DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

TERESA J. PATTERSON and DAVID D. WALTER,

Appellants,

v.

REGINA MELMAN and PALM REALTY OF VENICE, LLC, 

Appellees.

No. 2D2023-1388

September 13, 2024

Appeal from the Circuit Court for Sarasota County; Danielle Brewer, 

Judge.

David D. Walter, pro se, and for Appellant Teresa J. Patterson.

Wendy Shay Temple and Michael L. Dear of The Law Office of Michael L. 

Dear, PLLC, Orlando, for Appellees. 

ATKINSON, Judge.

Appellants, Teresa J. Patterson and David D. Walter, appeal the 

trial court's order compelling arbitration of the claims they asserted 

against Appellees, Regina Melman and Palm Realty of Venice, LLC. 

Although the trial court reached the correct result to compel arbitration 

on the merits of the claims against Appellees, we reverse the trial court's 

order because, in answering the question of waiver, the trial court 

impermissibly decided a question regarding a condition precedent to 

arbitration that was by statute within the exclusive province of the 
2

arbitrator to decide. We remand for entry of an order that, in addition to 

compelling arbitration on the merits of the underlying claims against the 

appellees, compels arbitration on the issue regarding whether Appellees 

fulfilled any conditions precedent to arbitration.

Background

Appellants executed two listing agreements providing for Appellees 

to serve as their real estate agents to sell two duplexes (one agreement 

for each duplex). The listing agreements contain identical dispute 

resolution clauses, which provide that "[a]ll controversies, claims, and 

other matters in question between the parties arising out of or relating to 

this Agreement or the breach thereof will be settled by first attempting 

mediation." The clauses then provide that "disputes not resolved by 

mediation will be settled by neutral binding arbitration." A dispute 

ensued after a potential buyer executed purchase contracts for the 

duplexes but cancelled the transaction the day before closing. 

Appellants filed suit, including several claims against Appellees. 

Appellants alleged that they sought to address all issues in mediation

but that Appellees refused to mediate.

Appellees filed a motion to dismiss the complaint, arguing, among 

other things, that the listing agreements required the resolution of 

Appellants' claims in binding arbitration. In opposition, Appellants did 

not dispute that there was a valid agreement to arbitrate or that their 

disputes fell within the scope of the arbitration agreement. Instead, 

Appellants contended that mediation was a condition precedent to 

arbitration and that Appellees had waived the right to arbitration by 

refusing to participate in mediation. The trial court construed Appellees' 

motion as a motion to compel arbitration and entered an order 

compelling arbitration of the claims asserted against Appellees.
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Analysis

Appellants maintain on appeal that Appellees' alleged refusal to 

mediate constitutes a waiver of their right to arbitration. Although the 

waiver of the right to arbitrate is generally a question of fact reviewed for 

competent substantial evidence, see Mora v. Abraham Chevrolet-Tampa, 

Inc., 913 So. 2d 32, 33 (Fla. 2d DCA 2005), in this appeal we consider 

the legal issues of whether and when the failure to perform a condition 

precedent can constitute a waiver of the right to arbitration and whether 

and when that question is one for the arbitrator or the trial court. Our 

review of those legal issues is de novo. See Shotts v. OP Winter Haven, 

Inc., 86 So. 3d 456, 461 (Fla. 2011).

In deciding whether to compel arbitration, under the common law 

the trial court must determine "whether the right to arbitration was 

waived." Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999); 

UATP Mgmt., LLC v. Barnes, 320 So. 3d 851, 855 (Fla. 2d DCA 2021)

(quoting Jackson v. Shakespeare Found., Inc., 108 So. 3d 587, 593 (Fla. 

2013)). However, pursuant to the Revised Florida Arbitration Code, 

enacted in 2013, see ch. 2013-232, § 40, Laws of Fla., it is the "arbitrator 

[who] shall decide whether a condition precedent to arbitrability has been 

fulfilled," § 682.02(3), Fla. Stat. (2023); see also Sherwood v. Slazinski, 

162 So. 3d 229, 231 (Fla. 2d DCA 2015) (citing § 682.02(3), Fla. Stat. 

(2013)). In this case, Appellants predicated their waiver argument on 

Appellees' alleged refusal to perform what Appellants argue is a condition 

precedent to arbitration—attending mediation. Appellants contend that 

Appellees' alleged refusal to actually mediate the dispute constitutes a 

repudiation of the condition precedent resulting in a waiver of Appellees'

