       Third District Court of Appeal
                               State of Florida

                            Opinion filed May 1, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D18-1155
                          Lower Tribunal No. 18-3297
                             ________________


                  Comvest IMC Holdings, LLC, et al.,
                                   Appellants,

                                        vs.

                         IMC Group, LLC, et al.,
                                    Appellees.


     An Appeal from non-final orders from the Circuit Court for Miami-Dade
County, Beatrice Butchko, Judge.

      Gunster and Angel A. Cortiñas and Jonathan H. Kaskel; McDermott Will &
Emery and Jeffrey E. Stone, William P. Schuman, Michael G. Austin and Kamal
Sleiman, for appellants.

     Waldman Barnett and Glen H. Waldman, Michael A. Azre and Jeffrey R.
Lam; Kula & Associates and Elliot B. Kula, W. Aaron Daniel and William D.
Mueller, for appellees.

Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.

     SALTER, J.
      This appeal presents a recurring, familiar issue in the world of sizeable

commercial transactions—dispute resolution after the closing of the transaction as

between (1) a non-judicial authority and procedure specified by the disputants in

their carefully-drawn legal documents prepared before the dispute arose, and (2) a

state or federal court chosen by one of the parties once the dispute has arisen.

      In this case, we affirm the circuit court’s order accepting the role of

gatekeeper and adjudicator in this multi-million dollar dispute between a group of

corporate sellers/plaintiffs (the appellees: IMC Group, LLC and Jose M. “Pepe”

Garcia; collectively, “IMC Group”), and a group of corporate buyers/defendants

(the appellants: Comvest IMC Holdings, LLC; IMC Holdings, LLC; IMC Medical

Group Holdings, LLC; Roger Marrero; Marshall Griffin; John Randazzo; and

Kevin Blank; collectively, “Comvest Group”). We vacate our previously-issued

stay of the circuit court case, permitting the resumption of proceedings in that

tribunal.

      Our decision is based on the detailed provisions of the purchase agreement

entered into by the parties. Although the IMC Group as seller and the Comvest

Group as buyer outlined an alternative dispute resolution procedure for a post-

closing adjustment to the purchase price that might have been determined by an

agreed, neutral accountant, they did not specify that the procedure was mandatory

or the exclusive means for resolution.



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      The Transaction and the Dispute

      The parties moved the trial court and this Court to protect the confidential

business terms of the transactions by sealing the briefs and appendices in this case,

and those motions were granted. This opinion will generalize those confidential

terms to the extent practicable.

      In November 2016, IMC Group agreed to sell to the Comvest Group an

80%, controlling interest in the corporate entities owning Interamerican Medical

Center Group, LLC, and its 19 Florida medical centers and affiliated health care

entities. The transaction closed on February 1, 2017. The Comvest Group agreed

to purchase those controlling interests for a nine-figure cash price computed as a

designated multiple of the IMC Group’s operating business earnings.

      Valuing a business based on a net earnings multiplier is common, and the

acronym for one method of computing such earnings—“earnings before interest,

tax, depreciation, and amortization” —is “EBITDA.”

      A limitation in using EBITDA and a multiplier is that the components of

EBITDA may not be available in a company’s audited, or at least final (if

unaudited), financial statements for the company’s fiscal year1 within which the

transaction is closed. Here, as in many such transactions, the parties negotiated a

“post-closing adjustment” to address this issue.     The purchase agreement and

1 The IMC entities prepared their annual statements on the basis of a fiscal year
January 1 – December 31, a calendar year basis.

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closing occurred on the basis of the 2015 financial statements and the EBITDA

derived from them. As of the January 16, 2017, closing of the transaction, the

parties also had available to them various interim financials and pro forma

EBITDA computations, but not the final year-end 2016 financial statements or

EBITDA derived from such statements.

      The parties agreed to a variety of pre-closing and post-closing price

adjustments in Sections 1.4 and 1.5 of their purchase agreement. In the case of the

post-closing adjustment of the purchase price based on a multiple of EBITDA,

they agreed to include the EBITDA derived from the audited consolidated 2016

financial statement of the operating companies when finalized. The final 2016

EBITDA adjustment to the purchase price was termed the “EBITDA Contingent

Statement” in the purchase agreement, and was to be delivered by the Comvest

Group to the IMC Group for its review. In the event of objections by the IMC

Group and a disagreement regarding the adjustment or “true-up” in the purchase

price, the purchase agreement required the parties to confer in good faith. It also

provided a mechanism for non-judicial resolution of the dispute.

      The parties did indeed disagree regarding the 2016 EBITDA and resultant

post-closing adjustment, culminating ultimately in the circuit court complaint filed

by the IMC Group and the Comvest Group’s immediate motion to compel

compliance with the non-judicial dispute procedure. This appeal followed.



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      Jurisdiction

       We have jurisdiction to review non-final orders determining “the

entitlement of a party to arbitration.” Fla. R. App. P. 9.130(a)(3)(C)(iv). The IMC

Group maintains that the non-judicial dispute resolution methodology laid out in

the parties’ written agreements is not an “arbitration.”          The motions panel

assigned to the case before oral argument carried the IMC Group’s motion to

dismiss for lack of jurisdiction with the case.

      The Comvest Group contends that the designation of a neutral accountant

and procedure specified in the purchase agreement fits within the definition of

“arbitration” in section 44.1011(1), Florida Statutes (2018): “a process whereby a

neutral third person or panel, called an arbitrator or arbitration panel, considers the

facts and arguments presented by the parties and renders a decision which may be

binding or nonbinding as provided in this chapter.”

