Genovese Joblove & Battista, and Richard Sarafan, Miami, for appellants.
Robert H. Fernandez, for appellee.
Before RAMIREZ, LAGOA, and EMAS, JJ.
This is an appeal from an order denying appellants Marshall, Amaya & Anton, etc.,
et al.'s, motion to compel arbitration based on an arbitration clause contained in an Employment Agreement, the validity and enforceability of which the appellants simultaneously challenge. The case law supports the appellants' argument that unless there is a challenge to the arbitration provision which is separate and distinct from any challenge to the underlying contract, the case should be submitted to arbitration. See Teledyne, Inc. v. Kone Corp., 892 F.2d 1404 (9th Cir.1990) (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402-04, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967)). We therefore reverse and remand with directions to order arbitration.
RAMIREZ and EMAS, JJ., concur.
EMAS, J., concurring.
I concur that reversal is warranted, as the trial court erred in denying arbitration under the allegations of the second amended complaint. I write to further explain why arbitration should have been compelled even before the filing of the second amended complaint.
Dobal filed a complaint against Marshall Amaya and others, alleging that Dobal was employed by Damus, Ecker, Rosenthal and Marshall, M.D., P.A., (" Damus Ecker" ) in 1997 pursuant to a written employment agreement (" the Employment Agreement" ). Dobal attached the Employment Agreement to the complaint and alleged that, at the time she entered into the Employment Agreement, Damus Ecker orally promised Dobal a multi-year partnership agreement (" Oral Partnership Agreement" ). Dobal alleged it was further agreed that this partnership would be accomplished by a written addendum to the Employment Agreement. In 2009, when no partnership materialized for Dobal, she left her employment and filed suit. Her initial complaint alleged that Marshall Amaya was sued as the " successor entity" to Damus Ecker, and that Marshall Amaya assumed the responsibilities and liabilities under the Employment Agreement. Dobal asserted causes of action for, inter alia, breach of the Employment Agreement.
Marshall Amaya filed a motion to dismiss, raising various defenses, including a statute of frauds defense to the Oral Partnership Agreement. The motion to dismiss also asserted that Dobal was required to arbitrate her claims pursuant to the arbitration provision in the Employment Agreement. The trial court granted the motion to dismiss and gave Dobal leave to amend her complaint.
An amended complaint was filed and, like the original complaint, also attached, relied upon, and made reference to the terms of, the Employment Agreement. Dobal continued to assert that Marshall Amaya was the successor entity to Damus Ecker and, as such, expressly or impliedly assumed the obligations and liabilities of
Damus Ecker under the original Employment Agreement. Dobal alleged that the oral promise of a multi-year partnership, made at the time of her employment, was intended to be a " partnership addendum" to the original Employment Agreement. Dobal asserted claims against Marshall Amaya for constructive termination ...