       Third District Court of Appeal
                               State of Florida

                          Opinion filed February 1, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-1985
                         Lower Tribunal No. 12-19578
                             ________________


                       Kendall Imports, LLC, etc.,
                                    Appellant,

                                        vs.

                          Dianellys Y. Diaz, et al.,
                                    Appellees.



     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Jose M. Rodriguez, Judge.

     Akerman LLP, and Christopher S. Carver, Lawrence D. Silverman, and
Lorayne Perez, for appellant.

     Dorta Law, and Gonzalo R. Dorta, Matias R. Dorta, and Craig A.
Applebaum, for appellees.


Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.

     ROTHENBERG, J.
                      FACTS AND PROCEDURAL HISTORY

      Kendall Imports, LLC (“Kendall”) sold automobiles to Dayron Ortega

(“Ortega”), Erislandis Marquez (“Marquez”), and Dianellys Y. Diaz (“Diaz”)

(collectively, “the Buyers”). The Buyers do not speak or read English. When the

Buyers purchased their vehicles, they each signed two documents that were written

in English—a purchase order (“purchase order”) and a retail installment sales

contract (“financing agreement”) (collectively, “the documents”).        Both the

purchase order and the financing agreement contained arbitration clauses, but they

were not identical.

      The Buyers filed a class action lawsuit against Kendall and its finance

director, seeking damages and alleging violations of the Florida Deceptive and

Unfair Trade Practices Act (“FDUTPA”), violations of the Motor Vehicle Retail

Sales Finance Act, and unjust enrichment. Specifically, the Buyers alleged that

after they signed the purchase order and financing agreement, Kendall filled in the

blank spaces in these documents with extra fees and products without informing

the Buyers or obtaining their consent.

      Kendall filed a motion to compel arbitration based on the arbitration clauses

in the purchase order and financing agreement.        At the evidentiary hearing

conducted on Kendall’s motion to compel, there was no evidence presented that

the Buyers were rushed or pressured into signing the documents, sought help in

                                         2
translating the documents, or asked Kendall to clarify the terms of the arbitration

clauses.

      Following the evidentiary hearing, the trial court entered a non-final order,

finding that the only discussions the sales staff had with the Buyers related to the

financial terms, such as the purchase price and the monthly payments. Despite the

Buyers’ inability to speak or read English, Kendall did not attempt to explain the

terms of the documents to the Buyers or inform them of the arbitration provisions

in the documents. Moreover, the trial court found that the arbitration provisions in

the purchase order and financing agreement conflict, and even if they had been

written in Spanish, a reasonable person reading these documents would not have

had a clear understanding of the precise terms and conditions needed to form a

mutual agreement to arbitrate. Based on these findings, the trial court denied

Kendall’s motion to compel arbitration on two alternative grounds: (1) due to the

conflicts between several of the provisions within the arbitration clauses in the

purchase order and the financing agreement, Kendall and the Buyers did not have

“a meeting of the minds” regarding an agreement to arbitrate and thus there was no

valid agreement to arbitrate as a matter of law; and (2) even if the arbitration

clauses were validly formed, they were unconscionable. Kendall timely appealed

the trial court’s non-final order.

                                     ANALYSIS

                                         3
I. Standard of Review

      The trial court’s entry of an order denying a motion to compel arbitration

“presents a mixed question of law and fact.” Fonte v. AT&T Wireless Servs., Inc.,

903 So. 2d 1019, 1023 (Fla. 4th DCA 2005) (citing Gainesville Health Care Ctr.,

Inc. v. Weston, 857 So. 2d 278, 283 (Fla. 1st DCA 2003)). We review the trial

court’s legal determinations and interpretations of contracts de novo, Basulto v.

Hialeah Auto., 141 So. 3d 1145, 1153 (Fla. 2014); Royal Palm Hotel Prop., LLC v.

Deutsche Lufthansa Aktiengesellschaft, Inc., 133 So. 3d 1108, 1110 (Fla. 3d DCA

2014), and presume that the trial court’s findings of fact are correct unless they are

clearly erroneous. See Basulto, 141 So. 3d at 1155.

      “[T]here are three elements for courts to consider in ruling on a motion to

compel arbitration of a given dispute: (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). Only the first element—whether the parties formed a valid written

agreement to arbitrate through the execution of the documents—is in dispute in the

instant case.

II. Whether a valid written agreement to arbitrate exists

      As stated above, the trial court made several findings of fact, and based on

those findings, it concluded as a matter of law that the parties did not form a valid

                                          4
agreement to arbitrate. As a threshold matter, we note that there is no dispute as to

any of the trial court’s factual findings except for the finding that, due to the

conflicts between the arbitration provisions, no reasonable person would have

understood that they were agreeing to arbitrate in the event of a dispute. In addition

to the dispute as to this factual determination, the trial court’s other factual findings

are relevant based on the facts of this case. Therefore, because the initial factual

findings are relevant to the issue of formation and may have influenced the trial

court’s analysis, we address those findings first.

      A. The relevance of the Buyers’ inability to read or write English

      The trial court found, inter alia, that there was no agreement to arbitrate

because the Buyers could not effectively communicate in English, and there was

no evidence that anyone attempted to explain the documents, and specifically, the

conflicting arbitration provisions to the plaintiffs. The trial court then likened the

instant case to the “Basulto” case which generated a circuit court order

memorialized in Basulto v. Hialeah Auto., L.L.C., 2007 WL 6623887 (Fla. Cir. Ct.

