Cunningham v. Deuschle Const. Co.

Full title: JOHN C. CUNNINGHAM, AS TRUSTEE FOR PROFESSIONAL DEFERRED TRUST, APPELLANT…

Court: District Court of Appeal of Florida, Fourth District

Date published: Dec 9, 1992

609 So. 2d 161 (Fla. Dist. Ct. App. 1992)

Opinion

No. 91-2563.

December 9, 1992.

Appeal from the Circuit Court for Broward County; C. Lavon Ward, Judge.

No appearance for appellant.

Ilene D. Napp of Deuschle Associates, P.A., Fort Lauderdale, for appellee.

PER CURIAM.

AFFIRMED.

LETTS and FARMER, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge, dissenting.

By sworn affidavit, the appellant has created an issue of fact as to whether the arbitration provision of the parties' contract was subsequently waived in writing. Accordingly, I would hold that the trial court erred in failing to conduct an evidentiary hearing on the arbitration issue in accord with our holding in Merrill Lynch Pierce Fenner Smith, Inc. v. Melamed, 425 So.2d 127 (Fla. 4th DCA 1982), rev. denied, 433 So.2d 519 (Fla. 1983).