McRAE, P.J., for the Court.
¶ 1. Apryl L. Parkerson filed a complaint on May 17, 1999, against Champion Home Builders Co., Inc., and Wayne and Verda Pearl Smith, owners of Town & Country Builders, Inc., d/b/a Town & Country Mobile Homes. The complaint alleged defective manufacture and negligent set-up of
¶ 2. Even though Champion, the manufacturer, was never a signatory to the finance contract between Parkerson and Town & County concerning the arbitration, the Circuit Court of Neshoba County dismissed the case and compelled arbitration by order dated March 23, 2000. Parkerson timely perfected this appeal. We find that the circuit court erred in dismissing Parkerson's case and requiring her to submit her claims to arbitration as the Magnuson-Moss Warranty Act precluded the Federal Arbitration Act. We further find that Champion, the manufacturer, never had an agreement to arbitrate; and therefore, it cannot compel arbitration. Therefore, we reverse and remand to the Neshoba County Circuit Court for a trial on the merits.
¶ 3. On July 1, 1998, Apryl L. Parkerson purchased a Gateway/Advantage Shamrock II mobile home from Town & Country Mobile Homes, Inc., for $61,466.13. As part of this transaction, Parkerson and Verda Pearl Smith of Town & Country signed a contract entitled "Retail Installment Contract, Security Agreement, Waiver of Trial by Jury and Agreement to Arbitration or Reference or Trial by Judge Alone." That agreement provided in pertinent part as follows:
ARBITRATION OF DISPUTES AND WAIVER OF JURY TRIAL:
¶ 4. Verda Pearl Smith and Parkerson signed another document entitled "Manufactured Home Set-Up and Warranty." Champion was not a signatory to this document or the retail installment contract. However, Town & Country also provided Parkerson with a document from Champion entitled "Manufacturer's One Year Manufactured Home Limited Warranty." Parkerson asserts that Wayne and Verda Pearl Smith assured her that they would personally see that all promises and warranties were kept and that Parkerson would be treated fairly.
¶ 5. Parkerson alleges that her mobile home was delivered and set up in a grossly defective condition. She contends that the Smiths failed to keep their promises of personal attention and that Town & Country and Champion failed to honor their express and implied warranties.
¶ 6. Parkerson stated in an affidavit that she signed the retail installment contract without reading or understanding any of the language regarding waiver of trial by jury and agreement to arbitration. She asserts that she is not knowledgeable or sophisticated in contract dealings and that none of the preprinted language on the contract was explained to her. She further contends that when she signed the retail installment contract she was of the understanding that the contract was between herself and Bank America Housing Services. She stated that she "had no idea... that any of the language in that contract in any way related to the warranties and promises made by [the Smiths] ... or the warranties provided through [the Smiths] by Champion Home Builders."
STANDARD OF REVIEW
¶ 7. The primary issues raised in this appeal present questions of law. "Questions concerning the construction of contracts are questions of law that are committed to the court rather than questions of fact committed to the fact finder." Mississippi State Highway Comm'n v. Patterson Enterprises, Ltd., 627 So.2d 261, 263 (Miss.1993). The standard of review for questions of law is de novo. Starcher v. Byrne, 687 So.2d 737, 739 (Miss.1997).
¶ 8. The principal issue before this Court is whether the Magnuson-Moss Warranty Act supercedes the Federal Arbitration Act and, in turn, the arbitration clause of the subject contract, thereby preventing the defendants from invoking arbitration. Additionally, Parkerson asserts that the arbitration clause is unenforceable because it is ambiguous and unconscionable.
¶ 9. The question of whether the Magnuson-Moss Warranty Act renders binding arbitration clauses in consumer contracts unenforceable is an issue of federal law not yet definitively addressed by the United States Supreme Court. However, to date, nearly every federal court which has addressed the issue has ruled that the Magnuson-Moss Warranty Act prevails over the arbitration clause. Yeomans v. Homes of Legend, Inc., 2001 WL 237313 (M.D.Ala. 2001); Pitchford v. Oakwood Mobile Homes, Inc., 124 F.Supp.2d 958 (W.D.Va. 2000); Raesly v. Grand Housing, Inc., 105 F.Supp.2d 562 (S.D.Miss.2000); Wilson v. Waverlee Homes, Inc., 954 F.Supp. 1530 (M.D.Ala.1997), aff'd, 127 F.3d 40 (11th Cir.1997). See also Rhode v. E & T Investments, Inc., 6 F.Supp.2d 1322 (M.D.Ala.1998); Boyd v. Homes of Legend, 981 F.Supp. 1423 (M.D.Ala.1997).
¶ 11. The Magnuson-Moss Warranty Act is codified as 15 U.S.C. § 2310(d)(1) (2000), which states that any "consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief." The plain language of the statute indicates that it intends to preserve the right of any consumer to bring a lawsuit for breach of written or implied warranties.