2007) (“Basulto I”); an opinion by this Court reviewing Basulto I, Hialeah Auto.,

LLC v. Basulto, 22 So. 3d 586 (Fla. 3d DCA 2009) (“Basulto II”); and an opinion

by the Florida Supreme Court, Basulto v. Hialeah Auto., 141 So. 3d 1145 (Fla.

2014) (“Basulto III”). A review of the trial court’s findings in Basulto I and the




                                           5
Florida Supreme Court’s opinion in Basulto III, however, demonstrates that the

trial court’s and the Buyers’ reliance on “Basulto” is misplaced.

      In Basulto I, the trial court found that the plaintiffs in that case did not

speak, read, or write English; the documents presented to them were all in English;

they were rushed into signing the documents; they were not given an opportunity

to ask any questions; Potamkin’s employees took it upon themselves “to explain

everything to the plaintiffs” but either failed to explain the arbitration provisions or

lacked a sufficient understanding to explain the arbitration provisions to the

plaintiffs; the plaintiffs signed the documents which contained conditions that

differed from what they were told were in the documents; and the dispute

resolution provisions within the documents were inconsistent and irreconcilable.

Based on these findings of fact, the trial court found that, as a matter of law, there

was no meeting of the minds and thus there was no valid agreement to arbitrate.

      In Basulto III, the Florida Supreme Court, citing to Tobin v. Michigan

Mutual Insurance Co., 948 So. 2d 692, 696 (Fla. 2006), held that the trial court’s

factual findings are presumptively correct and must be upheld unless clearly

erroneous. Basulto III, 141 So. 3d at 1155-56. The Court then held that the trial

court’s factual findings, as articulated above, were supported by the record. Id. at

1156. Lastly, the Court considered whether these factual findings supported the




                                           6
trial court’s legal determination that there was no meeting of the minds and thus no

valid formation of an agreement to arbitrate. Id. at 1156.

      In reaching the conclusion that the record supported the trial court’s

determination that there was no meeting of the minds, such that an enforceable

agreement to arbitrate did not exist, the Florida Supreme Court specifically relied

on its decision in Pepple v. Rogers, 140 So. 205, 208 (1932), and included in its

reference to Pepple the following parenthetical:

      The general rule is that in order for a misrepresentation to be ground
      for rescission and cancellation, it must be with reference to some
      material fact or thing, unknown to the complainant, either from his not
      having examined, or for want of opportunity to be informed, or from
      his entire confidence reposed in the defendant . . . .

Basulto III, 141 So. 3d at 1156. From the specific inclusion of this parenthetical in

its holding that the trial court’s finding that there was no meeting of the minds was

supported by the record, it is clear that the Florida Supreme Court’s holding was

premised, at least in part, by the misrepresentations made by Potamkin’s

employees to the plaintiffs.

      The trial court’s reliance on “Basulto” in the instant case is misplaced

because the facts in the instant case are totally dissimilar. In fact, the only fact the

instant case shares with “Basulto” is that the Buyers could not read or write

English and the forms they signed were in English. There is absolutely no evidence

in the record before this Court that the Buyers in the instant case were rushed,

                                           7
pressured, or coerced into signing the documents; that they were not given an

opportunity to ask questions or seek assistance in interpreting the documents; or

that they even attempted to understand what they were signing. Kendall’s

employees did not take it upon themselves “to explain everything to the plaintiffs,”

omit discussing the arbitration provisions, incorrectly explain what these

provisions meant, or misrepresent the effect of these provisions.

      Rather, the Buyers in the instant case have admitted that they signed the

documents in question without attempting to read them or learn what they were

agreeing to, with the exception of the financial terms, such as the costs, monthly

payments, etc. They did not tell anyone they could not read the documents they

were signing because they did not speak or read English, and there is no evidence

that Kendall’s employees were even aware that the Buyers could not and did not

read the documents. In fact the financial agreement specifically provided the

following statement directly above the Buyers’ signature line:

      You agree to the terms of this contract. You confirm that before you
      signed this contract, we gave it to you, and you were free to take it
      and review it. You acknowledge that you have read both sides of this
      contract, including the arbitration clause on the reverse side, before
      signing below. You confirm that you received a completely filled-in
      copy when you signed it.

We, therefore, conclude that “Basulto” does not control the analysis, and thus we

apply the general and longstanding legal principles regarding contract formation.



                                         8
      We begin that analysis with the well-established principle that one who

signs a contract is generally bound by the contract. In Allied Van Lines, Inc. v.

Bratton, 351 So. 2d 344, 347-48 (Fla. 1977), the Florida Supreme Court articulated

this principle of law in no uncertain terms:

      It has long been held in Florida that one is bound by his contract.
      Unless one can show facts and circumstances to demonstrate that he
      was prevented from reading the contract, or that he was induced by
      statements of the other party to refrain from reading the contract, it is
      binding. No party to a written contract in this state can defend against
      its enforcement on the sole ground that he signed it without reading it.

