              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT

JORDAN L. CHAIKIN,                           )
                                             )
             Appellant,                      )
                                             )
v.                                           )       Case No. 2D16-4883
                                             )
PARKER WAICHMAN LLP, a Florida               )
limited liability partnership; and           )
JERROLD S. PARKER, individually,             )
                                             )
             Appellees.                      )
                                             )

Opinion filed October 11, 2017.

Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Lee County; Jay
B. Rosman, Judge.

Traci T. McKee and Kyle C. Dudek of
Henderson, Franklin, Starnes & Holt, P.A.,
Fort Myers, for Appellant.

Alan J. Kluger, Michael T. Landen, and
Christina M. Himmel of Kluger, Kaplan,
Silverman, Katzen & Levine, P.L., Miami,
for Appellees.


LaROSE, Chief Judge.


             Jordan L. Chaikin appeals a nonfinal order granting a motion to compel

arbitration of his counterclaims against Parker Waichman LLP and Jerrold S. Parker

(collectively, "Parker Waichman"). We have jurisdiction. See Fla. R. App. P.
9.130(a)(3)(C)(iv). Because Parker Waichman waived its right to compel arbitration, we

reverse.

                                   Background Facts

              Parker Waichman is a New York-based law firm. In November 2007, it

hired Mr. Chaikin as an associate in its Florida office. Allegedly, Mr. Chaikin signed an

employment agreement and received an employee handbook detailing the terms,

conditions, and obligations of his employment.1

              Almost three years later, Parker Waichman made Mr. Chaikin a "profit

partner." The parties executed a Partnership Agreement to herald Mr. Chaikin's

promotion. Among other rights and duties, the Partnership Agreement entitled Mr.

Chaikin to share in the firm's annual earnings. Significantly, for the purposes of this

appeal, the Partnership Agreement provided that "[a]ny controversy or claim arising out

of or relating to this Agreement, or any alleged breach hereof, or arising out of or

relating to the Partners and the Partnership, may be settled by arbitration conducted in

Nassau, New York, at the option of the Partnership."

              Over the ensuing years the relationship between Mr. Chaikin and Parker

Waichman soured, marked by mutual recriminations of disloyalty and disapprobation.

Mr. Chaikin resigned abruptly in December 2015. Thereafter, Parker Waichman sued

him in Lee County. Mr. Chaikin answered the complaint. He asserted several

affirmative defenses and counterclaims. Parker Waichman moved to dismiss the


              1
                 Our record contains a signed copy of the employee handbook; we have
no fully executed employment agreement. Parker Waichman contends that "Mr.
Chaikin executed a copy of this employment agreement at the time he was hired" and
"[i]t is believed that the executed copy is in [Mr. Chaikin]'s possession." Because a
signed copy of the employment agreement is not critical to the resolution of the issue
before us, we need not afford it further consideration.
                                              -2-
counterclaims "as subject to an arbitration provision contained in the [Partnership

Agreement]." The trial court ruled in favor of Parker Waichman. The trial court found

that the arbitration clause was valid and enforceable, that "Parker Waichman did not

knowingly and intentionally relinquish its right to arbitrate," and that the "claims alleged

in the Counterclaim[s] are arbitrable." Observing that the counterclaims were based

solely on Parker Waichman's alleged breach of the Partnership Agreement, the trial

court concluded that the counterclaims fell squarely within the ambit of the arbitration

clause. The order dismissing the counterclaims in favor of arbitration seemingly creates

an incongruous result: Parker Waichman's lawsuit remains before a trial court in Lee

County, while Mr. Chaikin's related counterclaims are consigned to arbitration in New

York.

                                          Analysis

              "Generally, the three fundamental elements that must be considered when

determining whether a dispute is required to proceed to arbitration are: (1) whether a

valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3)

whether the right to arbitration was waived." Jackson v. Shakespeare Found., Inc., 108

So. 3d 587, 593 (Fla. 2013) (citing Seifert v. U.S. Home Corp., 750 So. 2d 633, 636

(Fla. 1999)). The sole issue before us is whether Parker Waichman waived its right to

arbitrate Mr. Chaikin's counterclaims. On this dispositive issue, the parties' positions

diverge.

              Mr. Chaikin contends that Parker Waichman waived its right to arbitrate by

suing him in the first instance in Lee County. Seeking affirmative relief in the trial court,

according to Mr. Chaikin, constituted a waiver of the right to arbitrate "an adversary's

counterclaims that implicate similar issues."
                                            -3-
              In contrast, Parker Waichman argues that the claims asserted in its

amended complaint were based upon Mr. Chaikin's violations of the employment

agreement and employee handbook, neither of which contain an arbitration clause.

Parker Waichman insists that it did not waive the right to arbitrate the counterclaims by

suing in state court.

              Generally, "[w]e review an order granting or denying a motion to compel

arbitration de novo." Roth v. Cohen, 941 So. 2d 496, 499 (Fla. 3d DCA 2006).

