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					       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT
                               January Term 2010

 THE KING’S ACADEMY, INC., a Florida not for profit corporation, and
                    ROBERT CROWLEY,
                        Appellants,

                                      v.

JOHN DOE, a minor by and through his parents and natural guardians,
  and JANE DOE and JOHN DOE, SR., and JANE DOE individually,
                           Appellees.

                                No. 4D09-2055

                               [March 10, 2010]

PER CURIAM.

   This case arises from a physical altercation between one of the
appellees, John Doe, a minor (Doe Jr.), and other members of the King’s
Academy, Inc.’s football team. After the altercation, the appellees—John
Doe, Sr., Jane Doe, and Doe Jr.—filed suit against the appellants, i.e.,
the King’s Academy and th e team’s football coach, Robert Crowley.
King’s Academy and Crowley moved to dismiss and compel arbitration.
They argued arbitration was required because they a n d the Does
executed a contract that contained an arbitration provision compelling
arbitration. In a non-final order, the trial court, without holding an
evidentiary hearing as required under section 682.03(1), Florida Statutes
(2007), determined the provision was b o t h substantively and
procedurally unconscionable and denied the motion. We reverse and
remand for an evidentiary hearing.

   Section 682.03(1) states:

      A party to an agreement or provision for arbitration subject
      to this law claiming the neglect or refusal of another party
      thereto to comply therewith may make application to the
      court for a n order directing the parties to proceed with
      arbitration in accordance with the terms thereof. If the court
      is satisfied that no substantial issue exists as to the making
      of the agreement or provision, it shall grant the application.
      If the court shall find that a substantial issue is raised as to
      the making of the agreement or provision, it shall summarily
      hear and determine the issue a n d , according to its
      determination, shall grant or deny the application.

(emphasis added).

    In Curcio v. Sovereign Healthcare of Boynton Beach L.L.C., 8 So. 3d
449, 450-51 (Fla. 4 t h DCA 2009), this court, relying on section
682.03(1), reversed a trial court’s order granting the defendant’s motion
to compel arbitration because the trial court, before rendering its order,
failed to hold an evidentiary hearing on the plaintiff’s unconscionability
challenge to the enforceability of an arbitration provision. This court
held the trial court erred by not having a hearing because: 1) the
plaintiff, in opposition to the motion to compel arbitration, argued the
arbitration provision was unconscionable; and 2) the parties disputed the
circumstances that existed at the time the arbitration provision was
made and took effect. See id. In considering these two factors, this court
held     that   a n evidentiary     hearing   regarding    the   plaintiff’s
unconscionability challenge was “mandatory in nature,” as “Florida
courts have determined that [section 682.03(1)] requires an expedited
evidentiary hearing if a substantial disputed issue exists concerning the
making of the agreement [to arbitrate].” Id. at 450.

   In this case, the Does raised an unconscionability challenge to the
enforceability of the arbitration provision. The parties, through their
arguments, also disputed the circumstances that existed at the time the
arbitration provision was made and took effect. The trial court, under
section 682.03(1), was therefore required to hold an evidentiary hearing
on the Does’ unconscionability challenge, because a substantial disputed
issue existed concerning the making of the arbitration provision.
Accordingly, we reverse and remand for an evidentiary hearing.

   Reversed and Remanded with Directions.

HAZOURI, MAY and DAMOORGIAN, JJ., concur.

                           *         *         *

  Appeal of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Robin L. Rosenberg, Judge; L.T.
Case No. 502008CA036411XXXXMB.

   Esther E. Galicia of Fowler White Burnett, P.A., Miami, for appellants.


                                    -2-
  Bernard A. Lebedeker of Burman Critton Luttier & Coleman, P.A.,
West Palm Beach, for appellees.

  Not final until disposition of timely filed motion for rehearing.




                                -3-

				
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