See also Spring Lake NC, LLC v. Holloway, 110 So. 3d 916, 917 (Fla 2d DCA

2013) (finding that although Ms. Holloway was 92 years old, had a fourth-grade

education, could not spell, often had to sound out words while reading, had

memory problems, was increasingly confused, and she “could not possibly have

understood what she was signing” when she signed a financial agreement

containing an arbitration agreement, she was nevertheless bound by the agreement

where there was no evidence that the admissions staff at Spring Lake used any

improper methods to obtain her signature or misled her, and that “[f]or better or

worse, her limited abilities are not a basis to prevent the enforceability of this

contract”); Rocky Creek Ret. Props, Inc. v. Estate of Fox, 19 So. 3d 1105, 1108

(Fla. 2d DCA 2009) (holding that a party is generally bound by a contract the party

signs unless he was prevented from reading the contract or induced by the other

party to refrain from reading it, and “[t]his is true whether a party is physically
                                          9
unable to read the agreement, or simply chooses not to read the agreement”)

(internal citation omitted); Estate of Etting ex rel. Etting v. Regents Park at

Aventura, Inc., 891 So. 2d 558, 558 (Fla. 3d DCA 2004) (affirming an order

compelling arbitration even though the party contesting arbitration was legally

blind at the time she signed the agreement containing the arbitration clause).

      In Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Benton, 467 So. 2d 311,

313 (Fla. 5th DCA 1985), the Fifth District Court of Appeal held;

      Persons not capable of reading English, as well as those who are, are
      free to elect to bind themselves to contract terms they sign without
      reading. . . . The burden is on the person who cannot read to know that
      he cannot read and if he desires to have an instrument read and
      explained to him to select a reliable person to do so before he signs it.

Thus, the Fifth District concluded that although the brokerage firm’s employee was

allegedly aware that Ms. Benton could not read English, the fact the employee did

not read or explain the contractual documents, which contained an arbitration

clause, to Ms. Benton was insufficient to invalidate the documents or to constitute

a defense to them, where Ms. Benton did not allege or testify that the firm

prevented her from reading the documents, induced her to refrain from reading

them, or prevented her from having them read to her by a reliable person of her

choice. Id. at 311.

      This Court was presented with a similar situation in Rivero v. Rivero, 963

So. 2d 934, 938 (Fla. 3d DCA 2007), wherein the former wife sought to avoid

                                         10
certain provisions in an executed marital settlement agreement based on her claim

that because she did not speak, read, or write English, she did not understand the

terms of the agreement, which were written in English. In rejecting Ms. Rivero’s

argument, this Court relied on Benton, specifically citing to the following quote:

      The rule that one who signs a contract is presumed to know its
      contents has been applied even to contracts of illiterate persons on the
      ground that if such persons are unable to read, they are negligent if
      they fail to have the contract read to them. If a person cannot read the
      instrument, it is as much his duty to procure some reliable person to
      read and explain it to him, before he signs it, as it would be to read it
      before he signed it if he were able to do so.

Rivero, 963 So. 2d at 938 (quoting Benton, 467 So. 2d at 313) (quoting Sutton v.

Crane, 101 So. 2d 823, 825 (Fla. 2d DCA 1958) (quoting 12 Am. Jur. Contracts §

137))); see also Keller v. Reed, 603 So. 2d 717, 720 (Fla. 2d DCA 1992) (holding

that “parties to a written instrument have a duty to learn and understand the

contents of that instrument before signing it”).

      Applying the law to the facts of the case before us, we conclude as follows.

Although the Buyers contend that they could not read the purchase order or the

financing agreement because they were in English and they could not read English,

the burden squarely rested on the Buyers to seek clarification of the terms of these

documents. The Buyers, however, failed to ask about the terms of the documents

they were signing, and nothing in the record suggests that Kendall misrepresented

the terms or prevented the Buyers from reading the documents. Instead, the Buyers

                                          11
blindly signed the purchase order and the financial agreement, willfully agreeing to

whatever the terms were. Therefore, we find that the trial court erred as a matter of

law by invalidating the arbitration agreement on this basis.

      B. Whether the alleged conflicts between the arbitration provisions
         contained in the purchase order and the financing agreement
         affected the Buyers’ ability to understand the terms.

      The Buyers contend, and the trial court found, that the arbitration provisions

contained in the documents are unenforceable because the terms and conditions of

the arbitration agreements “are in direct conflict with one another” and these

conflicts “are irreconcilable.” Of most concern to the trial court was the alleged

conflicts as to the dispute resolution terms, although the trial court, in conclusory

fashion and without elaboration, also listed several other perceived conflicts:

choice of law, rights of appeal, costs of arbitration, attorney fees, location of

arbitration, delegation of issues, and class actions.

      We begin our analysis by reiterating basic principles of law relevant here.

First, it is well-settled law that a single term in an arbitration clause cannot be

interpreted in isolation, but must be read together with the rest of the contract. Bari

Builders, Inc. v. Hovstone Props. Fla., LLC, 155 So. 3d 1160, 1162 (Fla. 4th DCA

2014) (“The arbitration clause must be read together with the other provisions in

the contract.”); Phoenix Motor Co. v. Desert Diamond Players Club, Inc., 144 So.

3d 694, 696 (Fla. 4th DCA 2014) (“Where two or more documents are executed by

                                          12
the same parties, at or near the same time, in the course of the same transaction,

and concern the same subject matter, they will be read and construed together.”)

(quoting Collins v. Citrus Nat’l Bank, 641 So. 2d 458, 459 (Fla. 5th DCA 1994))

(emphasis added). Importantly, the presence of additional dispute resolution

provisions will not, per se, create an irreconcilable conflict if the terms can be read

in a complementary fashion. See Bari Builders, 155 So. 3d at 1162.

