DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARINO PERFORMANCE, INC.,

Appellant,

v.

JOSE CARLOS ZUNIGA and JUAN C. ZUNIGA, JR.,

Appellees.

No. 4D20-1463

[August 18, 2021]

Appeal of a nonfinal order from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Howard K. Coates, Jr., Judge; L.T. 

Case No. 50-2018-CA-015200-XXXX-MB.

Hinda Klein and Samuel B. Spinner of Conroy Simberg, Hollywood, for 

appellant.

George W. Kramer and Debra D. Klingsberg of the Law Offices of Kramer 

& Klingsberg, Delray Beach, for appellees.

WARNER, J.

Marino Performance (“Marino”), an automobile dealer, appeals a 

nonfinal order granting the plaintiffs’ Jose Zuniga and Juan Zuniga’s 

(“plaintiffs”) motion to certify a class in an action against Marino for unfair 

and deceptive trade practices. In the order, the circuit court also found 

that Marino waived its right to compel arbitration as to both the named 

plaintiffs and the unnamed class members. Marino contends that the 

court erred in denying the motion to compel arbitration as to the unnamed 

class members. The trial court concluded that Marino waived its right to 

arbitrate because it failed to provide fair notice of its intent to rely on the 

arbitration provision during litigation and only raised it on the eve of the 

class certification hearing. We agree and affirm.

Background

In December 2018, after purchasing vehicles from Marino, plaintiffs

filed a class action complaint alleging that Marino engaged in deceptive 

practices regarding certain fees. Marino answered the complaint and 
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raised seven affirmative defenses. At no time did Marino raise the issue of 

arbitration even though an arbitration provision was included in the 

contract between Marino and each vehicle purchaser. The parties engaged 

in discovery, with both sides serving interrogatories and requests for 

production of documents. Plaintiffs filed a motion to compel responses 

from Marino, but again Marino did not raise the existence of an arbitration 

agreement.

In April 2019, Marino moved for judgment on the pleadings, arguing 

that the type of damages sought in the class action were unavailable under 

the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). The 

circuit court denied the motion.

In November 2019, plaintiffs moved to certify the class, and the court 

set a hearing on the motion. Days before the hearing, in January of 2020, 

Marino filed its motion to compel arbitration “in opposition to plaintiff’s 

motion for class certification,” raising arbitration as an issue for the first 

time fourteen months after the class action complaint had been filed. 

Marino contended that it did not waive its right to arbitrate because its 

prior filings were defensive in nature.

Following the hearing, the court entered an order on the motion for 

class certification, determining:

[T]here has been a waiver of the right to compel arbitration

in this case. Whether the state or federal test for waiver

applies is immaterial as both standards have been met. The

Answer did not demand arbitration[;] discovery was tendered 

and responded to. There was a delay of 14 months before the

motion to compel was filed on the eve of the hearing on the

motion to certify. Therefore, the arbitration issue is 

insufficient to defeat numerosity. . . .

At a later hearing on an issue related to the element of representation 

as to one of the class representatives, Marino argued that even if the court 

previously found a waiver of its right to arbitrate as to plaintiffs, it did not 

follow that a waiver occurred as to the unnamed class members.

After supplemental briefing on the issue of whether the waiver should 

also apply to the unnamed class members, the court entered its 

supplemental order on motion for class certification. The court ruled that 

Marino waived its right to arbitrate as to the unnamed class members. In 

so ruling, the ultimate question for the court was whether:
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[B]y its actions in the litigation, [Marino] provide[d] fair notice

to Plaintiffs that it intended to enforce its rights to arbitration

in this case, or at a minimum that it intended to treat the

named Plaintiffs differently from the unnamed putative class

members with respect to its decision or not to seek 

arbitration.

The court emphasized that Marino did not raise arbitration as an 

affirmative defense in its answer or affirmative defenses “or otherwise 

reserve the right to assert arbitration as an affirmative defense against 

either the named Plaintiffs or the unnamed putative class members.”

The court discussed Marino’s filing of a motion for judgment on the

pleadings, where Marino “took the chance of seeking a dismissal of all

claims without advising the Court or the Plaintiff that if it lost it would

then seek arbitration of the claims of the unnamed putative class

members.” The court emphasized that Marino did nothing prior to the

filing of its motion to compel arbitration to indicate that it was preserving

its rights to seek arbitration in the event of class certification.

The court ultimately concluded that Marino “substantially invoke[d] the

litigation machinery prior to demanding arbitration.” The main concern for

the court was that Marino engaged in class discovery without objecting or

preserving its right to compel arbitration as to the unnamed class 

members.

This timely appeal followed.

