M.P. v. GUIRIBITEY COSMETIC & BEAUTY INSTITUTE, INC., etc.

• Court: District Court of Appeal of Florida
• Decided: October 4, 2023
• Docket: 2022-1927
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 4, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1927 Lower Tribunal No. 22-755 ________________

M.P., Appellant,

vs.

Guiribitey Cosmetic & Beauty Institute, Inc., etc., et al., Appellees.

An appeal from a non-final order from the Circuit Court for Miami-Dade County, Maria de Jesus Santovenia, Judge.

Twig, Trade, & Tribunal, PLLC and Morgan L. Weinstein (Fort Lauderdale), for appellant.

Lalchandani Simon PL, Kubs Lalchandani, and Bibiana Pesant, for appellee Guiribitey Cosmetic & Beauty Institute, Inc., d/b/a CG Cosmetic Surgery.

Before EMAS, LINDSEY, and MILLER, JJ.

MILLER, J. Appellant, M.P., challenges a final order compelling arbitration and

dismissing her lawsuit against appellees, Guiribitey Cosmetic & Beauty

Institute, Inc. d/b/a CG Cosmetic Surgery and Decio A. Carvalho, M.D. (the

“Medical Providers”). On appeal, the assertion of error is threefold: (1) the

arbitration agreement M.P. signed in anticipation of her surgery is

unenforceable on the grounds of unconscionability and duress; (2) the claims

set forth in the complaint are not arbitrable; and (3) dismissal was improper

under the Revised Florida Arbitration Code. See ch. 682, Fla. Stat. (2022).

Observing Florida’s longstanding public policy encouraging the cost-effective

and expeditious resolution of disputes through arbitration, we affirm on all

grounds, save the third.

BACKGROUND

M.P. scheduled outpatient, elective cosmetic surgery with the Medical

Providers. Weeks before the surgery, she received and paid an invoice for

a nonrefundable deposit. The invoice contained choice of law and venue

provisions “subject to any dispute resolution agreements between the

parties.”

On the eve of the surgery, M.P. received a forty-nine-page

personalized surgical packet. Included among the documents were two

2 forms. The first, labeled “Consent to Taking and Publication of

Photographs,” contained the following language:

The use of photographs is essential to the planning and evaluation of cosmetic and reconstructive surgery. Your surgery will be photographically documented before, possibly during and after the procedure. . . .

....

The photographs may be used (anonymously) included and not limited to television, interviews, programs produced for cable TV, on the Internet, social media Facebook, Instagram, Snapchat or other media, for marketing, educational or promotional materials.

In multiple places, the document allowed the patient to decline or qualify the

scope of consent. M.P. did not avail herself of this opportunity and instead

signed the form.

The second form, entitled “Patient Arbitration Agreement,” spanned

three pages and consisted of an introduction and five articles. The

introduction expressly conditioned the provision of surgical services on the

execution of the agreement. The first article provided, in pertinent part:

“Patient hereby agrees and understands that, except as specifically set forth

in paragraph (b) below, any and all claims arising out of or related to the

relationship between Company and Patient will be determined by submission

to arbitration as provided by the Florida Arbitration Code, Chapter 682,

3 Florida Statutes.” The only stated exceptions were for medical negligence

and fee collection claims.

The second article contained the heading “All Claims Must Be

Arbitrated.” It specified that the agreement applied to “all parties . . . whose

claims may arise out of or relate to services provided by [the Medical

Providers].” The third and fourth articles set forth procedures and general

provisions, while the fifth read: “Retroactive Effect. Patient agrees that any

controversy, unless expressly excluded in this Agreement, arising out of or

relating to any prior contractual or other relationship with Company, or

services performed or to have been performed by Company, shall be

submitted to binding arbitration.”

A capitalized paragraph above the signature line reflected: “[The

parties] hereby give up their constitutional right to have any dispute under

this Agreement decided in a court of law before a jury, and instead are

accepting the use of binding arbitration.” In signing the document, M.P.

certified the following: “I have read and understand the above Agreement. I

understand that I have the right to have my questions about arbitration of this

Agreement answered and I do not have any unanswered questions. I

execute this Agreement of my own free will and not under any duress.”

4 After undergoing surgery, M.P. discovered images of her nude body

on Instagram. She filed a six-count complaint against the Medical Providers

for commercial appropriation, breach of fiduciary duty, and invasion of

privacy. The Medical Providers moved to compel arbitration. M.P. argued

that the last-minute presentation of the arbitration agreement, nonrefundable

nature of the deposit, and judicial carve-out for fee collection claims rendered

the agreement unconscionable and the product of duress. She alternatively

asserted her claims fell outside the scope of the arbitration clause. The trial

court compelled arbitration and dismissed the case. The instant appeal

ensued.

