Beck Auto Sales, Inc. v. Asbury Jax Ford, LLC, and Lisa Marasco

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-2242
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BECK AUTO SALES, INC.,
Appellant,
v.
ASBURY JAX FORD, LLC, and
LISA MARASCO,
Appellees.
_____________________________
On appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.
June 20, 2018
WINSOR, J.
A car dealership sued its former employee and a competing
dealership, alleging that the two conspired to steal business worth
millions of dollars. Based on an arbitration agreement between the
plaintiff dealership and the former employee (Lisa Marasco), the
trial court sent claims against the employee to arbitration. The
issue in this case is whether the trial court should have also sent
the claims against the competing dealership—a nonparty to the
arbitration agreement. The defendant dealership argued that
under principles of equitable estoppel, all claims against both
defendants should be arbitrated. The trial court disagreed, and we
do too.
I.
In 2015, Asbury Jax Ford, LLC, doing business as Coggin
Ford, acquired a car dealership in Jacksonville, Florida. The
acquired dealership had a contract and longstanding relationship
with the City of Tallahassee, to which it sold many vehicles. When
Coggin acquired the other dealership, it acquired the Tallahassee
contract as well, and it hoped to continue the related sales. But in
2016, the City decided not to renew the contract, instead opening
the procurement process and publicly requesting proposals. The
Coggin dealership submitted its proposal, but the contract
ultimately went to a competing dealership, Beck Auto Sales, Inc.,
a dealership in Palatka, Florida, and the appellant here.
Two months after the Beck dealership won the new contract,
the Coggin dealership sued the Beck dealership and Lisa Marasco.
According to the complaint, Marasco, while still working for the
Coggin dealership, had actively worked to sabotage Coggin’s
relationship with the City, hoping to prevent the contract’s
renewal. The complaint further alleged that Marasco and the Beck
dealership acted in a “joint effort” to help the Beck dealership win
the contract, which it ultimately did. After Beck took over the
contract, it hired Marasco to come on board and manage the new
relationship.
The Coggin dealership’s complaint included the following
seven claims: (1) breach of fiduciary duty (against Marasco); (2)
aiding and abetting a breach of fiduciary duty (against Beck); (3)
conversion (against Marasco); (4) civil conspiracy (against Marasco
and Beck); (5) tortious interference (against Marasco and Beck);
(6) unfair competition (against Marasco and Beck); and (7) a
violation of the Florida Deceptive and Unfair Trade Practices Act
(against Marasco and Beck).
In response to the complaint, Marasco moved to compel
arbitration of all claims against her and the Beck dealership. She
attached a written arbitration agreement she and the Coggin
dealership had entered, in which the two agreed to arbitrate
certain disputes relating to Marasco’s employment. More
specifically, the agreement provided that the “[d]isputes subject to
arbitration” would be “all [d]isputes between the parties” as well
as “disputes involving any person or entity whose liability or right
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of recovery derives from a [d]ispute” covered by the agreement.
Although the Beck dealership was not a party to the agreement,
Marasco argued that the Coggin dealership’s claims alleged
“substantially interdependent and concerted misconduct” against
both defendants. And under the doctrine of equitable estoppel,
Marasco argued, all claims should be arbitrated. The Beck
dealership separately moved to compel arbitration, expressly
adopting Marasco’s arguments.
The Coggin dealership agreed to arbitrate its claims against
Marasco, but it refused to arbitrate those against the Beck
dealership. It argued, among other things, that equitable estoppel
did not apply because the claims against the two defendants were
not truly inextricably intertwined. After a hearing, the lower court
denied the Beck dealership’s motion to compel arbitration. The
court found that Beck was not a party to the arbitration agreement
and that the equitable-estoppel argument was insufficient to
deprive the Coggin dealership of its right to a jury. Beck now
appeals that nonfinal order. We have jurisdiction, see Fla. R. App.
P. 9.130(a)(3)(C)(iv) 1, and our review is de novo, see Perdido Key
Island Resort Dev., LLP v. Regions Bank, 102 So. 3d 1, 3 (Fla. 1st
DCA 2012).
II.
Ordinarily, a party cannot compel arbitration under an
arbitration agreement to which it was not a party. Koechli v. BIP
Int’l, Inc., 870 So. 2d 940, 943 (Fla. 1st DCA 2004). But Florida and
federal courts have recognized that principles of equitable estoppel
sometimes allow a non-signatory to compel arbitration against
someone who had signed an arbitration agreement. Perdido Key,
102 So. 3d at 5; see also Bailey v. ERG Enters., LP, 705 F.3d 1311,
1320 (11th Cir. 2013). Courts have recognized that this can be
appropriate (1) when the signatory’s claims allege “substantially
interdependent and concerted misconduct” by the signatory and
the non-signatory or (2) when the claims relate directly to the
1 Because she was a party below, Lisa Marasco is an appellee
here. See Fla. R. App. P. 9.020(g)(2). But the parties all agree that
claims against her are subject to arbitration, and she has not
participated in this appeal.