      “A primary rule of contract construction is that where provisions in an

agreement appear to conflict, they should be construed so as to be reconciled, if

possible.” Arthur Rutenberg Corp. v. Pasin, 506 So. 2d 33, 34 (Fla. 4th DCA

1987). Thus, where the two arbitration clauses appear to be in conflict, or where an

arbitration clause appears to conflict with another provision of the contract, the

court must try to reconcile the conflicting provisions, just as it would do with any

other contract provision. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514

U.S. 52, 64 (1995) (harmonizing an arbitration clause with a choice-of-law

provision so as to resolve potential conflict as to the availability of punitive

damages in the arbitration proceeding); H.C. Lawton, Jr., Inc. v. Truck Drivers,

Chauffers & Helpers Local Union No. 384, 755 F.2d 324, 329 (3d Cir. 1985)

(reconciling seemingly conflicting provisions in recognition of the legal principles

“that all contractual provisions be read to make sense, and that arbitration be

favored”) (emphasis in original).

                                          13
      Thus, the trial court in the instant case was required to read the two

arbitration clauses in a complementary fashion in an attempt to resolve any conflict

so as to give effect to each term in the parties’ written agreements and to uphold

their agreement to arbitrate. Had the trial court done that, then it would have

discovered no actual conflict as to the Buyers’ obligation to arbitrate their claims

against Kendall.

      The arbitration provisions contained in the purchase order and the financing

agreement are as follows.

Purchase order:

      MEDIATION, ARBITRATION AND WAIVER OF TRIAL BY
      JURY: ANY CONTROVERSY OR CLAIM ARISING OUT OF
      OR RELATED TO THIS ORDER OR TO THE VEHICLE OR
      WITH RESPECT TO ANY CLAIM ARISING BY VIRTUE OF
      ANY REPRESENTATIONS ALLEGED TO HAVE BEEN
      MADE BY THE DEALER OR DEALER’S REPRESENTATIVE,
      SHALL BE SETTLED AND FINALLY DETERMINED BY
      MEDIATION OR BINDING ARBITRATION AS PROVIDED
      BY AND IN ACCORDANCE WITH THE FLORIDA
      ARBITRATION CODE. THIS ARBITRATION AGREEMENT
      IS TO BE INTERPRETED TO COVER ALL POTENTIAL
      CLAIMS ARISING IN TORT, CONTRACT, FLORIDA OR
      FEDERAL STATUTES, OR COMMON LAW, INCLUDING
      CLAIMS FOR PERSONAL INJURIES RESULTING FROM
      ALLEGED DEFECTS IN THE VEHICLE. The claim will first be
      submitted for non-binding mediation to a mediator certified by the
      Florida Supreme Court. If the parties are unable to agree upon a
      mediator, either party can petition the appropriate Miami-Dade
      County Court for the appointment of a mediator. If not resolved by
      mediation, the claim will be submitted to a single agreed upon
      arbitrator. If the parties are unable to agree upon an arbitrator, either
      party can petition the appropriate Miami-Dade County Court for the
                                         14
     appointment of an arbitrator. The parties agree that the final
     arbitration hearing shall take place within six months from the
     selection of any arbitrator. The arbitrator can extend the final hearing
     for an additional six months if he finds highly exceptional
     circumstances justifying such an extension. A judgment upon the
     award rendered by the arbitrator may be entered in any Miami-Dade
     County Court having jurisdiction of the matter. However, any disputes
     wherein the Purchaser or dealer seeks damages of less than $5000.00,
     excluding costs and attorneys’ fees, shall be resolved in the small
     claims court of Miami-Dade County. In the event that any such small
     claims suit is filed in a Miami-Dade County Court and an amendment
     to the pleadings or counterclaim results in a claim for damages in
     excess of $5000.00, then this binding arbitration shall apply and the
     parties agree to jointly dismiss or stay the small claims proceedings
     and proceed with the requirements of this paragraph. The cost of the
     mediation and arbitration proceedings shall be borne equally by
     Dealer and Purchaser. All mediation and arbitration proceedings are to
     take place physically in Miami-Dade County, Florida. IN THE
     EVENT THAT THE PARTIES MUTUALLY AGREE IN
     WRITING TO AVOID ARBITRATION OR IF A COURT OF
     COMPETENT JURISDICTION DETERMINES THAT A
     PARTICULAR DISPUTE BETWEEN THE PARTIES IS NOT
     SUBJECT TO THIS ARBITRATION PROVISION AND IT
     BECOMES NECESSARY FOR EITHER PARTY TO
     LITIGATE A DISPUTE BETWEEN THE PARTIES, THEN, IN
     THAT EVENT, THE PARTIES HEREBY MUTUALLY WAIVE
     THEIR RIGHT TO A TRIAL BY JURY, AND AGREE THAT
     ANY SUCH LITIGATION SHALL BE IN A COURT OF
     COMPETENT JURISDICTION LOCATED IN MIAMI-DADE,
     COUNTY, FLORIDA. In any mediation arbitration or litigation
     proceedings between the parties, the prevailing party shall be entitled
     to recover reasonable attorneys’ fees, and, in the event [sic] litigation,
     the cost of litigation on all levels including any appeals.


Financing agreement:

                    ARBITRATION CLAUSE
          PLEASE REVIEW – IMPORTANT - AFFECTS YOUR
                       LEGAL RIGHTS
                                        15
1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY
   DISPUTE BETWEEN US DECIDED BY ARBITRATION AND
   NOT IN COURT OR BY JURY TRIAL.
2. IF A DISPUTE IS ARBITRATED, YOU WILL GIVE UP YOUR
   RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE
   OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY
   HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS
   ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL
   ARBITRATIONS.
3. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION
    ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT,
    AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE
    IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.

