Hirshenson v. Spaccio

800 So. 2d 670, 2001 WL 1516828
CourtDistrict Court of Appeal of Florida
DecidedNovember 30, 2001
Docket5D00-2145
StatusPublished
Cited by24 cases

This text of 800 So. 2d 670 (Hirshenson v. Spaccio) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hirshenson v. Spaccio, 800 So. 2d 670, 2001 WL 1516828 (Fla. Ct. App. 2001).

Opinion

800 So.2d 670 (2001)

Cynthia J. HIRSHENSON, Appellant,
v.
Louis J. SPACCIO, et al., Appellees.

No. 5D00-2145.

District Court of Appeal of Florida, Fifth District.

November 30, 2001.

*671 Allan P. Whitehead of Frese, Nash & Hansen, P.A., Melbourne, for Appellant.

Jeffrey A. Winikoff of Stein, Rosenberg & Winikoff, P.A., Fort Lauderdale, for Appellees.

SAWAYA, J.

Cynthia Hirshenson (Cynthia) appeals a non-final order which required her to arbitrate her claim against the appellees, Louis J. Spaccio (Spaccio) and Anchor Management Group, Inc. (Anchor).[1] We affirm.

*672 Factual Background

In 1995, Cynthia, age 62, and Jerome, age 70, met Spaccio at a financial seminar for retirees given by Spaccio and Anchor. Spaccio was an investment counselor employed by Anchor. Cynthia and Jerome spoke to Spaccio and made arrangements to meet with him to discuss their investment options.

At the meeting, Jerome advised Spaccio that he had a modest income; he and Cynthia had $40,000 invested in Dreyfus Intermediate Tax Free Bond Fund; and his primary concern was that, in the event he predeceased Cynthia, she would have sufficient money to live on comfortably. Jerome asked Spaccio to recommend an alternative, low risk income investment with a greater yield. Spaccio recommended Keller Financial Services, Inc. (Keller), a business involved in financing automobile loans.

Spaccio told Cynthia and Jerome that Brian Keller was "a great guy" and that the Keller notes were practically "a sure thing." He advised them that investing in Keller was like investing in GMAC or Ford Motor Credit and that the notes were secured by over 7,000 automobiles owned by the individual note holders. Further, he stated that if Keller ever defaulted, Meridian Bank & Trust Company would step in and make the principal and interest payments to the note holders.

Cynthia and Jerome opened a securities brokerage account with Anchor and purchased a $40,000 secured promissory note issued by Keller on July 25, 1995. Anchor acted as an "introducing broker," which is a broker engaged in soliciting or accepting orders for the purchase or sale of any commodity for future delivery who does not accept any money, securities or property to guarantee or secure trades or contracts that result therefrom.[2] J.W. Charles Clearing Corporation (JWC) actually carried the account as the "clearing broker."[3] At the time Cynthia and Jerome purchased the Keller bond, they executed a customer agreement with JWC which provided in pertinent part:

JWC will accept from such other broker, without any inquiry or investigation: (a) orders for the purchase or sale of securities and other property in the undersign's account on margin or otherwise and (b) any other instructions concerning the undersign's account or the property therein. The undersigned understands and agrees that JWC shall have no responsibility or liability whatsoever to the undersigned for any acts or omissions of such other broker, its officers, employees or agent. The undersigned agrees and understands that the undersign's broker is not an agent of, or supervised by JWC.

(Emphasis in original). The note provided for interest payments only, with the principal *673 due and payable on December 31, 1999. However, in 1998, Keller went bankrupt, and Cynthia and Jerome lost everything. As a result, Cynthia was unable to have an eye operation she needed. Unfortunately, Jerome passed away shortly after the Keller bankruptcy.

Cynthia filed her initial complaint for damages against Spaccio and Anchor. She alleged five theories of recovery: common law fraud, negligent misrepresentation, breach of fiduciary duty, negligence, and violations of Chapter 517, the Florida Securities Act. Spaccio and Anchor subsequently filed a motion to compel arbitration and stay proceedings and/or motion to dismiss based upon the arbitration clause in the customer agreement between JWC and the Hirshensons. The trial court granted the motion and Cynthia appeals.

The JWC agreement specifically provides that it "shall be governed by the laws of the State of Florida." Under Florida law, "there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (citation omitted).

Specifically, Spaccio and Anchor argue that they are third party beneficiaries of the customer agreement entered into between Cynthia and JWC and, therefore, they are entitled to enforce the arbitration clause contained therein. Cynthia contends that they are not third party beneficiaries of the agreement and, assuming that they were, the claims she asserts in her complaint exceed the scope of the arbitration clause. Although the parties raise several other issues in these proceedings, the issues which we find merit discussion relate to the first two prongs. Thus we must first determine whether Spaccio and Anchor are third party beneficiaries of the JWC agreement entitling them to enforce the arbitration clause and, if they are, whether Cynthia's claims fall within the ambit of the arbitration clause.

Third Party Beneficiary Status

Arbitration clauses in brokerage agreements may be valid and enforceable. See Oppenheimer & Co., Inc. v. Young, 475 So.2d 221 (Fla.1985); Stratton Oakmont, Inc. v. Goldstein, 615 So.2d 183 (Fla. 3d DCA 1993). Florida courts have generally held that arbitration clauses in contracts may be enforced by and are binding on third party beneficiaries. Martha A. Gottfried, Inc. v. Paulette Koch Real Estate, Inc., 778 So.2d 1089 (Fla. 4th DCA 2001); Nestler Poletto Realty, Inc. v. Kassin, 730 So.2d 324, 326 (Fla. 4th DCA 1999) (citing Tartell v. Chera, 668 So.2d 1105 (Fla. 4th DCA 1996)); see also Orion Ins. Co. v. Magnetic Imaging Sys. I, 696 So.2d 475, 478 (Fla. 3d DCA 1997). The right of an intended, third party beneficiary to sue under a contract is recognized only if the parties clearly express, or the contract itself expresses, an intent to primarily and directly benefit the third party. Jim Macon Bldg. Contractors, Inc. v. Lake County, 763 So.2d 1223 (Fla. 5th DCA 2000).

The JWC agreement specifically provides in pertinent part that:

The undersigned agrees that the undersign's broker is a third party beneficiary of this Agreement, and that the terms and conditions hereof, including the arbitration clause, shall be applicable to all matters between or among undersigned, under-sign's broker or JWC.

The agreement clearly identifies the customer's broker, i.e., the introducing broker, as a third party beneficiary of the agreement. We find that the agreement is sufficient to establish that Anchor and *674 Spaccio are third party beneficiaries of the agreement between JWC and Cynthia. Therefore, we must next decide whether the claims presented in Cynthia's complaint fall within the umbra of the arbitration clause of the agreement.

Whether The Claims Fall Within The Provisions Of The Arbitration Clause

The scope of third party beneficiary rights are generally defined by the contract and, therefore, the provision of the contract which includes the arbitration clause will also define the scope of the arbitration provisions. See Orion; Zac Smith & Co., Inc. v.

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Bluebook (online)
800 So. 2d 670, 2001 WL 1516828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hirshenson-v-spaccio-fladistctapp-2001.