Truly Nolen of Am., Inc. v. King Cole Condo. Ass'n, Inc.

• Decision Date: 23 July 2014
• Docket Number: No. 3D14–477.,3D14–477.
• Citation: 143 So.3d 1015
• Parties: TRULY NOLEN OF AMERICA, INC., Appellant, v. KING COLE CONDOMINIUM ASSOCIATION, INC., Appellee.
• Court: Florida District Court of Appeals

143 So.3d 1015

TRULY NOLEN OF AMERICA, INC., Appellant,

v.KING COLE CONDOMINIUM ASSOCIATION, INC., Appellee.

No. 3D14–477.

District Court of Appeal of Florida,

Third District.

July 23, 2014.

Marlow, Adler, Abrams, Newman & Lewis, and Rosemary Wilder, Coral Gables, for appellant.

Cardillo Law Firm, and Peter M. Cardillo, Tampa, for appellee.

Before ROTHENBERG, LAGOA, and EMAS, JJ.

ROTHENBERG, J.

Truly Nolen of America, Inc. (“Truly Nolen”) appeals a trial court order finding that it waived its right to compel arbitration by filing a motion to transfer venue based on forum non conveniens while simultaneously filing a motion to compel arbitration. Because the actions taken by Truly Nolen were not inconsistent with its right to enforce the mandatory arbitration clause in the parties' contract, we reverse and remand for further proceedings.

Truly Nolen entered into a contract with King Cole Condominium Association, Inc. (“King Cole”) to provide pest control services for King Cole. King Cole became dissatisfied with Truly Nolen's performance of services and filed a lawsuit against Truly Nolen in Hillsborough County alleging breach of contract and violations of Florida's Deceptive and Unfair Trade Practices Act (“FDUTPA”). As its first action in the litigation, Truly Nolen filed a Motion to Dismiss and/or Stay Second Amended Complaint, which argued that: (1) the case should be transferred to Miami–Dade County under the doctrine of forum non conveniens and Florida Rule of Civil Procedure 1.060(b); and/or (2) the case should be stayed and sent to arbitration based on a mandatory arbitration clause in the parties' contract.

The Hillsborough trial court held a hearing on Truly Nolen's motion, at which Truly Nolen appeared and affirmatively argued both portions of its motion. The Hillsborough trial court entered an order transferring the case to Miami–Dade County, and the Second District Court of Appeal affirmed that ruling without opinion. King Cole Condo. Ass'n v. Truly Nolen of Am., Inc., 43 So.3d 51 (Fla. 2d DCA 2010) (table).

After the case was transferred to the Miami–Dade Circuit Court, Truly Nolen again moved to compel arbitration based on a clause in the parties' contract. King Cole opposed the motion to compel arbitration by filing a memorandum in opposition to the motion, arguing that: (1) the arbitration clause relied on by Truly Nolen was not included in the agreement King Cole signed and was therefore invalid; (2) Truly Nolen waived its right to compel arbitration by affirmatively and successfully arguing for a transfer of venue in the Hillsborough trial court; and (3) enforcing the arbitration clause would deprive King Cole of certain statutory remedies under FDUTPA based on the Florida Supreme Court's decision in Shotts v. OP Winter Haven, Inc., 86 So.3d 456 (Fla.2012).

The Miami–Dade trial court conducted a hearing on the motion to compel arbitration and found that Truly Nolen had waived its right to compel arbitration by taking a position inconsistent with that right in the Hillsborough trial court. The Miami–Dade trial court accordingly denied Truly Nolen's motion to compel arbitration based on its waiver of that right, but specifically and expressly did not reach the other two issues raised in King Cole's memorandum in opposition to the motion. This non-final appeal followed.

“ ‘A court must compel arbitration where an arbitration agreement and an arbitrable issue exists, and the right to arbitrate has not been waived.’ ” Miller & Solomon Gen. Contractors, Inc. v. Brennan's Glass Co., 824 So.2d 288, 290 (Fla. 4th DCA 2002) (quoting Gale Grp. v. Westinghouse Elec. Corp., 683 So.2d 661, 663 (Fla. 5th DCA 1996)); see also Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (“[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.”). The only issue before us on appeal is whether Truly Nolen waived its right to compel arbitration—a determination we make de novo because the underlying facts are undisputed. Mora v. Abraham Chevrolet–Tampa, Inc., 913 So.2d 32, 33–34 (Fla. 2d DCA 2005) (holding that a trial court's ruling on a motion to compel arbitration when the facts are undisputed is reviewed de novo); see also 13 Parcels LLC v. Laquer, 104 So.3d 377, 379 (Fla. 3d DCA 2012).

The waiver of a contractual right requires the “voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). In the context of a party's right to compel arbitration, “[t]he essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.” Id. (quoting Nat'l Found. for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C.Cir.1987)).

Florida courts have routinely held that a party's active participation in a lawsuit (including filing a lawsuit, filing an answer that does not assert the right to arbitrate, moving for summary judgment, or conducting discovery) is inconsistent with the right to compel arbitration. See Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 687–88 (Fla. 2d DCA 2009), and cases cited therein. However, Florida courts have also routinely held that the filing of pre-answer motions,...