VERIZON WIRELESS PERSONAL COMMUNICATIONS, LP v. CHRISTOPHER BATEMAN , 264 So. 3d 345 ( 2019 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
VERIZON WIRELESS PERSONAL )
COMMUNICATIONS, LP, )
)
Appellant, )
)
v. ) Case No. 2D18-161
)
CHRISTOPHER BATEMAN, )
)
Appellee. )
)
Opinion filed February 8, 2019.
Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Pinellas County;
Thomas H. Minkoff, Judge.
R. Eric Bilik, Emily Y. Rottmann, and Daniel
Mahfood of McGuire Woods LLP,
Jacksonville, for Appellant.
Katherine Earle Yanes and Brandon K.
Breslow of Kynes, Markman & Felman,
P.A., Tampa; and Brian L. Shrader and
Gus M. Centrone of Dunlap Bennett &
Ludwig, PLLC, Tampa, for Appellee.
LaROSE, Chief Judge.
Verizon Wireless Personal Communications, LP, challenges the trial
court's nonfinal order denying its motion to compel arbitration. We have jurisdiction.
See Fla. R. App. P. 9.030(b)(1)(B); 9.130(a)(3)(C)(iv). Because Christopher Bateman's
statutory claims are not arbitrable, we affirm.1
I. Procedural and Factual Background
In 2011, Mr. Bateman obtained cell phone service from Verizon. Mr.
Bateman agreed to the terms of Verizon's Customer Agreement. The Customer
Agreement included an arbitration provision and stated that Verizon could unilaterally
change the Customer Agreement at any time. Verizon revised the arbitration provision
in 2012. The revised provision states, in relevant part, as follows:
YOU AND VERIZON WIRELESS BOTH AGREE TO
RESOLVE DISPUTES ONLY BY ARBITRATION OR IN
SMALL CLAIMS COURT. . . . WE ALSO BOTH AGREE
THAT:
(1) THE FEDERAL ARBITRATION ACT APPLIES TO THIS
AGREEMENT. EXCEPT FOR SMALL CLAIMS COURT
CASES THAT QUALIFY, ANY DISPUTE THAT IN ANY
WAY RELATES TO OR ARISES OUT OF THIS
AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS
AND SERVICES YOU RECEIVE FROM US (OR FROM
ANY ADVERTISING FOR ANY SUCH PRODUCTS OR
SERVICES) WILL BE RESOLVED BY ONE OR MORE
NEUTRAL ARBITRATORS BEFORE THE AMERICAN
ARBITRATION ASSOCIATION ("AAA") OR BETTER
BUSINESS BUREAU ("BBB"). YOU CAN ALSO BRING
ANY ISSUES YOU MAY HAVE TO THE ATTENTION OF
FEDERAL, STATE, OR LOCAL GOVERNMENT
AGENCIES, AND IF THE LAW ALLOWS, THEY CAN SEEK
RELIEF AGAINST US FOR YOU.
....
(3) THIS AGREEMENT DOESN'T ALLOW CLASS OR
COLLECTIVE ARBITRATIONS EVEN IF THE AAA OR
BBB PROCEDURES OR RULES WOULD.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
1We will not address whether Verizon waived its right to arbitrate because
Mr. Bateman does not rely on waiver on appeal. See Kenyon v. Kenyon, 496 So. 2d
839, 840 (Fla. 2d DCA 1986) (holding an issue waived when the parties failed to brief
the issue).
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AGREEMENT, THE ARBITRATOR MAY AWARD MONEY
OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE
INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO
THE EXTENT NECESSARY TO PROVIDE RELIEF
WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM.
NO CLASS OR REPRESENTATIVE OR PRIVATE
ATTORNEY GENERAL THEORIES OF LIABILITY OR
PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY
ARBITRATION HELD UNDER THIS AGREEMENT.
