DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FLORIDA WOMAN CARE LLC, a Florida limited liability company,
GYN ONCOLOGY AND UROGYNECOLOGY ASSOCIATES, LLC, a
Florida limited liability company, FWC HOLDINGS, LLC, a Florida
limited liability company, UNIFIED WOMEN’S HEALTHCARE, LLC,
f/k/a UNITED PHYSICIAN MANAGEMENT HOLDINGS, LLC, a
Delaware limited liability company, and AARON SUDBURY, M.D.,
Appellants,
v.
HOA NGUYEN, M.D.,
Appellee.
No. 4D21-1554
[October 13, 2021]
Appeal of a nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carol-Lisa Phillips, Judge; L.T. Case No.
CACE20-013636.
Erik R. Matheney and Alyssa L. Cory of Shutts & Bowen LLP, Tampa,
for appellants.
Morgan L. Weinstein of Twig, Trade, & Tribunal, PLLC, Fort Lauderdale,
for appellee.
WARNER, J.
Appellants, Florida Woman Care, LLC (“FWC”), GYN Oncology and
Urogynecology Associates, LLC (“GOUA”), FWC Holdings LLC (“FWC
Holdings”), Unified Women’s Healthcare, LLC f/k/a United Physician
Management Holdings, LLC (“UPM”), and Aaron Sudbury, M.D.,
(“Sudbury”) (collectively, “Appellants”) challenge a nonfinal order denying
their motion to compel arbitration of the complaint filed by appellee, Hoa
Nguyen, M.D. (“Nguyen”). Because we conclude that the arbitration
agreement in the employment agreement between GOUA and Nguyen
survived the termination of Nguyen’s employment, and Nguyen’s
complaint against each appellant relies on the terms of the employment
agreement, the trial court erred in denying the motion to compel
arbitration. We reverse.
The complaint contains the facts upon which the trial court determined
the motion to compel. In October 2017, UPM purchased the assets of FWC
Holdings and FWC. Nguyen participated in the transaction as a “pivoting
owner.” Nguyen also entered into an employment agreement with GOUA,
which was part of the UPM group, with an initial term of five years.
As part of the asset purchase transaction, Nguyen and UPM entered
into a joinder agreement through which Nguyen received membership
units in FWC and FWC Holdings. According to the agreement, if a
forfeiture event occurred in accordance with the agreement’s terms before
the third anniversary of the joinder agreement, Nguyen would forfeit his
interest in the FWC and FWC holdings units. One forfeiture event was
termination of Nguyen from his employment. At the time, FWC was the
manager of GOUA, and Sudbury was manager of FWC.
Shortly after the one year anniversary of the asset purchase and
execution of the agreements, including the employment agreement,
Nguyen was terminated “for cause.” As alleged in the complaint, the
employment agreement provided:
5.1 Termination by the Company “For Cause”. The
Agreement Term (including any Renewal Term) may be
terminated prior to its expiration, at the election of the Clinical
Governance Board, under any of the following circumstances:
5.1.1 Upon written notice to the Employee, if the
Employee is in a material breach, default or violation of
any provision of this Agreement and fails to cure such
material breach, default or violation to the reasonable
satisfaction of the Company within fifteen (15) days
after notice in writing by the Company to do so (or
within said fifteen (15) days to commence such cure and
thereafter diligently to prosecute such cure to
completion)[.]
The complaint alleged that GOUA had not provided a fifteen-day cure
period, as GOUA and FWC determined that the “cause” was incurable.
With that background, Nguyen’s amended complaint alleged five causes
of action against the various defendants as follows:
• Count 1 against FWC for tortious interference with Nguyen’s
contractual relationship, alleging that he and GOUA were
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parties to the employment agreement and that, as manager of
GOUA, FWC knew of the employment agreement but
intentionally interfered with and procured the breach of the
employment contract by sending the termination letter and
refusing to provide the doctor the required opportunity to
cure.
• Count 2 against GOUA for breach of contract, alleging that
GOUA materially breached the employment agreement by (i)
failing and refusing to provide written notice identifying the
alleged breach constituting the “cause” for termination of
Nguyen’s employment and (ii) failing to provide the required
fifteen (15) day period to cure.
