Mukamal v. Marcum LLP , 223 So. 3d 422 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed July 12, 2017.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-104
Lower Tribunal No. 16-10167
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Barry E. Mukamal,
Appellant,
vs.
Marcum LLP and Jeffrey Weiner,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Michael Hanzman, Judge.
Dorta Law and Gonzalo R. Dorta, for appellant.
Pathman Lewis, LLP and John A. Moore; Davidoff Hutcher & Citron, LLP
and Larry Hutcher (New York, NY), for appellees.
Before LAGOA, SCALES and LUCK, JJ.
LUCK, J.
Barry E. Mukamal, a former partner at accounting firm Marcum LLP, sued
his old firm and its managing partner for fraud. Mukamal appeals the trial court’s
nonfinal order staying the case and compelling him to arbitrate his fraud claim as
required by his partnership agreement (and the amendments to the partnership
agreement). We have jurisdiction, Fla. R. App. P. 9.130(a)(3)(C)(iv),1 and affirm.
Factual Background and Procedural History
Mukamal, from 1997 to 2009, was a partner at the now-defunct accounting
firm of Rachlin LLP. Marcum LLP, in 2009, merged with the Rachlin accounting
firm, and as part of the merger Mukamal became a partner at Marcum LLP.
Marcum LLP had an existing partnership agreement with its partners from 2002.
The Marcum LLP 2002 partnership agreement had this arbitration provision:
Arbitration. Any and all controversies, disputes or claims arising out
of or relating to any provision of this Agreement or the breach thereof
shall, at the election of any party to the controversy, dispute or claim,
be settled by final and binding arbitration in Nassau County by three
arbitrators in accordance with the rules then in effect of the American
Arbitration Association . . . .
When Mukamal joined the partnership in 2009, he signed three agreements
with the Marcum LLP accounting firm. First, he agreed to be subject to, and
bound by, all of the terms and conditions of the 2002 partnership agreement.
Second, Mukamal signed a special rider to the 2002 partnership agreement
granting him certain rights in connection with the merger of the two accounting
firms. The rider amended for Mukamal provisions in the 2002 partnership
1 “Appeals to the district courts of appeal of non-final orders are limited to those
that . . . determine . . . the entitlement of a party to arbitration . . . .”
2
agreement regarding the distribution of shares in the merged company, how the
merged company would be governed, his compensation, benefits, and what would
happen if he was terminated or withdrew from the merged company. The rider
also contained the following arbitration provision:
Governing Law; Arbitration. This Rider and the interpretation of its
terms will be governed by the laws of the State of New York without
application of conflicts of law principles. The parties to this Rider
will make their best efforts to resolve amicably, by mutual
consultation, any dispute arising out of or in connection with this
Rider. If such dispute cannot be resolved by mutual agreement, then
such dispute will be finally resolved by arbitration pursuant to the
provisions of Section 19.5 of the [2002 partnership agreement].
On the same day, Mukamal signed a third agreement, called an addendum to
the special rider. The purpose of the addendum was to “amend certain provisions”
of the rider, including those provisions allowing Mukamal to retire and further
refining the decision-making structure of the merged company. The addendum,
like the 2002 partnership agreement and the rider, had a governing law provision
(New York law would govern), but, unlike the two other agreements, the
addendum did not have an arbitration clause.
In 2012, according to his amended complaint for fraud, Mukamal learned the
following about the merged company and its principals. Prior to the merger,
Mukamal’s old firm, Rachlin LLP, had made undisclosed payments to its
marketing director, in-house counsel, and the head of the Florida office, adding up
to more than five million dollars. After these undisclosed pre-merger payments
3
had been discovered, the Marcum LLP principals paid out an unapproved
severance package to Rachlin LLP’s former managing partner, and made the
former Rachlin LLP partners pay for it.
After the merger, Mukamal learned that Marcum LLP’s principals changed
the way bonuses were calculated and distributed to hurt the partners in Miami (and
help those in New York). Marcum LLP also did not disclose a secret bonus
structure that would have benefited Mukamal had he known about it.
In July 2012, Mukamal presented his pre- and post-merger findings to the
Marcum LLP executive committee. The committee, however, took no action. As
a result, in April 2013, Mukamal gave his one year notice that he was resigning
from the merged company.
In 2016, Mukamal filed two lawsuits. In one, this case, Mukamal sued
Marcum LLP and its managing partner for fraud. In the other, Mukamal filed a
statement of claim for arbitration against Marcum LLP alleging that the merged
company breached the 2002 partnership agreement, rider, and addendum.2
The Marcum LLP defendants moved to compel arbitration on the fraud
claim, and stay the case, because Mukamal’s fraud arose out of the partnership
2 The parties have not argued the legal implications of Mukamal, on the one hand,
invoking the arbitration clauses in the 2002 partnership agreement and rider to
litigate breach of contract disputes he has with Marcum LLP arising out of the
three agreements, and, on the other hand, arguing in this court that the language of
the addendum is an intent to cancel or abandon the right to arbitrate his fraud claim
against Marcum LLP. For that reason, we too will not address this irony.