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contract and the signatory is relying on the contract to assert its
claims against the non-signatory. Koechli, 870 So. 2d at 944(citations omitted); see also Bailey, 705 F.3d at 1320. Here, the
Beck dealership relies exclusively on the first circumstance; it
alleges that claims against it and Marasco allege “substantially
interdependent and concerted misconduct.” And indeed, the thrust
of the complaint is that Marasco and the Beck dealership acted in
concert to harm the Coggin dealership.
Assuming we agreed with the Beck dealership and concluded
the claims were interdependent, our inquiry would not be over.
Application of equitable estoppel could address the Beck
dealership’s non-signatory status—effectively counting it as a
signatory—but it would not expand the scope of disputes subject to
arbitration. Although Florida law, like federal law, favors
arbitration, Perdido Key, 102 So. 3d at 3; see also Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983), it
is still true that “no party may be forced to submit a dispute to
arbitration that the party did not intend and agree to arbitrate,”
Perdido Key, 102 So. 3d at 3 (quoting Seifert v. U.S. Home Corp.,
750 So. 2d 633, 636 (Fla. 1999)). Therefore, even when a non-
signatory can rely on equitable estoppel “to access [the arbitration]
clause,” the non-signatory can compel arbitration only if the
dispute at issue “falls within the scope of the arbitration clause.”
Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc.,
845 F.3d 1351, 1355 (11th Cir. 2017) (applying Florida law). And
the “scope of the arbitration clause” is a pure matter of contractual
interpretation.
The arbitration provision here covered a wide range of
disputes, including those “arising before, during or after any
employment relationship,” and applying “whether or not arising
out of or related to [Marasco’s] . . . employment.” But as noted
above, the arbitration provision generally limited its applicability
to disputes “between the parties” to the arbitration agreement,
meaning it would not reach disputes involving the Beck dealership
(a nonparty). Unlike in Koechli, when we similarly recognized that
the agreement’s reach was limited to “any dispute between the
[contracting] parties” but nonetheless concluded the non-signatory
was effectively a “party,” we can conceive of no basis to conclude
the Beck dealership was a party to the agreement between
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Marasco and the Coggin dealership. See 870 So. 2d at 945 (holding
that based on unique facts of the case, “the word ‘party’ include[d]
appellants, who received rights and were bound to obligations
under the [applicable] agreement”). 2 At bottom, the Beck
dealership was not a party to the arbitration agreement, so
disputes with it fall outside of the agreement’s general scope.
Acknowledging this problem, the Beck dealership turns to
another provision of the arbitration agreement, a provision that
broadens the agreement’s general scope: “Also subject to
arbitration are disputes involving any person or entity whose
liability or right of recovery derives from a Dispute that is covered
by this Agreement (e.g., partner, agent, subsidiary of parent
corporation, affiliate, shareholder, successor or assign of a party).”
This provision expands the scope to include disputes involving
others, but only to the extent the other parties’ liability “derives
from” a covered dispute. The Beck dealership therefore argues that
its liability “derives from” the dispute between the Coggin
dealership and Marasco.
“Derivative liability is similar to vicarious liability in that (1)
there is no cause of action unless the directly liable tortfeasor
commits a tort and (2) the derivatively liable party is liable for all
of the harm that such a tortfeasor has caused.” Peltz v. Tr. Hosp.
Int’l, LLC, No. 3D17-428 *2 n.6 (Fla. 3d DCA Apr. 11, 2018)
(quoting Grobman v. Posey, 863 So. 2d 1230, 1236 (Fla. 4th DCA
2003)); cf. also Derivative Liability, Black’s Law Dictionary (10th
ed. 2014) (defining term as “[l]iability for a wrong that a person
other than the one wronged has a right to redress”); Grobman, 863
So. 2d at 1235-36 (noting that cases of derivative liability “involve
2 The Koechli decision is further distinguishable because it
relied on the fact that the substantive claims at issue were based
on the same agreement that included the arbitration provision.
“Because the basis of BIP’s claims arise out of or are intimately
related to the refurbishment agreement, it would be inequitable to
allow BIP both to rely upon the agreement in its action against
non-signatories and selectively repudiate it when seeking to resist
arbitration.” Id. at 945. Here, the underlying substantive claims
are not based on the arbitration agreement.
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wrongful conduct both by the person who is derivatively liable and
the actor whose wrongful conduct was the direct cause of injury to
another” (citation omitted)).
We conclude that the Beck dealership’s liability (if any) does
not “derive from” the remaining disputes as that phrase is used in
the agreement. The claims are unquestionably related, and they
may well ultimately rise or fall together. But we cannot ignore the
fact that the arbitration provision used the specific phrase “derives
from,” rather than a more general term, like, say, “relates to.” Cf.
