Petition for Writ of Certiorari — Forum Steakhouse of Florida, Inc. v. Stroock Stroock & Lavan, LLP

( / —_ —_ U.S.

“OS 553 Auvcé 2003

in The

Supreme Court of the Anited States

2

v

FORUM STEAKHOUSE OF FLORIDA, INC.,

Petitioner,

Vs.

STROOCK STROOCK & LAVAN, LLP,

Respondent.

Sd

On Petition For Writ Of Certiorari To The

District Court Of Appeal Of Florida,

Third District

@

PETITION FOR WRIT OF CERTIORARI

Sd

ANDREW WILKENS

Counsel of Record

University Commerce Park

3474 Alaidon Parkway

Suite 600

Okemos, Michigan 48864

(517) 381-0481

Y9 p0

QUESTIONS PRESENTED

1. Can the Florida Courts rule that the allega-

tion of Fraud in the Inducement of the arbitra-

tion contract is to be resolved by the arbitrators

over the objections of the party to arbitrate and a

demand on that issue for a jury trial?

2. Can the Florida Courts rule that a fraudu-

ently obtained arbitration contract does not in-

validate an arbitration contract?

3. Can the Florida Courts compel arbitration of

claims arising and occurring when no valid Arbi-

tration contract existed?

4. Can the Florida Courts enforce an uncon-

scionable Arbitration clause when all the ele-

ments of unconscionability are present?

5. Can the Florida Courts uphold an Arbitra-

tion Award when the Arbitration was not con-

ducted in accordance with the Arbitration Rules

as agreed to by the parties?

6. Can the Florida Courts render decisions con-

travening the Federal Arbitration Act?

LIST OF PARTIES

The parties to the proceedings are Forum Steakhouse

of Florida, Inc., petitioner herein and appellant/plaintiff

below, and Stroock Stroock & Lavan, L.L.P. with offices in

Miami, Florida,. ~ondent herein and appellee/defendant.

CORPORATE DISCLOSURE

Forum Steakhouse of Florida, Inc. was a duly con-

stitued Florida Corporation. Milton Brodsky was Presi-

dent and shareholder of said corporation, and is now

Director for the purposes of finalizing residual corporate

business and claims. Forum, Inc. is now defunct.

iii

TABLE OF CONTENTS

Page

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iis nth nbn iva es andndinitpannssiionaenensaeitnesess 1

Jurisdictional StateMen...........sccsccrosscsssscsessscssscssesscesessses 2

Constitutional and Statutory Provisiors Involved ........ 2

ING Cr GED SIINO vic onesossverscancrovavavecsscesenevessasseees 3

iv

- TABLE OF AUTHORITIES

Page

CASES

Adler v. Rimes, 545 So. 2d 421 (Fla. 4th DCA 1989)......... 13

All American Semi Conductor, Inc. v. Unisys Corp.,

637 So. 2d 59 (Fla. 3rd DCA 1994) .................cecessssesseees 15

Austin v. Stovall, 475 So. 2d 1014 (Fla. 3rd DCA

Be Pinsiisihcsinsmiaadiions —— salable ialebassiaaidediuie aauepippaties 22

Commonwealth Coatings Corp. v. Continental

Casualty Co., 393 U.S. 145 (1968)..................... 20, 21, 23

Davis Cattle Co. v. Great Western Sugar Co., 393

F. Supp. 1165 (D. Colo. 1975) aff'd, 544 F.2d 436

(10th Cir. 1976), cert. denied, 429 U.S. 1094

(CTE iisccnnsseissinselectsitsiaaciniesiinissiaeaaiideaiteilatada titeibadhidiiiatiniuiaiauacainalesaht 22

Doctors Associates, Inc. v. Casarotto, 517 U.S. 681

SUN cccsiseansadeilblasaccchiaashcasipiaaiestbdcenbtaabapiibesetdivaunceaabebensas 13, 16, 22

Matter of Goldfinger v. Lisker, 68 N.Y. 2d 225, 508

N.Y.S. 2d 159, 500 N.E. 2d 857 (Ct. App. 1986)............ 22

Miller v. Roberts, 682 So. 2d 691 (Fla. 5th DCA

PIP sncisindnihnsieces dieeesicaaesdishinmendicalniaanlaaiatimcmeaabeliiaaatiiel 15

Powers v. Dickson, Carlson, & Campello, 63

Cal. Rptr. 2d 261 (Cal. Ct. App. 1997)..................ccceeeees 18

Powertell v. Bexley, 743 So. 2d 570 (Fla. lst DCA

fe RON NLT ETN Se RE RN IELTS AT OR 18

Prima Paint Corp. v. Flood & Conklin Manufactur-

ge Me Oe Sg, , 12, 13, 23

Spitz v. Prudential-Bache Securities Co., 502 So. 2d

Ce Ak, TE GIA SUED cdntnniievniniaressinnnsnakiieicniinancactiiainasanate 13

Vv

TABLE OF AUTHORITIES — Continued

Page

Tracer Research Corp. v. National Envi. Servs.

Co., 42 F.3d 1292 (9th Cir. 1994)................ccccssssccsssscsess 15

Wick v. Atlantic Marine, Inc., 425 F.2d 166 (5th

OE: Tie cisnsnctisciiadcntciucuseninaniaiatinjanscnesieaeiamaaamadian 13

STATUTES:

Federal Arbitration Act Sections 2..............ccccceeeeeseeees 15, 18

© .ssssinscimnieeiatalcepnidiaaaanas 12

© sscisiepetsneeieiieaannenieaal 20

Florida Statute G62 Clap. .0] ......cccccssescsescossosscessosesocccsesees 3

TEP ivtnichsidiideiaiaemane 11

i sticienininnahicnnaaaae 21

a IID vcincnchecisssanadieuiasiei 21

Dg) | eee 11, 15

OTHERS:

Rules of Professional Conduct 4-1.8(h)............c cc eeeeeeseeeeees 18

ee CORTE CII vncninnctssccsicisiiniininaitnicniiineeamniaiibaintiaetls 18

Affidavit of American Arbitration Association By

Commercial Supervisor of Florida......................:sss0e000+8 21

American Arbitration Association, Rule 19 .................. 3, 21

1

OPINIONS BELOW

In the District Court of Appeals of Florida, Third

District an Appeal from the 11th Judicial Circuit Court.

Opinion filed May 22, 2002

In the 11th Judicial Circuit Court in and for Dade

County Florida, Order on Motion to Compel Arbitration

and to Stay Proceedings. Filed October 8, 1998

Before The American Arbitration Association, Atlanta,

Georgia Office. Filed December 29, 1999.

Before The American Arbitration Association Atlanta,

Georgia Office. Final Award March 1, 2000

In The Circuit Court of the Eleventh Judicial Circuit

in and for Miami-Dade County, Florida. On a Hearing in

Chambers Filed May 11, 2001.

In The Circuit Court of the 11th Judicial Circuit, in

and for Miami-Dade County, Florida. Final Order May 17,

2001.