Any claim or dispute, whether in contract, tort, statute or otherwise
(including the interpretation and scope of this Arbitration Clause, and
the arbitrability of the claim or dispute), between you and us or our
employees, agents, successors or assigns, which arises out of or
relates to your credit application, purchase or condition of this vehicle,
this contract or any resulting transaction or relationship (including any
such relationship with third parties who do not sign this contract)
shall, at your or our election, be resolved by neutral binding
arbitration and not by a court action. If federal law provides that a
claim or dispute is not subject to binding arbitration, this Arbitration
Clause shall not apply to such claim or dispute. Any claim or dispute
is to be arbitrated by a single arbitrator on an individual basis and not
as a class action. You expressly waive any right you may have to
arbitrate a class action. You may choose one of the following
arbitration organizations and its applicable rules: the National
Arbitration Forum, Box 50191, Minneapolis, MN 55405-0191
(www.arbforum.com), the American Arbitration Association, 335
Madison Ave., Floor 10, New York, NY 10017-4605 (www.adr.org),
or any other organization that you may choose subject to our approval.
You may get a copy of the rules of these organizations by contracting
the arbitration organization or visiting its website.

Arbitrators shall be attorneys or retired judges and shall be selected
pursuant to the applicable rules. The arbitrator shall apply governing
substantive law in making an award. The arbitration hearing shall be
conducted in the federal district in which you reside unless the
                                   16
Creditor-Seller is a party to the claim or dispute, in which case the
hearing will be held in the federal district where this contract was
executed. We will advance your filing, administration, service or case
management fee and your arbitrator or hearing fee all up to a
maximum of $2500, which may be reimbursed by decision of the
arbitrator at the arbitrator’s discretion. Each party shall be responsible
for its own attorney, expert and other fees, unless awarded by the
arbitrator under applicable law. If the chosen arbitration
organization’s rules conflict with this Arbitration Clause, then the
provisions of this Arbitration Clause shall control. The arbitrator’s
award shall be final and binding on all parties, except that in the event
the arbitrator’s award for a party is $0 or against a party is in excess of
$100,000, or includes an award of injunctive relief against a party,
that party may request a new arbitration under the rules of the
arbitration organization by a three-arbitrator panel. The appealing
party requesting new arbitration shall be responsible for the filing fee
and other arbitration costs subject to a final determination by the
arbitrators of a fair apportionment of costs. Any arbitration under this
Arbitration Clause shall be governed by the Federal Arbitration Act (9
U.S.C. § 1 et. seq.) and not by any state law concerning arbitration.

You and we retain any rights to self-help remedies, such as
repossession. You and we retain the right to seek remedies in small
claims court for disputes or claims within that court’s jurisdiction,
unless such action is transferred, removed or appealed to a different
court. Neither you nor we waive the right to arbitrate by using self-
help remedies or filing suit. Any court having jurisdiction may enter
judgment on the arbitrator’s award. This Arbitration Clause shall
survive any termination, payoff or transfer of this contract. If any part
of this Arbitration Clause, other than waivers of class action rights, is
deemed or found to be unenforceable for any reason, the remainder
shall remain enforceable. If a waiver of class action rights is deemed
or found to be unenforceable for any reason in a case in which class
action allegations have been made, the remainder of this Arbitration
Clause shall be unenforceable.




                                    17
       We now address each of the “irreconcilable conflicts” identified by the trial

court. We begin with the conflict which the trial court found was especially

“problematic” and the only conflict specifically addressed in the trial court’s order.

       1. The obligation to arbitrate and waiver of a jury trial

       A review of the purchase order reflects that it requires that all claims for

damages in excess of $5,000 be submitted for non-binding mediation, and if they

are not resolved by mediation, they are to be resolved by binding arbitration unless

both parties agree in writing to avoid arbitration or the court determines that the

dispute is not subject to arbitration. In the event the dispute is litigated, the parties

waive their right to a jury trial.

       The financing agreement provides for arbitration if either party so elects (in

other words unless both sides agree not to arbitrate the dispute). Although the

financing agreement could be read to allow for a jury trial if the dispute is not

submitted for binding arbitration, this potential conflict is totally irrelevant to the

instant analysis because it is undisputed that Kendall has demanded binding

arbitration, and therefore, under both the purchase order and the financing

agreement, the Buyers must resolve their claims by binding arbitration, which

obviously precludes any consideration of a jury trial. Because Kendall has

demanded arbitration, there clearly is no “irreconcilable” conflict between the two

arbitration provisions.

                                           18
      We also find no irreconcilable conflict between the requirement in the

purchase order to submit all claims to non-binding mediation prior to submitting

the claims to binding arbitration unless the parties agree in writing to avoid

arbitration, and the financing agreement, which contains no such requirement.

Because the purchase order requires non-binding mediation, the purchase order and

financing agreement, when read together, require non-binding mediation. There is

no irreconcilable conflict between them. Although none of the parties have asked

to submit the claims to non-binding mediation, they were certainly permitted to do

so. Thus, if any of the parties had invoked his, her, or its right to non-binding

mediation under the purchase order, that request likely would have been granted.

However, we note that, as with arbitration clauses, mediation can be waived.

DVDPlay, Inc. v. DVD 123 LLC, 930 So. 2d 816, 820 n.2 (Fla. 3d DCA 2006)

(stating that a party waived mediation because, although the contract contained an

enforceable mediation clause, the party “never sought to judicially compel

mediation, and instead it filed a lawsuit”); see also Coastal Sys. Dev., Inc. v.

