Third District Court of Appeal

State of Florida 

Opinion filed April 5, 2023.

Not final until disposition of timely filed motion for rehearing.

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No. 3D21-2229

Lower Tribunal No. 19-17725

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City of Miami,

Appellant,

vs.

Fraternal Order of Police, Miami Lodge No. 20,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Carlos 

Guzman, Judge.

Victoria Méndez, City Attorney and Kerri L. McNulty, Senior Appellate 

Counsel, and Stephanie K. Panoff, and Bryan E. Capdevila, Assistant City 

Attorneys, for appellant.

Buschel Gibbons, P.A., and Robert C. Buschel and Eugene G. 

Gibbons (Fort Lauderdale), for appellee.

Before SCALES, GORDO and BOKOR, JJ. 

BOKOR, J.
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In the action below, the City of Miami sought a declaration barring the 

Fraternal Order of Police, Miami Lodge No. 20 (FOP), from arbitrating a 

grievance based on Adrian Rodriguez’s termination as a City of Miami police 

officer. Both the City and the FOP sought summary judgment. The trial court 

granted summary judgment in favor of the FOP and against the City, 

determining that the FOP correctly sought arbitration of its grievance filed on 

behalf of Rodriguez.1 Because we find that Rodriguez waived his right to 

arbitrate and that, alternatively, Rodriguez is collaterally estopped from 

arbitrating this issue, we reverse.

FACTS AND PROCEDURAL HISTORY

Rodriguez, a City of Miami police officer, challenged a prior termination 

of employment at arbitration. The arbitration resulted in an order reinstating 

him “with no loss of service credit for the purposes of determination of 

benefits to which he [was] entitled.” The City sought relief from the arbitral 

award in circuit court. The trial court upheld the arbitration award, and this 

court affirmed such decision. City of Miami v. Fraternal Ord. of Police Lodge 

1 We have jurisdiction pursuant to Florida Rule of Appellate Procedure 

9.030(b)(1)(A). 
3

#20, 252 So. 3d 221 (Fla. 3d DCA 2018). Accordingly, the City reinstated 

Rodriguez. 

Soon after, the City relieved Rodriguez of duty without pay because 

his Florida Department of Law Enforcement retraining requirement, which 

required him to submit to drug testing, lapsed during his absence. Rodriguez 

didn’t submit to drug testing and instead sought relief in circuit court with an 

“emergency amended motion for order to show cause why the chief of police 

and city manager should not be held in contempt for failing to follow this 

court’s order,” arguing that the City failed to comply with the arbitration order 

reinstating him. The trial court denied Rodriguez’s motion finding that 

Rodriguez’s placement back on the City’s payroll, even though he was not 

returned to active-duty status, satisfied its obligations pursuant to the 

arbitration order. Notably, the trial court did not decide the issue of the 

propriety of the City’s requirement that Rodriguez submit to a drug test, 

finding that “[t]he purported misconduct upon which the City relies to justify 

termination of Rodriguez did not occur until after the original arbitration. 

Thus, the City’s actions would, at best, constitute an independent basis for 

grievance.” Rodriguez appealed the trial court’s decision to this court, raising 

extensive argument as to the propriety of the required drug test. This court 

issued an opinion which determined, in pertinent part: 
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Rodriguez interprets the Arbitration Order to mean 

that there was no break in service, and, as a result, 

his two-year absence from the force should be 

considered a continuous employment relieving him 

of any obligation to comply with FDLE rules 

regulating reinstatement and recertification. That is 

not what the order says. It says: “Mr. Rodriguez shall 

be reinstated forthwith to his position as a police 

officer with no loss of service credit for the purposes

of determination of benefits to which he is entitled.” 

Rodriguez’s City benefits are thus considered 

uninterrupted by his two year break in service, but the 

Arbitration Order says nothing about his FDLE 

certifications. The record indicates that Rodriquez’s 

FDLE certifications lapsed during his two-year break 

in service. The City was unable to reinstate 

Rodriguez to active duty without FDLE approval. 

When Rodriguez refused to fulfill the toxicology 

requirement, the City was within its rights to 

terminate him under the CBA.

Fraternal Ord. of Police Lodge #20 v. City of Miami, 276 So. 3d 881, 883–84 

(Fla. 3d DCA 2019) (boldface added).

Rodriguez filed a grievance for “improper termination” and “violation of 

drug policy,” which the City denied. Later, the City filed a complaint for 

declaratory relief seeking clarification on the interpretation of the collective 

bargaining agreement (CBA) regarding the arbitrability of Rodriguez’s 

grievance, in which the City argued that the filing of the grievance violated 

the election of remedies provision of the CBA since Rodriguez already raised 

the pertinent issue of the propriety of the drug test in prior litigation. 

