Marcum LLP v. Potamkin
Marcum LLP v. Potamkin
Opinion of the Court
Marcum LLP, an accounting firm, appeals an order denying its request for a declaratory determination that the former spouse of the appellee could not assign her claims against the firm to the appel-lee.
The rights and obligations under the engagement letter between Mrs. Po-tamkin and Marcum are part of “a valid written agreement to arbitrate,” and the claim against Marcum, if asserted by Mrs. Potamkin, is “an arbitrable issue.” See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999) (recognizing that there are three elements for courts to consider when ruling on a motion to compel arbitration: 1) whether a valid written agreement to arbitrate exists; 2) whether an arbitrable issue exists; and 3) whether the right to arbitration has been waived). The third element of Seifert is also satisfied; neither Mrs. Potamkin nor Mr. Potamkin has waived the right to arbitrate.
With Mrs. Potamkin’s right to arbitrate her claims established, the next issue is whether her attempted assignment of the claims in arbitration to Mr. Potam-kin is prohibited as a matter of law and without regard to the underlying allegations, the applicability of a privilege, or some other set of circumstances that may be developed at a later point in the arbitration. Under Florida law, contract rights, including causes of action for breach, are freely assignable unless the contract prohibits assignment, the contract involves obligations of a personal nature, or public policy precludes assignment.
We disagree. Assignability and the characterization of the contract as involving “personal services” or a “confidential relationship” are matters for the arbitrators to decide on the record before them if the issues are presented to them. The engagement letter under which arbitration is sought concededly specifies that “fee disputes” as well as “malpractice claims” are to be arbitrated. Having failed to include a contractual provision prohibiting assignment by Mrs. Potamkin, or a provision specifying that an assignee could not
Nor do we agree with Marcum’s assertion that the trial court should have considered whether Mr. and Mrs. Potamkin’s attempt to preserve any applicable accountant-client privilege
Finally, Marcum asks us to construe section 682.08(4), Florida Statutes (2010),
Affirmed.
. The circuit court granted the appellee’s motion for judgment on the pleadings.
. To the extent that Mr. Potamkin’s claims in arbitration include tort claims, there are similar exceptions for "purely personal” injury claims and certain professional malpractice claims. Kozich v. Shahady, 702 So.2d 1289, 1290 (Fla. 4th DCA 1997); Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 496 (Fla. 3d DCA 1994).
. Because the Federal Arbitration Act (FAA) is applicable nationally, it has produced more reported cases than the Florida cases applying the Florida Arbitration Code, Chapter 682, Florida Statutes. The federal cases are considered "highly persuasive” because the Code is modeled after the FAA. RDC Golf of Fla. I, Inc. v. Apostolicas, 925 So.2d 1082, 1091 (Fla. 5th DCA 2006).
. § 90.5055, Fla. Stat. (2010).
. § 90.510, Fla. Stat. (2010).
."On application the court may stay an arbitration proceeding commenced or about to be commenced, if it shall find that no agreement or provision for arbitration subject to this law exists between the party making the application and the party causing the arbitration to be had. The court shall summarily hear and determine the issue of the making of the agreement or provision and, according to its determination, shall grant or deny the application."
Reference
- Full Case Name
- MARCUM LLP, etc. v. Alan POTAMKIN
- Cited By
- 1 case
- Status
- Published