Analysis

“The question of waiver [of arbitration] is one of fact, reviewable for

competent substantial evidence.” Marine Env’t Partners, Inc. v. Johnson,

863 So. 2d 423, 426 (Fla. 4th DCA 2003) (citations omitted). “A party 

claiming waiver of arbitration must show: 1) knowledge of an existing right 

to arbitrate and 2) active participation in litigation or other acts 

inconsistent with that right.” Id. (citation omitted).

Marino argues that the circuit court did not have jurisdiction over the 

unnamed class members until after the class was certified, and therefore, 

prior to certification, Marino had no right to demand arbitration against 

the unnamed members. Thus, Marino contends that its pre-certification 

conduct could not operate to waive its right to arbitration since the right 

did not exist at that time.
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In response, plaintiffs argue that the circuit court correctly determined 

that Marino waived its right to compel arbitration as to the unnamed class 

members. Plaintiffs maintain that Marino acted inconsistently with its 

arbitration rights and did not assert its intent to arbitrate prior to engaging 

in extensive discovery.

We agree with the circuit court that the reasoning in Gutierrez v. Wells 

Fargo Bank, NA, 889 F.3d 1230 (11th Cir. 2018), is instructive in analyzing 

this case. In Gutierrez, Wells Fargo appealed the district court’s denial of 

its motion to compel arbitration with the unnamed plaintiffs comprising 

the classes after the bank’s customers filed five class actions. Id. at 1233. 

The Eleventh Circuit ultimately reversed the district court’s finding of 

waiver as to the unnamed plaintiffs, determining that Wells Fargo did not 

waive its right to arbitrate as to the unnamed class members, because it 

had provided fair notice that it reserved its right to arbitrate against the 

unnamed class members. Thus, it had not acted inconsistently with its 

arbitration rights.

In order to find a waiver of arbitration, the Eleventh Circuit concluded 

that the trial court must find that the party attempting to invoke 

arbitration acted inconsistently with the arbitration right. “A key factor in 

deciding this is whether a party has ‘substantially invoke[d] the litigation 

machinery prior to demanding arbitration.’” Id. at 1236 (quoting S & H 

Contractors v. A.J. Taft Coal Co., Inc., 906 F.2d 1507, 1514 (11th Cir. 1990).

It also explained:

[T]he key ingredient in the waiver analysis is fair notice to the 

opposing party and the District Court of a party’s arbitration

rights and its intent to exercise them. If the court and the

opposing party have such notice at an early stage in 

litigation, they can manage the litigation with this contingency

in mind. For example, if the court knows a party has

potential arbitration rights that could throw the case out of

court, it can limit the scope of early discovery with this

possibility in view, in order to avoid significant expenditures if 

it turns out that the arbitration provision governs. 

Accordingly, fair notice at a relatively early stage of litigation 

is a primary factor in considering whether a party has acted

inconsistently with its arbitration rights.

Id. at 1236–37 (footnote omitted) (emphasis added).

In finding that Wells Fargo did not waive its right to arbitration as to 
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the unnamed class members, the Eleventh Circuit emphasized that Wells 

Fargo’s “conduct with respect to the unnamed Plaintiffs differed starkly

from its conduct as to the named Plaintiffs.” Id. at 1237 (emphasis added). 

Specifically, Wells Fargo:

[S]tated expressly in its response to the District Court’s

scheduling order that it did not plan to seek arbitration with

the named Plaintiffs, and it thus joined other defendants in

filing an omnibus motion to dismiss the complaints. In that

same response, however, which it filed well before any

discovery had been conducted, Wells Fargo explained to the

District Court that it was not in a position to assert its

arbitration rights against the unnamed Plaintiffs but wished

to preserve those rights for when the matter became ripe for

the Court to consider them . . . .

Id. (emphasis added). The court further discussed the fair notice factor:

[W]e have found no authority that requires a party to file a

conditional arbitration motion against possible future 

adversaries—at a juncture in which adjudicating, much less 

exercising jurisdiction over, those claims is impossible—in 

order to avoid waiving its rights with regard to those parties.

Because the District Court lacked jurisdiction over such

motions until the class was certified, such a placeholder

document could only serve the purpose of putting the Court

and the parties on notice of the moving party’s intent to 

invoke its arbitration rights upon certification of the class.

But that same purpose was served by Wells Fargo’s express

reservation of its arbitration rights as to future plaintiffs in

response to the Court’s scheduling order. Accordingly, we 

conclude that Wells Fargo did not act inconsistently with its 

arbitration rights, and, consequently, it did not waive those 

rights.