Kroma, 845 F.3d at 1356 (“If the parties had consented in the
arbitration clause to arbitrate any disputes concerning the
validity, interpretation, etc., of the contract, instead of consenting
to arbitrate only ‘disputes arising between them’ . . ., the
Kardashians may have been able to use equitable estoppel . . . .
But, as the ‘between them’ language shows, that is not what the
parties to the agreement consented to do in the arbitration
provision.”). Nor can we ignore the fact that the agreement
includes specific examples of liability that could derive from other
disputes: “(e.g., partner, agent, subsidiary of parent corporation,
affiliate, shareholder, successor or assign of a party).” Had the
parties sought a broader view of what it means for liability to
“derive from” other disputes, they surely would have selected
different examples. We cannot ignore the words the drafters chose.
III.
The Coggin dealership’s claims against the Beck dealership
are not claims based upon derivative liability; they are based on
Beck’s own alleged misconduct. That means the claims are not
within the scope of the arbitration agreement. And that means the
trial court correctly denied the motion to compel. 3
3 As in Perdido Key, we note that this decision “will result in
arbitrable causes of action as well as non-arbitrable causes of
action.” 102 So. 3d at 6. This may yield “‘the possibly inefficient
maintenance of separate proceedings in different forums,’” id. at 6-
7 (quoting KPMG LLP v. Cocchi, 565 U.S. 18, 19 (2011)), but it is
the result precedent compels.
6
AFFIRMED.
ROWE, J., concurs; WOLF, J., dissents with opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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WOLF, J., dissenting.
Coggin Ford (Coggin) entered into a broad arbitration
agreement with its employee, Lisa Marasco, which encompassed
all disputes concerning the relationship between Ms. Marasco and
Coggin as well as “disputes involving any person or entity whose
liability or right of recovery derives from a Dispute that is covered
by [the arbitration] Agreement.” Coggin’s complaint against
Marasco and Beck Auto Sales, Inc. (Beck) is drafted so that the
causes of action against both are inextricably intertwined. There
is no allegation that Beck acted independently of Marasco. All of
the allegations against Beck are derived from Coggin’s dispute
with Marasco, which is covered by the arbitration agreement.
Under these circumstances, Coggin is estopped from asserting that
the dispute with Beck in this case is not subject to the arbitration
provisions of the agreement.
The majority correctly states the general law concerning
application of estoppel to compel arbitration by a non-signatory to
the agreement, which I will partially repeat here with emphasis
added.
Florida and federal courts have recognized that principles of
equitable estoppel sometimes allow a non-signatory to compel
arbitration against an opposing party who was a signatory to an
arbitration agreement. Perdido Key Island Resort Dev., L.L.P., v.
Regions Bank, 102 So. 3d 1, 5 (Fla. 1st DCA 2012). Courts have
recognized that allowing a non-signatory to compel arbitration can
be appropriate (1) “when the signatory’s claims allege substantially
interdependent and concerted misconduct by the signatory and the
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non-signatory”; or (2) “when the claims relate directly to the
contract and the signatory is relying on the contract to assert its
claims against the non-signatory.” Koechli v. BIP Int’l, Inc., 870 So.
2d 940, 944 (Fla. 1st DCA 2004) (citations omitted) (emphasis
added).
Florida law, like federal law, favors arbitration. Perdido Key,
102 So. 3d at 3; see also Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24-25 (1983). However, it is still true
that “no party may be forced to submit a dispute to arbitration that
the party did not intend and agree to arbitrate.” Perdido Key, 102
So. 3d at 3 (quoting Seifert v. U.S. Home Corp., 750 So. 2d 633, 636
(Fla. 1999)). Therefore, even when a non-signatory can rely on
equitable estoppel “to access [the arbitration] clause,” the non-
signatory can compel arbitration only if the dispute at issue “falls
within the scope of the arbitration clause.” Kroma Makeup EU,
LLC v. Boldface Licensing + Branding, Inc., 845 F.3d 1351, 1355
(11th Cir. 2017) (emphasis added) (applying Florida law). The
“scope of the arbitration clause” is a pure matter of contractual
interpretation.
Thus, we must look at the specific words of the arbitration
agreement in context and the specific allegations of the instant
complaint to determine whether the dispute falls within the scope
of the arbitration agreement. Hand v. Grow Constr., Inc., 983 So.
2d 684 (Fla. 1st DCA 2008) (finding in order to give proper
meaning to a specific contractual provision, courts must consider
context of the entire contract).
The subject matter of the arbitration agreement is very broad,
effectively covering any dispute between Coggin and Ms. Marasco.
The specific language indicates the arbitration provision includes
disputes “arising before, during or after any employment
relationship,” and applying “whether or not arising out of or
related to [Marasco’s] . . . employment.”
