In Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980), the court held that where the right to arbitrate is not in dispute, permitting the parties to litigate the dispute in the courts instead of proceeding by arbitration as agreed would constitute a departure from the essential requirements of law. In Lapidus v. Arlen Beach Condominium Association, Inc., 394 So.2d 1102 (Fla. 3d DCA 1981), the same district court concluded that the denial of a right of arbitration, where it existed, could not be adequately remedied by appeal since the purpose of arbitration was to avoid litigation.See also: Balboa Insurance Company v. W.G. Mills, Inc., 403 So.2d 1149 (Fla. 2d DCA 1981); Marthame Sanders Company v. 400 West Madison Corporation, 401 So.2d 1145 (Fla. 4th DCA 1981); Miller Construction Company, Inc. v. The First Baptist Church of Live Oak, Inc., 396 So.2d 281 (Fla. 1st DCA 1981).
The parties agree that there is an arbitration clause and that the issue raised in Green Acres's complaint is arbitrable. Green Acres waived its right to seek arbitration, at a minimum, when it filed suit. See Lapidus v. Arlen Beach Condo. Ass'n, Inc., 394 So.2d 1102, 1103 (Fla. 3d DCA 1981). Bland denies that he had waived the clause, though. Determining whether a party has waived an arbitration clause involves the same fact sensitive analysis as finding waiver of any other contractual provision.
This court has consistently acknowledged the important public policy in favor of arbitration. See, e.g., Zager Plumbing, Inc. v. JPI Nat'l Constr., Inc., 785 So.2d 660, 662 (Fla. 3d DCA 2001); Royal Caribbean Cruises, Ltd. v. Universal Employment Agency, 664 So.2d 1107, 1108 (Fla. 3d DCA 1995); State Farm Fire Cos. Co. v. Middleton, 648 So.2d 1200, 1201-02 (Fla. 3d DCA 1995); Lapidus v. Arlen Beach Condo. Ass'n, 394 So.2d 1102, 1103 (Fla. 3d DCA 1981). Thus, we start our analysis by noting that "[a]ll questions concerning scope or waiver of the right to arbitrate under contracts should be resolved in favor of arbitration rather than against it."
The Plaintiff, therefore, relied upon several cases which examined whether the actions of a party constituted a waiver of an arbitration clause in arguing that Carnival's actions resulted in a waiver of the forum selection clause in the instant case. While we recognize that "[t]he right to arbitration, like any contract right, can be waived," Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005) (quoting Nat'l Found, for Cancer Research v. A.G. Edwards Sons, Inc., 821 F.2d 772, 774 (D.C. Cir.1987)), and that "Florida courts recognize that a party's contractual right to arbitration may be waived by actively participating in a law-suit or taking action inconsistent with that right," Lapidus v. Arlen Beach Condo. Assoc., Inc., 394 So.2d 1102, 1103 (Fla. 3d DCA 1981), we specifically note that forum selection clauses and arbitration clauses serve different purposes. See Thunder Marine, 2006 WL 1877093 at *8.
Both parties waived their contractual right to arbitrate when they chose to resolve the disputes at the outset through litigation and then waited three years from the date the foreclosure action and the counterclaim were filed to even raise the issue of arbitration. See Rosen v. Shearson Lehman Bros., Inc., 534 So.2d 1185 (Fla. 3d DCA 1988) (right to arbitrate is waived when party to agreement providing right to arbitration elects to litigate), rev. denied, 544 So.2d 200 (Fla. 1989); Coral 97 Assoc., Ltd. v. Chino Elec., Inc., 501 So.2d 69 (Fla. 3d DCA 1987); Lapidus v. ArlenBeach Condominium Ass'n, 394 So.2d 1102 (Fla. 3d DCA 1981) (same). Firepak waived its right to arbitrate the lien dispute when it filed the foreclosure action; Hardin waived its right to arbitrate that action when it answered Firepak's complaint without seeking to compel arbitration.
Coral appealed pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v). Although courts favor arbitration, U.S. Fire Ins. Co. v. Franko, 443 So.2d 170 (Fla. 1st DCA 1983), parties may waive the contractual right to arbitration either by taking an active part in the litigation or by undertaking an action inconsistent with that right, Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678 (Fla. 1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 869, 38 L.Ed.2d 755 (1974); Lapidus v. Arlen Beach Condo. Ass'n, Inc., 394 So.2d 1102 (Fla.3d DCA 1981); Ojus Indus., Inc. v. Mann, 221 So.2d 780 (Fla.3d DCA 1969); Mike Bradford Co. v. Gulf States Steel Co., 184 So.2d 911 (Fla. 3d DCA 1966). By filing a counterclaim simultaneously with a motion to dismiss and by implementing discovery, Coral fulfilled either of the criteria for finding waiver of its arbitration right. Citing Genstar Southern Development Corp. v. Troup Bros., Inc., 396 So.2d 211 (Fla. 3d DCA 1981), Coral contends that its filing of a compulsory counterclaim did not constitute a waiver because it did not submit the merits of the action to a court for resolution and it was required to file the compulsory counterclaim under Florida Rule of Civil Procedure 1.170(a).
