MARTHAME SANDERS & COMPANY, A FOREIGN CORPORATION, PETITIONER,
v.
400 WEST MADISON CORPORATION, A FLORIDA CORPORATION, NORMAN E. MURPHY AND SARAH S. MURPHY, RESPONDENTS
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The court reversed a trial court order compelling arbitration, holding that respondents waived their right to arbitration by filing an answer and participating in trial court proceedings for nearly two years before attempting to enforce the arbitration clause.
Respondents waived their right to arbitration through their answer and participation in trial court proceedings. The trial court erred in granting the motion to compel arbitration, and the order is quashed. Respondents cannot claim lack of knowledge of the arbitration clause when they executed the contract containing it and initialed its general conditions.
[1] A party waives the right to arbitration by filing an answer to a complaint without demanding arbitration, thereby abandoning the right to arbitration and consenting to th…
[2] Parties are charged with knowledge of provisions incorporated into contracts they execute, even if they claim no actual awareness of specific clauses.
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Join FLexlaw to unlock all legal intelligence“Repudiation of an arbitration clause by a defendant, in the form of an answer to the complaint without demand for arbitration constitutes an abandonment of the right to arbitration and consent to submission of the controversy to the courts.”
Establishes the legal standard that filing an answer without asserting arbitration rights waives the arbitration clause
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Join FLexlaw to unlock all legal intelligencePetitioner sued respondents in circuit court in March 1979. Respondents filed an answer and counterclaim on April 4, 1979, and participated in discove…
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MOORE, Judge.
By a petition for writ of certiorari, the petitioner seeks review of an order granting respondents’ motion to compel arbitration and stay proceedings. The petitioner contends that the trial court erred in compelling arbitration because the respondents waived their right to arbitration by filing an answer to petitioner’s complaint in the trial court and participating in the trial court proceedings. Certiorari is granted and the order compelling arbitration and staying further proceedings is quashed.
The petitioner commenced suit against the respondents in the circuit court in March, 1979. On April 4, 1979, the respondents filed their answer and counterclaim. Thereafter, the parties proceeded with discovery, including depositions, interrogatories, and document production. The first scheduled trial in May, 1980 was continued upon respondents’ motion. In January, 1981, the trial was continued again because the court was unable to reach the case on its docket. On May 4, 1981, the third date on which the trial was scheduled to proceed, the respondents filed their motion for stay and to compel arbitration. The granting of this motion is the subject of these certiorari proceedings.
As this Court stated in King v. Thompson & McKinnon, Auchincloss, Kohlmeyer, Inc., 352 So. 2d 1235 (Fla. 4th DCA 1978),
[Repudiation of an arbitration clause by a defendant, in the form of an answer to the complaint without demand for arbitration constitutes an abandonment of the right to arbitration and consent to submission of the controversy to the courts. (Citations omitted).
Accordingly, the respondents here have waived their right to arbitration.
We specifically reject the respondents’ contention that they could not have waived their right to arbitration because they were not aware of the contractual provision providing for arbitration until May 1, 1981. The contract attached to the complaint, which the respondents accept as true in their response to the petition for writ of certiorari, demonstrates that respondents acknowledged, by initial, the general conditions pertaining to the construction contract. The general conditions contained the provision for arbitration. The respondents must be assumed to have known, and are charged with knowledge, of the provisions incorporated into the contract they executed.
A writ of certiorari is granted and the trial court’s order staying proceedings and compelling arbitration is quashed.
LETTS, C. J. and BERANEK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Marine Env't P'rs, Inc. v. Johnson, 863 So. 2d 423 (Fla. 4th DCA 2003)…have known about this agreement’s terms until then. However, the defendants were signatories to the Licensing Agreement and legally charged with knowledge of its terms from the date it was signed. See Marthame Sanders & Co. v. 100 W. Madison Corp., 401 So. 2d 1145, 1146 (Fla. 4th DCA 1981); see also Breckenridge, 640 So. 2d at 211.2 [*427] This is not the end of the knowledge inquiry, however, since it is also necessary that the defendants were aware that the complaint raised claims “arising out of or relatin…
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Breckenridge v. Farber, 640 So. 2d 208 (Fla. 4th DCA 1994)…ly asserted the right and continued participation in litigation, effectively waived his right to arbitration. We find support for our finding from the holding in a case previously before this court, Marthame Sanders & Co. v. 400 West Madison Corp., 401 So. 2d 1145 (Fla. 4th DCA 1981). In Marthame, we found the plaintiffs (investors) waived their right to arbitration because they were presumed to have knowledge of the arbitration clause contained in documents which were referenced in the brokerage agreement th…
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Paine v. Lucas, 411 So. 2d 1369 (Fla. 5th DCA 1982)…). . See, e.g., Balboa Insurance Co. v. W. G. Mills, Inc., 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 (F…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- King v. Thompson & McKINNON, 352 So. 2d 1235 (Fla. 4th DCA 1977)