41
Fla. L. Weekly D2336aop of Form

Contracts
— Arbitration — Action by subcontractor against contractor alleging
contractor’s failure to make payments under contract — Trial court erred in
entering summary judgment for plaintiff subcontractor without ruling on
defendant contractor’s motion to compel arbitration

AMERICAN
EAGLE VETERAN CONTRACTING, LLC, Appellant, v. MARK D. EILAND AND ARCHITECTURAL
DRYWALL SYSTEMS, INC., Appellees. 5th District. Case No. 5D15-4483. Opinion
filed October 14, 2016. Appeal from the Circuit Court for Volusia County,
Sandra C. Upchurch, Judge. Counsel: Craig A. Brand, of The Brand Law Firm,
P.A., Orlando, for Appellant. No Appearance for Appellees.

(PER
CURIAM.) American Eagle Veteran Contracting, LLC (“American Eagle”), appeals
the trial court’s final order of summary judgment entered in favor of Mark D.
Eiland and Architectural Drywall Systems, Inc. (“Architectural Drywall”).1 American Eagle argues the trial court
erred in entering summary judgment against it without ruling on its motion to
compel arbitration. We agree.

According
to the complaint, American Eagle is a contractor on a larger project owned by
Kellogg, Brown, and Root. American Eagle subcontracted with Architectural
Drywall. Architectural Drywall claimed that American Eagle failed to make
payments under the contract and brought suit for breach of contract.2 In response, American Eagle filed a
motion to stay the proceedings pending arbitration, pursuant to Article 10 of
the contract.3 American Eagle did not file an answer
or any other pleading in response to the complaint. Subsequently, American
Eagle moved for a protective order preventing Architectural Drywall from
serving discovery until the trial court ruled on the motion to stay pending
arbitration.

Without
further discovery or pleadings from American Eagle, Architectural Drywall moved
for summary judgment based on the affidavit of Mark Eiland, the company’s
managing member. American Eagle responded by again filing a motion to stay the
proceedings, compel arbitration, and strike Architectural Drywall’s motion for
summary judgment. In response to an order to compel a joint status report,
American Eagle reiterated that its motion to compel arbitration remained
outstanding and explained that it would not file additional responses in order
to avoid waiving its right to arbitrate. Without ruling on the motion to compel
arbitration, the trial court entered final summary judgment in favor of
Architectural Drywall.

American
Eagle argues summary judgment was inappropriate because a genuine issue
remained as to whether arbitration was required, and the court had not ruled on
its outstanding motion to compel arbitration. See Fla. R. Civ. P.
1.510(c). In general, Florida public policy favors arbitration, Laizure v.
Avante at Leesburg, Inc., 44 So. 3d 1254, 1257 (Fla. 5th DCA 2010), approved
by 109 So. 3d 752 (Fla. 2013), and parties with an agreement have the right
to move to compel arbitration. § 682.03, Fla. Stat. (2014). Deciding whether a
dispute is subject to arbitration raises three issues: (1) whether there is a
valid agreement between the parties to arbitrate; (2) whether the specific
issue is subject to arbitration; and (3) “whether the right to arbitration was
waived.” Laizure, 44 So. 3d at 1257. A party may waive its right to
arbitration by actively participating in the lawsuit or by acting in a way that
is inconsistent with the right to arbitrate. Morrell v. Wayne Frier
Manufactured Home Ctr., 834 So. 2d 395, 397 (Fla. 5th DCA 2003).

We
find that the trial court erred in failing to rule on the motion to compel
arbitration prior to entry of summary judgment. See Grillo v. Raymond James
& Assocs., Inc., 524 So. 2d 1121, 1122 (Fla. 2d DCA 1988) (holding that
summary judgment was inappropriate without first considering outstanding motion
to compel arbitration). American Eagle has consistently insisted on its right
to compel arbitration, and nothing in the record establishes a waiver of that
right. Failing to rule on the motion to compel arbitration presented American
Eagle with a Hobson’s choice — either defend against summary judgment and
waive the right to arbitrate or accept final summary judgment against it. We
reverse the entry of summary judgment and remand for the trial court to rule on
American Eagle’s motion to compel arbitration.

REVERSED
and REMANDED. (TORPY, COHEN and WALLIS, JJ., concur.)

__________________

1Neither
Eiland nor Architectural Drywall filed a brief in this appeal.

2Architectural
Drywall further alleged that the parties had an oral agreement to extend the
rental of several pieces of equipment, at American Eagle’s expense, but that
American Eagle did not pay for the rental equipment.

3Article
10 provides, in relevant part:

DISPUTES AND ARBITRATION: Any controversy arising out of
this Agreement or a breach of it may be settled by arbitration under the rules
of the American Arbitration Association applicable to the construction industry
at CONTRACTOR’S option.om of Form