DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WILLIAN STANKOS and JOANNE STANKOS, Individually and as 

Parents and Natural Guardians of SAM JADEN STANKOS, a Minor 

Child,

Appellants,

v.

AMATEUR ATHLETIC UNION OF THE UNITED STATES, INC.,

Appellee.

No. 4D17-3361

[ September 12, 2018 ]

Appeal of non-final order from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; Sandra Perlman, Judge; L.T. Case No. 

062016CA006103AXXXXCE.

David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Jupiter, 

and Jack Scarola and David P. Vitale, Jr. of Searcy Denney Scarola 

Barnhart & Shipley, P.A., West Palm Beach, for appellants.

Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, and Rafferty 

E. Taylor and Martin D. Stern of Hinshaw & Culbertson, Fort Lauderdale, 

for appellee.

PER CURIAM.

William and Joanne Stankos (the “Stankoses”) timely appeal a non-final 

order compelling arbitration in the underlying personal injury action. It is 

undisputed that the defendant below, the Amateur Athletic Union of the 

United States, Inc. (“AAU”), waived arbitration by answering the Stankoses’ 

initial complaint. However, after the Stankoses filed an amended 

complaint, AAU filed a motion to compel arbitration, arguing that its right 

to seek arbitration was revived by the amended complaint. The trial court 

granted AAU’s motion and entered the order compelling arbitration. 

Having determined that the Stankoses’ amended complaint did not revive 

AAU’s right to compel arbitration, we reverse.
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Background

The underlying action arises from a head injury, which the Stankoses’ 

minor son suffered during a taekwondo competition organized by AAU. 

The Stankoses’ initial complaint alleged several causes of action against 

AAU, including claims for negligence, “misrepresentation and 

concealment,” loss of filial consortium, and injunctive relief. AAU filed an 

answer and an amended answer to the initial complaint. AAU also 

engaged in extensive discovery pertaining to the merits of the case.

More than a year after the initial complaint was filed, the Stankoses 

filed an amended complaint.1 In the amended complaint, the Stankoses 

added two additional causes of action, namely, a claim alleging that AAU 

violated section 943.0438, Florida Statutes (2013), and a claim under the 

Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

The count alleging violations of section 943.0438 appears to be directed 

at augmenting the Stankoses’ negligence count based on a theory of 

negligence per se for AAU’s alleged failure to comply with the provisions in 

that statute requiring youth sports organizations to adopt certain safety 

measures. See § 943.0438(2)(f) & (g), Fla. Stat.

Additionally, the FDUTPA count alleged in relevant part that 

“[p]ermitting children, such as Jaden, to compete in ‘light head contact’ 

competitions without first complying with Florida state law to enforce rules 

and bylaws intended to protect youth athletes from potentially life-long 

injuries related to concussions and head injuries, is obviously deceptive, 

grossly unfair, and beyond conscionable.”

After the amended complaint was filed, AAU moved to compel 

arbitration based on an arbitration clause contained within the AAU 

handbook. The Stankoses agreed to be bound by this clause when they 

applied for an AAU membership. In the motion, AAU argued that, 

although it may have waived arbitration by answering the initial 

complaint, its right to seek arbitration was revived when the Stankoses 

filed their amended complaint, which AAU maintains expanded the scope 

of the litigation. The trial court granted the motion and entered an order 

1 The Stankoses’ original complaint against AAU was styled below as an 

“Amended Complaint.” Accordingly, any references in this opinion to the “original 

complaint” or the “initial complaint” will refer to the complaint styled below as 

the “Amended Complaint,” and any references in this opinion to the “amended 

complaint” will refer to the complaint styled below as the “Second Amended 

Complaint.”
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compelling arbitration.

Discussion

As a preliminary matter, there is no doubt that AAU waived its right to 

compel arbitration by answering the Stankoses’ initial complaint and 

engaging in discovery directed to the merits of the case. Doctors Assocs., 

Inc. v. Thomas, 898 So. 2d 159, 162 (Fla. 4th DCA 2005); Marine Envtl. 

Partners, Inc. v. Johnson, 863 So. 2d 423, 427 (Fla. 4th DCA 2003).

With respect to the effects of the amended complaint, no Florida case 

holds that the right to compel arbitration is revived by the filing of an 

amended complaint. To the contrary, at least one district court of appeal 

has concluded that “[t]he fact that the plaintiffs filed an amended 

complaint does nothing to revive [the defendant’s] right to arbitration.” 

