author: SALTER, J.

text:
    Maria ARVELO, Petitioner, v. PARK FINANCE OF BROWARD, INC., Respondent.
    No. 3D09-377.
    District Court of Appeal of Florida, Third District.
    June 24, 2009.

      David G. Hutchison, Key Largo, for petitioner.
    Ronald R. Torres, for respondent.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

Maria Arvelo seeks a writ of certiorari to quash a circuit court appellate division order affirming a county court summary judgment against her. Her creditor, Park Finance of Broward, persuaded the trial court and appellate division that the repossession and sale of Ms. Arvelo’s automobile — the events which fixed Park Finance’s claim for a deficiency — marked the commencement of the applicable five-year statute of limitations. Concluding instead that the statute of limitations commenced when the loan defaulted and all sums due were automatically accelerated (a date more than five years before the deficiency lawsuit was filed in the county court), we grant the writ and quash the circuit court order.

Background

In December 1999, Ms. Arvelo purchased a Daewoo automobile for a cash price of $11,300, financing $9,100 of that amount and additional charges totaling $628.95. Her retail installment contract called for 48 monthly payments of $291.87 commencing in January 2000. Preprinted form language within the contract’s “Additional Terms and Conditions” specified that non-payment of any amount due would constitute a default, causing the full remaining amount of indebtedness to become “immediately due and payable.”

Ms. Arvelo defaulted in payment in March 2002. Park Finance repossessed the vehicle and sold it for $2,221.41 on August 7, 2002. After subtracting $464 from those proceeds for “repossession and liquidation expenses,” Park Finance computed a deficiency balance of $6,020.05.

For reasons that are not disclosed by the record, Park Finance did not file its county court complaint to collect the alleged deficiency until May 29, 2007. Park Finance alleged that Ms. Arvelo was liable for the deficiency amount plus accumulated interest at 18%, bringing Park Finance’s total claim against her to approximately $10,800 plus costs.

In her answer and affirmative defenses, Ms. Arvelo asserted that the statute of limitations had expired in March, 2007, and that the Park Finance lawsuit for a deficiency was barred. In its reply to the affirmative defenses and its motion for summary judgment, Park Finance contended that its cause of action for the deficiency did not accrue until Ms. Arvelo breached a different provision of the retail installment contract, “Buyer agrees to pay any deficiency allowed by law,” i.e., in August 2002. Under Park Finance’s analysis, therefore, its May 2007 complaint was timely.

The county court agreed, and judgment was entered against Ms. Arvelo. The circuit court appellate division affirmed, and Ms. Arvelo’s petition to this court followed.

Analysis

In a second-tier certiorari review such as this, we consider whether the circuit court afforded procedural due process (which it did, in this case) and whether it departed from the essential requirements of law. Miami-Dade County v. Omni-point Holdings, Inc., 863 So.2d 195, 199 (Fla.2003).

That portion of an indebtedness which is sought as a “deficiency” following a creditor’s disposition of personal property held as collateral is merely part of a debt evidenced by a promissory note or an installment contract. In this case, all of that indebtedness had, in fact, become due upon the March 2002 default and the automatic acceleration of the debt as specified in the form installment contract. Upon the occurrence of that event, Park Finance’s cause of action for breach of contract had fully accrued, and the five-year statute of limitations began to run. We reject the argument that her post-repossession failure or refusal to pay the deficiency “reset the clock” or allowed some new cause of action to accrue.

Park Finance relies principally on the case of Chrestensen v. Erogest, Inc., 906 So.2d 343 (Fla. 4th DCA 2005), holding that a cause of action for deficiency in a real estate foreclosure action does not accrue until there is a final judgment of foreclosure and a sale of the mortgaged property. As noted in that case, however, there is a separate statute allowing a mortgagee to bring a separate action to recover a deficiency. In the case of a secured creditor disposing of personal property, however, no such statute or separate cause of action exists. There is but one indebtedness, and it is evidenced by a single contract. Upon the early maturity of the debt and breach of the contract, Park Finance’s cause of action accrued. From that point, March 2002, Park Finance had five years within which to exercise its remedies: a collection suit, a repossession and non-judicial sale, a claim for deficiency, or otherwise.

Park Finance also argues that the statute of limitations was tolled by “the sale of the collateral and resulting partial payment,” under section 95.051(l)(f), Florida Statutes (2002). But the statute on tolling does not expressly apply to those unilateral actions by a creditor that may reduce an indebtedness. Ms. Arvelo did not make a payment of principal or interest to Park Finance after March 2002; rather, Park Finance unilaterally exercised remedies and reduced the debt. The courts considering this scenario have held that tolling applies to voluntary payments by the obligor, not to involuntary actions and reductions in indebtedness by the creditor. See, e.g., Zaks v. Elliott, 106 F.2d 425 (4th Cir.1939); Jacksonville Am. Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 845, 197 So. 672, 677 (1940).

Conclusion

Statutes of limitation are intended to encourage the enforcement of legal remedies before time dilutes memories, witnesses move to greener pastures, and parties pitch out (or “delete,” in the electronic age) old records. Under Park Finance’s theory, the statute of limitations applicable to a secured loan in Florida would be almost ten years rather than five years. A creditor could hold collateral for almost five years after default, then liquidate it, and then wait another five years to sue for a deficiency.

Deficiency claims, particularly those involving consumers, are essentially a sword of Damocles, an inchoate anxiety, a second shoe that might or might not drop. Collection lawsuits precipitate adverse credit reports, and those can further hamper a consumer’s ability to get on with her life. Consumers should not be exposed to a double ration of worry. A creditor holding a security interest in personal property can and should initiate its various remedies within the generous five-year period allowed by our Legislature. For all these l'easons, we conclude that the statute of limitations was not correctly applied, that the petition for certiorari should be granted, and that the order below should be quashed.

Petition granted.

      .§ 95.11(2)(b), Fla. Stat. (2002). Although Ms. Arvelo argued that Park Finance's deficiency claim was governed by the four-year statute of limitations in section 95.11(3)(Q or (p), the circuit and county courts correctly rejected that claim. See Barnett Recovery Corp. v. Fornasari, 655 So.2d 1274 (Fla. 2d DCA 1995).

      . The complaint mistakenly identified her as Maria "Aruelo.'' Subsequent pleadings and the orders under review used the correct last name.

      . Ms. Arvelo’s affirmative defenses alleged that this was the date of default, and Park Finance's reply and summary judgment papers did not controvert the allegation.

      . § 702.06, Fla. Stat. (2007). Deficiency claims pertaining to non-judicial sales of personal properly, in contrast to foreclosure sales of real property, are subject to article 9 of the Uniform Commercial Code: See §§ 679.608.615, Fla. Stat. (2007).

      . “According to the great weight of authority, an application to the debt by the creditor of the proceeds from the sale of collateral will not have this effect [tolling] because the payment is not voluntary on the part of the debt- or". The court went on to observe that if such a reduction tolled the limitations period, the borrower's obligation "could be kept alive for an indefinite period by judiciously timed sales of portions of the collateral, and the statute of limitations would have no bearing at all." Zaks, 106 F.2d at 427 (citations omitted).

      . Because this case does not involve a deficiency claim after a mortgage foreclosure and sale of real property, we do not decide whether or not we would follow, in an appropriate case, the Fourth District's analysis in Chres-tensen.


source: Caselaw Access Project

author: BROWNING, J.

license: Public Domain

text:
    Tony Gerald GOLDEN and His Wife, Tina M. Golden, Appellants, v. Davey L. WOODWARD, Jr., as Personal Representative of the Estate of Davey L. Woodward, deceased, Appellee.
    No. 1D08-3324.
    District Court of Appeal of Florida, First District.
    June 24, 2009.

      Brandon J. Young, Bonifay, for Appellants.
    Russell S. Roberts, of Roberts, Roberts & Roberts, Marianna, for Appellee.
   BROWNING, J.

Mr. and Mrs. Golden appeal a final judgment finding that the plaintiff, Davey L. Woodward, Jr., in his capacity as personal representative of the Estate of Davey L. Woodward, Sr., is entitled to an “equitable lien” or “vendor’s lien” in the amount of $89,000.00 against Appellants on certain real property that is the subject of an earlier agreement between Appellants and Mr. Woodward, Sr. Finding neither a misapplication of the law nor an abuse of discretion in any of the challenged rulings, we affirm the final judgment. See Edelson v. Quinn, 123 Fla. 670, 167 So. 535 (1936) (holding that where vendees, a husband and wife, received the deed to realty and took and retained possession without paying the full purchase price and without giving security for the payment thereof, a court of equity could enforce a vendor’s lien upon that part of the property the court could reach).

Mr. Woodward, Sr., and Appellants signed a January 28, 2003, written “Agreement to Sell Personal Real Estate Property” (2003 Agreement) by which Mr. Woodward sold his property to Appellants, who were his next-door neighbors in Graceville, Florida. Under the express terms of the 2003 Agreement, Mr. Woodward contracted to sell his home and approximately 7.8 acres of land to Appellants for a purchase price of $109,000.00, including all interest and fees. The 2003 Agreement provided that Appellants would pay Mr. Woodward $550.00 a month for seven years (totaling $46,200.00), beginning on March 1, 2003, and ending on March 1, 2010. After the expiration of the seven-year period, Appellants would tender a balloon payment— $62,800.00, the remaining balance of the purchase price — to Mr. Woodward.

Although the 2003 Agreement stated there would be a “transfer of deeds” on or before February 15, 2003, no deeds wex-e ever transferred prior to, or within a year of, that date. Significantly, the 2003 Agreement provided that in the event of Mr. Woodward’s death, Appellants would continue making payments to his estate. Also, the 2003 Agreement barred Appellants from placing any liens on the propei'ty until the full $109,000.00 purchase price was paid to the seller. After the execution of the 2003 Agreement, Mr. Woodward vacated the property; Appellants took possession and commenced making monthly payments in March 2003. However, after entering the 2003 Agreement, Appellants sometimes were delinquent in their monthly payments to Mr. Woodward.

