SHEARSON, LEHMAN, HUTTON, INC., JOHN TILL AND MARVIN LERMAN, APPELLANTS,
v.
HOWARD LIFSHUTZ, ET AL., APPELLEES
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In this non-final appeal, the Fourth District Court of Appeal affirmed the trial court's denial of a motion to compel arbitration, holding that the appellants (brokerage firm and representatives) failed to establish an enforceable written agreement to arbitrate disputes regarding certain brokerage accounts with the appellees (customers).
The court affirmed the denial of the motion to compel arbitration, finding that the appellants failed to establish that the appellees signed or assented to the brokerage agreement. The record did not support a finding that an enforceable agreement to arbitrate existed between the parties.
[1] A party seeking to compel arbitration bears the burden of establishing the existence of an enforceable written agreement to arbitrate.
[2] When a dispute arises regarding whether parties are bound by an agreement to arbitrate, the trial court must make factual determinations regarding the existence of such a…
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Join FLexlaw to unlock all legal intelligence“The appellants had the burden of establishing that an enforceable written agreement to arbitrate existed between the parties.”
Establishes the legal standard and burden of proof required for compelling arbitration.
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Join FLexlaw to unlock all legal intelligenceShearson, Lehman, Hutton, Inc., and two of its representatives sought to compel arbitration of disputes with customers Howard Lifshutz and others rega…
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POLEN, Judge.
This non-final appeal arose as a result of an evidentiary hearing on the appellants’ motion to compel arbitration. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v).
The appellants had the burden of establishing that an enforceable written agreement to arbitrate existed between the parties. See §§ 682.02 and 682.03, Fla. Stat. (1991). The appellees had maintained throughout the litigation that they did not enter into any specific written agreements with the appellants as to the brokerage accounts at issue. Although the appellants produced their standard brokerage contract with its standard arbitration clause at the hearing on their motion to compel arbitration, the appellees denied that they signed or assented in any way to the agreement or the arbitration clause.
The appellants entered into evidence other brokerage agreements signed by the appellees for other accounts, as well as a power of attorney in favor of Attorney Miller, signed by Mr. Lifshutz. After this evidence was presented the trial court found that the appellants had failed to establish that there was a valid enforceable agreement to arbitrate as to the accounts in question. No handwriting experts were called, nor was there any other attempt to authenticate the illegible scratches on the signature lines of the brokerage agreement submitted by the appellants.
In Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Falowski, 425 So. 2d 129 (Fla.4th DCA 1982), we held that when there is a dispute as to whether parties are bound by an agreement to arbitrate, then it is necessary for the trial court to make certain factual determinations. These determinations include whether the customer of the brokerage firm opened the account, how the account was to be maintained, i.e., as trustee or otherwise, and whether there was a pertinent agreement to arbitrate. 425 So. 2d at 130. The trial court in the case at bar, by denying the motion to compel arbitration, found that there was no binding agreement to arbitrate in light of the evidence submitted.
We affirm the denial of the motion to compel arbitration both because of the trial court’s findings of fact and as a matter of law. The record does not show any evidence that the appellees signed or assented to the brokerage agreement submitted by the appellants.
HERSEY, J., concurs.
ANSTEAD, J., dissents with opinion.
ANSTEAD, Judge,
dissenting.
The appellants were sued on various claims involving alleged misconduct in the handling of certain brokerage accounts. At the hearing on the motion to compel arbitration, the appellants successfully introduced into evidence, as business records, executed account agreements that provided for arbitration. That was the only evidence received at the hearing. As a consequence, in my view, the only evidence in the record is evidence of an agreement to arbitrate. See Cadaval v. Dean Witter Reynolds, Inc., 703 F.Supp. 922 (S.D.Fla. 1989). I would reverse and remand with directions to order arbitration.
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Morgan Stanley DW Inc. v. Halliday, 873 So. 2d 400 (Fla. 4th DCA 2004)…y, we also reject Morgan Stanley’s companion argument that because Janet C. Halliday had a separate individual customer account agreement with an arbitration clause she is bound by the Trustee's contract. See Shearson Lehman Hutton Inc. v. Lifshutz, 595 So. 2d 996 (Fla. 4th DCA 1992) (holding that fact that customer has other accounts as matter of law is insufficient to bind customer to arbitration in dispute over account on which customer had not signed). . We note, as the trial judge did, that plaintiff do…
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Rocky Creek Ret. Props., Inc. v. The Est. OF Va. B. FOX, 19 So. 3d 1105 (Fla. 2d DCA 2009)…2009 WL 1075991 (M.D.Fla. Apr. 21, 2009) (holding plaintiff was not bound by arbitration agreement when she contended that her signature was forged and the defendant presented no evidence to the contrary); Shearson, Lehman, Hutton, Inc. v. Lifshutz, 595 So. 2d 996 (Fla. 4th DCA 1992) (same). Here, unlike in those cases, there is no dispute that Ms. Fox signed the Agreement, as did her daughter. In the absence of a dispute concerning the validity of Ms. Fox’s signature, Rocky Creek was not required to present…
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Steve Owren, Inc. v. Connolly, 877 So. 2d 918 (Fla. 4th DCA 2004)…, as between these two parties, the one who should lose on the issue of an agreement to arbitrate is the one who failed to carry its burden of proving an acceptance of arbitration as a contractual remedy. See Shearson Lehman Hutton Inc. v. Lifshutz, 595 So. 2d 996, 997 (Fla. 4th DCA 1992) (proponent of arbitration has burden of establishing an enforceable written agreement, to .arbitrate). That is the one we apply today. We have only recently emphasized the rule that no party may be forced to submit' a dispu…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Merrill Lynch v. James F. Falowski under the Last Will and Testament of John J. Falowski, 425 So. 2d 129 (Fla. 4th DCA 1982)
- Cadaval v. Dean Witter Reynolds, Inc., 703 F. Supp. 922 (S.D. Fla. 1989)