Falcone v. Laquer

132 So.3d 1171

Arthur FALCONE, et al., Appellants,

v.Edie LAQUER, et al., Appellees.

Nos. 3D13–2122, 3D13–490.

District Court of Appeal of Florida, Third District.

Jan. 8, 2014.

Rehearing Denied Feb. 18, 2014.

Berger Singerman, and Mitchell W. Berger, Anthony Carriuolo, and Elaine Johnson, Ft.Lauderdale, for appellants.

Paul Morris, for appellees.

Before SHEPHERD, C.J., and SALTER and LOGUE, JJ.

SALTER, J.

These are consolidated appeals from non-final orders denying the appellants' motions to compel arbitration of claims asserted in the appellees' second and third amended complaints. We dismiss as moot the appeal taken from the order relating to the second amended complaint.¹ We affirm the trial court's order relating to the third amended complaint, and we provide this opinion simply to clarify that we have not in any way receded from our prior opinion requiring arbitration of certain specific cross-claims in four foreclosure cases, as detailed in 13 Parcels LLC v. Laquer, 104 So.3d 377 (Fla. 3d DCA 2012).

Parties and Claims

The underlying circuit court case (the “Joint Venture Lawsuit”) was brought by the appellees, Edie Laquer and two Florida companies controlled and managed by her (collectively, “Laquer”), against appellants, Palm Beach developers Arthur Falcone and Marc Roberts and some thirty-six companies controlled by them (collectively, “Developers”). The claims by Laquer arise out of work with the Developers to assemble a multi-million dollar, twenty-five acre parcel of real estate on the northern edge of downtown Miami for the “Miami WorldCenter” project. Miami WorldCenter was to include office, retail, hotel, and residential space as a “city within a city.”

Laquer's third amended complaint in the Joint Venture Lawsuit alleges that in 2005 she, Falcone, and Roberts, for themselves and their respective limited liability companies, formed a partnership to assemble and develop the Miami WorldCenter. Under the alleged agreement, a discrete limited liability company (LLC) would be formed to acquire each of the component parcels of real estate assembled for the project, and Laquer was to have the right to acquire up to a ten percent interest in each such LLC. Laquer alleges that she was also entitled to acquire up to a five percent interest in additional LLCs that would be formed by the Developers to develop the project on the component parcels.

During 2005 and 2006, the third amended complaint alleges, six parcels were acquired in the name of Florida LLCs as contemplated by the partnership agreement. Laquer allegedly contributed 10% of the financial capital to the respective LLCs, which also obtained institutional mortgage loans from two banks. The banks required personal guarantees from Laquer and the other principals in the project. As to these six entities, detailed written LLC operating agreements for the entities were prepared and executed by Laquer's company and the Roberts entity formed to hold his interest in that particular parcel. A “dispute resolution” provision in each of these LLC operating agreements specified: “In the case of any dispute between the parties which has not been resolved through negotiation between the parties, such dispute shall be settled and determined through arbitration in accordance with the Rules of Commercial Arbitration of the American Arbitration Association (‘AAA’).” ²

Other contract and option rights to acquire parcels, however, did not progress to the point that operating agreements were provided to Laquer for the LLCs intended to acquire the additional parcels. As to those parcels and anticipated additions to the WorldCenter project and partnership, therefore, the appellees maintain that the disputes were not subject to an arbitration provision.

The Prior Appeal

The six LLCs which acquired parcels and arranged for signed LLC operating agreements defaulted on their bank loans. Laquer and members of two of the LLCs ultimately settled their disputes regarding the loan defaults and the defense of the member/guarantors in two of the six foreclosure cases. Laquer asserted claims against the other four LLCs and their members in two different ways: (1) in the bank foreclosure cases, Laquer asserted cross-claims against the LLCs for failing to provide a defense to her in those cases, and (2) in the separate Joint Venture Lawsuit, she included those LLCs as part of a claim for a declaration of her equity interests and for damages for breach of the WorldCenter partnership agreement.

Those four LLCs ³ and Falcone moved to compel arbitration of the “duty to defend” cross-claims based on the dispute resolution provisions of the LLC operating agreements. The trial court denied the motion, finding that the LLCs and Falcone had waived their right to demand arbitration by participating in the foreclosure lawsuits and the Joint Venture Lawsuit.

On appeal, we reversed. 13 Parcels LLC, 104 So.3d 377. We held that the arbitration provision in the operating agreements controlled the “duty to defend” cross-claims in the four foreclosure cases, and that actions taken in the continuing Joint Venture Lawsuit did not constitute a...