In The Circuit Court of the 11th Judicial Circuit in

and for Miami-Dade County, Florida. Order Confirming

Arbitration Award and Entering Final Judgment. Filed

June, 15, 2001

In The District Court of Appeals of Florida. Third

District Denying Motion for Rehearing. Filed July 12, 2002

Supreme Court of Florida Decline to Accept Jurisdic-

tion, June 10, 2003

*

2

JURISDICTIONAL STATEMENT

The Judgment of the Third District Court of Appeals

for the State of Florida became final on July 12, 2002,

when that Court denied Forum’s Petition for Rehearing,

per curiam.

The jurisdiction of this Court is invoked under the

Fourteenth Amendment, Sect. 1, United States Constitu-

tion and the Federal Arbitration Act, 9 U.S.C.A. §§ 1, et

seq., the Florida Arbitration Act, 682.01-22 Fla. Stat.,

parallels the Federal Act, and 28 U.S.C. § 1257(a).

+

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fourteenth Amendment, Sect 1, United States Consti-

tution:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or in

force any law which shall abridge the privileges

and immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny any person within its jurisdiction the

equal protection of the laws.

The Federal Arbitration Act, 9 U.S.C.A. §§ 1, et seg.,

provides in part, that, although Arbitration agreements

are binding and enforceable, State law on the legality,

revocability and enforceability of contracts, generally, as

well as State law on contract defenses such as fraud,

duress or unconscionability, control questions of validity

3

where the substantive dispute is based upon state law.

The Florida Arbitration Act, 682.01-22 Fla. Stat., parallels

the provisions of the Federal Act.

r

_

STATEMENT OF THE CASE

1. INTRODUCTION

This Writ of Certiorari is filed on behalf of petitioner

Forum Steakhouse of Florida, seeking a vacation of an

arbitration award and invalidation of an arbitration

contract. This case involves Florida State Courts contra-

vening the Federal Arbitration Act and denying Forum

due process of law, under the Fourteenth Amendment.

This is an appeal of an order compelling arbitration,

and an Arbitration Award that was upheld by the Elev-

enth Judicial Circuit Court in and for Miami-Dade County

and the Third District Court Of Appeals, Florida. Forum

contends that under the laws the case should have never

been compelled to arbitration and the 8rd DCA duplicated

and perpetuated that error. (1) The arbitration contract

was procured by fraud, (2) Forum never agreed to arbi-

trate its claims, (3) the arbitration contract was uncon-

scionable, (4) that the agreed American Arbitration

Association, Rule 19, regarding neutral arbitrators to

disclose possible conflicts, and appointed as neutrals was

not adhered to by the arbitrators.

Forum challenges the arbitration itself on legal

grounds. Therefore only the evidence that led to the

objections to arbitrate and testimony from the arbitration

hearings, Federal Arbitration Act and Florida Arbitration

4

Statute 682, and case laws from the Federal and State

Appeals Courts and United States Supreme Court are

relied upon without going into detail of our Initial Brief.

2. DOCUMENTED BACKGROUND

In August of 1996, Forum negotiated a lease and

assets purchase from Unicorn restaurant. Unicorn was

situated in the rear of the Waterways Shopping Center,

Miami, Florida. It was owned by DIM Management and

operated by Ross Realty. Conditions of the purchase that

Forum could amend the lease, Forum/DIM reached an

outline for the amendment.

The lynch pin of the deal was for Forum to have the

legal, unequivocal and unencumbered right to erect a

tenant’s sign at the entrance to the shopping center. That

gave the restaurant exposure to all visitors to the area.

It is undisputed, by all, that the signage was crucial to

the success of the restaurant. Forum would not enter into

any deal or lease agreement without the absolute assur-

ance that it would be legally able to erect tenant’s signs.

Forum retained Mitchell C. Fogel, Esq. (August 20,

. 1996) in connection with the purchase from Unicorn and

amendment of the lease with DIM to ensure that Forum

had the legal, unequivocal and unencumbered right to

erect the tenant’s signs at the entrance to the shopping

center and all that Forum was buying was legally doable

and transferable to Forum.

As a result of certain contract complications with

Unicorn, Forum in concurrence with Fogel retained the

Stroock Stroock & Lavan, LLP. Stroock was to settle a

dispute with the Unicorn and if successful, he was to

— |

5

review the lease and its amendment that Fogel made with

the landlord. Forum told Stroock the same as he told Fogel

about the signs. Stroock became the lead attorney, and

worked in conjunction with Fogel through the closing.

Stroock advised Forum on Oct. 22, 1996 it was okay to

close. Forum closed on Oct. 23, 1996.

Forum signed an engagement letter on Oct. 15, 1996.

That had a arbitration clause with no specific mention of

“malpractice claims.” Upon an inquiry by Forum, Stroock

said it was for fee disputes.

Forum completed his renovations and opened for

- business in Dec. 1996. The City of Aventura stated that

the signs the landlord permitted in the contract were in

fact illegal and ordered Forum to immediately remove

them. Consequently Forum closed the business.

DIM sued Forum for eviction and unpaid rent, Forum

counter sued DIM for (1) Breach of Lease (2) Fraud in the

Inducement (3) Failure To Repair Roof. Forum’s attorney

in this representation, Darren Rousso, defended a Motion

To Dismiss by DIM of the fraud issue based on the eco-

nomic loss rule. Forum prevailed in that arena. Mr.

Rousso left private practice and Forum went to Stroock

seeking help. Forum was unaware of the potential mal-

practice. :

Forum faxed Stroock the documents on Sept. 8, 1997

and a “claims analysis” was done by Stroock between Sept.

8th-16th 1997. Stroock was keenly aware that Fogel and

itself had committed malpractice. In a response to a

question at the arbitration:

Q. “After reviewing the lease and the amend-

ment, you would have recognized the landlord

6

certainly had a case that it was not his responsi-

bility to check zoning for the buyer?”

A. “I knew that the first time I saw it.” That

was Sept. 8th, 1997 (The Stroock bills show they

also reviewed the lease and the amendment in

Oct. 17th & 18th 1996).

That was not told to Forum, if it had been we would

have recognized the malpractice then.

After the “claims analysis” Stroock had Forum execute

a new engagement letter, dated Sept. 17, 1997. This also

had an arbitration clause but with “specific mention of

future legal malpractice claims.”

This alerted Forum to inquire ‘did you do anything

wrong’ in relation to our commercial transaction? Stroock

answered “they did not” and interjected “that you have a

very good breach of contract against the landlord.” At this

point Forum signed.

Subsequently Stroock testified only new clients sign

engagement letters, Forum was not a new client. The Oct.

15, 1996 engagement letter covered the DIM/Forum

lawsuit.

The record shows that Stroock also told Forum (dur-

ing the “claims analysis” period) that the Judge erred in

the Motion to Dismiss the fraud issue, and would reverse

himself on the Economic Loss Rule. Later, under oath

Stroock admitted he misled Forum on that issue.

