Appellant Ibis Lakes (“Lakes”), a homeowner’s association, appeals the non-final order of the trial court granting Appellee Ibis Isle’s (“Isle”) motion to compel arbitration. We affirm, holding that an arbi-trable issue existed and that the circuit court did not err in finding that Isle had not waived arbitration.
Lakes and Isle are adjoining homeowner’s associations (“HOAs”) located within the residential community Ibis Golf & Country Club (“Ibis Golf’). Ibis Golf was constructed in two distinct residential phases. Although originally designed as one residential subdivision, each phase’s members chose to become a separate homeowners association for its respective parcel, resulting in Lakes becoming the HOA for Phase I and Isle becoming the HOA for Phase II.
Both sub-communities share a common entranceway and Isle residents must use a common roadway located on Lakes’ property to reach their residences. Since Isle derives a benefit from the use of the entryway and common roadway, Lakes and Isle agreed on June 3, 1997, to enter into a Shared Common Expense Agreement (“Agreement”) to “memorialize their desire to share the use of, access through and upon Lake Boulevard, to share the use and benefits of the Shared Common Areas and to allocate the costs for maintenance and repair of both the commonly shared portion” of the roadway and common areas.
Agreement Requirements
Under the Agreement, Lakes was to be responsible for “maintenance of and repair of the Shared Common Areas.” In performing this duty, Lakes was to follow certain budgetary procedures, such as creating an annual budget with “specific line item allocations for expenses to be shared ... by Lakes and Isles for the Shared Common Areas.” Additionally, pursuant to a later amendment to the Agreement, both HOAs assigned specific percentages of expenses to be shared:
a) 73% of Reserve for Lakes Boulevard Road Repaving;
b) 100% of Entry Landscape Maintenance
c) 93% of Street and Accent Electrical Lighting
d) 6% of Irrigation Electric;
e) 100% of Annual Flowers;
f) 100% of Entry Wall Painting;
g) 73% of General Liability Insurance; and
h) 5% of Annual Management Fee
Furthermore, within ninety days of the end of each calendar year, Lakes was to provide Isle “with a reconciliation of the actual costs of the Shared Expenses and the amount paid by” Isle.
Arbitration Clauses within the Agreement
Within the Agreement, three paragraphs define the circumstances under which either party could refer disputes arising under the Agreement to arbitration. Paragraph 9, which is inapplicable to this case, allowed arbitration “[i]n the event that Ibis Isle HOA fails in its per-
Paragraph 10 concerned situations where Lakes defaulted in its maintenance obligations:
In the event that Ibis Lakes HOA fails in its performance of this Agreement regarding its maintenance obligations as set forth in paragraph 5 above, Ibis Isle may declare a default (“Maintenance Default”) by providing notice of same to Ibis Lakes HOA (“Notice of Maintenance Default”). Upon receipt of a Notice of Maintenance Default, Ibis Lakes HOA shall have the option to cure the default within thirty (30) calendar days or provide Ibis Isle HOA with a notice of dispute of default (“Dispute Notice”). In the event that Ibis Lakes HOA issues a Dispute Notice to Ibis Isle, in that event, the matter of the alleged Maintenance Default shall be submitted by the Parties to binding arbitration in accordance with the rules and regulations of the American Arbitration Association.
Paragraph 20 of the Agreement generally provided for binding arbitration for all disputes arising from the Agreement:
The parties hereby agree that concerning any dispute from this Agreement or the obligations of the parties to this Agreement, including but not limited to, the failure of the parties to agree pursuant to Section 7.5 hereof, shall be resolved by binding arbitration in accordance with the rules and regulations of the American Arbitration Association.
(Emphasis added).
Nature of the Dispute
On October 18, 2011, Isle filed a demand for arbitration with the American Arbitration Association to obtain a refund of $7,122.68 for overcharges made by Lakes between 2002 and 2008. Specifically, Isle alleged that Lakes breached the Agreement by improperly charging Isle for insurance coverage outside of the Shared Expenses agreement, and therefore in addition to General Liability Insurance as defined by the Agreement.
