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On What Grounds? Challenging an Arbitration Award Under Federal and Florida Law

Appellate Practice

For decades, it has been considered an “axiom of federal and Florida law that written agreements to arbitrate are binding and enforceable.”1 This wasn’t always true. Before the enactment of the Federal Arbitration Act (FAA) and its Florida counterpart, the Florida Arbitration Code (FAC), courts were generally hostile to arbitration, viewing it as “an attempt to oust courts of [their] lawful jurisdiction.”2

This hostility was checked legislatively in 1925 with Congress’ passage of the FAA, which “places arbitration agreements on an equal footing with other contracts and requires courts to enforce them according to their terms.”3 Approximately 30 years later, the Florida Legislature followed Congress’ lead by creating the FAC. Both schemes declare that arbitration agreements are “valid, irrevocable, and enforceable”4 and, as a result, arbitration is now accepted as “a favored means of resolving disputes in Florida.”5

The reasons for choosing arbitration, and the policies supporting enforcement of arbitration agreements, are well recognized. Because arbitrators are not bound by the same procedural constraints as courts, parties often view arbitration as a way to resolve their disputes while avoiding the potentially significant costs and delays that often come with litigation. Courts, for their part, view arbitration as a simple matter of contract: Since the parties have voluntarily chosen arbitration over going to court, courts will “indulge every reasonable presumption” in favor of that choice.6

The benefits of arbitration, however, do not come without trade-offs, one of which is the right to traditional appellate review. Just as courts will enforce the parties’ initial decision to arbitrate, they will not interfere with that decision after an arbitration award is issued beyond a few limited, statutorily defined grounds. Crucially, these grounds do not include substantive review of the award for “mere” errors of law or fact. As a result, “judicial review of arbitration decisions is among the narrowest known to the law.”7

This article provides an overview of the current state of the law in Florida concerning review of arbitration awards, including the governing sources of law, the statutory grounds for judicial vacatur, modification, and correction, and recent judicial decisions significantly narrowing the availability of nonstatutory grounds for review. This article also discusses the option of appellate review within the arbitration itself. Because such review, like arbitration generally, is a matter of contract, it is ultimately up to the parties to decide in advance whether the award will be reviewable in a substantive appeal. Unlike a court proceeding, parties to arbitration cannot wait until a decision is issued to decide who gets the last word.

Judicial Review of Arbitration Awards — Governing Law
Under both the FAA and the FAC, a party seeking to challenge an arbitration award must demonstrate one of the statutory grounds for vacatur, modification, or correction in order to succeed. In the absence of a timely motion establishing one of these grounds, “neither a trial court nor a district court of appeal has the authority to overturn the award.”8

Initially, the party must determine which source of law — the FAA or the FAC — applies to the award. In its recent decision in Visiting Nurse Association of Florida, Inc. v. Jupiter Medical Center, Inc., 154 So. 3d 1115 (Fla. 2014), cert. denied, 135 S. Ct. 2052 (2015), the Florida Supreme Court explained that the FAA “controls when a transaction involves interstate commerce,” while “[a]n arbitration clause in a contract not involving interstate commerce is subject to the FAC.” Even in cases involving interstate commerce, however, Florida courts should still apply the FAC to the extent it does not conflict with the FAA. Thus, in Visiting Nurse, the court held that although the FAA controlled, it would also apply the FAC in determining whether vacatur was appropriate because, under the facts, the statutes were not in conflict.9

Regardless of whether the FAA controls, a motion challenging an arbitration award must be filed in state court unless there is an independent basis for federal subject matter jurisdiction. According to the U.S. Supreme Court, the FAA is “something of an anomaly in the field of federal-court jurisdiction” in that, although it creates a body of federal substantive law governing arbitration, it does not confer jurisdiction on federal courts.10

