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March 4, 2026 Get Citation Alerts Download PDF Add Note

Unified Women's Healthcare, LP, Kathy Kraay, and Genevieve Roberts v. Kenneth Konsker, M.D.

District Court of Appeal of Florida

• Citations: None known
• Docket Number: 4D2025-1182

• Disposition: Reversed

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (160)

• PDF

Disposition

Reversed

Combined Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

AARON SUDBURY, M.D., and FLORIDA WOMAN CARE, LLC,
Appellants,

v.

KENNETH KONSKER, M.D.,
Appellee.

No. 4D2025-1181

---

UNIFIED WOMEN’S HEALTHCARE, LP, KATHY KRAAY, and
GENEVIEVE ROBERTS,
Appellants,

v.

KENNETH KONSKER, M.D.,
Appellee.

No. 4D2025-1182

[March 4, 2026]

Consolidated appeals of a nonfinal order from the Circuit Court for the
Fifteenth Judicial Circuit, Palm Beach County; Scott Kerner, Judge; L.T.
Case No. 502024CA006831XXXAMB.

Alyssa Lynn Cory, Erik R. Matheney, and S. Elizabeth King of Shutts &
Bowen LLP, Tampa, for appellants Aaron Sudbury, M.D., and Florida
Woman Care, LLC.

Christopher Noel Bellows and Chazz Thomas Freeman of Holland &
Knight LLP, Miami, and Matthew Z. Zimmerman, Seth Jason Welner, and
Jeffrey M. Schacknow of Holland & Knight LLP, West Palm Beach, for
appellants Unified Women’s Healthcare, LP, Kathy Kraay, and Genevieve
Roberts.

Thomas U. Graner of Graner Platzek & Allison, P.A., Boca Raton, for
appellee Kenneth Konsker, M.D.
PER CURIAM.

We previously consolidated both appeals to be handled by the same
panel. Because of the similarities of the issues in both appeals, the panel
has decided that both appeals can be resolved with one opinion.

The defendants appeal the order denying their motions to compel
arbitration of the plaintiff’s claims pursuant to arbitration clauses in two
contracts. The underlying suit is an employee discharge tort case. We
agree with the defendants that the trial court erred in ruling that the
arbitration clauses are fatally ambiguous and that the plaintiff’s tort
claims are not arbitrable. We also reject the plaintiff’s argument that he
is not bound by one of the arbitration clauses. We therefore reverse the
trial court’s order and remand with instructions to compel arbitration.

Background

The plaintiff, Dr. Kenneth Konsker, co-founded Florida Woman Care,
LLC (“FWC”) in 2009. FWC operates a network of women’s health care
centers throughout Florida, including the center which Dr. Konsker
formerly owned, where he practiced as an obstetrician and gynecologist.
In 2017, Dr. Konsker and his business partner sold their interests in FWC
to various private equity groups.

The private equity groups restructured the company. Each care
center’s individual owner was given an option to transfer their ownership
interests to FWC and become a “physician member” of the company,
contracted as an employee. FWC, in turn, sold its non-professional assets
to Unified Women’s Healthcare (“Unified”) and hired Unified to provide
non-clinical management services to the care centers within its network.
Each physician member remained responsible for the clinical management
of their care center and was entitled to share in its profits.

Dr. Konsker exercised the option to give up his ownership interests in
his care center and become a physician member/employee of FWC. Three
contracts involving FWC, Unified, and Dr. Konsker are relevant here: (1)
the asset purchase agreement between Unified and FWC; (2) the
management services agreement between Unified and FWC; and (3) the
employment agreement between FWC and Dr. Konsker.

The asset purchase agreement provided for Unified’s purchase of FWC’s
non-professional assets. That contract states the parties’ complete
agreement comprises the asset purchase agreement itself along with
various documents which FWC was required to deliver at closing. Those

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documents included the management services agreement signed by FWC
and a letter of transmittal signed by the “pivoting owner” of each care
center. Dr. Konsker signed a letter of transmittal acknowledging that he
was becoming a party to the asset purchase agreement as a pivoting owner
and was bound by its terms.