Mr. Bateman cancelled his Verizon service in March 2013. A little more
than a year later, Mr. Bateman filed a chapter 7 bankruptcy petition. He identified
Verizon as a general unsecured creditor for $481. In August 2014, the bankruptcy court
discharged Mr. Bateman's debts, including the Verizon debt, under 11 U.S.C. § 727
(2012). As a result, Verizon was prohibited from trying to collect the discharged debt
from Mr. Bateman. See 11 U.S.C. § 524(a).
After the bankruptcy discharge, Verizon allegedly hired a debt collector,
Convergent Outsourcing, Inc., to send Mr. Bateman a debt collection notice. In mid-
January 2015, Convergent sent a notice telling Mr. Bateman that he owed Verizon
$568.02 but that Convergent would settle the claim for about $200.
Mr. Bateman sued Verizon and Convergent in federal district court,
alleging that Verizon violated the Florida Consumer Collection Practices Act (FCCPA),
and that Convergent violated the FCCPA and the Federal Debt Collection Practices Act
(FDCPA). See Bateman v. Verizon Wireless Pers. Commc'ns LP, No. 8:15-cv-02096–
JDW–AEP (M.D. Fla. 2015). After Mr. Bateman voluntarily dismissed his federal claim,
the district court dismissed the action for lack of subject matter jurisdiction.
Mr. Bateman then sued Verizon in state court. He alleged that Verizon
attempted to collect a debt previously discharged in the bankruptcy court, in violation of
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the FCCPA, section 559.72(7), (9), and (18), Florida Statutes (2014).2 Mr. Bateman
sought to proceed on a class-action basis. Verizon moved to compel arbitration. See 9
U.S.C. § 2 (2012); Fla. R. Civ. P. 1.140(b)(1). The trial court denied Verizon's motion,
citing Seifert v. U.S. Home Corp., 750 So. 2d 633, 639 (Fla. 1999), and Harrier v.
Verizon Wireless Pers. Communications LP (Harrier I), No. 8:12-CV-1588-T-30AEP,
2012 WL 3655355 (M.D. Fla.), reconsideration denied, Harrier v. Verizon Wireless Pers.
Commc'ns LP (Harrier II), 903 F. Supp. 2d 1281 (M.D. Fla. 2012). The trial court found
that Harrier I was "analogous to this action and particularity persuasive."
Mr. Bateman also filed class claims in the bankruptcy court, seeking to
hold Verizon in contempt for allegedly violating the discharge order. Verizon
unsuccessfully tried to stay the bankruptcy claims and compel arbitration. In re
Bateman, 585 B.R. 618, 630 (Bankr. M.D. Fla. 2018).
II. Analysis
We review the trial court's order de novo. See Sherwood v. Slazinski, 162
So. 3d 229, 231 (Fla. 2d DCA 2015).
A. Whether the Customer Agreement Survived the Bankruptcy Discharge
Verizon argues that the trial court erroneously relied on Harrier I because
its reasoning that a bankruptcy discharge renders the Customer Agreement—and
related arbitration provision—unenforceable "in the absence of a reaffirmation
2Subsection (7) prohibits a debt collector from willfully communicating or
engaging in conduct that "can reasonably be expected to abuse or harass the debtor."
Subsection (9) prohibits a debt collector from "[c]laim[ing], attempt[ing], or threaten[ing]
"to enforce a debt when such person knows that the debt is not legitimate, or assert[ing]
the existence of some other legal right when such person knows that the right does not
exist." Subsection (18) prohibits a debt collector from knowingly communicating with a
debtor that "is represented by an attorney with respect to such debt."
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agreement" is inconsistent with bankruptcy law. See 2012 WL 3655355, at *1. More
specifically, Verizon asserts that, "[c]ontrary to Harrier I's erroneous reasoning, it is
axiomatic that bankruptcy discharges only . . . the debtor's personal liability on a claim
for payment . . . , not underlying contracts." Verizon further argues that the trial court
erred by failing to "address the settled concept of severability, under which [Mr.]
