Fullcircle LLC v. Justin Kaiser

• Court: District Court of Appeal of Florida
• Decided: July 2, 2025
• Docket: 3D2024-1094
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 2, 2025. Not final until disposition of timely filed motion for rehearing.

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No. 3D24-1094 Lower Tribunal No. 23-17375-CA-01 ________________

Fullcircle LLC, et al., Appellants,

vs.

Justin Kaiser, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge.

Hirzel Dreyfuss & Dempsey, PLLC and Leon F. Hirzel, for appellants.

Wegner Law PLLC and P. Christopher Wegner (Estero), for appellees.

Before SCALES, C.J., and LOGUE and GORDO, JJ.

GORDO, J. Fullcircle LLC and eleven other individuals and entities1

(“Franchisees”) appeal an order granting Justin Kaiser and Larry Schroder’s

(“Directors”) second amended motion to dismiss and dismissing their

complaint without prejudice to pursue their claims in arbitration. We have

jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). We affirm.

On appeal, the Franchisees argue the Directors waived their right to

arbitrate because they previously opposed arbitration, and they argue the

doctrine of judicial estoppel bars arbitration. 2

“Whether a party has waived the right to arbitrate is a question of fact,

reviewed on appeal for competent, substantial evidence to support the

lower[] court’s findings.” Leder v. Imburgia Constr. Servs., Inc., 325 So. 3d

1 William D. Golding, Rae Bright LLC, Jonathan Bryant, Kyle Wilkins, Shiloh Energy Projects, LLC, How2 B Solar, LLC, Solar Grids of North Georgia, LLC, Nevada Harrison, Open Sky Solar LLC, Helios Corporation and Sneha Shah. 2 The Franchisees additionally argue the trial court erred in considering the arbitration provisions that were not attached to the complaint when ruling on the Directors’ second amended motion to dismiss. We find the trial court properly considered the provisions. See Orr v. AT&T Mobility, LLC, 401 So. 3d 397, 399 (Fla. 3d DCA 2024) (“When ruling on a motion to dismiss, the Court must limit itself to the four corners of the complaint, including any attached or incorporated exhibits, assuming the allegations in the complaint to be true and construing all reasonable inferences therefrom in favor of the non-moving party . . . When, however, the terms of a legal document are impliedly incorporated by reference into the complaint, the trial court may consider the contents of the document in ruling on a motion to dismiss.”) (internal quotation marks and citations omitted).

2 256, 258 (Fla. 3d DCA 2021) (quoting Green Tree Servicing, LLC v. McLeod,

15 So. 3d 682, 686 (Fla. 2d DCA 2009)). “However, ‘the standard of review

applicable to the trial court’s construction of the arbitration provision, and to

its application of the law to the facts found, is de novo.’” Id.

Finding no error in the trial court’s order, we affirm. See Marine Env’t

Partners, Inc. v. Johnson, 863 So. 2d 423, 426 (Fla. 4th DCA 2003) (“Under

both federal law and the Florida arbitration code, there are three elements

for courts to consider: (1) whether a valid written agreement to arbitrate

exists; (2) whether an arbitral issue exists; and (3) whether the right to

arbitration was waived. The question of waiver is one of fact, reviewable for

competent substantial evidence. All doubts regarding waiver should be

construed in favor of arbitration rather than against it. Waiver is the

intentional or voluntary relinquishment of a known right or conduct which

warrants an inference of the relinquishment of a known right. A party

claiming waiver of arbitration must show: 1) knowledge of an existing right to

arbitrate and 2) active participation in litigation or other acts inconsistent with

the right.”); Black Knight Servicing Techs., LLC v. PennyMac Loan Servs.,

LLC, 310 So. 3d 1116, 1118 (Fla. 1st DCA 2021) (“The party arguing waiver

of arbitration bears a heavy burden of proof. All doubts regarding waiver

should be construed in favor of arbitration rather than against it.”) (quotations

3 omitted); Keyes Co. v. Bankers Real Est. Partners, Inc., 881 So. 2d 605, 606

(Fla. 3d DCA 2004) (“Judicial estoppel is an equitable doctrine used to

prevent litigants from taking completely inconsistent positions in separate

judicial proceedings. Judicial estoppel bars a party who successfully takes

a position in a prior judicial proceeding from proceeding with a conflicting

position in a subsequent action to the prejudice of the adverse party.”); Grau

v. Provident Life & Accident Ins. Co., 899 So. 2d 396, 400 (Fla. 4th DCA

2005) (“[T]he general rule of judicial estoppel in Florida appears to be this:

A claim or position successfully maintained in a former action or judicial

proceeding bars a party from making a completely inconsistent claim or

taking a clearly conflicting position in a subsequent action or judicial

proceeding, to the prejudice of the adverse party, where the parties are the

same in both actions, subject to the ‘special fairness and policy

considerations’ exception to the mutuality of parties requirement. Under this

general rule, judicial estoppel does not apply in this case . . . .”) (footnotes

omitted) (emphasis added).

Affirmed.