At Mr. Woodward’s prompting, the parties executed a written Warranty Deed to the subject property on April 2, 2004, but Appellants did not record it until mid-June 2005, ultimately at the behest of Mr. Woodward, who no longer wanted to receive the tax notices. After Mr. Woodward delivered the Warranty Deed to Appellants, they continued to make payments to him. In mid-July 2005, or about one month after recording the Warranty Deed, Appellants executed a first mortgage of $55,000.00 on the subject property. Mr. Woodward died in June 2006. In mid-September 2006, Appellants placed a $155,000.00 mortgage on the property, which was used also to satisfy the initial mortgage.

After the execution of the 2003 Agreement, Mr. Woodward had become aware that Appellants were making improvements on the property. Upon further investigation, he discovered that Appellants had executed a first mortgage on the property, despite the express provision in the 2003 Agreement that the buyers would not allow any liens on the property until the full purchase price was paid to the seller. In May 2006, Mr. Woodward filed a four-count complaint against Appellants. Upon Mr. Woodward’s death a month later, Mr. Woodward, Jr., in his capacity as the personal representative of his father’s estate, was substituted as the plaintiff, and Appellants stopped making payments on the property.

The complaint alleged that Appellants had taken advantage of Mr. Woodward, Sr., from their position of trust, and that the estate was still owed payments under the express terms of the 2003 Agreement. Count One of the complaint alleged an action in equity to impose a resulting trust or a constructive trust on the property because Mr. Woodward, Sr., was elderly and did not understand the ramifications of his conveyance of the property without a mortgage.

Count Two, which is the only relevant claim to the issues raised in this appeal, alleged an action in equity to impose an “equitable lien” on the property based on the circumstances that Appellants held positions of trust and confidence with Mr. Woodward, who was elderly and suffering from a serious medical condition. This count alleged that Appellants currently were in default of their payments to be made to Mr. Woodward pursuant to the 2003 Agreement. The basis of the claim for an equitable lien on the property was that Mr. Woodward had deeded the property to Appellants in the good-faith belief that Appellants would continue to make monthly payments to him, and then to his estate after his death. This count alleged that the transfer of the property from Mr. Woodward to Appellants without the benefit of a mortgage, plus the cessation of payments by Appellants to Mr. Woodward, would result in “an inequitable windfall” for Appellants by the substantial value of their property without adequate remuneration to Mr. Woodward. Count Two alleged that Appellants are estopped by their actions and conduct, which constitute a “fraud,” and by their acceptance of the benefits of Mr. Woodward’s execution of a deed to the property to them and their failure to make full payments pursuant to the 2003 Agreement. This count alleged that Mr. Woodward had no adequate remedy at law.

Count Three alleged an action for the equitable reformation of the Warranty Deed. The final count alleged a claim for rescission or cancellation of the Warranty Deed.

In defending against Appellee’s lawsuit, Appellants asserted that in Api'il 2004, Mr. Woodward had contacted them and ex-pi'essed a desii'e to make a significant change in the terms of the 2003 Agreement. Specifically, Appellants alleged that Mr. Woodward told them that he would deed the subject property to them if they would continue to pay him $550.00 a month until his death, upon which event their payment obligations would cease altogether. According to Appellants, the basis for this change was that Mr. Woodward had fallen out with his childi'en and wanted to avoid any potential negative intei'actions between Appellants and Mr. Woodward’s childi'en after his death. Given an objection based on the statute of frauds, the trial court allowed a proffer but ultimately excluded evidence suggesting that Appellants and Mr. Woodward, Sr., had an oral agreement that significantly altered the terms and Appellants’ responsibilities under their written 2003 Agreement.

In its final judgment, the trial court found no evidence either of Mr. Woodward, Sr.’s, incapacitation or of Appellants’ undue influence or fraud. However, the court concluded that Appellants had breached the 2003 Agreement with Mr. Woodward, Sr., when they mortgaged the subject property and ceased making payments on the property before satisfying the full purchase price. The court determined that the equities lay with the estate, which is entitled to an equitable lien or vendor’s lien on the property for $89,000.00, the sum due under the 2003 Agreement. The court entered a judgment in favor of Mr. Woodward’s estate as to Count Two, and judgment in favor of Appellants on the other claims. This appeal ensued.

Appellants assert that the trial court erred, first, pursuant to Conidaris v. Cresswood Serv., Inc., 779 So.2d 518, 519 (Fla. 2d DCA 2000), by granting relief on a claim for a “vendor’s lien” because no such claim was either pled in the complaint or tried by the parties’ consent; second, by granting an equitable lien in the absence of a finding of Appellants’ fraud or misconduct in procuring the April 2004 Warranty Deed from Mr. Woodward, Sr.; and, third, by finding that recovery based on an “equitable lien” theory is not barred by the doctrine of merger.

As to the first issue, Count Two alleged that Appellants were estopped by their actions and conduct constituting “fraud,” and that Mr. Woodward, Sr., who did not understand the ramifications of his actions, was misled by Appellants into executing the April 2004 Warranty Deed. Although the general relief requested in Count Two is an “equitable lien,” the trial court granted a “vendor’s lien” in favor of Mr. Woodward’s estate. Appellants argue that if they had received notice that Mr. Woodward, Sr., was asserting the right to a vendor’s lien, they could have presented evidence and defenses {e.g., laches) relating to that claim.

This argument is without merit. “Every complaint shall be considered to demand general relief.” Fla. R. Civ. P. 1.110(b). Thus, the court must “look to the facts alleged, the issues and proof, and not the form of the prayer for relief to determine the nature of the relief which should be granted.” Circle Finance Co. v. Peacock, 399 So.2d 81, 84 (Fla. 1st DCA 1981). “[Generally, courts of equity have the fullest liberty in molding decrees to the necessity of the occasion, regardless of the prayer.” Singer v. Tobin, 201 So.2d 799, 800-01 (Fla. 3d DCA 1967).

An “equitable lien” is “[a] right, enforceable only in equity, to have a demand satisfied from a particular fund or specific property, without having possession of the fund or property.” Black’s Law Dictionary 942 (8th ed. 2004); see Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 128-29 (1925); Jennings v. Beeman Inv. Co., 177 So.2d 66, 68 (Fla. 2d DCA 1965). “Equitable liens become necessary on account of the absence of similar remedies at law.” Jones, 106 So. at 128-29; see Tucker v. Prevatt Builders, Inc., 116 So.2d 437, 439 (Fla. 1st DCA 1959). A “vendor’s lien,” also known as a “grantor’s lien,” is “a creature of equity, a lien implied to belong to a vendor for the unpaid purchase price of land, where he has not taken any other lien or security beyond the personal obligation of the purchaser.” Special Tax Sch. Dist. No. 1 of Orange County v. Hill-man, 131 Fla. 725, 179 So. 805, 809 (1938); see Bowen v. Grace, 64 Fla. 28, 59 So. 563, 564 (1912); McKinnon v. Johnson, 54 Fla. 538, 45 So. 451, 452 (1907); Rems v. Williamson, 51 Fla. 529, 41 So. 449, 450-51 (1906). “The lien does not result from agreement, but is given by implication of law, as an incident to the debt, and is enforceable in equity where the vendor is entitled to it.” Hillman, 179 So. at 809. Florida courts have recognized that “a vendor’s lien is merely a particular form of equitable lien which has long been recognized.” Id. at 810; see also Lake Placid Holding Co. v. Paparone, 508 So.2d 372, 377 (Fla. 2d DCA 1987); Oliver v. Mercal-di, 103 So.2d 665, 668 (Fla. 2d DCA 1958).

Appellants concede that a vendor’s lien often is considered a type of equitable lien, and that Florida courts have used the terms “vendor’s,” “equitable,” and “grant- or’s” interchangeably to describe identical or very similar types of liens on real property. See Paparone, 508 So.2d at 377. Given the Florida courts’ recognition that a “vendor’s lien” is one type of “equitable lien,” id., we conclude that, in the context of his specific pleadings in Count Two of the complaint, Mr. Woodward’s request for an “equitable lien” upon the property reasonably should have put Appellants on notice that a “vendor’s lien” was being requested. See Moorhead v. Moorhead, 159 Fla. 470, 31 So.2d 867, 868 (1947) (stating that “the character of a pleading is to be determined by its contents”); Peacock, 399 So.2d at 84. Thus, the trial court did not rule in Appellee’s favor on an issue that had not been adequately pled and litigated.

In their second issue, Appellants assert that the trial court erred in granting an equitable lien in favor of Mr. Woodward’s estate without a finding of Appellants’ fraud or misconduct. In Rinker Materials Corporation v. Palmer First National Bank & Trust Company of Sarasota, 361 So.2d 156 (Fla.1978), the Supreme Court of Florida held that “a party may successfully maintain a suit under the theory of equitable estoppel only where there is proof of fraud, misrepresentation, or other affirmative deception.” Id. at 159; see also Armetta v. Clevetrust Realty Inv., 384 So.2d 55, 56 (Fla. 4th DCA 1980). Appellants argue that because the trial court found no basis for the allegations of fraud or misconduct by Appellants, no legal basis was proven for an equitable lien.

The deficiency in this argument is that Count Two did not seek an equitable lien based on equitable estoppel; rather, the claim is based on unjust enrichment. “[T]he doctrine [of unjust enrichment] is a recognition that a person is accountable to another on the ground that if the former were not required to do so, he would unjustly benefit, or the other would unjustly suffer loss.” Peacock, 399 So.2d at 84. Thus, “[t]he basis of equitable liens may be estoppel or unjust enrichment.” Plotch v. Gregory, 463 So.2d 432, 436 n. 1 (Fla. 4th DCA 1985); see also Torres v. Reimondez, 979 So.2d 1074 (Fla. 3d DCA 2008); Spridgeon v. Spridgeon, 779 So.2d 501, 502 (Fla. 2d DCA 2000); Gordon v. Flamingo Holding P’ship, 624 So.2d 294, 297 (Fla. 3d DCA 1993); Blumin v. Ellis, 186 So.2d 286, 294 (Fla. 2d DCA 1966) (recognizing that an equitable lien rests on the “maxim that equity will deem as done that which ought to have been done”). “In Florida, an equitable lien is an appropriate remedy to prevent unjust enrichment between family members or those with close personal relationships.” Della Ratta v. Della Ratta, 927 So.2d 1055, 1059 (Fla. 4th DCA 2006); see also Sonneman v. Tuszynski, 139 Fla. 824, 191 So. 18 (1939) (concluding that plaintiff was entitled to an equitable lien on defendant’s real property for money plaintiff had advanced to defendant and for her labor and services performed, where plaintiff acted as defendant’s housekeeper and rendered services to defendant under an agreement that defendant would support plaintiff during plaintiffs lifetime).

