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CORNWELL v. KENNEDY, 79 So.3d 935 (2012)

Court: Court of Appeals of Florida Number: inflco20120217182 Visitors: 20
Filed: Feb. 17, 2012
Latest Update: Feb. 17, 2012
Summary: CRENSHAW, Judge. Andrea Jo Cornwell appeals the trial court's nonfinal order denying a motion to compel arbitration of the claims brought against her by Sandra Kennedy, as personal representative of the Estate of Joseph G. Bush. Because the trial court's factual findings are not supported by competent, substantial evidence and because it erred as a matter of law in concluding that the arbitration agreement was procedurally unconscionable, we reverse and remand for further proceedings. Ms. Kenn
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CRENSHAW, Judge.

Andrea Jo Cornwell appeals the trial court's nonfinal order denying a motion to compel arbitration of the claims brought against her by Sandra Kennedy, as personal representative of the Estate of Joseph G. Bush. Because the trial court's factual findings are not supported by competent, substantial evidence and because it erred as a matter of law in concluding that the arbitration agreement was procedurally unconscionable, we reverse and remand for further proceedings.

Ms. Kennedy brought an action for negligence and wrongful death against several defendants including Ms. Cornwell, as the director of nursing at the nursing home where Ms. Kennedy's father, Mr. Bush, resided. The defendants filed a motion to abate and compel arbitration, which the trial court denied because it concluded that the arbitration agreement was unconscionable. The trial court found that Fern Bush, who signed the arbitration agreement on behalf of Mr. Bush, "did not have the ability to know and understand the terms of the arbitration agreement."

As we explain in greater detail in SAPG Sun City Center, LLC v. Kennedy, 79 So.3d 916 (Fla. 2d DCA 2012), which arises from the same action, the trial court's factual findings are not supported by the evidence that was presented to the trial court. We conclude based on the totality of the circumstances that Ms. Bush was afforded "a meaningful opportunity to review the arbitration agreement, to obtain guidance, and to accept or reject the terms of the arbitration agreement." See Tampa HCP, LLC v. Bachor, 72 So.3d 323, 328 (Fla. 2d DCA 2011). Accordingly, the trial court erred as a matter of law in determining that the arbitration agreement was procedurally unconscionable. See Kennedy, 79 So.3d at 917-18 (Fla. 2d DCA 2012). And because we determine that the arbitration agreement was not procedurally unconscionable, we need not reach the issue of substantive unconscionability. See id.; see also Bachor, 72 So.3d at 328.

Reversed and remanded.

WALLACE and KHOUZAM, JJ., Concur.

Source:  Leagle

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