¶ 12. In Raesly v. Grand Housing, Inc., 105 F.Supp.2d 562 (S.D.Miss.2000), the United States District Court for the Southern District of Mississippi held that the Magnuson-Moss Warranty Act precluded binding arbitration of the written warranties. Id. at 573. In so doing, the Court relied on, inter alia, federal regulations issued by the Federal Trade Commission. 40 Fed.Reg. 60211 (1975) (stating that reference within the written warranty to any binding, non-judicial remedy is prohibited by the Rule and the [Magnuson-Moss Warranty] Act). The Raesly court also relied on Wilson v. Waverlee Homes, Inc., 954 F.Supp. 1530 (M.D.Ala.1997), aff'd 127 F.3d 40 (11th Cir.1997), which has been affirmed by the United States Court of Appeals for the Eleventh Circuit.
¶ 13. We find the court's analysis in Wilson to be compelling. There, the court conducted a meticulous analysis of the history of the Magnuson-Moss Warranty Act, as well as the applicable regulations adopted by the Federal Trade Commission. Wilson, 954 F.Supp. at 1537-38. In holding that the binding arbitration clauses violated the Magnuson-Moss Warranty Act, the court found the House report and the remarks of Congressman Moss, one of the sponsors of the bill, particularly enlightening:
Wilson, 954 F.Supp. at 1538 (emphasis in original) (footnote omitted).
¶ 14. As previously stated, the district court's decision was affirmed by the United States Court of Appeals for the Eleventh Circuit. Wilson v. Waverlee Homes, Inc. 127 F.3d 40 (11th Cir.1997). It is also noteworthy that Chief Judge Thompson's rationale in Wilson was also followed by Judge DeMent in Yeomans v. Homes of Legend, Inc., 2001 WL 237313 (M.D.Ala. 2001).
¶ 15. The Circuit Court of Virginia has also held that the Magnuson-Moss Warranty Act precludes binding arbitration:
Philyaw v. Platinum Ent., Inc., 2001 WL 112107, *2 (Va. Cir. Ct.2001) (citing Pitchford v. Oakwood Mobile Homes, Inc., No. 99-CV-53; VLW 000-3-215 (W.D.W.Va. 2001)).
¶ 16. In addition, in 1999 the Federal Trade Commission issued a regulation determining that binding pre-dispute arbitration agreements are not enforceable under the Magnuson-Moss Warranty Act. 64 Fed.Reg. 19700, 19708 (1999). When an agency interprets a statute that it is responsible for administering, we must defer to the agency's interpretation so long as the interpretation is reasonable. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984).
¶ 17. The Magnuson-Moss Warranty Act was enacted more recently than the Federal Arbitration Act and is more specific. The language of the Act clearly indicates that by enacting it, Congress intended to preserve for consumers the right to bring suit for breach of written or implied warranties. Therefore, the Magnuson-Moss Warranty Act has superceded the FAA in regard to breach of consumer warranties, and binding arbitration cannot be compelled in this case without contravening the purposes of the Act. The circuit court therefore erred in dismissing the Smiths and Town & Country, and we therefore reverse and remand Parkerson's claim against the Smiths and Town & Country to the circuit court for a full trial on the merits.
¶ 18. We also find that the circuit court erred in compelling Parkerson to arbitration against Champion. In Wilson v. Waverlee Homes, Inc. 127 F.3d 40 (11th Cir.1997), Waverlee Homes, the manufacturer, was not a party to the installment sales and financing contracts which contained a clause for final and binding arbitration between the plaintiffs and the seller. Wilson, 954 F.Supp. at 1532. Waverlee sought to invoke the arbitration clause, and the district court held that Waverlee, as a nonparty to the agreement containing the arbitration
¶ 19. Champion is in the same position as Waverlee in Wilson. Champion was not a party to the contract containing the arbitration provision, and therefore may not invoke the arbitration clause to which it was never a party. To hold otherwise would allow a manufacturer which is not a signatory to an agreement to assert rights found in that agreement. The Wilson court declined to make such a broad interpretation, as do we.
¶ 20. In Wilson, the court pointed out the following language from the contract between Wilson and the seller: "Any controversy or claim between or among you and I or our assignees ... shall, if requested by either you or me, be determined by arbitration." Id. The language found in Parkerson's contract with Town & Country is strikingly similar. The Wilson court went on to state that "[n]o stretch of the imagination would be adequate to encompass the concept that the parties to either contract contemplated disputes with non-parties relating to stated and implied warranties." Id. The court also noted that the warranty provided by Waverlee, like the warranty provided by Champion in the present case, did not contain an arbitration provision nor did it seek to incorporate by reference the arbitration provisions in the installment sales and financing agreements between Wilson and the seller. Id. The court found that "the plaintiffs at no time and in no way agreed with Waverlee to waive their Magnuson-Moss Act rights, nor did they agree with [the seller] to extend such a third-party benefit to Waverlee." Since Parkerson did not knowingly and intelligently waive any rights as to Champion, we find that Champion is precluded from compelling arbitration of Parkerson's express or implied warranty claims against it. We therefore also reverse and remand Parkerson's claim against Champion to the circuit court for a trial on the merits.