• Count 3 against Sudbury for breach of fiduciary duty, alleging
that Sudbury [FWC’s manager] intentionally caused FWC to
willfully breach the employment agreement causing damage
to Nguyen and the forfeiture of his class A unit of FWC.
• Count 4 against FWC Holdings for equitable accounting, so
that Nguyen could determine his damages as a result of the
acts and omissions set forth in the other counts of the
complaint, alleging that he was a member and therefore
entitled to access to the records.
• Count 5 against FWC Holdings, GOUA, UPM, FWC, and
Sudbury for civil conspiracy, alleging that they intentionally
interfered with the employment agreement in order to procure
Nguyen’s unlawful termination and automatic forfeiture of the
security interests.
All appellants moved to compel arbitration pursuant to Article 13.5 of
the employment agreement which provides for arbitration of “any
controversy or claim arising out of or related to this Agreement, or any
breach thereof” to be conducted in Palm Beach County, Florida. While
only GOUA was a signatory to the employment agreement, the other
appellants argued that Nguyen’s claims arose out of the agreement and
involve the same basic allegation that appellants caused the breach of or
interfered with the employment agreement.
Nguyen opposed arbitration, arguing several points, including: the non-
signatories could not rely on the arbitration agreement; the arbitration
clause in the employment agreement did not survive the termination of the
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agreement; and appellants waived arbitration because they failed to
arbitrate any of the controversies prior to Nguyen filing suit.
The trial court heard appellants’ arguments and summarily denied
their motion. This appeal follows.
Review of an order on a motion to compel arbitration is de novo. Fallang
Fam. Ltd. P’ship v. Privcap Cos., LLC,
316 So. 3d 344, 347 (Fla. 4th DCA
2021). Questions of contract interpretation are issues of law subject to de
novo review. Jackson v. Shakespeare Found., Inc.,
108 So. 3d 587, 593
(Fla. 2013).
Arbitration by Non-Signatories
GOUA is clearly entitled to arbitrate this dispute, as a signatory party,
unless the arbitration provision is of no further force and effect. The
remaining appellants argue that while each of them did not sign the
employment agreement, they can still enforce arbitration, as each of the
causes of action asserted by Nguyen rely on the terms of the agreement.
We agree with appellants that as non-signatories, these parties can compel
arbitration.
Koechli v. BIP International, Inc.,
870 So. 2d 940 (Fla. 1st DCA 2004), is
on point. There the appellate court relied on language from Westmoreland
v. Sadoux,
299 F.3d 462 (5th Cir. 2002) to explain when non-signatories
can enforce an arbitration clause. Id. at 943. Westmoreland explained:
There are two circumstances under which a nonsignatory can
compel arbitration. First, when the signatory to a written
agreement containing an arbitration clause must rely on the
terms of the written agreement in asserting its claims against
the nonsignatory. Second, when the signatory to the contract
containing a[n] arbitration clause raises allegations of
substantially interdependent and concerted misconduct by
both the nonsignatory and one or more of the signatories to
the contract.
299 F.3d at 467 (footnote omitted).
In this case, since each count of Nguyen’s complaint against the non-
signatories relies on the employment agreement and its terms to state the
causes of action, they are substantially interdependent and allege
concerted action between the non-signatories and the signatory (GOUA).
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Waiver of Arbitration
As to both the non-signatories and GOUA, Nguyen argues that the
arbitration agreement terminated with the termination of his employment
or that the parties waived arbitration.
For support as to waiver, Nguyen points to Aberdeen Golf & Country
Club v. Bliss Construction, Inc.,
932 So. 2d 235 (Fla. 4th DCA 2005), a case
which discussed the arbitration provision contained in the standard AIA
contract for construction projects. However, we find Aberdeen to be
inapposite, and much of the language which Nguyen relies on is clearly
dicta. See Auchter Co. v. Zagloul,
949 So. 2d 1189, 1193–94 (Fla. 1st DCA
2007) (criticizing Aberdeen’s dicta).
In Aberdeen, a general contractor brought an action against a property
owner, seeking damages arising out of the owner’s termination of a
contract because of a mold issue, prior to completion of the construction
project. The owner moved to compel arbitration under the contract, but
the trial court denied arbitration, finding that the owner had waived its
right to enforce the arbitral provision.
