SHARON LANE, APPELLANT,
v.
ILANA SARFATI, ETC., ET AL., APPELLEES
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The court held that filing an action in another state, which was dismissed before an answer was filed and caused no prejudice, does not waive the right to arbitration.
The defendant filed an action in California on the same cause of action, which was dismissed before an answer was filed. The trial court denied the de…
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SCHWARTZ, Chief Judge.
The defendant below appeals from an order denying her application for arbitration. The trial court ruled that Lane had waived the right to arbitration, as provided in the parties’ agreement, by filing an action in California on the same cause of action. We reverse.
It is admitted that the California ease was dismissed prior to answer and therefore caused no cognizable prejudice to the appel-lees. It is the now well established rule of this district, reflecting recent federal decisions to that effect, that a showing of prejudice is indispensable to a conclusion that the maintenance of a position inconsistent with arbitration waives that remedy. Acevedo v. Caribbean Transp., Inc., 673 So. 2d 170, 175 (Fla. 3d DCA 1996); Miami Dolphins, Ltd. v. Cowan, 601 So. 2d 301 (Fla. 3d DCA 1992).1 Accordingly, the right to arbitration remains in effect and must be honored.
We certify conflict with Donald & Co. Securities, Inc. v. Mid-Florida Community Services, Inc., 620 So. 2d 192 (Fla. 2d DCA 1993) and Finn v. Prudential-Bache Securities, Inc., 523 So. 2d 617 (Fla. 4th DCA 1988), review denied, 531 So. 2d 1354 (Fla.1988), cert. denied, 488 U.S. 917, 109 S.Ct. 274, 102 L.Ed.2d 262 (1988), which hold that a showing of prejudice is not necessary to effect a waiver of arbitration.
Reversed, conflict certified.
. The earlier, contrary case of Rosen v. Shearson Lehman Brothers, Inc., 534 So. 2d 1185 (Fla. 3d DCA 1988), review denied, 544 So. 2d 200 (Fla.1989), was based on the conclusion that the controlling federal law was then unclear on the point. Subsequent decisions in such cases as S & H Contractors, Inc. v. A.J. Taft Coal Co., Inc., 906 F. 2d 1507 (11th Cir.1990), cert. denied, 498 U.S. 1026, 111 S.Ct. 677, 112 L.Ed.2d 669 (1991), however, dispelled the uncertainty and established the rule we adopted — thus effectively, though silently, overruling Rosen—in Acevedo, 673 So. 2d at 175, and Miami Dolphins, 601 So. 2d at 302.
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Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707 (Fla. 2005)…WELLS, J. We have for review the decision in Raymond James Financial Services, Inc. v. Saldukas, 851 So. 2d 853 (Fla. 2d DCA 2003), which certified conflict with the decisions in Lane v. Sarfati, 691 So. 2d 5 (Fla. 3d DCA 1997), and Benedict v. Pensacola Motor Sales, Inc., 846 So. 2d 1238 (Fla. 1st DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. FACTUAL AND PROCEDURAL BACKGROUND The Second District Court of Appeal set out the facts…
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ARI Mut. Ins. Co. v. Hogen, 734 So. 2d 574 (Fla. 3d DCA 1999)…in the lawsuit or took action inconsistent with her right to appraisal, and whether such action resulted in prejudice to the non-moving party. Shoma Dev. Corp. v. Rodriguez, 730 So. 2d 838, 24 Fla. L. Weekly D938 (Fla. 3d DCA 1999); Lane v. Sarfati, 691 So. 2d 5 (Fla. 3d DCA 1997). After reviewing the record before us, it is apparent that Hogen aggressively litigated this cause below and that such action over a nine-month period prejudiced the insurance company by resulting legal fees and costs that could h…
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Gray Mart, Inc. v. Fireman's Fund Ins. Co., 703 So. 2d 1170 (Fla. 3d DCA 1997)…tures Corp. v. Safeco Ins. Co., 540 So. 2d 162, 163 (Fla. 4th DCA 1989). As with a contractual right to arbitration, the right to an appraisal may be waived if a party maintains a position inconsistent with the appraisal remedy. See Lane v. Sarfati, 691 So. 2d 5, 5 (Fla. 3d DCA 1997); Wilson v. Par Builders II, Inc., 879 F.Supp. 1187, 1189 (M.D.Fla.1995); NCR Credit Corp. v. Reptron Elees., Inc.. 863 F.Supp. 1561,1565 (M.D.Fla.1994); Knight v. [*1173] Xebec, 750 F.Supp. 1116, 1118 (M.D.Fla.1990). We have re…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- S & H Contractors, Inc. v. A.J. Taft Coal Co., Inc., 906 F.2d 1507 (11th Cir. 1990)
- Finn v. Prudential-Bache Sec., Inc., 523 So. 2d 617 (Fla. 4th DCA 1988)
- United Gas Pipe Line Co. v. La. Power & Light Co., 488 U.S. 917 (U.S. 1988)
- Rosen v. Shearson Lehman Bros., Inc., 534 So. 2d 1185 (Fla. 3d DCA 1988)
- Donald & Co. Sec., Inc. v. Mid-Florida Cmty. Servs., Inc., 620 So. 2d 192 (Fla. 2d DCA 1993)
- Ga. Marble Co. v. Whitlock et ux., 498 U.S. 1026 (U.S. 1991)
- The Miami Dolphins, Ltd. v. Paul Cowan ad Litem of the Estate of David Arthur Overstreet, 601 So. 2d 301 (Fla. 3d DCA 1992)
- Heideman et ux. v. PFL, Inc., 498 U.S. 1026 (U.S. 1991)
- Acevedo v. Caribbean Transp., Inc., 673 So. 2d 170 (Fla. 3d DCA 1996)