NOT FINAL UNTIL TIME EXPIRES 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 

Appellees. 

 

 

SLEET, Judge 

Andre Franklin, Inc., and Andre Franklin, individually, (collectively referred 

to as "Franklin"), appeal the trial court's denial of a motion to compel arbitration and 
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motion to abate proceedings pending arbitration. Because Franklin did not take action 

inconsistent with its right to arbitration, it did not waive its 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 parties agreed to, among 

other things, arbitrate disputes. After five years a disagreement arose relating to 

payment. Franklin subsequently recorded a claim of lien against the Waxes' home. 

In November 2012, the Waxes filed a four-count complaint against 

Franklin alleging (1) a show cause action pursuant to section 713.21, Florida Statutes 

(2012), for issuance of a summons requiring Franklin to show cause 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 with Florida Rule of Civil 

Procedure 1.130(a) and for failing to file presuit notice required by section 558.004, 

Florida Statutes (2012), an answer and affirmative defenses, and counterclaims for 

foreclosure of lien and breach of contract. All motions were set for a hearing. After the 

July 3, 2013, hearing the trial court granted, in part, Franklin's motion to dismiss and 

allowed the Waxes to amend their complaint to include presuit notice pursuant to 

section 558.004. 

 

1In this opinion, we do not reach the issue of whether any of the claims 

raised in the complaint are arbitrable. 
- 3 - 

In November 2013, the Waxes filed their amended complaint. Franklin 

responded by simultaneously filing its renewed motion to enforce 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 Waxes 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 filing of a counterclaim for 

breach of contract. The court concluded that Franklin had sought affirmative relief from 

the court by filing that claim and sought to enforce the contract. The court entered its 

order denying Franklin's motion to compel arbitration and motion to abate. 

We review a trial court's order denying a motion to compel arbitration 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 favors arbitration. See 

SCG Harbourwood, LLC v. Hanyan, 93 So. 3d 1197, 1199 (Fla. 2d DCA 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 lawsuit 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 filing the counterclaims and rely 

on Coral 97 Associates, Ltd. v. Chino Electric, Inc., 501 So. 2d 69 (Fla. 3d DCA 1987), 

for support. 
- 4 - 

In Coral, the parties entered into a contract where Chino agreed to make 

certain improvements to property owned by Coral. Id. at 70. The parties agreed to 

arbitrate disputes. Id. Eventually, Chino instituted an action 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 provisions requiring arbitration. Id. 

Coral also filed a counterclaim for breach of contract. Id. Prior to the hearing on the 

motion to dismiss, Coral filed a notice of taking Chino's deposition. Id. The Third 

District held that Coral waived its right to arbitration by taking the inconsistent action of 

filing a counterclaim and noted that a party may waive arbitration either by taking an 

active part in the litigation or by undertaking an action inconsistent with that right. Id. 

However, a year after deciding Coral, the Third District clarified 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 court held that filing a 

counterclaim and motion to dismiss the complaint at the same time a motion to compel 

arbitration is filed did not constitute a waiver of the right to arbitration. Id. at 1334-35. 

The court clarified that in Coral "it was the act of implementing discovery, following the 

simultaneous filings of the counterclaim and motions to arbitrate and dismiss, that was 

held inconsistent with and thus a waiver of the arbitration right." 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 counterclaim 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 and motion to dismiss at the 

same time as a motion to compel arbitration is filed, without more, does not waive the 

contractual right to arbitrate. See Concrete, 532 So. 2d at 1334. 

Accordingly, we reverse the order denying the motion to compel arbitration 

and the motion to abate pending arbitration and remand for proceedings consistent with 

this opinion. 

Reversed and remanded. 

NORTHCUTT and CRENSHAW, JJ., Concur.