Bateman's agreement to arbitrate would survive even if his bankruptcy discharge
somehow invalidated the Customer Agreement as a whole."
Mr. Bateman maintains that the trial court properly relied on Harrier I
because the "better-reasoned and more persuasive weight of authority" holds that "a
contractual arbitration provision is enforceable after a bankruptcy only if the contract
was reaffirmed in the bankruptcy" pursuant to § 524(c).3 Mr. Bateman contends that the
concept of severability is not applicable here because "the issue is neither the validity of
the underlying contract nor the validity of the arbitration clause it contains."
3In his brief, Mr. Bateman mentions in passing that several cases have
stated that the central purpose of a bankruptcy discharge is to give a debtor a fresh start
when holding arbitration agreements unenforceable under the circumstances of the
respective cases. See, e.g., Anderson v. Credit One Bank, N.A., 884 F.3d 382, 390 (2d
Cir. 2018) (holding that enforcing an arbitration agreement for claims based "on alleged
violations of a discharge injunction . . . would interfere with the fresh start bankruptcy
promises debtors, which would create an inherent conflict with the Code"). However,
Mr. Bateman has failed to develop an argument as to how the "fresh start" principle
would make the arbitration provision unenforceable under the facts of this case. He has
mentioned a principle and case law but has failed to apply them. Additionally, Mr.
Bateman did not mention the "fresh start" principle to the trial court. We need not
address it in this opinion. See Manatee Cty. Sch. Bd. v. NationsRent, Inc., 989 So. 2d
23, 25 (Fla. 2d DCA 2008) ("[I]t would be inappropriate . . . . to depart from our role as a
neutral tribunal and to become an advocate by developing arguments that the [party]—
for whatever reason—has chosen not to make. We work within the framework of the
briefs, and it is not our function to rebrief an appeal." (citation omitted)).
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Recently, the United States Bankruptcy Court for the Middle District of
Florida disagreed with the reasoning in Harrier I, holding that the arbitration provision
survived Mr. Bateman's chapter 7 discharge, even though he did not reaffirm his debt
with Verizon. In re Bateman, 585 B.R. at 625 n.24.4 We find In re Bateman highly
persuasive.
As the bankruptcy court explained, "the effect of a chapter 7 discharge is
simply to relieve the debtor of personal liability" for a debt. Id. at 625 (citing Johnson v.
Home State Bank, 501 U.S. 78, 83-84 (1991) (explaining that a chapter 7 discharge
"extinguishes only 'the personal liability of the debtor' " and holding that the underlying
lien does not disappear with a discharge)); see also 11 U.S.C. § 727(b) (providing that
chapter 7 discharge relieves "the debtor from all debts that arose before" the discharge
order and "any liability on a claim" that arose before the commencement of the
bankruptcy). The court further explained that, contrary to Harrier I's reading of § 524(c),
the statute "instructs how to create a valid and enforceable reaffirmation agreement,"
and "does not speak to the original contract between the debtor and the creditor." In re
Bateman, 585 B.R. at 625. "[N]othing in [§] 524 expands the discharge granted under
[§] 727" to discharge the entire contract. In re Bateman, 585 B.R. at 625. The single
case cited in Harrier I recognized that § 524 applied to the reaffirmation agreement, not
the underlying contract. See Jones v. Springfield City Sch. Credit Union, 6 B.R. 336,
338 (Bankr. S.D. Ohio 1980) ("[Section] 524 now establishes parameters for
reaffirmation agreements by court approval under very limited circumstances.").
4Inre Bateman issued during the pendency of this appeal but before oral
argument. Id. at 618.
