Bing v. A.G. Edwards & Sons, Inc.
| Decision Date | 22 October 1986 |
| Docket Number | No. 85-2840,85-2840 |
| Citation | 11 Fla. L. Weekly 2244,498 So.2d 1279 |
| Court | Florida District Court of Appeals |
| Parties | 11 Fla. L. Weekly 2244 Scott B. BING and Mary Ellen Bing, his wife, Albert P. McGarity, Linda G. Zingle, David W. Thompson and Kathryn D. Thompson, his wife, Appellants, v. A.G. EDWARDS & SONS, INC., a Delaware corporation doing business in Florida, Appellee. |
Louis B. Vocelle, Jr., of Moss, Henderson & Lloyd, P.A., Vero Beach, for appellants.
Roger W. LaJoie, of Sullivan, LaJoie & Thacker, Vero Beach, for appellee.
This is a third appearance of this case before the court; and the parties are still at the starting line or lines. The first was A.G. Edwards & Sons, Inc. v. Bing, 446 So.2d 134 (Fla. 4th DCA 1983), rev. denied, 447 So.2d 885 (Fla.1984), which explains itself. The second, Case No. 85-124, resulted in a pro forma order, denying certiorari. The issue before the court in that instance, whether or not to grant certiorari, arose out of the trial court's order of December 17, 1984, granting the present appellants' motion to rehear the trial court's original order which compelled arbitration. The trial court granted the motion for rehearing and made two relevant findings; namely, (a) that Oppenheimer & Co. v. Young, 470 U.S. 1078, 105 S.Ct. 1830, 85 L.Ed.2d 131 (1985), was now controlling, citing to Ingerson v. State Farm Mutual Automobile Insurance Company, 272 So.2d 862, 864 (Fla. 3d DCA 1973); and (b) that appellee's memorandum had authorized appellants to resolve the disputes by litigation rather than arbitration. After this court denied certiorari, the supreme court declined to review.
While appellee was seeking review in the supreme court of this court's decision which denied certiorari, it also sought rehearing in the trial court of the order of December 17, 1984, which had granted rehearing of the trial court's original order. The trial court granted appellee's motion on November 22, 1985, directing the parties to proceed with arbitration under the auspices of the New York Stock Exchange, Inc. This appeal followed. There are two issues:
1. Did the trial court err in vacating the order of December 17, 1984, when that order had been previously reviewed by both this court and the supreme court?
2. Did the trial court err in granting the motion for rehearing to compel arbitration, in that A.G. Edwards had filed a written waiver of any right to arbitration?
We conclude that the trial court did not err as to either.
Appellants' contention with respect to the first issue is that the trial court's non-final order of December 17, 1984, was reviewed by this court and the supreme court; thus, the trial court could not reconsider the subject of the order after such review. We disagree, as denial of certiorari without opinion is not review on the merits. There was no "law of the case" established by such review.
Further, it is important to note that the December 17, 1984, order finding arbitration was not necessary was a non-final order. In Motorola Communications and Electronics, Inc. v. National Patient Aids, Inc., 427 So.2d 1042, 1042 (Fla. 4th DCA 1983), this court noted that a trial court can correct its nonfinal orders prior to final judgment. In Motorola this court cited to Tingle v. Dade County Board of County Commissioners, 245 So.2d 76 (Fla.1971), and Keathley v. Larsen, 348 So.2d 382 (Fla.2d DCA 1977), cert. denied, 358 So.2d 131 (Fla.1978). See also Ingerson v. State Farm. Additionally, of course, any ruling by the court which was not addressed when this court and the supreme court denied certiorari, would be subject to review on appeal.
Appellants' second contention is that the...
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