738 So. 2d 1002 | Fla. Dist. Ct. App. | 1999
Peggy J. Hawkins appeals from a nonfi-nal order granting a motion to compel arbitration. Because we hold that the ap-pellees waived their right to compel arbitration when they filed suit in circuit court to enforce their rights under the parties’ contract, we reverse the trial court’s order.
The appellees are attorneys who represented Hawkins in a marital dissolution proceeding. After the dissolution proceeding was resolved, the appellees sued Hawkins to recover additional fees they claimed were owed them under their retainer agreement (“the contract”). Hawkins answered the complaint and filed a counterclaim. The appellees answered the counterclaim asserting affirmative defenses and moved the trial court to compel binding arbitration in accordance with a provision in the contract that states: “Any fee disputes will be subject to binding arbitration, pursuant to the appropriate Florida or local Bar procedure.” The trial court granted the motion.
Hawkins argues on appeal that the ap-pellees waived the right to compel arbitration when they filed suit to enforce the contract. This general proposition is correct. See Prudential-Bache Sec., Inc. v. Pauler, 488 So.2d 894, 895 (Fla. 2d DCA 1986) (“a party is deemed to have waived arbitration if the right to arbitration is asserted after the party has actively participated in the lawsuit”); see also Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 390 (7th Cir.1995) (invoking judicial process is presumptive waiver of right to arbitration).
The appellees argue that although they waived the right to arbitrate when they initiated the lawsuit, their right to demand
Reversed and remanded.