Truly Nolen of America, Inc. v. King Cole Condominium Association, Inc.
143 So. 3d 1015
Fla. Dist. Ct. App.2014Background
- Truly Nolen contracted with King Cole Condominium Association to provide pest control under an agreement that included a mandatory arbitration clause.
- King Cole sued in Hillsborough County for breach of contract and FDUTPA; Truly Nolen moved to transfer venue (forum non conveniens) and to stay/compel arbitration.
- Hillsborough court transferred the case to Miami-Dade; that transfer was affirmed by the Second District (table).
- In Miami-Dade, King Cole opposed arbitration arguing the clause wasn't in the signed agreement, that Truly Nolen waived arbitration by seeking transfer, and FDUTPA remedies could be implicated.
- Miami-Dade trial court held Truly Nolen waived arbitration by inconsistent conduct and denied arbitration; the order is appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether waiver occurred | King Cole contends Truly Nolen acted inconsistently with arbitration rights by seeking transfer. | Truly Nolen argues simultaneous pre-answer motions do not waive arbitration. | No waiver; reversed and remanded |
Key Cases Cited
- Miller & Solomon Gen. Contractors, Inc. v. Brennan's Glass Co., 824 So.2d 288 (Fla. 4th DCA 2002) (arbitration-right waiver standards)
- Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla. 1999) (three elements for arbitration motions)
- 13 Parcels LLC v. Laquer, 104 So.3d 377 (Fla. 3d DCA 2012) (pre-answer motion with arbitration not waiver)
- Houchins v. King Motor Co. of Fort Lauderdale, Inc., 906 So.2d 325 (Fla. 4th DCA 2005) (no waiver when later seeking arbitration after pre-answer motion)
- Hirschfeld v. Crescent Heights, X, Inc., 707 So.2d 955 (Fla. 3d DCA 1998) (pre-answer motion followed by arbitration motion not waiver)
- Duckworth v. Plant, 697 So.2d 1257 (Fla. 5th DCA 1997) (simultaneous filing does not constitute waiver)
- R.W. Roberts Construction Co. v. Masters & Co., 403 So.2d 1114 (Fla. 5th DCA 1981) (distinguishable timing of filings)
- Duckworth v. Plant, 697 So.2d 1257 (Fla. 5th DCA 1997) (simultaneous pre-answer motion and arbitration not waiver)
- Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707 (Fla. 2005) (waiver analysis, totality of circumstances)
- Mora v. Abraham Chevrolet-Tampa, Inc., 913 So.2d 32 (Fla. 2d DCA 2005) (undisputed-facts review of arbitration ruling)
- 13 Parcels LLC v. Laquer, 104 So.3d 377 (Fla. 3d DCA 2012) (see above)