right to arbitration. 
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Finding that "the actual occurrence of mediation" was not a 

condition precedent, the trial court reasoned that because mediation had 

never happened, Appellees were entitled to arbitration—even though, 

according to Appellants' allegations, the nonoccurrence of mediation was 

a consequence of Appellees' refusal to participate. Reasoning that the 

arbitration provision "does not state that mediation must occur for 

arbitration to occur," the trial court deduced that the mere fact that the 

disputes "ha[d] not been resolved by mediation" meant that "the right to 

arbitrate ha[d] not been waived" and that "the dispute must proceed to 

binding arbitration." 

Implicit in the trial court's determination that Appellees had not 

waived their right to arbitration is the premise that had the actual

occurrence of mediation been a condition precedent to arbitration, the 

failure to satisfy the requirement would have constituted a waiver of the 

right to arbitration. We cannot reach the issues of whether the trial 

court erred in its determination that the mediation requirement was not 

a condition precedent or whether that condition precedent had been 

fulfilled because those are questions that should have been left to the 

arbitrator. Indeed, we reverse in part based on the conclusion that the 

trial court erred by addressing those questions in the first place. 

Authority to determine whether a condition precedent was fulfilled is 

explicitly assigned by statute to the arbitrator, see § 682.02(3), and 

whether a certain obligation is or is not a condition precedent is 

necessarily subsumed within that question. 

What we must address is whether the trial court was incorrect in 

treating the issue of condition precedent fulfillment as one of waiver 

under the circumstances of this case and deciding the matter for itself. 

We conclude that the trial court erred because the question of condition 
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precedent fulfillment under the circumstances of this case was not one of 

waiver, and presuming only for the sake of analysis that failure to fulfill a 

condition precedent could under some circumstances constitute a 

waiver, the question would by statute still be one for the arbitrator to 

decide. 

A waiver is "the voluntary and intentional relinquishment of a 

known right or conduct which implies the voluntary and intentional 

relinquishment of a known right." Raymond James Fin. Servs., Inc. v. 

Saldukas, 896 So. 2d 707, 711 (Fla. 2005). "This general definition of 

waiver is applicable to a right to arbitrate," the "essential question [being] 

whether, under the totality of the circumstances, the defaulting party 

has acted inconsistently with the arbitration right." Id. (second quotation 

quoting Nat'l Found. for Cancer Rsch. v. A.G. Edwards & Sons, Inc., 821 

F.2d 772, 774 (D.C. Cir. 1987)). Stated differently, a party may waive the 

right to arbitrate if he or she has "manifested an acceptance of the 

judicial forum." Hardin Int'l, Inc. v. Firepak, Inc., 567 So. 2d 1019, 1021 

(Fla. 3d DCA 1990) (quoting Lapidus v. Arlen Beach Condo. Ass'n, 394 

So. 2d 1101, 1103 (Fla. 3d DCA 1981)).