¶ 21. The Magnuson-Moss Warranty Act precludes enforcement of binding arbitration agreements in regard to written or implied consumer warranties. Moreover Champion is precluded from compelling any of Parkerson's claims to arbitration because it was not a signatory to the arbitration provision. Because we are reversing and remanding based on these conclusions, we find it unnecessary to address the additional issue raised by the parties.
¶ 22. We therefore reverse the circuit court's judgment and remand this case to the Neshoba County Circuit Court for a trial on the merits as to the Smiths and Town & Country, as well as Champion Home Builders.
DIAZ, EASLEY AND GRAVES, JJ., CONCUR. CARLSON, J., CONCURS IN RESULT ONLY. DIAZ, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., EASLEY AND GRAVES, JJ. COBB, J., DISSENTS WITH SEPARATE WRITTEN OPINION. PITTMAN, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, J. COBB AND CARLSON, JJ., JOIN IN PART. SMITH, P.J., NOT PARTICIPATING.
DIAZ, J., concurring.
¶ 24. I concur in the majority's opinion that the circuit court erred in dismissing Parkerson's case and that Parkerson was entitled to a full trial on the merits due to the majority's decision that the Magnuson-Moss
¶ 25. First, state contract law defenses such as fraud, duress, and unconscionability remain viable defenses, even where the Federal Arbitration Act controls. Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 686, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996). Arbitration can be precluded by the application of ordinary state law principles of contract formation. Bank One v. Coates, 125 F.Supp.2d 819, 827 (S.D.Miss. 2001).
¶ 26. The arbitration provision in the present case requires Parkerson to pay the attorney's fees and costs should she lose. Furthermore, Rule 51 of the Commercial Rules of the American Arbitration Association, requires that the party initiating the dispute to pay a minimum filing fee of five hundred dollars. Parkerson submitted an affidavit stating that she could not afford to pay the fees required to arbitrate her dispute. The United States Supreme Court has held that large arbitration costs could preclude a litigant from effectively vindicating her statutory rights in arbitration. See Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 521-22, 148 L.Ed.2d 373 (2000). I believe the arbitration clause in the present case is unconscionable because the high costs involved in starting arbitration could have effectively prevented Parkerson from pursuing her dispute.
¶ 27. In addition, in order to refute Parkerson's claim that the arbitration clause is unconscionable, the defendants must show that "the provision was reasonably related to the business risks of the parties." Entergy Miss. Inc. v. Burdette Gin Co., 726 So.2d 1202, 1207-08 (Miss. 1998) (quoting Bank of Indiana, Nat. Ass'n v. Holyfield, 476 F.Supp. 104, 109 (S.D.Miss.1979)). The defendants in the present case have not made such a showing, nor have they attempted to do so. For these reasons, I believe the arbitration clause was unconscionable.
¶ 28. Next, the contract at issue does not validly waive Parkerson's constitutional rights. In order to effectively foreclose Parkerson's access to the courts and strip away her constitutional right to a jury trial, the defendants must demonstrate that Parkerson knowingly, intelligently and voluntarily waived her constitutional rights. D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972). In Overmyer, the United States Supreme Court stated that the waiver provision in that case was bargained for and drafted by two corporations, that there was not unequal bargaining power, the contract was not one of adhesion, and both parties were aware of the significance of the waiver provision. Id. at 782. In Fuentes, the United States Supreme Court distinguished facts in that case that were a "far cry from those of Overmyer." Fuentes v. Shevin, 407 U.S. 67, 94-95, 92 S.Ct. 1983, 2001-02, 32 L.Ed.2d 556 (1972). In Fuentes, the parties did not bargain over the contractual terms, there was a large disparity in bargaining power, the waiver provision was on a pre-printed form sales contract and was a necessary condition of the sale, and the appellees made no showing that the appellants understood and were aware of the provision. Id.
¶ 30. I concur with the majority's opinion. However, in addition and in consideration of the reasons set forth above, I would address the remaining issues that are before this Court. I would state that the contract was unconscionable because Parkerson could not have afforded to pay the costs of arbitration, and that the contract was invalid because the defendants failed to show that Parkerson knowingly, intelligently and voluntarily waived her right to pursue her claim in court.
McRAE, P.J., EASLEY AND GRAVES, JJ., JOIN THIS OPINION.
