NATIONAL FINANCIAL SERVICES, LLC v. MAHAN Nos. 3D08-2862, 3D08-2861.
19 So.3d 1134 (2009)
NATIONAL FINANCIAL SERVICES, LLC, Bank of America Corporation, Bank of America, N.A., and Banc of America Investment Services, Inc., Appellants, v. James W. MAHAN, Appellee.
District Court of Appeal of Florida, Third District.
October 14, 2009.
Domnick & Shevin and Sean C. Domnick, Palm Beach Gardens; Joel S. Perwin, for appellee.
Before SHEPHERD, CORTIÑAS, and LAGOA, JJ.
Bank of America Corporation (BAC), Bank of America, N/A (BOA), Banc of America Investment Services (BAIS) (collectively, BOA appellants), and National Financial Services, LLC (NFS)
In January 2000, James Mahan opened a BAIS money market account ("account") and an associated BOA checking account. To do so, he completed a four-page application, including an optional margin borrowing section, which twice stated that the customer agreement would require all disputes be settled by binding arbitration. Mr. Mahan subscribed both provisions, which were the same font, size, and case as the body of the application but were italicized
The "Arbitration" provision in the agreement states, in bold, that "any disputes with respect to the [agreement] are subject to arbitration, except for disputes limited to matters arising between [the customer] and [BOA] concerning the checking account ... or any other aspect of the relationship that is solely within the purview of [BOA]."
In the two months after the account was opened, Mahan used it for a variety of transactions before the one at issue, in which he exchanged shares of stock from the account for checks in excess of a million dollars, which he deposited. However, a stop payment order was issued on these checks which caused the account to become overdrawn. To remedy the overdraft, BAIS liquidated additional shares in the account. This action, and another by BAIS also involving the stop payment of a check, formed the basis of Mr. Mahan's action against the appellants. Appellants responded to Mr. Mahan's complaint with a motion to compel arbitration, which the trial court denied because "the reference in Plaintiff's [application] with respect to the arbitration clause, [was] not in bold, not in the box, and not different, and therefore, not binding on Plaintiff."
The trial court invalidated the arbitration language of the application and agreement because its formatting supposedly made it procedurally unconscionable. We review such questions de novo. See Briceño v. Sprint Spectrum, L.P.,
We recognize that even a well-defined arbitration provision may be procedurally unconscionable if contained within a contract of adhesion. However, the factors that would invalidate an otherwise valid provision are not present in this case. In Romano v. Manor Care, Inc.,
Unlike in Romano and Prieto, the arbitration provision agreed to by Mr. Mahan, who is by all accounts a sophisticated businessman, was a short and simple paragraph that was itself part of a short and simple four-page application. Even more compelling is that, prior to completing the application, Mr. Mahan had nothing invested with appellants. By contrast, the plaintiffs in Romano and Prieto were confronted with the possibility of a close family member losing necessary healthcare services. See also Powertel, 743 So.2d at 575 ("[T]he customers had no choice but to agree to the new arbitration clause if they wished to continue to use the cellular telephone plans they had purchased from Powertel.").
In conclusion, we find that the simple, self-contained, and italicized arbitration provision, found twice in the four-page application, sufficiently put Mr. Mahan on notice that disputes with respect to the account would be subject to mandatory arbitration. Accordingly, the arbitration provisions were not procedurally unconscionable.
Reversed and remanded.
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