Knight v. H. S. Equities, Inc.

• Decision Date: 20 June 1973
• Docket Number: No. 72-670,72-670
• Parties: James E. KNIGHT, Petitioner, v. H. S. EQUITIES, INC., and John Boozer, Respondents.
• Court: Florida District Court of Appeals

Page 456

280 So.2d 456

James E. KNIGHT, Petitioner, v. H. S. EQUITIES, INC., and John Boozer, Respondents.

No. 72-670.

District Court of Appeal of Florida, Fourth District.

June 20, 1973.

Rehearing Denied July 11, 1973.

Steven Fine, Fort Lauderdale, for petitioner.

Stanley Arthur Beiley, of Paul, Landy, Beiley & Bartel, Miami, for respondent-Equities.

MAGER, Judge.

The petitioner, James E. Knight, plaintiff below, seeks to review by certiorari an order of the trial court granting the motion of respondent, defendant below, to compel arbitration. In essence, the question presented is whether the trial court departed from the essential requirements of law by compelling the parties to arbitrate in accordance with a provision in a written agreement between the parties.

The controversy giving rise to the order under review commenced when petitioner filed a complaint for damages against the respondents. Petitioner alleged that he was a resident of the State of Florida and a customer of the respondent, a foreign corporation in the stock brokerage business in the State of Florida. Petitioner contends that an agent for the respondent made certain unauthorized purchases and sales of stock on behalf of the petitioner resulting in an alleged loss to petitioner in the amount of some $85,000.00. In response to the complaint respondent filed a notion to compel arbitration asserting that in accordance with a 'customer's agreement', which was executed by and between the parties, 'all controversies arising out of or relating to said agreement' were required to be arbitrated. The arbitration provision in question provides:

'16. Any controversy between you and the undersigned arising out of or relating to this contract or the breach thereof, shall be settled by arbitration, in accordance with the rules, then obtaining, of either the Arbitration Committee of the Chamber of Commerce of the State of New York, or the American Arbitration Association, or the Board of Arbitration of the New York Stock Exchange, as the undersigned may elect. If the undersigned does not make such election by registered mail addressed to you at your main office within five (5) days after receipt of notification from you requesting such election, then the undersigned authorizes you to make such election in behalf of the undersigned. Any arbitration hereunder shall be before at least three arbitrators and the award of the arbitrators, or of a majority of them, shall be final, and judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction.

'17. This agreement and its enforcement shall be governed by the laws of the State of New York and its provisions shall be continuous, shall cover individually and collectively all accounts which the undersigned may open or reopen with you, and shall enure to the benefit of your present organization, and any successor organization, irrespective of any change or changes at any time in the personnel thereof, for any cause whatsoever, and of the assigns of your present organization or any successor organization, and shall be binding upon the undersigned, and/or the estate, executors, administrators and assigns of the undersigned.' (Emphasis added.)

It is the basic contention of petitioner that the agreement to arbitrate is not binding since it is an attempt to oust the court's jurisdiction over security transactions, citing in support Shearson, Hammill & Co. v. Vouis, Fla.App.1971, 247 So.2d 733, cert. den. 253 So.2d 444 (Fla.1971). The respondent takes the position that the agreement to arbitrate being valid under New York law is enforceable and not in conflict with the decision in Shearson, supra.

The theories advanced by the respective parties in support of their contentions are not in our view relevant to the disposition of the issue before this court. In the first place the decision in Shearson, supra, is distinguishable and, secondly, the fact that the New York courts have upheld agreements to arbitrate while informative is nonetheless immaterial as hereinafter discussed.

At the outset it is well to observe that prior to the adoption of the Florida Arbitration Code, agreements To arbitrate were generally held to be unenforceable. In Frank J. Rooney, Inc. v. Charles W. Ackerman of Fla., Fla.App.1969, 219 So.2d 110, 113, it is stated:

'. . . it is remembered that, traditionally, agreements arbitrate have been strictly construed because they have the effect of ousting a court of competent jurisdiction of the authority to determine a question initially which will arise in the future. Flaherty v. Metal Products Corp., Fla.1955, 83 So.2d 9; Fenster v. Makovsky, Fla.1953, 67 So.2d 427. It has only been since the adoption of Ch. 682 Fla.Stat. (1967), F.S.A. that these agreements have been recognized as valid in the state of Florida.' (Emphasis added.)

See also Pacific Mills v. Hillman Garment, Fla.1956, 87 So.2d 599; Glens Falls Ins. Co. v. Gulf Breeze Cottages, Fla.1949, 38 So.2d 828; Vol. 6 U. of Fla.L.Rev. pp. 157-193.

In Shearson, supra, the Third District concluded that the Circuit Court did not depart from the essential requirements of law by refusing to stay court proceedings and refusing to compel arbitration under the parties' contract. In so holding the court concluded:

'We base our decision upon the proposition that arbitration of the issues of alleged fraud, misrepresentation, and breach of fiduciary duties Is not consistent with the policy and language of the Florida...