Cook's Pest Control, Inc. v. Rebar

852 So.2d 730 (2002)

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Nature of the Case

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Facts

On August 28, 2000, D and P entered into a one-year renewable 'Termite Control Agreement.' D was obligated to continue treating and inspecting P's home for termites during the term of the agreement, which continued so long as P continued to pay the annual renewal fee. The agreement contained a mandatory, binding arbitration provision. Just before expiration, D notified P to renew the agreement for another year by paying the renewal fee. Just before expiration, D notified P to renew the agreement for another year by paying the renewal fee. On August 16, 2001, P submitted a payment and included an insert entitled 'Addendum to Customer Agreement. The addendum clearly stated that arbitration was no longer mandatory. The addendum provided that continuation of services or the acceptance of the renewal payment would be acceptance of the addendum’s terms. The addendum stated that if D does not agree with all of the terms that P must be immediately notified. D received the addendum and renewal check and continued to perform termite inspections and services at P's home. On August 30, 2001, P filed this action against D. P alleged fraud, negligence, breach of contract, breach of warranty, breach of duty, unjust enrichment, breach of the duty to warn, negligent training, supervision and retention of employees, and bad-faith failure to pay and bad-faith failure to investigate a claim. D moved to compel arbitration. P asserted that a binding, mandatory arbitration agreement no longer existed. The trial court denied D's motion. It ruled that D had accepted the terms of the addendum. D appealed. P’s addendum was an improper attempt to unilaterally modify an existing contract.