4
agreement, and, thus fell under the broad arbitration provisions contained in the
2002 partnership agreement and rider. Mukamal responded that: (1) his tort claim
did not arise out of his various agreements with Marcum LLP; and (2) the absence
of an arbitration clause in the addendum, which represented the parties’ last writing
on the matter, clearly indicated an intent to forgo arbitration.
The trial court, in a well-reasoned order, granted the Marcum LLP
defendants’ motion to stay and compel arbitration. The trial court concluded, first,
that “the claim [was] arbitrable because every allegation in [Mukamal’s]
[a]mended [c]omplaint advance[d] a claim arising out of and related to the parties
professional relationship.” Mukamal does not appeal this conclusion, and we do
not address it in this appeal. As to Mukamal’s argument that the absence of an
arbitration clause in the addendum indicated the parties’ intent to forego
arbitration, the trial court concluded that the addendum “did not eliminate the
parties’ arbitration agreement by ‘implication.’ . . . The [a]ddendum – executed on
the same day – does not evince an intent to abandon the arbitration clause,
something the parties could easily have accomplished if they desired (or intended)
to do so.” Mukamal has appealed the trial court’s conclusion on this issue.
Discussion3
3 “We review an order granting or denying a motion to compel arbitration de
novo.” Roth v. Cohen, 941 So. 2d 496, 499 (Fla. 3d DCA 2006).
5
Mukamal contends on appeal that the parties’ decision to omit the arbitration
clause from the addendum created an ambiguity as to the parties’ intent to arbitrate
disputes arising out of the three agreements. Under New York law,4 Mukamal
continues, the trial court erred in failing to hold an evidentiary hearing on the
parties’ ambiguous intent to arbitrate, where parole evidence would have been
admitted.5
We disagree, for two reasons. First, under New York law, “[a]greements
executed at substantially the same time and related to the same subject matter are
regarded as contemporaneous writings and must be read together as one.” PETRA
CRE 2007-1 CDO, Ltd. v. Morgans Grp. LLC, 923 N.Y.S.2d 487, 488 (N.Y. App.
Div. 2011) (citation omitted). We, therefore, read the rider and addendum, which
were executed on the same day and pertain to the terms of Mukamal’s employment
with the merged accounting firm, together as one agreement.
The addendum, in its acknowledgements section, describes the rider as
setting forth Mukamal’s agreement with respect to certain rights to be granted by
Marcum LLP to Mukamal in connection with the proposed merger. In the next
recital, the addendum says that “[t]he parties have agreed to enter into this letter
agreement in order to amend certain provisions” of the rider.
4The interpretation of the three agreements is governed by New York law.
5 Mukamal proffers, for example, that earlier drafts of the addendum included the
arbitration clause.
6
The “certain provisions” amended by the addendum were identified in
section three, entitled “Amendments to Rider.” The amendments were made to
provisions in the rider related to employment benefits, retirement, and corporate
governance. The rider’s arbitration clause was not one of the provisions being
amended; it was left untouched by the addendum. Reading the rider and
addendum together, then, the arbitration clause applies to disputes arising out of
both contemporaneous agreements.
The rider’s language supports this reading. The rider provides that it “and
any other contemporaneous documents entered into by the parties contain the sole
and entire agreement among the parties with respect to their subject matter.” In
addition, the rider states that “[n]o amendment or modification” of its terms “will
be valid unless in writing and duly executed by the . . . parties.” These provisions
show that the rider and addendum, executed on the same day, are the sole
agreement between Mukamal and Marcum LLP, and the only way to alter the
agreement is in a writing signed by the parties. Neither the addendum, nor any
other agreement in the record, changed or modified the arbitration provision in the
rider.
Even if the agreements are not read together, under New York law, a
subsequent agreement cannot abandon or cancel an existing contractual right to
arbitrate “absent a clear manifestation of contrary intent.” Primex Int’l Corp. v.
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Wal-Mart Stores, Inc., 679 N.E.2d 624, 628 (N.Y. 1997). Silence, in other words,
is not an expression of intent to undo the right to arbitrate.
In Primex, for example, a company agreed to be Wal-Mart’s exclusive
buying agent for South American manufactured consumer goods in three
successive three-year contracts. Primex, 679 N.E.2d at 625. The first contract had
a New York choice of law provision, a broad arbitration clause, the right to opt out
after six months, and the following merger clause:
This Agreement may not be amended, changed, modified, or altered
except by a writing signed by both parties. All prior discussions,
agreements, understandings or arrangements, whether oral or written,
are merged herein and this document represents the entire
understanding between the parties.
