Harlow v. Tier 1 Pest Solutions, LLC

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT

JOHN S. HARLOW,

Appellant,

v.

TIER 1 PEST SOLUTIONS, LLC,

Appellee.

No. 2D2025-2277

June 17, 2026

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Hillsborough County; Cheryl K. Thomas, Judge.

John S. Harlow, pro se.

Marlon A. Onias of Onias Law, P.L., Fort Lauderdale, for Appellee.

MORRIS, Judge.
John S. Harlow appeals a nonfinal order compelling arbitration and
denying his motion to dissolve a temporary injunction entered in favor of
Tier 1 Pest Solutions, LLC (Tier 1). We reverse the portion of the order
requiring mediation before arbitration because the trial court improperly
decided an issue that is one for the arbitrator. We affirm the portion of
the order denying the motion to dissolve the injunction.
Pursuant to a written operating agreement, Harlow owns a 51%
membership interest in Tier 1. Robert Robertson and Brad Liston own
the other 49%. The operating agreement provides the following relevant
language regarding dispute resolution:
In the case of any dispute between the parties which has not
been resolved through negotiation between the parties, such
dispute shall be settled and determined through mediation.
Any mediation shall be held in Hillsborough County, Florida,
and shall be conducted by a single mediator to be selected by
other mediators, one of whom shall be selected by each
Member who is a party to the dispute. If the mediation does
not resolve the dispute, then the dispute shall be settled and
determined through arbitration in accordance with the Rules
of Commercial Arbitration of the American Arbitration
Association ("AAA").
When a dispute arose between the three members, Harlow issued a
demand to Robertson and Liston for mediation under the dispute
resolution provision of the operating agreement. Robertson and Liston
did not respond. Harlow commenced arbitration against Robertson and
Liston. The arbitrator conducted a hearing via Zoom on May 7, 2025,
which Robertson and Liston did not attend. The arbitrator entered an
emergency interim order on May 9, 2025.
In the meantime, on April 7, 2025, Tier 1 filed a complaint against
Harlow for breach of fiduciary duty, conversion, constructive fraud, and
injunctive relief. Tier 1 moved for a temporary injunction, which the trial
court granted on July 8, 2025. On July 25, 2025, Harlow filed a motion
to dissolve the injunction. He also filed a motion to compel arbitration,
claiming that the parties' written agreement requires arbitration and
mediation as a condition precedent to arbitration. He filed an amended
motion to compel arbitration, citing sections 682.02 and 682.03, Florida
Statutes (2025), and Patterson v. Melman, 398 So. 3d 470 (Fla. 2d DCA
2024), arguing that the issue of mediation as a condition precedent is an
issue for the arbitrator to decide, not the trial court.

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Tier 1 filed a response, arguing that Harlow failed to comply with
the agreement by initiating the arbitration against Robertson and Liston
before mediation. Tier 1 also argued that Harlow waived his right to
arbitrate by seeking injunctive relief in court1 and that courts, not
arbitrators, decide whether conditions precedent have been satisfied.
After a hearing, the trial court entered an order denying Harlow's motion
to dissolve the injunction and granting in part his motion to compel
arbitration. The trial court stated that the parties "are required to attend
mediation prior to arbitration." The court ordered the parties to select a
mediator and schedule mediation within seven days and, if no settlement
is reached at mediation, to schedule an arbitration hearing within ten
days and to hold an arbitration hearing within forty-five days thereafter.
On appeal, Harlow first argues that the trial court exceeded its
jurisdiction by compelling mediation as a condition precedent to
arbitration. He contends that the trial court did not have authority to
make that determination and that it was an issue for the arbitrator.
In Patterson, this court reversed a trial court order that
"impermissibly decided a question regarding a condition precedent to
arbitration that was by statute within the exclusive province of the
arbitrator to decide." 398 So. 3d at 472. The appellants filed suit
against the appellees, and the appellees filed a motion to dismiss,
arguing that the contracts between the parties "required the resolution of
[the a]ppellants' claims in binding arbitration." Id. at 473. The contracts
contained
identical dispute resolution clauses, which
provide[d] that "[a]ll controversies, claims, and

