Full Opinion

Third District Court of Appeal State of Florida Opinion filed November 4, 2026. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D26-0402 Lower Tribunal No. 25-CA-965-M ________________ John L. Criswell, Appellant, vs. Heaven Bound Construction, LLC, etc., et al., Appellees. An Appeal from a non-final order from the Circuit Court for Monroe County, Mark H. Jones, Judge. Russo Lima Appellate Firm, P.A., and Elizabeth Koebel Russo for appellant. Jones Walker, LLP, and Matthew Maranges, and Lauren S. Rose, for appellees. Before FERNANDEZ, GORDO and BOKOR, JJ. GORDO, J. John Criswell appeals an order granting Heaven Bound’s motion to stay pending arbitration. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(I). 1 Because competent, substantial evidence supports the trial court’s finding that Heaven Bound did not act inconsistently with its arbitration right, we affirm. We review orders granting a motion to compel de novo but review a trial court’s waiver determination for competent, substantial evidence. See Concierge Auctions, LLC v. Coldwell Banker Residential Real Est., LLC, 394 So. 3d 119, 124 (Fla. 3d DCA 2024). “Courts resolve all doubts regarding waiver in favor of arbitration rather than against it, and the party seeking to avoid arbitration bears the heavy burden of proving waiver.” Id. at 124 n.2 (citation modified). “It is well-established that Florida law and public policy strongly favors arbitration[.]” MV Ins. Consultants v. NAFH Nat’l Bank, 87 So. 3d 96, 98 (Fla. 3d DCA 2012). “The right to arbitrate is based on contract and may be waived.” Metronet Techs., LLC v. United Fiber Works, LLC, 432 So. 3d 677, 680 (Fla. 5th DCA 2026). Whether a party has waived its right to arbitration is a fact- intensive inquiry determined under the totality of the circumstances. See 1 Fla. R. App. P. 9.130(a)(3)(I) allows for review of non-final orders that determine a party’s entitlement to arbitration. 2 Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005) (defining waiver in the context of the right to arbitrate as “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right”). Accordingly, the inquiry turns on whether a party’s conduct, considered as a whole, demonstrates an intent to relinquish its contractual right to arbitration. See Truly Nolen of Am., Inc. v. King Cole Condo. Ass'n, Inc., 143 So. 3d 1015, 1017 (Fla. 3d DCA 2014) (finding that waiver occurs by actions “inconsistent with the right to compel arbitration” and “the essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right”). This dispute arises in the context of construction lien law. Critically, the parties’ contract expressly contemplated that judicial proceedings may serve to preserve lien rights notwithstanding an agreement to arbitrate, providing in relevant part: XI. Mediation and Arbitration of Disputes: (a) Generally. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall, after the Parties first seek to mediate the dispute pursuant to Section XI(d) of this Agreement, be determined by arbitration . . . . 3 (b) An action before a court of competent jurisdiction for injunctive or other equitable relief, rather than before AAA, where permitted under Section XI(a) of this Agreement, does not waive any right to arbitrate . . . . Consistent with that agreement and after Criswell terminated the parties’ contract, Heaven Bound informed Criswell of its intent to pursue arbitration and filed suit to protect its construction lien claim. Immediately thereafter and prior to litigating the merits of its claim, Heaven Bound moved to stay after service was perfected while promptly demanding arbitration with the American Arbitration Association. Under the totality of circumstances, that conduct supports the trial court’s finding that Heaven Bound did not voluntarily and intentionally relinquish its arbitration right. See MV Ins. Consultants, 87 So. 3d at 99 (“[T]he determination of whether a particular dispute is subject to an arbitration provision necessarily rests on the intent of the parties.” (citation modified)). That finding is supported by competent, substantial evidence. See Concierge Auctions, LLC, 394 So. 3d at 124. Affirmed. 4