When Forum subsequently learned from the Judge in

open court (with Stroock present) at the end of

DIM/Forum trial was that Forum was not legally pro-

tected by its lawyers in the transactional stage. The Judge

7

did not know that Stroock was part of Forum’s transac-

tional team.

Subsequently Forum sued Fogei and Stroock for

malpractice in the 1996 representation.

Forum also sued Stroock for his second representa-

tion, for breach of fiduciary duty, constructive fraud,

fraudulent misrepresentation, fraudulent inducement,

negligent misrepresentation and malpractice in the second

representation, Forum’s Ver.ied Amended Complaint.

Stroock denied liability, and Forum was forced to sue.

Stroock made a Motion to Compel Arbitration. That

hearing is memorialized in a document called “Statement

of Proceedings.” The Statement of Proceedings meets all

genuine issue in that it reflects in whole or part, the basis

for the claims. The record is replete with other evidence of

fraud.

Stroock presented the first arbitration clause with the

Dispute Resolution Procedures attached. The Dispute

Resolution Procedures were an attempt to limit a lawyer’s

liability for malpractice. Forum argued that the arbitra-

tion clause contained in the first retainer agreement was

not applicable. The Court Agreed. Stroock then said that

there was a second retainer agreement, which contained

another arbitration clause, Forum’s counsel argued, that it

had not been produced, was not in our possession and if

there was “such a clause” in the second agreement, “it had

been procured by fraud.”

Stroock objected, to the first ‘Statement’ draft, states

Forum conveniently fails to omit he also argued “uncon-

scionability.” Forum amended the Statement and ulti-

mately received judicial approval. The Court sent Forum,

8

over its objections to arbitration, struck the Dispute

Resolution Procedure and left the arbitration contract

enforce. The Dispute Resolution Procedures were never

seen, reviewed, signed or agreed to by Forum, prior to the

Motion to Compel hearing. Arbitration hearing was held

and Forum lost in that arena.

Forum filed a Motion to Vacate Arbitration Award.

Forum reiterated his claims (1) Fraud in the Inducement

of the arbitration clause, (2) It never agreed to arbitrate

its claims, (3) the arbitration contract was unconscionable,

(4) after the proceedings Forum uncovered that an arbitra-

tor and its firm paid out claims and were sued for numer-

ous malpractice suits and were presently involved in a

case of negligent misrepresentation for $1,800,000.00

which was strikingly similar to Forum’s. That prejudiced

Forum’s right to object to seat the arbitrator.

Stroock’s written reply to Forum’s motion revealed

that the arbitrator in question was never neutral and all

three arbitrators were non-neutrals. All were appointed to

be neutral.

Forum filed a Memorandum of Law, amended its

complaint to include that the arbitration was not con-

ducted by the agreed rules. Forum lost at May 11, 2001

hearing, Court denied all of Forum’s requests. Forum went

to the Third District Court of Appeals of Florida.

3. PROCEEDINGS IN THE STATE CIRCUIT

COURT.

The 11th Circuit Court’s rulings are presented with

each of the four issues in Reasons For Granting Writ.

9

4. PROCEEDINGS IN THE STATE COURT OF

APPEALS.

The 3rd DCA affirmed the lower Court’s ruling on the

four issues and gave two opinions that were expressly and

directly in conflict with other Appeals Courts.

5. PROCEEDINGS IN THE STATE SUPREME

COURT.

Forum invoked the discretionary jurisdiction of the

Florida Supreme Court citing Rule 9.030(a)(2)(A\iv) to

review a decision of a “District Court of Appeals decision

that expressly and directly conflicts with a decision of

another District Court of Appeals or of the Supreme Court,

on the same question of law.” Art. 3(b)(3) Fla. Constitution

(1980).

The Supreme Court declined its discretionary jurisdic-

tion, referring to Art. 3(b) of Florida Constitution (1980).

“That expressly addresses a question of law within the

four corners of the opinion itself’ by “contain[ing] a state-

ment or citation effectively establishing a point of law

upon which the decision rests.”

The Third District Court of Appeals Decisions are:

“We find no merit to the appellant’s argument

... the arbitration clause was procured by

fraud.”

“Nor do we find any merit to the appellant’s

claim that the arbitration panel, or any member

thereof, was biased in favor of the appellee.”

Forum found those decisions were expressly and

directly in conflict with other appeals courts on the same

10

question of law. And both of the decisions are expressly

and directly in conflict with decisions of the United States

Supreme Court.

Forum claims it was denied due process of law. The

Federal Arbitration Act was contravened by the Florida

Courts. American Arbitration Rules and Florida Contract

Law were not applied.

Precisely because arbitrations are subject to judicial

deference it is imperative that the integrity of the process

be zealously guarded. Concerns about the arbitration

process are being frequently expressed in the legal com-

munity.

Stroock had a fiduciary relationship with Forum

which imposed on them duties of utmost good faith,

loyalty, honesty and fair dealings. Stroock took the second

Forum representation to sue the landlord only because

they had in hand (“a get out of jail card”) an agreement to

arbitrate.

4

vy

REASONS FOR GRANTING THE WRIT

This Writ Of Certiorari establishes the bare bone facts

relating to the arbitration laws without going into the

detail of our Initial Brief.

The following are the four issues for granting a writ.

ISSUE I FRAUD IN THE INDUCEMENT

The Trial Court ruled in this case that was when

an arbitration clause was alleged to be fraudu-

lently induced and a jury trial was demanded the

11

Florida Courts ruled there is no such entitlement

and the issue was to be resolved by the arbitra-

tors; and there is no merit that a fraudulently

obtained arbitration contract invalidates the ar-

bitration clause. That decision contravenes Sec-

tion 4 of the Federal Arbitration Act and a denial

to a civil trial.

Eleventh Circuit Court’s Decision.

“Lawyers theyre supposed to give independent

legal advice and not mislead their clients.” “I am

very disturbed by the precaution list ... it could

have been something that was misleading.” “I

agree with your clients are very upset they didn’t

have a jury trial, because the climate now is peo-

ple aren’t too happy with lawyers and judges”...

and “because the issues are so complex that’s its

better not to have a jury trial for professional

malpractice cases.”

Third District Court of Appeal’s Decision.

“We find no merit to the appellant’s argumeat

that ... the arbitration clause was procured by

fraud.” “Affirmed.”

Forum always objected to the arbitration, and referred

to the Court and demanded a jz=ry trial at May 11, 2001

hearing, quoting Fla. Chap. 682.13(1)(e), “under the rule to

vacate.” “There was no agreement or provision for arbitra-

tion subject to this law, unless the matter was determined

in proceedings under 682.03.” “It never was,” Forum

stated on the record and was again denied a jury trial on

the issue of the fraud induced arbitration clause.

ee

12

CONCLUSION

The Court recognized Forum had a genuine is-

sue, (“Forum could have been misled” a issue for

a jury determination) and demanded a jury trial

on the issue of fraud in making of arbitration

clause. The 3rd DCA acknowledged that Forum

alleged the arbitration clause “it had been pro-

cured by fraud.” Trial Court determined that

could be resolved by the arbitrators. The 3rd

DCA duplicated and perpetuated that error. The

3rd DCA found no merit, “that a fraudulently in-

duced arbitration clause would have negated the

arbitration clause.”

