310 So.3d 71
Fla. Dist. Ct. App.2021Background
- Matthew Jacocks, a real estate agent, claims he secured an off‑market buyer for a multi‑family property and was entitled to the commission under his agreement with his broker.
- The broker hired Friedlander & Kamelhair (and attorney Bruce Friedlander) to sue the seller to recover the commission; Jacocks did not sign the retainer but alleges he paid half the retainer and worked with the lawyer.
- While the case was pending the broker terminated Jacocks, communications with the attorney ceased, the case settled, and Jacocks received no settlement proceeds or notice of terms.
- Jacocks sued the broker and the law firm/attorney, including a legal malpractice claim against the firm and attorney, alleging he was an intended third‑party beneficiary of the retainer and the defendants breached duties to him.
- The defendants moved to compel arbitration under an arbitration clause in the broker–law firm retainer; the trial court granted the motion and Jacocks appealed.
- The Fourth District reversed, holding Jacocks—who did not sign the retainer and sues for negligence rather than to enforce the retainer—is not bound by the arbitration clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a non‑signatory intended third‑party beneficiary who sues for legal malpractice is bound by an arbitration clause in a retainer signed by others | Jacocks did not sign the retainer and is suing in negligence (not to enforce the contract), so he cannot be compelled to arbitrate | As an intended third‑party beneficiary, Jacocks is bound by the retainer's arbitration clause | Reversed: Jacocks is not bound. The exception that binds third‑party beneficiaries to arbitration applies only when the beneficiary sues to enforce the contract; a tort malpractice claim does not trigger that exception |
Key Cases Cited
- Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999) (a party cannot be forced to arbitrate disputes it did not agree to arbitrate)
- Mendez v. Hampton Court Nursing Ctr., 203 So. 3d 146 (Fla. 2016) (third‑party‑beneficiary who sues to enforce a contract may be bound by its arbitration clause; exception does not apply when suing on noncontractual claims)
- Nat’l Gypsum Co. v. Travelers Indem. Co., 417 So. 2d 254 (Fla. 1982) (discussing binding effect of arbitration clauses on third‑party beneficiaries who sue to enforce the contract)
- Ibis Lakes Homeowners Ass’n, Inc. v. Ibis Isle Homeowners Ass’n, Inc., 102 So. 3d 722 (Fla. 4th DCA 2012) (motion to compel arbitration reviewed de novo, with factual findings for substantial competent evidence)
- Dingle v. Dellinger, 134 So. 3d 484 (Fla. 5th DCA 2014) (distinguishing contract theory from tort in third‑party beneficiary malpractice claims; core action lies in tort)