Third District Court of Appeal
State of Florida
Opinion filed February 16, 2022.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D21-1238, 3D21-1239, 3D21-1240
Lower Tribunal Nos. 19-19520, 19-2293, 19-2287
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Michael Ridard, et al.,
Appellants,
vs.
Massa Investment Group, LLC, et al.,
Appellees.
An appeal from the Circuit Court for Miami-Dade County, Valerie R.
Manno Schurr, Judge.
Genovese Joblove & Battista, P.A., and Jean-Pierre Bado, for
appellants.
Dickinson Wright PLLC, and Catherine F. Hoffman, Alan Perlman, and
Vijay G. Brijbasi (Fort Lauderdale), for Appellees.
Before LOGUE, HENDON, and LOBREE, JJ.
LOGUE, J.
In this consolidated appeal, Michael Ridard, Michael Ridard, LLC, and
Michael Ridard Hospitality, LLC, appeal the trial court’s orders granting
Massa Investment Group, LLC,
1111 SW 1 Ave, LLC, Mathieu Massa, Baoli
America Group Corp., 1906 Collins, and Mr. Hospitality Management, Inc.’s
petition for judicial relief and denying two motions to compel arbitration.
Because we find that there was no agreement to arbitrate between the
parties, we affirm.
The facts of the cases before us were addressed in our previous
decision in Massa v. Michael Ridard Hospitality LLC,
306 So. 3d 1106, 1108
(Fla. 3d DCA 2020):
Mr. Massa and Mr. Ridard had a working relationship for
several years. As part of that relationship, Mr. Ridard entered into
an employment agreement with Mr. Hospitality LLC. Due to
disputed events, Mr. Ridard was terminated in December of
2018.
Following Mr. Ridard’s termination, separate lawsuits were
filed by varying entities. Some lawsuits related to alleged
breaches of the employment agreement and others, including
the underlying suit, stemmed from breaches of other agreements
between different parties. In the lawsuit relevant to the instant
appeal, Mr. Massa and Massa Investment sued to recover from
Ridard Investments based on alleged breaches of the operating
agreement of 1111. The suit alleged that Ridard Investments
failed to provide an initial capital contribution of $250,000.00,
which it agreed to pay in exchange for its 10% ownership
interests in 1111, and that it was unjustly enriched as a result.
The complaint also sought a judicial order expelling Mr. Ridard
as a member of Mr. Hospitality and 1111, pursuant to Section
605.0602(6), Florida Statutes. The operating agreement
between the parties in this appeal included a provision that
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stated, “In the event of any dispute arising hereunder, the parties
agree to submit to the jurisdiction and venue of Miami-Dade,
Florida courts.” It did not contain an arbitration provision.
Ridard Hospitality subsequently filed a motion to compel
arbitration claiming that an arbitration clause contained in Mr.
Ridard’s employment agreement with Mr. Hospitality was
enforceable in this case against the nonsignatory entities. Mr.
Massa, Massa Investment and 1111 objected on the grounds
that the operating agreement required the parties to litigate their
claims, the parties were not signatories to the employment
agreement, and there was no nexus between the claims in this
case and those subject to arbitration under the employment
agreement.
Ridard Hospitality countered that although the parties to
the underlying suit were nonsignatories to the employment
agreement, one of the legal exceptions for compelling
nonsignatories to arbitrate applied. Ridard Hospitality proffered
that in referring to “management agreements,” the employment
agreement incorporated the operating agreement for 1111. No
such management agreement, however, was offered or admitted
in evidence for the trial court’s review and consideration.
We remanded the case for the trial court to hold an evidentiary hearing
regarding whether the non-party organizations could be compelled to
arbitrate their claims.
Id.
The trial court held a hearing in which the employment contract
purporting to bind the Appellees to arbitration was placed into evidence along
with the various operating agreements for each of the entities at issue. The
trial court also heard live testimony from the parties. At the conclusion of the
hearing, the trial court issued separate written orders in each of the
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consolidated cases finding that the employment contract between Mr. Ridard
and Mr. Hospitality, LLC did not bind any of the Appellees to arbitrate.
