FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Nonfinal Appeal from the Circuit Court for Marion County,
Edward L. Scott, Judge.
S. Marks and Sheena A. Thakrar, of Burr & Forman, LLP,
Orlando, for Appellant.
P. Tarquin and Mark Dillman, of James P. Tarquin, P.A.,
Ocala, for Appellee.
Lobby Stores, Inc. ("Hobby Lobby") appeals a
nonfinal order denying its motion to compel arbitration in a
wrongful termination lawsuit filed by Alan Cole, a former
employee. Hobby Lobby based its motion on a Mutual
Arbitration Agreement ("the Agreement") the parties
executed as a condition of his employment. The trial court
found the Agreement unconscionable and denied the motion. We
have jurisdiction. Fla. R. App. P. 9.130(a)(3)(C)(iv).
Because we conclude that the Agreement was binding,
enforceable, and not unconscionable, we reverse.
Cole applied for and obtained a cashier position with Hobby
Lobby's Ocala store in 2015. He allegedly sustained a
workplace injury in March 2018, for which he sought and
received workers' compensation benefits. Mr. Cole
suggests that Hobby Lobby then subjected him to antagonistic
conduct, culminating in his discharge in May 2018. Mr. Cole
then sued Hobby Lobby for improperly discharging him in
retaliation for his workers' compensation claim.
See § 440.205, Fla. Stat. (2018). Hobby Lobby
moved to compel arbitration pursuant to the Agreement.
Agreement is a two-page, single-spaced document Hobby Lobby
and Mr. Cole signed on July 27, 2015. The Agreement
conditioned Mr. Cole's employment on his acceptance of
its terms. The parties agreed that any employment-related
dispute Mr. Cole had with Hobby Lobby, including
"[d]isputes involving interference and/or retaliation
relating to workers' compensation," would be
submitted to and settled by final and binding arbitration.
Mr. Cole could select from two sets of arbitration rules, and
Hobby Lobby agreed to pay all arbitration fees and costs. The
parties acknowledged they had each read the agreement, gave
up any right to sue one another, waived any right to a jury
trial, and "knowingly and voluntarily consent[ed] to all
terms and conditions set forth in this Agreement."
trial court denied Hobby Lobby's motion, concluding the
Agreement was an unconscionable adhesion contract. It relied
on Mr. Cole's affidavit, submitted in opposition to the
motion to compel. Mr. Cole averred he had a high school
education, and he did not know what an arbitrator or an
arbitration was. He contended nobody explained he was waiving
his right to a jury trial, offered him an opportunity to
consult with counsel, or provided him with arbitration rules.
He believed he had no choice but to sign the Agreement to get
and keep his job.
court's ruling on a motion to compel arbitration is
reviewed de novo. Krol v. FCA US, LLC, 273 So.3d
198, 200 (Fla. 5th DCA 2019). We defer to the trial
court's factual findings, provided they are supported by
competent, substantial evidence. Reunion W. Dev.
Partners, LLLP v. Guimaraes, 221 So.3d 1278, 1280 (Fla.
5th DCA 2017). Courts generally favor arbitration provisions
and try to resolve any ambiguity in favor of arbitration.
Jackson v. Shakespeare Found., Inc., 108 So.3d 587,
593 (Fla. 2013).
evaluating whether to compel arbitration pursuant to written
agreement, a court must consider: "(1) whether a valid
written agreement to arbitrate exists; (2) whether an
arbitrable issue exists; and (3) whether the right to
arbitration was waived." Seifert v. U.S. Home
Corp., 750 So.2d 633, 636 (Fla. 1999) (citing
Terminix Int'l Co. v. Ponzio, 693 So.2d 104, 106
(Fla. 5th DCA 1997)). Here, there is no dispute that Hobby
Lobby met all three prongs of this test. The inquiry does not
end here because general contract defenses also apply.
See Glob. Travel Mktg., Inc. v. Shea, 908 So.2d 392,
398 (Fla. 2005) (stating that the rights of access to courts
and trial by jury may be contractually relinquished subject
to general contract defenses, including unconscionability).
In this case, the trial court found the Agreement
an arbitration agreement unconscionable, a court must
conclude it is both procedurally and substantively
unconscionable. Basulto v. Hialeah Auto., 141 So.3d
1145, 1158-59 (Fla. 2014). Although both types of
unconscionability are necessary to invalidate an arbitration
agreement, they need not be equally present, and courts
should evaluate them independently. Id. at 1161. A
sliding scale approach applies, meaning that the more
procedurally oppressive the contract, the less evidence of
substantive unconscionability is required, and vice versa.
Id. at 1159-60. The party seeking to avoid
arbitration bears the burden to establish unconscionability.
Estate of Perez v. Life Care Ctrs. of Am., Inc., 23
So.3d 741, 742 (Fla. 5th DCA 2009).
unconscionability relates to the manner in which a contract
is entered, and courts determine whether it exists based on a
totality of the circumstances. Fla. Holdings III, LLC v.
Duerst ex rel. Duerst, 198 So.3d 834, 839 (Fla. 2d DCA
2016) (citing SA-PG Sun City Ctr., LLC v. Kennedy,
79 So.3d 916, 921 (Fla. 2d DCA 2012)). The central question
in determining whether a contract is procedurally
unconscionable is "whether the complaining party lacked
a meaningful choice when entering into the contract."
Basulto, 141 So.3d at 1157 n.3 (citing Kohl v.
Bay Colony Club Condo., Inc., 398 So.2d 865, 868-69
(Fla. 4th DCA 1981)). In answering this question, courts
consider: "(1) the manner in which the contract was
entered into; (2) the relative bargaining power of the
parties and whether the complaining party had a meaningful
choice at the time the contract was entered into; (3) whether
the terms were merely presented on a
'take-it-or-leave-it' basis; and (4) the complaining
party's ability and opportunity to understand the
disputed terms of the contract." Id. (quoting
Pendergast v. Sprint Nextel Corp., 592 F.3d 1119,
1135 (11th Cir. 2010)). Courts should also consider whether
each party, given their education, was given a reasonable
opportunity to understand an arbitration agreement's
terms, or whether important terms were "hidden in a maze
of fine print and minimized." Id. at 1160
(quoting Williams v. Walker-Thomas Furniture Co.,
350 F.2d 445, 449 (D.C. Cir. 1965)).
predicating its finding of procedural unconscionability on
the Agreement's take-it-or-leave-it nature, the trial
court relied on California law. See Martinez v. Master
Prot. Corp., 12 Cal.Rptr.3d 663, 669 (Cal.Ct.App. 2004)
(holding that "[a]n arbitration agreement that is an
essential part of a 'take it or leave it' employment
condition, without more, is procedurally
unconscionable"). In Florida, however, the
take-it-or-leave-it nature of arbitration agreements is not
dispositive. VoiceStream Wireless Corp. v. U.S.
Commc'ns, Inc., 912 So.2d 34, 40 (Fla. 4th DCA 2005)
(stating that "the presence of an adhesion contract
alone does not require a finding of procedural
unconscionability"). Instead, courts should explore the