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U-CAN-II11/26/2003
This cause is before us on appeal of a non-final order compelling arbitration. On review of the record, we hold that the trial court erred in holding that Appellant was the alter ego of certain non-parties and that, on that basis, Appellant's corporate veil could be pierced.
The Florida Supreme Court has held that the corporate veil may not be pierced absent a showing of improper conduct. Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1119-21 (Fla. 1984); see also French v. F.F.O. Financial Group, Inc. 651 So. 2d 727 (Fla. 1st DCA 1995). It must be shown that the corporation was organized or used to mislead creditors. Sykes, 450 So. 2d at 1119-21. Here, the trial court did not make the requisite specific finding of improper conduct. Appellees also did not present any evidence showing improper conduct or that Appellant was organized or used to mislead creditors. Thus, Appellees failed to establish a basis for piercing Appellant's corporate veil.
Appellees also failed to show that Appellant was the agent of certain non-parties to this appeal. The record contains no express contract of agency, and Appellees presented no evidence of apparent authority. See, e.g., Almerico v. RLI Ins. Co., 716 So. 2d 774, 777 (Fla. 1998).
Accordingly, we reverse the trial court's determination that Appellant is the alter ego and/or agent of certain non-parties. We affirm the other issues raised on appeal without further discussion and remand for further proceedings consistent herewith.
AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.
BOOTH and KAHN, JJ., CONCUR; ERVIN, J., CONCURS WITH WRITTEN OPINION.
ERVIN, J., concurring.
Although I concur with the majority's disposition of the issue that it has decided, I would also address an issue it summarily affirms, relating to the question of whether the trial court misapplied the law in ruling that defendants/appellees did not waive their right to arbitration by acting inconsistently with such right by, among other things, filing an answer and a counterclaim to the civil action before moving to arbitrate. Appellees defend the lower court's order, relying upon both Florida and federal case law holding that before waiver may be found a showing of prejudice resulting from the inconsistent acts must be made by the party opposing arbitration. See Benedict v. Pensacola Motor Sales, Inc., 846 So. 2d 1238, 1240-41 (Fla. 1st DCA 2003); GLF Constr. Corp. v. Recchi-GLF, 821 So. 2d 372 (Fla. 1st DCA 2002); Lane v. Sarfati, 691 So. 2d 5 (Fla. 3d DCA 1997); Britton v. Co-op Banking Group, 916 F.2d 1405 (9th Cir. 1990).
Benedict, an opinion of the First District, did so hold, and I consider myself bound by that decision. I am of the firm belief, however, that Benedict was incorrectly decided because the Florida Supreme Court, in its interpretation of Florida's Arbitration Code, imposed no requirement of prejudice in concluding that waiver had occurred due to a party's acts inconsistent with arbitration. See Klosters Rederi A/S v. Arison Shipping Co., 280 So. 2d 678, 681 (Fla. 1973) ("A party's contract right may be waived by actively participating in a lawsuit or taking action inconsistent with that right."). The rule established in Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973), is clear that appellate district courts have no authority to overrule precedential decisions of the Florida Supreme Court. Although Benedict did certify conflict with other district courts of appeal, my independent research does not reveal that review of the Benedict decision has been sought in the supreme court.
In deciding that a demonstration of prejudice is an essential prerequis
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