Morrell v. Wayne Frier Mfrd. Home Ctr., 834 So. 2d 395, 398 (Fla. 5th DCA 

2003).

AAU argues, based on Eden Owners Ass’n, Inc. v. Eden III, Inc., 840 So. 

2d 419 (Fla. 1st DCA 2003), that an amended complaint can revive a 

defendant’s previously waived right to compel arbitration. AAU’s reliance 

on Eden is misplaced. In Eden, the plaintiff did not raise an arbitrable 

issue until it filed its second amended complaint. Id. at 420. As the 

plaintiff’s earlier complaints did not raise any arbitrable issues, the 

defendant did not waive arbitration by answering those complaints. Id. In 

this case, unlike Eden, the Stankoses’ initial complaint raised arbitrable

issues.

AAU also argues, based on federal case law, that an amended complaint 

can revive a defendant’s previously waived right to compel arbitration if 

the amended complaint unexpectedly alters the nature and scope of the 

litigation. See, e.g., Krinsk v. SunTrust Banks, Inc., 654 F. 3d 1194 (11th 

Cir. 2011). In Krinsk, the court held that an amended complaint, which 

expanded the putative class by thousands (possibly tens of thousands), 

revived the defendant’s right to compel arbitration. Id. at 1203–04. The 

court determined, as a matter of fairness, that the defendant’s right to seek 

arbitration was revived because the defendant “could not have foreseen 

that [the plaintiff] would expand the putative class in such a broad way 

nine months into the litigation.” Id. at 1204.

In this case, unlike Krinsk, the amended complaint does not alter the 

scope or theory of the underlying litigation in an unforeseeable way. The 

amended complaint does not involve issues significantly separate and 

distinct from those raised in the original complaint. The new claims are 
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still directed toward the minor child’s injury and AAU’s safety practices.

The Stankoses’ claim under section 943.0438 merely provides a possible 

basis for a finding of negligence per se based on the same core set of facts 

raised in the initial pleading. Similarly, the FDUTPA claim, assuming it is

even viable,2 does not unexpectedly alter the scope or theory of the 

litigation. The original complaint already asserted a similar claim for 

misrepresentation, and already sought injunctive relief that would be 

applied to other taekwondo participants at AAU events. Finally, the 

inclusion of a request for attorney’s fees in the FDUTPA claim cannot be 

deemed to have materially altered the scope or theory of the litigation.

Accordingly, we reverse the trial court’s order compelling arbitration 

and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

TAYLOR and FORST, JJ., concur.

LEVINE J., concurs specially with opinion.

LEVINE, J., concurring specially.

I concur in the result to reverse the trial court’s rulings. I also write to 

expound upon why the Krinsk standard is the correct standard to apply 

when determining whether an amended complaint would allow the 

defendant to rescind an earlier waiver and revive an arbitration agreement 

after waiving it following the initial complaint. 

In granting the motion to compel arbitration, the trial court found that 

the right to arbitration was not waived and, even if it was waived, there 

was no showing of prejudice. Initially, the trial court erred in applying a 

prejudice test because under Florida law proof of prejudice is not required 

“in order for there to be an effective waiver of the right to arbitrate.” 

Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 

2005). 

Additionally, the trial court erred in finding that AAU did not initially 

waive arbitration. Although Florida law favors resolution by arbitration, a 

valid contractual right to arbitrate a dispute may be waived. Id. “A party 

who actively participates in the litigation waives its right to compel 

arbitration.” Sitarik v. JFK Med. Ctr. Ltd., 11 So. 3d 973, 974 (Fla. 4th 

2 The amended complaint does not specify what the Stankoses’ alleged “actual 

damages” are under the FDUTPA count. However, FDUTPA expressly excludes 

claims for personal injury or death. § 501.212(3), Fla. Stat. (2013).
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DCA 2009). In this case, AAU actively participated in litigation by filing an 

answer and affirmative defenses as well as an amended answer and 

affirmative defenses and engaging in discovery after the initial complaint. 

See id. 

In Krinsk v. SunTrust Banks, Inc., 654 F.3d 1194, 1202 (11th Cir. 2011), 

the Eleventh Circuit recognized that there are circumstances in which an 

amended complaint can revive the right to compel arbitration: 

[A] defendant’s waiver of the right to compel arbitration is not 

automatically nullified by the plaintiff’s filing of an amended 

complaint. Rather, courts will permit the defendant to rescind 

his earlier waiver, and revive his right to compel arbitration, 

only if it is shown that the amended complaint unexpectedly 

changes the scope or theory of the plaintiff’s claims. 