COBB, J., dissenting.
¶ 31. I respectfully dissent. The majority has concluded that the Magnuson-Moss Warranty Act (Magnuson-Moss) supercedes the Federal Arbitration Act (FAA), and that the arbitration agreement is unconscionable. Because I conclude that Magnuson-Moss does not supercede the FAA, and that Champion and the Smiths should be allowed to compel arbitration, I would affirm in part the judgment of the trial court. However, because this Court lacks sufficient information to determine whether the arbitration clause is unconscionable, I would remand to the trial court for further proceedings on that issue, consistent with this opinion.
I. WHETHER THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENT ACT PREVENTS APPELLEES FROM INVOKING ARBITRATION, THEREBY PERMITTING A TRIAL BY JURY, AT THE ELECTION OF APRIL [SIC] PARKERSON.
¶ 32. In 1925, Congress enacted the Federal Arbitration Act, 9 U.S.C.A. §§ 1, et seq., creating a federal policy in favor of alternative dispute resolution. Later the Supreme Court stated: "The Act, after all, does not mandate the arbitration of all claims, but merely the enforcement — upon the motion of one of the parties — of privately negotiated arbitration agreements." Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 219, 105 S.Ct. 1238, 1242, 84 L.Ed.2d 158 (1985). In discussing the legislative history of the FAA, the Supreme Court stated: "The House Report accompanying the Act makes clear that its purpose was to place an arbitration agreement `upon the same footing as other contracts, where it belongs,' H.R.Rep. No. 96, 68th Cong., 1st Sess., 1 (1924), and to overrule the judiciary's longstanding refusal to enforce agreements to arbitrate." Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. at 219-20, 105 S.Ct. 1238. Section 2 of the FAA states that written arbitration provisions in contracts "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C.A. § 2 (2001). Further, the court must compel a party to such a contract to submit to arbitration proceedings: "The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to
¶ 33. In Mississippi, for most of this century, there were two lines of case law concerning arbitration. One line of cases — relying on either public policy concerns or the courts jealously guarding the exclusiveness of their jurisdiction — exhibited a hostility towards pre-dispute binding arbitration agreements:
Machine Prods. Co. v. Prairie Local Lodge No. 1538 of Int'l Ass'n of Machinists, AFLCIO, 230 Miss. 809, 94 So.2d 344, 348 (1957). However, there was another line of case law concerning arbitration that had co-existed concurrently in this state:
I.P. Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 103-04 (Miss. 1998).
¶ 34. This dichotomy was dispelled in 1998, when this Court handed down I.P. Timberlands: "This Court hereby overturns the former line of case law that jealously guarded the court's jurisdiction." Id. at 104. We went on to say:
I.P. Timberlands, 726 So.2d at 107. Recently, in Smith Barney, Inc. v. Henry, 775 So.2d 722 (Miss.2001), this Court discussed and reaffirmed that decision:
Id. at 724 (citations omitted).
¶ 35. While this Court has recently joined the rest of the nation in adopting a non-hostile, positive posture towards pre-dispute arbitration agreements, neither the United States Supreme Court, nor this Court, has specifically dealt with the issue of whether Magnuson-Moss supercedes the FAA.
¶ 36. In Raesly v. Grand Housing, Inc., 105 F.Supp.2d 562 (S.D.Miss.2000), the United States District Court for the Southern District of Mississippi, Judge Tom Lee, held that the plaintiffs were compelled to submit their implied warranty claims to binding arbitration; however, not their claims for breach of an express written warranty. Id. at 573-74. The court stated:
Id. at 573. However, one of the cases specifically relied upon by Judge Lee has since been overruled. In Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131 (Ala.2000), the Alabama Supreme Court expressly overruled the majority opinion in Lee and held that the Magnuson-Moss Act does not invalidate arbitration provisions, even in a written warranty. Id. at 1135. In Ard, the court adopted Justice See's previous dissent in Lee, where he had argued that the text of the Magnuson-Moss Act does not expressly preclude arbitration, that the legislative history of the Act does not express a clear intent to preclude enforcement of the FAA, and that there is no irreconcilable conflict between arbitration and the purposes of the Act. Id.
¶ 37. Since Lee was overruled, the United States District Court for the Southern District of Mississippi has had the opportunity to revisit this issue and now follows the same rationale as the Ard court. In a factually similar case, Judge Dan Russell, by order, granted a motion to compel arbitration, examined Raesly in light of the subsequent decision in Ard, and stated as follows:
Vice v. Classic Homes of Gautier, Inc, No. 1:99CV432RG (S.D.Miss. July 21, 2000).
