MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., AND LUCILLE WEIST, PETITIONERS,
v.
JAMES F. FALOWSKI, AS TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF JOHN J. FALOWSKI, RESPONDENT
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Merrill Lynch and Lucille Weist petitioned for a writ of certiorari to quash a trial court order denying their motion to compel arbitration. The appellate court declined to grant the writ because while the trial court failed to conduct a proper evidentiary hearing as required by prior precedent, there was no showing that either party requested and was denied the opportunity to present evidence.
The court held that while the trial court failed to conduct an adequate evidentiary hearing to resolve specific factual disputes regarding the arbitration agreement (such as which account the dispute concerned and whether fraud allegations constituted fraud in the inducement), the writ of certiorari should be denied because neither party demonstrated it had sought and been denied an opportunity to present evidence.
[1] When the making of an arbitration agreement is disputed, a trial court must conduct an evidentiary hearing to resolve issues regarding the making of the agreement or the…
[2] A trial court's order denying arbitration is subject to common law certiorari review.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If the parties have clearly entered into an agreement to arbitrate, then the trial court must compel arbitration. If, however, the making of the arbitration agreement is disputed, then the trial court should undertake an evidentiary hearing to resolve "issues regarding the making of the agreement or the failure, neglect or refusal to perform the same."”
Establishes the controlling legal standard from Melamed for determining when and how trial courts must address arbitration agreements.
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Join FLexlaw to unlock all legal intelligenceJames Falowski, as trustee under his father's will, opened multiple accounts with Merrill Lynch. One account (number 750-33539) contained an agreement…
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HURLEY, Judge.
This case comes before us upon a petition for a writ of common law certiorari. Petitioners request that this court quash an order by the trial court denying their application to compel arbitration. We find our recent decisions in Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 405 So. 2d 790 (Fla. 4th DCA 1981) (“Melamed I”), remanded for further proceedings, 425 So. 2d 127 (Fla. 4th DCA 1982) ("Melamed II”), to be controlling but for reasons stated herein we decline to grant the writ of certiorari.
Melamed sets forth the procedure for applying Section 682.03(1), Florida Statutes (1981), to determine whether a controversy should be arbitrated or litigated. If the parties have clearly entered into an agreement to arbitrate, then the trial court must compel arbitration. If, however, the making of the arbitration agreement is disputed, then the trial court should undertake an evidentiary hearing to resolve “issues regarding the making of the agreement or the failure, neglect or refusal to perform the same.” Melamed II.
Recognizing the mandate of Me-lamed I, the trial court properly undertook a hearing which yielded a factual determination set forth in the order denying arbitration. The defect in this hearing is that it primarily addressed questions of law, i.e., the hearing was not in essence evidentiary. The order notes that it is based upon legal argument by the parties, memoranda of law, and cases cited therein. The trial court’s review yielded conclusions which, while well reasoned, nevertheless inadequately considered the specific facts in dispute. To conform to the dictates of Me-lamed II, a factual determination in this case must resolve with specificity the parties’ varying renditions of the transactions in question. For example: Whether James Falowski opened account number 750-33539 (for which an agreement to arbitrate was made) on his own behalf, as a trustee, or on behalf of his father’s estate? Whether the transactions and investments in question relate to the aforementioned account, to a second account which Falowski opened as the personal representative of his father’s estate (for which,there was apparently no agreement to arbitrate) or to both accounts? Whether Falowski’s allegations of fraud are based upon events not specifically related to the opening of the accounts, or, alternatively, whether the complaint should be construed to allege fraud in the inducement, as Merrill Lynch suggests?
Despite the fact that an evidentiary hearing to resolve the facts in dispute was not held we decline to issue the writ requested because there is no demonstration that either party sought and was denied the opportunity to present evidence. In the event that a further request for an evidentiary hearing is made the court should consider same in accordance with this opinion.
CERTIORARI DENIED.
LETTS, C.J., and BERANEK, J., concur.
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United Servs. Gen. Life Co. v. Bauer, 568 So. 2d 1321 (Fla. 2d DCA 1990)…overage before arbitration could begin, the Iowa arbitrators in the instant case must know the scope of a contract before they can determine whether United Services is entitled to a refund of commissions paid to Bauer. See Merrill Lynch v. Falowski, 425 So. 2d 129 (Fla. 4th DCA 1982) (factual hearing was required to determine whether [*1324] certain transactions and investments related to a deposit account subject to arbitration). Finally, we distinguish the instant case from Feather Sound Country Club, Inc.…
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Shearson v. Lifshutz, 595 So. 2d 996 (Fla. 4th DCA 1992)…. No handwriting experts were called, nor was there any other attempt to authenticate the illegible scratches on the signature lines of the brokerage agreement submitted by the appellants. In Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Falowski, 425 So. 2d 129 (Fla.4th DCA 1982), we held that when there is a dispute as to whether parties are bound by an agreement to arbitrate, then it is necessary for the trial court to make certain factual determinations. These determinations include whether the customer…
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Higley S., Inc. v. Park Shore Dev. Co., Inc., 494 So. 2d 227 (Fla. 2d DCA 1986)…the federal Arbitration Act which, like Chapter 682 in its relevant aspect, confines the boundaries of arbitration to the terms of the arbitration agreement. Weyerhaeuser, 743 F. 2d at 637; see also Merrill Lynch, Pierce, Fenner & Smith v. Falowski, 425 So. 2d 129 (Fla. 4th [*230] DCA 1982).1 The federal system offers nothing upon which to sustain consolidation. It is our judgment, however, that the AIA contract will support consolidation of multiple arbitration proceedings. We are not persuaded by the const…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 425 So. 2d 127 (Fla. 4th DCA 1982)
- Ivey v. State, 405 So. 2d 790 (Fla. 4th DCA 1981)
- State v. Augusto Salazar, 405 So. 2d 790 (Fla. 4th DCA 1981)