1 Tier 1 asserts that Harlow also filed a complaint for injunctive

relief against Robertson in the circuit court, but that fact is not
supported by the appendices filed in this case.
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other matters in question between the parties
arising out of or relating to this Agreement or the
breach thereof will be settled by first attempting
mediation." The clauses then provide[d] that
"disputes not resolved by mediation will be settled
by neutral binding arbitration."
Id. at 472-73 (second alteration in original). The appellants argued that
"mediation was a condition precedent to arbitration and that [the
a]ppellees had waived the right to arbitration by refusing to participate in
mediation." Id. at 473. The trial court treated the appellees' motion to
dismiss as a motion to compel arbitration and entered an order
compelling arbitration.
On appeal, the appellants argued that the appellees had waived
their right to arbitration and "predicated their waiver argument on [the
a]ppellees' alleged refusal to perform what [the a]ppellants argue is a
condition precedent to arbitration—attending mediation." Id. This court
held that
[a]lthough the trial court reached the right result in this case
by compelling arbitration, the trial court's order cannot be
affirmed. The trial court improperly resolved issues reserved
for the arbitrator—whether the actual occurrence of
mediation is a condition precedent to arbitration and whether
the condition had been fulfilled. The Revised Florida
Arbitration Code is explicit that the arbitrator must decide
whether a condition precedent has been fulfilled. See
[§ 682.02(3), Fla. Stat. (2023)] ("An arbitrator shall decide
whether a condition precedent to arbitrability has been
fulfilled . . . ."). And the question of what is or is not a
condition precedent is logically subsumed within the question
of whether a condition precedent has been fulfilled: the
arbitrator must necessarily identify the nature and scope of
any condition precedent before determining whether that
condition has been fulfilled. But even if those two questions
could be separated from one another, the Revised Florida
Arbitration Code is equally clear as to what issues the court
may decide; whether a contract contains a condition

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precedent to arbitration is not one of them. Section
682.02(2), which explicates the division of labor between the
court and the arbitrator, confers on the court the authority to
"decide whether an agreement to arbitrate exists" and
whether "a controversy is subject to an agreement to
arbitrate." Section 682.03(1)(b) sets forth the procedure the
court must follow when a party seeks to compel arbitration.
Upon the filing of an opposed "motion of a person showing an
agreement to arbitrate and alleging another person's refusal
to arbitrate pursuant to the agreement . . . , the court shall
proceed summarily to decide the issue and order the parties
to arbitrate unless it finds that there is no enforceable
agreement to arbitrate." § 682.03(1)(b) (emphasis added).
Reading sections 682.02 and 682.03 in pari materia, it is
inescapable that once the "issue" of whether there is an
"enforceable agreement to arbitrate," § 682.03(1)(b), and the
question of whether "a controversy is subject to an agreement
to arbitrate," § 682.02(2), are resolved in the affirmative, the
trial court is required to order arbitration straight away,
leaving no opportunity for the court to address any other
questions—such as whether an obligation in the arbitration
agreement does or does not constitute a condition precedent.
The trial court invaded the statutory province of the
arbitrator when it made a determination regarding what is
and what is not a condition precedent to arbitration and
whether such conditions had been met.
Id. at 477-78.
This case is directly on point with Patterson. The trial court
correctly determined that the parties have an enforceable agreement to
arbitrate, but the trial court was not permitted to decide whether the
agreement contains a condition precedent (i.e., mediation) and whether
that condition precedent has been fulfilled. That is a question for the
arbitrator. Id. Accordingly, we reverse the order and remand with
instructions for the trial court to enter an order compelling arbitration
that leaves for the arbitrator the questions regarding mediation as a
condition precedent.