      This trial court’s resolution of this threshold dispute did, however, determine

that the Comvest Group is not entitled to the arbitration of the issues sought to be

adjudicated by the trial court by the IMC Group in its “motion to advance” its

claim for declaratory judgment. The IMC Group declaratory judgment claim

includes requests that the trial court determine: whether the accounting

methodology employed by the Comvest Group in the 2016 audit is in compliance

with the purchase agreement and corporate governance duties; whether the



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Comvest Group provided access to the necessary documents specified by the

purchase agreement, sufficient to permit the IMC Group to formulate all of its

objections to the EBITDA Contingent Statement; and whether certain escrow

funds subject to the purchase agreement and other documents were handled in

conformance with the purchase agreement.

      It follows that the trial court’s order (a) denying the Comvest Group’s

motion to compel compliance with the purchase agreement’s non-judicial

arbitration or alternative dispute resolution procedure (which Comvest Group

contends is “arbitration” as defined in section 44.1011(1)), and (b) accepting

jurisdiction to proceed with the declaratory issues raised by the IMC Group, is a

non-final order determining the entitlement of the Comvest Group to “arbitration,”

and that we have jurisdiction to consider the non-final order under Rule

9.130(a)(3)(C)(iv).

      Standard of Review

      We review the denial of a motion to compel arbitration de novo. 13 Parcels

LLC v. Laquer, 104 So. 3d 377, 379 (Fla. 3d DCA 2012). In doing so, however,

this Court is “mindful that arbitration provisions are favored by the courts and that

all doubts should be resolved in favor of arbitration.” CT Miami, LLC v. Samsung

Elecs. Latinoamerica Miami, Inc., 201 So. 3d 85, 90 (Fla. 3d DCA 2015).

      Analysis



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      The Comvest Group’s arguments for a non-judicial process to produce a

binding, nonappealable “Final EBITDA Report” are defeated by several small, but

clear and important, words in the text of Section 1.5 of the purchase agreement.

      First, Section 1.5(b) states that, following the Comvest Group’s delivery of

the EBITDA Contingent Statement, the IMC Group’s formulation of objections,

and the parties’ “attempt in good faith to resolve their dispute,” the parties “may”

retain the Accountant (a term defined in Section 1.4) to resolve any remaining

disputes. (Emphasis provided). The use of the term “may” rather than “shall” in

this provision, following the identification of both the IMC Group as seller and the

Comvest Group as buyer, means that mutual assent to the retention of the

Accountant is required for the retention. See The Florida Bar v. Trazenfeld, 833

So. 2d 734, 738 (Fla. 2002).

      Second, this reading of the text is reinforced by the conditional nature of the

process for a “final, binding, nonappealable, and conclusive” “Final EBITDA

Report” in Section 1.5(c) of the purchase agreement. The Section begins, “(c)

Accountant Retained.      If the Accountant is retained, then. . . .” (Emphasis

provided). The use of the terms “may” and “if” betray the elective, not mandatory,

nature of the non-judicial procedure, and the IMC Group has flatly rejected that

option. There is no subsection following Section 1.5(c) captioned, “If Accountant

Not Retained,” but that possibility, a judicial resolution of the disputes, is spelled



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out clearly in Section 14.24 of the purchase agreement, the waiver of jury trial

provision. That provision specifies in upper case letters that “THE PARTIES

WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER

THAN ARBITRATION RULES),” and that “THE PARTIES DESIRE THAT

THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH

APPLICABLE LAWS.”

      Third and finally, buried in the 25th line of the single-spaced provision

applicable “if” the Accountant is retained, Section 1.5(c) specifies that, “In

resolving any Contested Amount(s), the Accountant . . . shall act as an expert and

not as an arbitrator. . . .” This clause, applied to a conditional dispute resolution

procedure that was rejected by one of the parties, explicitly takes the Accountant

out of the definition of “arbitration” and the process whereby “a neutral third

person. . . called an arbitrator” renders a decision, as provided in section

44.1011(1).

      Simply stated, the Accountant could have been, but was not, retained by

mutual agreement of the parties to provide a non-judicial resolution of the post-

closing purchase price dispute. And if retained, the Accountant would have served

as an expert rather than an arbitrator.

      Conclusion




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      Applying the Florida Supreme Court’s tests for arbitrability and guidelines

for the appropriate roles of arbitrator and court, Seifert v. U.S. Home Corp., 750

So. 2d 633 (Fla. 1999), there is not a binding, unconditional agreement to arbitrate;

there is no issue explicitly subject to arbitration; and waiver of a party’s right to

arbitration is not a consideration in the present case because the right never arose.

      Though the subject matter of the parties’ primary dispute—an accounting

issue of considerable complexity—is well suited for resolution by an accounting

expert, the trial court correctly applied the contract provisions requiring mutual

consent to such a non-judicial procedure by the parties after the dispute arose, and

characterizing the “Accountant” as an expert, if retained, rather than an arbitrator.

      The non-final order denying the Comvest Group’s motion to compel and

granting the IMC Group’s motion to proceed with its declaratory judgment and

breach claims is affirmed. We vacate the stay pending review entered prior to the

conclusion of briefing and oral argument, permitting the case to resume

proceedings in the circuit court.




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