DONE AND DONE, LLC, ETC.
v.
DATA PAYMENT SYSTEMS, INC., ETC.
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Data Payment Systems, Inc. sought to compel arbitration of counterclaims and third-party claims filed by defendant Done and Done, LLC. The court reversed the trial court's order compelling arbitration, holding that Data Payment Systems waived its right to arbitration through active participation in litigation and discovery.
Yes. The court held that Data Payment Systems waived its right to compel arbitration by actively participating in the lawsuit through prosecution of claims and engagement in discovery prior to seeking arbitration. Therefore, the trial court's order compelling Done and Done, LLC's counterclaims and third-party claims to arbitration was reversed.
[1] A party seeking to enforce an arbitration agreement forfeits that right when it actively participates in litigation and discovery prior to filing a motion to compel arbit…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a party acts inconsistently with the right to arbitration when the party actively participates in the lawsuit by either prosecuting or defending issues that are subject to arbitration.”
General Electric Capital Corp. v. Bio-Mass Tech, Inc., cited for the principle that active litigation participation waives arbitration rights.
Data Payment Systems, Inc. (d/b/a One Payment) initiated litigation against Done and Done, LLC. Done and Done, LLC filed counterclaims and third-party…
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Barakat + Bossa PLLC, and Brian Barakat, for appellee/cross-appellant. Before LOGUE, SCALES and LOBREE, JJ.
PER CURIAM.
In this appeal from an order compelling arbitration, the defendant, Done and Done, LLC, argues that the trial court erred in compelling arbitration of its counterclaims and third-party claims.1 Because our review of the record shows that the plaintiff, Data Payment Systems, Inc., d/b/a One Payment, waived its right to compel arbitration through its participation in litigation and discovery, we agree. See Chaikin v. Parker Waichman LLP, 253 So. 3d 640, 645 (Fla. 2d DCA 2017); Gen. Elec. Cap. Corp. v. Bio–Mass Tech, Inc., 136 So. 3d 698, 701 (Fla. 2d DCA 2014) (“[A] party acts inconsistently with the right to arbitration when the party actively participates in the lawsuit by either prosecuting or defending issues that are subject to arbitration.”); Est. of Orlanis ex rel. Marks v. Oakwood Terrace Skilled Nursing & Rehab. Ctr., 971 So. 2d 811, 813 (Fla. 3d DCA 2007) (“[I]t is crystal clear in this district that we apply the broad rule that any defendant who ‘seek[s] the benefits of the discovery rules prior to filing [his] motion to arbitrate,’ forfeits his right to arbitration.” (quoting Preferred Mut. Ins. Co. v. Matrix Constr. Corp., 662 So. 2d 432, 432 (Fla. 3d DCA 1995))); Marcus v. Fla. Bagels, LLC, 112 So. 3d 631, 634-35 (Fla. 4th DCA 2013) (declining to apply equitable estoppel to permit non-signatory former officer and director of signatory defendant to compel arbitration where signatory defendant had elected to proceed in litigation). Accordingly, the trial court’s order 1 We dismiss the cross-appeal for lack of jurisdiction.
compelling Done and Done, LLC’s counterclaims and third-party claims to arbitration is reversed, and the cause remanded for further proceedings.
Reversed and remanded.
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Authorities Cited
- The Est. OF Ida Orlanis v. Oakwood Terrace Skilled Nursing & Rehab. Ctr., 971 So. 2d 811 (Fla. 3d DCA 2007)
- Ira Marcus v. Fla. Bagels, LLC, 112 So. 3d 631 (Fla. 4th DCA 2013)
- Chaikin v. Parker Waichman LLP, 253 So. 3d 640 (Fla. 2d DCA 2017)
- Preferred Mut. Ins. Co. v. Matrix Constr. Corp., 662 So. 2d 432 (Fla. 3d DCA 1995)
- Gen. Elec. Cap. Corp. v. Bio-Mass Tech, Inc., 136 So. 3d 698 (Fla. 2d DCA 2014)