Bunnell Found., Inc., 963 So. 2d 722, 724 (Fla. 3d DCA 2007) (“A party who

actively participates in a lawsuit waives the right to arbitration.”); Morrell v.

Wayne Frier Manufactured Home Ctr., 834 So. 2d 395, 397-98 (Fla. 5th DCA

2003). Because none of the parties have requested non-binding mediation, we




                                       19
decline to express an opinion as to whether the contractual right to mediation has

been waived.

      Thus, there is clearly no irreconcilable conflict between the purchase order

and the financing agreement precluding the enforcement of the arbitration

provisions contained in these two documents and to which all of the parties have

agreed.

      2. The choice of law provisions

      The purchase order provides that arbitration is to be “in accordance with the

Florida Arbitration Code.” The financing agreement provides that the Buyers may

choose any of the following arbitration organizations and its applicable rules to

arbitrate their claims: the National Arbitration Forum, the American Arbitration

Association, or any other organization subject to Kendall’s approval. Further, any

arbitration under the arbitration clause shall be governed by the Federal Arbitration

Act (9 U.S.C. §1 et. seq.) and not by any state law concerning arbitration.

      While, at first blush, it would appear that the two choice of law provisions

are in conflict, had the trial court attempted, as it was required, to resolve the

conflict, it would have actually discovered that these two provisions are not in

conflict. First, as the Florida Supreme Court has said not once, but twice, “[i]n

Florida, an arbitration clause in a contract involving interstate commerce is subject

to the [FAC], to the extent that the FAC is not in conflict with the FAA.” Visiting

                                         20
Nurse Ass’n of Fla., Inc., 154 So. 3d 1115, 1124-25 (Fla. 2014); see also Shotts v.

OP Winter Haven, Inc., 86 So. 3d 456, 463-64 (Fla. 2011); CT Miami, LLC v.

Samsung Elec. Latinoamerica Miami, Inc., 201 So. 3d 85, 90 n.3 (Fla. 3d DCA

2015) (acknowledging the Florida Supreme Court’s opinion in Shotts and finding

that although the FAC governs the proceedings to the extent it does not directly

conflict with the FAA, “[t]he sections of the FAC and FAA relevant to the

determination of this appeal, however, are virtually identical,’ . . . so the

determination is not dispositive of the case at bar”).

      As in CT Miami, this Court recognizes the Florida Supreme Court’s

holdings in Shotts, 86 So. 3d at 463, and Visiting Nurse Ass’n of Florida, 154 So.

3d at 1224-25, and notes that although the FAA controls when a transaction

involves interstate commerce, “[i]n Florida, an arbitration clause in a contract

involving interstate commerce is subject to the [FAC], to the extent the FAC is not

in conflict with the FAA.” Shotts, 86 So. 3d at 463. However, whether the FAA

or FAC controls in the instant case is not determinative of whether there exists

irreconcilable conflict between the purchase order and the financing agreement

because we find, as this Court found in CT Miami, “[t]he sections of the FAC and

FAA relevant to the determination of this appeal, however, are ‘virtually

identical.’” CT Miami, 201 So. 3d at 90 n.3. Thus, our decision is in no way

based on a finding of preemption. Rather, our finding is based on the failure of the

                                          21
Buyers to demonstrate any irreconcilable differences between the FAC and the

FAA relevant to this case.

      Although the Buyers argued that there were three specific irreconcilable

differences between the FAC and the FAA, our review demonstrates that these

specific provisions are not in conflict. First, the Buyers attempt to show a conflict

between certain provisions of the Revised Florida Arbitration Code (the “RFAC”)

and the FAA. However, the arbitration agreements at issue in this case were

entered into in 2008 and 2011. (Kendall sold Dayron Ortega a new automobile in

2008, and sold Erislandis Marquez and Dianellys Y. Diaz a used automobile in

2011). The RFAC “governs an agreement to arbitrate made on or after July 1,

2013.” § 682.013, Fla. Stat. (2016); see also CT Miami, 201 So. 3d at 91 (noting

that “the parties correctly agree that the pre-2013 version of the [FAC] applies

because the contract at issue was drafted and signed in 2009”). Because the

arbitration agreements at issue in this case were entered into prior to July 1, 2013,

the Buyers’ reliance on the RFAC in an attempt to find a conflict between the FAC

and the FAA is misplaced.

      The Buyers’ second argument—that the FAC and the FAA provide different

time limitations in which to file an application to modify or correct an award is

incorrect. Both the FAA and the FAC provide for a three-month time limit to




                                         22
modify or correct an award. See 9 U.S.C. § 12; §§ 682.13(2), 682.14 (1), Fla. Stat.

(2012).

      Lastly, the Buyers contend that because the FAC does not allow for a waiver

of representation, and the FAA is silent on this issue, there is an irreconcilable

difference between the two. However, because the FAA is silent as to this issue,

the FAC controls and there is no conflict.

      A review of the relevant provisions of the FAC and the FAA demonstrates

that they are substantively nearly identical. Because the Buyers have not identified

any relevant irreconcilable differences between the FAC and the FAA, there is no

conflict between the choice of law provisions in the purchase order and the

financing agreement. There is no conflict to resolve, and certainly no justification

for invalidating the arbitration provisions contained in the documents the Buyers

signed when they purchased their automobiles from Kendall.

      3. Location of the arbitration

      The purchase order provides that all mediation and arbitration proceedings

are to take place in Miami-Dade County. The financing agreement states that the

arbitration hearing shall be conducted in the federal district in which the Buyers

reside unless the “Creditor-Seller” (which in this case is Kendall) is a party to the

claim or dispute, in which case, the hearing will be held in the federal district

where the contract was executed.