In the management services agreement, Unified agreed to provide non-
clinical management services to the care centers within FWC’s network.
That agreement contains an arbitration clause, which states that “all
controversies, claims and disputes arising from or related to this
Agreement will be resolved by final and binding arbitration before a single
neutral arbitrator located in Palm Beach County Florida, conducted under
the applicable rules of the American Arbitration Association.”

The employment agreement governed Dr. Konsker’s new role as a
physician member of FWC. That agreement contains both a venue clause
and an arbitration clause. The venue clause states that “[a]ny action or
claim arising from, under or pursuant to this Agreement shall be brought
in the courts, state or federal, within [Florida] . . . .” The arbitration clause
states that “any controversy or claim arising out of or related to this
Agreement, or any breach thereof, shall be settled by arbitration in Palm
Beach County, Florida, in accordance with the rules and
procedures . . . established by the Alternative Dispute Resolution Service
of the American Health Lawyers Association . . . .” The arbitration clause
contains carve-outs for certain terms of the agreement related to
confidentiality, non-competition, and non-solicitation restrictions.

About five years after the restructuring, disputes arose between Dr.
Konsker and the leadership of FWC and Unified. Dr. Konsker alleges that
FWC and Unified attempted to orchestrate his termination by deliberately
underfunding the expansion of his practice and by conducting a baseless
human resources investigation. He was ultimately terminated without
cause. He alleges that, following his termination, employees of FWC and
Unified made defamatory statements about him to colleagues and
patients, improperly prevented him from communicating with his patients,
and misappropriated funds in his profit-share account.

Dr. Konsker filed a circuit court complaint against FWC, Unified, and
individual defendants associated with each company. He alleged counts
for defamation, tortious interference with business relationships, civil
conspiracy, and conversion.

The defendants moved to compel arbitration pursuant to the arbitration
clauses in the management services agreement and the employment

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agreement. In response, Dr. Konsker argued: (1) he is not bound by the
arbitration clause in the management services agreement because he is
not a party to the agreement; (2) the arbitration clause in the employment
agreement is ambiguous because it conflicts with the venue clause in the
same agreement; and (3) his tort claims are beyond the scope of both
arbitration clauses.

The trial court denied the defendants’ motions. The trial court ruled
that the arbitration clauses are ambiguous in two respects: (1) the
arbitration clause and the venue clause in the employment agreement are
in conflict; and (2) the arbitration clauses in the employment agreement
and management services agreement are different. Considering those
ambiguities, the trial court ruled that it would revert to public policy
favoring resolving disputes in court. The trial court also ruled that Dr.
Konsker’s claims are not arbitrable because the claims sound in tort rather
than breach of contract. The trial court did not expressly address whether
Dr. Konsker is bound by the arbitration clause in the management services
agreement.

The defendants filed timely notices of appeal.

Appellate Analysis

We review the trial court’s order denying the defendants’ motions to
compel arbitration de novo. United Healthcare of Fla., Inc. v. N. Broward
Hosp. Dist., 403 So. 3d 876, 878 (Fla. 4th DCA 2025) (citation omitted).

In ruling on a motion to compel arbitration, the trial court must
consider three elements: whether (1) a valid written agreement to arbitrate
exists; (2) an arbitrable issue exists; and (3) the right to compel arbitration
has been waived. Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla.
1999). The first two elements are at issue in this case.

Regarding the first two elements, three issues are presented for our
review: whether (1) Dr. Konsker is bound by the arbitration clause in the
management services agreement; (2) the trial court erred in ruling that the
arbitration clauses at issue are fatally ambiguous; and (3) the trial court
erred in ruling that Dr. Konsker’s claims are not arbitrable.

1. Enforceability of the Management Services Agreement

The first issue we address is whether Dr. Konsker is bound by the
arbitration clause in the management services agreement between Unified
and FWC. Generally, an arbitration clause cannot be enforced against a

4
non-party to the agreement. See, e.g., Sitarik v. JFK Med. Ctr. Ltd. P’ships,
7 So. 3d 576, 578 (Fla. 4th DCA 2009).