To state a cause of action based on unjust enrichment to justify the imposition of an equitable lien, Appellee had to meet the following requirements:

To state a claim for unjust enrichment, a plaintiff must plead the following elements: 1) the plaintiff has conferred a benefit on the defendant; 2) the defendant has knowledge of the benefit; 3) the defendant has accepted or retained the benefit conferred; and 4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.

Della Ratta, 927 So.2d at 1059; see also Hillman Constr. Corp. v. Wainer, 636 So.2d 576, 577 (Fla. 4th DCA 1994). “An action for ‘unjust enrichment’ exists to prevent the wrongful retention of a benefit, or the retention of money or property of another, in violation of good conscience and fundamental principles of justice or equity.” Henry M. Butler, Inc. v. Trizec Prop., Inc., 524 So.2d 710, 711 (Fla. 2d DCA 1988). The trial court found that the requirements of unjust enrichment were satisfied based on the sale of the home and acreage to Appellants for $109,000.00 and Appellants’ knowledge and receipt of the benefit, in that they entered the 2003 Agreement and moved into the home on the real property. The trial court recognized that it would be inequitable to allow Appellants to receive the benefit for $89,000.00 less than the agreed-upon price.

Appellants have misplaced their reliance upon Rinker Materials and other “equitable estoppel” decisions to assert that it was reversible error, under the instant facts, to impose an equitable lien upon the real property without proof of Appellants’ fraud or misconduct, for Florida courts have long held that unjust enrichment is a different ground for imposing an equitable lien. See Spridgeon, 779 So.2d at 502; Plotch, 463 So.2d at 436 n. 1; Peacock, 399 So.2d at 84. Competent substantial evidence supports the trial court’s finding that, because it would be inequitable to allow Appellants to retain the property without paying a substantial amount of the agreed-upon price, Mr. Woodward’s estate is entitled to the equitable relief granted. Appellants have not shown an abuse of discretion in the decision to place a vendor’s lien on the subject property. See Randazzo v. Randazzo, 980 So.2d 1210, 1213 (Fla. 3d DCA 2008) (finding no abuse of discretion in trial court’s imposing an equitable lien).

Appellants’ final argument is that the 2003 Agreement merged with or was subsumed into the 2004 Warranty Deed, thereby precluding Appellee from recovering under an “equitable lien” theory based on Appellants’ having breached the terms of the 2003 Agreement. “The general rule is that all preliminary agreements and understandings relative to the sale of land usually merge into the deed of conveyance.” Opler v. Wynne, 402 So.2d 1309, 1311 (Fla. 3d DCA 1981); see Rubell v. Finkelstein, 679 So.2d 889 (Fla. 3d DCA 1996). However, this rule is not absolute.

The rule that acceptance of a deed tendered in performance of a contract to convey land merges or extinguishes the covenants and stipulations contained in the contract does not apply to those provisions of the antecedent contract which the parties do not intend to be incorporated in the deed, or which are not necessarily performed or satisfied by the execution and delivery of the stipulated conveyance. Contractual provisions as to considerations to be paid by the purchaser are ordinarily not merged in the deed and, accordingly, evidence of such contractual provisions is admissible to show what consideration is to be paid by the purchaser although a deed has been accepted.

Milu, Inc. v. Duke, 204 So.2d 31, 33 (Fla. 3d DCA 1967); see Rubell, 679 So.2d at 889. “There can be no merger at law, without a union of titles in the same person; nor, in equity unless, also, there is an express or presumed intention on the part of those concerned in the transaction that it should operate as a merger.” Polk Bond & Mortgage Co. v. Dwiggins, 109 Fla. 443, 147 So. 855, 857 (1933). That is, one must look at the intent and conduct of the parties.

In the instant case, competent substantial evidence, which the trial court accepted, indicated that the pax-ties never intended or expected the 2004 Warranty Deed to supersede the compensation provisions set forth in the 2003 Agreement. First, Mrs. Golden testified that the deed was in Appellants’ possession for over a yeax-, during which they did not record it. The Warranty Deed was x-ecorded only after Mr. Woodward, Sr., advised Appellants that it had to be recorded because “there’s something to the tax bill.” When they went to record the Warranty Deed, Appellants told an employee at the recording office that Appellants had to continue paying $550.00 a month for a certain time, after which they would have to make a balloon payment. Evidence was adduced that Appellants contacted the recording office after the death of Mr. Woodward, Sr., to ascertain where the continuing payments on the property should be made. This cumulative evidence, along with the language in the 2003 Agreement and 2004 Warranty Deed, supports the conclusion that the obligations under the 2003 Agreement were intended to remain binding and did so, and that Appellants knew about their continuing obligation to make payments to the estate after Mr. Woodward, Sr., died.

Given these facts in the record, the trial court had a proper basis to conclude that Appellants have a continuing obligation to make payments after Mr. Woodward, Sr.’s, death, and that the 2004 Warranty Deed did not merge with the 2003 Agreement so as to terminate Appellants’ obligations to continue making payments upon the death of Mr. Woodward, Sr. Thus, the doctrine of merger does not preclude the imposition of an equitable lien on the subject property-

For all these reasons, we conclude that Appellants have not proven any reversible error in the trial court’s rulings granting a vendor’s lien in favor of Mr. Woodward’s estate. Accordingly, we AFFIRM the final judgment.

HAWKES, C.J., and VAN NORTWICK, J., concur.


text:
    Gerald David ODOM, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-6422.
    District Court of Appeal of Florida, First District.
    June 24, 2009.

      Nancy A. Daniels, Public Defender; and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Gerald David Odom (Appellant) appeals an order revoking his probation based on findings that he willfully, substantially violated three general conditions of probation. Concluding that the record does not demonstrate violations of Conditions (1) and (2), we reverse the revocation order and remand for the trial court to strike these findings and to determine whether the violation of Condition (8) alone justifies the revocation of probation and imposition of the same sentence.

Procedural Histoi'y

In Circuit Court Case No. 2004-CF-5240, Appellant was charged with burglary of an unoccupied dwelling, dealing in stolen property, and petit theft. In Circuit Court Case No. 2005-CF-0382, he was charged with driving while his driver’s license was revoked as a habitual offender. He pled no contest to petit theft and the lesser-included offenses of trespass and grand theft ($300.00 or more) in the 2004 case and to the charged offense in the 2005 case. On April 29, 2005, the trial court accepted the plea and sentenced Appellant, in the 2004 case, to 12 months’ probation on two counts and to 36 months’ probation for grand theft, all of which were to run concurrently. In the 2005 case, Appellant was sentenced to 12 months’ probation, to be served concurrently with the other case. In accordance with the terms and conditions set forth in section 948.06, Florida Statutes (2005), the following are among Appellant’s 22 general conditions of probation:

(1) Each month you will make a full and truthful report to your Probation Officer on the form provided for that purpose.
(2) You will pay to the State of Florida the amount of $50.00 per month toward the cost of your supervision, unless otherwise waived in compliance with Florida Statutes.
(8) You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Officer, and allow the Officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions he may give you.

On August 24, 2007, an affidavit was filed alleging violations of General Conditions (1), (2), (8), and Special Condition (17). After a hearing, where Appellant was represented by counsel, the trial court orally announced that Appellant willfully, substantially had violated General Conditions (1), (2), and that part of (8) requiring him to report to probation every month between the first and fifth day of the month. The court revoked Appellant’s probation and sentenced him to concurrent terms of 30 months’ incarceration for the two felonies and to time served for the misdemeanors. The court decided not to base the revocation on Appellant’s failure to satisfy his community-service requirements in a timely manner, for Appellant actually completed his service belatedly. Appellant filed a timely notice of appeal.

Subsequently, Appellant filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct purported sentencing errors, in which he specifically challenged the trial court’s three grounds for revoking his probation. The court entered an order granting the motion as to a fourth (jurisdictional) claim and directing that the judgment and sentence be corrected to reflect that the violation of probation and sentence applied only to Count Two (grand theft) of the 2004 case; the order set aside the sentence as to the 2005 case. A corrected judgment and sentence was issued. The trial court denied the remaining three claims, concluding that they were not appropriately before the court and citing Jackson v. State, 983 So.2d 562 (Fla.2008).

Standard of Review

An order revoking probation is reviewed for an abuse of discretion. State v. Carter, 835 So.2d 259, 262 (Fla.2002) (noting that the appellate court determines “whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that [appellant’s] violation was both willful and substantial”). To trigger revocation of probation, a violation must be willful and substantial. Burgin v. State, 623 So.2d 575, 576 (Fla. 1st DCA 1993). Reasonable efforts to comply with a condition of probation cannot be deemed a willful violation. Van Wagner v. State, 677 So.2d 314, 317 (Fla. 1st DCA 1996). In a revocation proceeding, the State must prove its case by a preponderance of the evidence. Hopewell v. State, 680 So.2d 600 (Fla. 2d DCA 1996). In very rare circumstances, a trial judge exceeds the broad limits of discretion and commits fundamental error, ie., error that “reaeh[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error,” in which instances no contemporaneous objection is required. Reed v. State, 837 So.2d 366, 370 (Fla.2002) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)).

Preservation of Errors Alleged on Direct Appeal

Three potential avenues exist for this Court to consider the merits of the issues raised by Appellant on dii’ect appeal. First, “most trial court errors are subject to the contemporaneous objection rule.” Jackson, 983 So.2d at 567-68. As the court explained in Castor v. State, 365 So.2d 701, 703 (Fla.1978):

The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually. To meet the objectives of any contemporaneous objection rule, an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.

In a similar vein, the Supreme Court of Florida stated later:

The requirement of contemporaneous objection thus not only affords trial judges the opportunity to address and possibly redress a claimed error, it also prevents counsel from allowing errors in the proceedings to go unchallenged and later using the error to a client’s tactical advantage.

