5D07-3915 Olsen v. The Winter Park

State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-3915

Case Date: 07/14/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2008 OLSON ELECTRIC CO., INC., Appellant, v. THE WINTER PARK REDEVELOPMENT AGENCY, ET AL., Appellees. ____________________________________/ Opinion filed July 18, 2008 Non-Final Appeal from the Circuit Court for Orange County, George Sprinkel, Judge. Michael C. Sasso, Brian D. Solomon and Barbara B. Smithers of Michael C. Sasso, P.A., Winter Park, for Appellant. Jamie Billotte Moses of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellees. PALMER, C.J., Olson Electric Company (Olson) appeals the non-final order entered by the trial court directing the parties to proceed to arbitration. Concluding that the right to arbitration was waived by the appellees, we reverse.1 Case No. 5D07-3915

Appellate jurisdiction is proper pursuant to rule 9.130(3)(C)(iv) of the Florida Rules of Appellate Procedure which authorizes appeals to the district courts of non-final orders that determine the entitlement of a party to seek arbitration.

1

Olson filed suit against the Winter Park Redevelopment Agency and Sydgan Corporation (collectively "WPRA") setting forth claims for foreclosure of a construction lien and breach of contract. WPRA filed an answer generally denying liability and alleging several affirmative defenses, including the defense that Olson's claims were subject to arbitration. However, instead of utilizing the provisions of Florida's Arbitration Code to immediately move to compel arbitration, which would have resulted in the stay of the underlying proceedings pending resolution of the arbitration issue,2 WPRA proceeded to propound discovery pleadings directed to the merits of the underlying complaint. After propounding such discovery, WPRA filed a motion to compel arbitration. The trial court granted the motion and ordered the parties to proceed to arbitration. This appeal timely followed. Olson argues that the trial court reversibly erred in ordering the parties to proceed to arbitration because the undisputed facts demonstrate that WPRA waived its right to seek arbitration by initiating discovery on the merits of the lawsuit before filing a motion to compel arbitration. We agree. In Mora v. Abraham Chevrolet-Tampa, Inc., 913 So. 2d 32, 33-34 (Fla. 2d DCA 2005), the court explained that the applicable standard of review regarding an order compelling arbitration based on undisputed facts is de novo. Accord Avid Eng'g, Inc. v. Orlando Mkt., Ltd., 809 So. 2d 1, 3 (Fla. 5th DCA 2001).

2

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