LAPIDUS v. ARLEN BEACH CON. ASSOC

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Docket Number

No. 80-558.

Attorney(S)

Blackwell, Walker, Gray, Powers, Flick Hoehl and Todd A. Cowart, Miami, for appellant. Greenberg, Traurig, Hoffman, Lipoff, Quentel Wolff and Byron G. Petersen, Miami, for appellees.

Judges

FERGUSON, Judge.

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Smart Summary

Factual and Procedural Background

This opinion arises from an interlocutory appeal by third party defendant Morris Lapidus, who challenged a lower court order denying his motion to compel arbitration. The appeal was taken from the Circuit Court of Dade County, Florida, and concerns whether the right to arbitration was waived by Lapidus's prior actions in the litigation.

Legal Issues Presented

Whether the denial of a motion to compel arbitration can be reviewed by interlocutory appeal or should be treated as a petition for common law certiorari.
Whether a party waives the contractual right to arbitration by actively participating in litigation, specifically by filing a motion for summary judgment.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Fenster v. Makovsky, 67 So.2d 427 (Fla. 1953)	Strong public policy favoring arbitration.	Supported the decision to treat the interlocutory appeal as a petition for certiorari to protect the right to arbitration.
Arrieta v. Volkswagon Insurance Co., 343 So.2d 918 (Fla. 3d DCA 1977)	Public policy in favor of arbitration.	Reinforced the court’s approach to preserve arbitration rights.
Morton Z. Levine and Associates, Chartered v. Van Deree, 334 So.2d 287 (Fla. 2d DCA 1976)	Denial of arbitration may not be adequately remedied by appeal; arbitration avoids litigation.	Supported the rationale for certiorari review instead of interlocutory appeal.
Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975)	Arbitration as preferred dispute resolution mechanism.	Used to emphasize the importance of arbitration rights.
Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980)	Litigating disputes in court despite right to arbitration constitutes departure from essential requirements of law.	Justified the court’s jurisdiction and treatment of the appeal as certiorari.
Klosters Rederi A/S v. Arison Shipping Company, 280 So.2d 678 (Fla. 1973)	Contractual right to arbitration may be waived by active participation in litigation.	Supported finding waiver by Lapidus through litigation conduct.
Ojus Industries, Inc. v. Mann, 221 So.2d 780 (Fla. 3d DCA 1969)	Waiver of arbitration right by inconsistent actions.	Reinforced waiver principles applied to the case.
King v. Thompson McKinnon, Auchincloss Kohlmeyer, Inc., 352 So.2d 1235 (Fla. 4th DCA 1977)	Filing an answer without asserting arbitration right acts as waiver.	Illustrated waiver by procedural conduct.
Seville Condominium v. Clearwater Development Corp., 340 So.2d 1243 (Fla. 2d DCA 1976)	Initiating legal action without seeking arbitration constitutes waiver.	Supported the court’s waiver analysis.
Mike Bradford Co. v. Gulf States Steel Co., 184 So.2d 911 (Fla. 3d DCA 1966)	Counterclaiming without raising arbitration issue is waiver.	Further supported waiver doctrine.
Applicolor, Inc. v. Surface Combustion Corp., 77 Ill. App.2d 260, 222 N.E.2d 168 (1966)	Moving for summary judgment results in waiver of arbitration right.	Used by analogy to support waiver by summary judgment motion.
Board of Education v. Mancuso Brothers, 25 Misc.2d 122, 204 N.Y.S.2d 410 (N.Y. Sup. Ct. 1960)	Summary judgment motion effects waiver of arbitration.	Analogous precedent cited to support waiver finding.
De Sapio v. Kohlmeyer, 35 N.Y.2d 402, 362 N.Y.S.2d 843 (N.Y.Ct.App. 1974)	Accepting judicial forum by filing summary judgment motion precludes later arbitration claim.	Supported the court’s conclusion that Lapidus waived arbitration by litigating the merits.

Court's Reasoning and Analysis

The court first determined that the interlocutory appeal challenging the denial of arbitration should be treated as a petition for common law certiorari, citing strong public policy favoring arbitration and the inadequacy of appeal to remedy denial of arbitration rights. The court cited multiple precedents establishing that parties may waive arbitration rights by engaging in litigation inconsistent with arbitration.

