NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

ANDRE FRANKLIN, INC., a Florida ) corporation, and ANDRE FRANKLIN, ) individually, ) ) Appellants, ) ) v. ) Case No. 2D14-1151 ) HERB WAX and JILL WAX, Husband and ) Wife, ) ) Appellees. ) ) Opinion filed Appeal from the Circuit Court for Hillsborough County; Charles E. Bergmann, Judge. Paul J. Kelly of Paul J. Kelly, P.A., St. Petersburg, for Appellants.

Marie Tomassi and Anne C. McAdams of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A., St. Petersburg, for A ppellees.

SLEET, Judge Andre Franklin, Inc., and Andre Franklin, individually, (collec tively referred to as "Franklin"), appeal the trial court's denial of a motion to compel arbitration and- 2 - motion to abate proceedings pending arbitration. Because Frank lin did not take action inconsistent with its right to arbitration, it did not waive it s right to arbitration. 1 Accordingly, we reverse. In January 2007, Herb and Jill Wax contracted with Franklin to restore a historic home they had purchased. Within the contract, the par ties agreed to, among other things, arbitrate disputes. After five years a disagreem ent arose relating to payment. Franklin subsequently recorded a claim of lien agains t the Waxes' home. In November 2012, the Waxes filed a four-count complaint agains t Franklin alleging (1) a show caus e action pursuant to section 7 13.21, Florida Statutes (2012), for issuance of a summons requiring Franklin to show ca use why the claim of lien should not be vacated; (2) a fraudulent lien; (3) slander of title; and (4) breach of

contract. Franklin responded by simultaneously filing a motion to enforce arbitration, a motion to abate, a motion to dismiss for failure to comply wi th Florida Rule of Civil Procedure 1.130(a) and for failing to file presuit notice requi red by section 558.004, Florida Statutes (2012), an answer and affirmative defenses, an d counterclaims for

foreclosure of lien and breach of contract. All motions were s et for a hearing. After the July 3, 2013, hearing the trial court granted, in part, Frankli n's motion to dismiss and allowed the Waxes to amend their complaint to include presuit n otice pursuant to

section 558.004.

1 In this opinion, we do not reach the issue of whether any of th e claims raised in the complaint are arbitrable.- 3 - In November 2013, the Waxes filed their amended complaint. Fra nklin responded by simultaneously filing its renewed motion to enforc e arbitration, renewed motion to abate, and answer and affirmative defenses to amended complaint. The trial court held a hearing on the motions on February 4, 2014. The W axes argued that Franklin waived its right to arbitrate by filing counterclaims and arguing the motion to dismiss during the first hearing. The trial court agreed with the Waxes and concluded that Franklin waived its right to arbitration. The trial court 's principal reason for finding that Franklin waived its right to arbitrate was Franklin's fili ng of a counterclaim for

breach of contract. The court c oncluded that Franklin had soug ht affirmative relief from the court by filing that claim and sought to enforce the contra ct. The court entered its order denying Franklin's motion to compel arbitration and motio n to abate. We review a trial court's order denying a motion to compel arbi tration de novo. See Waterhouse Constr. Group, Inc. v. 5891 SW 64th St., LLC, 949 So. 2d 1095, 1097 (Fla. 3d DCA 2007). We note that Florida public policy fa vors arbitration. See SCG Harbourwood, LLC v. Hanyan, 93 So. 3d 1197, 1199 (Fla. 2d D CA 2012). The contractual right to arbitration, however, is subject to waiver . See Mora v. Abraham Chevrolet-Tampa, Inc., 913 So. 2d 32, 34 (Fla. 2d DCA 2005). A party may waive its contractual right to arbitrate by actively participating in a l awsuit or taking action inconsistent with that right. Waterhouse, 949 So. 2d at 1100. The Waxes argue that Franklin acted inconsistently with its right to arbitrate by fi ling the counterclaims and rely on Coral 97 Associates, Ltd. v. Chino Electric, Inc., 501 So. 2 d 69 (Fla. 3d DCA 1987), for support.- 4 - In Coral, the parties entered into a contract where Chino agree d to make certain improvements to property owned by Coral. Id. at 70. T he parties agreed to arbitrate disputes. Id. Event ually, Chino instituted an actio n against Coral for

foreclosure of a mechanic's lien and breach of contract without requesting arbitration. Id. Coral filed a motion to dismiss the complaint arguing that Chino failed to state a cause of action and failed to comply with contractual provision s requiring arbitration. Id.

Coral also filed a counterclaim for breach of contract. Id. P rior to the hearing on the motion to dismiss, Coral filed a notice of taking Chino's depos ition. Id. The Third District held that Coral waived its right to arbitration by tak ing the inconsistent action of filing a counterclaim and noted that a party may waive arbitrat ion either by taking an active part in the litigation or by undertaking an action incon sistent with that right. Id. However, a year after deciding Coral, the Third District clarif ied its holding in Coral when it decided Concrete Design Structures, Inc. v. P. L. Dodge Foundation, Inc., 532 So. 2d 1334 (Fla. 3d DCA 1988). In Concrete, the cou rt held that filing a counterclaim and motion to dismiss the complaint at the same ti me a motion to compel arbitration is filed did not constitute a waiver of the right t o arbitration. Id. at 1334-35. The court clarified that in Coral "it was the act of implementi ng discovery, following the simultaneous filings of the counterclaim and motions to arbitra te and dismiss, that was

held inconsistent with and thus a waiver of the arbitration rig ht." Id. See also Avid Eng'g, Inc. v. Orlando Marketplace Ltd., 809 So. 2d 1 (Fla. 5th DCA 2001) (holding that filing a counterclaim with a motion to arbitrate did not waive the right to arbitration). In light of the holdings in Concrete and Avid, we conclude that Franklin did not waive its contractual right to arbitrate by filing a counte rclaim simultaneously with its- 5 - motion to compel arbitration, motion to dismiss, and motion to abate. Franklin did not implement discovery. Franklin's filing of the counterclaims an d motion to dismiss at the same time as a motion to compe l arbitration is filed, without m ore, does not waive the contractual right to arbitrate. See Concrete, 532 So. 2d at 13 34. Accordingly, we reverse the order denying the motion to compel arbitration and the motion to abate pending arbitration and remand for proc eedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and CRENSH AW, JJ., Concur.