Key Points

  • The Second District affirmed the denial of Diamond Edge Construction's motion to compel arbitration against The Moorings of Pinellas County Condominium Association.
  • The court held that a complaint's allegation that the association "entered into" the agreement was a statement in a preliminary pleading, not a binding admission, where no answer had been filed and the association pleaded unjust enrichment in the alternative.
  • The association's $818,266.02 payment was not acquiescence to the unsigned agreement because nothing connected the payment to the agreement's terms.
  • Because the unsigned agreement omitted essential terms, the scope of work and the construction price, it was at best an agreement to agree and unenforceable, arbitration clause included.

A Florida appeals court ruled Friday that a Pinellas County condominium association cannot be forced into arbitration with an unlicensed contractor it paid $818,266.02, because nothing showed the association accepted the contractor's unsigned agreement and the document never set a price or described the work.

A three-judge panel of the Second District Court of Appeal affirmed a trial court order denying Diamond Edge Construction LLC's motion to compel arbitration against The Moorings of Pinellas County Condominium Association Inc. Judge Guard wrote the opinion, and Judges Northcutt and Khouzam concurred.

The decision keeps the association's fraud and unjust enrichment suit in circuit court. The panel held that the association's own complaint, which alleged that it had "entered into" the contract, did not bind it at this early stage of the case. The panel also held that the large payment did not show the association had accepted the contract, because nothing connected the money to the contract's terms.

Hurricane Helene damaged at least 40 units at the Moorings on Sept. 26, 2024, according to the opinion. On June 2, 2025, Diamond Edge gave the association a Construction Services Agreement signed by its chief executive. The first page said Diamond Edge held a Florida general contractor license and listed a number. Diamond Edge was in fact unlicensed, and the number was a state fictitious name registration number, the court said.

The agreement contained no construction price and no scope of work. It said Diamond Edge would inspect the site and that the parties would then "mutually develop and agree upon, by execution of a Change Order in accordance with Section 2.7 herein, the scope of Work and cost." It called for an initial deposit but named no amount. It also required arbitration under the Federal Arbitration Act and the Construction Industry Arbitration Rules of the AAA. The association never signed it.

Sometime between June 2 and Aug. 28, 2025, the association sent Diamond Edge $818,266.02. "It is unclear why these monies were remitted," Judge Guard wrote. The opinion says the parties do not appear to have ever agreed on a scope of work or a price. After learning that Diamond Edge was unlicensed, the association sent a letter on Aug. 28 terminating the agreement, to the extent that there was a contract, and demanding records accounting for the money.

The association also learned that Diamond Edge had formed a joint venture with Bosch Brothers Industries LLC and that $350,000 of the association's money had been transferred to Bosch. The venture ended after a dispute involving a third company, C.F. Tuohey Construction Inc., and Bosch returned the $350,000 to the association, according to the opinion.

The association sued on Sept. 22, 2025. It sought a declaration that the agreement was void and unenforceable, asserted fraud in the inducement claims against Diamond Edge, Robert J. Jackson and Tuohey, and asserted an unjust enrichment claim against Diamond Edge. Judge Michael F. Andrews of the Circuit Court for Pinellas County denied Diamond Edge's motion to compel arbitration. The trial court found that the company had not proved an enforceable agreement to arbitrate "as there was no evidence beyond the unsigned contract, and contents of the Complaint."

On appeal, the panel acknowledged that "Florida favors arbitration." It noted that under U.S. Supreme Court precedent, a challenge to a contract's validity generally goes to the arbitrator. The parties here, however, argued only over whether any agreement to arbitrate existed at all.

The court rejected the association's argument that its lack of a signature ended the matter. Citing its 2019 decision in Hayslip v. U.S. Home Corp., in which home buyers were bound after taking title with notice of an arbitration clause, the court repeated that "a party's conduct can demonstrate intent to be bound by the agreement."

Diamond Edge relied "almost solely" on the association's complaint, Judge Guard wrote, including its allegation that the association had "entered into a Construction Services Agreement" on June 2, 2025. The court held that such statements in "preliminary pleadings" are not treated as admissions. "This case is not at issue. There is no answer even filed," Judge Guard wrote. The court added that the association had pleaded unjust enrichment, a claim inconsistent with a contract's existence, as Florida law allows plaintiffs to do in the alternative.

The court said attaching the unsigned agreement to the complaint showed the association knew about the arbitration clause. The question was whether the association had accepted the agreement, and the closest conduct to acceptance was the payment. "Nowhere in the Agreement is $818,266.02 listed, whether a deposit, full payment, or otherwise," Judge Guard wrote. "Without any connection between the remitted amount and the contract itself, it cannot be treated as acquiescence to the contract."

That left only the unsigned document. The court concluded that "the parties had not agreed on essential terms, namely the scope of the work to be performed and the construction price to be paid," so the agreement was "at best, an agreement to agree" and could not be enforced. The panel relied on its 2023 decision in Certified Motors LLC v. Aventine Hill LLC, quoting it for the rule that "Failure to include essential terms is generally fatal to a contract's enforceability."

Lawyers for Diamond Edge included Matthew J. Brinzo of Bishop & Page PLLC. The association was represented by Gregory S. Grossman of Greenberg Nikoloff P.A. The remaining appellees did not appear in the appeal.

The appeal challenged a nonfinal order, and the opinion notes that no answer had been filed. The opinion is subject to revision before official publication.