The Ridard Appellants’ argument that collateral estoppel bars
Appellees from contesting arbitration is unavailing. The doctrine of collateral
estoppel does not apply where, as here, the case on which the estoppel
claim is based is still at issue. “The doctrine of collateral estoppel, also known
as issue preclusion and estoppel by judgment, ‘bars relitigation of the same
issues between the same parties in connection with a different cause of
action.’” Criner v. State,
138 So. 3d 557, 558 (Fla. 5th DCA 2014) (quoting
Topps v. State,
865 So.2d 1253, 1255 (Fla.2004)). Necessarily, “the
particular matter must be fully litigated and determined in a contest that
results in a final decision of a court of competent jurisdiction.” Bradenton
Group, Inc. v. State,
970 So. 2d 403, 408 (Fla. 5th DCA 2007) (emphasis
added).
There has been no final decision in the case sought to be interposed,
as that case is still pending in arbitration. The case will not become final until
final judgment is issued, and, if the case is appealed, a mandate is issued
from this Court. In the absence of a final decision, the doctrine of collateral
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estoppel does not apply to bar Appellees from arguing that the claims
brought in these cases are not arbitrable. 1
As to the merits of their various arguments in favor of arbitration, all fail
on the same basis: there is no valid agreement to arbitrate between the
parties to this appeal. It is axiomatic that under Florida law, “a trial court’s
role in determining arbitrability . . . is limited to the following inquiries:
(1) whether a valid written agreement to arbitrate exists; (2) whether an
arbitrable issue exists; and (3) whether the right to arbitration was waived.”
City of Miami v. Ortiz,
317 So. 3d 249, 252 (Fla. 3d DCA 2021). While the
employment contract between Mr. Ridard and Mr. Hospitality, LLC does
include a valid arbitration provision, none of the Appellees are party to that
agreement.
1
The Ridard Appellants rely on language in Florida Rule of Appellate
Procedure 9.130(b) to argue that the decision of a trial court to compel
arbitration becomes final if it is not appealed within 30 days of rendition of
the order to be reviewed. This argument fails for several reasons. First, the
language “shall be invoked” as used in the rule, is directed at the appellate
court to require the court to take jurisdiction in such a case. Second, Florida
law is clear that “having failed to take a non-final appeal, the appellant is
permitted to pursue a final appeal after arbitration is completed.” Episcopal
Diocese of Cent. Florida v. Prudential Sec., Inc.,
925 So. 2d 1112, 1114 n.2
(Fla. 5th DCA 2006) (citing cases). Third, the rule Appellants rely on is clear
that “[t]his rule shall not preclude initial review of a nonfinal order on appeal
from the final order in the cause.” Fla. R. App. P. 9.130(h).
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This fact, in and of itself, does not defeat Mr. Ridard’s arbitration
request as “[n]onsignatories have been held to be bound to arbitration
agreements under the theories of (1) incorporation by reference;
(2) assumption; (3) agency; (4) veil piercing/alter ego; and (5) estoppel.”
Massa, 306 So. 3d at 1109 (citations omitted). Here, however, as the trial
court properly determined, neither incorporation, agency, nor estoppel
applies to the Appellees. See Mendez v. Hampton Court Nursing Center,
LLC,
203 So. 3d 146, 149 (Fla. 2016) (“Critically, the third-party beneficiary
doctrine enables a non-contracting party to enforce a contract against a
contracting party—not the other way around.”); Liberty Commc’ns., Inc. v.
MCI Telecomms. Corp.,
733 So. 2d 571, 575 (Fla. 5th DCA 1999) (“Signing
a contract as an agent for a disclosed principal is not sufficient to bind the
agent to arbitrate claims against him personally.”); Armas v. Prudential Sec.,
Inc.,
842 So. 2d 210, 212 (Fla. 3d DCA 2003) (“Non-signatories can also
compel arbitration based on the equitable estoppel doctrine.” (emphasis
added)). Further, the trial court’s finding that the corporate entities were not
subject to veil piercing was supported by the entities’ various operating
agreements and testimony that there was no relation between Mr.
Hospitality, LLC and Massa Investments.
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The Ridard Appellants, therefore, failed to show that there was any
agreement to arbitrate between the parties to this litigation. Without an
agreement to arbitrate, the Ridard Appellants cannot compel Appellees to
arbitration.
Affirmed.
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