AMOUR AND MORE NORTH AMERICAN LICENSING, INC., AN ILLINOIS CORPORATION, AMOUR AND MORE, LTD., AN ILLINOIS CORPORATION, AND JAMES ANTONSEN, INDIVIDUALLY, APPELLANTS,
v.
RANDY ZAMMATTA, INDIVIDUALLY, AND R.G.Z. ENTERPRISES, INC., A FLORIDA CORPORATION, APPELLEES
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Defendants did not waive their right to arbitration by filing a prior lawsuit to enforce a promissory note, because the contract expressly permitted judicial enforcement of the note separately from arbitration provisions.
A party does not waive its contractual right to arbitration by filing a prior judicial action to enforce a promissory note when the contract expressly permits such separate judicial enforcement.
[1] A party does not waive its right to arbitration under a contract by filing a separate judicial action to enforce a promissory note when the contract expressly permits suc…
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Join FLexlaw to unlock all legal intelligenceDefendants filed suit in Illinois to enforce a promissory note against plaintiffs. Plaintiffs then commenced an action against defendants, who moved t…
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PER CURIAM.
This is an interlocutory appeal by the defendants Amour and More North American Licensing, Inc., Amour and More, LTD., and James Antonsen from a non-final order denying their motion to compel arbitration in an action commenced against them below by the plaintiffs Randy Zammatta and R.G.Z. Enterprises, Inc. We have jurisdiction to entertain this appeal, Art. V, § 4(b), Fla. Const.; Fla.R.App.P. 9.130(a)(3)(C)(v), and reverse the order under review and remand the cause to the trial court with directions to stay the action below and order the parties to arbitrate the matter in accord with the arbitration clause in the contract between the parties.
Contrary to the trial court’s determination, we conclude that the defendants did not waive their contractual right to arbitration by bringing a prior suit against the plaintiffs in Illinois seeking to enforce a promissory note. This is so because the subject contract expressly gives the defendants the right to judicially enforce the promissory note apart from the relevant arbitration provisions; consequently, the filing of the promissory note action in Illinois could not possibly have waived the defendants’ contractual right to arbitration in the instant action. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983); Modern Health Care Servs., Inc. v. Puglisi, 597 So. 2d 930 (Fla. 3d DCA 1992); compare Katzin v. Mansdorf, 624 So. 2d 810 (Fla. 3d DCA 1993).
Reversed and remanded.
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Powertel, Inc. v. Bexley, 743 So. 2d 570 (Fla. 1st DCA 1999)…0(a) (3) (C) (v) of the Florida Rules of Appellate Procedure provides that the court may hear an appeal from a nonfinal order that determines “the entitlement of a party to arbitration.” See Amour and More North American Licensing, Inc. v. Zammatta, 659 So. 2d 1387 (Fla. 3d DCA 1995); Southland Ventures, Inc. v. J.W. Harvey & Sons, Inc., 471 So. 2d 222 (Fla. 2d DCA 1985). This rule provides a method of obtaining an early decision on the proper forum for resolving a dispute, see State, Department of Health and…
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Fed. Vending, Inc. v. Steak & ALE OF Fla., Inc., 687 So. 2d 1366 (Fla. 4th DCA 1997)…replead in this court Judge, because our contract does provide for arbitration. We are happy to initiate arbitration as to the damages if it’s going to be a money damages case, Judge.” In Amour and More North American Licensing, Inc. v. Zammatta, 659 So. 2d 1387, 1388 (Fla. 3d DCA 1995), the court recognized that the defendant did not waive a right to arbitrate by suing on a note where the contract gave it the right to enforce the [*1368] note apart from the relevant arbitration provisions. See also Modem H…
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Authorities Cited
- Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (U.S. 1983)
- Modern Health Care Servs., Inc. v. John M. Puglisi, M.D., 597 So. 2d 930 (Fla. 3d DCA 1992)
- Urquiaga v. State, 624 So. 2d 810 (Fla. 3d DCA 1993)