F.B. v. State, 852 So.2d 226, 229 (Fla.2003). “Errors that have not been preserved by contemporaneous objection can be considered on direct appeal only if the error is fundamental.” Jackson, 983 So.2d at 568. Like the record in Jackson, the instant record unequivocally demonstrates that Appellant’s counsel did not make a contemporaneous, specific objection during the revocation hearing to any of the trial court’s rulings challenged in this appeal.

Appellant notes that “a defendant has several different options available to raise sentencing errors.” Id. Therefore, a second option exists if any of the three issues on appeal constitute a “sentencing error” as contemplated by rule 3.800(b)(2). If so, then pursuant to Jackson, the absence of a timely objection at the revocation hearing required Appellant to preserve the issue by filing a post-sentence motion under rule 3.800(b)(2), which he did. Jackson, 983 So.2d at 567-68; Boyd v. State, 912 So.2d 1293 (Fla. 2d DCA 2005) (concluding that appellant preserved issue challenging the evidentiary basis for imposition of $450 in court costs and $128 in investigative costs by filing a rule 3.800(b)(2) motion); Jones v. State, 898 So.2d 209 (Fla. 2d DCA 2005) (concluding that filing a rule 3.800(b)(2) motion preserved the issue of the trial court’s failure to specify the particular conditions that were grounds for probation revocation).

The third option arises where the error is not a “sentencing error” and no contemporaneous, specific objection was made. In such instances, no rule 3.800(b) motion is necessary to preserve the error, but the district court of appeal will apply the stringent “fundamental error” rule. Jackson, 983 So.2d at 567. Although Appellant contends that his three claims constitute sentencing errors of the type contemplated in Jackson and cognizable in a rule 3.800(b)(2) motion, the State correctly responds that these claims are not, in fact, sentencing errors. Rather, Appellant’s claims relate to the guilt phase of the revocation proceedings, not to the ultimate sanctions imposed. Jackson, 983 So.2d at 572-73 (stating that sentencing errors under rule 3.800(b) “all involve errors related to the ultimate sanctions imposed”). Appellant misplaces his reliance on materially different facts in opinions like Lee v. State, 826 So.2d 457 (Fla. 1st DCA 2002), in which we concluded that the lack of conformity between the trial court’s oral pronouncement and the subsequent written probation revocation order was an issued preserved in the rule 3.800(b)(2) motion. Cf. Jones v. State, 876 So.2d 642 (Fla. 1st DCA 2004) (affirming judgment and sentence following probation revocation, where issue of trial court’s revoking probation for appellant’s violating conditions neither orally pronounced nor embodied in written order was not preserved by a contemporaneous objection or a rule 3.800(b) motion to correct the error),

Under the circumstances in Lee, defense counsel could not have known at the time of the revocation hearing about any discrepancies between the oral pronouncements and any future written revocation order. In contrast, all of Appellant’s claims involve either the issue of adequate notice of the conditions or the sufficiency of the evidence to justify revocation. The trial court made oral findings at the conclusion of the revocation hearing; therefore, defense counsel could have raised the three claims then in a timely, specific objection. “[R]ule 3.800(b) is intended to permit defendants to bring to the trial court’s attention errors in sentence-related orders, not any error in the sentencing process.” Jackson, 983 So.2d at 572. The Jackson court made clear the limited permissible use of this avenue for relief:

The rule was never intended to allow a defendant (or defense counsel) to sit silent in the face of a procedural error in the sentencing process and then, if unhappy with the result, file a motion under rule 3.800(b).

Jackson, 983 So.2d at 573. Neither was the rule intended to bypass the “contemporaneous objection” requirement or to substitute for a collateral claim of ineffective assistance of counsel. Id. Because his three claims do not involve sentencing errors and were not preserved for appellate review, Appellant’s sole remaining option on direct appeal is to show fundamental error.

Condition (1)

The first issue is whether the trial court erred by revoking probation based on a violation of Condition (1), which required Appellant “[e]ach month ... [to] make a full and truthful report to your Probation Officer on the form provided for that purpose.” “[P]robationers are entitled to notice ‘of what law the probationer is alleged to have violated.’ ” Andrews v. State, 693 So.2d 1138, 1141 (Fla. 1st DCA 1997) (quoting Burton v. State, 651 So.2d 793, 794 (Fla. 1st DCA 1995)). “[T]he language used in a condition of probation is determinative of a probationer’s duties and responsibilities while on probation.” Stanley v. State, 922 So.2d 411, 414 (Fla. 5th DCA 2006). By its plain words, this condition relates only to the requirement to turn in to the probation officer each month a full, truthful form. In contrast, the affidavit of violation of probation alleged 1) not only Appellant’s failure to make a full, truthful report to the probation officer on the form provided, 2) but also his failure to comply with the probation officer’s instructions to report to the probation office sometime on the first through fifth day of each month.

This second, italicized allegation is not mentioned or required under Condition (1). “[T]he violation must mirror the language of the condition of probation allegedly violated.” Stanley, 922 So.2d at 415. The written transcript of the invocation hearing confirms Appellant’s assertion that no competent, substantial evidence was adduced indicating that Appellant had failed to make a full, truthful monthly report on the form provided. In fact, the subject of a form to be submitted to the probation officer was not even addressed at the hearing. Thus, the State failed to show a willful, substantial violation of Condition (1). Stanley, 922 So.2d at 415 (stating that “[v]iolation of probation cases adhere to strict due process requirements attendant to criminal cases,” that “[a] probationer must be violated for the reasons stated in the affidavit filed,” and “the violation must mirror the language of the condition of probation allegedly violated”).

“[A] conviction for an offense that did not take place constitutes fundamental reversible error.” Hobson v. State, 908 So.2d 1162, 1164 (Fla. 1st DCA 2005); see F.B., 852 So.2d at 230-31; Santiago v. State, 847 So.2d 1060, 1062 (Fla. 2d DCA 2003); Griffin v. State, 705 So.2d 572, 574 (Fla. 4th DCA 1998) (finding fundamental error where appellant was convicted of a crime that did not take place); Harris v. State, 647 So.2d 206, 208 (Fla. 1st DCA 1994). Likewise, “[i]t is fundamental error to convict a person of an uncharged offense.” Bennett v. State, 823 So.2d 849, 852 (Fla. 1st DCA 2002). “The revocation of a defendant's probation based on a violation not alleged in the charging document is a deprivation of the right to due process” constituting fundamental error. Richardson v. State, 694 So.2d 147, 147 (Fla. 1st DCA 1997); see Smith v. State, 738 So.2d 433, 435 (Fla. 1st DCA 1999); Dulaney v. State, 735 So.2d 505 (Fla. 1st DCA 1999). By analogy, revoking probation based partly on a purported violation that was not proved or admitted constitutes fundamental error. Additionally, it is reversible error to revoke probation on Condition (1) based on a purported violation by non-performance — Appellant’s failure to comply with the probation supervisor’s instruction to report to the office sometime on the first through fifth day of the month — where the supposed instruction is neither mentioned nor required in the unambiguous language of Condition (1). Accordingly, the trial court’s finding of a willful, substantial violation of Condition (1) must be stricken from the revocation order. Smith v. State, 711 So.2d 100, 102 (Fla. 1st DCA 1998).

Condition (2)

It is undisputed that Appellant failed to pay the full costs of his supervision before his probation was revoked. Once non-payment is shown, the probationer has the burden under section 948.06(5), Florida Statutes (2005), to prove, by clear and convincing evidence, his or her inability to pay. Martin v. State, 937 So.2d 714, 716 (Fla. 1st DCA 2006). Appellant testified that he had tried to make as many payments toward the costs of supervision as his financial circumstances would allow.

It is undisputed that the trial court made no finding as to Appellant’s ability to pay before probation was revoked. “[BJefore a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so.” Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994); see Bryant v. State, 546 So.2d 762 (Fla. 5th DCA 1989). The same principle applies to the requirement to pay the costs of probationary supervision. Section 948.06(5) does not relieve the trial court of its duty to determine that the violation was willful by proving the probationer’s ability to pay. Martin, 937 So.2d at 716; Blackwelder v. State, 902 So.2d 905, 907 n. 1 (Fla. 2d DCA 2005). Because ability to pay is an essential element for a finding that a probationer willfully violated probation for failure to pay supervisory costs, the revocation of Appellant’s probation based on the alleged violation of Condition (2) constitutes fundamental error. Hobson, 908 So.2d at 1164. In Friddle v. State, 989 So.2d 1254, 1255 (Fla. 1st DCA 2008), we held that revoking the defendant’s probation based on his failure to pay restitution, without a specific finding that he had the ability to pay, compelled reversal. For the same reason, the finding that Appellant willfully violated Condition (2) must be stricken from the probation revocation order.

Condition (8)

Condition (8) required Appellant to do the following: 1) promptly, truthfully answer all inquiries directed to him by the trial court or the probation officer; 2) allow the probation officer to visit Appellant’s home, employment site, and elsewhere; and 3) comply with “all instructions” given by the probation officer. The question of whether the State presented sufficient evidence to prove a violation of Condition (8) is the type of issue appropriately covered by the “contemporaneous objection” requirement, for it involves a matter that readily could have been brought to the trial court’s attention at the revocation hearing, thereby affording the court an opportunity to consider the challenge. See F.B., 852 So.2d at 229-30. Nevertheless, this issue was not preserved by a timely, specific objection. This claim does not involve a “sentencing error” cognizable in a rule 3.800(b) claim under Jackson. Therefore, we can review this issue only under the stringent standard of fundamental error. Jackson, 983 So.2d at 566.

