Fernandez v. Smith Commercial Group, Inc.

560 So.2d 1389 (1990) Manuel FERNANDEZ, Petitioner, v. SMITH COMMERCIAL GROUP, INC., Respondent. No. 90-625. District Court of Appeal of Florida, Third District. May 15, 1990. *1390 Taylor, Brion, Buker & Greene and Arnaldo Velez, Miami, for petitioner. Bradshaw Lotspeich, Miami, for respondent. Before COPE, GERSTEN and GODERICH, JJ. PER CURIAM. Manuel Fernandez petitions for a writ of certiorari to quash an order of the trial court insofar as it denies Fernandez' motion to abate claims against him and refer them to arbitration. We grant the petition and quash the order under review. Respondent Smith Commercial Group, Inc. is plaintiff below in an action containing various counts arising out of a construction contract between Smith, as owner, and Metro Obras, Inc., as contractor. Smith brought suit against Metro Obras and named Fernandez, Metro Obras' president, an additional defendant. On defendants' motion, the trial court referred the claims against Metro Obras to arbitration pursuant to the arbitration clause of the contract. The court denied the motion with respect to the claims against Fernandez individually. Applying Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980), to the complaint in this case, Fernandez is within the scope of the respondeat superior doctrine and is therefore entitled to invoke the arbitration clause with respect to the claims against him. Id. at 288; accord Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Melamed, 453 So.2d 858, 860 (Fla. 4th DCA 1984), aff'd, 476 So.2d 140 (Fla. 1985). "`[A] party to a contract calling for arbitration may [not] avoid that undertaking by the simple device of joining as defendants in its lawsuit others with which the party has no such agreement'...." Post Tensioned Engineering Corp. v. Fairways Plaza Associates, 429 So.2d 1212, 1214 (Fla. 3d DCA 1983) (citation omitted). We therefore grant certiorari, see Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d at 287, quash the order with respect to Fernandez, and direct that the claims against Fernandez proceed to arbitration.