Attorneys should also be careful to make sure they are applying the correct version of the FAC, which was substantially revised in 2013 and renamed the Revised Florida Arbitration Code.11 The purpose of the revision was to conform the FAC to the Revised Uniform Arbitration Act (RUAA) released in 2000 by the National Conference of Commissioners on Uniform State Laws.12 While the revisions significantly altered numerous portions of the FAC, the grounds for modification, correction, and vacatur of awards were largely, although not entirely, unchanged.13 its terms, the revised code currently applies to arbitration agreements made on or after July 1, 2013, and — until June 30, 2016 — in any arbitration proceeding where the parties agree the revised code will apply. Beginning July 1, 2016, all arbitration agreements will be subject to the revised code.14

Statutory Grounds for Vacatur
design, the grounds for vacating an arbitration award — set forth in F.S. §682.13 and 9 U.S.C. §10 — are narrow. Consistent with the policy of enforcing arbitration awards, vacatur is generally limited to defects that taint the arbitration process itself, such as misconduct by a party or the arbitrator, and does not include “mere errors of law, or errors of construction or interpretation of a contract.”15

The Award Procured by Fraud, Corruption, or Other Undue Means — The first ground for vacatur focuses on misconduct by a party to the arbitration, and includes, for example, perjury by a party or witness at the arbitration hearing.16 Courts have adopted a three-part test required to prevail on this ground. The challenging party must 1) prove the fraud by clear and convincing evidence; 2) demonstrate that the fraud was not discoverable by the exercise of due diligence before or during the arbitration hearing; and 3) demonstrate that the fraud was material to an issue in the arbitration.17 Thus, if the challenger could have discovered the fraud and presented evidence of it at the arbitration hearing, but simply failed to do so, the trial court cannot vacate the award. Likewise, there is no basis for relief if the fraud concerned only a minor or collateral issue.18

Evident Partiality, Corruption, or Prejudicial Misconduct by an Arbitrator The next ground concerns wrongdoing by the arbitrator. There does not appear to be any definitive test for evaluating whether an arbitrator was “evidently” partial, with one court commenting that “evident partiality, like obscenity, is an elusive concept: one knows it when one sees it, but it is awfully difficult to define in exact terms.”19 Generally, however, this ground reflects that “an arbitrator has an affirmative duty to disclose any dealings that might create an impression of possible bias” and that the failure to do so “undermines the appearance of propriety and the confidence of the fairness of the proceedings.”20

However, evident partiality is a ground for vacatur only in the context of arbitrators appointed as neutrals. The reason is that “non-neutral, party-appointed arbitrators are not expected to be impartial in the same sense as neutral arbitrators.”21 Therefore, bias or partiality by a nonneutral arbitrator will serve as a ground for vacatur only when it rises to the level of corruption.22 Additionally, while evident partiality and corruption are grounds for vacatur even in the absence of prejudice, “misconduct” or “misbehavior” by an arbitrator requires a showing that the challenger was prejudiced.23

The Abuse of Arbitrator’s Discretion in Conducting the Hearing — The third ground concerns the manner in which the arbitrator conducted the hearing, authorizing vacatur when the arbitrator 1) refused to postpone the hearing upon a showing of sufficient cause; 2) refused to hear evidence material to the controversy; or 3) otherwise conducted the hearing in a manner prejudicial to a party’s rights. This reflects the principle that “[a]lthough an arbitrator need not follow all the niceties observed in court proceedings, the arbitrator must grant the parties a fundamentally fair hearing.”24 Even so, Florida courts have not automatically vacated awards when an arbitrator failed to postpone a hearing or admit material evidence, instead holding that the question is whether the arbitrator abused his or her discretion in conducting the hearing.25 In addition, the arbitrator’s decision must have involved a matter material to the outcome, resulting in prejudice to the challenging party.26

