Bellsouth Mobility LLC v. Christopher, 4D01-2485.
| Decision Date | 08 May 2002 |
| Docket Number | No. 4D01-2485.,4D01-2485. |
| Citation | 819 So.2d 171 |
| Parties | BELLSOUTH MOBILITY LLC, Appellant, v. Daniel J. CHRISTOPHER, on behalf of himself and a class of similarly situated persons, Appellee. |
| Court | Florida District Court of Appeals |
John R. Hargrove and W. Kent Brown of Heinrich Gordon Hargrove Weihe & James, P.A., Fort Lauderdale, for appellant.
Lawrence S. Klitzman of Law Offices of Lawrence S. Klitzman, P.A., Coconut Grove; Jonah Orlofsky of Law Offices of Jonah Orlofsky, and David Schachman of Law Offices of David Schachman, Chicago, Illinois, for appellee.
Bellsouth Mobility LLC ("Bellsouth") appeals from a non-final order denying its motion to dismiss or compel arbitration. We reverse.
The contract also provided that the arbitrator could not award punitive damages and limited recovery by the customer to actual damages. It further precluded class action relief.
Bellsouth moved to dismiss the suit and compel arbitration. The court denied Bellsouth's motion on the ground that the arbitration provision was unconscionable because, among other reasons, Christopher had no true ability to bargain, it was not practical for him to seek another provider of services, and it prevented Christopher from seeking punitive damages, injunctive or declaratory relief, or class relief. Other than the contract at issue, no evidence was presented to support these findings.
Although it is undisputed that this action is subject to the arbitration provision of the contract at issue, Bellsouth disputes that the provision is unconscionable. Courts may properly decline to enforce a contract on the ground that it is procedurally and substantively unconscionable. Powertel, Inc. v. Bexley, 743 So.2d 570 (Fla. 1st DCA 1999), rev. den., 763 So.2d 1044 (Fla.2000). Procedural unconscionability "relates to the manner in which the contract was entered and it involves consideration of such issues as the relative bargaining power of the parties and their ability to know and understand the disputed contract terms." Id. at 574. A court might find that a contract is procedurally unconscionable if important terms were "hidden in a maze of fine print and minimized by deceptive sales practices." Id. (citation omitted); see also Kohl v. Bay Colony Club Condominium, Inc., 398 So.2d 865, 868 (Fla. 4th DCA)
("Under the `procedural' rubric come those factors bearing upon ... the `real and voluntary meeting of the minds' of the contracting parties: age, education, intelligence,...
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...that “[a]rbitrators can award the same damages and relief that a court can award.” Doc. 56–1 at 74, ¶ 13. In Bellsouth Mobility LLC v. Christopher, 819 So.2d 171 (Fla.App.2002), on which Bollinger has also relied, the state appellate court found the arbitration clause was substantively unco......
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