On April 29, 2005, Appellant was placed on 36 months’ probation for grand theft. The trial court accepted the testimony of the probation supervisor, Officer Trevino Snowden, that Appellant’s file was transferred to her on November 28, 2005. On December 7, 2005, Appellant reported to the probation office, where an Officer No-land instructed him on the conditions of probationary supervision. Officer Snow-den first met with Appellant on January 6, 2006, when they discussed Appellant’s reporting requirements. He was looking for employment then. Officer Snowden specifically instructed Appellant to report sometime on the first two business days of each month or, stated slightly differently by the DOC, sometime during the first five days of each month. Officer Snowden’s case notes disclosed that Appellant continued to report beyond the first five days of each month, prompting her repeatedly to remind Appellant of the requirement to report at the beginning of each month, as he had been instructed to do. Despite Officer Snowden’s reminders, Appellant reported late on April 7, 2006; July 10, 2006; September 8, 2006; October 13, 2006; November 16, 2006; December 18, 2006; January 8, 2007; and February 26, 2007. When he reported late in the month, Appellant sometimes met with another probation officer. On February 19, 2007, Officer Snowden contacted Appellant’s employer, who stated that the company was short on employees and that the workers were required to work long hours. The employer and Officer Snowden scheduled a February 23 appointment for Appellant, but Appellant did not report until February 26, 2007. On March 21, 2007, when Officer Snowden tried to have personal contact with Appellant at his residence, she was told that Appellant was at work. The supervising officer left a card instructing Appellant to contact her as soon as possible. On March 26, 2007, Officer Snowden spoke to Appellant on the telephone and instructed him to schedule an appointment with her as soon as possible. Appellant needed to report on March 29, 2007, between 8:30-9:00 A.M., and he did report on that date. However, Appellant reported late again on April 30, 2007; May 29, 2007; June 18, 2007; July 20, 2007; and August 17, 2007. For at least 13 months, Officer Snowden did not violate Appellant, despite his late reporting, because she wanted to give Appellant a reasonable chance to comply with the rules. However, it is departmental policy to require all offenders to comply with their conditions of probation no later than 90 days before the termination of supervision.

On the afternoon of August 14, 2007, Officer Snowden spoke to Appellant and inquired about his numerous reporting lapses. Appellant told her that he could not report any sooner than the next Monday due to his employment. Officer Snow-den informed Appellant that she would be contacting the trial court. The affidavit of violation of probation was signed on August 16, 2007, and filed on August 21. Officer Snowden had informed Appellant’s employer(s) that Appellant was on probation. The officer never had any communication from Appellant’s employer(s) indicating that Appellant could not report to the probation officer if he was working on that date. Officer Snowden testified that she had instructed Appellant that if he contacted her beforehand, they could reschedule his reporting to the office at a mutually convenient time and date if Appellant’s work or personal matters kept him from adhering to the original schedule. Appellant was employed for most of his period of probation. The trial court accepted the testimony that Officer Snow-den and Appellant had no agreement allowing Appellant to report late each month.

Appellant, age 29, testified that his trade is remodeling and painting houses. He had about three different jobs during his 36 months’ probation and tried to work as often as possible. Currently, he was living with his mother. He had no car and was unable to drive due to the revocation of his driver’s license for habitual traffic offenses; he relied on family or friends for transportation. Appellant told Officer Snowden about his lack of reliable transportation. Appellant had been on probation before and understood the importance of following the rules and the serious consequences of willful, substantial non-compliance. Appellant testified that on the months when he had reported late, he lacked transportation and “had permission” to report late. When he worked for his landlord, Ron King, Appellant lived in Milton and had to pay for rides to get to Pensacola. Appellant testified that Officer Snowden and a previous probation supervisor were aware of his difficulties reporting between the first and fifth of each month. Appellant acknowledged that Officer Snowden had told him to call her beforehand if he could not report during the required period, but he asserted that the conversation occurred “at the very end.” Appellant testified that he had called his supervisor every month when he would report late or else had left a message with someone else at the probation officer. Appellant was not sure whether he had informed Officer Snowden about leaving messages for her. He “figured” that she had gotten the messages.

Citing Hutchinson v. State, 428 So.2d 739 (Fla. 2d DCA 1983), and Morales v. State, 518 So.2d 964 (Fla. 3d DCA 1988), Appellant contends that the requirement for him to report to his probation office sometime between the first and fifth day of each month is a new, special condition that his probation supervisor, and not the sentencing court or Condition (8), imposed. The State counters that revocation is proper because Appellant failed to “comply with all instructions” given to him by the probation officer. Probation may be revoked for violation only of a condition that was imposed by the trial court, not the probation supervisor; that is, “a probation officer cannot prescribe new conditions of probation.” Hutchinson, 428 So.2d at 740; Page v. State, 363 So.2d 621 (Fla. 1st DCA 1978).

A comparison of the key facts and the language of the particular conditions demonstrates that Appellant’s case law is materially distinguishable. In Morales, the Third District Court concluded that the trial court’s general admonition to “comply with all instructions” did not encompass a specific new requirement imposed solely by his probation supervisor for Morales to set an appointment at a mental-health center for alcohol and drug counseling. 518 So.2d at 964. Similarly, in Hutchinson, the Second District Court determined that the generalized requirement to comply with “all instructions” given by the probation supervisor did not cover the officer’s specific new instruction to Hutchinson to make immediate contact with an alcohol community treatment service for counseling and therapy if deemed necessary by the agency. 428 So.2d at 740.

The instant facts are different. By its express language, Condition (8) required Appellant to comply with all instructions and to allow visits by his probation officer at home, at the place of employment, “or elsewhere.” The court accepted Officer Snowden’s testimony that she had instructed Appellant that he was expected to meet with her monthly at the probation office on one of the first five days of each month. This visitation/reporting requirement, which is an essential aspect of the supervisory duties of probation, does not constitute a new, special condition of probation. Rather, it is a reasonable, necessary procedure for implementing the official “visitation” or meeting requirement that clearly is set forth in the written condition. Holterhaus v. State, 417 So.2d 291, 292 (Fla. 2d DCA 1982) (stating that specific court approval is not necessary for “normal supervisory directions” given by the probation officer); Watkins v. State, 368 So.2d 363, 365-66 (Fla. 2d DCA 1979) (concluding that a court-approved probation condition, which is substantially like Condition (8), clearly and unambiguously required Watkins ' to report pursuant to a schedule devised by the probation officer to facilitate supervisory duties, so that Watkins’ unauthorized failure to report constituted a valid basis for probation revocation). Because Appellant was adequately apprised of the requirements of Condition (8) and the grounds for the affidavit of violation as to this condition, and competent, substantial evidence supports this violation, Appellant has not met his burden to show any error, let alone fundamental error.

Because it is unclear from the record whether the trial court would have revoked probation and imposed the same sentence based solely on Appellant’s violation of Condition (8), we are constrained to REVERSE the revocation order and REMAND for further proceedings. Richardson v. State, 694 So.2d 147 (Fla. 1st DCA 1997); Mordica v. State, 618 So.2d 301, 305 (Fla. 1st DCA 1993).

HAWKES, C.J., and VAN NORTWICK, J., concur.


author: WALLACE, Judge.

text:
    GREEN TREE SERVICING, LLC, Appellant, v. Elizabeth Dianne McLEOD, as Personal Representative of the Estate of Stanley McLeod, deceased, Appellee.
    No. 2D08-2978.
    District Court of Appeal of Florida, Second District.
    June 26, 2009.
    Rehearing Denied Sept. 2, 2009.

      Mary Ruth Houston and Glennys Ortega Rubin of Shutts & Bowen, LLP, Orlando, for Appellant.
    Charles M. Schropp and Charles P. Schropp of Schropp Law Firm, P.A., Tampa, for Appellee.
   EN BANC

WALLACE, Judge.

Green Tree Servicing, LLC (Green Tree), appeals a nonfinal order denying its motion to stay the action in the court below and to compel arbitration. Because we find no error in the circuit court’s conclusion that Green Tree had waived its right to arbitration by serving multiple discovery requests related to the merits of the pending action, we affirm the circuit court’s order. In so doing, we recede from Merrill Lynch Pierce Fenner & Smith, Inc. v. Adams, 791 So.2d 25 (Fla. 2d DCA 2001).

I. THE FACTS AND PROCEDURAL HISTORY

On October 21, 1998, Stanley McLeod purchased a manufactured home from Quality Mobile Homes, Inc. (the Seller). In connection with this purchase, Mr. McLeod executed a Manufactured Home Retail Installment Contract and Security Agreement (the Contract) with the Seller. The Contract contained an arbitration clause which provided — in pertinent part— that “[a]ll disputes, claims or controversies arising from or relating to this Contract or the parties thereto shall be resolved by binding arbitration.” Green Tree ultimately acquired ownership of the Contract.

In November 2005, Mr. McLeod filed an action against Green Tree in the Hillsbor-ough County Circuit Court for alleged violations of the Florida Consumer Collection Practices Act. Green Tree promptly removed the action to the United States District Court for the Middle District of Florida, Tampa Division. Two days after removing the action to federal court, Green Tree filed its motion to stay case and compel arbitration. The federal court did not rule on this motion. Instead, on February 27, 2006, the federal court remanded the case to the circuit court. On March 20, 2006, Green Tree filed its renewed motion to stay case and compel arbitration in the circuit court.

While his case was being transferred from the circuit court to federal court and back to the circuit court, Mr. McLeod died. His widow, Elizabeth Dianne McLeod, was appointed as the personal representative of her late husband’s estate and was substituted as the party plaintiff in the action against Green Tree. In March 2007, Mrs. McLeod filed a second amended complaint that added a claim against Green Tree for the wrongful death of Mr. McLeod. In response, Green Tree reasserted its arbitration claim by filing a motion to stay case and compel arbitration of the second amended complaint.

Much of the later procedural history of the case stemmed indirectly from the delay that ensued in obtaining a ruling on Green Tree’s request for arbitration. For reasons not material to our decision, the hearing on Green Tree’s arbitration motion was scheduled, continued, and rescheduled numerous times. The circuit court did not actually hear the motion until almost two and one-half years after Mr. McLeod had filed the lawsuit.

In March 2006, Green Tree filed a motion requesting a protective order staying any discovery in the case pending a ruling on its motion to stay and compel arbitration. It does not appear that the circuit court ever ruled on this motion. In September 2006, Green Tree filed a renewed motion for protective order as to discovery pending a ruling on its motion to compel arbitration. In the renewed motion, Green Tree requested that all discovery that was not related to its pending motion to compel arbitration be stayed pending a ruling on that motion.