The decisions by the Court and the 3rd DCA af-

firming are errors and are diametrically opposed

to, and in expressed and direct conflict with a

substantial body of well settled case laws to the

contrary. The remedy is the Court shall make an

order referring issue to a jury. If Forum prevails

it reverses the arbitration award and invalidates

the arbitration contract. The decision is in ex-

press & direct conflict with Prima Paint Corp. v.

Flood & Conklin Manufacturing Co., 388 U.S.

395, 399-400 (1967).

AUTHORITIES TO ISSUE I

Federal Arbitration Act, Section 4

“If the making of the arbitration agreement... be

in issue, ... demand a jury trial, trial of such is-

sue, and upon such demand the court shall make

an order referring the issue or issues to a jury.”

682.13(1)(c) Fla. Chap.

(1) Upon application of a party, the court shall

vacate an award when:

13

(e) there was no agreement or provisions for ar-

bitration subject to this law, unless the matter

was determined in proceedings under 682.03 and

unless the party participated in the arbitration

hearing without raising the objection.

Case Laws:

Prima Paint Corp. v. Flood & Conklin Manufacturing

Co., 388 U.S. 395, 399-400 (1967) “The fraud issue is not -

subject to arbitration.” Adler v. Rimes, 545 So. 2d 421 (Fla.

4th DCA 1989) “Party had a right to a jury trial to resolve

issue.” (Citing FAA) Wick v. Atlantic Marine, Inc., 425

F.2d 166 (5th Cir. 1979) “Fraud issue is not subject to

arbitration.” Spitz v. Prudential-Bache Securities, Inc., 502

So. 2d 479 (Fla. 4th DCA 1987) Sent fraud issue to a jury.

Judge Glickstein expressed concern about arbitration.

Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681 (1996)

held that State Legislatures and State Courts cannot pass

laws or render decisions contravening the Federal Arbitra-

tion Act. Other panels of State and Federal Courts of

Appeals are in accord.

ISSUE IIT FORUM NEVER AGREED TO ARBI-

TRATE ITS CLAIMS

The alleged fraudulently induced arbitration con-

tract was enforced against claims that preexisted

the contract, without the contract referring to

arbitrate preexisting claims. Forum was forced to

arbitrate claims that occurred when no arbitra-

tion contract existed. The Trial Court’s ruling in

this case was the Court could reach back to

claims unknown to Forum, and could compel ar-

bitration at its discretion without an agreement

14

to arbitrate. That decision contravenes Section 2

of the Federal Arbitration Act and a denial of a

civil trial.

Eleventh Circuit Court’s Decision.

At a hearing for a Motion to Compel arbitration

in a “Statement of Proceedings” the Court denied

arbitration on a contract that the claims arose

after the contract was made.-The Court allowed

and upheld the arbitration contract when the

claims (six of the seven) arose before a second

contract came into existence. The Court was si-

lent on this matter in the rulings at the May 11,

2001 hearing holding to its original ruling.

Third District Court Of Appeals Decision.

The Court “Affirmed” but was silent on this mat-

ter though it was extensively argued in Forum’s

Initial Brief, its Reply Brief and its Motion for a

Rehearing.

A natural corollary of this rule is that no party may be

forced to submit a dispute to arbitration that the party did

not intend and agree to arbitrate.

CONCLUSION

Based on the indisputable time line that the first

malpractice claim arose in Oct. 1996 representa-

tion and that five of the other claims arose in the

“claims analysis” period of Sept. 8th-16th, 1997

and only the malpractice claim for the second

representation arose from the Sept. 17th, 1997

arbitration contract. Being the time when the

claims arose there was no valid arbitration con-

tract. Forum could not have made an agreement

to arbitrate those preexisting claims, unknown to

15

them at the time the arbitration contract was

made and signed.

Those decisions by the Trial Court and “Af-

firmed” by the 3rd DCA are errors and are dia-

metrically opposed to and in express and direct

conflict with a substantial body of well settled

case laws to the contrary. The remedy is to va-

cate the arbitration award and invalidate the ar-

bitration contract.

AUTHORITIES TO ISSUE II

Federal Arbitration Act Section 2

“A written provision ... or a contract evidencing

a transaction involving commerce to settle by ar-

bitration ... or an agreement in writing to sub-

mit to arbitration . .. a controversy arising out of

such a conéract.”

682.13(1)(e) Fla. Chap.

(1) Upon application of a party, the court shall

vacate an award when:

(e) there was no agreement or provision for arbitra-

tion subject to this law.

Case Laws:

All American SemiConducter, Inc. v. Unisys Corp., 637

So. 2d 59, 60 (Fla. 3rd DCA 1994) “cannot be compelled to

arbitrate a dispute which does not arise out of the arbitra-

tion clause, the second and distinct agreement.” Miller v.

Roberts, 682 So. 2d 691 (Fla. 5th DEA 1996) “With respect

to the terms of the Agreement” did not compel arbitration

of tort claims alleging breach of fiduciary duty, fraud and

conspiracy. Tracer Research Corp. v. National Envitl.

16

Servs. Co., 42 F.3d 1292, 1294 (9th Cir. 1994). Federal

policy favoring arbitration “cannot serve to stretch con-

tract beyond the scope originally intended by the parties.”

Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681 (1996)

held that State Legislatures and State Courts cannot pass

laws or render decisions contravening the Federal Arbitra-

tion Act. Other panels State and Federal Appeals Courts

are in accord.

ISSUE I AN UNCONSCIONABLE ARBITRATION

CONTRACT CAN BE DEFEATED

The Florida Court ruled that even if all the ele-

ments are present, withholding of material in-

formation, violating the Rules of Professional

Conduct, attempt to limit its liability for mal-

practice, the client uncovers bad faith in taking

of the secend representation, wrongly places the

duty of legal knowledge on the client, the Court

recognizes those facts and interprets the law that

the arbitration contract is valid.... The Federal

Arbitration Act provides for State Court’s revoca-

tion of any contract including an arbitration

clause.

Eleventh Circuit Court’s Decision

“Court believes that limiting liability or malprac-

tice thing, that you refer client to another lawyer

to get a binding limitation of liability, I think

that goes to the amount, not the issue whether

you're going to have arbitration or a jury trial on

the issue of liability malpractice.” “As far as the

unconscionability, substantive and procedural, I

can’t see that there was a problem here. The cli-

ents could go to another lawyer ... if they wer-

en’t happy the first go-around,” “someone with

17

with some level of sophistication so I will uphold

the original finding the arbitration clause is

valid.” “Forum could have been misled.”

Third District Court of Appeals Decision.

