N. CRAIG MCALLISTER, GENERAL CONTRACTORS, INC., PETITIONER,
v.
RAYMOND A. GIROUX AND JAME A. GIROUX, RESPONDENTS
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PER CURIAM.
Petition granted and the trial court’s order denying petitioner’s motion to stay is quashed and the court below is directed to stay the respondent’s complaint. See Raymond, James & Associates, Inc. v. Maves, 384 So. 2d 716 (Fla.2d DCA 1980).
DANAHY and CAMPBELL, JJ., concur. OTT, A. C. J., concurs specially with opinion.
OTT, Acting Chief Judge,
concurring specially.
We are returning this case to the court below with instructions to stay proceedings pending the arbitration demanded by petitioner in accordance with the construction contract between the parties.
I am not opposed to arbitration, per se. I believe it can be an expedient and useful tool in resolving many controversies which now clutter the courts and impede the orderly adjudication of more justiciable issues.
I do not and cannot, however, countenance any unilateral denial of the constitutionally guaranteed right of access to the courts. That right is a keystone to our entire system of justice. As with any constitutional right, it should never be deemed to have been relinquished except upon a clear showing of informed waiver, freely given under circumstances in which there is no hint of duress, economic compulsion or unequal bargaining power. So basic a right should not be bought or sold at the bargaining table. When the average citizen is presented with a “take-it-or-leave-it” contract containing provision for mandatory arbitration, it is unrealistic to shrug it off as simply a matter of free choice. In my opinion the arbitration of disputes should be strictly an option available to parties after a dispute or grievance has arisen. Their contract should be independently negotiated and executed without any commitment to mandatory arbitration. No penalty should be suffered by any party rejecting the arbitration option.
When courts sanction irrevocable contract provisions for mandatory arbitration of future disputes, they permit the silent and inexorable erosion of a cornerstone of this democracy. It is an unfortunate trend, and if it is not reversed the phrase “access to the courts” will soon have lost any real meaning or genuine validity.
I quite understand that this is a matter for our supreme court to consider and implement. Unless and until it does so, this court is powerless to do more than sound the alarm. We are not free to ignore controlling precedent, and I therefore reluctantly concur in our disposition of this case.
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Paine v. Lucas, 411 So. 2d 1369 (Fla. 5th DCA 1982)…403 So. 2d 1149 (Fla. 2d DCA 1981); R. W. [*1372] Roberts Constr. Co., Inc. v. Master and Co., Inc., 403 So. 2d 1114 (Fla. 5th DCA 1981); Marthame Sanders and Co. v. 400 West Madison Corp., 401 So. 2d 1145 (Fla. 4th DCA 1981); McAllister v. Girous, 401 So. 2d 908 (Fla. 2d DCA 1981); Miller Constr. Co., Inc. v. First Baptist Church of Live Oak, Inc., 396 So. 2d 281 (Fla. 1st DCA 1981); Lapidus v. Arlen Beach Condominium Assoc., Inc., 394 So. 2d 1102 (Fla. 3d DCA 1981); Terry Ford Co. v. Klinger, 392 So. 2d 10…
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Riverfront Props., Ltd. v. Factor, 460 So. 2d 948 (Fla. 2d DCA 1984)…CA 1982); Hansen v. Dean Witter Reynolds, Inc., 408 So. 2d 658 (Fla. 3d DCA 1982), petition for review denied, 417 So. 2d 328 (Fla.1982); Merrill Lynch, Pierce, Fenner & Smith v. Melamed, 405 So. 2d 790 (Fla. 4th DCA 1981); and McAllister v. Giroux, 401 So. 2d 908 (Fla. 2d DCA 1981). Indeed, where a valid right of arbitration exists, other courts have held that permitting the parties to litigate the dispute in court instead of proceeding to arbitration constitutes a departure from the essential requirements o…
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Balboa Ins. Co. v. W. G. Mills, Inc., 403 So. 2d 1149 (Fla. 2d DCA 1981)…OTT, Judge, concurring specially. I agree that under present law the arbitration provision contained in the contract in question is enforceable. However, for the reasons I expressed in my specially concurring opinion in McAllister v. Giroux, 401 So. 2d 908 (Fla. 2d DCA 1981), I remain unalterably opposed to the concept that the right of free access to the courts can be waived by an agreement for the compulsory arbitration of future disputes.…
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- Raymond v. Vallery V. Maves and Ethel Pryor Maves, 384 So. 2d 716 (Fla. 2d DCA 1980)