Summary
In Amour and More North American Licensing, Inc. v. Zammatta, 659 So.2d 1387, 1388 (Fla. 3d DCA 1995), the court recognized that the defendant did not waive a right to arbitrate by suing on a note where the contract gave it the right to enforce the note apart from the relevant arbitration provisions.
Summary of this case from Federal Vending, Inc. v. Steak & Ale of Florida, Inc.Opinion
No. 95-784.
September 13, 1995.
Appeal from the Circuit Court Dade County, Ronald M. Friedman, J.
Arnstein Lehr and Wesley A. Lauer and Leslie W. Loftus, West Palm Beach, for appellants.
Zarco Associates and Robert M. Einhorn and Maria A. Nieto, Miami, for appellees.
Before HUBBART, JORGENSON and GERSTEN, JJ.
This is an interlocutory appeal by the defendants Amour and More North American Licensing, Inc., Amour and More, LTD., and James Antonsen from a non-final order denying their motion to compel arbitration in an action commenced against them below by the plaintiffs Randy Zammatta and R.G.Z. Enterprises, Inc. We have jurisdiction to entertain this appeal, Art. V, § 4(b), Fla. Const.; Fla.R.App.P. 9.130(a)(3)(C)(v), and reverse the order under review and remand the cause to the trial court with directions to stay the action below and order the parties to arbitrate the matter in accord with the arbitration clause in the contract between the parties.
Contrary to the trial court's determination, we conclude that the defendants did not waive their contractual right to arbitration by bringing a prior suit against the plaintiffs in Illinois seeking to enforce a promissory note. This is so because the subject contract expressly gives the defendants the right to judicially enforce the promissory note apart from the relevant arbitration provisions; consequently, the filing of the promissory note action in Illinois could not possibly have waived the defendants' contractual right to arbitration in the instant action. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983); Modern Health Care Servs., Inc. v. Puglisi, 597 So.2d 930 (Fla. 3d DCA 1992); compare Katzin v. Mansdorf, 624 So.2d 810 (Fla. 3d DCA 1993).
Reversed and remanded.