However, Dr. Konsker is bound by the terms of the management
services agreement, including the arbitration clause, because he signed
the letter of transmittal acknowledging that he was becoming a party to
the asset purchase agreement as a pivoting owner and was bound by the
terms of the asset purchase agreement. The asset purchase agreement
expressly incorporates the management services agreement as part of the
parties’ complete agreement. Thus, by becoming a party to the asset
purchase agreement, Dr. Konsker expressed an intent to be bound by the
terms of the management services agreement. See Phoenix Motor Co. v.
Desert Diamond Players Club, Inc., 144 So. 3d 694, 697 (Fla. 4th DCA
2014).

1. Ambiguities in the Arbitration Clauses

The second issue we address is whether the trial court erred in ruling
that the arbitration clauses at issue are fatally ambiguous. The trial court
ruled that the arbitration clauses are ambiguous in two respects: (1) the
arbitration clause and the venue clause in the employment agreement are
in conflict; and (2) the arbitration clauses in the employment agreement
and management services agreement are different.

We determine the trial court erred in ruling that the arbitration clause
and the venue clause in the employment agreement are in conflict,
because the contract can be read in a way that gives meaning to both
clauses. A general principle of contract interpretation is that courts “will
not interpret a contract in such a way as to render clauses meaningless
when there is a reasonable interpretation that does not do so”; instead,
courts “must strive to interpret a contract in such a way as to give meaning
to all clauses while doing violence to none.” Bethany Trace Owners’ Ass’n,
Inc. v. Whispering Lakes I, LLC, 155 So. 3d 1188, 1191 (Fla. 2d DCA 2014)
(citations omitted); see also Harris v. School Bd. of Duval Cnty., 921 So. 2d
725, 733 (Fla. 1st DCA 2006) (stating that an ambiguity between two
contractual clauses exists only where the clauses are “mutually
repugnant”).

The venue and arbitration clauses can easily be read together by
interpreting the venue clause to apply only to disputes that are not
submitted to arbitration. The venue clause does not require the parties to
litigate all disputes arising out of the employment agreement; it merely
designates the forum for any litigation that might occur. See Hedden v. Z
Oldco, LLC, 301 So. 3d 1034, 1039 (Fla. 2d DCA 2019). The venue clause

5
applies most obviously to disputes that are expressly carved out from the
arbitration clause, but it would also apply to cases where arbitration has
been waived, where the claim at issue falls outside the scope of the
arbitration clause, or where the dispute is ultimately resolved in
arbitration but where some judicial action is necessary pre- or post-
arbitration, including any litigation regarding arbitrability. See, e.g.,
§§ 682.031(1), 682.12, 682.081, Fla. Stat. (2016); Hedden, 301 So. 3d at
1039.

The trial court also erred in ruling that the difference between the two
arbitration clauses renders the clauses unenforceable without attempting
to reconcile them. See Kendall Imports, LLC v. Diaz, 215 So. 3d 95, 101–
02 (Fla. 3d DCA 2017) (stating that, when two arbitration clauses appear
to be in conflict, the court must attempt to resolve the conflict so as to
uphold the parties’ agreement to arbitrate), rev. denied, No. SC2017-0792,
2017 WL 4161247 (Fla. Sep. 20, 2017); see also Jackson v. Shakespeare
Found., Inc., 108 So. 3d 587, 593 (Fla. 2013) (stating that arbitration
clauses are generally favored, and courts must try to resolve any ambiguity
in favor of arbitration).

The trial court ruled that the arbitration clauses are fatally ambiguous
because the employment agreement requires the parties to arbitrate under
the rules of the American Health Lawyers Association (“AHLA”), while the
management services agreement requires the parties to arbitrate under
the rules of the American Arbitration Association (“AAA”). However,
neither the trial court nor Dr. Konsker identified any material difference
between the two sets of rules.

