…..a trap for the unwary.
Waiver has been defined “as the voluntary and intentional relinquishment of aknown right or conduct which implies the voluntary and intentional relinquishment of a known right.” Raymond James Fin. Servs., Inc. v. Saldukas (Saldukas II), 896 So. 2d 707, 711 (Fla. 2005) [30 Fla. L. Weekly S115a]. The general definition of waiver is applicable to the right to arbitrate. Id. A right to arbitrate is like any other contract right and may be waived. Id. “Once 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.” Estate of Williams ex rel. Williams v. Manor Care of Dunedin, Inc.,923 So. 2d 615, 616-17 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D916a]. “In determining whether a party waived its right to arbitrate, the essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.” Ibis Lakes Homeowners Ass’n, Inc. v. Ibis Isle Homeowners Ass’n, Inc., 102 So. 3d 772, 731 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2832a] (quoting Roger E. Freilich, D.M.D., P.A. v. Shochet, 96 So. 3d 1135, 1138 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2185a] (internal quotation marks and citations omitted)). “Waiver of the rightdoes not necessarily depend on the timing of the motion to compel arbitration, but rather on the prior taking of an inconsistent position by the party moving therefor.” Paine, Webber, Jackson & Curtis, Inc. v. Fredray, 521 So. 2d 271 (Fla. 5th DCA 1988) (citing Ojus Indus. v. Mann, 221 So.2d 780 (Fla. 3d DCA 1969) and King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So. 2d 1235 (Fla. 4th DCA 1977)).
“A party claiming waiver of arbitration must demonstrate: 1) knowledge of an existing right to arbitrate and 2) active participation in litigation or other acts inconsistent with the right.” Inverrary Gardens Condo. I Ass’n, v. Spender, 939 So. 2d 1159, 1161 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2672a] (quotingBreckenridge v. Farber, 640 So. 2d 208, 211 (Fla. 4th DCA 1994)). For example, defending an action on the merits by answering a complaint without demanding arbitration constitutes a waiver. See Summit Brokerage Services, Inc. v. Parker, 912 So. 2d 41 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1990a];Marine Env’tl. Partners, Inc. v. Johnson, 863 So. 2d 423, 426 (Fla. 4th DCA 2003) [29 Fla. L. Weekly D119a].