        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

      PHILIP C. IGLEHART, DAVID C. IGLEHART and PCI, LLC,
                           Appellants,

                                      v.

  MITBANK USA, INC., a Florida corporation, and DAVID McINTOSH,
                            Appellees.

                        Nos. 4D19-86 and 4D19-87

                            [November 20, 2019]

    Consolidated appeals of a nonfinal order from the Circuit Court for the
Fifteenth Judicial Circuit, Palm Beach County; Lisa S. Small, Judge; L.T.
Case Nos. 50-2018-CA-003874-XXXX-MB and 50-2018-CA-009155-
XXXX-MB.

  Michael J. Napoleone and Katherine A. Coba of Day Pitney
LLP/Richman Greer, West Palm Beach, for appellants.

   Scott Cole of Cole Scott & Kissane, Miami, for appellee, Mitbank USA,
Inc., a Florida corporation.

   Curtis Alva of Alva & Gleizer, PLLC, West Palm Beach, and Rodolfo
Sorondo, Jr. of Holland & Knight LLP, Miami, for appellee, David McIntosh.

GROSS, J.

   Philip Iglehart, David Iglehart, and PCI, LLC appeal a nonfinal order
denying their motion to compel arbitration. We reverse the order because
the trial court erred in concluding that appellants had waived arbitration.

   The relationship between two agreements is at the center of this case.
There is a land trust agreement which created the Bluefield Ranch
Mitigation Bank Trust. The trust agreement named Philip Iglehart and
David McIntosh as co-trustees. In his capacity as a co-trustee of the land
trust, Philip Iglehart signed a management agreement establishing the
duties of MitBank, USA, Inc. as the trust manager.

    The land trust agreement contains an arbitration clause stating that
“[a]ll disputes arising out of, or in any way relating to, this Agreement shall
be resolved by arbitration.” The management agreement contained this
venue provision:

      Venue for the adjudication of any dispute under this
      Agreement shall be in Palm Beach County, Florida, and the
      parties consent to the jurisdiction of the appropriate
      courts exercising jurisdiction over such disputes in Palm
      Beach County, Florida.

(Emphasis supplied).

    Philip Iglehart sued MitBank in the circuit court of Palm Beach County
alleging breaches of the management agreement. Contemporaneously
with the filing of the complaint, Iglehart filed and served discovery requests
on MitBank. In a second amended complaint, Iglehart complied with a
court order to add McIntosh as a party defendant to the management
agreement litigation.

   McIntosh filed a separate lawsuit against all three appellants alleging
breaches of the trust agreement. Appellants responded to service of the
complaint with a motion to compel arbitration. Later, McIntosh and
MitBank filed counterclaims and crossclaims in the first case alleging that
appellants committed torts and breached certain duties under the trust
agreement, as well as the management agreement. Iglehart and the other
appellants moved to (1) sever the counterclaims and (2) compel arbitration.

   The circuit court denied appellants’ motions to compel arbitration,
ruling that Iglehart’s initial lawsuit conflicted with the arbitration clause,
so that his pursuit of litigation and discovery amounted to a waiver of the
right to arbitrate.

    Waiver is the intentional relinquishment of a known right. Typically,
Florida courts have found that arbitration has been waived where a litigant
has knowingly engaged in conduct that is inconsistent with the right to
arbitrate. See, e.g., Doctors Assocs., Inc. v. Thomas, 898 So. 2d 159, 162
(Fla. 4th DCA 2005) (explaining that a party who actively participates in a
lawsuit waives the right to arbitration because active participation is
“generally presumed to be inconsistent with the intent to arbitrate”)
(citation omitted); Inverrary Gardens Condo. I Ass’n, Inc. v. Spender, 939
So. 2d 1159, 1161-62 (Fla. 4th DCA 2006) (determining that the filing of a
motion for summary judgment on the merits was inconsistent with a
party’s right to arbitrate).



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   This case is different from the cases finding a waiver of arbitration
because the parties entered into two related agreements with different
dispute resolution provisions. Although the land trust agreement broadly
states that all disputes relating to the agreement shall be arbitrated, the
management agreement plainly states that the parties “consent” to the
jurisdiction of Palm Beach County courts for the “adjudication of any
dispute under this Agreement.”

   One fair reading of the interplay between these agreements is that all
disputes arising out of or in any way relating to the trust agreement shall
be arbitrated, except for disputes under the management agreement,
which shall be resolved in the courts. Where agreements are entered into
contemporaneously, they should be construed to give effect to all
provisions of both agreements. See, e.g., J. M. Montgomery Roofing Co. v.
Fred Howland, Inc., 98 So. 2d 484, 486 (Fla. 1957) (“[W]here an agreement
is evidenced by two or more writings, the writing must be construed
together.”; Huntington on the Green Condo. v. Lemon Tree I-Condo., 874 So.
2d 1, 4 (Fla. 5th DCA 2004) (“[W]here two contracts are part and parcel of
the same general transaction, they may under some circumstances be
interpreted together.”) (citation omitted).

   At oral argument, appellees contended that the venue provision in the
management agreement applies to a minute sliver of potential matters that
involve the management agreement but which do not arise out of or in any
way relate to the trust agreement. The likelihood of such potential matters
existing approaches absolute zero. It is unreasonable to construe the two
related agreements in a way that nullifies an express provision of one of
them.

   Iglehart’s initial lawsuit concerned breaches of only the management
agreement.     Appellants cannot be said to have knowingly waived
arbitration of matters concerning the trust agreement by complying with
the venue provision required by the management agreement.

   We reverse the order denying appellants’ motion to compel arbitration
and remand to the circuit court for further proceedings consistent with
this opinion.

MAY and KUNTZ, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.


                                   -3-
