BARNETT SECURITIES, INC., F/K/A BARNETT BROKERAGE SERVICES, INC., BARNETT BANKS, INC., BARNETT BANK OF JACKSONVILLE, N.A., BARNETT BANK OF NAPLES, AND WILLIAM GIBBS, JR., APPELLANTS,
v.
NELSON A. FAERBER AND GERALDINE C. FAERBER, APPELLEES

Fla. 2d DCA | 1995-01-04
No. 94-00011
DANAHY, A.C.J., and FULMER, J., concur.
648 So. 2d 265 Florida District Court of Appeal, Second District (1995) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Barnett Securities and affiliated entities appealed an order compelling arbitration of the Faerbers' securities claim. The court reversed, holding that Barnett Securities and Mr. Gibbs never refused arbitration, and that no arbitration agreement was established for the other defendants.


Holding

The court reversed the order as to Barnett Securities and Mr. Gibbs because they never refused arbitration, and merely requesting NASD to make a threshold determination on the section 15 limitations issue did not constitute a refusal to arbitrate. The court reversed as to the remaining defendants because the evidence did not establish an arbitration agreement binding the Faerbers to those parties. On remand, the trial court may receive additional evidence regarding the existence of an arbitration agreement but should not rule on the section 15 issue, which must be resolved by NASD.


Headnotes

[1] A trial court should not compel arbitration when the parties seeking arbitration have not refused to arbitrate the claim.

[2] The six-year period of limitations under NASD Code of Arbitration Procedure section 15 is generally a matter to be resolved by arbitrators, not by a court.

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Key Quotes

“The fact that they appropriately requested NASD to make a threshold determination of the section 15 issue did not constitute a refusal to arbitrate.”

Establishes that seeking a threshold determination on limitations issues in the arbitral forum is not equivalent to refusing arbitration

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Facts & Procedural History

In January 1985, the Faerbers invested $1.2 million in Washington Public Power Supply bonds with assistance from Barnett-Naples and advice from Mr. Gi…

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Opinion of the Court
ALTENBERND, Judge.

ALTENBERND, Judge.

The defendants, Barnett Securities, Inc. (Barnett Securities); Barnett Banks, Inc. (Barnett); Barnett Bank of Jacksonville (Barnett-Jacksonville); Barnett Bank of Naples (Barnett-Naples); and William Gibbs, Jr., appeal an order compelling them to arbitrate the claims of Mr. and Mrs. Faerber. We reverse.

In January 1985, the Faerbers invested $1,200,000 in Washington Public Power Supply bonds. The bonds provided substantial tax-free income at favorable interest rates. In 1992, the bonds were called. Thereafter, the Faerbers filed a claim for arbitration with the National Association of Securities Dealers (NASD), alleging that the defendants had misinformed them concerning the call features of the bonds.

In their claim for arbitration, the Faerbers explain that they reside in Naples and bank with Barnett-Naples. The Faerbers arranged to buy the bonds with assistance from Barnett-Naples. Mr. Gibbs provided the expert advice leading to the purchase of these bonds. Mr. Gibbs apparently worked either for Barnett Securities, a subsidiary of Barnett, or for Barnett-Jacksonville.

The defendants responded to the claim in arbitration. Significantly, the defendants have always admitted that Barnett Securities is a member of NASD, and that both it and Mr. Gibbs are subject to arbitration. The other defendants deny that they are parties to any arbitration agreement, but joined in a motion to dismiss or strike in the arbitration proceeding on the basis that the Faerbers’ claim was barred by the six-year period under section 15 of the NASD Code of Arbitration Procedure. That motion was appropriately filed in the NASD proceeding because the period of limitations under section 15 is generally a matter to be resolved by the arbitrators rather than by a court. Wylie v. Investment Management & Research, Inc., 629 So. 2d 898 (Fla. 4th DCA 1993); Marschel v. Dean Witter Reynolds, Inc., 609 So. 2d 718 (Fla. 2d DCA 1992), review denied, 617 So. 2d 318 (Fla.1993).

On October 19, 1993, the Director of Arbitration at NASD ruled in a letter that the Faerbers’ allegations of wrongdoing prior to December 16, 1986, were not eligible for arbitration. This ruling was made without prejudice to the Faerbers’ reasserting these matters before the arbitrators.

For reasons that are not entirely clear from our record, the Faerbers filed a motion to compel arbitration in circuit court under the Federal Arbitration Act a few days before they received the letter from NASD. Their motion does not allege that the defendants have declined to arbitrate the claim nor does it disclose that the section 15 issue was pending before NASD.

On November 29, 1993, the trial court entered an order compelling all of the defendants to arbitrate the Faerbers’ claim. We reverse the trial court’s order concerning Barnett Securities and Mr. Gibbs because these two parties never refused to arbitrate the Faerbers’ claim. The fact that they appropriately requested NASD to make a threshold determination of the section 15 issue did not constitute a refusal to arbitrate.

We reverse the trial court’s order concerning the remaining defendants because the evidence in the record does not establish the existence of an arbitration agreement that is binding between the Faerbers and the remaining defendants.

On remand, the trial court may receive additional evidence to determine the existence of such an arbitration agreement. It should not, however, make any ruling concerning the section 15 issue that must be resolved by NASD.

Reversed and remanded.

DANAHY, A.C.J., and FULMER, J., concur.


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Citator

Cited By

  • Tartell v. Chera, 668 So. 2d 1105 (Fla. 4th DCA 1996)
    …n and appel-lees, the Cheras, as appellants were not parties to the contract containing the arbitration clause. See Sun City Diner of Boca Raton, Inc. v. Century Fin. Advisors, Inc., 662 So. 2d 967 (Fla. 4th DCA 1995); Barnett Sec., Inc. v. Faerber, 648 So. 2d 265 (Fla. 2nd DCA 1995); Karlen v. Gulf & Western Indus., Inc., 336 So. 2d 461 (Fla. 3d DCA 1976). While appellees contend that the appellants seek to be third party beneficiaries under the contract and are therefore subject to its arbitration clause,…

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