The Arbitrator Exceeded Powers — The Florida Supreme Court has explained that this ground “is jurisdictional in nature and is in reference to the scope of authority given to an arbitrator in the arbitration agreement.”27 An arbitrator, therefore, “exceeds his or her power…when he or she goes beyond the authority granted by the parties or the operative documents and decides an issue not pertinent to the resolution of the issue submitted to arbitration.”28 Arbitrators also exceed their authority by deciding the arbitration in a manner contrary to the terms of the arbitration agreement.29 Finally, the U.S. Supreme Court has held that this ground applies when an arbitrator disregards the parties’ contract altogether and issues a decision that simply reflects his or her “own notions of economic justice.”30 Arbitrators do not, however, exceed their authority merely “by acting contrary to the law.”31 Even if an issue is beyond the scope of the arbitration agreement, a party cannot later challenge the award if it failed to object to the arbitrator’s resolution of the issue or otherwise arbitrated the issue by consent.32

No Agreement to Arbitrate — A party may also challenge the award on the ground that there was no valid agreement to arbitrate between the parties.33 “[H]owever, the right to challenge an award on this ground is conditioned upon the party who contests the validity of an arbitration agreement raising this objection no later than the beginning of the arbitration hearing…if the party participates in the arbitration proceeding.”34 If a timely objection is raised, the party preserves its right to challenge the existence of a valid agreement post-arbitration, even if the party had other options for challenging arbitrability (for example, by refusing to arbitrate and requiring the opposing party to file a motion to compel arbitration).35

Arbitration Conducted Without Proper Notice — This is the only new ground for vacatur created in the revised FAC. An award may now be vacated if the challenging party was not properly notified of the initiation of the arbitration in the manner specified by F.S. §682.032 and suffered substantial prejudice from the lack of notice.36 The drafters of the RUAA explained that the notice requirement “is a minimal one intended to meet due process concerns by informing a person as to the controversy and remedy sought” and that it “is not intended to be a formal pleading requirement.”37 But if the party actually appeared at the arbitration, any challenge on this ground is waived absent an objection at the beginning of the hearing.38

Statutory Grounds for Modification or Correction
When a party “wishes to enforce an award, but not exactly how it is written,”39 the party may move the court to modify or correct the award on any of the three grounds set forth in F.S. §682.14 and 9 U.S.C. §11.

1) An evident miscalculation of figures or mistake in the description of any person, thing, or property referenced in the award — Courts have held that an “evident” miscalculation or mistake is one that appears on the face of the award, such as a mathematical error by the arbitrator in adding the numbers in a column, or the arbitrator mistakenly using the wrong year or serial number of a vehicle referenced in the award.40 contrast, if it is not clear how the arbitrator calculated the amount awarded, courts will not grant modification because the miscalculation is not “evident” from the face of the award.41

2) The arbitrator awarded upon a matter not submitted, and the award may be corrected without affecting the merits on the issues submitted — Similar to the court’s authority to vacate an award when the arbitrator exceeds his or her powers, the court may modify or correct the award when the arbitrator rules on an issue the parties did not agree to arbitrate. For example, courts have modified awards to strike an arbitrator’s award of attorneys’ fees in cases when the parties did not authorize the arbitrator to decide the prevailing party’s entitlement to or the proper amount of fees.42

3) The award is imperfect as a matter of form, not affecting the merits — Awards have been found imperfect as a matter of form when they “suffer[] from a scrivener’s error” or “otherwise do[] not deliver on the arbitrator’s stated purpose in granting relief.”43 This ground has been applied to correct an award when the arbitrator’s intent was clearly expressed in the record (such as in an oral ruling at the hearing), but the award failed to reflect that intent due to some error or oversight in preparing the written award.44

Nonstatutory Grounds
Until recently, most federal and Florida courts recognized several judicially created, nonstatutory grounds for challenging arbitration awards, including 1) manifest disregard of the law by the arbitrator; 2) the award was arbitrary and capricious; and 3) enforcement of the award would violate public policy.45 Some courts also permitted parties to create their own grounds for review in the arbitration agreement, for example, by providing that any award could be challenged in court for errors of law or fact. Following a series of recent judicial decisions, however, these grounds have been largely, if not entirely, eliminated.

First, in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008), the U.S. Supreme Court held that parties cannot by agreement supplement the FAA’s grounds for challenging an award, flatly holding that “the statutory grounds are exclusive.” Any other reading of the FAA, the Court reasoned, would open the door to “full-bore legal and evidentiary appeals…and bring arbitration theory to grief in the post-arbitration process.”

