ABRAHAM HIRSCHFELD, ET AL., APPELLANTS,
v.
CRESCENT HEIGHTS, X, INC., APPELLEE
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Defendants appealed a trial court order denying their motion to dismiss based on a contractual right to arbitration. The court reversed, holding that the defendants did not waive their right to arbitration by filing motions to dismiss, and that a formal motion to compel arbitration was not required when seeking dismissal based on an arbitration clause.
Defendants did not waive arbitration because filing motions to dismiss directed at technical deficiencies in the complaint does not constitute 'active participation' in litigation amounting to waiver. A formal motion to compel arbitration is not required when a movant seeks dismissal based on a contractual arbitration right; a motion to dismiss is in substance both a motion to compel arbitration and a demand for arbitration.
[1] A party does not waive the right to arbitration by filing a motion to dismiss based on technical deficiencies in a complaint.
[2] A motion to dismiss based on a contractual right to arbitrate is, in substance, a motion to compel arbitration.
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Join FLexlaw to unlock all legal intelligence“Clearly, a party, who actively participates in a lawsuit waives the right to arbitration.”
Establishes the legal standard for waiver of arbitration rights through active litigation participation
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Join FLexlaw to unlock all legal intelligenceCrescent Heights sued defendants Abraham Hirschfeld (as trustee and individually) and Zipora Hirschfeld for breach of contract. Defendants filed a mot…
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PER CURIAM.
Appellants, Abraham Hirschfeld, as Trustee for Castle Club Corp., Abrahram Hirseh-feld a/k/a Abe Hirschfeld and Zipora Hirsch-feld (the “defendants”), appeal a non-final order denying arbitration. We reverse, because the defendants did not act inconsistently with arbitration.
Appellee, Crescent Heights, X, Inc., (“Crescent Heights”) sued the defendants for breach of contract. The defendants responded to the complaint by filing a motion to dismiss for failure to state a 'cause of action. Denying the motion, the trial court ordered the defendants to answer the complaint. Prior to answering, the defendants filed another motion to dismiss, based on a contractual right to arbitration. This motion did not include a formal demand to compel arbitration. The trial court denied the motion to dismiss, ruling that the defendants waived arbitration. The defendants now appeal.
Clearly, a .party, who actively participates in a lawsuit waives the right to arbitration. See Lapidus v. Arlen Beach Condominium Ass’n, 394 So. 2d 1102 (Fla. 3d DCA 1981). Here, it cannot be said that the defendants actively participated in litigating to the extent of waiving the right to arbitration. The filing of a motion to dismiss directed at technical deficiencies in the complaint, such as the defendants’ first motion, is not “active participation” amounting to a waiver. See Prudential-Bache Sec. v. Pauler, 488 So. 2d 894 (Fla. 2d DCA 1986); Graham Contracting, Inc. v. Flagler County, 444 So. 2d 971 (Fla. 5th DCA 1983). Additionally, a formal motion to compel arbitration is not required when a movant seeks dismissal based on a contractual right to arbitrate. See Rinker Portland Cement Corp. v. Seidel, 414 So. 2d 629 (Fla. 3d DCA 1982). The motion to dismiss is in substance, a simultaneous motion to compel arbitration and a demand, for arbitration. See U.S. Fire Ins. Co. v. Franko, 443 So. 2d 170 (Fla. 1st DCA 1983); Balboa Ins. Co. v. W.G. Mills, Inc., 403 So. 2d 1149 (Fla. 2d DCA 1981).
Because the defendants acted consistently with arbitration, the trial court should have treated the defendants’ second motion to dismiss as a motion to compel arbitration. See Balboa, 403 So. 2d at 1151. (dismissal motion, which was substantially a motion to compel arbitration, governed by substance rather than label). Accordingly, we vacate the order denying the motion to dismiss and remand the ease with instructions to refer this matter to arbitration.
Reversed and remanded with instructions.
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Miller & Solomon Gen. Contractors, Inc. v. Brennan's Glass Co., Inc., 824 So. 2d 288 (Fla. 4th DCA 2002)…ause such action is generally presumed to be inconsistent with the intent to arbitrate. See id. A “motion to dismiss is in substance, a simultaneous motion to compel arbitration and a demand for arbitration.” Hirschfeld v. Crescent Heights, X, Inc., 707 So. 2d 955, 956 (Fla. 3d DCA 1998)(citing U.S. Fire Ins. Co. v. Franko, 443 So. 2d 170 (Fla. 1st DCA 1983)). “All questions about waivers [of arbitration] should be construed in favor of arbitration rather than against it. Rath v. Network Mktg., L.C., 790 So.…
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Doctors Assocs., Inc. v. Thomas, 898 So. 2d 159 (Fla. 4th DCA 2005)…er & Solomon Gen. Contractors, Inc. v. Brennan’s Glass Co., 824 So. 2d 288, 290 (Fla. 4th DCA 2002). It is well settled that a party who actively participates in a lawsuit waives the right to arbitration. See Hirschfeld v. Crescent Heights X, Inc., 707 So. 2d 955, 956 (Fla. 3d DCA 1998). Active participation in a suit works as a waiver because it is generally presumed to be inconsistent with the intent to arbitrate. See Miller & Solomon, 824 So. 2d at 290. However, in the case below, the May 2003 eviction ac…
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Houchins v. King Motor Co. OF Fort Lauderdale, Inc., 906 So. 2d 325 (Fla. 4th DCA 2005)…898 So. 2d 159, 162 (Fla. 4th DCA 2005). However, the filing of a motion to dismiss for failure to state a cause of action does not constitute “active participation” in the lawsuit to constitute a waiver. See Hirschfeld v. Crescent Heights, X, Inc., 707 So. 2d 955, 956 (Fla. 3d DCA 1998); Prudential-Bache Sec. v. Pauler, 488 So. 2d 894, 895 (Fla. 2d DCA 1986); Graham Contracting, Inc. v. Flagler County, 444 So. 2d 971, 973 (Fla. 5th DCA 1983). In Hirschfeld, for example, the defendant filed a motion to dismi…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lapidus v. Arlen Beach Condo. Ass'n, Inc., 394 So. 2d 1102 (Fla. 3d DCA 1981)
- U.S. Fire Ins. Co. v. Franko, 443 So. 2d 170 (Fla. 1st DCA 1983)
- Graham Contracting, Inc. v. Flagler Cnty., 444 So. 2d 971 (Fla. 5th DCA 1983)
- Balboa Ins. Co. v. W. G. Mills, Inc., 403 So. 2d 1149 (Fla. 2d DCA 1981)
- Willey v. State, 403 So. 2d 1149 (Fla. 1st DCA 1981)
- Prudential-Bache Sec., Inc. v. Pauler, 488 So. 2d 894 (Fla. 2d DCA 1986)
- Rinker Portland Cement Corp. v. Seidel, 414 So. 2d 629 (Fla. 3d DCA 1982)
- Nova v. State, 414 So. 2d 629 (Fla. 3d DCA 1982)