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Next, Harlow contends that the trial court erred in denying his
motion to dissolve the temporary injunction because it fails to order a
bond and to set forth certain findings as required by Florida Rule of Civil
Procedure 1.610.
Harlow appeals the order denying his motion to dissolve the
injunction; he did not appeal the initial order or amended order granting
the injunction. Several districts, including ours, formerly held that a
party could not seek to dissolve an injunction by raising grounds that
could have been raised at the initial granting of the injunction or on
appeal of the initial injunction and that the party must show a change in
circumstances since the granting of the initial injunction. See, e.g.,
Hunter v. Dennies Contracting Co., 693 So. 2d 615, 616 (Fla. 2d DCA
1997); Fong v. Courvoisier Courts Condo. Ass'n, 81 So. 3d 562, 563 (Fla.
3d DCA 2012). The supreme court then held that a party is not required
to show "changed circumstances when moving to modify or dissolve a
temporary injunction . . . when a party [can] show[ a] clear
misapprehension of the facts or clear legal error on the part of the trial
court in entering the temporary injunction." Planned Parenthood of
Greater Orlando, Inc. v. MMB Props., 211 So. 3d 918, 925-26 (Fla. 2017)
(rejecting "the bright line changed circumstances rule for modifying or
dissolving a temporary injunction as articulated by the First, Second,
Third, and Fifth Districts"). In Planned Parenthood, the court held that
the trial court abused its discretion in denying a motion to dissolve the
injunction where the injunction "granted relief that was never sought or
tried, was vague in its description of the activity enjoined, and . . . was
based on erroneous factual findings." Id. at 925 (citing Planned
Parenthood of Greater Orlando v. MMB Props., 171 So. 3d 125, 127 (Fla.
5th DCA 2015)).

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In Marlette v. Carullo, 351 So. 3d 1193 (Fla. 2d DCA 2022), this
court applied Planned Parenthood and reversed an order denying a
motion to dissolve an injunction. The injunction had been entered
without a hearing, failed to set forth findings required under Florida Rule
of Civil Procedure 1.610(b), and did not require the posting of a bond
under rule 1.610(c). Marlette, 351 So. 3d at 1194-95. Further, the
motion to dissolve the injunction was denied without a hearing. This
court held that the movant "failed to plead, let alone prove, at least three
of the four requisite elements" required for a temporary injunction and
that the trial court's summary granting of the injunction while "wholly
fail[ing] to comply with both subsections (b) and (c) of rule 1.610 . . .
constitutes 'clear legal error.' " Marlette, 351 So. 3d at 1196 (citing
Phelan v. Trifactor Sols., Inc., 312 So. 3d 1036, 1039 (Fla. 2d DCA 2021);
Williams v. Victim Justice, P.C., 198 So. 3d 822, 826 (Fla. 2d DCA 2016)).
This case is distinguishable from Marlette. The injunction in this
case was originally entered after notice to Harlow and a contested
hearing which Harlow attended, whereas the injunction in Marlette was
summarily entered without a hearing. Further, Harlow has not
demonstrated that the elements of the injunction were not pleaded or
proven. Cf. Planned Parenthood, 211 So. 3d at 925 (holding that the trial
court abused its discretion in denying a motion to dissolve the injunction
where the injunction "granted relief that was never sought or tried . . .
and . . . was based on erroneous factual findings"); Marlette, 351 So. 3d
at 1196 (concluding that the movant "failed to plead, let alone prove, at
least three of the four requisite elements" for an injunction). As such, he
has not shown that the trial court substantively erred in entering the
injunction; he has only shown that the trial court's order entering the
injunction contains technical errors, which he did not appeal after it was

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initially entered. We decline to extend Planned Parenthood and Marlette
to the facts of this case.
Harlow raises two other issues that are without merit and do not
warrant discussion. We affirm the portion of the order denying Harlow's
motion to dissolve the injunction, but we reverse the portion of the order
compelling arbitration and remand with instructions for the trial court to
enter an order compelling arbitration that leaves for the arbitrator the
questions of mediation as a condition precedent.
Affirmed in part; reversed in part; remanded with instructions.

KHOUZAM and ROTHSTEIN-YOUAKIM, JJ., Concur.

Opinion subject to revision prior to official publication.

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