BUTCHER & SINGER, INC., APPELLANT,
v.
MARK FRISCH, APPELLEE
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Butcher & Singer appeals the dismissal of its breach of contract suit against employee Mark Frisch, arguing that an arbitration clause requiring disputes be resolved under Pennsylvania law and New York Stock Exchange rules is unenforceable in Florida. The court affirmed, holding that because the contract involves interstate commerce, the Federal Arbitration Act applies and makes the arbitration agreement valid and enforceable.
The arbitration agreement is valid and enforceable. Because the contract involves interstate commerce, the Federal Arbitration Act applies and supersedes the Florida rule that arbitration agreements incorporating foreign state law are generally unenforceable absent an arbitration award. The trial court correctly dismissed the suit to enforce arbitration.
[1] A motion to dismiss based on a contractual right to arbitration does not constitute a waiver of that right.
[2] A contract requiring arbitration pursuant to the laws of a foreign jurisdiction is generally not enforceable in Florida if objected to prior to an award.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It does not apply to valid and enforceable arbitration agreements applying federal law even though foreign state law is incorporated in the arbitration agreement.”
Establishes the exception to Florida's rule against arbitration agreements incorporating foreign state law
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Join FLexlaw to unlock all legal intelligenceButcher & Singer, a stock brokerage firm, entered into a Training Agreement with Mark Frisch to become a stock broker. The agreement contained an arbi…
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WALDEN, Judge.
This is an appeal from an order dismissing with prejudice a suit for breach of an employment agreement. Butcher & Singer, Inc., is a stock brokerage firm. It was the plaintiff in the trial court and is the appellant here. Defendant/Appellee, Mark Frisch, entered into a contract (“Training Agreement”) as a trainee with Butcher & Singer to become a stock broker with Butcher & Singer. The contract in question contained this provision:
g) State Law and Arbitration of Disputes. This agreement shall be governed by the laws of the State of Pennsylvania. Any controversy or dispute between you and B & S concerning this agreement shall be submitted for arbitration before the New York Stock Exchange, Inc., in accordance with applicable provisions of the Constitution and Rules of the Board of Directors of the New York Stock Exchange, Inc. Frisch completed the training program and became registered with the New York Stock Exchange, Inc. He then resigned from his employment with Butcher & Singer. Thereupon, Butcher & Singer sued Frisch for breach of contract.
Frisch moved to dismiss the complaint on the ground that Butcher & Singer failed to comply with the arbitration provisions of the contracts. Although Frisch’s motion is not the usual motion to compel arbitration pursuant to Section 682.03(1), Florida Statutes (1981), the substance of the appellee’s pleading is based upon the contractual right to arbitration. Therefore, the “motion to dismiss” filed in this case does not constitute a waiver of the appel-lee’s right to have the parties’ dispute submitted to arbitration. See, e.g., Balboa Insurance Company v. W.G. Mills, Inc., 403 So. 2d 1149 (Fla. 2d DCA 1981); Rinker Portland Cement Corp. v. Seidel, 414 So. 2d 629 (Fla. 3d DCA 1982).
The appealed order of dismissal, in effect, gave approval and force to the contract’s arbitration provision found in paragraph g.
Butcher & Singer basically assert that a contract requiring arbitration pursuant to the laws of a foreign jurisdiction is not enforceable in Florida if either party objects prior to an arbitration award. This is a correct general premise. See Section 682.02, Florida Statutes (1981), Damora v. Stresscon International, Inc., 324 So. 2d 80 (Fla.1975); Romar Transports Ltd. v. Iron and Steel Company of Trinidad and Tobago, Ltd., 386 So. 2d 572, 574 (Fla. 4th DCA 1980); Knight v. H.S. Equities, Inc., 280 So. 2d 456 (Fla. 4th DCA 1973).
However, there is an exception to the foregoing principle, which exception is applicable here. It does not apply to valid and enforceable arbitration agreements applying federal law even though foreign state law is incorporated in the arbitration agreement. Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 405 So. 2d 790 (Fla. 4th DCA 1981); see also Lipton Professional Soccer, Inc. v. Mijatovic, 416 So. 2d 1236 (Fla. 1st DCA 1982).