On October 27, 2011, Lakes filed a complaint to enjoin arbitration, alleging that the “[c]harge[s] for insurance coverage and/or concealing such charges!] are not issues that Lakes and Isle agreed to submit to arbitration.” Lakes argued that, under paragraph 10 of the Agreement, “only Lakes’ failure to maintain and/or repair entranceway landscaping and/or the common roadway could be submitted to arbitration.”
In response, Isle filed a Motion to Abate and Compel Arbitration, for which the trial court conducted a hearing on December 6, 2011; the court did not rule at that time, but eventually specially set a hearing for March 2012.
On December 8, 2011, Isle served a Request to Produce seeking all of the quarterly shared expense statements or invoices prepared by Lakes with regard to the General Liability Insurance policies. Lakes objected to this request. The trial court sustained Lakes’ ' objection and stayed the request to produce “pending the ruling on the motion to abate and compel arbitration.”
On March 26, 2012, the trial court granted Isle’s motion to abate and compel arbitration, finding that “a valid agreement to arbitrate, an arbitrable issue and no waiver.”
I
In its first issue on appeal, Lakes argues that the trial court erred in determining that an arbitrable issue exists between the parties. Lakes contends that the drafters of the Agreement “specifically drafted
Standard of Review
“An order granting or denying a motion to compel arbitration is reviewed de novo.” Best v. Ed. Affiliates, Inc.,
The Agreement’s Paragraph 20 is Enforceable
Chapter 682, Florida Statutes (2011), governs arbitration in commercial contract cases. Section 682.02 permits parties to “include in a written contract a provision for the settlement by arbitration of any controversy ... arising between them relating to such contract.” § 682.02, Fla. Stat. (2011). Such arbitration provisions “shall be valid, enforceable, and irrevocable without regard to the justiciable character of the controversy.” Id.
‘Where there is a dispute between the parties to a contract concerning the propriety of arbitration, the proper remedy is for a party to apply to the court for an order compelling or staying arbitration pursuant to section 682.03, Florida Statutes (1999).” Hospitality Ventures of Coral Springs, L.C. v. Am. Arbitration Ass’n,
[i]f the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.
§ 682.03(1), Fla. Stat. (2011). As such, it is for the court, not the arbitrator, to determine “whether a valid written agreement to arbitrate exists.” Shotts v. OP Winter Haven, Inc.,
To this, Florida courts have recognized that “there 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.” Seifert,
Whether an Arbitrable Issue Exists
Florida courts have recognized “arbitration [a]s a favored means of dispute resolution,” and, as so, this Court “should resolve all doubts about the scope of an arbitration agreement as well as any questions about waivers thereof in favor of arbitration, rather than against it.” EMSA Ltd. P’ship v. Mason,
“[B]ecause arbitration provisions are contractual in nature, construction of such provisions and the contracts in which they appear remains a matter of contract interpretation.” Seifert,
In the case at hand, paragraph 20 of the Agreement is facially enforceable and nearly identical to arbitration clauses previously approved by this Court. See, e.g., Ronbeck Constr. Co. v. Savanna Club Corp.,
To blunt the application of paragraph 20, Lakes invokes the doctrine of ejusdem generis to argue that the “more specific” arbitration clauses delineated in Paragraphs 9 and 10 of the Agreement should limit arbitration to situations where Isle failed to pay its shared expenses or where Lakes committed a maintenance default. According to this argument, giving effect to the general language of paragraph 20 would encapsulate all disputes related to the Agreement and thus “would mean that the more specific paragraphs 9 and 10 are ineffective and have no relevance.” This argument misconstrues the doctrine of ejusdem generis.
“Ejusdem generis,” which literally means “of the same kind,” Eicoff v. Denson,
Lakes is correct in asserting that the principle of ejusdem generis applies to this case; however, its application does not preclude application of paragraph 20 to situations as the one presented. Rather, the ejusdem generis doctrine is employed within contract law to resolve differences inherent in conflicting contract provisions, thereby clarifying a party’s obligations, not to obliterate general provisions that do not directly conflict with specific provisions.