A review of the specific allegations of the complaint reveal
each count arose out of and was substantially interdependent with
Ms. Marasco’s relationship with Coggin. It also reveals concerted
misconduct between Marasco and Beck, thereby justifying
enforcement of the arbitration agreement by the non-signator,
Beck. See Koechli, 870 So. 2d at 944.
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The counts against Beck include: Count 2, aiding and abetting
a breach of fiduciary duty (the person who was alleged to have been
aided and abetted was Marasco); Count 4, civil conspiracy (against
both Marasco and Beck); Count 5, tortious interference (against
both Marasco and Beck); Count 6, unfair competition (against both
Marasco and Beck); and Count 7, a violation of the Florida
Deceptive and Unfair Trade Practices Act (against both Marasco
and Beck). While arguably Beck could have committed the alleged
torts individually, that is not how Coggin chose to allege the
tortious conduct in its complaint.
The introductory sentence of the complaint reads: “This action
arises out of Defendants Marasco and Beck’s joint effort to obtain
a contract . . . though a breach of fiduciary duty, conspiracy, unfair
competition, and tortious interference.” (Emphasis added). By its
very language, the complaint alleges all the counts against Beck
were based on interrelated efforts of Beck and Marasco. The
complaint does not allege a single action on the part of Beck that
was not done in concert with Marasco.
For instance, as to Count 2, aiding and abetting, the complaint
alleges “Beck was fully aware of Marasco’s breach and, in fact,
provided substantial assistance and encouragement to Marasco . .
. .” Count 4, civil conspiracy, specifically alleges Beck and Marasco
“conspired to interfere with Coggin’s relationship with its
customers and to violate Marasco’s fiduciary duties to Coggin.” The
gist of Count 5, tortious interference, is that Marasco was “secretly
working for Beck” and “ensured Beck’s [proposal] would prevail
against Coggin.” The gravamen of Count 6 is that Marasco
provided Beck with Coggin’s confidential information in order to
help Beck unfairly compete against Coggin. Count 7 is repetitive
of the other six counts. None of these counts alleged that Beck
committed any act independent of Marasco. Thus, the test of
“substantially interdependent and concerted misconduct” by the
signatory and non-signatory has been met based on Coggin’s own
allegations. Koechli, 870 So. 2d at 944. As such, the subject of the
dispute falls within the scope of the arbitration clause.
The next issue is whether the agreement itself precludes
application of the doctrine of estoppel because it reflects the intent
of the parties to exclude non-signatories from invoking the
9
arbitration agreement. We cannot consider a single term or
sentence in isolation; instead, each provision “should be construed
in connection with other provisions . . . to arrive at a reasonable
construction to accomplish the intent and purpose of the parties.”
Hand, 983 So. 2d at 697 (quoting James v. Gulf Life Ins. Co., 66
So. 2d 62 (Fla. 1953)).
The arbitration agreement contains the following provision:
“Also subject to arbitration are disputes involving any person or
entity whose liability or right of recovery derives from a Dispute
that is covered by this Agreement (e.g., partner, agent, subsidiary
or parent corporation, affiliate, shareholder, successor or assign of
a party).” (Emphasis added).
Thus, the focus of our analysis should be whether the liability
arose from a dispute covered by the agreement and not whether
derivative liability exists or whether the right of recovery stems
from a breach of the arbitration agreement.
The majority utilizes general law concerning the definition of
the term “derivative liability” to determine that Beck could not be
an intended subject of this contract because its liability is direct
and is not derived from the conduct of another tortfeaser. That
analysis ignores that, in context, the language requiring
arbitration does not focus on liability derived from another person,
but liability that is “derive[d] from a Dispute that is covered by this
agreement.” (Emphasis added). As previously discussed, the
subject matter of the claim arises out of a dispute concerning the
relationship between Coggin and Ms. Marasco, the central matter
covered by the arbitration agreement. As the dispute is framed by
Coggin’s own complaint, the liability of Beck derives from this
dispute.
Further, since the liability, if any, in this case arises from the
joint actions of Marasco and Beck, any liability should be
determined through the arbitration process rather than through
two different types of forums.
Because of the broad language of the arbitration agreement
and nature of the allegations in Coggin’s complaint, Coggin should
be estopped from arguing that Beck cannot assert rights under the
arbitration agreement.
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_____________________________
Katherine E. Giddings and Kristen M. Fiore, Akerman LLP,
Tallahassee, and Donald E. Holmes, Russell D. Castleberry, and
George A. Young, Holmes & Young, P.A., Palatka, for Appellant.
Christopher B. Lunny, M. Drew Parker, and Angela D. Miles,
Radey Law Firm, Tallahassee, for Appellee Asbury Jax Ford, LLC.
No appearance for Appellee Marasco.
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