On February 28, 2007, the circuit court conducted a hearing on Green Tree’s renewed motion to stay discovery. At the hearing, counsel for Mrs. McLeod informed the court that he wished to conduct additional discovery related to Green Tree’s arbitration motion. The circuit court ruled that Mrs. McLeod would have an additional ninety days to complete “arbitration related discovery.” In a significant exchange at the hearing, counsel for both parties agreed that discovery related to the merits of Mrs. McLeod’s claims would not be appropriate until Green Tree’s pending arbitration motion was resolved:

[Counsel for Green Tree]: Your Hon- or, I believe [counsel for Mrs. McLeod] has agreed to this on the record, but I want to make sure it’s clear at this point, because all that’s being litigated right now is whether this should go to arbitration. We are not — in order not to waive our right to arbitration, we cannot participate in any arbitration — in any discovery that goes outside the — ■ issue of arbitration itself.
[Counsel for Mrs. McLeod]: I did stipulate to that.
THE COURT: Okay.

Thus Green Tree acknowledged at the hearing that its participation in discovery related to the merits of the case would result in a waiver of its claimed right to arbitration.

Up to this point in the litigation, Green Tree had been represented by Shutts & Bowen LLP, its current appellate counsel. However, on May 25, 2007, another law firm filed a notice of appearance as counsel for Green Tree. On July 12, 2007, in accordance with a stipulation, the circuit court entered an order substituting the new law firm as counsel for Green Tree.

Approximately one month later, the new law firm served a series of discovery requests on Mrs. McLeod. These discovery requests were all directly related to the merits of her pending claims. The discovery requests included the following items: (1) “Wrongful Death Request to Produce to Plaintiff,” (2) “Collateral Source Interrogatories to Plaintiff,” (3) “Expert Interrogatories to Plaintiff,” and (4) “Wrongful Death Interrogatories to Plaintiff.” Mrs. McLeod did not comply with the discovery requests. In November 2007, Green Tree’s new counsel wrote a letter to Mrs. McLeod’s counsel requesting that the completed discovery be forwarded within ten days of the receipt of the letter. The discovery responses were not forthcoming, and Green Tree filed its motion to compel discovery responses on February 8, 2008. Green Tree scheduled a hearing on its motion to compel for March 12, 2008. On the day of the; scheduled hearing, Green Tree withdrew its discovery requests, withdrew the motion to compel, and can-celled the scheduled hearing on its motion.

II. THE CIRCUIT COURT’S RULING

Green Tree’s motion to stay and compel arbitration was finally heard on April 22, 2008. At the hearing, Mrs. McLeod opposed arbitration on two grounds: (1) the arbitration clause was both procedurally and substantively unconscionable and (2) Green Tree had waived its right to arbitration. The circuit court found that the arbitration clause was neither procedurally nor substantively unconscionable. However, the circuit court agreed with Mrs. McLeod that Green Tree had waived its right to arbitration by participating in discovery related to the merits of the case. The circuit court’s oral announcement of its ruling — in pertinent part — was as follows:

THE COURT: Now making a special appearance to file a Motion to Quash Service of Process. So there’s no waiver there. But engaging in discovery— engaging in discovery on the merits of the case though, I think that crosses the line.
However, I think, if the interrogatories had been sent and then right away withdrawn, that’s one thing. But they were sent and there were letters sent and finally the Motion to Compel. I believe the Motion to Compel was noticed for a hearing, wasn’t it?
But, in any event, it went so far — it went so far as to — and from that I can infer — you know, from that I can infer that [Mrs. McLeod at] least [was] put on notice that [she] had to start getting-some discovery, and discovery was not toward arbitrability. It was toward the damages issue of the case. So I’ll find waiver.

The circuit court made similar findings in its written order denying Green Tree’s arbitration motion:

This Court finds [Green Tree] waived the right to arbitration by taking actions inconsistent with its desire to arbitrate and participating in the lawsuit. Specifically, the court finds that on August 16, 2007[, Green Tree] sent multiple sets of interrogatories and a l'equest to produce to [Mrs. McLeod] relating to issues other than whether this case was subject to arbitration. . Counsel for [Green Tree] also subsequently sent a letter on November 16, 2007[,] to [Mrs. McLeod’s] counsel demanding that these discovery requests be answered and ultimately moved to compel responses to this discovery on February 8, 2008.

Thus the circuit court based its conclusion about waiver on Green Tree’s participation in discovery directed to the merits of Mrs. McLeod’s claims.

III. DISCUSSION

A. Preliminary Matters

“In determining whether a dispute is subject to arbitration, courts consider at least three issues: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla. 2d DCA 2003) (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)). Here, we address only the issue of waiver.

“Generally, whether a party has waived the right to arbitrate is a question of fact, reviewed on appeal for competent, substantial evidence to support the lower court’s findings.” Mora v. Abraham Chevrolet-Tampa, Inc., 913 So.2d 32, 33 (Fla. 2d DCA 2005) (citing Raymond James Fin. Servs., Inc. v. Saldukas (Saldukas I), 851 So.2d 853, 856 (Fla. 2d DCA 2003), approved, 896 So.2d 707 (Fla.2005)). On the other hand, “the standard of review applicable to the trial court’s construction of the arbitration provision, and to its application of the law to the facts found, is de novo.” Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 283 (Fla. 1st DCA 2003).

B. Waiver of the Right to Arbitration

“Waiver” has been defined “as the voluntary and intentional relinquishment of a known 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). The general definition of waiver is applicable to the right to arbitrate. Id. Concerning the issue of waiver in the context of an arbitration agreement, the Supreme Court of Florida has quoted with approval Judge Mikva’s opinion in National Foundation for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C.Cir.1987). Saldukas II, 896 So.2d at 711. Judge Mikva addressed the issue as follows:

The right to arbitration, like any contract right, can be waived. See [Cornell & Co. v. Barber & Ross Co., 360 F.2d 512, 513 (D.C.Cir.1966) ]. The Supreme Court has made clear that the “strong federal policy in favor of enforcing arbitration agreements” is based upon the enforcement of contract, rather than a preference for arbitration as an alternative dispute resolution mechanism. [Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218-24, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985)]. Thus, the question of whether there has been waiver in the arbitration agreement context should be analyzed in much the same way as in any other contractual context. The essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right. See Cornell, 360 F.2d at 513.

Nat’l Found, for Cancer Research, 821 F.2d at 774. For these reasons, “there is no requirement for proof of prejudice in order for there to be an effective waiver of the right to arbitrate.” Id. Thus “an arbitration right must be safeguarded by a party who seeks to rely upon that right and the party must not act inconsistently with the right.” Id.

A party’s active participation in a lawsuit is inconsistent with arbitration. Thus “[t]he prosecution or defense of a lawsuit on issues subject to arbitration may constitute a waiver.” Seville Condo. # 1, Inc. v. Clearwater Dev. Corp., 340 So.2d 1243, 1245 (Fla. 2d DCA 1976). It follows that a party may waive his or her right to arbitration by filing a lawsuit without seeking arbitration, id.; by filing an answer to a pleading seeking affirmative relief without raising the right to arbitration, Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So.2d 1, 3 (Fla. 2d DCA 1992); and by moving for summary judgment, Lapidus v. Arlen Beach Condo. Ass’n, 394 So.2d 1102, 1103 (Fla. 3d DCA 1981). A party who timely asserts the right to arbitration may still waive the right by later conduct that is inconsistent with the arbitration request. See Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678, 681 (Fla.1973). Furthermore, 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. See Estate of Williams ex rel. Williams v. Manor Care of Dunedin, Inc., 923 So.2d 615, 616-17 (Fla. 2d DCA 2006); Bared & Co., 610 So.2d at 3.

C. Waiver by Participation in Discovery

Here, the issue before the circuit court was whether Green Tree waived its claimed right to arbitration by participating in discovery related to the merits of the pending litigation. The circuit court’s ruling that participation in discovery related to the merits of pending litigation operated as a waiver of a contractual right to arbitration is in accord with the majority view in the Florida courts. Both the Third District and the Fifth District have unequivocally held that propounding discovery directed to the merits of pending litigation before moving to compel arbitration results in a waiver of the right to arbitration. See Olson Elec. Co. v. Winter Park Redevelopment Agency, 987 So.2d 178, 179 (Fla. 5th DCA 2008); Estate of Orlanis ex rel. Marks v. Oakwood Terrace Skilled Nursing & Rehab. Ctr., 971 So.2d 811, 812-13 (Fla. 3d DCA 2007); Coastal Sys. Dev., Inc. v. Bunnell Found., Inc., 963 So.2d 722, 724 (Fla. 3d DCA 2007). The First District and the Fourth District have not ruled on the question of whether propounding discovery directed to the merits of pending litigation, by itself, results in a waiver of the right to arbitration. See Hill v. Ray Carter Auto Sales, Inc., 745 So.2d 1136 (Fla. 1st DCA 1999) (affirming a trial court’s finding that a defendant who answered a complaint without requesting arbitration and also participated in discovery had not waived its right to arbitration where the defendant’s attorney did not have a copy of the contract containing the arbitration clause when he filed the answer to the complaint and was thus unaware of the arbitration clause, and the attorney filed a motion requesting arbitration as soon as he received a copy of the contract, which was within two months of the service of the summons and complaint); Hardy Contractors, Die. v. Homeland, Prop. Oivners Ass’n, 558 So.2d 543 (Fla. 4th DCA 1990) (disagreeing with the dissenting judge’s view that a third-party defendant which timely raised its right to arbitration and subsequently participated in discovery related to the merits while the arbitration issue was pending did not waive its right to arbitration). But the First District and the Fourth District have held that a party waives its right to arbitration by propounding discovery directed to the merits of pending litigation and also engaging in other actions inconsistent with arbitration. See Sitarik v. JFK Med. Ctr. Ltd. P’ships, 11 So.3d 973, 974 (Fla. 4th DCA 2009) (“Here, Sheridan attacked the merits of the litigation and thus, actively participated in the litigation by filing an answer, affirmative defenses, two motions to dismiss, as well as issuing a subpoena and propounding discovery.”); Md. Cas. Co. v. Dep’t of Gen. Servs., 489 So.2d 54, 57 (Fla. 1st DCA 1986) (“[T]he record reveals that Pinter waived its right to elect arbitration and proceeded to litigate in court by filing an answer to appellees’ complaint, filing discovery requests, and filing various motions without raising the right to arbitration.”). Nevertheless, the positions of the First District and the Fourth District on the issue are unclear because Sitarik and Maryland Casually Co. involved activity not limited to propounding discovery directed to the merits of pending litigation.