When a party demands arbitration without having fulfilled a 

condition precedent to arbitration, the party may be invoking the 

arbitration right prematurely, but invoking the right prematurely is not 

tantamount to acting inconsistently with the right and is certainly not a 

manifestation of an acceptance of the judicial forum. By demanding 

arbitration as the appropriate forum to resolve the dispute, even if 

prematurely, and insisting that no conditions precedent remain to be 

fulfilled—either on the basis that the action asserted to be a condition 

precedent has been accomplished or under the rationale that it is not in 

fact a condition precedent at all—the party has indicated that it wants to 
6

arbitrate. As such, it cannot be seen as having acted inconsistently with 

the arbitration right or to have affirmatively manifested an acceptance of 

the judicial forum. See Piercy v. Sch. Bd. of Wash. Cnty., 576 So. 2d 806, 

808 (Fla. 1st DCA 1991) ("Consequently, if a party has manifested an 

acceptance of the judicial forum, a court could reasonably conclude that 

the party waived any right he or she may have had to arbitration." (citing 

Lapidus, 394 So. 2d at 1103)); Hardin Int'l, 567 So. 2d at 1021 

(concluding "both sides 'manifested an acceptance of the judicial forum 

and waived any right . . . to arbitration' " (quoting Lapidus, 394 So. 2d at 

1103)); Pub. Health Tr. of Dade Cnty. v. M.R. Harrison Constr. Corp., 415 

So. 2d 756, 758 (Fla. 3d DCA 1982) (providing that "the ingredient 

common to waiver cases" is "that the party said to have waived [the right 

to arbitration] has, in some manner, affirmatively manifested an 

acceptance of the judicial forum"). In other words, the party seeking 

arbitration has acted consistently with its right to do so and 

demonstrated an intent not to relinquish the right. See Raymond James 

Fin. Servs., 896 So. 2d at 711 (describing the "essential question" of 

waiver as whether a party "has acted inconsistently with the arbitration 

right" (quoting Nat'l Found. for Cancer Rsch., 821 F.2d at 774)); Green 

Tree Servicing, LLC v. McLeod, 15 So. 3d 682, 687 (Fla. 2d DCA 2009) 

(discussing examples of waiver effectuated by "conduct that is 

inconsistent with the arbitration request"). 

Therefore, even Appellees' alleged repudiation of the purported 

condition precedent cannot constitute waiver because under the 

circumstances it is a manifestation of an affirmative acceptance of the 

arbitral forum that Appellees persistently seek to employ, and the refusal 

to undertake the purported condition precedent to arbitration is, perhaps 

paradoxically, consistent with the right to arbitration. Appellees argue, 
7

consonant with their perceived present right to arbitration, that the trial 

court was correct in determining that they do not need to attend 

mediation before arbitration. Appellees' insistence that they have the 

right to arbitrate without first attending mediation—even if their 

repudiation of the obligation to mediate circumvents a condition 

precedent—undermines Appellants' waiver argument because Appellees' 

conduct is consistent with the right and not a relinquishment of it.

Moreover, when, as in this case, the failure to perform a condition 

precedent can simply be cured by fulfilling the condition precedent, such 

a failure cannot be conflated with waiver because waiver effects a 

relinquishment of the right that is irrevocable—that is, it cannot be 

reinstated without agreement of the opposing party. See Mirro v. 

Freedom Boat Club, LLC, 328 So. 3d 1108, 1110–11 (Fla. 2d DCA 2021) 

("[O]nce a party has waived the right to arbitration by active participation 

in a lawsuit, the party may not reclaim the arbitration right without the 

consent of his or her adversary." (quoting Green Tree Servicing, 15 So. 3d 

at 687)). Unlike waiver, the effect of a party's failure to fulfill a condition 

precedent is that the party still needs to fulfill that condition, not that 

the party irrevocably forfeits the right to resolve the dispute in the 

desired forum. Cf. Lane v. Eckert, 652 So. 2d 1257 (Fla. 2d DCA 1995) 

("Because the appellant failed to comply with the [presuit notice] 

requirements of section 768.28(6), Florida Statutes (1991), the trial court 

properly dismissed his complaint. Since, however, the statute of 

limitations had not yet run at the time of dismissal, the appellant shall 

have the opportunity to file an amended complaint after compliance with 

the statute." (first citing Wright v. Polk Cnty. Pub. Health Unit, 601 So. 2d 

1318 (Fla. 2d DCA 1992); then citing Hamide v. Dep't of Corr., 548 So. 2d 

877 (Fla. 1st DCA 1989); and then citing Wemett v. Duval County, 485 
8

So. 2d 892 (Fla. 1st DCA 1986))); Seminole Tribe of Fla. v. Pupo, 384 So. 

3d 187, 190 (Fla. 4th DCA 2023) ("A failure to comply with a condition 

precedent to suit typically results in the dismissal of a prematurely-filed 

suit, not a 'forever' bar unless a statute of limitations or repose would 

preclude a newly-filed lawsuit."). In other words, a party invoking 

arbitration prematurely can cure the prematurity by fulfilling the 

condition precedent, a situation altogether distinct from one in which a 

party has knowingly and irrevocably relinquished the right to arbitration. 

Of course, the same cannot be said of a provision imposing a 

condition precedent to arbitration that is time-bound. Failure to timely 

fulfill such a condition precedent cannot be cured. And this 

distinguishes a case upon which Appellants rely in support of their 

contention that the trial court properly resolved the issue of condition 

precedent fulfilment as an issue of waiver. In Leder v. Imburgia 

Construction Services, Inc., 325 So. 3d 256 (Fla. 3d DCA 2021), the court 

concluded that a party's failure to fulfill a condition precedent to 

arbitration constituted a waiver of arbitration because the parties had 

agreed as a matter of contract that the arbitration right would be waived 

if they did not timely perform the obligation. See id. at 257, 259 ("The 

parties' contract reflects that the parties' right to proceed to binding 

dispute resolution—arbitration—is waived if a certain condition 

precedent to arbitration is not followed. . . . [W]e conclude that the 

parties waived their right to arbitrate under the terms of their contract."). 