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Thus, the bankruptcy discharge "does not extinguish the underlying debt"
itself. In re Scantling, 465 B.R. 671, 678 (Bankr. M.D. Fla. 2012), aff'd, 754 F.3d 1323
(11th Cir. 2014). The debt still exists and can be collected through other modes of
enforcing a claim. See Deutsche Bank Tr. Co. Ams. v. Nash, 136 So. 3d 1267, 1269
(Fla. 2d DCA 2014) (holding that the bankruptcy discharge eliminated personal liability,
not in rem liability); see also 11 U.S.C. § 524(e) ("Except as provided in subsection
(a)(3) of this section, discharge of a debt of the debtor does not affect the liability of any
other entity on, or the property of any other entity for, such debt.").
Florida courts are in accord. See, e.g., Can Fin., LLC v. Krazmien, 253
So. 3d 8, 11 (Fla. 4th DCA 2018) ("The terms of the note and mortgage remained intact,
as a bankruptcy discharge 'extinguishes only the personal liability of the debtor.' "
(quoting Johnson, 501 U.S. at 83)). It follows that the discharge does not extinguish an
otherwise binding contract underlying the debt. See In re Bateman, 585 B.R. at 625;
Williams v. Navient Sols., LLC, 564 B.R. 770, 775 (Bankr. S.D. Fla. 2017) ("[A]
discharge entered under § 727 relieves a debtor only of his or her personal obligations
on debts that existed on the petition date. The entry of a chapter 7 discharge does not
vitiate the effectiveness of an otherwise binding agreement to arbitrate matters relating
to a claim that may or may not be subject to the discharge."); cf. Gadomski v. Wells
Fargo Bank N.A., 281 F. Supp. 3d 1015, 1019 (E.D. Cal. 2018) ("The Ninth Circuit has
stated that a bankruptcy discharge does not mean the whole contract has been merged
into the judgment.").
Furthermore, a bankruptcy discharge does not extinguish the arbitration
provision in the Customer Agreement because the obligation to arbitrate is not a "debt"
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or "claim" as defined by the Bankruptcy Code. See 11 U.S.C. § 101(5), (12). It is not a
right to payment or a right to an equitable remedy for breach of performance. See
Mann v. Equifax Info. Servs., LLC, No. 12-CV-14097, 2013 WL 3814257, at *8 n.4 (E.D.
Mich. July 22, 2013) ("An arbitration agreement, however, is not a 'claim to payment,'
but rather merely defines the venue in which a claim to payment is to be resolved."). An
arbitration agreement merely defines the venue where the parties will resolve a claim to
payment or equitable remedy. Id. Consequently, Mr. Bateman's reliance on Jernstad v.
Green Tree Servicing, LLC, No. 11 C 7974, 2012 WL 8169889, at *2 (N.D. Ill. Aug. 2,
2012), is unpersuasive. See Mann, 2013 WL 3814257, at *8 n.4 (finding Jernstad
unpersuasive where the court concluded that the "discharge rendered the parties'
Arbitration Agreement unenforceable," and then immediately stated, "What is
discharged is a claim to payment" (quoting Jernstad, 2012 WL 8169889, at *6)).
Accordingly, we conclude that the Customer Agreement and its arbitration
provision survived Mr. Bateman's bankruptcy discharge. See In re Bateman, 585 B.R.
at 625; Williams, 564 B.R. at 775; cf. Can Fin., LLC, 2018 WL 3654832, at *2. The
absence of a reaffirmation agreement does not change this conclusion. See In re
Bateman, 585 B.R. at 625.
Besides, even if the bankruptcy discharge rendered the Customer
Agreement unenforceable, "the arbitration provision [was] severable and survive[d]."
See id. ("[A]s a matter of substantive federal arbitration law, . . . an arbitration provision
is severable from the remainder of the contract" (quoting Buckeye Check Cashing, Inc.
v. Cardegna, 546 U.S. 440, 445 (2006), for the proposition that "as a matter of
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substantive federal arbitration law, . . . an arbitration provision is severable from the
remainder of the contract")). We reject Mr. Bateman's argument to the contrary.
B. Whether Mr. Bateman's FCCPA Claims Are Arbitrable
Claiming the strong presumption in favor of arbitration, see Morton v.