D. This Couri’s Decision in Merrill Lynch

However*, this court has previously reached a different conclusion on the issue of whether participating in discovery related to the merits of pending litigation results in a waiver of the right to arbitrate. See Merrill Lynch Pierce Fenner & Smith, Inc. v. Adams, 791 So.2d 25, 26 (Fla. 2d DCA 2001). In Merrill Lynch, the appellees, who were the plaintiffs in the litigation, filed a complaint asserting various claims against the appellants. Id. at 27. Together with their complaint, the appellees filed a motion to stay the proceedings and a motion to compel arbitration. Id. Subsequently, the appellees served a request for the production of documents related to the merits of the litigation and also served a notice of the taking of the deposition of a Merrill Lynch employee who had authored a document related to the merits of their claims. Id. at 28.

At a hearing on the appellees’ motion to compel arbitration, the appellants argued that the appellees had waived their right to arbitration by continuing to litigate their case after requesting arbitration. Id.. In response, the appellees contended that the assertion of their right to arbitration in a pleading filed before they engaged in discovery was sufficient to preserve the arbitration right regardless of their later conduct. Id. Finding that the appellees had not acted inconsistently with their right to arbitration, the circuit court granted their motion to compel arbitration. Id. at 26, 28.

On appeal, the appellants argued that the appellees had “waived their right of arbitration by engaging in litigation.” Id,. at 26. The majority opinion framed the issue presented for decision as “whether appellees were involved in litigation to the extent of waiving their right to arbitration.” Id. The majority answered this question in the negative and affirmed the circuit court’s order compelling arbitration. Id. The late Judge Jerry R. Parker dissented in part. Id. at 26-29 (Parker, J., concurring in part and dissenting in part). In his dissent, Judge Parker concluded that the appellees had waived their right to arbitration “by choosing to participate in formal discovery.” Id. at 29.

The majority offered three reasons in support of its legal conclusion. First, referring to dismissals for failure to prosecute under Florida Rule of Civil Procedure 1.420, the majority said that “it is questionable whether discovery, including depositions, even constitutes record activity.” Id. at 26 (majority opinion). Second, the majority explained that “if taking a deposition is litigation, a similar procedure is available to appellees under the arbitration code, and therefore, [appellees’] acts were not inconsistent with arbitration.” Id. Third, the majority observed that it had “found no case law which would require a denial of appellees’ right to arbitration based on their participation in discovery.” Id.

In his dissent, Judge Parker cited several cases in support of the proposition that “a party’s actions after asserting the right to arbitration may be considered when determining whether the party has, in fact, waived its right to arbitrate.” Id. at 28 (Parker, J., concurring in part and dissenting in part) (citing Klosters Rederi A/S, 280 So.2d at 681). Observing that “the appellees continued to litigate their case after initially demanding arbitration,” Judge Parker concluded that they had waived their right to arbitration by participating in discovery. Id. at 28-29. Judge Parker supported his conclusion by noting the scope of the discovery sought by the appellees. He pointed out that “[i]n one discovery request alone, Merrill Lynch was required to provide over 7000 documents to the appellees.” Id. at 29.

E. The Parties’Arguments

Here, the parties have devoted considerable attention to the Merrill Lynch case in their respective arguments. Green Tree argues that it asserted its right to arbitration from the beginning of the case and thereafter. Green Tree cites Merrill Lynch for the proposition that a party’s participation in significant discovery, including depositions by the party seeking arbitration, does not constitute sufficient involvement in litigation to the extent of operating as a waiver after the party has already invoked its arbitration rights. According to Green Tree, “this [c]ourt’s prior decision in Merrill Lynch dictates that Green Tree did not waive its arbitral rights.” Finally, Green Tree contends that a proper consideration of the totality of the circumstances by the circuit court would have led it to the conclusion that participation in discovery alone — coupled with the initial assertion of arbitration rights — was insufficient to result in a waiver.

In response, Mrs. McLeod argues that Green Tree waived its right to arbitration by propounding discovery requests after its initial assertion of the right to arbitration. Mrs. McLeod seeks to distinguish Merrill Lynch on three grounds. First, the Merrill Lynch court “was asked to review a trial court’s finding that no waiver of arbitration had occurred, whereas this court is being asked to do exactly the opposite and review the trial court’s finding that a waiver of arbitration in fact had occurred.” As the Merrill Lynch majority noted in a parenthetical, “waiver is a question of fact and ... a trial judge will be reversed only if there is no competent, substantial evidence to support the finding.” Id. at 26. Here, just as in Merrill Lynch, there is competent, substantial evidence in the record to support the circuit court’s finding on the issue of waiver. Second, Green Tree filed a motion to compel in order to enforce its discovery requests, and a motion to compel does constitute record activity. Third, Green Tree’s argument that similar discovery would have been available in arbitration is not only inaccurate, “but also totally ignores the fact that it was Green Tree that initially opposed merits-related discovery in this litigation, going so far as to assert that its participation in such discovery would be a waiver of arbitration.” In the face of the position taken by Green Tree in the circuit court about the effect of merits-related discovery on its arbitration right, Mrs. McLeod submits that Green Tree “should not now be heard to say that its merits-related discovery was insignificant.”

F. A Reexamination of Merrill Lynch

The Merrill Lynch majority concluded that a party’s participation in discovery related to the merits of pending litigation does not result in a waiver of the party’s right to arbitration. Thus Green Tree’s argument that Merrill Lynch requires a reversal of the circuit court’s order denying Green Tree’s motion to stay and compel arbitration has some force. Mrs. McLeod has presented arguments upon which we might rely to distinguish Merrill Lynch. However, after considering the arguments for distinguishing our prior precedent, we find them to be unpersuasive.

Instead of distinguishing Merrill Lynch, we think that a reexamination of that decision is in order. A review of the three reasons offered by the Merrill Lynch majority for reaching the legal rule stated in that case reveals that those reasons were unsound. We turn now to an examination of these three reasons.

(1) Discovery as record activity. Referring to Judge Parker’s concern about the appellees’ participation in discovery, the Merrill Lynch majority said: “[I]t is questionable whether discovery, including depositions, even constitutes record activity.” Id. at 26. In support of this statement, the majority cited two cases that addressed the question of whether the filing of a notice of taking deposition and the actual taking of a deposition constituted record activity for the purpose of avoiding a dismissal for failure to prosecute under earlier versions of Florida Rule of Civil Procedure 1.420. Id. Here, the majority asked the wrong question. The issue of whether discovery constitutes “record activity” for the purpose of avoiding a dismissal for failure to prosecute under rule 1.420 does not have any bearing on the question of whether a party may waive its right to arbitration by propounding discovery related to the merits of the case.

Instead, the appropriate inquiry is whether the party’s participation in such discovery is activity that is inconsistent with the right to arbitration. See Saldkas II, 896 So.2d at 711. This inquiry has nothing to do with record activity. Action that is inconsistent with the right to arbitration may occur outside the case file as well as in it. See, e.g., Hillier Group, Inc. v. Torcon, Inc., 932 So.2d 449, 456-57 (Fla. 2d DCA 2006) (recognizing that the litigation of arbitrable issues in an earlier case may result in a waiver of the right to arbitration in a related case where the party’s participation in the litigation in the earlier case would give it an advantage in a subsequent arbitration); Saldukas I, 851 So.2d at 856 (stating that a party’s repeated presuit assertions that the opposing parties had no right to arbitration and threatening to file a lawsuit to enjoin an arbitration proceeding were sufficient to support a finding that a party had waived its right to arbitration); White Constr. Co. v. State, Dep’t of Transp., 860 So.2d 1064, 1067-68 (Fla. 1st DCA 2003) (holding that a party had waived its right to arbitration by failing to submit the dispute to arbitration within the contractual time limit for requesting arbitration). It follows that the first reason offered by the Merrill Lynch majority in support of its conclusion is unsound.

(2) The availability of discovery in arbitration. Reframing the pertinent issue as whether propounding discovery related to the merits of pending litigation is inconsistent with arbitration leads to an examination of the second reason offered by the Merrill Lynch majority. On this question, the Merrill Lynch majority said: “[I]f taking a deposition is litigation, a similar procedure is available to appellees under the arbitration code, and therefore, [appellees’] acts [of engaging in discovery] were not inconsistent with arbitration.” 791 So.2d at 26. In support of this proposition, the Merrill Lynch majority cited to section 684.15, Florida Statutes (1999), a provision appearing in chapter 684, the Florida International Arbitration Act (the FIAA). Although it is impossible to determine the applicability of the FIAA to the dispute in Merrill Lynch from the facts stated in the opinion, it seems doubtful that the dispute in that case was subject to the FIAA. We ■wall analyze the basis for the majority’s proposition concerning the availability of discovery in arbitration by first considering section 684.15 and then making a brief review of the availability of depositions and discovery in arbitration proceedings generally.

Section 684.15 does not support the Merrill Lynch majority’s assumption equating the availability of depositions and discovery in arbitration proceedings to the availability of those procedures in judicial proceedings. Section 684.15 provides, in pertinent part, as follows:

(2) The arbitral tribunal may issue subpoenas or other demands for the attendance of witnesses or for the production of books, record, documents, and other evidence, may administer oaths, may order depositions to be taken or other discovery obtained, without regard to the place where the witness or other evidence is located, and may appoint one or more experts to report to it.

(Emphasis added.) See generally Jarvis, supra, at 7-13. In accordance with section 684.15(2), depositions and discovery are available in arbitrations conducted under the FIAA. However, in order to take a deposition or propound discovery requests, one must first obtain an appropriate order from the arbitral tribunal. Section 684.15(2) provides that the arbitral tribunal “may order depositions to be taken or other discovery obtained.” (Emphasis added.) Thus a party’s ability to engage in discovery in FIAA arbitration is subject to the discretion of the arbitral tribunal. Cf. Rintin Corp., S.A. v. Domar, Ltd., 374 F.Supp.2d 1165, 1170 (S.D.Fla.2005) (rejecting argument by party to FIAA arbitration that the arbitral proceedings were unfair in part because it was unable to obtain discovery on certain issues). Such a restriction on a party’s ability to conduct discovery in an FIAA arbitration contrasts sharply with the ready availability of depositions and discovery in litigation conducted under the Florida and federal civil rules.