932 So. 2d at 236. This Court
affirmed, concluding that the owner had indeed waived its right to arbitrate
by refusing to follow the ADR 1 procedures of the contract, which required
mediation and arbitration of issues during construction, if the parties
disagreed with an architect’s decision as the owner did.
Id. at 240. Not
only had the owner failed to engage in the ADR procedures, but it
terminated the contract.
Here, at no time did any of the appellants waive the right to arbitrate,
as did the owner in Aberdeen. Nguyen states that GOUA failed to arbitrate
the controversy over whether to terminate the doctor. The termination
provision does not require GOUA to arbitrate with Nguyen prior to
terminating him for cause. It would be Nguyen’s obligation to seek
arbitration if he disputed GOUA’s action, which he now claims is a breach
of the contract. Nguyen has not shown that the appellants have acted
inconsistently with the right to arbitrate.
Arbitration Survives Employment Termination
To argue that the arbitration clause did not survive the termination of
his employment, Nguyen places great emphasis on the survival clause
contained in Article Thirteen which states that “[t]he provisions of Articles
7, 8, and 9 of this Agreement shall survive the termination of the
1 ADR stands for alternative dispute resolution.
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Employee’s relationship with the Company and this Agreement.” Since
the survival clause did not mention the arbitration section, Nguyen
contends that the arbitration provision did not survive.
The provisions mentioned in the survival clause deal with disclosure of
confidential information regarding management operations, a restrictive
covenant on Nguyen’s ability to practice, and fees including billing and
collecting. These are all substantive rights and responsibilities under the
contract. Likewise, in Article 5 on termination, section 5.6 explains
“Obligations After Termination” (emphasis added) which include how
compensation will be paid, benefits extended, and any payback of monies
from the employee will occur. Thus, these too are substantive terms of the
contract which survive arbitration.
In contrast, the arbitration provision is procedural. We analogize it to
the survival of a forum selection clause in a contract which terminates. In
Baker v. Economic Research Services, Inc.,
242 So. 3d 450 (Fla. 1st DCA
2018), the First District distinguished between substantive rights and
dispute resolution provisions and determined that dispute resolution
provisions survived the termination of the contract:
Unlike the substantive rights and obligations in a contract, a
forum-selection clause is a structural provision that
addresses the procedural requirements for dispute resolution.
See Silverpop Sys., Inc. v. Leading Mkt. Techs., Inc.,
641 Fed.
Appx. 849, 857 (11th Cir. 2016) (“While contractual
obligations may expire upon the termination of a contract,
provisions that are structural (e.g., relating to remedies and
the resolution of disputes) may survive that termination.”).
“Generally, dispute-related provisions, such as forum
selection clauses, are enforceable beyond the expiration of the
contract if they are otherwise applicable to the disputed issue
and the parties have not agreed otherwise.” U.S. Smoke & Fire
Curtain, LLC v. Bradley Lomas Electrolok, Ltd.,
612 Fed. Appx.
671, 672–73 (4th Cir. 2015).
This court has held that an arbitration provision does not
require any type of “savings clause” to survive termination of
the contract. Auchter Co. v. Zagloul,
949 So. 2d 1189, 1194
(Fla. 1st DCA 2007). The Auchter holding is applicable to
forum-selection clauses as well. If the parties wanted the
forum-selection clauses to apply only during the life of the
contracts, they could have explicitly stated so. See
id.
(“Because post-termination disputes are not expressly
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excluded from the scope of the dispute resolution provisions
of the contract, we must construe them as intended to be
included.”).
Id. at 453 (footnote omitted).
Considering the contract as a whole, we conclude that the arbitration
provision survives Nguyen’s termination. Because arbitration is a favored
dispute resolution method, unless the contract expressly states that
dispute resolution provisions do not survive the termination of the
contract, the provisions should be enforced. In fact, arbitration is most
likely needed when disputes on termination or breach of contract occur.
With respect to the remaining issues raised in this appeal, we affirm.
The trial court erred in denying the motion to compel arbitration. We
reverse and remand with instructions for the court to grant the motion.
Reversed and remanded with instructions.
CONNER, C.J., and LEVINE, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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