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HIALEAH AUTOMOTIVE, LLC v. BASULTO
22 So.3d 586 (2009)
HIALEAH AUTOMOTIVE, LLC, d/b/a Potamkin Dodge, Appellant,
v.
Roberto BASULTO and Raquel Gonzalez, Appellees.
No. 3D07-855.
District Court of Appeal of Florida, Third District.
January 28, 2009.
Opinion Denying Rehearing and Granting Clarification December 2, 2009.
Wolfe & Goldstein and Mark Goldstein, for appellant.
Timothy Carl Blake, Miami, for appellees.
Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
Revised OpinionCOPE, J. On consideration of the appellant's motion for rehearing, the court withdraws its previous opinion and substitutes the following opinion. This is an appeal of an order denying a motion to compel arbitration of claims brought against an automobile dealer. We affirm in part and reverse in part. I.In 2004, Roberto Basulto and Raquel Gonzalez, who are husband and wife ("the buyers"), purchased a new 2005 Dodge Caravan from Hialeah Automotive, LLC, which does business as Potamkin Dodge ("the dealer"). The buyers alleged that while at the dealership, the dealer had the buyers sign the contract in blank, with the representation that the agreed-upon numbers would be filled in. The buyers alleged that when the dealership completed the sales contract, it allowed them a lower trade-in allowance than the amount agreed upon. The dealer refused to correct the situation. After negotiations proved unsuccessful, the buyers returned the van to the dealership (having driven a total of seven miles) and demanded the return of their trade-in. The trade-in had been sold. The buyers brought suit alleging fraud in the inducement and violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"). See Ch. 501, pt. II, Fla. Stat. (2004). The buyers also sought rescission of the arbitration agreements they had signed, and rescission of the loan agreement.
1. The parties signed the form but did not fill in the blank designating the state. It is clear from the context that the contract is properly viewed as referring to the State of Florida. 2. See infra n. 4. 3. In view of this ruling, we do not need to reach the question whether an injunction under FDUTPA to benefit the general public is beyond the power of an arbitrator to grant. See Broughton v. Cigna Healthplans of Cal.,21 Cal.4th 1066, 90 Cal.Rptr.2d 334, 988 P.2d 67 (1999); see also Cruz v. PacifiCare Health Sys., Inc.,30 Cal.4th 303, 133 Cal.Rptr.2d 58, 66 P.3d 1157, 1159 (2003) (applying Broughton to claim for injunction against unfair competition under California's Business and Professions Code); but see Arriaga v. Cross Country Bank,163 F.Supp.2d 1189 (S.D.Cal.2001); Brasington v. EMC Corp.,855 So.2d 1212, 1217 (Fla. 1st DCA 2003); Stewart Agency, Inc. v. Robinson,855 So.2d 726, 728 (Fla. 4th DCA 2003). 4. Speaking for himself, the writer of this opinion suggests that in an appropriate future case, this court should reconsider Murphy v. Courtesy Ford, L.L.C.,944 So.2d 1131 (Fla. 3d DCA 2006).
In Murphy, this court said, "To invalidate a contract under Florida law, a court must find that the contract is both procedurally and substantively unconscionable." Id. at 1134 (citing Powertel, Inc. v. Bexley,743 So.2d 570, 574 (Fla. 1st DCA 1999)) (emphasis added). Although the requirement for both procedural and substantive unconscionability has been repeated in a number of arbitration cases in recent years, I respectfully suggest that holding is (a) illogical, and (b) inconsistent with this court's decision in Steinhardt v. Rudolph,422 So.2d 884 (Fla. 3d DCA 1982). In Steinhardt, Judge Hubbart explained: The law in Florida is clear that an unconscionable contract or an unconscionable term therein will not be enforced by a court of equity. "It seems to be established by the authorities that where it is perfectly plain to the court that one party [to a contract] has overreached the other and has gained an unjust and undeserved advantage which it would be inequitable to permit him to enforce, that a court of equity will not hesitate to interfere, even though the victimized parties owe their predicament largely to their own stupidity and carelessness." Id. at 889 (citing Peacock Hotel, Inc. v. Shipman, 103 Fla. 633, 138 So. 44, 46 (1931)). Judge Hubbart explained that the Restatement (Second) of Contracts does not attempt to define unconscionability in procedural-substantive terms, and "the Florida decisions concerning unconscionability as applied to a mortgage foreclosure case are entirely devoid of this [procedural-substantive] analysis." 422 So.2d at 889. The Steinhardt panel held: "This procedural-substantive analysis is . . . only a general approach to the unconscionability question and is not a rule of law." Id. (emphasis added). Instead, procedural unconscionability is merely one factor to be considered—not a required element. Clearly, if a contract is sufficiently inequitable to meet the test of substantive unconscionability, then it should not be enforced. I do not fault the panel in Murphy because there is no indication that anyone made the argument advanced here, or pointed out this court's analysis in Steinhardt. This is, however, an issue which should be addressed in an appropriate case in the future. It need not be addressed in this case because in this case the Murphy test was satisfied. Assuming arguendo that procedural unconscionability is required, that condition should be deemed to be satisfied where, as here, the arbitration clause is a non-negotiated provision contained in a pre-printed form. See Pasteur Health Plan, Inc. v. Salazar,658 So.2d 543, 544 (Fla. 3d DCA 1995) (adhesion contract means "a standardized contract, which, imposed and drafted by the party of superior bargaining strength . . . relegates to the subscribing party . . . only the opportunity to adhere to the contract or reject it."); Black's Law Dictionary 342 (8th ed. 2004) (adhesion contract is a "standard-form contract prepared by one party, to be signed by the party in a weaker position, usu. a consumer, who adheres to the contract with little choice about the terms")
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