                                         23
      As is readily obvious, these two provisions, under the facts of this case do

not conflict and are easily harmonized. The contracts in question were executed in

Miami-Dade County, which is in the federal Southern District of Florida, and is

where the Buyers filed their lawsuit against Kendall.

      4. Delegation of issues

      “The delegation provision is an agreement to arbitrate threshold issues

concerning the arbitration agreement.” Rent-A-Center, W., Inc. v. Jackson, 561

U.S. 63, 69 (2010). The financing agreement authorizes the arbitrator to decide

“the interpretation and scope of the Arbitration Clause, and the arbitrability of the

claim or disputes.” The purchase order, on the other hand, is silent. Thus, there is

no conflict between the purchase order and the financing agreement on the issue of

delegation. More importantly, because there is no dispute in this case that the

Buyers’ claims fall within the scope of the broad arbitration provisions, there is

certainly no “irreconcilable conflict.”

      5. Class actions

      Although the financing agreement expressly bars class action proceedings

and the purchase order is silent as to class actions, this does not create an

“irreconcilable conflict” as the trial court found. Had the trial court attempted to

harmonize the two provisions and resolve potential conflict, it would have

discovered that under the FAA “a party may not be compelled . . . to submit to

                                          24
class arbitration unless there is a contractual basis for concluding that the party

agreed to do so.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 684

(2010); see also Anderson v. Maronda Homes, Inc. of Fla., 98 So. 3d 127, 130

(Fla. 2d DCA 2012) (Larose, J., concurring) (“Assent to class arbitration is needed;

agreement cannot be inferred from silence.”). Because the financing agreement

expressly bars class action proceedings and, in the purchase order, the parties did

not expressly agree to permit class actions, then under both documents, class

actions are not permitted.

      6. Cost of arbitration

      The purchase order provides that the cost of the mediation and the

arbitration proceedings shall be borne equally by Kendall and the Buyers. In the

financing   agreement,       Kendall   agreed   to   advance   the   Buyers’   “filing,

administration, service or case management fee and the [Buyers’] arbitrator or

hearing fee” up to $2500, which, at the discretion of the arbitrator, may be

reimbursable. As Kendall aptly noted, “[t]hese provisions can be reconciled by

requiring the Dealer to advance the fees of arbitration up to a maximum of $2500

before requiring that the Dealer and the Purchaser bear the remaining costs of

arbitration equally.” Thus, there is clearly no “irreconcilable conflict.”

      7. Right to appeal




                                           25
      As a matter of law, there is no right to appeal the merits of an arbitrator’s

award. See Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 588-90 (2008).

An arbitrator’s award may be set aside on very limited statutory grounds. See id.

Both arbitration provisions provide for arbitration by a single arbitrator. The

financing agreement contains a provision that in the event the arbitrator’s award is

$0 or in excess of $100,000, or it includes an award granting injunctive relief, then

a party may request a new arbitration by a three-arbitrator panel. Thus, under

Mastrobuono, 514 U.S. at 64; H.C. Lawton, Jr., Inc., 755 F.2d at 329; and Arthur

Rutenberg Corp., 506 So. 2d at 34, the trial court was required to harmonize the

two arbitration clauses and conclude that because the purchase order was silent as

to this issue, and the parties agreed to this procedure in the financing agreement,

then the parties agreed to the procedure. As such, there is no “irreconcilable

conflict.”

      8. Attorney’s fees

      The purchase order provides that the prevailing party shall be entitled to

recover reasonable attorney’s fees; whereas the financing agreement provides that

each party shall be responsible for its own attorney’s fees “unless awarded by the

arbitrator under applicable law,” and “the arbitrator shall apply governing

substantive law in making an award.” Since FDUPTA entitles the prevailing party




                                         26
to recover its fees, see § 501.2105, Fla. Stat. (2012), there is no conflict, let alone

“irreconcilable conflict.”

      We also specifically note that under basic contract principles, conflicts

within the written agreement are to be construed against the drafter, which in this

case is Kendall. Goodwin v. Blu Murray Ins. Agency, Inc., 939 So. 2d 1098, 1102

(Fla. 5th DCA 2006) (“To the extent any ambiguity exists in the interpretation of

the contract, it will be strictly construed against the drafter.”); Tannen v. Equitable

Life Ins. Co. of Washington, D.C., 303 So. 2d 352, 355 (Fla. 3d DCA 1974)

(stating that “any ambiguity of language within the contract will be strictly

construed against the party who chose the language and drafted the contract”).

Thus, for example, if there was a conflict between the two arbitration provisions as

to whether the prevailing party was entitled to its fees, which could not be

reconciled, then that conflict must be construed in favor of the Buyers. But

whether the prevailing party will be entitled to its fees also is not relevant to the

issue of whether there exists a valid agreement to arbitrate. This is typically an

issue to be resolved by the arbitrator.

      In sum, had the trial court actually scrutinized the two arbitration clauses,

and attempted to harmonize them as it was required to do, it would have

discovered no irreconcilable conflict so as to vitiate the Buyers’ agreement to

arbitrate their claims against Kendall.

