MICHAEL STRAUSS, APPELLANT,
v.
JOSEPH GORMAN, APPELLEE
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Michael Strauss, a Merrill Lynch account executive, appealed the trial court's denial of his motion to compel arbitration and motion to dismiss in a three-count complaint by Joseph Gorman. The court reversed the denial of the motion to compel arbitration as to counts II and III (breach of fiduciary duty, fraud, and theft), which were arbitrable under common law and statutory claims, while leaving count I (Florida Securities Act violations) for reconsideration in light of recent U.S. Supreme Court precedent.
Counts II and III, based on common law and statutory claims, are clearly arbitrable and the motion to compel arbitration should have been granted as to those counts. The motion to dismiss was not appealable as a nonfinal order. Count I regarding Florida Securities Act violations remains subject to reconsideration by the trial court in light of recent U.S. Supreme Court precedent in Dean Witter Reynolds, Inc. v. Byrd.
[1] Common law and statutory claims, other than those specifically exempted by statute, are generally arbitrable.
[2] Claims alleging breach of fiduciary duty and fraud are arbitrable.
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Join FLexlaw to unlock all legal intelligence“Count II, alleging breach of fiduciary duty and fraud, and count III, alleging theft in violation of chapter 812, Florida Statutes (1983), however, are based upon common law and statutory claims that are clearly arbitrable.”
Establishes that common law and statutory claims are arbitrable and supports reversal of the denial of the motion to compel arbitration for counts II and III
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Join FLexlaw to unlock all legal intelligenceMichael Strauss was an account executive for Merrill Lynch, Pierce, Fenner & Smith, Inc. Joseph Gorman filed a three-count complaint against Strauss: …
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PER CURIAM.
Michael Strauss, an account executive for Merrill Lynch, Pierce, Fenner & Smith, Inc., appeals an order which denied his motion to compel arbitration and his motion to dismiss Gorman’s three-count complaint.
In the motion to compel arbitration, Strauss conceded that count I of the complaint which alleges violations of the Florida Securities Act, chapter 517, Florida Statutes (1983), was not arbitrable on authority of Oppenheimer & Co. v. Young, 456 So. 2d 1175 (Fla.1984). Oppenheimer was subsequently vacated by the United States Supreme Court at — U.S. -, 105 S.Ct. 1830, 85 L.Ed.2d 131 (1985) for reconsideration in light of Dean Witter Reyn olds, Inc. v. Byrd, — U.S. -, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985).1
Count II, alleging breach of fiduciary duty and fraud, and count III, alleging theft in violation of chapter 812, Florida Statutes (1983), however, are based upon common law and statutory claims that are clearly arbitrable. See Belke v. Merrill Lynch, Pierce, Fenner & Smith, 693 F. 2d 1023, 1025 (11th Cir.1982); Sabates v. International Medical Centers, Inc., 450 So. 2d 514, 518 (Fla. 3d DCA 1984).2
In support of the motion to dismiss the complaint, Strauss argues that Florida Rule of Civil Procedure 1.420(a)(1) precludes the maintenance of any action which has been twice voluntarily dismissed and asserts the appealability of the order denying the motion by casting it as a determination of jurisdiction over his person. The court’s ruling on the motion is actually a nonappealable nonfinal order which does not involve service of process or the applicability of a long-arm statute as does a true “jurisdiction of the person” case. See Department of Professional Regulation v. Rentfast, Inc., 467 So. 2d 486 (Fla. 5th DCA 1985); Page v. Ezell, 452 So. 2d 582 (Fla. 3d DCA 1984); Fla.R.App.P. 9.130(a)(3)(C)(i).
We REVERSE the order of the trial court denying Strauss’s motion to compel arbitration as to counts II and III of the complaint. On remand the trial court may reconsider the motion to compel arbitration of count I in light of Byrd. The appeal from denial of the motion to dismiss is DISMISSED.
. Although Byrd did not address the precise issue presented in Oppenheimer, the indications are that a claim under the Florida Securities Act is now arbitrable. The question is certain to be answered by the Florida Supreme Court in its reconsideration of Oppenheimer. . Byrd appears to signal a demise of the intertwining doctrine so that the arbitrability of counts II and III is not dependent upon the arbitrability of count I.
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Ronbeck Constr. Co., Inc. v. Savanna Club Corp. & Savanna Club Realty Inc., 592 So. 2d 344 (Fla. 4th DCA 1992)…ient to overcome the parties’ agreement to arbitrate or to bring this particular statutory violation within that narrow class of cases that have been excepted from arbitration on public policy grounds. 450 So. 2d at 518. See also Strauss v. Gorman, 471 So. 2d 1303 (Fla. 3d DCA 1985). Here, the only claim arguably outside the scope of the arbitration provision is the claim for damages under the oral agreement and for rescission of it, and those claims appear factually related to all the other claims. The tria…
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Sanford H. Cole, M.D. v. Posada, 555 So. 2d 367 (Fla. 3d DCA 1989)…iction of the person” issue. Under rule 9.130(a)(3)(C)(i), “jurisdiction of the person” has been interpreted as referring to whether the service of process was proper or whether the long-arm statute has been correctly applied. See Strauss v. Gorman, 471 So. 2d 1303 (Fla.3d DCA 1985); Page v. Ezell, 452 So. 2d 582 (Fla.3d DCA 1984); National Lake Developments, Inc. v. Lake Tippecanoe Owners Association, Inc., 395 So. 2d 592 (Fla.2d DCA 1981), approved, 417 So. 2d 655 (Fla.1982); American Health Association, Inc…
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Dexx Med. Indus. v. Fitesa Naotecidos S.A., 346 So. 3d 1215 (Fla. 3d DCA 2022)…isdiction of the person’ has been interpreted as referring to whether the service of process was proper or whether the long-arm statute has been correctly applied.” Cole v. Posada, 555 So. 2d 367, 368 (Fla. 3d DCA 1989); see also Strauss v. Gorman, 471 So. 2d 1303, 1304 (Fla. 3d DCA 1985); Page v. Ezell, 452 So. 2d 582, 583 (Fla. 3d DCA 1984). A plain reading of rule 9.130(a)(3)(C)(i) demonstrates “the requirement that we are to construe narrowly the categories of non-final orders subject to interlocutory a…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213 (U.S. 1985)
- Belke v. Merrill Lynch, 693 F.2d 1023 (11th Cir. 1982)
- William I. Sabates, M.D. v. Int'l Med. Ctrs., Inc., 450 So. 2d 514 (Fla. 3d DCA 1984)
- Oppenheimer & Co., Inc. v. Young, 456 So. 2d 1175 (Fla. 1984)
- Page v. Gale Glass Ezell and Sheldon Ezell, 452 So. 2d 582 (Fla. 3d DCA 1984)
- Dep't OF Prof'l Reg. & Geraldine Johnson v. Rentfast, Inc., 467 So. 2d 486 (Fla. 5th DCA 1985)