RINKER PORTLAND CEMENT CORPORATION, PETITIONER,
v.
WILLIAM D. SEIDEL, TRUSTEE OF F.C.M. CORPORATION, RESPONDENT
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Rinker Portland Cement sought certiorari review of an order denying its motion to dismiss a complaint based on an arbitration clause in its contract with Seidel. The Florida District Court of Appeal held that filing a proof of claim in bankruptcy and a motion to dismiss based on arbitration does not waive the right to arbitration, and that timeliness of arbitration demands is for the arbitrator to decide.
Filing a proof of claim in bankruptcy along with a motion to dismiss based on arbitration does not constitute waiver of the arbitral forum. Additionally, when a contract contains an arbitration clause but does not specify a time limit for demanding arbitration, the question of whether any demand for arbitration was timely is a matter for the arbitrator to resolve, not the court.
[1] Filing a proof of claim in bankruptcy and moving to dismiss based on an arbitration clause do not constitute a waiver of the right to arbitrate.
[2] A motion to dismiss based on a contractual right to arbitration is sufficient, and an additional motion to compel arbitration is not required.
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Join FLexlaw to unlock all legal intelligence“The filing of a proof of claim in a bankruptcy proceeding as required by bankruptcy law, along with the filing of a motion to dismiss on grounds that the claim is subject to arbitration, are not acts constituting waiver of the arbitral forum.”
Establishes that dual filing does not constitute waiver of arbitration rights
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Join FLexlaw to unlock all legal intelligenceRinker Portland Cement and Seidel's F.C.M. Corporation had a contract containing an arbitration clause. A dispute arose, and Seidel filed a complaint.…
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FERGUSON, Judge.
Petitioner seeks certiorari review of an order denying its motion to dismiss a complaint based on a contract, terms of which required the parties to arbitrate disputes. We have jurisdiction.1
The filing of a proof of claim in a bankruptcy proceeding as required by bankruptcy law, along with the filing of a motion to dismiss on grounds that the claim is subject to arbitration, are not acts constituting waiver of the arbitral forum. See Lapidus v. Arlen Beach Condominium Association, Inc., 394 So. 2d 1102 (Fla. 3d DCA 1981). There is no requirement for an additional motion to compel arbitration where movant seeks dismissal based on a contractual right to arbitration. Balboa Insurance Company v. W. G. Mills, Inc., 403 So. 2d 1149 (Fla. 2d DCA 1981).
The contract in this case contains no language requiring that a demand for arbitration be filed within a specified time after an act certain, e.g., Lyons v. Krathen, 368 So. 2d 906 (Fla. 3d DCA 1979), or that the demand for arbitration be filed within a reasonable time after a dispute has arisen, e.g., Bickerstaff v. Frazier, 232 So. 2d 190 (Fla. 1st DCA 1970). Even if the contract be construed to require that the demand for arbitration be made within a reasonable time, whether the demand was timely within the meaning of the contract provision is a matter for the arbitrator to resolve. Public Health Trust of Dade County v. M. R. Harrison Construction Co., 415 So. 2d 756 (Fla. 3d DCA 1982);2 County of Rockland v. Primiano Construction Co., Inc., 51 N.Y.2d 1, 409 N.E. 2d 951, 431 N.Y.S.2d 478 (1980).
Certiorari is granted; the order on review is quashed and the cause is remanded with directions to dismiss the complaint.
. Fla.R.App.P. 9.100; see Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So. 2d 286 (Fla. 3d DCA 1980).
. As noted in Public Health Trust of Dade County v. M. R. Harrison Construction Co., supra, the courts in the Lyons and Bickerstaff cases were not squarely presented with the question whether the delay issue should be determined by the trial court, thus the parties in those cases, arguably, acquiesced to a judicial determination of the question.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By (12 total)
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Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983)…ds for relief. [*260] Nova appealed the denial of his 1981 motion, and this court, per curiam, affirmed, merely citing to Knight v. State, 394 So. 2d 997, 1001 (Fla.1981), and Roth v. State, 385 So. 2d 114, 115 (Fla. 3d DCA 1980). See Nova v. State, 414 So. 2d 629 (Fla. 3d DCA 1982). The trial court, presented with the motion which is the subject of this appeal, read our decision on Nova’s 1981 motion to mean that we had already ruled on Nova’s present claim. But the most that can be said of our decision in…1 / 2
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U.S. Fire Ins. Co. v. Franko, 443 So. 2d 170 (Fla. 1st DCA 1983)…t to arbitration. Therefore, the motion to dismiss is, in substance, a motion to compel arbitration and a demand for arbitration. See also Butcher & Singer, Inc. v. Frisch, 433 So. 2d 1360 (Fla. 4th DCA 1983); Rinker Portland Cement Corp. v. Seidel, 414 So. 2d 629 (Fla. 3d DCA 1982). Respondents’ contentions that the dispute is not over the amount of loss and that a nonarbitrable claim asserted subsequent to the order sub judice should preclude arbitration are without merit. Permitting parties to litigate a…
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Graham Contracting, Inc. v. Flagler Cnty., 444 So. 2d 971 (Fla. 5th DCA 1983)…is timely according to the meaning of the contract is a question to be decided in arbitration. See Federated Department Stores, Inc. v. Pavarini Construction Company, Inc., 425 So. 2d 1212 (Fla. 4th DCA 1983); Rinker Portland Cement Corp. v. Seidel, 414 So. 2d 629 (Fla. 3d DCA 1982). We believe that a waiver of the right to arbitrate should not be implied from mere inaction unless the delay has given the party seeking arbitration an undue advantage or has resulted in prejudice to another. See Carcich v. Reden…
Previewing 3 of 12 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)
- The Pub. Health Tr. OF Dade Cnty. v. M.R. Harrison Constr. Corp., 415 So. 2d 756 (Fla. 3d DCA 1982)
- Balboa Ins. Co. v. W. G. Mills, Inc., 403 So. 2d 1149 (Fla. 2d DCA 1981)
- Willey v. State, 403 So. 2d 1149 (Fla. 1st DCA 1981)
- Lyons v. Krathen, 368 So. 2d 906 (Fla. 3d DCA 1979)
- Bickerstaff v. Frazier, 232 So. 2d 190 (Fla. 1st DCA 1970)