       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 13, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D13-716
                         Lower Tribunal No. 12-49371
                             ________________


                  Allscripts Healthcare Solutions, Inc.,
                                    Appellant,

                                        vs.

             Pain Clinic of Northwest Florida, Inc., et al.,
                                    Appellees.


     An Appeal of a non-final order from the Circuit Court for Miami-Dade
County, John W. Thornton, Judge.

      Greenberg Traurig, P.A., and Hilarie Bass, Elliot H. Scherker, Mark A.
Salky, Brigid F. Cech Samole, Timothy A. Kolaya, and Jay A. Yagoda, for
appellant.

       Kozyak, Tropin & Throckmorton, P.A., and Adam M. Moskowitz and
Thomas A. Tucker Ronzetti; Fuerst, Ittleman, David & Joseph, PL, and Allan A.
Joseph, Christopher M. David and Mitchell M. Fuerst; Kula & Samson, LLP, and
Elliot B. Kula, Daniel M. Samson, and W. Aaron Daniel; Arthur J. England, Jr.,
P.A., and Arthur J. England, Jr., for appellees.


Before ROTHENBERG, LOGUE, and SCALES, JJ.
      LOGUE, J.

      Allscripts Healthcare Solutions, Inc. (“Allscripts”) appeals an order denying

its motion to compel arbitration. We affirm.

      Allscripts marketed software to certain doctors and healthcare providers.

The plaintiffs in the case below, and the appellees here, are doctors and providers

who purchased licenses for the software (“the Doctors”). The purchases occurred

pursuant to master agreements between the Doctors and a subsidiary of Allscripts

(“the Subsidiary”). The master agreements governing the purchase of these

licenses contained an arbitration provision, as follows:

      Any dispute or claim arising out of, or in connection with, this
      Agreement shall be finally settled by binding arbitration . . . . Except
      for [the Doctors] and [the Subsidiary], no other party may sue or be
      sued under this agreement.

Allscripts was not a party to the master agreements.

      As alleged in the Complaint, when the software failed to sufficiently support

the Doctors’ compliance with the requirements of certain federal regulations,

Allscripts removed the software from the market and ceased technical and other

support for the software. Allscripts then directly contacted the Doctors to offer a

free upgrade of the software. The upgrade, however, consisted of completely

different software that was less effective than the prior software and required

substantial and expensive costs to retrain employees and transfer records. The

Doctors filed a class action lawsuit directly against Allscripts. Allscripts moved to


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compel arbitration, based on the arbitration provision in the master agreements.

The trial court denied the motion. This appeal followed.

      The rub in this case is that Allscripts is not a signatory to the arbitration

provisions at issue. Florida courts have long held that “no party may be forced to

submit a dispute to arbitration that the party did not intend and agree to arbitrate.”

Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). “Generally, therefore,

a non-signatory to a contract containing an arbitration agreement cannot compel a

signatory to submit to arbitration.” Rolls-Royce PLC v. Royal Caribbean Cruises

LTD., 960 So. 2d 768, 770 (Fla. 3d DCA 2007).

      Florida courts, however, have recognized certain exceptions to this rule.

Under the doctrine of equitable estoppel, for example, Florida courts have

permitted a non-signatory defendant to enforce an arbitration clause against a

signatory plaintiff either: (1) “when the signatory to a written agreement

containing an arbitration clause must rely on the terms of the written agreement in

asserting its claims against the nonsignatory,” Koechli v. BIP Int’l, Inc., 870 So. 2d

940, 944 (Fla. 1st DCA 2004) (citation omitted); or (2) when “there are allegations

of concerted action by both a nonsignatory and one or more of the signatories to

the contract.” Roman v. Atl. Coast Constr. & Dev., Inc., 44 So. 3d 222, 224 (Fla.

4th DCA 2010) (citation omitted). Allscripts asserts that arbitration should be

compelled under the first exception.



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      The idea behind the first exception is that a signatory plaintiff should not be

allowed to sue to essentially enforce its rights under a contract and, at the same

time, evade an arbitration agreement in the contract, simply by naming as

defendants parties who were not signatories to the contract. As one court

explained:

      The purpose of the doctrine is to prevent a plaintiff from, in effect,
      trying to have his cake and eat it too; that is, from relying on the
      contract when it works to his advantage by establishing the claim, and
      repudiating it when it works to his disadvantage. . . . The plaintiff’s
      actual depend[e]nce on the underlying contract in making out the
      claim against the nonsignatory defendant is therefore always the sine
      qua non of an appropriate situation for applying equitable estoppel.

