CENTURY SURFACING, INC., A FLORIDA CORPORATION, PETITIONER,

v.

METRIC CONSTRUCTORS, INC., A FOREIGN CORPORATION, RESPONDENT

PER CURIAM.

Petition for writ of certiorari denied.

LETTS, C.J., concurs.

HERSEY, J., concurs specially with opinion.

ANSTEAD, J., dissents with opinion.

HERSEY, Judge,

concurring specially.

I concur in the majority’s decision to deny the petition for writ of certiorari and I do so specially in order to give visability and perspective to the divergent views held by the panel.

A right to arbitration granted by contract is specifically enforceable by a court upon a parties’ Motion to Compel pursuant to Section 682.03(1), Florida Statutes (1981). The contractual right to arbitration may, however, be waived by express words or by conduct implying such an intent. Petitioner has by implication waived its right as a result of taking positions inconsistent with arbitration.

Initially petitioner filed a motion to dismiss the third party complaint alleging its contractual right to arbitration. Although the appropriate means of raising the issue is by a Motion to Compel, we agree with the second district that a pleading is governed by its substance, so that this motion to dismiss, while technically inappropriate, does not waive petitioner’s right to arbitration. Balboa Insurance Co. v. Mills, 403 So. 2d 1149 (Fla. 2d DCA 1981).

Subsequently petitioner filed an answer to the complaint alleging arbitration as an affirmative defense. In an identical situation, the third district held that where a party answered the complaint without demanding arbitration that party waived the right to arbitration, even though the failure to arbitrate was asserted as an affirmative defense. Hansen v. Reynolds, 408 So. 2d 658 (Fla. 3d DCA 1981). Additionally I note that petitioner delayed ten months in filing an answer to the initial complaint. The waiver of the right, however, does not necessarily depend on the timing of the motion to compel arbitration. R.W. Roberts Construction Co. v. Masters & Co., 403 So. 2d 1114 (Fla. 5th DCA 1981); Ojus Industries, Inc. v. Mann, 221 So. 2d 780 (Fla. 3d DCA 1969).

The petitioner also filed a third party counterclaim in two counts seeking arbitration and, alternatively, damages. Count II of this counterclaim is clearly inconsistent with and therefore waives the right to arbitration despite the claim for arbitration in Count I. Romar Transports, Ltd., Inc. v. Iron & Steel Co. of Trinidad & Tobago Ltd., 386 So. 2d 572 (Fla. 4th DCA 1980).

Finally, petitioner filed a motion for summary judgment. This too effectively waives petitioner’s right to arbitration because: “[a] party who contests the merits of a claim by filing a motion for summary judgment accepts the judicial forum. She [or he] may not consistently later claim that only the arbitral forum is satisfactory.” Lapidus v. Arlen Beach Condominium Ass'n, 394 So. 2d 1102, 1103 (Fla. 3d DCA 1981).

For the foregoing reasons I agree that the petition for certiorari should be denied.

ANSTEAD, Judge,

dissenting:

I would grant the petition for writ of certiorari and direct the trial court to grant the petitioner’s request that the dispute between petitioner and respondent be arbitrated in compliance with the agreement of the parties. I do not believe that the petitioner’s prior motions to dismiss or subsequent pleading of the arbitration provision as an affirmative defense constituted a waiver of its rights to arbitration. In fact, under this court’s holding in Mills v. Robert W. Gottfried, Inc., 272 So. 2d 837 (Fla. 4th DCA 1973), it would be inappropriate to refer the ease to arbitration until after the filing of an answer by the defendant. While I believe referral to arbitration should be sought as soon as possible, and to that extent disagree with the holding in Mills, I do not believe the petitioner’s failure to seek arbitration before filing motions to dismiss constituted a waiver of its right to arbitrate. I also do not agree with the trial court’s conclusion that the petitioner waived its right to arbitrate by filing a counterclaim at the same time the right to arbitration was asserted. Finally, the petitioner’s motion for summary judgment simply sought a summary disposition by the court of the petitioner’s contractual entitlement to arbitration.