¶ 38. The Texas Supreme Court has also recently dealt with this issue for the first time. In In re American Homestar of Lancaster, Inc., 50 S.W.3d 480 (Tex. 2001), the Texas court, in its well-reasoned opinion, first discussed the historical conflict between the FAA and other federal statutes:
Homestar, 50 S.W.3d at 484-85.
¶ 39. The Texas court next noted the United States Supreme Court's test for
¶ 40. I agree and conclude that the Magnuson-Moss Act does not pre-empt or supersede the Federal Arbitration Act, thus I would affirm the trial court on this issue.
II. WHETHER A MEETING OF THE MINDS TOOK PLACE DUE TO THE ARBITRATION CLAUSE'S AMBIGUOUS LANGUAGE.
¶ 41. Parkerson asserts that the arbitration agreement found in the retail installment contract is ambiguous and that, therefore, no "meeting of the minds" took place regarding the arbitration clause.
¶ 42. In IP Timberlands, we noted that "[w]here a contract is clear and unambiguous, its meaning and effect are matters of law which may be determined by the court." IP Timberlands, 726 So.2d at 106 (citing Pfisterer v. Noble, 320 So.2d 383, 384 (Miss.1975)). We further stated:
Id. at 108.
¶ 43. In Raesly, the district court considered and rejected the plaintiff's ambiguity argument. Raesly, 105 F.Supp.2d at 567. The arbitration agreement at issue in Raesly was embodied in a document separate from the other documents involved with the sale of the mobile home. Id. at 564-65. The court held that "[e]ven assuming for the sake of argument that this language creates ambiguity as to the scope of the arbitration agreement, that does not preclude the court from compelling arbitration." Id. at 571. The court based its decision in part on the United States Supreme Court's holding that any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability. A finding that the scope of the arbitration clause is vague does not automatically catapult the entire dispute into arbitration. Rather, such a finding creates a presumption in favor of arbitration. Id. at 571-572 (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983)).
¶ 44. In the case sub judice, Parkerson signed a clear and unambiguous agreement
III. WHETHER THE ARBITRATION AGREEMENT IS UNCONSCIONABLE.
¶ 45. Parkerson claims that the arbitration agreement is unconscionable because: there was no discussion of the fact that there was a binding arbitration clause when she signed the documents; there was no negotiation — it was presented on a take-it-or-leave-it basis; and she was not given an opportunity to know and understand the its terms. Parkerson claims she is not knowledgeable or sophisticated in business dealings and lacks business acumen. In effect, Parkerson is arguing that the arbitration agreement is "procedurally" unconscionable.
¶ 46. "Unconscionability has been defined as `an absence of meaningful choice on the part of one of the parties, together with contract terms which are unreasonably favorable to the other party.'" Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d at 1207. This Court has said that a contract is unconscionable if it is "one such as no man in his senses and not under a delusion would make on the one hand, and as no honest and fair man would accept on the other." Terre Haute Cooperage v. Branscome, 203 Miss. 493, 503, 35 So.2d 537, 541 (1948).
¶ 47. In determining whether a contract is procedurally unconscionable, the court will look to the formation of the contract:
Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d at 1207. "Procedural unconscionability is most strongly shown in contracts of adhesion presented to a party on a take it or leave it basis." Id. at 1208.
¶ 48. In Raesly, a procedural unconscionability argument similar to Parkerson's was presented and rejected by the district court. The plaintiffs, in Raesly, argued that they were hurriedly presented numerous papers with no explanation of the terms and agreements. However, the Raesly court noted:
Raesly, 105 F.Supp.2d at 568-69.
¶ 49. The same reasoning applies in the case sub judice. While Parkerson claims she did not read the document, she does not claim that she was prevented from reading it. Further, though she claims she did not understand she was signing a binding arbitration agreement, she cannot deny that the very title of the agreement which she signed, printed in large, bold letters, was:
Also, the arbitration provision itself was presented in large, bold letters that are easy to read simply by glancing at the document:
¶ 50. Thus, though Parkerson alleges lack of knowledge, lack of voluntariness, and disparity in sophistication and bargaining power in a contract of adhesion, the record tends to indicate otherwise. Concerning Parkerson's argument that the contract was presented on a take-it-or-leave-it basis, with no negotiation, this is easily refuted by the fact that the warranty itself has apparently been modified in at least two different places. First, the paragraph entitled "Connections" that requires the customer to make the electric, water, and sewage connections has been crossed through. Second, in the margin next to where it says "Heating System," there is handwritten scribble that says, "5 yr. parts."
¶ 51. Concerning Parkerson's argument that she did not read the contract and didn't understand all its terms, this Court has stated:
Busching v. Griffin, 542 So.2d 860, 865 (Miss.1989); see also Hicks v. Bridges, 580 So.2d 743, 746 (Miss.1991) (holding that a person "cannot avoid a signed, written contract on the grounds that he did not read it").