Following Hall Street, the federal circuit courts of appeal have divided as to whether that decision merely eliminates nonstatutory grounds created by parties or whether it also eliminates nonstatutory grounds created by courts.46 In Frazier v. CitiFinancial Corp., LLC, 604 F.3d 1313 (11th Cir. 2010), the 11th Circuit took the latter position, holding that “judicially-created bases for vacatur are no longer valid in light of Hall Street.”

The Florida Supreme Court addressed the issue in its 2014 decision in Visiting Nurse, in which the court accepted review to resolve a conflict between the Fourth and Fifth district courts of appeal as to whether Florida courts may vacate an award on the nonstatutory ground that the underlying contract is illegal. Because the court found that 1) the contract at issue involved interstate commerce, and 2) the FAC was not in conflict with the FAA, it proceeded to analyze the question under both federal and Florida law. As to the FAA, the court examined Hall Street, as well as subsequent decisions of the federal circuits discussing its scope, and came down squarely on the side of the 11th Circuit, holding that the FAA’s “bases for vacating or modifying an arbitral award cannot be supplemented judicially or contractually after Hall Street.” Turning to the FAC, the court reached the same conclusion, citing its prior holdings that “[§]682.13(1) sets forth the only grounds upon which an award of an arbitrator may be vacated.”

In light of these decisions, any nonstatutory grounds for challenging an arbitration award in Florida appear to have been eliminated, regardless of whether the challenge is brought in federal or state court. Pending further elaboration on the scope of Hall Street by the U.S. Supreme Court, parties should assume that the statutory grounds are exclusive, and that neither parties nor courts may expand the scope of judicial review.47

Appellate Arbitration
The absence of substantive review, underscored by Hall Street and its progeny, may be a significant drawback for some parties considering arbitration.

Recognizing this problem, the drafters of the RUAA commented that parties concerned about the lack of substantive review could contract for appellate review within the arbitration itself. Unlike contractually expanded judicial review, appellate arbitration “do[es] not entangle the courts in reviewing the merits of challenged arbitration awards. Instead, appellate arbitral review mechanisms merely add a second level to the contractual arbitration procedure that permits parties disappointed with the initial arbitral result to secure a degree of protection from the occasional ‘wrong’ arbitration decision.”48

At the time the RUAA was completed, several arbitration organizations, including CPR and JAMS, already had procedures for appellate arbitration. More recently, the AAA released its Optional Appellate Arbitration Rules, which became effective on November 1, 2013.49 The AAA’s appellate rules, which can be invoked either by agreement in the parties’ contract or by stipulation at the beginning of the hearing, establish procedures for appellate arbitration that include many of the features of a judicial appeal, including preparation of a record on appeal, appellate briefing, and, if requested, oral argument. The rules allow the appellate tribunal to review the award for errors of law that are “material and prejudicial” and findings of fact that are “clearly erroneous.” At the conclusion of the appeal, the tribunal’s decision becomes the final award for purposes of judicial enforcement.

While it is not clear that appellate arbitration would be any less expensive than a judicial appeal — undercutting one of the key purposes of arbitration as a faster and cheaper alternative to litigation — it may now be the only real option for parties who want to ensure that the arbitrator’s decision is subject to substantive appellate oversight.

In many cases, arbitration provides a desirable alternative for parties who want to avoid the time and expense of going to court. Nonetheless, parties considering arbitration must recognize that the “default setting” for arbitration comes without the same type of appellate oversight as a court proceeding, and that — beyond the narrow statutory grounds — courts will not interfere with an arbitrator’s decision. Attorneys drafting arbitration clauses should make sure their clients understand that, if they want the right to appeal an arbitration award, it may have to be provided for in the arbitration agreement itself. Otherwise, they could end up bound to an arbitration award that fails to reflect the governing law or facts of the case, with no clear means of relief.