STANDARD OF REVIEW

We review an order compelling arbitration de novo. Costa v. Miami

Lakes AM, LLC, 359 So. 3d 392, 395 (Fla. 3d DCA 2023). Similarly, we

review de novo the dismissal of M.P.’s complaint. Medicability, LLC v. Blue

Hill Buffalo Consulting, LLC, 352 So. 3d 467, 469 (Fla. 2d DCA 2022).

ANALYSIS

Florida law has historically favored arbitration agreements. See Costa,

359 So. 3d at 395. Consequently, where the existence of an arbitration

agreement is undisputed, doubts as to whether a claim falls within the scope

of the agreement should be resolved in favor of arbitration. Idearc Media

5 Corp. v. M.R. Friedman & G.A. Friedman, P.A., 985 So. 2d 1159, 1161 (Fla.

3d DCA 2008). Consistent with these principles and the seminal Florida

Supreme Court decision in Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla.

1999), a court must determine whether a movant has established three

prerequisites before compelling arbitration: “(1) whether a valid written

agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3)

whether the right to arbitration was waived.” Id. at 636; see also § 682.02,

Fla. Stat. (2022). The court is authorized to summarily decide a motion to

compel arbitration “unless it finds that there is no enforceable agreement to

arbitrate.” § 682.03(1)(b), Fla. Stat. (2022).

In the instant case, M.P. concedes she executed the arbitration

agreement, but she seeks to avoid arbitration on the grounds of

unconscionability and duress or, alternatively, inarbitrability. Having

carefully surveyed applicable precedent, we are not so persuaded.

“Unconscionability has no precise legal definition because it is not a

concept but a determination to be made in light of a variety of factors.” 21

Richard A. Lord, Williston on Contracts § 57:15 (4th ed. 2023). Despite this

nebulosity, Florida case law provides concrete guidance as to the burden

assumed by a litigant seeking to avoid arbitration. The litigant must establish

both procedural and substantive unconscionability. SHEDDF2-FL3, LLC v.

6 Penthouse S., LLC, 314 So. 3d 403, 409 (Fla. 3d DCA 2020); Murphy v.

Courtesy Ford, L.L.C., 944 So. 2d 1131, 1134 (Fla. 3d DCA 2006).

The procedural prong focuses on “the manner in which [the] contract

is entered.” Hobby Lobby Stores, Inc. v. Cole, 287 So. 3d 1272, 1275 (Fla.

5th DCA 2020). The central analysis concerns “whether, given the totality of

the circumstances, the parties had a meaningful choice to refuse the contract

terms.” Kendall Imps., LLC v. Diaz, 215 So. 3d 95, 109 (Fla. 3d DCA 2017).

Of relevance is whether terms were hidden from the signee.

The substantive prong, in turn, relates to the reasonableness of the

contractual terms and whether they are “so outrageously unfair as to shock

the judicial conscience.” FL-Carrollwood Care, LLC v. Gordon, 72 So. 3d

162, 165 (Fla. 2d DCA 2011). In evaluating this prong, courts consider

whether the terms conflict with public interest or policy. This occurs where

the agreement is “improvident, oppressive, or totally one-sided,” or the

allocation of payment of arbitration fees stymies access to the tribunal.

Streams Sports Club, Ltd. v. Richmond, 457 N.E.2d 1226, 1232 (Ill. 1983).

Here, M.P. contends that, because she was presented with the

paperwork on the eve of her surgery and risked the loss of her deposit if she

failed to agree to arbitration, the agreement was procedurally

unconscionable. While these facts support the conclusion that the contract

7 was presented on a “take it or leave it basis,” this court and others have held

that the “adhesionary nature of the contract does not necessarily lead to a

finding of unconscionability.” Yvette Ostolaza, Enforcement of Arbitration

Agreements in Consumer Financial Services Contracts, 60 Consumer Fin.

L.Q. Rep. 265, 267 (2006); see also Kendall Imps., 215 So. 3d at 109–10.

Instead, “arbitration specified in a form contract must be treated just like any

other clause of the form.” Carbajal v. H & R Block Tax Servs., Inc., 372 F.3d

903, 906 (7th Cir. 2004). And here, the arbitration clause was delineated in

the table of contents of the packet. It contained numerous subheadings

clarifying its expansive reach, and the font was consistent with that reflected

on the accompanying documents. The obligations of the parties were

synopsized at the conclusion of the clause in capital letters.

Further, M.P.’s only argument in support of the substantive prong is

that the agreement excludes collections from the ambit of arbitration. In

construing an arbitration agreement, we apply principles of contract law.

