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Harrington v. Pulte Home Corp.9/27/2005
binding arbitration . . . ." Id. at 448. Thus, we do not find that the presence of a potential class renders this arbitration clause unenforceable.
2. Reasonable Expectations
We consider that reasonable-expectations claims may present questions of both fact and law. See Averett v. Farmers Ins. Co. of Ariz., 177 Ariz. 531, 534, 869 P.2d 505, 508 (1994) (quoting Restatement (Second) of Contracts ("Restatement") § 211 cmt. f (1981)) (remanding for fact finder to determine if contract was "beyond the range of reasonable expectations"); Am. Family Mut. Ins. Co. v. White, 204 Ariz. 500, 507, 19, 65 P.3d 449, 456 (App. 2003) (finding "no facts to support a 'reasonable expectations' revision of insurance policy"). We must defer, absent clear error, to the factual findings upon which the trial court's conclusions are based. In re Estate of Jung, 210 Ariz. 202, 204, 11, 109 P.3d 97, 99 (App. 2005) ("We are bound by a trial court's findings of fact unless they are clearly erroneous."). We review the trial court's conclusions of law, however, de novo. Id.
In this case, the trial court found that the arbitration clause violated the doctrine of reasonable expectations on two separate grounds: (1) that the waiver of a jury trial was not explicitly referenced and "knowingly" made and (2) the lack of notice as to what the trial court considered to be substantial fees for the arbitration that appellees must pay. We address in this section the reasonable-expectations claim as to the waiver of jury trial. We take up the reasonable-expectations claim as to the amount of costs after we address substantive unconscionability.
a. Arizona's Reasonable-Expectations Doctrine
The seminal case in Arizona as to reasonable expectations is Darner Motor Sales, Inc. v. Universal Underwriters Insurance Co., 140 Ariz. 383, 682 P.2d 388. In Darner our supreme court adopted the doctrine of reasonable expectations as set forth in Restatement § 211:
Standardized Agreements
(1) Except as stated in Subsection (3), where a party to an agreement signs or otherwise manifests assent to a writing and has reason to believe that like writings are regularly used to embody terms of agreements of the same type, he adopts the writing as an integrated agreement with respect to the terms included in the writing.
(2) Such a writing is interpreted wherever reasonable as treating alike all those similarly situated, without regard to their knowledge or understanding of the standard terms of the writing.
(3) Where the other party has reason to believe that the party manifesting such assent would not do so if he knew that the writing contained a particular term, the term is not part of the agreement.
Id. at 391, 682 P.2d at 396. As set forth in § 211(1), Darner begins from the proposition that when a contract with standardized terms is signed, the signing party "adopts the writing . . . with respect to the terms included in the writing." Id. As set forth in § 211(3), it is only when "the other party has reason to believe" that the signing party would not accept the term that the term may be struck from the agreement. Id. Under Darner, therefore, the arbitration clause in this case is presumptively valid and enforceable, whether or not any appellee read it or appreciated its full effect, unless the reasonable-expectations limitation set forth in § 211(3) applies. Accord Broemmer, 173 Ariz. at 151, 840 P.2d at 1016 ("Our conclusion that the contract was one of adhesion is not, of itself, determinative of its enforceability.").
In defining the scope of the subsection 3 limitation, Darner expressly held that terms are
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