1 KFC Nat’l Mgmt. Co. v. Beauregard, 739 So. 2d 630, 631 (Fla. 5th DCA 1999).

2 Richmond HealthCare, Inc. v. Digati, 878 So. 2d 388, 390 (Fla. 4th DCA 2004); see also Scherk v. Alberto-Culver Co., 417 U.S. 506, 510 n.4 (1974) (“English courts traditionally considered irrevocable arbitration agreements as ‘ousting’ the courts of jurisdiction, and refused to enforce such agreements for this reason. This view was adopted by American courts as part of the common law up to the time of the adoption of the [FAA].”).

3 Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 69 (2010) (citations omitted).

4 9 U.S.C. §2; Fla. Stat. §682.02.

5 NationsBanc Secs., Inc. v. Aron, 787 So. 2d 881, 884 (Fla. 2d DCA 2001).

6 Spivey v. Teen Challenge of Fla., Inc., 122 So. 3d 986, 992 (Fla. 1st DCA 2013) (quoting Am. Int’l Grp., Inc. v. Cornerstone Bus., Inc., 875 So. 2d 333, 338 (Fla. 2d DCA 2004)).

7 AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., 508 F.3d 995, 1001 (11th Cir. 2007) (quotation marks omitted).

8 Schnurmacher Holding Inc. v. Noriega, 542 So. 2d 1327, 1328 (Fla. 1989); see also Polley v. Gardner, 98 So. 3d 648, 649 (Fla. 1st DCA 2012) (holding that because the motion to set aside the award was untimely and failed to meet the statutory criteria, “the entry of final judgment confirming the arbitration award was a ministerial task”).

9 As Visiting Nurse indicates, although parties must ensure they are applying the correct statute, the difference between federal and Florida law may rarely, if ever, affect the outcome in the context of post-arbitral review. See also Commercial Interiors Corp. of Boca Raton v. Pinkerton & Laws, Inc., 19 So. 3d 1062, 1064 n.2 (Fla. 5th DCA 2009) (noting that “the grounds for relief are essentially the same” in both the FAA and the FAC). Moreover, because the FAC is ultimately modeled on the FAA, Florida courts can still look to federal case law for guidance even when the FAC, alone, controls. See RDC Golf of Fla. I, Inc. v. Apostolicas, 925 So. 2d 1082, 1091 (Fla. 5th DCA 2006).

10 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n.32 (1983); see also Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1471 (11th Cir. 1997).

11 Fla. Stat. §682.01 (2015); see also Laws of Fla., Ch. 2013-232, §1.

12 See Fla. S. Comm. on Judiciary, Bill Analysis & Fiscal Impact Statement, SB 530 (Feb. 18, 2013) (stating that the purpose of the revision was to adopt the RUAA); see also Uniform Law Commission, Uniform Arbitration Act (2000), available at

13 See generally Craig R. Lewis & Juan Ramirez, Jr., The Revised Florida Arbitration Code, 86 Fla. B. J. 8 (May 2015) (reviewing the changes made in the revised code, including the creation of new provisions governing the enforceability of arbitration agreements and the conduct of the arbitration, as well as provisions concerning the post-arbitration process).

14 Fla. Stat. §682.013.

15 Visiting Nurse, 154 So. 3d at 1134; see also Moser v. Barron Chase Secs., Inc., 783 So. 2d 231, 235 (Fla. 2001) (commenting that §682.13 “is limited to concerns which may taint the [arbitration] process”).

16 Davenport v. Dimitrijevic, 857 So. 2d 957, 962 (Fla. 4th DCA 2003).

17 Id. at 961; Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1378, 1383 (11th Cir. 1988).

18 See Low v. Minichino, 267 P.3d 683, 692 (Haw. Ct. App. 2011); see also Peabody v. Rotan Mosle, Inc., 677 F. Supp. 1135, 1137-38 (M.D. Fla. 1987) (finding that an expert witness’ perjured testimony “did not lead to an award procured through fraud” where the testimony concerned “a relatively minor issue” that did not affect the arbitrators’ decision).

