JAMES P. O'FLARITY, APPELLANT,
v.
TREND STAR DEVELOPMENT, INC., TREND STAR COMMUNICATIONS, INC., TREND STAR INDUSTRIES, LTD., WILLIAM R. BROOKER AND JAMES RANUM, APPELLEES
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Filing an answer constitutes a waiver of the right to arbitrate, but not filing an answer does not.
Appellant challenged a trial court order compelling arbitration and staying proceedings. Appellant argued that both defendants waived their right to a…
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PER CURIAM.
This is a non-final appeal challenging a trial court’s order granting William Brooker and James Ranum’s motion to compel arbitration and staying all matters pending arbitration. Appellant contends that both parties waived any right to arbitrate. We agree with appellant’s waiver argument only as to Brooker who filed an answer to the complaint.
The filing of an answer is an act inconsistent with a subsequent demand to arbitrate. See Bared & Co. v. Specialty Maintenance & Constr. Co., 610 So. 2d 1 (Fla. 2d DCA 1992); Hardin Int’l, Inc. v. Firepak, Inc., 567 So. 2d 1019, 1021 (Fla. 3d DCA 1990); King v. Thompson & McKinnon, Auchincloss, Kohlmeyer, Inc., 352 So. 2d 1235 (Fla. 4th DCA 1977); Mike Bradford & Co. v. Gulf States Steel Co., 184 So. 2d 911 (Fla. 3d DCA 1966). We find no waiver as to Ranum who did not file an answer. Accordingly, we affirm the order requiring appellant to arbitrate with Ranum and reverse as to Brooker. This case is remanded for disposition consistent with this opinion.
DELL, STONE and WARNER, JJ., concur.
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Marine Env't P'rs, Inc. v. Johnson, 863 So. 2d 423 (Fla. 4th DCA 2003)…he intent to arbitrate. Miller & Solomon Gen. Contractors, 824 So. 2d at 290. Where a party defends on the merits by answering the complaint without demanding arbitration, a waiver is deemed to have occurred. Id.; O’Flarity v. Trend Star Dev., Inc., 689 So. 2d 1297 (Fla. 4th DCA 1997); Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So. 2d 1, 3 (Fla. 2d DCA 1992); Riverfront Props., Ltd. v. Factor, 460 So. 2d 948, 952 (Fla. 2d DCA 1984); King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So. 2d…
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The Est. OF Lee L. Williams, Sr. v. Manor Care OF Dunedin, Inc., 923 So. 2d 615 (Fla. 2d DCA 2006)…sion on the general principle that “ ‘[o]ne who intentionally relinquishes a known right cannot, without consent of his adversary, reclaim it.’ ” Id. (quoting 28 Am.Jur.2d Estoppel and Waiver § 156 (1966)). See also O’Flarity v. Trend Star Dev. Co., 689 So. 2d 1297, 1297 (Fla. 4th DCA 1997) (holding that the filing of an answer is an act inconsistent with arbitration); cf. Wieneke v. Raymond, James & Assocs., 495 So. 2d 869, 871-72 (Fla. 2d DCA 1986) (holding that there was no waiver where right to arbitration…
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Gen. Elec. Cap. Corp. v. Bio-Mass Tech, Inc., 136 So. 3d 698 (Fla. 2d DCA 2014)…Constr. Inc., 610 So. 2d 1, 3 (Fla. 2d DCA 1992) (“It was not the substance of the initial answer that resulted in the waiver but the fact that SMIC and National Fire answered rather than demanding arbitration.”); O’Flarity v. Trend Star Dev., Inc., 689 So. 2d 1297, 1297 (Fla. 4th DCA 1997) (“The filing of an answer is an act inconsistent with a subsequent demand to arbitrate.”). The situation in this case is analogous. By responding to and defending the replevin issue on numerous different occasions, Bio-Mass…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- 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)
- Bared & Co., Inc. v. Specialty Maint. & Constr., Inc., 610 So. 2d 1 (Fla. 2d DCA 1992)
- Hardin Int'l, Inc. v. Firepak, Inc., 567 So. 2d 1019 (Fla. 3d DCA 1990)