Author: Amy L. Miles
In two opinions released on February 17, 2012, the Second District Court of Appeal reversed a trial court order denying a nursing home and its Director of Nursing’s motions to compel arbitration. See SA-PG Sun City Center, LLC v. Kennedy, Case No. 2D11-93 (Fla. 2d DCA, Feb. 17, 2012), and Cornwell v. Kennedy, Case No. 2D11-105 (Fla. 2d DCA, Feb. 17, 2012).
The trial court had determined that the arbitration agreement was unconscionable, finding both procedural and substantive unconscionability present in the agreement. Specifically, the trial court found that the representative signing the agreement was unable to read it, did not understand the terms, and had no opportunity for the agreement to be explained to her. These findings, if supported by the evidence, amounted to procedural unconscionability. The Second District Court of Appeal, however, disagreed with the findings. The appellate court found that the trial court’s finding of procedural unconscionability was not supported by the evidence and, therefore, was error as a matter of law.
Contrary to the trial court’s factual findings, the Second District determined that the record showed the representative did not inform anyone that she could not read the agreement and, when given the opportunity, did not ask any questions about arbitration. Because the director of admissions testified that she discussed the arbitration agreement and spent twenty to thirty minutes reviewing the entire admissions agreement with the representative, the evidence could not support the trial court’s findings. The appellate court emphasized that the burden is on the party seeking to avoid arbitration to present evidence to show why it should be avoided. The representative’s argument that she was unable to read the documents was insufficient when she was not prevented from knowing their contents.