In Leder, the party seeking arbitration could not cure its failure to fulfill 

the condition precedent because the arbitration provision first required 

the submission of a claim to an "Initial Decision Maker" within twentyone days of the dispute arising. Id. at 257. As a practical matter, failure 

to timely fulfill the condition precedent did extinguish the right to 
9

arbitration. However, even if the failure to perform the condition 

precedent in Leder could logically be considered a waiver,1 because the 

waiver was effectuated as a consequence of the failure to fulfill a 

condition precedent, the matter should have been determined by the 

arbitrator. See § 682.02(3) ("An arbitrator shall decide whether a 

condition precedent to arbitrability has been fulfilled . . . ."); cf. Cox v. 

Village of Tequesta, 185 So. 3d 601, 607 (Fla. 4th DCA 2016) ("In this 

case, the trial court determined waiver of arbitration by finding several 

points where Cox's actions were not timely, and as such, 'waived' his 

right to arbitration. . . . [O]nly the arbitrator should determine questions 

of 'timeliness.' To rule otherwise would expand the concept of waiver 

from its present limited inquiry to the point where every question of 

dispute would be decided by a trial court where the party disputing 

arbitration would claim that the other party's action effectively 

constituted 'waiver.' "). In other words, even presuming arguendo the 

possibility that a party's inaction could under some circumstance be 

both a failure to fulfill a condition precedent to arbitration and a 

consequent waiver of the right to arbitration, it is still statutorily a 

matter for the arbitrator to determine. The legislature did not limit the 

circumstances in which arbitrators are to determine whether conditions 

precedent have been fulfilled. Nor did the legislature carve out an 

exception for those conditions precedent that could be tantamount to 

1 The Leder opinion does not include the language of the contract, 

which could have made it explicit that a failure to timely fulfill the 

condition precedent constituted a waiver. The language of the opinion 

seems to suggest that such language was a part of the contract. 

Presuming it was, then the parties' inaction would be deemed a waiver by 

operation of the agreement itself without further analysis, which is not 

something that can be said of the contractual language or the facts of 

this case.
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waiver or those that must be timely fulfilled. To the contrary, the statute 

unqualifiedly mandates that the "arbitrator shall decide whether a 

condition precedent to arbitrability has been fulfilled." § 682.02(3). 

Thus, we disagree with Leder insofar as it approves the adjudication by 

the trial court—instead of by the arbitrator—of a question of condition 

precedent fulfillment. Cf. Cox, 185 So. 3d at 607 ("[T]he trial court 

conflated the concept of the waiver of arbitration by actively participating 

in a lawsuit, with the concept of waiver that would occur where a party 

to an agreement does not invoke parts of that agreement in a timely 

fashion.").

However, for at least two reasons we need not address the question

of whether the Leder court's conflation of condition precedent failure with 

waiver was correct under the circumstances of that case—or whether the 

failure to perform a condition precedent could ever constitute a waiver of 

entitlement to arbitration under any circumstances. First, in Leder, the 

performance requirement constituting the condition precedent was timebound. This meant that, by operation of the contract, the right to 

arbitrate the issue was irrevocably relinquished by the parties' failure to 

timely act because the inaction forever foreclosed the satisfaction of the 

performance obligation deemed by the court to have been a condition 

precedent. By contrast, in this case appellees' failure to participate in 

mediation is a curable omission that does not irrevocably foreclose their 

right to arbitrate. As such, even if appellees' inaction can be considered 

a failure to fulfill a condition precedent, it cannot be deemed a waiver of 

their right to arbitration. Second, in this case the question before this 

court is whether the trial court improvidently made a determination that 

was statutorily within the authority of the arbitrator to decide. The trial 

court's decision to order arbitration over appellants' objection was 
11

premised on a determination that participation in mediation was not a 

condition precedent—a matter squarely within the ambit of the 

arbitrator's statutory authority to "decide whether a condition precedent 

to arbitrability has been fulfilled." § 682.02(3). While under the 

circumstances of this case the condition precedent-failure at issue 

cannot constitute a waiver for the reasons stated herein, it is not 

necessary for this court to address whether the failure to perform a 

condition precedent could ever constitute a waiver; therefore, that the 

reasoning of Leder was premised on an affirmative answer to that 

question is of no moment. 

