Contractor’s simultaneous filing of counterclaim and motion to compel arbitration does not constitute waiver of contractual arbitration provision.

The plaintiff homeowner and the defendant contractor entered into a home restoration contract which contained an arbitration provision. After a dispute arose between the parties, the plaintiff filed suit against the contractor. In response, the defendant contractor filed a motion to compel arbitration, motion to dismiss, answer and affirmative defenses, and a counterclaim. The trial court granted the defendant’s motion to dismiss, and the plaintiff filed an amended complaint, to which the defendant reasserted his motion to compel arbitration. The plaintiff argued that the defendant waived his contractual right to arbitration by actively participating in the lawsuit when seeking affirmative relief through its counterclaim. On appeal, the court held that the simultaneous filing of a motion to compel and counterclaim alone, without any discovery requests, does not constitute a waiver of a party’s right to arbitration.

Therefore, should a defendant have a basis for a counterclaim, the counterclaim should be asserted at the same time when filing a motion to compel arbitration, so long as the defendant does not engage in discovery. The simultaneous filing of the counterclaim will prevent the defendant from having to seek leave of court pursuant to Fla. R. Civ. P. 1.170, and avoid additional legal expenses and a possible adverse ruling.

Case Law Alerts, 1st Quarter, January 2015