Polivchak, 931 So. 2d 935, 941 (Fla. 2d DCA 2006), Verizon maintains that Mr.
Bateman's claims are within the scope of the broad arbitration provision because the
Customer Agreement is the "sole source" of the parties' relationship and "the claims
arise directly from Verizon's alleged efforts to enforce its rights under the Customer
Agreement." In contrast, Mr. Bateman contends that his claims arise from a state
consumer protection statute, the FCCPA. He argues that his claims do not arise from
the Customer Agreement because the bankruptcy court discharged the debt; Mr.
Bateman owed nothing under the Customer Agreement.
Florida contract law guides our resolution of whether Mr. Bateman must
arbitrate.5 See Parnell v. CashCall, Inc., 804 F.3d 1142, 1147 (11th Cir. 2015) ("When
federal courts interpret arbitration agreements, state contract law governs and directs
the courts' analyses of whether the parties committed an issue to arbitration."). The
Florida Supreme Court explained that even with a general policy favoring arbitration, a
dispute is within the scope of a "broad" arbitration provision—a provision demanding
arbitration of any claim arising out of or relating to the underlying contract—only if there
5Verizon suggested in its motion to compel arbitration that Georgia law
applies. However, because neither party argues the applicability of Georgia law and
both parties discuss Florida cases, we apply Florida law. See Marine Envtl. Partners,
Inc. v. Johnson, 863 So. 2d 423, 426 (Fla. 4th DCA 2003) (applying Florida law where
"neither party . . . argued the applicability of Colorado law," and both parties "relied
heavily on Florida law as controlling").
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is a significant relationship between the dispute and the contract. Seifert, 750 So. 2d at
638. After all, "no party may be forced to submit a dispute to arbitration that the party
did not intend and agree to arbitrate." Id. at 636.
A significant relationship does not arise "simply because the dispute would
not have arisen absent the existence of a contract between the parties." Id. at 639.
Rather, we look for a "contractual nexus" between the dispute and the contract. See id.
at 638-39. "A contractual nexus exists between a claim and a contract if the claim
presents circumstances in which the resolution of the disputed issue requires either
reference to, or construction of, a portion of the contract." Jackson v. Shakespeare
Found., Inc., 108 So. 3d 587, 593 (Fla. 2013) (citing Seifert, 750 So. 2d at 638).
In Seifert, the court held that a contractual nexus did not exist because the
wrongful death claims, there, were founded "upon a tort theory of common law
negligence unrelated to" any unique rights and obligations imposed under the contract.
750 So. 2d at 640-42. The court further noted that the factual allegations in the
complaint did not rely on the parties' contract, and thus, the "allegations rel[ied] on
obligations that would extend to anyone, third parties as well as the Seiferts, who might
be injured by U.S. Home's tortious conduct." Id. at 641-42.
Mr. Bateman argues that similar to the tort claims in Seifert, the statutory
claims he asserts do not require reference to or construction of the Customer
Agreement. He correctly asserts that his statutory claims rely on obligations that arise
under the FCCPA and that he "could have brought this action based on [Verizon's]
conduct regardless of whether the Customer Agreement ever existed."
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Mr. Bateman does not allege that Verizon's conduct violated the Customer
Agreement, nor does he base his claims on the terms of the Customer Agreement. Cf.