The dismissal of Public Health Trust's complaint is a final appealable order, Gries Investment Company v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980), and, having jurisdiction, we may undertake appellate review of other aspects of the dismissal order. Murphy White Dairy, Inc. v. Simmons, 405 So.2d 298 (Fla. 4th DCA 1981). Compare Harris v. State Farm Mutual Automobile Insurance Co., 283 So.2d 147 (Fla. 2d DCA 1973) (order granting motion to compel arbitration, without dismissal of complaint, did not finally terminate litigation and was not appealable, although reviewable by certiorari); North Broward Hospital District of Broward County v. William Passalacqua Builders, Inc., 312 So.2d 206 (Fla. 4th DCA 1975) (order staying, but not dismissing, court action and compelling arbitration not appealable). Compare further Lapidus v. Arlen Beach Condominium Association, Inc., 394 So.2d 1102 (Fla. 3d DCA 1981); Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980) (orders denying motion to compel arbitration, definitively non-final, reviewable by certiorari). Neither the validity of the contract between the parties nor its provision for arbitration is challenged.
, Inc., 49 So.3d 835, 837 (Fla. 4th DCA 2010); Bland v. Green Acres Group, L.L.C., 12 So.3d 822, 824 (Fla. 4th DCA 2009); Mora v. Abraham Chevrolet-Tampa, Inc., 913 So.2d 32, 34 (Fla. 2d DCA 2005); Marine Env't Partners, Inc. v. Johnson, 863 So.2d 423, 427 (Fla. 4th DCA 2003) (“Where a party defends on the merits by answering the complaint without demanding arbitration, a waiver is deemed to have occurred.”); Miller & Solomon Gen. Contractors, Inc. v. Brennan's Glass Co., Inc., 824 So.2d 288, 290 (Fla. 4th DCA 2002); Breckenridge v. Farber, 640 So.2d 208 (Fla. 4th DCA 1994); Bared & Co., Inc. v. Specialty Maint. & Const., Inc., 610 So.2d 1, 3 (Fla. 2d DCA 1992); Onkar S. Narula, M.D., P.A. v. Cardiac Diagnostic Serv., Ltd., 474 So.2d 1278, 1279 (Fla. 3d DCA 1985); Riverfront Props., Ltd. v. Max Factor III, 460 So.2d 948 (Fla. 2d DCA 1984); Transamerica Ins. Co. v. Weed, 420 So.2d 370, 372 (Fla. 1st DCA 1982); Hansen v. Dean Witter Reynolds, Inc., 408 So.2d 658, 659 (Fla. 3d DCA 1981); Lapidus v. Arlen Beach Condo. Ass'n, 394 So.2d 1102, 1103 (Fla. 3d DCA 1981); King v. Thompson & McKinnon, Auchincloss, Kohlmeyer, Inc., 352 So.2d 1235, 1235 (Fla. 4th DCA 1977).
The same logic has been applied to a party filing an answer to a pleading seeking affirmative relief without raising the right to arbitration, Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So. 2d 1, 3 (Fla. 2d DCA 1992), or "moving for summary judgment." Lapidus v. Arlen Beach Condo. Ass'n, 394 So. 2d 1102, 1103 (Fla. 3d DCA 1981). At least one Florida court has explicitly required something more than removal— such as participation in discovery on the merits of the claims—to find waiver of a claimed right to arbitrate.
And the same goes for filing an answer to a pleading seeking affirmative relief without raising the right to arbitration, Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So. 2d 1, 3 (Fla. 2d DCA 1992), or "moving for summary judgment." Lapidus v. Arlen Beach Condo. Ass'n, 394 So. 2d 1102, 1103 (Fla. 3d DCA 1981). For obvious reasons, Florida state courts do not opine on whether removal by itself constitutes active participation in a suit sufficient to waive arbitration, but at least one Florida court implicitly noted that a case that was removed and then remanded required something more—such as participation in discovery on the merits—to constitute waiver of a claimed right to arbitrate.