However, "whether a party has waived the right to arbitrate is a question of fact,

reviewed on appeal for competent, substantial evidence to support the lower court's

findings." Green Tree Servicing, LLC v. McLeod, 15 So. 3d 682, 686 (Fla. 2d DCA

2009) (quoting Mora v. Abraham Chevrolet-Tampa, Inc., 913 So. 2d 32, 33 (Fla. 2d

DCA 2005)).

              "Florida public policy favors arbitration." Andre Franklin, Inc. v. Wax, 150

So. 3d 815, 816 (Fla. 2d DCA 2014). Thus, the "use [of arbitration provisions is]

generally favored by the courts." Seifert, 750 So. 2d at 636. Nonetheless, the right to

arbitration is not unbridled. "The contractual right to arbitration . . . is subject to waiver."

Andre Franklin, Inc., 150 So. 3d at 816 (citing Mora, 913 So. 2d at 34). Based upon the

record before us,2 we conclude that Parker Waichman waived its right to arbitrate and

the trial court's order dismissing the counterclaims was in error. We reverse and return

this matter to the trial court for further proceedings.


              2
                Parker Waichman argues that we cannot conduct a review of the order
because there is no transcript of the hearing on its motion to dismiss. Because the
motion to dismiss hearing consisted solely of legal argument, not the taking of evidence,
the absence of a transcript does not preclude our review of the order on appeal. See
Houk v. PennyMac Corp., 210 So. 3d 726, 730-31 (Fla. 2d DCA 2017); Fish Tale Sales
& Serv., Inc. v. Nice, 106 So. 3d 57, 63 (Fla. 2d DCA 2013).
                                            -4-
              " 'Waiver' has been defined 'as the voluntary and intentional

relinquishment of a known right or conduct which implies the voluntary and intentional

relinquishment of a known right.' " Green Tree Servicing, LLC, 15 So. 3d at 687

(quoting Raymond James Fin. Servs., Inc. v. Saldukas (Saldukas II), 896 So. 2d 707,

711 (Fla. 2005)). "A party may waive its contractual [arbitration right] by actively

participating in a lawsuit or taking action inconsistent with that right." Andre Franklin,

Inc., 150 So. 3d at 816 (citation omitted). "The essential question is whether, under the

totality of circumstances, the defaulting party has acted inconsistently with the

arbitration right." Green Tree Servicing, LLC, 15 So. 3d at 687 (quoting Nat'l Found. for

Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C. Cir. 1987)).

              In its nine-count amended complaint, Parker Waichman raised various

claims against Mr. Chaikin, the gravamen of which concern his time as a profit partner.

For example, Count IV of the amended complaint alleges that "[a]s a partner at Parker

Waichman, [Mr.] Chaikin owed a fiduciary duty to Parker Waichman," which he

breached by covertly communicating with and soliciting Parker Waichman's clients,

"stealing proprietary information that belonged to Parker Waichman for his own benefit,"

and disclosing confidential information.

              Count IV falls within the broad scope of the Partnership Agreement's

arbitration clause. See Olson v. Fla. Living Options, Inc., 210 So. 3d 107, 111 (Fla. 2d

DCA 2016) ("The addition of the words 'relating to' broadens the scope of an arbitration

provision to include those claims that are described as having a 'significant relationship'

to the contract . . . ." (quoting Jackson, 108 So. 3d at 593)). Further, a significant

relationship existed between this breach-of-fiduciary-duty count and the Partnership

Agreement.
                                            -5-
               [A] significant relationship is described to exist between an
               arbitration provision and a claim if there is a "contractual
               nexus" between the claim and the contract. A contractual
               nexus exists between a claim and a contract if the claim
               presents circumstances in which the resolution of the
               disputed issue requires either reference to, or construction
               of, a portion of the contract. More specifically, a claim has a
               nexus to a contract and arises from the terms of the contract
               if it emanates from an inimitable duty created by the parties'
               unique contractual relationship.

Id. (alternation in original) (citations omitted) (quoting Jackson, 108 So. 3d at 593).

Although Count IV is grounded upon Mr. Chaikin's alleged breach of his fiduciary duties

under the Partnership Agreement, Parker Waichman elected to pursue this claim in

state court.

               As a further example, in seeking an accounting in Count IX of the

amended complaint, Parker Waichman alleged that "Chaikin was a partner in the Parker

Waichman law firm," and that "Parker Waichman is entitled to all partnership assets,

property, books, records[,] or benefits . . . derived during the course of his employment

with Parker Waichman." Count IX necessarily implicates Mr. Chaikin's fiduciary

obligations under the Partnership Agreement. Cf. Cassedy v. Alland Inv. Corp., 128 So.

3d 976, 978 (Fla. 1st DCA 2014) (noting that while an action for accounting is a distinct

cause of action from breach of a fiduciary duty, "an action for an accounting . . . may be

available where a fiduciary duty exists"). By seeking relief for alleged breaches of the

Partnership Agreement, Parker Waichman could have pursued Count IX in arbitration.

