Metronet Technologies, LLC v. United Fiber Works, LLC, and R and E Drilling, LLC

FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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Case No. 5D2025-1558
LT Case No. 2024-012802-CIDL
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METRONET TECHNOLOGIES, LLC,
Appellant,
v.
UNITED FIBER WORKS, LLC, and
R and E DRILLING, LLC,
Appellees.
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On appeal from the Circuit Court for Volusia County.
Michael Scott Orfinger, Judge.
Annette M. Lindskog, of Frost Brown Todd LLP, Indianapolis,
IN, for Appellant.
Sarah L. Metz, Jennifer G. Gillikin, and Frank S. Ganz, of
Smith Bigman Brock, Daytona Beach, for United Fiber Works,
LLC.
No Appearance for Remaining Appellee.
April 10, 2026
HARRIS, J.
Metronet Technologies, LLC (“Metronet”) appeals the trial
court’s Order Denying its Motion to Compel Arbitration in United

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Fiber Works, LLC’s (“United”) Amended Complaint for Damages.
For the reasons below, we agree that Metronet waived its right to
arbitration and affirm.
In August 2023, United filed a complaint against R&E
Drilling, LLC (“R&E”) for breach of a non-compete contract for
working directly with Metronet. A year later, United amended its
complaint, adding Metronet as a defendant, alleging that Metronet
aided and abetted R&E’s breach of contract.
Metronet filed a Motion to Dismiss the Amended Complaint
for Damages and further sought to compel arbitration. Metronet
filed a brief in support of its motion, attaching the Master
Contractor Agreement between Metronet and United. Section 28
of the agreement requires, in part:
Any claim or controversy related to or arising
out of the Agreement or any other Contract
Document, whether in contract or in tort
(“Dispute”), will be resolved on a confidential
basis, according to the following process, which
either party may start by delivering to the other
party a written notice describing the Dispute
and the amount involved (“Demand”).
After receipt of a Demand, authorized
representatives of the parties will meet at a
mutually agreed upon time and place to try to
resolve the Dispute by negotiation. If the
Dispute remains unresolved thirty (30) days
after receipt of the Demand, either party may
start binding arbitration in Evansville, Indiana.
Metronet subsequently responded to United’s first request
for production and later propounded its own set of interrogatories
and requests for production of documents to co-defendant R&E.
The interrogatories sought R&E to identify: all persons who have
obtained a written statement or recorded oral statement
concerning any of the events described in the complaint; all actions
R&E took to inform Metronet of the non-compete agreement with
United; all communications between Metronet and R&E related to

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the non-compete agreement; all projects for which R&E was hired
by Metronet or United for a certain time period; communications
between R&E and United regarding the non-compete agreement;
and an explanation of each experts’ testimony expected to testify
at trial. The request for production sought all: documents referred
to in the answers to the first set of interrogatories; contracts and
agreements between R&E and United or Metronet; documents
concerning communications between R&E and United or Metronet
related to the non-compete or events alleged in the complaint; and
communications, written or oral, obtained from any person
concerning the events at issue in the complaint.
On April 8, 2025, the court held a hearing on Metronet’s
motion to compel arbitration. At the conclusion of the hearing, the
court orally pronounced its ruling denying Metronet’s motion.
Three days later, Metronet filed a Notice of Withdrawal of
Discovery Requests.
The trial court then entered its written order denying
Metronet’s motion to compel arbitration noting that the parties did
not challenge the validity of the arbitration clause in the Master
Contract Agreement. The court also found that an arbitrable issue
existed. However, the court rejected Metronet’s argument that
“because it moved to compel arbitration before serving discovery,
it did not waive its right to arbitrate.” The court concluded that
Metronet waived its right to arbitrate because it served and
propounded discovery upon co-defendant R&E, reasoning that
“Florida law is clear that engaging in discovery on the merits of a
case constitutes a waiver of the right to arbitrate, even when that
right is timely invoked.”
The court noted that after its oral pronouncement at the
hearing, Metronet withdrew its discovery request. However, the
court found that the withdrawal did not undo the waiver of
Metronet’s right to arbitrate. Accordingly, the court ordered
Metronet to file an answer to United’s complaint within fifteen
days.
Metronet moved to reconsider, arguing in part that its
withdrawal of discovery requests removed any doubt as to whether
it acted consistently with its right to arbitrate and that its

