Keeping, and Losing, the Right to Arbitrate

An arbitration clause is a promise about where a fight will happen. Whether that promise holds often depends less on the words of the clause than on what the parties do in the first weeks after a dispute starts, and on who actually signed it.

On November 4, 2026, Florida's Third District Court of Appeal, which hears appeals from Miami-Dade and Monroe Counties, decided two cases that show both outcomes. In one, a contractor filed a lawsuit to protect its construction lien and still kept its right to arbitrate. In the other, two defendants tried to move a $10 million dispute to arbitration in London and failed. The company suing them had never signed the arbitration agreement, and the defendants offered no sworn evidence to close the gap.

Both decisions are new, and neither is final until the time for rehearing runs and any rehearing motion is decided. The principles the court applied, though, are not new. That is what makes the two cases useful together.

Suing to protect a lien did not waive arbitration

Criswell v. Heaven Bound Construction, LLC came out of a construction contract in Monroe County. The contract sent disputes to mediation and then to arbitration. It also said that an action in court "for injunctive or other equitable relief" does not waive the right to arbitrate.

After the owner terminated the contract, the contractor told him it intended to arbitrate. It then filed suit to protect its construction lien. Once the owner was served, and before litigating the merits, the contractor moved to stay the lawsuit and demanded arbitration with the American Arbitration Association. The owner argued that by suing, the contractor had given up arbitration. The trial court disagreed and stayed the case. The Third District affirmed.

Why a contractor has to sue at all. A Florida construction lien does not last indefinitely. It expires one year after the claim of lien is recorded unless the lienor files an action to enforce it within that year. § 713.22(1), Fla. Stat. A contractor with both a lien and an arbitration clause is in a bind. It can wait for arbitration and let the lien lapse, or sue and risk hearing that it chose court over arbitration.

How the court resolved it. Waiver of the right to arbitrate is "the voluntary and intentional relinquishment of a known right," and courts decide it on the totality of the circumstances. Doubts are resolved in favor of arbitration, and the party claiming waiver carries what the court called a "heavy burden." The court stressed that this contract itself anticipated court proceedings to preserve lien rights. The contractor announced arbitration first, sued only to protect the lien, and then promptly moved for a stay and filed its demand. That record supported the finding that it never meant to give up arbitration.

The sequence that kept the right to arbitrate

1. Contractor tells the owner it intends to arbitrate
2. Contractor files suit to protect its construction lien
3. After service, and before any merits litigation, it moves to stay and demands AAA arbitration

What the court relied on in finding no waiver:

• The contract said a court action for equitable relief does not waive the right to arbitrate
• The lawsuit preserved the lien; it did not litigate the merits
• The stay motion and the arbitration demand came promptly

An arbitration clause binds the parties who signed it

Martim v. Cattleya PTC went the other way. A Swiss private trust company sued a Florida LLC and its chief executive in Miami-Dade circuit court. It alleged that it transferred $10 million to them to invest on its behalf and that they never accounted for the money or returned it.

The defendants moved to dismiss and to compel arbitration. They pointed to a contract calling for arbitration before the International Chamber of Commerce in London. But that contract was between the LLC and the trust company's sole owner. The trust company was not a party to it. Neither was the chief executive, who signed for the LLC. And the owner who did sign was not a party to the lawsuit.

The trial court denied the motion, and the Third District affirmed. The court applied the general rule that a contract cannot be enforced against someone who is not a party to it and has not otherwise agreed to its terms. It allowed that a theory such as piercing the corporate veil might bind a nonsignatory in the right case. Nothing in this record supported one.

The defendants also made their own position harder. In the same motion, they argued that the trust company lacked standing to sue because it was not a party to the contract. A litigant who says the other side is a stranger to the contract will struggle to hold that stranger to the contract's arbitration clause.

Arguments are not evidence

The defendants in Martim had a second problem. They filed no affidavit and no sworn testimony. Instead, they asked the court to take judicial notice of pleadings from an earlier federal suit the trust company had filed and then dropped, including the defendants' own federal motion with the contract attached.

That was not enough. A motion to dismiss for forum non conveniens, the doctrine that lets a court send a case to a more convenient forum, generally must be supported by an affidavit or other sworn evidence unless the complaint shows the problem on its face. Unsworn statements in earlier pleadings ordinarily are not proof. Because the defendants offered no affidavits, the court also rejected their argument that they were entitled to an evidentiary hearing. And it noted that defendants sued where they live normally have a hard time persuading a court that their home forum is the inconvenient one.

The court dismissed the rest of the appeal outright. Florida's appellate rules allow an immediate appeal from some orders denying a motion to dismiss, such as those based on forum non conveniens or an arbitration agreement, but not from an order rejecting arguments about standing or a missing party. Those rulings ordinarily wait for an appeal from the final judgment.

Side by side, the two cases turn on the same few questions:

What businesses should do with these decisions

Most of the work happens before the dispute does. If your company signs contracts with arbitration clauses, or is about to rely on one, these steps follow from the two cases:

1. Write the carve-outs in. If your business depends on liens, injunctions, or other remedies only a court can give, say in the contract that seeking them does not waive arbitration. The contract in Criswell did, and the court relied on it.
2. Get the right signatures. Decide who you need bound: affiliates, the entity that will actually send or receive the money, and any individual whose conduct matters. Have each one sign, or join, in the capacity you intend. A signature on behalf of a company ordinarily binds the company, not the person signing.
3. Match the parties to the money. In Martim, the owner signed the contract, but the money and the lawsuit belonged to his trust company. If funds will move through a different entity, make that entity a party.
4. Move promptly once a dispute starts. Give written notice that you intend to arbitrate, keep any court filing to what preservation requires, and move to stay or compel without delay. Litigating the merits first invites a waiver argument.
5. Prove the facts under oath. A motion that depends on facts outside the complaint, such as who signed the contract or why another forum is better, should come with an affidavit and the signed agreement. Pleadings from another case are not a substitute.
6. Keep your positions consistent. Do not argue that the other side is a stranger to the contract while asking the court to hold it to that contract.

The bottom line

An arbitration clause is a contract right. Like other contract rights, it can be lost through conduct, and it may never reach the people you assumed it would. The contractor in Criswell kept its right because it did what its contract anticipated, in the right order. The defendants in Martim lost theirs because the clause did not reach the parties in front of the court and because they argued facts they never proved.

Saltiel Law Group handles business and commercial litigation in Florida's state and federal courts, including disputes over arbitration, and drafts the contracts that give rise to them. If you have an arbitration clause to draft, enforce, or resist, we are glad to talk it through.