                                          27
      We also cannot ignore the fact that in this case, the Buyers are seeking

avoidance of the arbitration clause contained in the contracts they signed without

attempting to read or learn what provisions they were agreeing to, other than the

financial terms associated with the purchase of their vehicles. They are not

claiming that they were confused by their own interpretation of the terms contained

in the arbitration clauses or that their interpretation differed from that explained by

Kendall’s employees when they signed the documents. In other words, these

particular plaintiffs do not claim they were confused or misled by the terms, nor

can they, because they did not attempt to learn what the terms were. They did not

attempt to read them, tell anyone they could not read them, ask any questions, ask

that the documents be read to them, or ask anyone to explain them. They also

admit that no one attempted to explain the documents to them (other than the

financial terms) and therefore no one omitted an explanation of the arbitration

clauses or misrepresented what they provided. Instead, the Buyers blindly signed

the documents willfully agreeing to whatever the terms were and specifically

acknowledged that they had read both sides of the documents, including the

arbitration clauses before signing, and that they were agreeing to the terms of the

documents.

III. Unconscionability




                                          28
      The trial court additionally found that the terms of the arbitration clauses

were unconscionable. We highlight that the party seeking to avoid arbitration has

the burden to prove both procedural and substantive unconscionability. Murphy v.

Courtesy Ford, L.L.C., 944 So. 2d 1131, 1134 (Fla. 3d DCA 2006). “[W]hile both

elements must be present, they need not be present to the same degree.” Basulto

III, 141 So. 3d at 1159. Procedural unconscionability deals with whether, given the

totality of the circumstances, the parties had a meaningful choice to refuse the

contract terms. DePrince v. Starboard Cruise Servs., Inc., 163 So. 3d 586, 595 (Fla.

3d DCA 2015). Substantive unconscionability deals with the reasonableness of

those terms. Murphy, 944 So. 2d at 1134.

      While a contract of adhesion could indicate procedural unconscionability in

some circumstances, “the presence of an adhesion contract alone does not require a

finding of procedural unconscionability.” VoiceStream Wireless Corp. v. U.S.

Commc'ns, Inc., 912 So. 2d 34, 40 (Fla. 4th DCA 2005); see also AT&T Mobility

LLC v. Concepcion, 563 U.S. 333, 346-47 (2011) (stating that “the times in which

consumer contracts were anything other than adhesive are long past”). It is

important to inquire into additional surrounding circumstances, such as whether a

party could obtain the desired product or services elsewhere, whether one party

pressured or rushed the other into signing a contract, or whether the party was

otherwise precluded from inquiring into the terms of the agreement. See DePrince,

                                        29
163 So. 3d at 595; Fonte, 903 So. 2d at 1026-27; Orkin Exterminating Co. v.

Petsch, 872 So. 2d 259, 265 (Fla. 2d DCA 2004); Gainesville Healthcare Ctr., 857

So. 2d at 285-288 (holding that the trial court’s findings were insufficient to prove

procedural unconscionability where the contract was pre-printed, the plaintiff did

not understand the terms of the contract, and no one explained the terms to the

plaintiff).

       The trial court found that the arbitration clauses were procedurally

unconscionable because: (1) the terms of the arbitration clauses in the purchase

order and the financing agreement conflicted, such that there was no meaningful

disclosure of the terms by which the Buyers would be bound; (2) the contracts

containing the arbitration clauses were offered on a “take-it-or-leave-it” basis, such

that the Buyers had no meaningful choice or opportunity to negotiate the terms;

and (3) Kendall failed to explain the arbitration provisions to the Buyers in

Spanish.

       For the reasons we have already discussed, the terms of the arbitration

clauses in the purchase order and the financing agreement did not irreconcilably

conflict and Kendall was not required to explain the arbitration clauses to the

Buyers in Spanish. Thus, because the Buyers had a full and fair opportunity to

inquire into the terms of the documents, and they declined to do so, they will not




                                         30
now be able to escape the binding effect of their unequivocal assent to the

arbitration clauses by claiming that Kendall did not explain the terms.

      The trial court’s remaining justification, that the arbitration agreement was

offered on a “take-it-or-leave-it” basis, is on these facts insufficient to prove that

the   Buyers’   execution    of   the   arbitration   agreement   was     procedurally

unconscionable. See Concepcion, 563 U.S. at 346-47 (holding that “the times in

which consumer contracts were anything other than adhesive are long past”); Cruz

v. Cingular Wireless, LLC, 648 F.3d 1205, 1214-15 (11th Cir, 2011) (rejecting

unconscionability challenges based on class waiver, small venue claims, and the

adhesive nature of form contracts); Spring Lake NC, 110 So. 3d at 918

(recognizing the role of standardized contracts and that most contracts are no

longer individually negotiated and handwritten). Because the Buyers failed to

prove any degree of procedural unconscionability, we conclude that the arbitration

agreements contained in the purchase order and financing agreement are not

unconscionable.

                                  CONCLUSION

      We find that, as a matter of law, each of the trial court’s alternative findings

for denying Kendall’s motion to compel arbitration are flawed. Because the Buyers

did not attempt to learn what the documents they were signing said or meant by

reading them, requesting that they be read or explained to them, or ask any

                                          31
question to educate themselves as to the terms; there is no evidence that the Buyers

were rushed, pressured, or coerced into signing the documents; there is no

evidence that Kendall’s employees took it upon themselves to explain the

documents and then either omitted mentioning the arbitration provisions or

misrepresented the meaning of those provisions; and the arbitration provisions in

the purchase order and financing agreement did not irreconcilably conflict, the trial

court erred by finding that there was no valid agreement to arbitrate. We also reject

the trial court’s finding of procedural unconscionability. Accordingly, we reverse

the trial court’s order denying Kendall’s motion to compel arbitration and remand

for proceedings consistent with this opinion.

      Reversed and remanded.




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