In re Bateman, 585 B.R. at 627-28 (stating that "Verizon misses the mark when
describing the nature of the Motion for Contempt" because Mr. Bateman argued that
Verizon violated the discharge order, not that "the debt collection letter from Verizon's
agent violated the Customer Agreement"). Instead, Mr. Bateman alleges that Verizon
violated the FCCPA. This statute imposes legal duties on consumer debt collectors.6
§ 559.72; Morgan v. Wilkins, 74 So. 3d 179, 181 (Fla. 1st DCA 2011). These legal
duties arise upon a debt collector's communication to collect debt and do not require a
contract. Cf. Desmond v. Accounts Receivable Mgmt., Inc., 72 So. 3d 179, 181 (Fla. 2d
6Section 559.55(6) defines "debt collector" as
any person who uses any instrumentality of commerce within
this state, whether initiated from within or outside this state,
in any business the principal purpose of which is the
collection of debts, or who regularly collects or attempts to
collect, directly or indirectly, debts owed or due or asserted
to be owed or due another. The term "debt collector"
includes any creditor who, in the process of collecting her or
his own debts, uses any name other than her or his own
which would indicate that a third person is collecting or
attempting to collect such debts.
Unlike the FDCPA, "the FCCPA applies not only to debt collectors but also to any
'person.' " Gann v. BAC Home Loans Servicing LP, 145 So. 3d 906, 910 (Fla. 2d DCA
2014); see also § 559.72 (providing that "[i]n collecting consumer debts, no person
shall . . .") (emphasis added); Morgan v. Wilkins, 74 So. 3d 179, 181 (Fla. 1st DCA
2011) (noting the appellees' concession that the trial court was in error when it ruled that
FCCPA pertains only to debt collectors" in a case where a former client allegedly owed
a debt to a law firm); Kelliher v. Target Nat'l Bank, 826 F. Supp. 2d 1324, 1327 (M.D.
Fla. 2011) ("Although the federal FDCPA does not apply to original creditors, the
FCCPA has been interpreted to apply to original creditors as well as debt collection
agencies."). The parties have not asked us to weigh in on whether Verizon is a debt
collector under the FCCPA.
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DCA 2011) (holding that FCCPA applied where ARM attempted to collect debt from the
wrong person because FCCPA applies to "not only an actual debtor, but also 'any
natural person . . . allegedly obligated to pay any debt.' " (quoting § 559.55(2)));
McCaskill v. Navient Sols., Inc., 178 F. Supp. 3d 1281, 1297 (M.D. Fla. 2016) ("[W]hen
a creditor calls the wrong number and mistakenly alleges that the plaintiff owes a debt,
the plaintiff is a 'debtor' under the FCCPA."). Accordingly, the alleged statutory
violations addressed under section 559.72 arose from Verizon's collection efforts and
were not unique to the Customer Agreement. Cf. Five Points Health Care Ltd. v.
Alberts, 867 So. 2d 520, 521 (Fla. 1st DCA 2004) (reasoning that its conclusion the
statutory claims were within the scope of arbitration was consistent with Seifert where
"[t]he statutory duties . . . arose because of Mr. Alberts' admission to Park Ridge
Nursing Center pursuant to the Agreement for Care").
Further, Mr. Bateman's FCCPA claims do not require reference to or
construction of the Customer Agreement. Verizon claims a significant relationship
between the Customer Agreement and its alleged conduct because Mr. Bateman
alleged in his complaint that the underlying debt arose from a "transaction" for cell
phone services.7 We are not moved. Mr. Bateman's allegations do not explicitly
7At oral argument, Verizon argued for the first time that the Customer
Agreement is required to resolve the dispute based on Mr. Bateman's allegations
pertaining to class certification and the limitation of liability provision in the Customer
Agreement. Because Verizon failed to present these arguments pertaining to these
allegations in its briefs, we do not address them. See Bainter v. League of Women
Voters of Fla., 150 So. 3d 1115, 1126 (Fla. 2014) (" 'Basic principles of due process'—to
say nothing of professionalism and a long appellate tradition—'suggest that courts
should not consider issues raised for the first time at oral argument' and 'ought not
consider arguments outside the scope of the briefing process.' " (quoting Powell v.
State, 120 So. 3d 577, 591 (Fla. 1st DCA 2013))); cf. Morton, 931 So. 2d at 941
(declining to address other provisions in an arbitration agreement where the parties did
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mention the Customer Agreement, and the reference to the transaction simply notes
that there was an underlying debt before the bankruptcy discharge. See Mims v. Glob.
