WILLIAM M. HANSEN, PETITIONER,
v.
DEAN WITTER REYNOLDS, INC. AND PHILLIP PAUZE, RESPONDENTS
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Florida appellate court quashed an order compelling arbitration, holding that the securities firm waived its arbitration rights by answering the complaint without demanding arbitration.
A party waives its right to arbitration by answering a complaint without demanding arbitration, even if it later asserts the failure to arbitrate as an affirmative defense.
[1] A party waives its right to compel arbitration by answering a complaint without demanding arbitration, even if it subsequently asserts the failure to arbitrate as an affi…
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Court explaining why answering without demanding arbitration constitutes waiver
Hansen sued Dean Witter Reynolds and an employee for negligence and fraud in options transactions. The defendants answered the complaint without deman…
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BASKIN, Judge.
By Petition for Writ of Certiorari, William M. Hansen challenges a trial court order which stayed proceedings and compelled him to arbitrate his claims against a securities brokerage firm and one of its employees for negligence and fraud in options transactions. Certiorari is the appropriate method of review. Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So. 2d 286 (Fla. 3d DCA 1980). We hold that respondents, by answering the complaint without demanding arbitration, waived their rights, Lapidus v. Arlen Beach Condominium Association, Inc., 394 So. 2d 1102 (Fla. 3d DCA 1981); King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So. 2d 1235 (Fla. 4th DCA 1977); their conduct was inconsistent with the exercise of a right to arbitrate, Roberts Construction Co. v. Masters & Company, Inc., 403 So. 2d 1114 (Fla. 5th DCA 1981), even though they asserted Hansen’s failure to arbitrate as an affirmative defense. We hold, therefore, that the trial court departed from the essential requirements of law, and we quash the order pertaining to arbitration.
Our decision renders it unnecessary for us to review the enforceability of the arbitration clauses contained in the Customer’s Agreement and Options Trading Agreement, both of which provide that New York law governs.
For these reasons, we grant Petition for Writ of Certiorari and quash the order compelling arbitration. We remand the cause for further proceedings.
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William I. Sabates, M.D. v. Int'l Med. Ctrs., Inc., 450 So. 2d 514 (Fla. 3d DCA 1984)…ction 682.20(1)(c), Florida Statutes (1981), confirming an arbitration award. Plainly, orders compelling arbitration and staying court proceedings pending the outcome of arbitration are reviewable by certiorari. Hansen v. Dean Witter Reynolds, Inc., 408 So. 2d 658 (Fla. 3d DCA 1981), pet. for rev. denied, 417 So. 2d 328 (Fla.1982); see Laquer v. Smith, Barney, Harris, Upham & Co., 446 So. 2d 1119 (Fla. 3d DCA 1984); Walter L. Keller & Associates, P.A. v. Health Management Foundation, 438 So. 2d 1076 (Fla. 2d…
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Coral 97 Assocs., Ltd. v. Chino Elec., Inc., 501 So. 2d 69 (Fla. 3d DCA 1987)…l’s filing of a counterclaim in advance of the court’s ruling on the arbitration question raised in its motion to dismiss constituted an act inconsistent with its demand for arbitration. Klosters Rederi A/S; see Hansen v. Dean Witter Reynolds, Inc., 408 So. 2d 658 (Fla. 3d DCA 1981) (defendant waived arbitration right by asserting failure to arbitrate as an affirmative defense in answer), review denied, 417 So. 2d 328 (Fla.1982); Rolls v. Bliss & Nyitray, Inc., 408 So. 2d 229 (Fla. 3d DCA) (defendants waived…
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Riverfront Props., Ltd. v. Factor, 460 So. 2d 948 (Fla. 2d DCA 1984)…. 2d DCA 1983); R.W. Roberts Construction Co. v. St. Johns River Water Management District, 423 So. 2d 630 (Fla. 5th DCA 1982); Lipton Professional Soccer, Inc. v. Mijatovic, 416 So. 2d 1236 (Fla. 1st DCA 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…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- VIC Potamkin Chevrolet, Inc. v. Bloom, 386 So. 2d 286 (Fla. 3d DCA 1980)
- Lapidus v. Arlen Beach Condo. Ass'n, Inc., 394 So. 2d 1102 (Fla. 3d DCA 1981)
- King v. Thompson & McKINNON, 352 So. 2d 1235 (Fla. 4th DCA 1977)
- Fair v. State, 403 So. 2d 1114 (Fla. 3d DCA 1981)