“Affirmed,” the Trial Court but was silent, even

though Forum argued extensively in its Initial

Brief, its Reply Brief and in its Moticn for Re-

hearing.

The Trial Court held and the Third District Court of

Appeals “Affirmed” wrongly that an arbitration clause

cannot be defeated.

CONCLUSION

The Trial Court dismissed the fact that Forum

trusted Stroock and had a substantial invest-

ment into Stroock’s knowledge of the case. The

Court also dismissed the fact that “Forum could

have been misled,” and material information was

withheld when the contract was entered. Court

dismissed the attempt to limit liability for mal-

practice. The Court interpreted the Rules of Pro-

fessional Conduct as not being a protection of a

client from an unscrupulous lawyer; the Court

also obligates the client of the responsibility of

ethical legal sophistication and knowledge and

dismisses the lawyers professionalism and decep-

tion.

Reversal of the Arbitration Award and invalidating

the arbitration contract is the proper remedy.

18

AUTHORITIES TO ISSUE III

Federal Arbitration Act Section 2

“Contracts are valid, irrevocable, and enforce-

able, save on such grounds as exist at law or in

equity for the revocation of any contract.”

State Contract Law

Relates to the manner in which contract was en-

tered and it involves consideration of such issues

as relative bargaining power of the parties and

their ability to know and understand the dis-

puted contract terms.

Rules of Professional Conduct 4-1.8(h)

(h) LIMITING LIABILITY FOR MALPRAC-

TICE. A lawyer shall not make an agreement

prospectively limiting the lawyer’s liability to a

client for malpractice unless permitted by law

and the client is independently represented in

making the agreement.

Case Laws: -

Powertell v. Bexley, 743 So. 2d 570, 574 (Fla. lst DCA

1999) “Thus, an arbitration clause can be defeated by any

defense existing under the state law of contracts.” “Florida

Courts may properly decline to enforce a contract on the

ground that it is unconscionable.” Id.

Stroock’s reliance on Powers v. Dickson, Carlson &

Campillo, 63 Cal. Rptr. 2d 261 (Cal. Ct. App. 1997) holds

“if the lawyer prospectively attempted to limit its liability

for malpractice the arbitration clause was invalid.”

Powertell was a landmark arbitration case regarding

an unconscionable contract to arbitrate. Circumstances

are very similar to Forum.

19

ISSUETV ARBITRATION WAS CONDUCTED OUT-

SIDE THE RULES OF THE AMERICAN

ARBITRATION ASSOCIATION

A compelled arbitration was held. There were

written rules to the arbitration. The appointed

neutral arbitrators admittedly, after the proceed-

ings, did not follow those rules yet the arbitra-

tion award was upheld by the Trial Court and

affirmed by the 3rd DCA. Also a neutral arbitra-

tor failed to disclose acts of possible non-

neutrality. That contravenes Section 5 of the

Federal Arbitration Act which requires arbitra-

tors and arbitrations-be conducted within the

rules of arbitration.

Eleventh Circuit Couri’s Decision

“I think you should have gone to Justice England

and had him check his conscious and review the

situation and decide if he really could be fair.

You could have done that with each and every

lawyer on the panel, not just Justice England.” “I

really don’t think the issue of Justice England’s

lack of disclosure is sufficiently corrupting or

despicable.”.

Third District Court Of Appeals Decision

“Nor do we find any merit to the appellant’s

claim that the arbitration panel, or any member

thereof, was biased in favor of the appellee.” “Af-

firmed.”

Non-disclosure and concealment of the Arbitrators

non-neutral status, and the ongoing involvement of one

Arbitrator in particular, as a defendant in a case strik-

ingly similar to Forum v. Stroock, and not adhering to the

20

arbitration rules, prejudiced Forum of its right to object

and to have a fair hearing under the agreed rules.

CONCLUSION

The Trial Court acknowledged that England

failed to disclose possible non-neutral acts. The

Court also recognized that England and the other

arbitrators were concealing the fact of their non-

neutrality. The Trial Court put the burden of dis-

covery upon Forum when, procedurally Arbitra-

tors were obligated to disclose facts relating to

possible non-neutrality. The Third District Court

of Appeals found that proof of ‘bias’ is a prerequi-

site of Forum’s right to object. That is in express

and direct conflict with the United States Su-

preme Court on the same question of law. Com-

monwealth Coatings Corp. v. Continental

Casualty Co., 393 U.S. 145, 149, 150 (1968).

Those decisions by the Trial Court and “affirmed” by

the 8rd DCA are errors and are in conflict with a well

settled body of State and Federal case law to the contrary.

The remedy is to vacate the Arbitration Award.

The above situation regarding concealment of non-

neutrality should be investigated for the public’s concern

regarding binding arbitration hearing.

AUTHORITIES TO ISSUE IV

Federal Arbitration Act Section 5

“If in the agreement provision be made for a

method of naming or appointing an arbitrator or

arbitrators or an umpire, such method shall be

followed;

a

21

Affidavit of American Arbitration Association By

Commercial Supervisor of Florida.

“All three arbitrators appointed in the Arbitra-

tion were neutral and subject to the disclosure

and removal provisions contained in Rule 19 of

the Rules.”

682.04 Fla. Chap.

“If an agreement or provision for arbitration sub-

ject to this law provides a method for appoint-

ment of arbitrators or an umpire, this method

shall be followed.”

682.12(1)(a)(b) Fla. Chap.

(1) Upon application of a party, the court shall

vacate and award when:

(a) “The award was procured by corruption,

fraud or other undue means.”

(b) “There was evident partiality by an arbitra-

tor appointed as a neutral or corruption in any of

the arbitrators or umpire or misconduct prejudic-

ing the rights of any party.”

Case Laws:

Commonwealth Coatings Corp v. Continental Casualty

Co., 393 U.S. 145, 149, 150 (1968) a neutral arbitrator has

the affirmative duty to disclose information creating an

appearance that of a possible non-neutrality. The actual

presence or absence of bias was immaterial. The fatal

error in the process was deprivation of the victimized

party’s right to object to the appointment of that Arbitra-

tor(s). “The party challenging the arbitrator need not show

actual bias or improper motives.” “[AJny tribunal permit-

ted by law to try cases and controversies not only must be

22

unbiased but also avoid even the appearance of bias.” Id.

At 150. Austin v. Stovall, 475 So. 2d 1014 (Fla. 8rd DCA

1985). The arbitrators were not chosen pursuant to man-

ner set forth in the parties agreement.” The remedy was

reversal. Davis Cattle Co. v. Great Western Sugar Co., 393

F. Supp. 165, 1179 (D. Colo. 1975) aff'd, 544 F.2d 436 (10th

Cir. 1976), cert. denied, 429 U.S. 1094 (1977) “where there

is a clear violation of the arbitration contract, the award is

void. Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681

(1996) held that State Legislatures and State Courts

cannot pass laws or render decisions contravening the

Federal Arbitration Act. Matter of Goldfinger v. Lisker, 68

N.Y. 2d 225, 230, 508 N.Y.S. 2d 159, 500 N.E. 2d 857 (Ct.