Id. The second contract had the same provisions. Id. The third contract had the
same provisions except that Wal-Mart’s general counsel removed the arbitration
clause. Id. After a kickback scandal involving the buying agent, Wal-Mart
terminated the contract and sued the buying agent for fraud and breach of contract.
Id. at 625-26. The buying agent moved to compel Wal-Mart to arbitrate the claims
arising out of the two earlier contracts. Id. at 626.
The trial court denied the motion because “the presence of a general merger
clause expressed the parties’ intent to operate solely under the [third] [a]greement
and represented the entire understanding of the parties.” Id. The intermediate
appellate court agreed that “it was ‘not imperative that the latest agreement
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expressly revoke the prior agreements’ arbitration provisions to effectively cancel
those provisions.’” Id. (quoting appellate division’s order).
The New York Court of Appeals reversed, explaining that:
[A] broad arbitration clause in an agreement survives and remains
enforceable for the resolution of disputes arising out of that agreement
subsequent to the termination thereof and the discharge of obligations
thereunder, irrespective of whether the termination and discharge
resulted from the natural expiration of the term of the agreement, a
unilateral termination under a notice of cancellation provision, or the
breach of the agreement by one of the parties.
Id. (citations omitted). “[T]he merger clause,” the court concluded, “was
insufficient to establish any intent of the parties to revoke retroactively their
contractual obligations to submit disputes arising thereunder to arbitration.” Id. at
627. “[A]bsent a more specific indication of intent to abandon contractual rights to
an arbitration forum,” the court continued, “a general release terminating the
substantive rights of the parties to the contract will not nullify their obligation to
submit to an arbitrator all of the disputes relating to that contract and its
termination.” Id. at 628. There must be, the New York court said, “a clear
manifestation of contrary intent.” Id.
Likewise, in Gadelkareem v. Blackbook Capital LLC, 46 Misc. 3d 149(N.Y. App. Term 2015), after a securities firm hired a broker, the broker “executed
a Uniform Application for Securities Industry Registration or Transfer Form (Form
U--4), which contained a broad arbitration clause requiring plaintiff ‘to arbitrate
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any dispute, claim or controversy that may arise’ between the parties.” Id. The
New York intermediate appellate court rejected the broker’s contention that “the
New York choice of law and consent to jurisdiction provisions of the parties’
[subsequent] employment contract” negated the earlier arbitration agreement
because “significantly, [it] contained ‘no express denial of the agreement to
arbitrate.’” Id. (citations omitted).
In sum, standard merger and choice of law provisions in a subsequent
contract are not the kinds of “clear manifestation” or “express denial” needed to
abandon an earlier agreement to arbitrate. On the other hand, the examples the
New York courts have given of sufficient “clear manifestation” or “express denial”
language are telling. In Primex, the New York Court of Appeals quoted this
language as a “specific indication of intent to abandon contractual rights to an
arbitration forum”: “the prior agreement is hereby canceled and declared of no
further force or effect, and said agreement shall be interpreted as though it had
never been executed.” Primex, 679 N.E.2d at 628 (quotation omitted). And in
Applied Energetics, Inc. v. NewOak Capital Markets, LLC, 645 F.3d 522 (2d Cir.
2011), although the parties agreed to arbitrate any disputes as part of a preliminary
letter agreement, the subsequent placement agreement provided that “[a]ny dispute
arising out of this Agreement shall be adjudicated in the Supreme Court, New
York County or in the federal district court for the Southern District of New York.”
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Id. at 523.6 The language in the placement agreement, the federal appellate court
said, stood in “direct conflict” with the letter agreement, and “specifically
preclude” arbitration. Id. at 525.
Here, Mukamal contends that the choice of law provision in the addendum
(“This letter agreement and the interpretation of its terms shall be governed by the
laws of the State of New York without application of conflicts of law principles.”)
expressed an intent not to arbitrate, but this is not enough of a clear manifestation
or express denial to abandon the clear right to arbitrate in the earlier 2002
partnership agreement and rider. In other words, general language in a subsequent
agreement, like what is in the addendum, is insufficient to negate the parties’
earlier agreement to arbitrate. The addendum’s choice of law provision does not
dictate the forum the parties must litigate in; it only provides that New York law
shall be applied in the parties’ chosen forum. The forum for litigation is not
addressed in the addendum and, therefore, nothing in it directly conflicts or
specifically precludes the contractual right to arbitrate in the two earlier
agreements. As in Primex and Gadelkareem, the contractual right to arbitrate in
the 2002 partnership agreement and rider is unaffected by, and survives, the
subsequent addendum to the rider for any disputes that arise out of the two earlier
agreements.
6The federal Second Circuit Court of Appeals, as we do here, was applying New
York law.
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Conclusion
For these reasons, the trial court properly granted the Marcum LLP
defendants’ motion to compel arbitration and stay the case. We, therefore, affirm.
Affirmed.
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