MORRIS LAPIDUS, APPELLANT,
v.
ARLEN BEACH CONDOMINIUM ASSOCIATION, INC., ARLEN REALTY & DEVELOPMENT CORP., ET AL., APPELLEES
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Morris Lapidus, a third-party defendant, challenged an order denying his motion to compel arbitration. The Florida District Court of Appeal held that by filing a motion for summary judgment, Lapidus waived his contractual right to arbitration and accepted the judicial forum.
A party waives its contractual right to arbitration by filing a motion for summary judgment because such action manifests acceptance of the judicial forum. A party cannot contest the merits of a claim in court and then later insist that only arbitration is the appropriate forum.
[1] An interlocutory appeal challenging the denial of a motion to compel arbitration may be treated as a petition for common law certiorari when there is a strong public poli…
[2] A party's contractual right to arbitration may be waived by actively participating in a lawsuit or taking action inconsistent with that right.
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Join FLexlaw to unlock all legal intelligence“a party's contractual right to arbitration may be waived by actively participating in a lawsuit or taking action inconsistent with that right”
Establishes the general principle that arbitration rights can be waived through litigation conduct
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Join FLexlaw to unlock all legal intelligenceMorris Lapidus was a third-party defendant in a lawsuit involving Arlen Beach Condominium Association and related parties. Lapidus moved to compel arb…
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FERGUSON, Judge.
By interlocutory appeal, third party defendant Morris Lapidus, challenges an order entered by the lower court denying his motion to compel arbitration. We elect to treat the interlocutory appeal as a petition for common law certiorari1 for the following reasons: (a) there is a strong public policy favoring arbitration, Fenster v. Makovsky, 67 So. 2d 427 (Fla.1953); Arrieta v. Volkswagon Insurance Co., 343 So. 2d 918 (Fla. 3d DCA 1977); (b) denial of a right to arbitration may not be adequately remedied by appeal, see, e. g., Morton Z. Levine and Associates, Chartered v. Van Deree, 334 So. 2d 287 (Fla. 2d DCA 1976) (purpose of arbitration is to avoid litigation); Siegel v. Abramowitz, 309 So. 2d 234 (Fla. 4th DCA 1975); and (c) permitting parties to litigate the dispute in court instead of proceeding to arbitration, if there is a right of arbitration, constitutes a departure from the essential requirements of law. Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So. 2d 286 (Fla. 3d DCA 1980). We have jurisdiction pursuant to Fla.R.App.P. 9.100.
Florida courts recognize that a party’s contractual right to arbitration may be waived by actively participating in a lawsuit or taking action inconsistent with that right. Klosters Rederi A/S v. Arison Shipping Company, 280 So. 2d 678 (Fla.1973); Ojus Industries, Inc. v. Mann, 221 So. 2d 780 (Fla. 3d DCA 1969). Filing an answer without asserting the right for arbitration acts as waiver, King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So. 2d 1235 (Fla. 4th DCA 1977); as does initiating legal action without seeking arbitration, Seville Condominium v. Clearwater Development Corp., 340 So. 2d 1243 (Fla. 2d DCA 1976) and counterclaiming without raising the issue of arbitration, Mike Bradford & Co. v. Gulf States Steel Co., 184 So. 2d 911 (Fla. 3d DCA 1966).
Although Florida courts have not ruled directly on point, other jurisdictions have held that moving for summary judgment results in a waiver of any right to arbitration. See Applicolor, Inc. v. Surface Combustion Corp., 77 Ill.App.2d 260, 222 N.E. 2d 168 (1966); Board of Education v. Mancuso Brothers, 25 Misc.2d 122, 204 N.Y.S.2d 410 (N.Y.Sup.Ct.1960). See also 98 A.L.R.3d 767.