Specifically, the court noted that Florida courts recognize waiver by actions such as filing an answer without asserting arbitration, initiating legal action without seeking arbitration, or counterclaiming without raising arbitration. Although Florida courts had not ruled directly on whether filing a motion for summary judgment constitutes waiver, the court relied on decisions from other jurisdictions holding that such motions demonstrate acceptance of the judicial forum and thus waive arbitration rights.

Applying these principles to the facts, the court found that Lapidus's filing of a motion for summary judgment constituted a clear manifestation of acceptance of the judicial forum, effectively waiving any right to arbitration. Consequently, the trial court did not depart from the essential requirements of law in denying the motion to compel arbitration.

Holding and Implications

Certiorari denied.

The court upheld the lower court's denial of the motion to compel arbitration on the basis that the appellant waived the right to arbitration by filing a motion for summary judgment. The decision directly affects the parties by allowing the litigation to proceed in court rather than arbitration. No new precedent was established beyond applying existing waiver principles to the specific procedural posture of this case.

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MORRIS LAPIDUS, APPELLANT, v. ARLEN BEACH CONDOMINIUM ASSOCIATION, INC., ARLEN REALTY DEVELOPMENT CORP., ET AL., APPELLEES.

FERGUSON, Judge.

By interlocutory appeal, third party defendant Morris Lapidus, challenges an order entered by the lower court denying his motion to compel arbitration. We elect to treat the interlocutory appeal as a petition for common law certiorari for the following reasons: (a) there is a strong public policy favoring arbitration, Fenster v. Makovsky, 67 So.2d 427 (Fla. 1953); Arrieta v. Volkswagon Insurance Co., 343 So.2d 918 (Fla. 3d DCA 1977); (b) denial of a right to arbitration may not be adequately remedied by appeal, see, e.g., Morton Z. Levine and Associates, Chartered v. Van Deree, 334 So.2d 287 (Fla. 2d DCA 1976) (purpose of arbitration is to avoid litigation); Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975); and (c) permitting parties to litigate the dispute in court instead of proceeding to arbitration, if there is a right of arbitration, constitutes a departure from the essential requirements of law. Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980). We have jurisdiction pursuant to Fla.R.App.P. 9.100.

Fla.R.App.P. 9.040(c).

Florida courts recognize that a party's contractual right to arbitration may be waived by actively participating in a lawsuit or taking action inconsistent with that right. Klosters Rederi A/S v. Arison Shipping Company, 280 So.2d 678 (Fla. 1973); Ojus Industries, Inc. v. Mann, 221 So.2d 780 (Fla. 3d DCA 1969). Filing an answer without asserting the right for arbitration acts as waiver, King v. Thompson McKinnon, Auchincloss Kohlmeyer, Inc., 352 So.2d 1235 (Fla. 4th DCA 1977); as does initiating legal action without seeking arbitration, Seville Condominium v. Clearwater Development Corp., 340 So.2d 1243 (Fla. 2d DCA 1976) and counterclaiming without raising the issue of arbitration, Mike Bradford Co. v. Gulf States Steel Co., 184 So.2d 911 (Fla. 3d DCA 1966).

Although Florida courts have not ruled directly on point, other jurisdictions have held that moving for summary judgment results in a waiver of any right to arbitration. See Applicolor, Inc. v. Surface Combustion Corp., 77 Ill. App.2d 260, 222 N.E.2d 168 (1966); Board of Education v. Mancuso Brothers, 25 Misc.2d 122, 204 N.Y.S.2d 410 (N.Y. Sup. Ct. 1960). See also 98 A.L.R.3d 767.

A party who contests the merits of a claim by filing a motion for summary judgment accepts the judicial forum. She may not consistently later claim that only the arbitral forum is satisfactory. See, e.g., De Sapio v. Kohlmeyer, 35 N.Y.2d 402, 362 N.Y.S.2d 843, 846 (N.Y.Ct.App. 1974). Where, as here, the issue of waiver is placed before the trial court, the court could reasonably find that by filing a motion for summary judgment, Lapidus manifested an acceptance of the judicial forum and waived any right he may have had with respect to arbitration. Accordingly, finding that the trial court did not depart from the essential requirements of law, we deny the petition for writ of certiorari.

Certiorari denied.