App. 1986). “Precisely because arbitration awards are

subject to judicial deference, it is imperative that the

integrity of the process, as opposed to the correctness of

the individual decision, be zealously guarded.” Other

panels of State and Federal Courts of Appeals are in

accord.

CONCLUSION

For the reasons in our four issues, the petition for writ

of certiorari should be granted, the judgement of the 11th

Judicial Circuit Court and affirmed by the Third District

Court of Appeals vacated and, the case remanded as is

demanded by the Federal Arbitration Act to refer issue of

(1) fraud in the inducement of the arbitration clause to a

jury and, (2) vacate the arbitration award and invalidate

the arbitration contract that Forum indeed by law, did not

agree to arbitrate its claims and, (3) the arbitration

contract by its very being, under the law, was unconscion-

able and should vacate the arbitration award and invali-

date the arbitration contract and, (4) vacate the

23

Arbitration Award as the arbitration itself is not conform-

ing to agreed rules of conducting the arbitration. In light

of applicable statutes and of this court’s decisions in

Commonwealth Coatings Corp. v. Continental Guarantee

Co., 393 U.S. 145, 149, 150 (1968) and Prima Paint Corp.

v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 399-

400 (1967) and other courts’ decisions as presented as

precedent, on the same questions of law favoring Forum’s

positions. Forum should be granted what he was denied, a

jury trial on its Verified Amended Complaint.

Furthermore invoking the Fourteenth Amendment,

Section 1, United States Constitution, a State cannot deny

any person within its jurisdiction due process of law.

ISSUE I. Forum demanded a jury trial on the issue of

fraud induced the arbitration agreement “upon such

demand court shall make an order referring issue to a

jury.” Denied due process of law.

ISSUE II. Forum was compelled to arbitrate claims it

never agreed to arbitrate and that by statute and other

case laws was not enforceable. Denied due process of law.

ISSUE III. Forum was compelled to arbitrate even

though by law and other cases the contract should have

been deemed unconscionable. Denied due process of law.

ISSUE IV. The Eleventh Judicial Circuit Court and the

Third District Court of Appeals in light of the statutes,

this court’s and other court’s decisions on the same ques-

tions of laws favoring Forum’s positions in the arbitration

proceedings, Denied due process of law.

24

Forum was indeed deprived of its constitutional right

as in the Fourteenth Amendment, Section 1 and this court

should grant the writ.

Respectfully submitted,

ANDREW WILKENS

Counsel of Record

University Commerce Park

3474 Alaidon Parkway

Suite 600

Okemos, Michigan 48864

(517) 381-0481

App. 1

NOT FINAL UNTIL TIME EXPIRES

TO FILE REHEARING MOTION

AND, IF FILED, DISPOSED OF

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JANUARY TERM A.D. 2002

FORUM STEAKHOUSE OF **

FLORIDA, INC.., et al., -

me CASE NO.

Appellant, wt 3D01-1674

Vs. **

eee LOWER

STROOCK & STROOCK & ie TRIBUNAL NO.

LAVAN, LLP mn 98-11905

Appellee. al

Opinion filed May 22, 2002.

An Appeal from the Circuit Court for Dade County,

Celeste Hardee Muir, Judge.

Diane H. Tutt, for appellant.

Stroock & Stroock & Lavan and Richard Simring, for

appellee.

Before JORGENSON and GERSTEN, JJ., and NESBITT,

Senior Judge.

PER CURIAM.

Forum Steakhouse (“Forum”) the plaintiff below,

appeals from the final judgment; an order compelling

arbitration; an order denying its motion to vacate arbitra-

tion award; and on order granting an arbitrator's motion

for protective order. We affirm.

App. 2

We find no merit to the appellant’s argument that the

engagement letter or the arbitration clause was procured

by fraud. Nor do we find any merit to the appellant’s claim

that the arbitration panel, or any member thereof, was

biased in favor of the appellee.

AFFIRMED.

App. 3

IN THE CIRCUIT COURT OF THE

11TH JUDICIAL CIRCUIT IN AND

FOR DADE COUNTY FLORIDA

CIVIL DIVISION

CASE NO. 98-11905 CA (15)

FORUM STEAKHOUSE OF

FLORIDA, INC., a Florida

corporation, and LARRY

BRODSKY, an individual,

Plaintiffs,

Vs.

MITCHELL C. FOGEL, P.A.

a Florida professional association

and MITCHELL C. FOGEL, ESQUIRE,

an individual STROOCK & STROOCK

& LAVAN, LLP, a Florida limited

liability partnership,

Defendants.

/

ORDER ON MOTION TO COMPEL ARBITRATION

AND TO STAY PROCEEDINGS

THIS CAUSE was heard before this Court on Friday,

October 2, 1998 on Defendant, STROOCK & STROOCK &

LAVAN, LLP’s Motion to Compel Arbitration and to Stay

Proceedings. The Court, having considered the motion and

the file in this action and having heard argument of

counsel, and otherwise being advised, hereby

ORDERS AND ADJUDGES that:

1. STROOCK & STROOCK & LAVAN LLP’s Motion

is granted.

App. 4

2. This action is hereby stayed against STROOCK &

STROOCK & LAVAN LLP and FORUM STEAKHOUSE

OF FLORIDA, INC. is compelled to arbitrate its claims in

accordance with the terms of the American Arbitration

Association Rules as set forth in retainer agreements

between STROOCK and FORUM.

DONE AND ORDERED in Chambers at Miami, Dade

County, Florida, this 8 day of October, 1998.

/s/ Celeste Hardee Muir

Celeste Muir

Circuit Court Judge

Copies furnished to all counsel of record

CELESTE HARDEE MUIR

App. 5

BEFORE THE AMERICAN

ARBITRATION ASSOCIATION

ATLANTA, GEORGIA OFFICE

COMMERCIAL ARBITRATION

CASE NO. 32 181 00341 98

FORUM STEAKHOUSE

OF FLORIDA, INC.,

Claimant,

V.

STROOCK & STROGCK

& LAVAN, L.L.P.,

Respondent.

FINAL ORDER

ON

LIABILITY ISSUES

This matter came before the panel of arbitrators for

final hearing on the claims of Forum Steakhouse of

Florida, Inc. against Stroock & Stroock & Lavan, L.L.P.

for legal malpractice (Count II of Forum’s Amended

Verified-Complaining) and for related acts of misconduct

(Counts III, V, VI, VII, VIII of Forum’s Amended Veri-

fied Complaint). Pursuant to mutual agreement, the

parties did not present testimony or evidence on the

issue of Forum’s damages, or on the issues of Stroock’s

‘ All claims against individuals were withdrawn by mutual

agreement of the parties prior to coxumencement of the hearings, and

Count IV of the Amended Verified Complaint was withdrawn voluntar-

ily by claimant with concurrence of a trial on September 17, 1999.