Id. (citations omitted). The right to compel arbitration is not revived, 

however, where the amended complaint makes only minor changes to the 

factual allegations or legal claims previously asserted. Id. Thus, in Krinsk, 

the court found that the right to compel arbitration could be revived by the 

filing of an amended complaint that broadened the potential scope of 

litigation by opening the door to thousands of new class plaintiffs not 

contemplated in the original class. See also Plaintiffs’ S’holders Corp. v. S. 

Farm Bureau Life Ins. Co., 486 Fed. Appx. 786 (11th Cir. 2012). 

The Krinsk standard is consistent with Florida cases involving 

counterclaims, which suggest that an amended complaint could revive the 

right to arbitration if it involves issues separate and distinct from those 

raised in the original complaint, or if the amended complaint significantly 

alters the scope and nature of the litigation. For instance, in Owens & 

Minor Medical, Inc. v. Innovative Marketing & Distribution Services, Inc., 711 

So. 2d 176 (Fla. 4th DCA 1998), appellant filed suit against appellee for 

breach of contract, among other claims. Appellee filed a counterclaim, 

alleging that the contract was fraudulently induced and, if enforceable, 

breached by appellant. Appellant moved to compel arbitration. This court 

found that appellant waived its right to arbitrate by actively participating 

in the litigation. We rejected appellant’s argument that it did not 

participate in the litigation in relation to the counterclaim, stating: 

[T]he counterclaim does not involve issues separate and 

distinct from those raised in appellant’s amended complaint . 

. . . The matters raised in the counterclaim are intertwined 

with issues raised in the amended complaint, since to decide 
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each claim a fact finder would necessarily have to resolve fact 

issues common to both.

This close relationship between the claims of the parties 

distinguishes this case from those cited by appellant, where 

claims subject to arbitration were “separate and distinct” from 

claims for which arbitration had arguably been waived. See 

Design Benefit Plans, Inc. v. Enright, 940 F.Supp. 200 (N.D. Ill. 

1996); Gingiss Int’l, Inc. v. Bormet, 58 F.3d 328 (7th Cir.1995). 

Similarly, the counterclaim did not significantly alter the 

scope and nature of the litigation, such that it revived a 

previously waived right to demand arbitration. Cf. Gilmore v. 

Shearson/American Express Inc., 811 F.2d 108 (2d Cir. 1987); 

Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 

F.3d 388 (7th Cir. 1995). . . .

Id. at 177. See also Chaikin v. Parker Waichman LLP, 42 Fla. L. Weekly 

D2165 (Fla. 2d DCA Oct. 11, 2017); Fine Decorators, Inc. v. Argent Glob. 

(Bermuda), Ltd., 919 So. 2d 604, 606 (Fla. 3d DCA 2006); Hawkins v. 

James D. Eckert, P.A., 738 So. 2d 1002, 1002-03 (Fla. 2d DCA 1999). 

The Krinsk standard is also consistent with Florida law pertaining to 

waiver. Waiver is defined as “the voluntary and intentional relinquishment 

of a known right or conduct which implies the voluntary and intentional 

relinquishment of a known right.” Roger E. Freilich, D.M.D., P.A. v. Shochet, 

96 So. 3d 1135, 1138 (Fla. 4th DCA 2012) (citation omitted). In analyzing 

whether waiver has occurred, “[t]he essential question is whether, under 

the totality of the circumstances, the defaulting party has acted 

inconsistently with the arbitration right.” Id. (citation omitted). Thus, 

where an amendment unexpectedly changes the scope or theory of the 

claims, it cannot be said that the opposing party knowingly waived 

arbitration. 

Changed circumstances, like in Krinsk, should result in the court reevaluating whether the waiver covers the amended complaint. Waiver may 

not be irreversible and all-encompassing. Facts and circumstances do 

matter when evaluating the scope of the waiver. Factually, AAU waived 

the right to compel arbitration as to the first complaint, contrary to the 

trial court’s finding. Only as to the second amended complaint do we make 

a separate inquiry as to whether there is a continuing waiver. Applying 

the Krinsk standard to this case, although the amended complaint added 

two new counts, it did not “unexpectedly change[] the scope or theory of 

[appellants’] claims.” Krinsk, 654 F.3d at 1202. Rather, the issues in the 
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amended complaint were substantially the same as the issues in the 

original complaint for which AAU had already waived arbitration. 

For all of these reasons, I would reverse. 

* * *

Not final until disposition of timely filed motion for rehearing.