This principle is exhibited in Raines, where paragraph 6 of a contract provided that condominium unit owners could be liable for a l/32nd share for specific types of maintenance expenses. 317 So.2d at
Similarly, in Kel Homes, LLC v. Burris,
In sum, the principle of ejusdem generis applies to enforce specifically defined contract provisions that conflict with general provisions that would otherwise control the situation. However, per Raines and Kel Homes, Florida courts must give effect to valid, applicable general provisions that do not conflict with specific arbitration provisions.
In the case at hand, paragraph 10 provides arbitration procedures for the specific situation where Lakes “fails in its performance ... regarding its maintenance obligations.” In such situations, Isle may declare a default and Lakes is given thirty days to cure. The Agreement established this procedure to allow the parties to resolve maintenance obligation default issues before resorting to litigation.
On the other hand, paragraph 20 generally provides that the parties may compel binding arbitration for any dispute arising from the Agreement or the obligations of the parties to the Agreement. Therefore, if the nature of a dispute involves a maintenance default, the ejusdem generis doctrine would apply to require that Isle follow the arbitration procedures defined in paragraph 10. However, the dispute at hand involves Lakes’ “Shared Expense” obligations, not a maintenance default, and thus this issue squarely falls within the umbrella of Paragraph 20, and outside of specific procedures of paragraph 10.
As the Second District stated in Kel Homes, “parties may enter into any contract they desire, and they are bound by the language of that contract.”
II
In its second issue on appeal, Lakes argues that Isle waived its right to arbitration by filing a request to produce regarding the merits of the case after filing a motion to compel arbitration. This argument is without merit.
Standard of Review
“[WJhether a party has waived the right to arbitrate is a question of fact, reviewed on appeal for competent, substantial evidence to support the lower court’s findings.” Green Tree Servicing, LLC v. McLeod,
Whether the Question of Waiver Should Have Been Reserved for the Arbitrators
Before addressing the pertinent issue of waiver, it is first necessary to discuss whether the trial court or the arbitrators should decide the issue of waiver. Under Seifert, one of the three elements for courts to consider in ruling on a motion to compel arbitration is “whether the right to arbitration was waived.”
Nevertheless, Isle argues that the question of waiver should have been decided by the arbitrators since Isle had voiced this desire at the hearing below. Isle bases this argument on Federated Dept. Stores, Inc. v. Pavarini Constr. Co., Inc.,
Isle’s Actions Did Not Constitute Waiver
The general definition of “waiver” as “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right” is also applicable to the right of arbitration. Raymond James Fin. Servs., Inc. v. Saldukas,
“A party claiming waiver of arbitration must demonstrate: 1) knowledge of an existing right to arbitrate and 2) active participation in litigation or other acts inconsistent with the right.” Inverrary Gardens Condo. I Ass’n, v. Spender,
Filing a motion to compel arbitration before requesting discovery is not necessarily dispositive; rather, “[a] party who timely asserts the right to arbitration may still waive th[at] right by later conduct that is inconsistent with the arbitration request.” Glenn B. Wright Constr. & Dev., Inc. v. Cohara,
A traditional illustration of waiver of arbitration through the propounding of discovery occurred in Lion Gables Realty Ltd. v. Randall Mechanical, Inc.,
Like Lion Gables, cases finding waiver of arbitration have entailed a party’s participation in discovery that is more extensive than what occurred in this case. See, e.g., id. (“[Although Trustmark attempts to minimize its discovery partie-ipation-as only amounting to two requests for copies — a closer examination of the record reveals that these two requests were directed at a number of comprehensive production requests.”); McLeod, 15
In this ease, the trial court did not abuse its discretion in finding that Isle did not waive its arbitration right. The request for production was nipped in the bud by the circuit court’s stay, so Isle’s “waiver” conduct was hardly extensive. Furthermore, Isle’s first response after recognizing the dispute was to file for arbitration and later to move to compel arbitration. Thus, arbitration was “pending” when the limited discovery request was made.
Affirmed.
Notes
. In deciding Pavarini, we relied upon the Third District’s decision in Public Health, Trust of Dade Cnty. v. M.R. Harrison Constr.,