19 RDC Golf, 925 So. 2d at 1092 (quoting Cont’l Ins. Co. v. Williams, No. 84–2646–CIV–MARCUS, 1986 WL 20915 at *3-4 (S.D. Fla. 1986)).

20 Weinger v. State Farm Fire & Cas. Co., 620 So. 2d 1298, 1299 (Fla. 4th DCA 1993). This duty has been made explicit in the revised FAC, which requires arbitrators to disclose any financial or personal interests in the outcome of the proceeding or relationships with the parties or their counsel. A neutral arbitrator who fails to make these disclosures is “presumed to act with evident partiality….” Fla. Stat. §682.041(5).

21 RUAA §23 (cmt. A.1).

22 Id.; see also Mahnke v. Super. Ct., 180 Cal. App. 4th 565, 574-75 (Cal. Ct. App. 2009) (“[B]ias in a party arbitrator is expected and furnishes no ground for vacating an arbitration award, unless it amounts to ‘corruption.’”).“Corruption” is not defined in the FAA or FAC, although Black’s Law Dictionary defines the term to include “[a] fiduciary’s or official’s use of a station or office to procure some benefit either personally or for someone else, contrary to the rights of others. . . . ” Black’s Law Dictionary (10th ed. 2014).

23 RUAA §23 (cmt. A.1). Like “corruption,” these terms are not defined. But see Cavalier Mfg., Inc. v. Gant, 143 So. 3d 762, 770 (Ala. 2013) (concluding that under the FAA, “the misconduct and misbehavior that merits a vacatur must relate to whether a party was afforded a fundamentally fair hearing”); see also Creative Homes & Millwork, Inc. v. Hinkle, 426 S.E.2d 480, 483 (N.C. Ct. App. 1993) (collecting cases finding prejudicial misconduct).

24 Talel Corp. v. Shimonovitch, 84 So. 3d 1192, 1194 (Fla. 4th DCA 2012).

25 Flavio Dev. Corp. v. Laguna E. Club Condo. Ass’n, Inc., 756 So. 2d 186, 187 n.1 (Fla. 3d DCA 2000) (applying the FAC); Lee v. Dean Witter Reynolds, Inc., 594 So. 2d 783, 785 (Fla. 2d DCA 1992) (applying the FAA).

26 See Murton Roofing Corp. v. FF Fund Corp., 930 So. 2d 772, 774 (Fla. 3d DCA 2006) (excluded evidence was not material and, therefore, the challenger was not prejudiced by the arbitrator’s failure to consider it); Open Bible Cmty. Church v. Paragon Constr. Ultd., Inc., 751 So. 2d 188, 189 (Fla. 3d DCA 2000) (same).

27 Visiting Nurse, 154 So. 3d at 1137; see also Village at Dolphin Commerce Ctr., LLC v. Constr. Serv. Solutions, LLC, 143 So. 3d 942, 944 (Fla. 3d DCA 2014).

28 Schnurmacher Holding, 542 So. 2d at 1329; see, e.g., Markowitz v. City of Miami, 56 So. 3d 109, 111 (Fla. 3d DCA 2011) (arbitrator exceeded his authority by treating individual arbitration as class arbitration and awarding damages to parties other than the petitioner); Soler v. Secondary Holdings, Inc., 832 So. 2d 893, 895 (Fla. 3d DCA 2002) (arbitrator exceeded his authority when, although the matter was arbitrated solely to determine whether a partnership was formed, he went one step further and awarded damages).

29 See, e.g., Cat Charter, LLC, v. Schurtenberger, 646 F.3d 836, 843 (11th Cir. 2011) (an arbitrator exceeds his or her authority by failing to provide an award in the form required by the arbitration agreement); Visiting Nurse, 154 So. 3d at 1137 (citing federal cases holding that “an arbitrator exceeds his or her powers if the arbitration clause directs the arbitrator to apply a particular state’s laws and the arbitrator chooses to apply a different state’s laws”); see also Int’l Bhd. of Elec. Workers, Local Union 24 v. Verizon Fla., LLC, 803 F.3d 1241, 1247-48 (11th Cir. 2015) (holding that the arbitrator exceeded his authority by withdrawing his original decision and issuing a substituted award in violation of the AAA Labor Arbitration Rules, which had been incorporated into the parties’ arbitration agreement).

