LOUIS D. WOODALL AND GAIL M. WOODALL, HIS WIFE, APPELLANTS,
v.
GREEN TREE FINANCIAL SERVICING CORP., F/K/A GREEN TREE FINANCIAL CORP., APPELLEE
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The Fourth District Court of Appeal reversed a trial court order compelling arbitration of a counterclaim in a foreclosure case, holding that the lender waived its right to arbitrate by filing a motion for summary judgment on the merits of the counterclaim after the borrowers filed it.
Yes. The court reversed the order compelling arbitration, holding that Green Tree's filing of a motion for summary judgment and submission of affidavits on the facts underlying the counterclaim constituted active participation in the lawsuit and a waiver of its right to arbitrate under the contractual arbitration provision.
[1] A party waives the right to arbitrate by actively participating in litigation, including filing a motion for summary judgment on the merits of a counterclaim.
[2] Filing a motion for summary judgment that contests the merits of a counterclaim and asserts affirmative defenses constitutes active participation in the lawsuit, thereby…
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Join FLexlaw to unlock all legal intelligence“Appellee's filing of its motion for summary judgment and the submission of affidavits on the facts underlying the counterclaim constituted active participation in the lawsuit and a waiver of the right to arbitrate under the contractual provision.”
States the core legal principle: that filing a motion for summary judgment on the merits waives the right to arbitrate.
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Join FLexlaw to unlock all legal intelligenceGreen Tree Financial Servicing Corp. instituted a foreclosure action on a note and mortgage related to a manufactured-home installment contract. The b…
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PER CURIAM.
This is an appeal from a non-final order granting a motion to compel arbitration in a case involving foreclosure of a note and mortgage and a counterclaim filed in relation to the underlying manufactured-hbme installment contract. Appellee, the party instituting the foreclosure action, sought arbitration of appellants’ counterclaim based on an arbitration clause contained in the installment contract. We reverse because we conclude that the trial court erred in granting the motion to compel arbitration which was filed after appellee sought summary judgment on the counterclaim.
Appellee’s filing of its motion for summary judgment and the submission of affidavits on the facts underlying the counterclaim constituted active participation in the lawsuit and a waiver of the right to arbitrate under the contractual provision. See Lapidus v. Arlen Beach Condominium Ass’n, 394 So. 2d 1102, 1103 (Fla. 3d DCA 1981). Appellee’s motion for summary judgment contested the merits of the issues in the counterclaim and asserted what would be raised as affirmative defenses to the counterclaim. That fact distinguishes this case from Century Surfacing, Inc. v. Metric Constructors, Inc., 422 So. 2d 329 (Fla. 4th DCA 1982), where this court found that a motion for summary judgment filed by the party seeking to compel arbitration did not amount to a waiver of the contractual arbitration provision. In Century Surfacing, the motion for summary judgment was simply directed to the movant’s claimed contractual entitlement to arbitration. See id.
Accordingly, we reverse and remand for proceedings consistent with this decision.
REVERSED and REMANDED.
WARNER, C.J., STONE and STEVENSON, JJ„ concur.
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Miller & Solomon Gen. Contractors, Inc. v. Brennan's Glass Co., Inc., 824 So. 2d 288 (Fla. 4th DCA 2002)…efended by attacking the merits of the case as opposed to initially challenging the plaintiffs right to judicial remedy in the first place. For example, this Court in Woodall v. Green Tree Financial Servicing Corp. spoke directly to this point. See 755 So. 2d 681 (Fla. 4th DCA 1999). This Court had before it the question of whether the defendants had waived the right to arbitrate where, in response to the complaint, they filed a motion for summary judgment with supporting affidavits. See id. at 682. The Cour…
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Morrell v. Wayne Frier Manufactured Home Ctr., 834 So. 2d 395 (Fla. 5th DCA 2003)…efenses, and a counterclaim, and where the defendant actively participated in the litigation for over two years and did not move to compel arbitration until the case was already set for trial); Woodall v. [*398] Green Tree Financial Servicing Corp., 755 So. 2d 681 (Fla. 4th DCA 1999) (waiver where the defendants responded to the complaint by filing a motion for summary judgment which was directed to the merits). In the instant case, Frier filed an answer, an affirmative defense, and a motion to dismiss which…
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Strominger v. AmSOUTH Bank, 991 So. 2d 1030 (Fla. 2d DCA 2008)…he merits is a specific action that is generally considered to be inconsistent with the right to arbitrate. See Inverrary Gardens Condo. Ass’n, Inc. v. Spender, 939 So. 2d 1159, 1161-62 (Fla. 4th DCA 2006); Woodall v. Green Tree Fin. Servicing Corp. 755 So. 2d 681, 682 (Fla. 4th DCA 1999); Lapidus v. Arlen Beach Condo. Ass’n, Inc., 394 So. 2d 1102, 1103 (Fla. 3d DCA 1981).2 AmSouth Bank essentially presents three arguments in support of permitting a different result than that called for in the case law discu…
Previewing 3 of 5 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)
- Century Surfacing, Inc. v. Metric Constructors, Inc., 422 So. 2d 329 (Fla. 4th DCA 1982)