A party who contests the merits of a claim by filing a motion for summary judgment accepts the judicial forum. She may not consistently later claim that only the arbitral forum is satisfactory. See, e. g., De Sapio v. Kohlmeyer, 35 N.Y.2d 402, 362 N.Y.S.2d 843, 846 (N.Y.Ct.App.1974). Where, as here, the issue of waiver is placed before the trial court, the court could reasonably find that by filing a motion for summary judgment, Lapidus manifested an acceptance of the judicial forum and waived any right he may have had with respect to arbitration. Accordingly, finding that the trial court did not depart from the essential requirements of law, we deny the petition for writ of certiorari.
Certiorari denied.
. Fla.R.App.P. 9.040(c).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (44 total)
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Post Tensioned Eng'g Corp. & Commercial Constr. Corp. v. Fairways Plaza Assocs., 412 So. 2d 871 (Fla. 3d DCA 1982)…l be submitted to arbitration. Therefore, for Fairways to prevail on its contention, it must show that the alleged breach is an act inconsistent with Commercial’s right to arbitration. See, e.g., Lapidus v. Arlen Beach Condominium Association, Inc., 394 So. 2d 1102 (Fla. 3d DCA 1981). But even if, arguendo, Commercial elected not to arbitrate with its subcontractors, see n. 6, supra, that election is in no way inconsistent with Commercial’s insistence on its right to arbitrate with Fairways. For an act to be i…
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State Farm Fire & Cas. Co. & Richard Nerndt v. Middleton, 648 So. 2d 1200 (Fla. 3d DCA 1995)…3 So. 2d 279, 281 (Fla.1988) (“arbitration is a favored means of dispute resolution”); U.S. Fire Ins. Co. v. Franko, 443 So. 2d 170, 172 (Fla. 1st DCA 1983) (“arbitration agreements are favored in the law”); Lapidus v. Arlen Beach Condominium Ass’n, 394 So. 2d 1102, 1103 (Fla. 3d DCA 1981) (“there is a strong public policy favoring arbitration”). The treatment of appraisal clauses as binding arbitration agreements is similarly well-established. See New Amsterdam Casualty Co. v. J.H. Blackshear, Inc., 116 Fla.…
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Green Tree Servicing, LLC v. McLEOD, 15 So. 3d 682 (Fla. 2d DCA 2009)…n answer to a pleading seeking affirmative relief without raising the right to arbitration, Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So. 2d 1, 3 (Fla. 2d DCA 1992); and by moving for summary judgment, Lapidus v. Arlen Beach Condo. Ass’n, 394 So. 2d 1102, 1103 (Fla. 3d DCA 1981). A party who timely asserts the right to arbitration may still waive the right by later conduct that is inconsistent with the arbitration request. See Klosters Rederi A/S v. Arison Shipping Co., 280 So. 2d 678, 681 (Fla.1973…
Previewing 3 of 44 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Humphrey v. Seminole Cnty. Court, 309 So. 2d 234 (Fla. 4th DCA 1975)
- Klosters Rederi A/S v. Arison Shipping Co., 280 So. 2d 678 (Fla. 1973)
- VIC Potamkin Chevrolet, Inc. v. Bloom, 386 So. 2d 286 (Fla. 3d DCA 1980)
- King v. Thompson & McKINNON, 352 So. 2d 1235 (Fla. 4th DCA 1977)
- Arrieta v. Volkswagen Ins. Co. & Protective Nat'l Ins. Co., 343 So. 2d 918 (Fla. 3d DCA 1977)
- Mike Bradford & Co., Inc. v. Gulf States Steel Co., Inc., 184 So. 2d 911 (Fla. 3d DCA 1966)
- Ojus Indus., Inc. v. Mann, 221 So. 2d 780 (Fla. 3d DCA 1969)
- Seville Condo. # 1, Inc. v. Clearwater Dev. Corp., 340 So. 2d 1243 (Fla. 2d DCA 1976)
- Fenster v. Makovsky et ux., 67 So. 2d 427 (Fla. 1953)
- Morton Z. Levine & Assocs., Chartered v. van Deree, 334 So. 2d 287 (Fla. 2d DCA 1976)