¶ 52. Whether or not Parkerson discussed, actually read, or understood every term of the contract should not be dispositive of this issue. The fact is, there is no allegation that she was prevented from doing any of these things. If this Court were to nullify every contract in which one
IV. WHETHER THE CLAIMANT IS EFFECTIVELY LOCKED OUT OF INSTITUTING ARBITRATION DUE TO THE HIGH COSTS OF EXERCISING SUCH A MECHANISM.
¶ 53. Parkerson further asserts that her inability to pay the costs of arbitration effectively leaves her without a forum in which to bring her suit. She claims she would be forced to hurdle many financial barriers such as the arbitrator's fee, the initial filing fee of at least $500, plus court reporting costs, transcription fees, witness expenses, and hearing room fees. In her affidavit she claims she does not have the funds to pay all of these fees.
¶ 54. While procedural unconscionability goes to the formation of the contract, substantive unconscionability goes to its actual terms. "Plaintiff may prove substantive unconscionability if she prove the terms of the arbitration clause were oppressive." Smith v. EquiFirst Corp., 117 F.Supp.2d 557, 560 (S.D.Miss.2000).
¶ 55. It is important to note that the Commercial Rules of the American Arbitration Association, which the contract signed by Parkerson specifically states "shall apply", contain a provision for the reduction or deferment of the fees in the event of extreme hardship.
¶ 56. While Parkerson claims that she was unable to afford the arbitration fees, there is no indication that she ever made an effort to avail herself of the benefits of this provision in the Rules.
¶ 57. Next, while it does not appear this Court has specifically dealt with the issue of the alleged inability of a party to afford the arbitration costs as a reason to find substantive unconscionability, courts in other jurisdictions have.
¶ 58. In Doctor's Assocs., Inc. v. Stuart, 85 F.3d 975, 980 (2nd Cir.1996), two Subway franchisees sought to invalidate an arbitration clause in their contract, claiming it was unconscionable due to the high cost of pursuing their claim via arbitration. In rejecting this argument, the Second Circuit said, "the purpose of the unconscionability doctrine is to prevent unfair surprise and oppression, ... [they] were on notice that they were at least liable for their own costs in the arbitration proceedings,... Certainly they could have inquired about the typical fees charged by
¶ 59. In Doctor's Assocs., Inc. v. Hamilton, 150 F.3d 157, 159 (2nd Cir.1998), once again a Subway franchisee challenged an arbitration clause because of, inter alia, its alleged prohibitive cost. The court held that, "there was nothing unconscionable about the arbitration clause because it clearly explained both the parties' responsibility for their own costs, which the franchisee was free to investigate before entering into the agreement. ..." Id. at 163.
¶ 60. However, other circuits have looked at the inability of the plaintiff to pay the cost of arbitration differently. In Shankle v. B-G Maint. Mgmt. of Col., Inc., 163 F.3d 1230, 1232 (10th Cir.1999), Shankle, a former employee of B-G, brought an action under Title VII, the Americans with Disability Act, and the Age Discrimination in Employment Act. B-G filed a motion to compel arbitration. Id. In affirming the district court's denial of the motion, the Tenth Circuit held:
Id. at 1234-35 (citations omitted). See also Cole v. Burns Int'l. Sec. Servs., 105 F.3d 1465, (D.C.Cir.1997) ("it would undermine Congress's intent to prevent employees who are seeking to vindicate statutory rights from gaining access to a judicial forum and then require them to pay for the services of an arbitrator when they would never be required to pay for a judge in court"); Rollins, Inc. v. Foster, 991 F.Supp. 1426, 1437 (M.D.Ala.1998) ("When a party who is in such an inferior bargaining position, ... is compelled to assert her claims in arbitration, thus precluding a remedy in the less expensive public fora, and the costs of the arbitral forum render the party unable to pursue her claim, the clause is oppressive and one-sided and therefore unconscionable.").
¶ 61. In Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054, 1056 (11th.Cir.1998), a case similar to Shankle, a former employee brought a Title VII action against her former employer. The employer then filed a motion to stay proceedings and compel arbitration, which the district court denied. Id. In affirming the decision, the Eleventh Circuit noted that employees may be liable for at least half the hefty cost of an arbitration and must, according to the American Arbitration Association rules the [arbitration] clause explicitly adopts, pay steep filing fees (in this case $2000). Id. at 1062. "We consider costs of this magnitude a legitimate basis for a conclusion that the clause does not comport with statutory policy." Id. Further:
¶ 62. Finally, in Randolph v. Green Tree Fin. Corp.—Alabama, 178 F.3d 1149, 1150 (11th Cir.1999), the purchaser of a mobile home appealed the district court's order compelling arbitration of her claim against the company that had financed that purchase. The Eleventh Circuit reversed, finding the arbitration clause unenforceable because:
Id. at 1158. On appeal, the Supreme Court reversed because the Court of Appeals erred in deciding that the arbitration agreement's silence with respect to costs and fees rendered it unenforceable. Green Tree Fin. Corp.—Alabama v. Randolph, 531 U.S. 79, 92, 121 S.Ct. 513, 523, 148 L.Ed.2d 373 (2000). However, the Supreme Court went on to say:
Id. at 90-91, 121 S.Ct. at 522. Thus the Supreme Court conceded that the cost of arbitration could render a arbitration clause unenforceable, but held that the record in that case did not reveal enough information to make such a determination. However, concerned that some parties might be unable to afford the costs associated with arbitration, courts have responded.