App. 6

counterclaims, pending a determination of whether

Stroock is liable to Forum on the claims contained in the

Amended Verified Complaint.

The panel has heard testimony and received evi-

dence from the parties and from their witnesses, has

heard argument from counsel for the parties, has re-

viewed hearing transcript excerpts presented by the

parties, and has had the benefit of pre-hearing and post-

hearing memoranda submitted by counsel for the par-

ties. Based on the record of these proceedings and

applicable law, and being fully informed, the panel

finds:

1. that Forum is not entitled to any relief against

Stroock with respect to the allegations contained in the

Verified Amended Complaint; and

2. that Stroock is not liable to Forum on any of the

claims presented in the Amended Verified Complaint.

“Accordingly, no trial on damages for these claims is

appropriate or required.

Stroock is directed to advise the panel, within 10

days of the date of this order, whether it intends to

pursue its counterclaim for unpaid legal fees and quan-

tum meruit. In the event that further proceedings on

either or both of those issues is sought, then Stroock is

also directed to advise the panel of the amount of time

estimated for a trial on the issue or issues to be pre-

sented.

Both parties are directed to advise the panel, within

10 days of the date of this order, whether there are any

unresolved issues which will require the panel’s atten-

tion other than those designated by Stroock with respect

App. 7

to its counterclaim. If the parties advise after the 10-day

period that no further action is required of the panel,

then this proceeding shall be deemed closed pursuant to

AAA Rule 37.

IT IS SO ORDERED.

Dated: December 29,1999 /s/ Arthur J. England, Jr.

Arthur J. England, Jr., Esq.

Chairman

/s/ William T. England

William T. England, Esq.

Arbitrator Harnett concurs in the decision of his co-

panelists, except that he would find for Forum on its

claim that Stroock breached its fiduciary duty to Forum

when it assumed the litigation representation in 1997

without adequate prior disclosure of its potential conflict

of interest.

/s/ Bertram Harnett

Bertram Harnett, Esq.

cc: Counsel of record

Nora Sullivan, AAA case administrator

App. 8

BEFORE THE AMERICAN

ARBITRATION ASSOCIATION

ATLANTA, GEORGIA OFFICE

COMMERCIAL ARBITRATION

CASE NO. 32 181 00341 98

FORUM STEAKHOUSE

OF FLORIDA, INC.,

Claimant,

STROOCK & STROOCK

& LAVAN, L.L.P.,

)

)

)

)

Vv. )

)

)

)

Respondent. )

FINAL AWARD

This arbitration proceeding was instituted by

Forum Steakhouse of Florida, Inc. through a demand for

arbitration filed with the American Arbitration Associa-

tion. A Final Order on Liability Issues was entered by

the panel of arbitrators on December 29, 1999, holding

that Forum is not entitled to any relief against Stroock

with respect to the allegations contained in the Verified

Amended Complaint, and that Stroock is not liable to

Forum on any of the claims presented in Forum’s

Amended Verified Complaint. The cause is now before

the panel on a stipulation of the parties with respect to

Stroock’s counter-claim against Forum for unpaid

attorneys fees and quantum meruit.

In accordance with the stipulation of the parties, it

is ORDERED AND ADJUDGED that Stroock is entitled

to an award of $12,500, inclusive of all attorney’s fees

App. 9

and cost, in full and final settlement of its counter-claim

against Forum. The parties have stipulated that Stroock

may file a lien for recovery of the amount of this award

in the Miami-Dade County Circuit Court proceeding

entitled “Forum Steakhouse of Miami, Inc. v. Mitchell C.

Fogel, P.A. et al., Case No. 98-11905 CA (15).

The panel has now determined all issues relative to

Forum’s claims for relief in this arbitration proceeding,

and all issues relative to Stroock’s counter-claim. There

being no further matters properly before the panel, this

proceeding is deemed closed pursuant to AAA Rule 37.

Dated: March 1, 2000 /s/ Arthur J. England, Jr.

Arthur J. England, Jr.,

Chairman

/s/ William T. England

William T. England, Esq.

/s/ Bertram Harnett, Esq.

Bertram Harnett, Esq.

cc: All counsel of record

Nora Sullivan, AAA case administrator

App. 10

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE

COUNTY, FLORIDA

CASE NO.: 98-11905 CA

GENERAL JURISDICTION DIVISION

FORUM STEAKHOUSE OF FLORIDA,

INC., a Florida corporation, and

LARRY BRODSKY, an individual,

Plaintiffs,

Vs.

MITCHELL C. FOGEL, P.A., et al.,

Defendants.

/

Dade County Courthouse

73 West Flagler Street,

Miami, Florida,

Friday, 9:53 a.m.,

May 11, 2001.

The above-entitled case came on for hearing before

The Honorable Celeste Muir, Circuit Judge, in chambers,

pursuant to notice.

APPEARANCES:

FRIED & ASSOCIATES, P.A., by

HYATT M. FRIED, Esq., of counsel,

Attorneys for Plaintiffs

_ STROOK, STROOK & LAVAN, L.L.P., by

RICHARD B. SIMRING, Eszq., of counsel,

Attorneys for Defendant,

Strook, Strook & Lavan, L.L.P.

App. 11

* * *

[53] first time we sat before you.

THE COURT: The Court believes that your

position is not analogous to a jury. It’s more analogous to a

judge’s disqualification, and judges are not supposed to be

monks or people hidden away in an ivory tower some-

where. They're supposed to have familiarity with the law

of malpractice and the law of e.hics, and supposed to know

when to disclose and when not to disclose. And when

Arthur England said, “I have nothing to disclose,” he may

have been taking a position that I took. I didn’t disclose

anything about my husband’s situation. I’ve had this case

now for how many years?

Even though it’s in the judge’s immediate family, you

still have the duty to know what their business affairs are

and make those appropriate disclosures. The Court be-

lieves that your clients did the best they could just by

objecting to lawyers on the panel. It was an exercise in

futility. Obviously, it didn’t get them anywhere.

I can certainly sympathize with their point of view

and your point of view, that judges should be like lawyers,

but we don’t have preemptory challenges for judges,

although that’s been proposed by the ABA and on down.

We don’t have the same standard for jurors — lawyers —

because lawyers are supposed to put aside all their per-

sonal feelings and personal situations and be objective and

[54] impartial. And even in representing their clients,

they're supposed to give independent legal advise and not

mislead their clients.

I'm very disturbed about that precaution list. This

doesn’t look like it was the standard precaution list. The

App. 12

part about, “Don’t discuss the fact that you relied on your

attorney to check legality of any issues,” it could have been

something that was misleading, but the client could have

objected and said, “But I did rely on my attorney.”

MR. FRIED: That’s what the client did do. The

client’s here, if you want to swear him in.

THE COURT: To Mr. -

MR. FRIED: Maybe you misheard me. They

said, “We're not doing that. That’s wrong.”

THE COURT: Good, but what I’m trying to say

is the Court believes that the limiting liability for mal-

practice thing, that you refer out the client to another

lawyer to get a binding limitation of liability, I think that

goes as to the amount, not the issue of whether you're

going to have an arbitration or a jury trial on the issue of

liability for malpractice.