Credit & Collection Corp., 803 F. Supp. 2d 1349, 1358 (S.D. Fla. 2011) (stating that the
claims were not intertwined with the Agreement where "the claims presume[ed] the
existence of the Agreement . . . purely for the purpose of noting there [was] an
underlying debt").
It may be true that the debt would not have accrued but for the Customer
Agreement and that the dispute may not have resulted but for the Customer Agreement,
but Seifert rejected such analysis. See 750 So. 2d at 638 ("[T]he mere fact that the
dispute would not have arisen but for the existence of the contract and consequent
relationship between the parties is insufficient by itself to transform a dispute into one
'arising out of or relating to' the agreement."); see also Saunders v. St. Cloud 192 Pet
Doc Hosp., LLC, 224 So. 3d 336, 338 (Fla. 5th DCA 2017) (rejecting similar logic).
Again, to compel arbitration under a broad arbitration provision, the claim "must, at a
minimum, raise some issue the resolution of which requires reference to or construction
of some portion of the contract itself." Seifert, 750 So. 2d at 638. The dispute in this
case is whether Verizon violated the FCCPA. Verizon fails to explain adequately how
the Customer Agreement is required to resolve this dispute.
Without a disputed issue that requires reference to or construction of the
Customer Agreement, the FCCPA claims lack a significant relationship to the Customer
Agreement and are not arbitrable. See id. Compare In re Bateman, 585 B.R. at 627-28
not present any "argument concerning the bearing these provisions might have on the
issue of whether the parties" agreed to arbitrate the punitive damages claims).
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(holding that "[t]he lack of a nexus [was] apparent" between the Customer Agreement
and the issue of contempt where Mr. Bateman did "not argue that the debt collection
letter from Verizon's agent violated the Customer Agreement" and the Customer
Agreement was not needed to resolve the issue of contempt), with Aztec Med. Servs.,
Inc. v. Burger, 792 So. 2d 617, 624 (Fla. 4th DCA 2001) (holding that the statutory
claims were within the scope of arbitration "where (1) appellees pled identical
allegations to support both their breach of contract and statutory claims and (2) reliance
on the agreement and its terms [was] necessary to determine whether or not the claims
submitted by the physicians to Aztec were paid timely and whether Aztec improperly
coded the claims submitted-the factual allegations at the core of the Unfair Trade
Practices Act claim").
We are not persuaded by the federal cases upon which Verizon relies.
Sherer v. Green Tree Servicing LLC, 548 F.3d 379, 381 (5th Cir. 2008), is inapposite
because the parties in Sherer did not challenge "that the claims would otherwise be
within the scope of the arbitration clause '[h]ad the defendant signed the contract.' "
(Alteration in original.) Instead, the sole issue in Sherer was "whether Sherer ha[d]
agreed to arbitration with a nonsignatory, such as Green Tree." Id. Some of the other
federal cases relied on by Verizon did not involve claims pertaining to a discharged debt
and concluded that the debt collection claims arose under the broad arbitration
agreements without delving into whether a significant relationship existed between the
agreements and the claims. See Wilder v. Midland Credit Mgmt., No.
CIVA109CV2039JOFAJB, 2010 WL 2499701, at *4 (N.D. Ga. May 20, 2010), report and
recommendation adopted, No. CIVA109CV02039JOFAJB, 2010 WL 2499659 (N.D. Ga.
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June 15, 2010); Miller v. Nw. Tr. Servs., Inc., No. CV-05-5043-RHW, 2005 WL 1711131,
at *4 (E.D. Wash. July 20, 2005).
