R. W. ROBERTS CONSTRUCTION CO., INC., A FLA. CORP., PETITIONER,
v.
MASTERS & CO., INC., A FLA. CORP., & E. L. EASTMOORE, CIRCUIT JUDGE, SEVENTH CIRCUIT, IN AND FOR PUTNAM COUNTY, FLA., RESPONDENTS
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A general contractor petitioned for certiorari to review a trial court's denial of its motion to compel arbitration in a contract dispute with a subcontractor. The court held that the contractor waived its right to arbitration by first filing a motion to dismiss and transfer the action, which took a position inconsistent with later demanding arbitration.
The trial court did not depart from the essential requirements of law. A party may waive its contractual right to arbitration through active participation in litigation or by taking action inconsistent with that right, and the contractor's initial motion to dismiss and transfer was inconsistent with its later assertion that arbitration was the proper forum.
[1] A party may waive its contractual right to arbitration by actively participating in a lawsuit or taking actions inconsistent with that right.
[2] Waiver of the right to arbitration is determined by a party's prior inconsistent actions, not solely by the timing of a motion to compel arbitration.
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Join FLexlaw to unlock all legal intelligence“A party's contract right to arbitration may be waived by active participation in a lawsuit or by taking action inconsistent with that right.”
Establishes the legal standard for waiver of arbitration rights.
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Join FLexlaw to unlock all legal intelligenceA subcontractor sued a general contractor and its surety in Putnam County for money allegedly due under a contract containing an arbitration provision…
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ORFINGER, Judge.
By Petition for Writ of Common Law Certiorari, petitioner contends that the trial court departed from the essential requirements of law when it denied its motion to compel arbitration in this contract dispute.1
Respondent, a subcontractor, filed suit in Putnam County against petitioner as general contractor, and petitioner’s surety for money allegedly due from the respondent. The contract between the parties contains the arbitration provision relied on by petitioner. On December 3, 1980, petitioner filed a motion to dismiss and to transfer the action, alleging that the contract clearly provided for venue in Orange County, rather than Putnam County. After hearing, this motion was denied by order entered February 16, 1981. On March 3, 1981, petitioner filed its answer and affirmative defenses and its motion to compel arbitration, the denial of which motion forms the basis for this petition.
Petitioner fails to show a departure from the essential requirements of law by the trial court. Assuming the arbitration clause in question to be valid (a point not conceded by respondent and not decided here), the trial court could have concluded that by submitting a motion to dismiss and to transfer action, and after an adverse ruling thereon, any right to arbitration was waived. A party’s contract right to arbitration may be waived by active participation in a lawsuit or by taking action inconsistent with that right. Klosters Reteri A/S v. Arison Shipping Co., 280 So. 2d 678 (Fla.1973). Waiver of the right does not necessarily depend on the timing of the motion to compel arbitration, but rather on the prior taking of an inconsistent position by the party moving therefor. Ojus Industries v. Mann, 221 So. 2d 780 (Fla.3d DCA 1969); King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So. 2d 1235 (Fla.4th DCA 1977).
Petitioner’s motion to dismiss and transfer the action is a contention that the proceeding is in the court of the wrong county, not that it doesn’t belong in court at all. This position seems totally inconsistent with petitioner’s later assertion that no court was the proper forum, because arbitration was appropriate.
The petition for writ of certiorari is DENIED.
DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur. . A petition for writ of common law certiorari has been held to be the appropriate method of review of an order denying a motion to compel arbitration. See Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So. 2d 286 (Fla.3d DCA 1980).
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Authorities Cited
- Klosters Rederi A/S v. Arison Shipping Co., 280 So. 2d 678 (Fla. 1973)
- VIC Potamkin Chevrolet, Inc. v. Bloom, 386 So. 2d 286 (Fla. 3d DCA 1980)
- King v. Thompson & McKINNON, 352 So. 2d 1235 (Fla. 4th DCA 1977)
- Ojus Indus., Inc. v. Mann, 221 So. 2d 780 (Fla. 3d DCA 1969)