30 Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064, 2068 (2013) (alterations omitted).

31 Fowler v. Ritz-Carlton Hotel Co., LLC, 579 Fed. Appx. 693, 699 (11th Cir. 2014).

32 See LeNeve v. Via S. Fla., L.L.C., 908 So. 2d 530, 534 (Fla. 4th DCA 2005) (“[U]nlike a court’s subject matter jurisdiction which cannot be conferred by the parties, an arbitrator’s jurisdiction derives from the parties’ agreement and can broaden during the course of arbitration by waiver, failure to object and consent.”) (quotation marks omitted).

33 Fla. Stat. §682.13(1)(e). Although the FAA does not expressly contain a corresponding ground for vacatur, federal courts have affirmed the right of objecting parties to challenge the existance of a valid arbitration agreement post-arbitration. See, e.g., Lukens Steel Co. v. United Steelworkers of Am. (AFL–CIO), 989 F.2d 668, 679 n.11 (3d Cir. 1993).

34 RUAA §23 (cmt. A.2) (emphasis added).

35 Grant v. Rotolante, 147 So. 3d 128, 132 (Fla. 5th DCA 2014).

36 Fla. Stat. §682.13(1)(f).

37 RUAA §23 (cmt. A.2-3).

38 Fla. Stat. §682.032(2).

39 Aron, 787 So. 2d at 883-84.

40 See AIG Baker Sterling Heights, 508 F.3d at 1000; All Metro Supply, Inc. v. Warner, 707 N.W.2d 1, 6 (Minn. Ct. App. 2005).

41 Applewhite v. Sheen Fin. Res., Inc., 608 So. 2d 80, 83 (Fla. 4th DCA 1992).

42 See, e.g., Davis v. Prudential Secs., Inc., 59 F.3d 1186, 1196 (11th Cir. 1995); Greco v. Carlton, 793 So. 2d 1088, 1091-92 (Fla. 4th DCA 2001).

43 Franskousky v. Morgan Stanley Smith Barney LLC, No. 3:14–cv–878–J–32JRK, 2014 WL 7224462 at *5 (M.D. Fla. Dec. 17, 2014) (quoting Grain v. Trinity Health, Mercy Health Servs. Inc., 551 F.3d 374, 379 (6th Cir. 2008)).

44 See Vertical UK LLP v. Dundee, Ltd., No. 10 Civ. 1173(DAB), 2011 WL 2419859 at *4 (S.D.N.Y. June 13, 2011) (collecting cases).

45 See Frazier v. CitiFinancial Corp., LLC, 604 F.3d 1313, 1322 & n.7 (11th Cir. 2010) (describing the standard applicable to each nonstatutory ground); see also Capital Factors, Inc. v. Alba Rent-A-Car, Inc., 965 So. 2d 1178, 1183 n.3 (Fla. 4th DCA 2007).

46 See Matthew Wolper, “Manifest Disregard”: Not Yet Entirely Disregarded, 86 Fla. B. J. 36 (2012) (discussing the federal circuit split).

47 Of course, a party that believes any of the judicially created, nonstatutory grounds are met as to a particular award may still want to consider raising the issue for preservation purposes, until the current circuit split is resolved.

48 RUAA §23 (cmt. B.6).

49 American Arbitration Association, Optional Appellate Arbitration Rules (Nov. 2013), available at

Jonathan S. Tannen is an associate in the Tampa office of Greenberg Traurig, where his practice focuses on appellate law and commercial litigation. He is a graduate of the University of Virginia School of Law and a former law clerk to Justice Peggy A. Quince of the Florida Supreme Court.

This column is submitted on behalf of the Appellate Practice Section, Christopher Vincent Carlyle, chair, and Brandon Christian, editor.

Appellate Practice