¶ 63. In Dobbins v. Hawk's Enters., 198 F.3d 715, 716 (8th Cir.1999), the purchasers of a mobile home that was allegedly delivered with substantial damage filed suit in the United States District Court for the Eastern District of Arkansas, claiming damages under multiple legal theories, including the Truth in Lending Act. The defendants filed a motion to stay the federal court proceeding and compel arbitration, which the district court granted. Id. The Dobbins filed a motion to lift the stay on the basis that the fees imposed by the AAA, and their inability to pay those fees prevented them from effectively asserting their claims. Id. After an evidentiary
Id. at 717.
¶ 64. I find the rationale and remedy of the Dobbins court persuasive. While Mississippi has joined the rest of the nation in embracing a policy favoring arbitration, an arbitration agreement that would effectively leave a consumer without a forum to effectively redress his or her grievances should not be embraced. However, the determination as to whether or not an arbitration clause in a contract is substantively unconscionable, because it is cost prohibitive, can only be made on a case-by-case basis. While Parkerson claims, on appeal, she is unable to afford the fees associated with arbitration, she did not make such a claim in her initial complaint or amended complaint. Parkerson did file an affidavit with the circuit court claiming she did not have the funds with which to pay the costs associated with arbitration. However, the trial judge failed to make findings of facts on this issue, nor did he discuss this issue in his final order. Therefore, the evidence in the record is insufficient for this Court to make such a determination as well.
¶ 65. In Quinn v. EMC Corp., 109 F.Supp.2d 681, 685-86 (S.D.Tex.2000), the United States District Court for the Southern District of Texas stated: "Even if the Court were convinced that Plaintiff cannot afford to pay for the arbitration proceeding, the better solution would be to nullify the fee provisions of the arbitration agreement and have Defendant EMC shoulder the expense. Plaintiff's proposed solution-abrogation of the entire arbitration agreement-is unnecessarily radical."
V. WHETHER UNDER THE TERMS OF THE RETAIL INSTALLMENT CONTRACT, THE ARBITRATION CLAUSE APPLIES ONLY TO THE RETAIL INSTALLMENT CONTRACT.
¶ 67. At the heart of this issue is the fact that Parkerson signed several sets of papers, when purchasing her mobile home. Parkerson claims the arbitration clause was located in the retail installment contract; therefore, it only applies to the retail installment contract and problems that might arise concerning financing. Since her claims are based in warranty and negligence, the arbitration clause is ineffective.
¶ 68. However, the plain language of the arbitration agreement states,
¶ 69. In Raesly, the plaintiff similarly signed separate documents: namely a purchase agreement, an installment contract and an arbitration agreement. Raesly, 105 F.Supp.2d at 567. The plaintiff argued that the arbitration agreement was not enforceable because it was not part of the main contract or the purchase agreement. Id. In rejecting that argument, the Fifth Circuit said:
Id. I conclude that this argument is without merit, and would affirm the trial court on this issue.
VI. WHETHER CHAMPION, THE MANUFACTURE, AND THE SMITHS, IN THEIR INDIVIDUAL CAPACITY, AS NON-SIGNATORIES
TO THE AGREEMENT, CAN COMPEL ARBITRATION.
¶ 70. In her reply brief, Parkerson discusses the issue of whether a non-signatory to the agreement can compel arbitration in conjunction with the issue of waiver of the right to a jury trial. Because I conclude these issues are not too intimately intertwined, I will discuss them separately.
¶ 71. As discussed in issue V, the arbitration clause is located in the financing agreement. Parkerson argues that because Champion is not a signatory or an assignee of the agreement, it cannot compel arbitration. The seller is specifically designated in the signature block as Town & Country. Further, Verda Smith clearly signed in her official capacity as an employee of Town & Country, and Wayne Smith is not mentioned anywhere in the contract and did not sign the contract. Neither are they assignees or parties to the financing agreement.