The two lawyers in the case didn’t completely waive

the right to be sued. They just said you can’t have a jury

trial. And I agree that your clients, in hindsight, [55] are

very upset they didn’t have a jury trial, because the

climate now is people aren’t too happy with lawyers or

judges, but the problem is that I don’t think this ethical

rule covers the form that you had.

I think the arbitration clause which I remember 20

years ago being in a lawyer arbitration committee with the

Dade County Bar -— it’s probably longer than that now —

but people were telling the accountants to put arbitration

clauses in their fee agreements. A lot of professional

groups were saying put the arbitration clause in your fee

agreements, because the issues are so complex that it’s

App. 13

better not to have a jury trial for professional malpractice

cases.

So I don’t think if the Bar wanted to limit legal

malpractice cases to jury trial issues, they would have left

that gaping loophole here in this conflict of interest rule,

and I really don’t think the issue of Justice England’s lack

of disclosure is sufficiently corrupting or despicable.

As far as the unconscionability, substantive and

procedural, I can’t see that there was a problem here. The

clients could go to another lawyer, and if they were dealing

in millions of dollars of a restaurant enterprise, if they

weren’t happy after the first go-around, they should have

refused to sign the second agreement.

I think that it’s not like we’re dealing with a [56]

consumer who is not someone with some level of sophisti-

cation, so I will uphold the original agreement, finding the

arbitration clause is valid.

When I was in criminal court, I followed Judge Davis,

and the public defender’s office brought in lots of motions

to disqualify Judge Davis and asked me to rule on it, but

the law in Florida has been forever that there’s a common

law right to disqualify a judge, but you have to go to that

judge.

If you’re going to analogize the arbitrators to judges, I

think you should have gone to Justice England and had

him check his conscious and review the situation and

decide if he wanted to consider whether he really could be

fair.

You could have done it with each and every lawyer on

the panel, not just Justice England. I’m sorry it’s been this

App. 14

long a process for everybody, but I appreciate all your hard

work. I enjoyed the arguments.

Would you like me to mark the cases for ID?

MR. FRIED: Yes. Anything I’ve handed you, the

rules and the affidavit.

THE COURT: Ill mark these courtesy copies,

the excerpts of the transcripts, the rules of arbitration. I

don’t have the list of the Greenberg, Traurig cases and I

don’t have the affidavit from AAA. No objection to that?

* * *

App. 15

IN THE CIRCUIT COURT OF

THE 11TH JUDICIAL CIRCUIT,

IN AND FOR MIAMI-DADE

COUNTY, FLORIDA

CIVIL DIVISION

CASE NO. 98-11905-CA (15)

FORUM STEAKHOUSE OF

FLORIDA, INC., a Florida

corporation, and LARRY

BRODSKY, an individual,

Plaintiffs,

v.

MITCHELL C. FOGEL, P.A., et al.,

Defendants. /

ORDER

THIS CAUSE came before this Court on Friday, May

11, 2001 on Plaintiffs Verified Motion to Vacate Arbitration

Award. The Court, having reviewed the motion, heard

arguments of counsel, and being otherwise fully advised in

the premises, hereby ORDERS AND ADJUDGES that

Plaintiffs motion is DENIED for the reasons set forth by the

Court on the record at the hearing.

DONE AND ORDERED in Chambers at Miami,

Miami-Dade County, Florida this 17 day of May, 2001.

/s/ CELESTE HARDEE MUIR

Celeste Muir

Circuit Court Judge

Copies furnished to all counsel of record

App. 16

IN THE CIRCUIT COURT OF THE

11TH JUDICIAL CIRCUIT, IN AND FOR

MIAMI-DADE COUNTY, FLORIDA

CASE NO. 98-11905 CA 15

FORUM STEAKHOUSE OF

FLORIDA, INC., a Florida

corporation, and LARRY

BRODSKY, an individual,

Plaintiffs,

vs.

MITCHELL C. FOGEL, P.A., et al.,

Defendants. /

ORDER CONFIRMING ARBITRATION

AWARD AND ENTERING FINAL JUDGMENT

THE COURT having previously entered an order on

May 17, 2001 denying Plaintiffs’ Verified Motion to

Vacate Arbitration Award, and there being no other

issues which require adjudication by the Court, it is

ORDERED and ADJUDGED that the Arbitration

Award is hereby confirmed and judgment is entered in

favor of Stroock & Stroock & Lavan, LLP in the sum of

$12,500, against Forum Steakhouse of Florida, Inc.

DONE and ORDERED in Chambers, in Miami,

Dade County, Florida, this 15 day of June, 2001.

/s/ CELESTE HARDEE MUIR

CIRCUIT COURT JUDGE

App. 17

cc: Richard B. Simring, Esq.

Hyatt Fried, Esq.

David Pollack, Esq.

Scott Cole, Esq.

-Diane H. Tutt, Esq

App. 18

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 2002

JULY 12, 2002

FORUM STEAKHOUSE CASE NO.: 3D01-1674

OF FLORIDA, INC., ET AL.,

Appellant(s)/Petitioner(s),

vs. - LOWER

STROOK & STROOK TRIBUNAL NO. 98-11905

& LAVAN, LLP.,

Appellee(s)/Respondent(s).

Upon consideration, appellant Forum Steakhouse of

Florida, Inc.'s motion for rehearing is hereby denied.

JORGENSGN and GERSTEN, JJ., and NESBITT, Senior

Judge, concur.

A True Copy

TEST

/s/ Mary Cay Blanks

Clerk, District Court of

Appeals, Third District

(SEAL!

cc:

Diane H. Tutt

Hyatt M. Fried

Richard B. Simring

David C. Pollack

App. 19

Supreme Court of Florida

TUESDAY, JUNE 10, 2003

CASE NO.: SC02-1673

Lower Tribunal No.: 3D01-1674

FORUM STEAKHOUSE STROOCK & STROOCK

OF FLORIDA, INC. VS. & LAVAN, LLP.

Petitioner(s) Respondent(s)

This cause having heretofore been submitted to the

Court on jurisdictional briefs and portions of the record

deemed necessary to reflect jurisdiction under Article V,

Section 3(b), Florida Constitution, and the Court having

determined that it should decline to accept jurisdiction,

it is ordered that the Petition for Review is denied.

No Motion for Rehearing will be entertained by the

Court. See Fla. R. App. P. 9.330(d).

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS and

BELL, JJ., concur.

A True Copy

Test:

/s/ Thomas D. Hall [SEAL]

Clerk, Supreme Court

tc

Served:

HILLARD FRIED RICHARD B. SIMRING

HON. CELESTE H. MUIR, ROB SYMBOLUK

JUDGE HYATT M. FRIED

HON. MARY CAY BLANKS, MILTON BRODSKY

CLERK

DAVID H. POLLACK

HON. HARVEY RUVIN, CLERK

a