MORTON Z. LEVINE AND ASSOCIATES, CHARTERED AND MORTON Z. LEVINE, PETITIONERS,
v.
GEORGE VAN DEREE AND SUSAN VAN DEREE, HUSBAND AND WIFE, RESPONDENTS
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The court addresses whether tort claims (misrepresentation, breach of fiduciary duty, and negligence) arising from an architectural services contract must be submitted to arbitration under a broad arbitration clause. The court held that all claims arising out of or relating to the contract, including tort claims, fall within the scope of the arbitration agreement and must be arbitrated.
The court held that all claims arising out of or relating to the contract, including those sounding in tort, must be arbitrated under the arbitration clause. Tort claims that are inextricably linked to the contract are subject to arbitration and cannot be pursued in litigation.
[1] A contractual arbitration clause is enforceable for claims arising out of or relating to the agreement or its breach, even if the claims are framed in tort.
[2] Claims for misrepresentation and breach of fiduciary duty arising from a contract for services are subject to arbitration if the contract contains a broad arbitration cla…
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Join FLexlaw to unlock all legal intelligence“All claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise.”
The arbitration clause language showing its broad scope covering all claims and disputes related to the contract
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Join FLexlaw to unlock all legal intelligenceRespondents Van Deree hired petitioners Morton Z. Levine and Associates for architectural services. When a dispute arose, respondents filed suit alleg…
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HOBSON, Acting Chief Judge.
Respondents brought suit against petitioners on a contract for architectural services. The amended complaint contained three counts. The first count was for a breach of the contract and demanded damages. The second count alleged misrepresentation and breach of a fiduciary duty to the respondents and demanded damages. The third count was based on negligence and demanded damages. The petitioners filed a motion to dismiss all counts and a motion to compel arbitration.
The contract contained a standard arbitration clause, the essential part of which provided:
“11.1 All claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration l'aw.”
The trial court entered an order dismissing count 1 and ordering respondents to submit to arbitration as to count 1. The court denied the motion to dismiss and compel as to counts 2 and 3 for the reason that they were founded on allegations sounding in tort. The petitioners brought this petition for writ of certiorari to review the denial of their motion to dismiss and compel arbitration as to counts 2 and 3.
The respondents rely mainly on two cases: Shearson, Hammill & Co. v. Vouis, Fla.App.3d 1971, 247 So. 2d 733, and Klosters Rederi A/S v. Arison Shipping Company, Fla.1973, 280 So. 2d 678. For the reasons set forth by our sister court in Mills v. Robert W. Gottfried, Inc., Fla.App.4th 1973, 272 So. 2d 837, we respectfully decline to apply the rationale of Shearson, supra, to this case.
The facts in Klosters, supra, are in many ways distinguishable from the instant case. There, there were complicated issues, some of which involved allegations of fraud, the presence of numerous third parties, and a receiver had been appointed,' which appointment was affirmed on appeal. The Supreme Court, in Klosters, also pointed out that the party demanding arbitration had acted inconsistently with its demand, which constituted a waiver of any contractual right to arbitration. None of these facts are present in this case.
This case is more nearly in line with Watson v. Chase Chemical Corporation, Fla.App.lst 1971, 249 So. 2d 53. In Watson, although the complaint alleged fraud and misrepresentation, it demanded damages and the appellate court affirmed the trial court where it dismissed the complaint because of the agreement to arbitrate set forth in the contract between the parties.
This court, in Merkle v. Rice Construction Company, Fla.App.2d 1973, 271 So. 2d 220, held that a complaint to declare null and void an arbitration agreement contained in a contract entered into between the parties should be dismissed and any differences resolved through arbitration as provided in the agreement entered into between the parties.
The purpose of arbitration is to avoid litigation such as this. Therefore, the petition for writ of certiorari is granted.
BOARDMAN and GRIMES, JJ., concur.
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VIC Potamkin Chevrolet, Inc. v. Bloom, 386 So. 2d 286 (Fla. 3d DCA 1980)…t the interlocutory appeal as a petition for common law certiorari pursuant to Florida Rule of Appellate Procedure 9.100. In doing so, we find ourselves in alignment with the Second District in Morton Z. Levine and Associates Chartered v. Van Deree, 334 So. 2d 287 (Fla. 2d DCA 1976) and the Fourth District in Lumbermen’s Mutual Casualty Company v. Beaver, 355 So. 2d 441 (Fla. 4th DCA 1978) and King v. Thompson & McKinnon Auchincloss Kohlmeyer, Inc., 352 So. 2d 1235 (Fla. 4th DCA 1977). The respondents filed…
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Lapidus v. Arlen Beach Condo. Ass'n, Inc., 394 So. 2d 1102 (Fla. 3d DCA 1981)…ky, 67 So. 2d 427 (Fla.1953); Arrieta v. Volkswagon Insurance Co., 343 So. 2d 918 (Fla. 3d DCA 1977); (b) denial of a right to arbitration may not be adequately remedied by appeal, see, e. g., Morton Z. Levine and Associates, Chartered v. Van Deree, 334 So. 2d 287 (Fla. 2d DCA 1976) (purpose of arbitration is to avoid litigation); Siegel v. Abramowitz, 309 So. 2d 234 (Fla. 4th DCA 1975); and (c) permitting parties to litigate the dispute in court instead of proceeding to arbitration, if there is a right of ar…
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Post Tensioned Eng'g Corp. & Commercial Constr. Corp. v. Fairways Plaza Assocs., 412 So. 2d 871 (Fla. 3d DCA 1982)…tration.8 In light of the strong- public policy favoring arbitration, Fenster v. Makovsky, 67 So. 2d 427 (Fla.1953); Arrieta v. Volkswagen Insurance Company, 343 So. 2d 918 (Fla. 3d DCA 1977); Morton Z. Levine and Associates, Chartered v. Van Deree, 334 So. 2d 287 (Fla. 2d DCA 1976); Siegel v. Abramowitz, 309 So. 2d 234 (Fla. 4th DCA 1975), we cannot accept the proposition that a party to a contract calling for arbitration may avoid that undertaking by the simple device of joining as defendants in its lawsuit…1 / 2
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Klosters Rederi A/S v. Arison Shipping Co., 280 So. 2d 678 (Fla. 1973)
- Mills v. Robert W. Gottfried, Inc., 272 So. 2d 837 (Fla. 4th DCA 1973)
- Shearson v. Vouis, 247 So. 2d 733 (Fla. 3d DCA 1971)
- Merkle v. Rice Constr. Co., 271 So. 2d 220 (Fla. 2d DCA 1973)
- Watson v. Chase Chem. Corp., 249 So. 2d 53 (Fla. 1st DCA 1971)