Moreover, the present case involves interstate commerce and therefore the United States Arbitration Act, 9 U.S.C. §§ 1 to 14 is applicable and the circuit court correctly enforced the agreement. Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, supra. A contractual agreement between a New York Stock Exchange brokerage firm and its employee has been held to be a contract involving interstate commerce within the meaning of the United States Arbitration Act. Shearson Hayden Stone, Inc. v. Liang, 493 F.Supp. 104, 106 (N.D.Ill. 1980), aff’d, 653 F. 2d 310 (7th Cir.1981). See also Legg, Mason & Co. v. Mackall & Coe, Inc., 351 F.Supp. 1367 (1982); Fox v. Merrill Lynch & Co., 453 F.Supp. 561 (1978); Fairchild & Co. v. Richmond, F. & P.R. Co., 516 F.Supp. 1305 (1981).
We hold that the instant contract involved interstate commerce thereby making federal law applicable. Therefore, the trial court correctly entered the order of dismissal by recognizing that the contract’s arbitration provision was valid and enforceable in the Florida Courts.
AFFIRMED.
DOWNEY and DELL, JJ., concur.
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Cited By (11 total)
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U.S. Fire Ins. Co. v. Franko, 443 So. 2d 170 (Fla. 1st DCA 1983)…f petitioner’s motion to dismiss sub judice are based on the contractual right to arbitration. Therefore, the motion to dismiss is, in substance, a motion to compel arbitration and a demand for arbitration. See also Butcher & Singer, Inc. v. Frisch, 433 So. 2d 1360 (Fla. 4th DCA 1983); Rinker Portland Cement Corp. v. Seidel, 414 So. 2d 629 (Fla. 3d DCA 1982). Respondents’ contentions that the dispute is not over the amount of loss and that a nonarbitrable claim asserted subsequent to the order sub judice shou…
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Party Yards, Inc. v. Templeton, 751 So. 2d 121 (Fla. 5th DCA 2000)…. The FAA is applicable in state as well as federal courts. Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984). Where interstate commerce is involved, the U.S. Arbitration Act is applicable. Butcher & Singer, Inc. v. Frisch, 433 So. 2d 1360 (Fla. 4th DCA 1983). . See also Bruce's Juices v. American Can Co., 330 U.S. 743, 67 S.Ct. 1015, 91 L.Ed. 1219 (1947); Powertel, Inc. v. Bexley, 743 So. 2d 570 (Fla. 1st DCA 1999)(arbitration clause can be defeated on any defense existing under the…
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Riverfront Props., Ltd. v. Factor, 460 So. 2d 948 (Fla. 2d DCA 1984)…Although no motion to compel arbitration was ever filed, the substance of petitioner’s pleadings leaves no doubt that petitioner’s only response to the partition suit has been to demand its right of arbitration. See Butcher & Singer, Inc. v. Frisch, 433 So. 2d 1360 (Fla. 4th DCA 1983); Rinker Portland Cement Corp. v. Seidel, 414 So. 2d 629 (Fla. 3d DCA 1982). Therefore, we hold that petitioner did not waive its right to have the dispute submitted to arbitration. The remaining question for our determination is…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Damora v. Stresscon Int'l, Inc., 324 So. 2d 80 (Fla. 1975)
- Shearson Hayden Stone, Inc. v. Liang, 653 F.2d 310 (7th Cir. 1981)
- Valencia Drumgo v. Fla. Dep't OF Commerce, 280 So. 2d 456 (Fla. 1st DCA 1973)
- Ivey v. State, 405 So. 2d 790 (Fla. 4th DCA 1981)
- State v. Augusto Salazar, 405 So. 2d 790 (Fla. 4th DCA 1981)
- Balboa Ins. Co. v. W. G. Mills, Inc., 403 So. 2d 1149 (Fla. 2d DCA 1981)
- Willey v. State, 403 So. 2d 1149 (Fla. 1st DCA 1981)
- Romar Transports, Ltd., Inc. v. Iron & Steel Co. OF Trinidad & Tobago, Ltd., 386 So. 2d 572 (Fla. 4th DCA 1980)
- Lipton Prof'l Soccer, Inc. v. Mijatovic, 416 So. 2d 1236 (Fla. 1st DCA 1982)
- Rinker Portland Cement Corp. v. Seidel, 414 So. 2d 629 (Fla. 3d DCA 1982)