LLOYD AND NIKKI HOUGH, APPELLANTS,
v.
JKP DEVELOPMENT, INC., ETC., ET AL., APPELLEES
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JKP Development filed a construction lien foreclosure action but did not immediately seek arbitration despite a contractual arbitration clause, instead litigating for eight weeks before requesting arbitration. The Florida District Court of Appeal held that JKP waived its arbitration rights through this delay and active litigation, reversing the trial court's order compelling arbitration.
The court held that JKP Development waived its contractual arbitration rights by instituting the action without simultaneously applying for a stay and order compelling arbitration and by thereafter actively litigating the case through various responsive pleadings.
[1] A party waives its contractual right to arbitration by actively participating in a lawsuit or taking actions inconsistent with that right.
[2] Filing an answer in a lawsuit without asserting the right to arbitration constitutes a waiver of that right.
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Join FLexlaw to unlock all legal intelligence“Florida courts recognize that a party's contractual right to arbitration may be waived by actively participating in a lawsuit or taking action inconsistent with that right.”
Establishes the foundational legal principle governing waiver of arbitration rights
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Join FLexlaw to unlock all legal intelligenceJKP Development, Inc. filed a construction lien foreclosure action against Lloyd and Nikki Hough. Although the contract between the parties contained …
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PER CURIAM.
This is an appeal by the defendants Lloyd and Nikki Hough from an interlocutory order of the trial court compelling the parties to arbitrate in an action in which the plaintiff JKP Development, Inc. seeks to foreclose a construction lien. We have jurisdiction to entertain the interlocutory appeal. Art. V, § 4(b)(1), Fla. Const.; Fla.RApp.P. 9.130(a)(3)(C)(v).
Although the contract between the parties provides for arbitration of the instant dispute, we conclude that the plaintiff waived its contractual arbitration rights by filing the action below, without simultaneously requesting a stay and an order compelling arbitration, and thereafter filing certain responsive and other pleadings in the case. It is true that the day after the action was filed, the plaintiff sent a letter to the American Arbitration Association requesting arbitration in this matter, but the plaintiff failed to inform the trial court of this request. It was only after (a) the defendants had filed an answer, affirmative defenses, and a counterclaim, and (b) the plaintiff had filed a reply to the affirmative defenses, a motion to dismiss the counterclaim, and a motion to strike the defendants’ request for attorneys’ fees, that the plaintiff filed a motion to compel arbitration — approximately eight weeks after the action was originally filed.
This court in Lapidus v. Arlen Beach Condominium Association, 394 So. 2d 1102, 1103 (Fla. 3d DCA 1981), states the applicable law:
“Florida courts recognize that a party’s contractual right to arbitration may be waived by actively participating in a lawsuit or taking action inconsistent with that right. Klosters Rederi A/S v. Arison Shipping Company, 280 So. 2d 678 (Fla.1973); Ojus Industries, Inc. v. Mann, 221 So. 2d 780 (Fla. 3d DCA 1969). Filing an answer without asserting the right for arbitration acts as waiver, King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So. 2d 1235 (Fla. 4th DCA 1977); as does initiating legal action without seeking arbitration, Seville Condominium v. Clearwater Development Corp., 340 So. 2d 1243 (Fla. 2d DCA 1976) [opinion by Grimes, J.] and counterclaiming without raising the issue of arbitration, Mike Bradford & Co. v. Gulf States Steel Co., 184 So. 2d 911 (Fla. 3d DCA 1966).” (emphasis added).
Because the plaintiff in the instant case (1) instituted the construction lien action below, without simultaneously applying to the trial court for a stay and an order compelling arbitration, and (2) thereafter actively litigated the case by filing various responsive and other pleadings in the cause, as indicated above, the plaintiff has clearly waived its contractual right to arbitration in this case.
For the above-stated reason, the order under review compelling arbitration is reversed and the cause is remanded to the trial court with directions to deny the plaintiffs motion to compel arbitration.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
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Beverly Hills Dev. Corp. v. George Wimpey OF Fla., Inc., 661 So. 2d 969 (Fla. 5th DCA 1995)…ion Co., Inc. v. Savanna Club Corp., 592 So. 2d 344 (Fla. 4th DCA 1992). However, a valid contractual right to arbitrate a dispute may be waived. Klosters Rederi A/S v. Arison Shipping Co., 280 So. 2d 678 (Fla.1973); Hough v. JKP Development, Inc., 654 So. 2d 1241 (Fla. 3d DCA 1995); Piercy v. School Board of Washington County, 576 So. 2d 806 (Fla. 1st DCA 1991).2 This is true even if the agreement to arbitrate is expressed as a condition precedent to a legal action. Mike Bradford & Co. v. Gulf States Steel C…
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Bonner v. RCC Assocs., Inc., 679 So. 2d 794 (Fla. 3d DCA 1996)…dispute — an action inconsistent with arbitration. The contractor thus waived its contractual arbitration rights “by filing the action below, without simultaneously requesting a stay and an order compelling arbitration....” Hough v. JKP Dev., Inc., 654 So. 2d 1241, 1241 (Fla. 3d DCA 1995); see also Hardin Int’l v. Firepak, Inc., 567 So. 2d 1019, 1021 (Fla. 3d DCA 1990)(con-tractor “waived its right to arbitrate the lien dispute when it filed the foreclosure action”). Reversed and remanded.…
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Waterhouse Constr. Grp., Inc. v. 5891 SW 64TH St., LLC., 949 So. 2d 1095 (Fla. 3d DCA 2007)…tration). As in Concrete, here, the defendants filed counterclaims simultaneously with requests to stay proceedings and compel arbitration, and have not taken any other actions to pursue judicial resolution of this case. Cf. Hough v. JKP Dev., Inc., 654 So. 2d 1241, 1242 (Fla. 3d DCA 1995) (finding that contractor waived its arbitration rights by filing a complaint without simultaneously requesting a stay and an order compelling arbitration); Bon [*1101] ner v. RCC Assocs., Inc., 679 So. 2d 794, 795 (Fla. 3d D…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Klosters Rederi A/S v. Arison Shipping Co., 280 So. 2d 678 (Fla. 1973)
- 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)
- Mike Bradford & Co., Inc. v. Gulf States Steel Co., Inc., 184 So. 2d 911 (Fla. 3d DCA 1966)
- Ojus Indus., Inc. v. Mann, 221 So. 2d 780 (Fla. 3d DCA 1969)
- Seville Condo. # 1, Inc. v. Clearwater Dev. Corp., 340 So. 2d 1243 (Fla. 2d DCA 1976)