The vast majority of arbitrations conducted in Florida will not be subject to the FIAA but, rather, will be conducted under either the Florida Arbitration Code, chapter 682, Florida Statutes (the FAC), or the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the FAA). See generally Nelson D. Blank et al., Commercial Arbitration in Alternate Dispute Resolution in Florida 3-1, 3-5 to 3-7 (2d ed.1995) (discussing the various statutes and rules applicable to arbitration in Florida). But regardless of whether arbitration is conducted subject to the FAC, the FAA, or the FIAA, a party’s ability to take depositions and to propound discovery requests is generally much more limited in arbitration than it is under the Florida or the federal civil rules. See Rin-tin Corp., 374 F.Supp.2d at 1170 (“[Discovery is not guaranteed in arbitration and arbitrators have broad discretion as to grant or deny the ability to obtain discovery.”) (citing Fernandez v. Clear Channel Broad., Inc., 268 F.Supp.2d 1365, 1368 (S.D.Fla.2003)); see also Stanton v. Paine Webber Jackson & Curtis, Inc., 685 F.Supp. 1241, 1242 (S.D.Fla.1988) (concluding that under the FAA, the arbitrators may order and conduct such discovery as they find necessary). See generally Blank, supra, at 3-8, 3-19 to 3-20 (discussing the limited availability of discovery in commercial arbitration proceedings); W. Scott Simpson & Omer Kesikli, The Contours of Arbitration Discovery, 67 Ala. Law. 280 (2006) (discussing the scope of discovery in arbitration and related proceedings). For example, the parties’ arbitration agreement may impose limitations on the right to take depositions and to conduct discovery. See, e.g., Fernandez v. Clear Channel Broad., 268 F.Supp.2d 1365, 1368 (S.D.Fla.2003) (quoting a section regarding discovery from an arbitration agreement that limited the parties to three depositions unless the arbitrator, on a showing of good cause, approved additional depositions, and that required all discovery to be concluded within forty-five days from the date the arbitrator is informed of his or her selection). In addition, parties frequently agree that any arbitration proceedings will be governed by rules prepared by various private organizations. See Blank, supra, at 3-5 to 3-7; see, e.g., Kotch v. Clear Channel Broad., Inc., No. 03-61951CIVALTONAGA, 17 Fla. L. Weekly Fed. D401, 2004 WL 483502 (S.D.Fla. Mar. 8, 2004) (compelling arbitration under an agreement providing that arbitration would be governed by the Employment Dispute Resolution Rules of the American Arbitration Association).

“Although [the available discovery] procedures might not be as extensive as in the federal courts, by agreeing to arbitrate, a party ‘trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.’ ” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 31, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). In view of the marked differences concerning the availability of depositions and discovery in arbitration and litigation, the second reason offered by the Merrill Lynch- majority equating the availability of depositions in both arbitration proceedings and judicial proceedings is also unsound.

(3) The existing precedent. The Merrill Lynch majority bolstered its legal conclusion by noting that it had “found no case law which would require a denial of appel-lees’ right to arbitration based on their participation in discovery.” Merrill Lynch, 791 So.2d at 26. However, in a series of cases decided before the Merrill Lynch opinion issued, the Third District had held that a party’s participation in discovery was sufficient to operate as a waiver of the right to arbitration. See Preferred Mut. Ins. Co. v. Matrix Constr. Corp., 662 So.2d 432, 432 (Fla. 3d DCA 1995); Coral 97 Assocs., Ltd. v. Chino Elec., Inc., 501 So.2d 69, 70-71 (Fla. 3d DCA 1987); Rolls v. Bliss & Nyitray, Inc., 408 So.2d 229, 237-38 (Fla. 3d DCA 1981), disapproval on other grounds recognized by La Pesca Grande Charters, Inc. v. Moran, 704 So.2d 710, 713-14 (Fla. 5th DCA 1998); Winter v. Arvida Corp., 404 So.2d 829, 830 (Fla. 3d DCA 1981). Thus existing precedent did not support the legal proposition adopted by the Merrill Lynch majority in 2001 when that case was decided.

Since Merrill Lynch was decided, the Third District has adhered to its view of the matter, Estate of Orlanis, 971 So.2d at 812-13, and the Fifth District has adopted the same position as the Third District, Olson Electric, 987 So.2d at 179. Furthermore, in a relatively recent decision, this court- — without citing Merrill Lynch — relied on a party’s participation in discovery as one of the factors supporting the conclusion that the party had waived its right to arbitration by engaging in actions inconsistent with the intent to arbitrate the opposing party’s claim. See Mora, 913 So.2d at 33-34. Thus Florida case law on this question subsequent to Merrill Lynch has been consistent with the Third District’s position and the view proposed by Judge

Parker in his dissenting opinion.

To summarize, we conclude that the reasons offered by the Menill Lynch majority for concluding that participation in discovery related to the merits of pending litigation is not inconsistent with the intent to arbitrate were not well founded. Furthermore, the conclusion reached by the Menill Lynch majority is contrary to the case law in the Third District and the Fifth District. Accordingly, we now hold that a party’s participation in discovery related to the merits of pending litigation is activity that is generally inconsistent with arbitration. Such activity — considered under the totality of the circumstances — will generally be sufficient to support a finding of a waiver of a party’s right to arbitration. We recede from Menill Lynch to the extent that it is inconsistent with the rule that we now adopt.

G. The Application of the Rule that We Adopt Today to the Facts of This Case

Consistent with the rule that we adopt today, we hold that competent, substantial evidence supports the circuit court’s conclusion that Green Tree waived its claimed right to arbitrate Mrs. McLeod’s claims by participating in discovery related to the merits of the pending litigation. Green Tree’s request to produce asked Mrs. McLeod to produce twenty-eight categories of documents related to the merits of her pending claims. Green Tree’s three separate sets of interrogatories propounded a total of forty-five questions — not including subparts — to be answered under oath by Mrs. McLeod. All of these interrogatories pertained to the merits of her claims. As the circuit court noted, the request to produce and the interrogatories were not promptly withdrawn but remained pending for several months. Later, Green Tree filed a motion to compel discovery responses and scheduled a hearing on the motion. The circuit court could properly conclude that this substantial-activity by Green Tree was sufficient to cause a waiver of the arbitration right that Green Tree' had previously asserted. See Klosters Reden A/S, 280 So.2d at 681. As another court has written in a similar context, “[t]he courtroom may not be used as a convenient vestibule to the arbitration hall so as to allow a party to create his own unique structure combining litigation and arbitration.” De Sapio v. Kohlmeyer, 35 N.Y.2d 402, 362 N.Y.S.2d 843, 321 N.E.2d 770, 773 (1974). Having waived its right to arbitration by propounding discovery related to the merits of the case, Green Tree could not reclaim that right by withdrawing its discovery requests and its motion to compel. See Estate of Williams, 923 So.2d at 617; Bared & Co., 610 So.2d at 3.

Finally, we consider whether the application of the rule that we adopt today to the facts of this case is fundamentally unfair to Green Tree. The dispositive factor on this issue is the statement made by Green Tree’s counsel at the hearing on its renewed motion to stay discovery. At the hearing on this motion — held before Green Tree had propounded its merits-related discovery requests — Green Tree’s counsel acknowledged that its participation in any discovery related to the merits of the case would result in a waiver of its right to arbitration. Thus Green Tree did not rely to its detriment on our Menill Lynch decision in serving its merits-related discovery requests on Mrs. McLeod. On the contrary, Green Tree’s understanding of the law on this subject was in accord with the rule that we adopt today. Accordingly, the application of this rule to Green Tree’s conduct in this case is not unfair to Green Tree. Cf. Brackenridge v. Ametek, Inc., 517 So.2d 667, 668-69 (Fla.1987) (stating the general rule “that a decision of a court of last resort which overrules a prior decision is retrospective as well as prospective in its operation unless declared by the opinion to have prospective effect only” and finding that a litigant did not fall within the exception to the general rule where he did not act in reliance on a prior decision that had been overruled).

IV. CONCLUSION

For the foregoing reasons, we hold that the circuit court did not err in ruling that Green Tree waived its right to arbitration by participating in discovery related to the merits of the case. Accordingly, we affirm the circuit court’s order denying Green Tree’s motion to stay and compel arbitration.

Affirmed.

NORTHCUTT, C.J., and ALTENBERND, FULMER, WHATLEY, CASANUEVA, DAVIS, SILBERMAN, KELLY, VILLANTI, LaROSE, KHOUZAM, and CRENSHAW, JJ„ Concur.

      . We have jurisdiction in accordance with Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).

      . Our summary of the facts in Merrill Lynch is taken from the detailed recital of the facts of the case contained in the dissenting opinion. The majority opinion did not include a statement of the facts of the case.

      . In an apparent scrivener's error, the majority referred to “appellants' acts’’ when they obviously meant to say "appellees' acts.”

      . The two cases cited are Nichols v. Lohr, 776 So.2d 366 (Fla. 5th DCA 2001), and Levine v. Kaplan, 687 So.2d 863 (Fla. 5th DCA 1997), disapproved of by Metropolitan Dade County v. Hall, 784 So.2d 1087 (Fla.2001).

      . The FIAA was designed to provide for the arbitration of disputes arising out of international relationships. See 684.02(1). See generally Robert M. Jarvis, International Arbitration, in Alternate Dispute Resolution in Florida 7-1, 7-5 to 7-6 (2d ed.1995). Section 684.03 sets forth the criteria for determining the types of disputes that are subject to the FIAA. See Jarvis, supra, at 7-6 to 7-7. These criteria limit the claims subject to the FIAA to those having some international connection. See § 684.03(1).

      . In this case, the agreement between Mr. McLeod and Green Tree's predecessor in interest provided that it "is made pursuant to a transaction in interstate commerce and shall be governed by the Federal Arbitration Act at 9 U.S.C. Section 1.”

      . This proposition is subject to the uncertainty — previously noted in section III(C) of this opinion — concerning the position of the First District and the Fourth District on this issue.