XEROX V. SMARTECH

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XEROX V. SMARTECH

State: Florida

Court: Florida Third District Court

Docket No: 06-2246

Case Date: 11/28/2007

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2007
Opinion filed November 28, 2007. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D06-2246 Lower Tribunal No. 06-06263 ________________

Xerox Corporation and Ricardo Vescovacci,
Appellants, vs.

Smartech Document Management, Inc., and Jose Hernandez,
Appellees.

An Appeal of a non-final order from the Circuit Court for Miami-Dade County, Ivan F. Fernandez, Judge. Thomas & Locicero and James J. McGuire, for appellants. Mesa & Associates and Manuel A. Mesa, for appellees.

Before COPE, SUAREZ, and LAGOA, JJ. COPE, J.

Xerox Corporation and Ricardo Vescovacci appeal an order denying their motion to compel arbitration. We reverse because the arbitration clause covers the dispute, and the question of time bar is for the arbitrator, not the trial court. Smartech and Hernandez filed a lawsuit against Xerox and Vescovacci alleging defamation, intentional infliction of emotional distress, injunctive relief, respondeat superior, and intentional interference with an advantageous business relationship. Jose Hernandez is the president and principal shareholder of Smartech, which was an authorized Xerox sales agent selling copiers and equipment pursuant to the Xerox Business Relationship Agreement ("Agreement") and incorporated Authorized Sales Agent Schedule. Hernandez signed the Agreement as president of Smartech. Xerox terminated the Agreement because of alleged unethical

conduct involving Smartech's customers that purchased copiers and then failed to pay for them. Smartech claims that Xerox and Vescovacci made false statements to third parties, including colleagues and customers, that Smartech and Hernandez had stolen equipment and had conspired to defraud them. In response, Xerox moved to compel arbitration. Xerox also filed an arbitration demand with the American Arbitration Association ("AAA") alleging Smartech had stolen or caused the disappearance of more than $1.2 million of equipment. Xerox then amended its demand for arbitration adding claims of

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$300,000 overpayment of commissions to Smartech, and $135,000 in bonuses and other rewards to which Smartech and Hernandez were not entitled. Smartech and Hernandez answered the amended demand for arbitration and objected to the jurisdiction of the AAA. Smartech asserted, among other things, that Xerox's claims pending before the AAA were barred by a one-year contractual statute of limitations contained in the Agreement and the arbitration provision was not binding on Hernandez individually. The trial court denied Xerox's motion to compel arbitration, and this appeal followed. Because the parties' agreement involves interstate commerce, the arbitration clause is governed by the Federal Arbitration Act, 9 U.S.C.

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