Bailey v. ERG Enterprises, LP, 705 F.3d 1311, 1320 (11th Cir. 2013) (citation

omitted); see also Giller v. Cafeteria of S. Beach Ltd., LLP, 967 So. 2d 240, 242

(Fla. 3d DCA 2007) (“One cannot both take advantage of contract provisions to

seek to impose liability on an individual professional and at the same time avoid

another contract term or provision for which it has no use.”); Morales v. Perez, 952

So. 2d 605, 610 n.2 (Fla. 3d DCA 2007) (noting that “Dr. Perez is attempting to

avoid the arbitration provision [of the contract] while simultaneously seeking to

enforce certain provisions purportedly in his favor”); BDO Seidman, LLP v. Bee,

970 So. 2d 869, 875 (Fla. 4th DCA 2007) (“A party may not rely on a contract to

establish his claims while avoiding his obligation under the contract to arbitrate

such claims.”).



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      A plaintiff’s dependence on the contract in this sense means more than that

plaintiff would not own the product except for the contract: “A simple but-for

relationship does not constitute the actual dependence on the underlying contract

that equitable estoppel requires.” Bailey, 705 F.3d at 1321-22. Instead, reliance on

the contract in this context requires that “a party must actually depend on the

underlying contract to assert its claims.” Id. at 1321. Thus, for this exception to

apply, “the claim . . . must, at a minimum, raise some issue the resolution of which

requires reference to or construction of some portion of the contract itself.” Rolls-

Royce, 960 So. 2d at 771.

       This last point depends upon a factually-intense review of the claim. Some

of the distinctions made by the courts in this regard are quite fine. Compare Giller,

967 So. 2d at 242 (compelling arbitration because “indisputable nexus” existed

between the plaintiff’s claims of architectural malpractice and the contract under

which the defendant architect was hired to work on the project), with Rolls-Royce,

960 So. 2d at 770 (declining to compel arbitration because a cruise line company’s

claim that a subcontractor’s negligent design, manufacture, and repair of

propulsion pod was independent of the cruise line’s contract with a general

contractor to build the cruise ship).

       We conclude this case is more similar to Rolls-Royce than Geller. While it

is certainly true that this lawsuit would not exist but for the fact that the Doctors



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purchased the software licenses from the Subsidiary, the causes of action in the

Complaint are not attempts to enforce contractual rights under the master

agreements. Instead, the allegations in the Complaint reach beyond the master

agreements to encompass actions that Allscripts took outside the scope of the

agreements: allegedly marketing the defective software, ceasing support of the

software, and attempting to force the Doctors to accept an alternative product

which was, again allegedly, less effective and more expensive to use. These are not

actions that the Subsidiary participated in or controlled. They are actions by

Allscripts and therefore outside the contract between the Doctors and the

Subsidiary.

      Thus, for the arbitration agreements here to be triggered, the Doctors’ claims

“must, at a minimum, raise some issue the resolution of which requires reference

to or construction of some portion of the contract itself.” Rolls-Royce, 960 So. 2d

at 771. Based on the class complaint as framed, we agree with the Doctors that the

class claims do not require reference to or construction of the master agreements.

      Allscripts argues the Doctors should be compelled to arbitrate because

Allscripts could only be liable here as an alter ego of the Subsidiary. To the extent

that Allscripts relies on precedent that permits a party to pierce its own corporate

veil to allow that party the benefit of an arbitration clause between its subsidiary

and a signatory-plaintiff, those cases rely on the same equitable estoppel theories



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discussed above. See E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber &

Resin Intermediates, S.A.S., 269 F.3d 187, 201 (3d Cir. 2001) (referencing cases in

which, based on an equitable estoppel theory, “a non-signatory voluntarily pierces

its own veil to arbitrate claims against a signatory that are derivative of its

corporate-subsidiary’s claims against the same signatory”). Because the Doctors’

claims do not arise out of the master agreement, those cases are inapposite.

      We do not, however, reach the issue of the viability of any cause of action

brought by the Doctors against Allscripts with respect to their alleged injuries

stemming from the purchase of the software licenses, outside of their rights under

the master agreements with the Subsidiary. We note only that the Doctors cannot

rely on any rights under the master agreements in establishing any claims against

Allscripts without invoking the arbitration provisions.

      Affirmed.




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