower than it appears to be, becoming a potential trap for the unwary. Peter Mavrick is a Miami business litigation lawyer, and also represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, and other legal disputes in federal and state courts and in arbitration.
Nuances on the way that a motion to compel arbitration and the resulting order is written can mean the difference between whether the order can be appealed. Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) states in pertinent part, “[a]ppeals to the district courts of appeal of nonfinal orders are limited to those that: […] determine […] the entitlement of a party to arbitration.” The test for determining whether an order is appealable pursuant to Rule 9.130(a)(3)(C)(iv) is simply to review the subject order and evaluate whether it determines if a party has a right to arbitrate. Cohen v. D.R. Horton, Inc., 121 So. 3d 1121 (Fla. 5th DCA 2013) (“the first issue to be addressed is whether the trial court’s order denying Appellants’ motion for relief is an order ‘determining entitlement of a party to arbitration’”); Mel Smith, Inc. v. St. Catherine Laboure Manor, Inc., 752 So. 2d 1253 (Fla. 1st DCA 2000) (“Initially, we deny appellee’s motion to dismiss the appeal. The order was properly appealable as a non-final order because it determined appellee’s entitlement to proceed with arbitration”).
The purpose of Rule 9.130(a)(3)(C)(iv) is to ensure that the parties in business litigationdo not waste their time trying their case in a forum which ultimately is found to be improper after an appeal of a final judgment. See State, Dept. of Health & Rehab. Services v. Elec. Data Sys. Corp., 664 So. 2d 332 (Fla. 1st DCA 1995) (“[T]he purpose of rule 9.130(a)(3)(C)(v) is to afford appellate review before a party enters into arbitration”). The alternative is an appeal after final judgment. Episcopal Diocese of Cent. Florida v. Prudential Sec., Inc., 925 So. 2d 1112 (Fla. 5th DCA 2006) (“A non-final order compelling arbitration may be appealed. […] Notwithstanding, having failed to take a non-final appeal, the appellant is permitted to pursue a final appeal after arbitration is completed”). “This rule provides a method of obtaining an early decision on the proper forum for resolving a dispute, […] and thereby avoids the possibility that a party might be forced to litigate the entire controversy in the wrong forum before the error can be corrected.” Powertel, Inc. v. Bexley, 743 So. 2d 570 (Fla. 1st DCA 1999).