Bonati v. Clark

Decision Date23 March 2007
Docket NumberNo. 2D06-4089.,2D06-4089.
CourtFlorida District Court of Appeals
PartiesAlfred O. BONATI, M.D., Medical Development Corporation of Pasco County, Gulf Coast Orthopedic Center-Alfred O. Bonati, M.D., P.A., GCOC Physical Therapy, Inc., and American Medical Care, Inc., d/b/a The Bonati Institute, Appellants, v. William and Gloria CLARK, Appellees.

Gary A. Shipman and William E. Whitney of Dunlap, Toole, Shipman & Whitney, P.A., Tallahassee, for Appellants.

C. Steven Yerrid, Ralph L. Gonzalez and Tammy J. Judge of The Yerrid Law Firm, Tampa, for Appellees.

WHATLEY, Judge.

Alfred O. Bonati, M.D., Medical Development Corporation of Pasco County, Gulf Coast Orthopedic Center-Alfred O. Bonati, M.D., P.A., GCOC Physical Therapy Inc., and America Medical Care, Inc., d/b/a The Bonati Institute ("the Appellants") challenge the nonfinal order denying their motion to compel arbitration. We reverse.

William and Gloria Clark filed an action against the Appellants alleging, inter alia, medical negligence in the treatment of William. The Appellants responded by filing a motion to dismiss. The Clarks amended their complaint two times, and the Appellants filed motions to dismiss in response to both amended complaints. After a hearing on the motion to dismiss, the trial court dismissed one count of the complaint and otherwise denied the motion. The Appellants then filed their answer and affirmative defenses requesting a jury trial on all issues triable by a jury and asserting as their first affirmative defense the doctor-patient arbitration agreement signed by William Clark at the time he sought medical treatment. A little over a month later, the Clarks filed a motion to set trial. Later that same day, the Appellants faxed the Clarks a motion to compel arbitration, which motion they filed about a week later.

At the conclusion of the hearing on the motion to compel arbitration, the trial court found that the arbitration agreement covered all of the Clarks' claims against the Appellants. The court acknowledged that the filing of a motion to dismiss does not constitute a waiver of the right to arbitrate,1 but stated that the filing of an answer and request for jury trial does. The court subsequently entered an order denying the motion to compel on the ground that the Appellants waived their right to arbitrate. This was error.

Although the Appellants asserted in their answer that they sought a jury trial on all issues triable by a jury, they also asserted as their first affirmative defense the existence of the arbitration agreement. These assertions are not mutually exclusive. One of the issues a trial court must decide in ruling on a motion to compel arbitration is whether an arbitrable issue exists. See Bland v. Health Care and Retirement Corp. of Am., 927 So.2d 252 (Fla. 2d DCA 2006). Thus, if the trial court had found that one or more issues were not subject to arbitration, the Appellants would have preserved their right to a jury trial on those issues. Because the Appellants asserted the arbitration agreement as their...

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1 cases
  • Lynch v. Solid Waste Haulers Florida, LLC
    • United States
    • Florida District Court of Appeals
    • August 6, 2009
    ...neither Solid Waste Haulers' nor Payroll Management's actions constituted a waiver of the right to arbitration. See Bonati v. Clark, 975 So.2d 440 (Fla. 2nd DCA 2007) (where a defendant files an answer and raises an arbitration agreement as an affirmative defense, defendant does not waive h......

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