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participation in merits discovery was “forced” because United
served requests for production of documents and Metronet was
obligated to respond. The court denied Metronet’s motion to
reconsider and this appeal followed.
“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.” Green
Tree Servicing, LLC v. McLeod, 15 So. 3d 682, 686–87 (Fla. 2d DCA
2009) (quoting Mora v. Abraham Chevrolet−Tampa, Inc., 913 So.
2d 32, 33 (Fla. 2d DCA 2005)).
Metronet argues that the trial court applied an improper
legal standard which focused solely on whether Metronet engaged
in any merits-based discovery to determine whether it waived its
right to arbitrate. Metronet asserts that the legal standard applied
by the trial court creates a loophole in which a party could defeat
arbitration simply by serving discovery, forcing the opposing party
to choose between waiving its arbitration rights or violating
discovery rules by failing to respond. Metronet argues that the
trial court failed to consider the “totality of the circumstances” to
determine whether waiver occurred, contending that a proper
consideration of the totality of the circumstances by the trial court
would have led it to conclude that Metronet’s insignificant
participation in discovery alone—coupled with the initial assertion
of arbitration rights—was insufficient to result in a waiver.
United responds that the timing asserting Metronet’s right
to arbitrate is not dispositive of whether it waived this right, and
further argues that there is competent substantial evidence to
support the trial court’s finding of waiver because Metronet served
merit discovery that was significant in scope. United points out
that the first set of interrogatories and request for production
requested several different categories of documents and
communications that related to the claims alleged in the complaint
and that this discovery related to the central issues of the lawsuit.
Metronet did not set a hearing on its motion to compel arbitration
until four months after filing it, during which it propounded
discovery upon R&E. Metronet also did not object when it received
discovery requests from United and responded to same, and
Metronet did not seek a stay of the proceedings. Thus, United

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argues, Metronet acted inconsistently with the right to arbitration.
We agree.
The right to arbitrate is based on contract and may be
waived. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d
707, 711 (Fla. 2005). The waiver of the right to arbitrate is a
threshold matter for the trial court to determine. Seifert v. U.S.
Home Corp., 750 So. 2d 633, 636 (Fla. 1999). 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.” Saldukas, 896 So.
2d at 711. In determining whether a party has waived this right,
the “essential question is whether, under the totality of the
circumstances, the defaulting party has acted inconsistently with
the arbitration right.” Lion Gables Realty Ltd. v. Randall Mech.,
Inc., 65 So. 3d 1098, 1100 (Fla. 5th DCA 2011) (quoting Saldukas,
896 So. 2d at 711).
Contrary to what Metronet argues, the act of propounding
merits based discovery and availing itself to the Florida Rules of
Civil Procedure is an action inconsistent with its right to
arbitration. Florida District Courts have held that active
participation in discovery related to the merits of the lawsuit is
generally considered inconsistent with, and thus a waiver of, the
right to arbitrate. See Olson Elec. Co. v. Winter Park Redev. Ag.,
987 So. 2d 178, 179 (Fla. 5th DCA 2008) (“We hold that under the
totality of the circumstances presented in this case, WPRA waived
its right to seek arbitration by issuing discovery requests directed
to the merits of the lawsuit because such conduct was inconsistent
with the claim asserted in its answer that the matter was subject
to arbitration.”); Gordon v. Shield, 41 So. 3d 931, 933 (Fla. 4th DCA
2010) (“[T]he active participation in litigation or the propounding
of discovery would be circumstances where the right to arbitrate
would be deemed waived.”); Green Tree Servicing, LLC, 15 So. 3d
at 694 (finding competent, substantial evidence supported trial
court’s finding that defendant waived right to arbitrate where it
propounded requests to produce and interrogatories directed at
merits, then filed motion to compel responses); Est. of Orlanis ex
rel. Marks v. Oakwood Terrace Skilled Nursing & Rehab. Ctr., 971
So. 2d 811, 812 (Fla. 3d DCA 2007) (holding defendants waived
right to arbitrate where they availed themselves of benefit of

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discovery rules by propounding interrogatories, requests to
produce and notices to produce to non-parties).
In SHP IV Harbour Island, LLC v. Boylan, 273 So. 3d 249,
250 (Fla. 5th DCA 2019), the defendant timely moved to dismiss
and compel arbitration in response to a complaint for negligence
and breach of fiduciary duties. Pursuant to the parties’ stipulation,
the trial court authorized the parties to conduct limited discovery
regarding arbitration. Id. However, in a subsequent deposition,
defendant’s counsel asked the witness several questions that went
to the merits of the underlying case. Id. This Court agreed with the
trial court that the deposition covered matters extrinsic to the
limited scope permitted by the court’s order and was inconsistent
with the right to arbitrate. Id. This Court noted that it “has
expressly held that engaging in merits discovery is inconsistent
with an arbitration request and constitutes a waiver of the right to
arbitration.” Id.
While Metronet correctly points out that section 682.03(6),
Florida Statutes, requires the trial court to stay “any judicial
proceeding that involves a claim alleged to be subject to the
arbitration until the court renders a final decision[,]” it never
requested such stay either in its motion to compel arbitration or in
any separate filing. Accordingly, we agree with the trial court that
Metronet has waived its right to arbitration by participating in
merits based discovery and affirm the order below.
AFFIRMED.
JAY, C.J., and EDWARDS, J., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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