Florida’s Fifth District Court of Appeal recently affirmed a trial court’s non-final order denying a motion to compel arbitration. The Court held that the appellant had waived the right to arbitration by engaging in discovery of the merits of the underlying case.
In a negligence action against an assisted living facility, the appellants filed a motion to abate and compel arbitration based on the arbitration provision in the Plaintiff’s resident agreement with the facility. The parties stipulated to and the trial court ordered the parties to conduct limited discovery regarding arbitration.
During a subsequent deposition of the appellee’s daughter, appellant’s counsel asked several questions that were related to the merits of the underlying case. Accordingly, the trial court found that the deposition “covered matters extrinsic to the limited scope permitted by this Court’s Order… and consequently was inconsistent with the right to arbitrate.” Upon non-final appeal from the Circuit Court, the appellate court affirmed the trial court’s conclusion that appellants waived their right to arbitrate, explaining: “This Court has expressly held that engaging in merits discovery is inconsistent with an arbitration request and constitutes a waiver of the right to arbitration.”
Read the full opinion here: Shp IV Harbour Island, LLC., Love Mgmt. Co., LLC. D/B/A Allegro Mgmt. Co. and Elizabeth Herendeen v. Boylan (Fla. 5th DCA 2019)