       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

              PERFORMANCE AIR MECHANICAL, INC.,
                         Appellant,

                                   v.

              MILLER CONSTRUCTION SERVICES, INC.,
                           Appellee.

                              No. 4D20-41

                             [July 1, 2020]

  Appeal of nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Raag Singhal, Judge; L.T. Case No.
CACE-17-013411.

   Michael A. Rosenberg and Peter D. Weinstein of Cole, Scott & Kissane,
P.A., Plantation, for appellant.

   No appearance for appellee.

KUNTZ, J.

   Performance Air Mechanical, Inc. appeals a nonfinal order denying its
motion to compel arbitration. Applying Virginia law, the circuit court
found that Performance Air waived a contractual arbitration provision
when it participated in litigation proceedings. We reverse and remand.

                             Background

   Performance Air entered into a “Refrigeration Maintenance/Service
Contract Subcontractor Agreement” with Miller Construction Services to
provide refrigeration maintenance and services at Costco Warehouse
Corporation’s Florida locations.

  The parties agreed Virginia law governed the contract, and any disputes
were subject to arbitration in Virginia.

   Miller Construction filed a complaint against Performance Air in
Florida, alleging that Performance Air conducted a refrigerant conversion
project at a Costco location. Problems during the conversion process led
to food spoliation.    Although Miller Construction initially sought
indemnification from Performance Air before paying Costco for the loss of
product, Miller Construction later paid Costco the loss amount under its
own contract with Costco.

   Performance Air answered the complaint and engaged in discovery. But
after new counsel appeared on its behalf,1 Performance Air moved to cease
all discovery and compel arbitration under the contract’s arbitration
provision.

   The court held a hearing on the motion to compel arbitration and
determined that Virginia law applied to the issue and that Performance Air
waived its right to demand arbitration under Virginia law.

                                    Analysis

   On appeal, Performance Air argues the circuit court correctly
determined Virginia law governs the contract but incorrectly applied
Virginia’s laws in deciding Performance Air waived its right to arbitration.2

   The Virginia Supreme Court has explained that “[t]he first duty of a
court asked to compel arbitration of a dispute is to ‘determine whether the
parties agreed to arbitrate that dispute.’” Bank of the Commonwealth v.
Hudspeth, 714 S.E.2d 566, 569 (Va. 2011) (quoting Mitsubishi Motors Corp.
v. Soler Chrysler-Plymouth, 473 U.S. 614, 626 (1985)). Here, it is
undisputed that the parties agreed to arbitrate. Instead, the issue is
whether Performance Air waived that right.

   “There is no mandatory authority from Virginia courts on the issue of
waiver of arbitration; however, there is ample persuasive authority from
the Fourth Circuit Court of Appeals interpreting the Federal Arbitration
Act, which has been frequently cited by other circuit courts in Virginia.”
Shoosmith Bros., Inc. v. Hopewell Nursing Home, LLC, 78 Va. Cir. 427
(2009); see also Ahern v. Toll Bros., Inc., 55 Va. Cir. 18 (2001) (stating that
the Virginia Uniform Arbitration Act, Va. Code § 8.01-581.01 et seq., is
similar to the Federal Arbitration Act “in all material respects”).



1The exact circumstances leading to Performance Air obtaining new counsel are
unknown, but the record suggests an undisclosed conflict of interest prohibited
prior counsel’s continued representation.
2No answer brief was filed in this appeal. As a result, for purposes of this appeal,
we accept the circuit court’s conclusion that Virginia law governs the dispute.

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   In Ahern, the court stated that “[a] litigant may waive its right to
arbitrate by utilizing the litigation machinery in a way that will cause
prejudice to the party opposing arbitration if it is later permitted.” 55 Va.
Cir. at 24 (emphasis added) (citing Maxum Founds., Inc. v. Salus Corp., 779
F.2d 974, 981 (4th Cir. 1985)). And “[t]he party opposing arbitration ‘bears
the heavy burden of proving waiver.’” Shoosmith Bros., Inc., 78 Va. Cir. At
427 (quoting MicroStrategy, Inc. v. Lauricia, 268 F.3d 244, 249–50 (4th Cir.
2001)).

  The court in Shoosmith quoted the Fourth Circuit’s explanation of
waiver in MicroStrategy, Inc. In that case, the Fourth Circuit explained:

      A party may waive its right to insist on arbitration if the party
      “so substantially utiliz[es] the litigation machinery that to
      subsequently permit arbitration would prejudice the party
      opposing the stay.” Maxum, 779 F.2d at 981. But even in
      cases where the party seeking arbitration has invoked the
      “litigation machinery” to some degree, “[t]he dispositive
      question is whether the party objecting to arbitration has
      suffered actual prejudice.” Fraser v. Merrill Lynch Pierce,
      Fenner & Smith, Inc., 817 F.2d 250, 252 (4th Cir.1987)
      (emphasis added). “Neither delay nor the filing of pleadings
      by the party seeking a stay will suffice, without more, to
      establish waiver of arbitration. However, delay and the extent
      of the moving party’s trial-oriented activity are material factors
      in assessing a plea of prejudice.” Id. (citation omitted).

MicroStrategy, Inc., 268 F.3d at 249 (alterations in original). Thus, the
party opposing arbitration must show actual prejudice. Heritage Fin. Invs.
v. Geiger, 18 Va. Cir. 131 (1989) (declining to find waiver where “[t]here
has been no showing of actual prejudice to the plaintiff”).

   Miller Construction did not file an answer brief in this appeal, leaving
Performance Air’s arguments unrebutted. On that footing, we cannot
conclude Performance Air waived arbitration. Performance Air answered
the complaint and participated in minimal discovery, but so did the
defendant in Heritage Financial Investments, 18 Va. Cir. at 131. In
Heritage Financial Investments, like in this case, the defendant demanded
arbitration shortly after obtaining new counsel. Id. The court rejected the
plaintiff’s waiver argument even though the defendant answered the
complaint and filed a counterclaim. Id. Waiver requires more. See also
Degidio v. Crazy Horse Saloon & Rest. Inc, 880 F.3d 135, 141 (4th Cir.
2018) (finding waiver when the defendant “employed judicial proceedings
to pursue a litigation strategy for over three years,” “filed multiple motions

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for summary judgment, [and] served discovery . . .”).

    Without the benefit of argument from Miller Construction, and limited
to the record on appeal, we cannot find that Miller Construction would
suffer actual prejudice if compelled to comply with the contract’s
arbitration provision. Nor can we conclude that Performance Air’s activity
in the circuit court was enough to result in waiver.

   As a result, we apply Virginia’s public policy in favor of arbitration and
reverse the circuit court’s order. See Mission Residential, LLC v. Triple Net
Props., LLC, 654 S.E.2d 888, 890–91 (Va. 2008) (citation omitted).

                                Conclusion

   The circuit court’s order denying Performance Air’s motion to compel
arbitration is reversed, and the case is remanded for further proceedings
consistent with this opinion.

   Reversed and remanded.

LEVINE, C.J., and CONNER, J., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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