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.
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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”
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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,
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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
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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
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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.
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