Appellees also misplace reliance on Aberdeen Golf & Country Club 

v. Bliss Construction, Inc., 932 So. 2d 235 (Fla. 4th DCA 2005), in which 

the Fourth District reasoned that "the owner's refusal to initiate 

mediation as a precondition to arbitration and to comply with the duty to 

make progress payments instead of terminating the contract could be 

deemed a voluntary and intentional relinquishment of the known right to 

arbitration." Id. at 240. Aberdeen was decided before the legislature 

enacted the Revised Florida Arbitration Code, which now forecloses a 

court's ability to decide issues regarding the fulfillment of conditions 

precedent to arbitration—whether they are construed as questions of 

waiver or not. See § 682.02(3). For similar reasons as apply to Leder, 

this court need not address the rectitude of Aberdeen's finding of a 

waiver by failure to fulfill a condition precedent because in this case the 

trial court's determination of the issue of condition precedent fulfillment 

was an erroneous invasion of what has now been made by statute the 

sole province of the arbitrator. 

Although the trial court reached the right result in this case by 

compelling arbitration, the trial court's order cannot be affirmed. The 
12

trial court improperly resolved issues reserved for the arbitrator—

whether the actual occurrence of mediation is a condition precedent to 

arbitration and whether the condition had been fulfilled. The Revised 

Florida Arbitration Code is explicit that the arbitrator must decide 

whether a condition precedent has been fulfilled. See id. ("An arbitrator 

shall decide whether a condition precedent to arbitrability has been 

fulfilled . . . ."). And the question of what is or is not a condition 

precedent is logically subsumed within the question of whether a 

condition precedent has been fulfilled: the arbitrator must necessarily 

identify the nature and scope of any condition precedent before 

determining whether that condition has been fulfilled. But even if those 

two questions could be separated from one another, the Revised Florida 

Arbitration Code is equally clear as to what issues the court may decide; 

whether a contract contains a condition precedent to arbitration is not 

one of them. Section 682.02(2), which explicates the division of labor 

between the court and the arbitrator, confers on the court the authority 

to "decide whether an agreement to arbitrate exists" and whether "a 

controversy is subject to an agreement to arbitrate." Section 682.03(1)(b)

sets forth the procedure the court must follow when a party seeks to 

compel arbitration. Upon the filing of an opposed "motion of a person 

showing an agreement to arbitrate and alleging another person's refusal 

to arbitrate pursuant to the agreement . . . , the court shall proceed 

summarily to decide the issue and order the parties to arbitrate unless it 

finds that there is no enforceable agreement to arbitrate." § 682.03(1)(b)

(emphasis added). Reading sections 682.02 and 682.03 in pari materia, 

it is inescapable that once the "issue" of whether there is an "enforceable 

agreement to arbitrate," § 682.03(1)(b), and the question of whether "a 

controversy is subject to an agreement to arbitrate," § 682.02(2), are 
13

resolved in the affirmative, the trial court is required to order arbitration 

straight away, leaving no opportunity for the court to address any other 

questions—such as whether an obligation in the arbitration agreement 

does or does not constitute a condition precedent.

The trial court invaded the statutory province of the arbitrator 

when it made a determination regarding what is and what is not a 

condition precedent to arbitration and whether such conditions had been 

met. Accordingly, we reverse the trial court's order and remand with 

instructions that the trial court enter an order compelling arbitration, to 

include the merits of the claims asserted against Appellees and the 

question of whether Appellees fulfilled any conditions precedent to 

arbitration. 

Reversed and remanded with instructions. 

NORTHCUTT, J., Concurs. 

KHOUZAM, J., Concurs specially.

KHOUZAM, Judge, Specially concurring.

I concur in all respects except for the extended discussion and 

criticism of the Leder opinion. Because Leder involved a time-limited 

condition precedent whereas this case does not, these cases are factually 

distinguishable, and the correctness of the Leder decision is beyond the 

scope of our review.

Opinion subject to revision prior to official publication.