The Third District considered a similar alleged conflict in Kendall
Imports. In that case, one of the two arbitration clauses at issue required
the parties to arbitrate “in accordance with” the Florida Arbitration Code
(“FAC”), while the other clause stated that any arbitration would be
“governed by” the Federal Arbitration Act (“FAA”). 215 So. 3d at 102–05.
The trial court denied the defendants’ motion to compel arbitration, ruling
no valid agreement to arbitrate existed because this conflict, among
others, showed no “meeting of the minds” regarding an agreement to
arbitrate. Id. at 97–98. The Third District reversed, holding that the
apparent conflict as to the governing rules did not justify invalidating the
parties’ agreement to arbitrate, because the plaintiffs had not identified
any “relevant irreconcilable differences” between the FAC and the FAA. Id.
at 106–07.

Here, like in Kendall Imports, a clear “meeting of the minds” occurred
as to the agreement to arbitrate, and Dr. Konsker has not identified any

6
material irreconcilable conflict between the AHLA rules and the AAA rules
that would justify rendering that agreement unenforceable.

1. Arbitrability of Dr. Konsker’s Claims

The third and final issue we address is whether the trial court erred in
ruling that Dr. Konsker’s claims are not arbitrable. The trial court ruled
that Dr. Konsker’s claims are outside the scope of the arbitration clauses
because those claims sound in tort rather than breach of contract claims.

Generally, the court, not the arbitrator, determines whether the claims
at issue fall within the scope of an arbitration clause. U.S. Fire Ins. Co. v.
Am. Walks at Port St. Lucie, LLC, 386 So. 3d 575, 580 (Fla. 4th DCA 2024).
However, the parties can agree to delegate any questions of arbitrability to
the arbitrator, in which case the court lacks the power to decide the issue.
Airbnb, Inc. v. Doe, 336 So. 3d 698, 703–05 (Fla. 2022); U.S. Fire, 386 So.
3d at 580-81. Agreeing to arbitration rules that specifically empower the
arbitrator to resolve questions of arbitrability is sufficient to “clearly and
unmistakably” evidence the parties’ intent to delegate the arbitrability
issues to the arbitrator. Airbnb, 336 So. 3d at 704; U.S. Fire, 386 So. 3d
at 580.

Here, the parties agreed to arbitrate under the AHLA rules in the
employment agreement and the AAA rules in the management services
agreement. Both sets of rules specifically empower the arbitrator to
determine any issues of arbitrability—the AHLA rules in section 3.1, and
the AAA rules in section 7(a). Thus, by agreeing to arbitrate under these
rules, the parties clearly and unmistakably evidenced an intent to delegate
any questions of arbitrability to the arbitrator, and the trial court lacked
the authority to reach the issue. Airbnb, 336 So. 3d at 704–05; U.S. Fire,
386 So. 3d at 580-81.

We also note that, even if the trial court had the authority to decide this
issue, the trial court erred in ruling that Dr. Konsker’s claims are not
arbitrable simply because those claims sound in tort rather than breach
of contract. Both arbitration clauses require arbitration of claims “arising
out of or related to” their respective agreements, and that language is
broad enough to include a tort claim if a sufficient nexus exists between
the claim and the contract. See Jackson, 108 So. 3d at 593. We express
no opinion as to whether Dr. Konsker’s claims have a sufficient nexus to
the agreements at issue here.

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Conclusion

In summary, we conclude that the trial court erred in denying the
defendants’ motions to compel arbitration because Dr. Konsker is bound
by the arbitration clauses in the employment agreement and the
management services agreement, the clauses are not fatally ambiguous,
and the applicable arbitration rules call for the arbitrator to determine
whether Dr. Konsker’s claims are arbitrable. We therefore reverse the trial
court’s order and remand with instructions to compel arbitration.

Reversed and remanded.

CONNER, FORST and SHAW, JJ., concur.

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Not final until disposition of timely-filed motion for rehearing.

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