Rodriguez moved for summary judgment and to compel arbitration and the 
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City filed its cross-motion for summary judgment. The trial court granted 

summary judgment in Rodriguez’s favor. This appeal followed. 

ANALYSIS

“We review a trial court order granting summary judgment de novo.” 

Fernandez v. Cruz, 341 So. 3d 410, 412 (Fla. 3d DCA 2022). On appeal, 

the City argues that Rodriguez waived his right to arbitrate because he 

previously litigated the issues (the propriety of the drug test and his 

subsequent termination) and further, that the doctrines of res judicata and 

collateral estoppel bar arbitration. In response, Rodriguez argues that he 

could not have elected a remedy by challenging the order for an illegal drug 

test because, at the time he filed his grievance, he had not yet been 

terminated. 

Preliminarily, section 6.4 of the CBA reads, in pertinent part, 

“[s]election of redress other than through the Grievance Procedure 

contained herein shall preclude the aggrieved party or parties from utilizing 

said Grievance Procedure for adjustment of said grievance.” This provision 

of the CBA mirrors section 447.401, Florida Statutes, which governs 

grievance procedures between public employers and bargaining agents and 

provides, “[a] career service employee shall have the option of utilizing . . . a 

grievance procedure established under this section, but such employee is 
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precluded from availing himself or herself of more than one of these 

procedures.” § 447.401, Fla. Stat. Therefore, if this court determines that 

Rodriguez previously elected to pursue a remedy outside of the contractual 

grievance procedure, both section 6.4 of the CBA as well as section 447.401, 

Florida Statues would bar arbitration of Rodriguez’s grievance. 

In considering whether Rodriguez waived his right to arbitrate by 

pursuing an inconsistent remedy, we first examine whether Rodriguez 

actively participated in litigation pertaining to the issue underlying the 

termination.2 See Sitarik v. JFK Med. Ctr. Ltd. P’ships, 11 So. 3d 973, 974 

(Fla. 4th DCA 2009) (“A party who actively participates in the litigation waives 

its right to compel arbitration. A party’s responses to the litigation constitute 

active participation when they are an attack on the merits.”) (citations 

omitted); see also Green Tree, 15 So. 3d at 687 (“[O]nce a party has waived 

the right to arbitration by active participation in a lawsuit, the party may not 

2 “Generally, whether a party has waived his 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, 15 So. 3d 

682, 686 (Fla. 2d DCA 2009) (citation omitted); see also City of Jacksonville

v. Cowen, 973 So. 2d 503, 507 (Fla. 1st DCA 2007) (same). Here, the record 

is devoid of factual findings from the trial court. Although the record includes 

the transcript of the hearing on the cross-motions for summary judgment, the 

transcript was limited to argument between the parties and contains no 

findings. Similarly, the final order on appeal contains no factual findings. 

Where the record does not contain any factual findings, the question of 

waiver should be ruled on as a matter of law. Cowen, 973 So. 2d at 507.
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reclaim the arbitration right without the consent of his or her adversary.”). 

Rodriguez sought relief from this court based on his arguments regarding 

the propriety of the required drug test. This constitutes active participation 

on the merits, as contemplated by Sitarik. Rodriguez filed his grievance for 

“improper termination” based on “violation of drug policy,” an issue that he 

not only previously brought before this court, but which resulted in an opinion 

squarely addressing the issue. Rodriguez’s argument that his previous 

appeal did not challenge any court order recognizing, reviewing, or upholding 

his new second termination misses the point. He elected to have a court 

review the very issue he now seeks to present to an arbitrator. This violates 

not only election of remedies, but also, because this court considered and 

ruled on the issue, violates principles of res judicata. As such, we find that 

Rodriguez has waived his right to arbitrate having actively participated in 

litigation which has already determined the issues contained in the current 

grievance. 

Alternatively, we find that Rodriguez is collaterally estopped from filing 

a grievance challenging his termination. Collateral estoppel applies when 

“the question common to both causes of action was actually adjudicated in 

the prior litigation.” Fernandez, 341 So. 3d at 415 (quotation omitted). “The 

doctrine of collateral estoppel bars relitigation by parties or their privies of 
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issues common both to the present action and to the action previously 

litigated.” United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So. 

3d 1101, 1104 (Fla. 3d DCA 2010) (quotation omitted). Here, it is clear that 

the issue of the propriety of the drug test was litigated in the previous action, 

and specifically addressed in a prior opinion of this court. 

Because we find that Rodriguez has waived his right to arbitrate, and 

alternatively, that the doctrine of collateral estoppel applies, both section 6.4 

of the CBA as well as section 447.401, Florida Statues bar arbitration of 

Rodriguez’s grievance.

Reversed.