               In response to the amended complaint, Mr. Chaikin asserted several

counterclaims: breach of contract, breach of fiduciary duty, breach of duty of loyalty,

breach of covenant of good faith and fair dealing, unjust enrichment, and tortious




                                            -6-
interference with an advantageous business relationship. Mr. Chaikin alleged that each

claim stems from Parker Waichman's breaches of the Partnership Agreement.

               Parker Waichman argues that the amended complaint is "solely based on

breaches of Chaikin's Employment Agreement and Employee Handbook." As

recounted, above, this assertion is incorrect. At a minimum, Counts IV and IX arise

from the Partnership Agreement. Therefore, Parker Waichman's attempts to frame

these claims as arising out of either or both the employment agreement and the

employee handbook is unavailing. The initial lawsuit and the counterclaims find their

genesis in the Partnership Agreement.

               Parker Waichman's election to seek relief in state court has

consequences. As we have noted, "[a] party's active participation in a lawsuit is

inconsistent with arbitration." Green Tree Servicing, LLC, 15 So. 3d at 687. "[A] party

acts inconsistently with the right to arbitration when the party actively participates in the

lawsuit by either prosecuting or defending issues that are subject to arbitration." Gen.

Elec. Capital Corp. v. Bio-Mass Tech, Inc., 136 So. 3d 698, 701 (Fla. 2d DCA 2014)

(citing Green Tree Servicing, LLC, 15 So. 3d at 687); see also Seville Condo. # 1, Inc. v.

Clearwater Dev. Corp., 340 So. 2d 1243, 1245 (Fla. 2d DCA 1976) ("The prosecution or

defense of a lawsuit on issues subject to arbitration may constitute a waiver." (citation

omitted)). By electing to sue and pursue relief in the trial court on arbitrable claims

arising out of or relating to the Partnership Agreement, Parker Waichman waived its

right to seek arbitration. "Initiating a lawsuit . . . without first seeking arbitration,

constitutes an affirmative selection of a course of action which runs counter to the

purpose of arbitration." Beverly Hills Dev. Corp. v. George Wimpey of Florida, Inc., 661

So. 2d 969, 971 (Fla. 5th DCA 1995) (citation omitted).
                                               -7-
              Correspondingly, Parker Waichman's decision to sue in state court was

adverse to its insistence that Mr. Chaikin's counterclaims, founded upon the same

Partnership Agreement, be submitted to arbitration. What is sauce for the goose is

sauce for the gander. Cf. Green Tree Servicing, Inc., 15 So. 3d at 687 ("[O]nce a party

has waived the right to arbitration by active participation in a lawsuit, the party may not

reclaim the arbitration right without the consent of his or her adversary." (citing Williams

v. Manor Care of Dunedin, Inc., 923 So. 2d 615, 616-17 (Fla. 2d DCA 2006); then citing

Bared & Co. v. Spec. Maint. & Constr. Inc., 610 So. 2d 1, 3 (Fla. 2d DCA 1992))).

              Hawkins v. James D. Eckert, P.A., 738 So. 2d 1002 (Fla. 2d DCA 1999), is

helpful. There, we reversed an order compelling arbitration of the appellant's

counterclaims. Id. at 1002-03. The appellant was represented by the appellees' law

firm in a divorce case. Id. at 1002. The appellees later sued to recover fees owed

under a retainer agreement. The appellant filed an answer, affirmative defenses, and a

counterclaim. The appellees answered the counterclaim, asserted affirmative defenses,

and also moved to compel arbitration pursuant to an arbitration provision in the retainer

agreement. We agreed with the appellant that "the appellees waived the right to compel

arbitration when they filed suit to enforce the [retainer agreement]." Id.

              As in Hawkins, by pursuing relief in the trial court based upon the

Partnership Agreement, Parker Waichman waived its right to compel arbitration of Mr.

Chaikin's counterclaims, which were also based upon the Partnership Agreement. See

also Twin Oaks at Southwood, LLC v. Summit Constructors, Inc., 941 So. 2d 1263,

1268 (Fla. 1st DCA 2006) (reversing trial court's order dismissing the defendant's

counterclaims in favor or arbitration where plaintiff's initiation of lawsuit waived the right

to arbitration); Owens & Minor Med., Inc. v. Innovative Mktg. and Distribution Servs.,
                                             -8-
Inc., 711 So. 2d 176, 177-78 (Fla. 4th DCA 1998) (affirming trial court's denial of

plaintiff's motion to compel arbitration of defendant's counterclaim due to plaintiff's

"active participation in litigation" where the plaintiff initiated litigation in the trial court and

the "matters raised in the counterclaim [were] intertwined with issues raised in the

amended complaint").

                                           Conclusion

               Accordingly, we reverse the order dismissing Mr. Chaikin's counterclaims

in favor of arbitration and remand for further proceedings consistent with this opinion.

               Reversed and remanded.




WALLACE and KHOUZAM, JJ., Concur.




                                               -9-
