In short: No waiver. The Third DCA held that LLCs did not give up their right to arbitrate whether they had a duty to defend members in bank foreclosure suits. Other litigation never raised that issue, and moving to compel arbitration and to transfer related cases was not inconsistent with arbitrating. The orders denying arbitration were reversed.
The Facts
IberiaBank sued several real estate LLCs, including 13 Parcels, LLC, on notes secured by mortgages, along with the individuals who had personally guaranteed the loans. One guarantor, Edie Laquer, managed a company that claimed a 10% interest in each LLC. Laquer and her company had also been named in the foreclosures, and her counsel demanded that the LLCs defend the suits on their behalf.
Two days later, the LLCs filed an arbitration demand under the arbitration clauses in their operating agreements, asking the arbitrator to decide whether they had a duty to defend given that they had no assets or income. Laquer’s side opposed arbitration, filed cross-claims in the foreclosure cases, and argued the LLCs had waived arbitration through years of related litigation, including a 2008 joint-venture lawsuit. The trial court denied the LLCs’ motions to compel arbitration.
The Decision
The Third District reversed. It found nothing showing the duty-to-defend question had been raised in the earlier joint-venture lawsuit or anywhere else; it first came up in the foreclosure cases. Within those cases, the LLCs had done nothing inconsistent with arbitration. Moving to dismiss the cross-claims and compel arbitration is how a party asserts the right, not how it waives it. A motion to transfer the related cases to one judge did not waive arbitration either, because it expressly preserved the arbitration and only asked that any award be handled by a single judge.
The court relied on Florida’s strong policy favoring arbitration and declined to consider a new waiver argument raised for the first time at oral argument.
The Law
A contractual right to arbitrate can be waived by actively participating in a lawsuit or acting inconsistently with that right (Raymond James Financial Services, Inc. v. Saldukas, 896 So. 2d 707 (Fla. 2005)). Waiver is measured issue by issue: litigating one dispute does not necessarily waive arbitration of a different one that surfaces later.
Motions to compel arbitration are governed today by the Revised Florida Arbitration Code, section 682.03, Florida Statutes, along with the Federal Arbitration Act when interstate commerce is involved. Doubts about the scope of an arbitration clause or whether it was waived are generally resolved in favor of arbitration.
Current law (2026): The Florida Arbitration Code was replaced by the Revised Florida Arbitration Code (ch. 682) effective July 1, 2013; motions to compel are now under s. 682.03.
Lessons
- If your operating agreement has an arbitration clause, demand arbitration as soon as a new dispute arises and before taking steps on the merits.
- Move to compel arbitration together with, or before, any motion to dismiss; do not answer or litigate the merits first.
- Waiver is claim-specific. Litigating one matter does not automatically waive arbitration of a different issue.
- Raise every argument in the trial court and in your brief. New arguments at oral argument will not be considered.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Sued for Years, Then Demanded Arbitration? Waiver Fight | 13 Parcels v. Laquer, 3D12-0608
Go Deeper
- A Developer, an Estate and a Family Trust Fight Over an LLC (Meehan v. Funk)
- Deed in Lieu Held in Escrow: Court Can Order Foreclosure Instead (Safe Harbor v. 9775 Dixie)
Frequently Asked Questions
How do you waive the right to arbitration in Florida?
By actively participating in litigation or acting inconsistently with the right to arbitrate, for example by answering on the merits, pursuing discovery, or seeking affirmative relief before demanding arbitration. Courts look at the specific claim. Filing a motion to compel arbitration, even combined with a motion to dismiss, is not a waiver.
Does being in a different lawsuit waive arbitration?
Not necessarily. In 13 Parcels v. Laquer, the Third DCA held that participating in other litigation did not waive arbitration of a duty-to-defend issue that was never raised in those cases. Waiver depends on whether the party litigated the same dispute it now wants to arbitrate.
Can I appeal an order denying a motion to compel arbitration in Florida?
Yes. Under Florida Rule of Appellate Procedure 9.130, an order determining entitlement to arbitration is an appealable non-final order. The appeal must be filed within 30 days of rendition, and appellate courts review the legal question of waiver or arbitrability without deference to the trial court.
Do LLC operating agreement arbitration clauses cover disputes between members?
Often yes, if the clause is broad, such as one covering any dispute not resolved by negotiation. Courts read the language of the clause and resolve doubts in favor of arbitration. Whether a particular dispute, such as a duty to defend members in third-party suits, is covered depends on the wording.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, contracts, closings and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
