MASSAGE ENVY FRANCHISING, LLC vs JANE DOE, MEWG, LLC D/B/A MASSAGE ENVY AND LEN STUART OLAH

• Court: District Court of Appeal of Florida
• Decided: May 27, 2022
• Docket: 20-1794
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

MASSAGE ENVY FRANCHISING, LLC,

Appellant,

v. Case No. 5D20-1794 LT Case No. 2019-CA-13886

JANE DOE, MEWG, LLC D/B/A MASSAGE ENVY AND LEN STUART OLAH,

Appellees.

________________________________/

Opinion filed May 27, 2022

Nonfinal Appeal from the Circuit Court for Orange County, John M. Kest, Judge.

Diane G. DeWolf, of Akerman LLP, Tallahassee, and Sara A. Brubaker, of Akerman LLP, Orlando, and Robert Atkins, of Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York, Pro Hac Vice for Appellant

Thomas J. Seider, of Brannock Humphries & Berman, Tampa, and Joseph G. Alvarez, of Alvarez Injury Law, PLLC, Tampa, for Appellee, Jane Doe. No appearance for Other Appellees.

HARRIS, J.

Massage Envy Franchising, LLC (“Massage Envy”) appeals the trial

court’s Order Denying its Motion to Stay Litigation and Compel Arbitration,

arguing that a valid agreement to arbitrate exists between it and Appellee,

Jane Doe. We agree that the trial court erred in concluding that no valid

agreement to arbitrate exists and reverse.

In early 2018, Doe visited a Massage Envy franchise located in Winter

Garden, Florida (“MEWG”), for the purpose of obtaining a massage. A few

months after her appointment Doe filed a multi-count complaint against

Massage Envy, MEWG, and her massage therapist, Len Stuart Olah,

claiming that Olah sexually assaulted her during her massage at MEWG.

Massage Envy responded to the complaint by filing a motion to stay litigation

and to compel arbitration, alleging that Doe entered into a binding contract in

which she agreed to submit all disputes against Massage Envy to an arbitrator

rather than to a court.

The facts involved in this appeal are not in dispute. On the day Doe

checked in for her massage appointment, MEWG provided her with an

electronic tablet that contained an application through which Doe completed

various intake forms. These forms included a section called “My Consent”

2 which in turn contained a sub-heading labeled “General Consent.” At the end

of the General Consent section was a checkbox next to the statement “I agree

and assent to the Terms of Use Agreement.”

The phrase “Terms of Use Agreement” was underlined and in a

contrasting font color, characteristic of a hyperlink. This hyperlink, when

clicked, displayed a sixteen-page Terms of Use Agreement (“TOU”) in a scroll

box, thus providing Doe with the opportunity to read the agreement in full

before clicking her assent to the TOU. At the top of the TOU is a notice printed

in bold, all capital letters, clearly and conspicuously stating that the

agreement contains a binding arbitration provision. We find that the format of

the agreement and the language utilized sufficiently described and

referenced the TOU in a way that the intent of the parties to enter into the

agreement, including that they would arbitrate any disputes, can be

ascertained, and we disagree with the trial court’s contrary conclusion.

Furthermore, it is uncontroverted that Doe completed the intake forms

and that in order to do so, the checkbox agreeing to the TOU had to be

clicked. In fact, Doe does not dispute that she clicked the box without first

clicking the hyperlink. She argues that she was not on notice that, by clicking

the box, she was actually agreeing to the TOU, with the arbitration provision,

3 rather than the “My Consent” forms that preceded the TOU reference. We

find Doe’s argument unpersuasive.

When ruling on a motion to compel arbitration a court must consider

three elements: “(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 is at issue in this appeal.

Because arbitration agreements are contracts, ordinary state law

principles of contract formation apply. Phx. Motor Co. v. Desert Diamond

Players Club, Inc., 144 So. 3d 694, 696 (Fla. 4th DCA 2014). The parties

disagree as to the proper law to apply in enforcing the arbitration provision.

Massage Envy argues that Arizona law applies, pursuant to the terms of the

Governing Law and Jurisdiction provision of the TOU agreement, while Doe

argues that Florida law applies in first determining whether a valid contract

exists because the agreement was formed in Florida. Applying the law of

either jurisdiction compels the same outcome. In both Arizona and Florida, a

contract cannot be formed without the parties’ mutual assent to the essential

terms of the agreement. See also Muchesko v. Muchesko, 955 P.2d 21, 24

(Ariz. Ct. App. 1997). While arbitration provisions are generally favored by

4 the courts, “no party may be forced to submit a dispute to arbitration that the

party did not intend and agree to arbitrate.” Seifert, 750 So. 2d at 636.

With respect to online or electronic contracts, such as the one here,

there are at least two types of agreements: browsewrap and clickwrap.

Vitacost.com, Inc. v. McCants, 210 So. 3d 761, 762 (Fla. 4th DCA 2017). A

browsewrap agreement occurs when a website provides a link to the terms

and conditions and does not require the user to click an acknowledgement

during the checkout process. Id. The user may complete the transaction

without visiting the page containing the terms and conditions. Id.

Browsewrap agreements are only enforced when the hyperlink to the terms

and conditions is “conspicuous enough to put a reasonably prudent person

on inquiry notice.” Id.

Conversely, a clickwrap agreement occurs when a website directs a

purchaser or user to the terms and conditions of the sale and requires the

user to click a box to acknowledge that they have read those terms and

conditions. See id. These agreements are generally enforceable. Id.

Here, as Doe properly concedes, the agreement was a clickwrap

agreement because she was required to click a box stating, “I agree and

assent to the Terms of Use Agreement,” which attached the TOU via

hyperlink. As previously indicated, had Doe clicked on the hyperlink, she

5 would have been immediately directed to the TOU, which placed her on

conspicuous notice on its first page of the provision binding her to arbitrate

any disputes with Massage Envy. See MetroPCS Commc’ns v. Porter, 273

So. 3d 1025 (Fla. 3d DCA 2018) (concluding that providing hyperlink to terms

and conditions at end of short text messages to customer was sufficient to

put customer on inquiry notice of arbitration provision contained in terms and

conditions). Doe’s failure to read the TOU is of no consequence. See Sapp

v. Warner, 141 So. 124, 127 (Fla. 1932) (“[A] person has no right to shut his

eyes or ears to avoid information and then say that he has no notice.”).

Accordingly, because the TOU immediately followed the “My Consent”

forms, was attached via hyperlink, and Doe was directed to give her assent

to the TOU by checking the “I agree” box, we conclude that Doe was put on

sufficient notice of its terms and conditions, including the binding arbitration

condition, and that she manifested her assent to those terms and conditions

by affirmatively clicking the box where indicated, thus creating a valid

agreement. We therefore reverse the order denying Massage Envy’s Motion

to Stay Litigation and to Compel Arbitration and remand this matter to the

trial court with instructions to grant that motion.

REVERSED and REMANDED, with instructions.

LAMBERT, C.J., and TRAVER, J., concur.