Id. at 1239 (emphasis added); see also In re Checking Acct. Overdraft Litig., 

780 F.3d 1031, 1035 (11th Cir. 2015) (finding that a defendant did not 

waive its right to arbitrate claims against unnamed class members, but 

specifically noting that when the defendant filed its answer, it twice gave

notice that it was reserving its right to arbitrate the claims of any future 

plaintiffs, stating that, “[a]bsent members of the putative classes have a 

contractual obligation to arbitrate any claims they have against Wells 

Fargo”).
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The Gutierrez court acknowledged that Wells Fargo could not have 

moved to compel arbitration prior to the certification of the class, because

the court would not have had jurisdiction to impose arbitration on the 

unnamed class members. Further, the court determined under the totality 

of the circumstances that Wells Fargo’s litigation strategy and conduct 

prior to class certification were not inconsistent with its right to 

arbitration. Because the Gutierrez court found that Wells Fargo had not 

acted inconsistently with its right to arbitration, Wells Fargo could assert 

its right once the class was certified.

In this case, by contrast, Marino did nothing to signal that it was 

preserving its arbitration right in the event of class certification prior to 

filing its motion to compel on the eve of the certification hearing. When

Marino filed its answer and affirmative defenses, it did not raise its

arbitration right or otherwise reserve the right to assert arbitration as

an affirmative defense as to the unnamed class members. Further, in 

responding to plaintiffs’ interrogatories and document requests, Marino’s

responses were not limited only to its vehicle sales to the class

representatives but were also directed at sales to proposed class members. 

Marino did not object to the discovery of unnamed class members on

the basis that Marino intended to enforce its rights to arbitration when 

the matter was ripe for the court to consider it.

Notably, Marino attempted to have the entire action dismissed on the

merits, and then, when that was unsuccessful, it attempted to compel

arbitration, months later but just days prior to the hearing on the motion

for class certification. This is the type of “outcome-oriented 

gamesmanship” which the Eleventh Circuit criticized in Gutierrez, where 

one acts “in a manner inconsistent with one’s arbitration rights and then 

change[s] course mid-journey” and pursues arbitration “when its 

prospects of victory in litigation dim.” Gutierrez, 889 F.3d at 1236.

We also note that other jurisdictions have embraced a position 

consistent with the fair notice reasoning in Gutierrez. For example, in 

Tennyson v. Santa Fe Dealership Acquisition II, Inc., 364 P.3d 1273, 1277 

(N.M. Ct. App. 2015), the defendant presented the same argument that 

Marino presents here. Specifically, the defendant argued that, because an 

order compelling arbitration would not bind absent class members until 

the class was certified, moving to compel arbitration as to unnamed class 

members would be futile. Id. The court disagreed and determined that 

the defendant waived its right to compel arbitration against absent class 

members who were joined by the district court’s certification order despite 

the fact that the court would not have jurisdiction to compel members to 

arbitrate prior to certification. Id. at 1277. The court explained:
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Defendants retort that an order compelling arbitration would 

not bind absent class members until the district court entered 

an order certifying this case as a class action, so moving to 

compel arbitration before this case was certified as a class 

action would have been futile. But the question is not whether 

or when absent class members would be bound by an order 

compelling arbitration; the question is whether Defendants 

waived their right to invoke their right to arbitrate disputes with 

absent class members. Simply because the district court did 

not have jurisdiction to compel absent class members to 

arbitrate their claims does not mean that Defendants had no 

obligation to rely upon the clause before the district court 

granted Plaintiffs’ motion to certify. See [In re Cox Enters., Inc. 

Set-Top Cable Television Box Antitrust Litig., 790 F.3d 1112,. 

1119 (10th Cir. 2015)] (“The [district] court may not have been 

able to compel arbitration of absent class members [before it 

certified a class], but [the defendant’s] assertion or mention of 

its right at that point would have fundamentally changed the 

course of the litigation, ensured a more expedient and efficient 

resolution of the trial, and prevented [the defendant’s] 

gamesmanship.

Id. at 1279–80 (emphasis added); see also Elliott v. KB Home N. Carolina, 

Inc., 752 S.E.2d 694, 703 (N.C. Ct. App. 2013) (holding that a defendant 

waived its rights to compel unnamed class members to arbitration, noting 

that the defendant “litigated this case . . . while sitting on any contractual 

rights it had to arbitrate . . . [and] [t]he fact that [plaintiffs’ and their 

attorney’s investment of significant time and sums of money] occurred 

before the class was certified does not negate the fact that, upon 

certification, the class became tangible beneficiaries of that expenditure”).

Conclusion

In sum, consistent with the reasoning in Gutierrez, we hold that under 

the totality of circumstances, the circuit court correctly determined that 

Marino waived its right to arbitrate as to the unnamed class members. It 

never provided fair notice to plaintiffs or the court of its right and engaged 

in a litigation strategy of “outcome oriented gamesmanship.”

Affirmed.

GROSS and DAMOORGIAN, JJ., concur.
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* * *

Not final until disposition of timely filed motion for rehearing.