NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2006
SILVERMAN WENDER KOONIN EPSTEIN ** GARCIA & ROSENCWAIG, P.A., etc., ** et al., Appellants, vs. JAY J. DENNIS, M.D., Appellee. ** ** ** ** LOWER TRIBUNAL NO. 06-815 CASE NO. 3D06-985
Opinion filed September 20, 2006. An Appeal from a Non-Final Order from the Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge. Robert P. Frankel and Nolan K. Klein, for appellants. Pertnoy, Solowsky & Allen and Richard Allen, for appellee. Before GERSTEN, GREEN, and SUAREZ, JJ. SUAREZ, J. The medical practice of Silverman, Wender, Koonin, Epstein, Garcia, order & Rosencwaig, its P.A. (“Silverman”) compel appeals a and non-final to stay
denying
motion
to
arbitration
litigation
with
its
former
employee,
Dr.
Jay
Dennis
(“Dr.
Dennis”). We affirm. Silverman contends that arbitration is mandatory under Dr. Dennis’ employment agreement. Dr. Dennis asserts that the
arbitration clause is no longer in effect because the agreement containing the clause has expired. Dr. Dennis entered into a two-year employment contract to perform hand surgery for the Silverman practice in 2001. The contract contained an arbitration clause requiring the parties to arbitrate any claims or disputes arising out of or related to the contract. The parties agree that the contract expired by its terms in August, 2003. Silverman sent Dr. Dennis a letter
confirming the fact that the contract had expired and that Dr. Dennis’ employment was being continued on an at-will basis. Dr.
Dennis continued working for Silverman for two years after the agreement expired. When he left Silverman in 2005, he filed suit in circuit court seeking remuneration for work he allegedly
performed. Silverman moved to compel arbitration, arguing that the employment contract and its arbitration clause are still controlling because the parties continued to govern themselves according to the agreement’s terms after it expired. The trial court denied the motion to compel arbitration and Silverman
appeals.
2
We affirm because the employment contract containing the arbitration clause is no longer in effect. The employment
contract in question expired by its terms in 2003. After the agreement expired, Dr. Dennis continued working for Silverman as an at-will employee until he left Silverman’s practice in 2005. During those two years, no contract existed between the parties that would obligate them to arbitrate a dispute. Therefore, the trial court correctly rejected Silverman’s motion to compel
arbitration. See Sanz v. R.T. Aerospace Corp., 650 So. 2d 1057, 1060 (Fla. 3d DCA 1995) (holding that a noncompete clause was unenforceable where the written agreement containing that clause had expired and the employee continued performing pursuant to an oral agreement). Affirmed.
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