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011). It is axiomatic

that “contract law has never required that the precise terms of the exchange

be symmetrical.” Christopher R. Drahozal, Nonmutual Agreements to

Arbitrate, 27 J. Corp. L. 537, 539 (2002). Indeed, “[m]utuality of remedy in

contracts . . . has largely disappeared from the law of American jurisdictions.”

8 LaBonte Precision, Inc. v. LPI Indus. Corp., 507 So. 2d 1202, 1203 (Fla. 4th

DCA 1987). In this vein, many arbitration clauses exclude collections actions

and the like from arbitration. This is common because such routine matters

are “proceedings to which arbitration may add an inefficient additional step.”1

Drahozal, 27 J. Corp. L. at 553. As against these principles, we conclude

these facts, without more, are insufficient to establish unconscionability.

The duress claim similarly fails. Casting aside the fact M.P. certified

she signed the agreement of her “own free will and not under any duress,”

she was alerted to the possibility of alternative dispute resolution before she

tendered her deposit. Moreover, the record is devoid of any showing of

“improper and coercive conduct” by the Medical Providers, as is required to

demonstrate duress. City of Miami v. Kory, 394 So. 2d 494, 497 (Fla. 3d

DCA 1981).

We must therefore examine whether the asserted claims are arbitrable.

In considering the arbitrability of a dispute, we must first determine the scope

of the arbitration clause. See BREA 3-2 LLC v. Hagshama Fla. 8 Sarasota,

1 This agreement, like many others, contains a severability clause. See 8A Larry R. Leiby, Constr. Law Manual § 19:8 (2022-2023 ed.) (“Where an unconscionable provision may be severed from the arbitration clause the agreement to arbitrate may be enforced with the unconscionable provision severed.”).

9 LLC, 327 So. 3d 926, 932 (Fla. 3d DCA 2021). In this context, clauses are

classified as “broad” or “narrow.” Seifert, 750 So. 2d at 636–37. In Jackson

v. Shakespeare Found., Inc., 108 So. 3d 587 (Fla. 2013), the Florida

Supreme Court explained this distinction:

An arbitration provision that is considered to be narrow in scope typically requires arbitration for claims or controversies “arising out of” the subject contract. This type of provision limits arbitration to those claims that have a direct relationship to a contract's terms and provisions. In contrast, an arbitration provision that is considered to be broad in scope typically requires arbitration for claims or controversies “arising out of or relating to” the subject contract. The addition of the words “relating to” broadens the scope of an arbitration provision to include those claims that are described as having a “significant relationship” to the contract—regardless of whether the claim is founded in tort or contract law.

Id. at 593 (citations omitted).

Nonetheless, “[t]he question whether a tort claim arising between

parties who have a contractual relationship requiring that a claim ‘arising out

of or relating to’ an agreement or a breach of an agreement be subjected to

arbitration is not without difficulty.” Seifert, 750 So. 2d at 639 (quoting Dusold

v. Porta-John Corp., 807 P.2d 526, 529 (Ariz. Ct. App. 1990)). The answer,

of course, is contingent upon whether there is a contractual nexus between

the asserted claim and the contract. See Jackson, 108 So. 3d at 593. A

contractual nexus exists “if the claim presents circumstances in which the

10 resolution of the disputed issue requires either reference to, or construction

of, a portion of the contract.” Id.

Here, the arbitration clause broadly encompasses any dispute “arising

out of or relating to” the parties’ relationship, including those claims derived

from any “prior contractual relationship.” Under our precedent, this language

is sufficiently expansive to constitute a “broad” clause. Id. Further, we find

there is a “contractual nexus” between the claims alleged in the complaint

and the contract. The arbitration agreement and photo consent were

presented to M.P. in a single merged packet of documents. The packet was

consecutively paginated and, as observed previously, included a table of

contents accounting for both documents. The consent deemed the

photographs “essential” to the success of the surgery, and, in signing the

form, M.P. authorized the Medical Providers to disseminate the photographs

on Instagram without identifying the patient. Under these facts, resolution of

whether the Medical Providers engaged in tortious acts will necessarily

require “either reference to, or construction of, a portion of the [integrated]

contract.” Id.

Accordingly, and in the absence of any assertion of waiver, we affirm

the order compelling arbitration. We are constrained to reverse the

disposition order, however, as under the Revised Florida Arbitration Code, a

11 stay, rather than dismissal, is appropriate. § 682.03(7), Fla. Stat. (“If the

court orders arbitration, the court on just terms shall stay any judicial

proceeding that involves a claim subject to the arbitration.”).

Affirmed in part, reversed in part, and remanded.

EMAS, J., concurs.

LINDSEY, J., concurs in result only.