
    John C. CUNNINGHAM, as Trustee for Professional Deferred Trust, Appellant, v. DEUSCHLE CONSTRUCTION COMPANY, a Florida company, Appellee.
    No. 91-2563.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1992.
    No appearance for appellant.
    Ilene D. Napp of Deuschle & Associates, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED.

LETTS and FARMER, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting.

By sworn affidavit, the appellant has created an issue of fact as to whether the arbitration provision of the parties’ contract was subsequently waived in writing. Accordingly, I would hold that the trial court erred in failing to conduct an eviden-tiary hearing on the arbitration issue in accord with our holding in Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 425 So.2d 127 (Fla. 4th DCA 1982), rev. denied, 433 So.2d 519 (Fla.1983).  