CED CONSTRUCTION, INC., APPELLANT,
v.
KAISER-TAULBEE ASSOCIATES, INC., ETC., ET AL., APPELLEE
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CED Construction appealed a summary judgment that barred its arbitration demand as time-barred. The Florida Fifth District Court of Appeal reversed, holding that the timeliness of an arbitration demand is a question of fact for arbitrators to decide, not the trial court, and that CED did not waive its right to arbitration by simultaneously raising other defenses in its motion to dismiss.
The court held that the timeliness of an arbitration demand is a factual question for arbitrators to decide, not the trial court. The court also held that CED did not waive its right to arbitration by asserting additional defenses in its motion to dismiss, as a party's first participation in litigation through a motion to dismiss does not constitute a waiver.
[1] The timeliness of a demand for arbitration is a question of fact to be decided by arbitrators, not the trial court.
[2] A party does not waive its right to compel arbitration by filing a motion to dismiss that simultaneously raises other grounds for relief.
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Join FLexlaw to unlock all legal intelligence“The issue of whether the demand for arbitration was timely is a question of fact to be decided by arbitration, not the trial court.”
Establishes the core holding that arbitrators, not courts, determine timeliness of arbitration demands
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Join FLexlaw to unlock all legal intelligenceCED contracted with FKA to design apartment complexes; FKA subcontracted with KTA for plumbing, HVAC, and electrical design. In 1994, CED discovered v…
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CED Construction, Inc. (CED) appeals a final summary judgment in favor of Kaiser-Taulbee Associates, Inc. (KTA)1 finding that CED’s demand for arbitration was time-barred. We reverse because the issue of timeliness was a matter to be determined by arbitration, not the circuit court.
CED contracted with Fugelberg Koch Architects (FKA) to design a series of apartment complexes for CED throughout Florida. As part of its design work, FKA subcontracted with KTA to design the plumbing, HVAC, and electrical systems in the apartment complexes. In 1994, CED discovered ventilation or “back drafting”2 problems with the gas appliances in some of the apartments, and began to investigate the cause of the problem. CED ultimately concluded that the “back drafting” problem was caused by a design flaw.
In December, 1998, CED filed a demand for arbitration, seeking damages against FKA and the general contractor. FKA then sought arbitration against KTA on its subcontract. CED and FKA settled their dispute, and FKA assigned its claims against KTA to CED. KTA then filed suit in circuit court seeking a determination that CED’s claims were barred by the statute of limitations. CED responded by moving to dismiss the action, asserting that the arbitrators, not the trial court, should determine the question of whether the statute of limitations barred arbitration of the dispute. In the alternative, CED sought a determination that the statute of limitations had not run.
The trial court determined that CED’s claims were time-barred, and entered a final judgment enjoining the arbitration.
We reverse. The issue of whether the demand for arbitration was timely is a question of fact to be decided by arbitration, not the trial court. Pembroke Indus. Park P’ship v. Jazayri Constr., Inc., 682 So. 2d 226, 227 (Fla. 3d DCA 1996); Victor v. Dean Witter Reynolds, Inc., 606 So. 2d 681, 683 (Fla. 5th DCA 1992).
While conceding that to be the general rule, KTA argues that the final judgment should be affirmed because CED waived its right to compel arbitration by acting inconsistently with the exercise of that right. In this regard, KTA asserts that CED waived its right to seek dismissal based on the arbitration provision because CED’s motion to dismiss also asserted that its claims were not time-barred.
We disagree. While a party’s active participation in litigation can constitute a waiver of that party’s contractual right to arbitrate, here, CED’s only participation in the lawsuit was the filing of a motion to dismiss. This motion was CED’s first opportunity to raise the issue of mandatory arbitration. That CED simultaneously raised other grounds is of no consequence, and does not constitute a waiver. See Duckworth v. Plant, 697 So. 2d 1257 (Fla. 5th DCA 1997).
In summary, the trial court erred in allowing KTA to proceed in circuit court in violation of the mandatory arbitration provision set forth in the parties’ contract. Accordingly, we reverse and remand for further proceedings consistent herewith.
REVERSED AND REMANDED.
PETERSON and SAWAYA, JJ., concur. . Kaise-Taulbee Associates, Inc. is now known as KTD Consulting Engineers, Inc. . In this context, "back drafting” occurs when gas appliances in an apartment unit are not properly ventilated resulting in a potentially dangerous buildup of gas or the byproducts of gas combustion in the apartment.
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Thierry Albert Thenet v. Jenne, 968 So. 2d 46 (Fla. 4th DCA 2007)…v. Jazayri Constr., Inc., 682 So. 2d 226, 227 (Fla. 3d DCA 1996) (“[T]he issue of whether the demand for arbitration was timely is a question of fact for the arbitrator to decide, not the trial court.”); CED Constr., Inc. v. Kaiser-Taulbee Assocs., 816 So. 2d 813 (Fla. 5th DCA 2002) (“The issue of whether the demand for arbitration was timely is a question of fact to be decided by arbitration, not the trial court.”); see also O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So. 2d 181, 188 (Fla.20…
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O'Keefe Architects, Inc. v. CED Constr. P'rs Ltd., 909 So. 2d 370 (Fla. 5th DCA 2005)…affirm in all respects. We write only to reiterate that an issue concerning whether a demand for arbitration is timely is a question of fact to be decided by arbitration, and not the trial court. See CED Constr., Inc. v. Kaiser-Taulbee Assoc., Inc., 816 So. 2d 813 (Fla. 5th DCA 2002); Pembroke Indus. Park P’ship v. Jazayri Constr., Inc., 682 So. 2d 226 (Fla. 3d DCA 1996). See also Alderman v. City of Jacksonville Fire & Rescue Div., 902 So. 2d 885 (Fla. 1st DCA 2005). This concept encompasses the position tha…
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THE Hillier Grp., Inc. v. Torcon, Inc., 932 So. 2d 449 (Fla. 2d DCA 2006)…timely under the Contract is a question for the arbitrator to decide. See Executive Life Ins. Co. v. John Hammer & Assocs., Inc., 569 So. 2d 855, 857 (Fla. 2d DCA 1990); Alderman, 902 So. 2d at 887; CED Constr., Inc. v. Kaiser-Taulbee Assocs., Inc., 816 So. 2d 813, 814 (Fla. 5th DCA 2002). D. Waiver by Failing to Demand Arbitration in Other Litigation Finally, Torcon argues that Hillier waived its right to arbitration by omitting to demand arbitration in its answer to a separate action for declaratory relie…
Authorities Cited
- Victor v. Dean Witter Reynolds, Inc., 606 So. 2d 681 (Fla. 5th DCA 1992)
- Eve Alce v. State, 682 So. 2d 226 (Fla. 3d DCA 1996)
- Brake v. Brake, 697 So. 2d 1257 (Fla. 3d DCA 1997)
- Corinne Duckworth v. Plant, 697 So. 2d 1257 (Fla. 5th DCA 1997)