In the federal cases where the courts provided a more in-depth analysis of
the scope of the arbitration provision, the plaintiffs in those cases raised issues for
which resolution required reference to the contracts. See Koch v. Compucredit Corp.,
543 F.3d 460, 466 (8th Cir. 2008); Campbell v. Verizon Wireless, LLC, No. CIV.A. 14-
0517-WS-N, 2015 WL 416484, at *5 n.13 (S.D. Ala. Jan. 29, 2015). In Koch, "the heart
of the dispute—the occurrence and alleged payment of the debt—[was] one founded in
the credit agreement." 543 F.3d at 466. In Campbell, the February 2008 and May 2010
Customer Agreements "included detailed recitations of Verizon's billing practices and
obligations," and the dispute "occurred as a fairly direct result of the manner and
methods by which Verizon charged [Mr. Campbell] for services and referred his account
to collection." 2015 WL 416484, at *5 n.13. Mr. Campbell also disputed that he ever
signed the service agreement, under which the debt at issue incurred. Id. at *1. Unlike
the parties in Koch and Campbell, Verizon and Mr. Bateman do not dispute whether Mr.
Bateman paid the debt or signed the Customer Agreement. If anything, they dispute
whether the debt was discharged, which is a dispute founded in the bankruptcy
proceedings.
Additionally, Verizon does not indicate if the July 2011 or February 2012
Customer Agreements included detailed recitations of Verizon's billing practices and
obligations relevant to this dispute, like the agreements in Campbell. Our independent
review of the record indicates that the Customer Agreements do not include detailed
recitations of Verizon's billing practices or obligations when a debt is discharged in
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bankruptcy. The only mention of collections in the Customer Agreements is in the
"About My Payments" section and states that Verizon may charge the customer any
fees the collection agency charges them if the customer fails to pay and Verizon uses a
collection agency and caps the amount of collection fees at 18%. And the only mention
of bankruptcy is in the "What Are Verizon Wireless' Rights to Limit or End Service or
End This Agreement?" section, which states that Verizon may suspend or terminate the
service if the customer goes bankrupt. This statement has no bearing on the
allegations in Mr. Bateman's complaint as Mr. Bateman had ended his service with
Verizon well before he ever filed for bankruptcy.
We conclude, based on the arguments and record before us, that Mr.
Bateman's claims do not have a "significant relationship" to the Customer Agreement.
Cf. Bray v. PNC Bank, N.A., 196 F. Supp. 3d 1282, 1287 (M.D. Fla. 2016) ("Plaintiffs'
claims in this case arise out of Defendant's attempts to enforce a debt that was
discharged in bankruptcy, as opposed to arising directly from the Mortgage. Thus,
Plaintiffs' claims do not arise out of and are not sufficiently related to the Mortgage to fall
within the jury waiver provision."). We emphasize that the policy favoring arbitration
does not change our conclusion because the "significant relationship" requirement laid
out in Seifert must be satisfied even in light of the general policy favoring arbitration.
See Seifert, 750 So. 2d at 638; see also Wilder, 2010 WL 2499701, at *4 ("Although
federal policy favors arbitration, . . . a district court must compel arbitration only if the
parties have agreed to arbitrate their dispute; 'parties cannot be forced to submit to
arbitration if they have not agreed to do so.' " (quoting Magnolia Capital Advisors, Inc. v.
Bear Stearns & Co., 272 F. App'x. 782, 785 (11th Cir. 2008))).
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III. Conclusion
The trial court erred in denying the motion to compel arbitration by
applying Harrier I's flawed reasoning. As we explained above, the bankruptcy order
discharged Mr. Bateman's personal liability as to his debts, not the entire Customer
Agreement and arbitration provision therein. See In re Bateman, 585 B.R. at 625;
Williams, 564 B.R. at 775. The arbitration provision remained valid even in the absence
of a reaffirmation agreement. See In re Bateman, 585 B.R. at 625. Nevertheless,
bound as we are by Seifert, we affirm the trial court's denial of Verizon's motion to
compel arbitration because Mr. Bateman's FCCPA claims do not have a significant
relationship to the Customer Agreement.
Affirmed.
SLEET and SALARIO, JJ., Concur.
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