¶ 72. Parkerson relies heavily on Southern Energy Homes, Inc. v. Gary, 774 So.2d 521 (Ala.2000), Isbell v. Southern Energy Homes, Inc., 708 So.2d 571 (Ala. 1997), and Wilson v. Waverlee Homes, 954 F.Supp. 1530 (M.D.Ala.1997). However, as will be seen, Alabama courts have been on both sides of this issue. As one writer has observed, the Alabama courts reached "glaringly different conclusions on the nonsignatory issue" in four cases handed down in 1996, and "continued this trend of apparent contrariety" in three more decisions handed down in 1997. Patricia J. Ponder, Alabama's Arbitration Cases: Where Does the Non Signatory Stand?, 58 Ala. Law. 246, 246 (July 1997). "Examining these cases in chronological order, the Alabama Supreme Court's handling of the nonsignatory question may suggest a case of `one step forward, two steps back.'" Id. The writer concluded:
Id. Fortunately, the rest of the country has not suffered from the same case of schizophrenia as the Alabama courts have suffered from in addressing this issue. Champion claims in its brief that "[a]s a direct outgrowth of the strong public policy favoring arbitration embodied in the Federal Arbitration Act, virtually every federal and state appellate court in the country to consider whether a nonsignatory to an arbitration provision can enforce a right to arbitrate has recognized such a right under the federal doctrine of equitable estoppel, as well as general principles of agency and contract."
¶ 73. The First Circuit Court of Appeals in Hilti, Inc. v. Oldach, 392 F.2d 368, 369 n. 2 (1st Cir.1968) stated: "If arbitration defenses could be foreclosed simply by adding as a defendant a person not a party to an arbitration agreement, the utility of such agreements would be seriously compromised."
¶ 74. The Second Circuit in Interocean Shipping Co. v. National Ship. & Trad. Corp., 523 F.2d 527, 539 (2nd Cir.1975) said: "mere fact that a party did not sign the arbitration agreement does not mean that it cannot be held bound by it. Ordinary contract principles determine who is bound. In an appropriate situation, the
¶ 75. The Third Circuit in Isidor Paiewonsky Assocs., Inc. v. Sharp Props., Inc., 998 F.2d 145, 155 (3rd Cir.1993) said "`[s]ince the non-parties to this arbitration agreement have related and congruent interests with the principals to the litigation,' we would uphold the district court's decision to enforce the arbitration clause."
¶ 76. The Fourth Circuit in Long v. Silver, 248 F.3d 309, 316-17 (4th Cir.2001) concluded that equitable estoppel permits nonsignatory shareholder to invoke corporation's arbitration agreement and compel arbitration.
¶ 77. The Fifth Circuit in Grigson v. Creative Artists Agency, L.L.C, 210 F.3d 524, 527 (5th Cir.2000) determined that nonsignatory could compel arbitration under the theory of equitable estoppel.
¶ 78. The Sixth Circuit in Arnold v. Arnold Corp.-Printed Communications for Bus., 920 F.2d 1269 (6th Cir.1990) noted that "Other circuits have held consistently that nonsignatories of arbitration agreements may be bound by the agreement under ordinary contract and agency principles." Id. at 1282. "We therefore will follow the well-settled principle affording agents the benefits of arbitration agreements made by their principal and affirm the district court's decision on this issue." Id.
¶ 79. The Seventh Circuit in In re Oil Spill by Amoco Cadiz Off Coast of France March 16, 1978, 659 F.2d 789, 796 (7th Cir.1981) held: "Having alleged an agency relationship as a basis for its standing in the suit, it cannot slough off that relationship at will. It would advance neither judicial economy nor the purposes of the federal arbitration act to permit International to assert in a judicial forum claims grounded upon its alleged relationship to Transport and to allow it to disavow the relationship for purposes of arbitration, or to allow Transport to defeat the effect of an arbitration agreement by joining a non-signatory as a party-plaintiff in its complaint."
¶ 80. The Eighth Circuit in Dominium Austin Partners, L.L.C., v. Emerson, 248 F.3d 720, 728 (8th Cir.2001) concluded that "It would be inequitable to allow appellants to claim that these parties are liable for failure to perform under a contract and at the same time to deny that they are contractual parties in order to avoid enforcement of the arbitration clause."
¶ 81. The Ninth Circuit in Letizia v. Prudential Bache Secs., 802 F.2d 1185 (9th Cir.1986) noted that "Other circuits have held consistently that nonsignatories of arbitration agreements may be bound by the agreement under ordinary contract and agency principles." Letizia., 802 F.2d at 1187. "Several courts have addressed the problem of nonsignatories in cases factually similar to this one." Id. at 1188. "In virtually every case, they have held the brokerage firm employees bound by the arbitration agreement." Id. "We find the majority view persuasive." Id.
¶ 82. The Eleventh Circuit in MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942 (11th Cir.1999), eventually came to the same conclusion, after a slight detour. Previously, in Wilson v. Waverlee Homes, the federal court for the middle district of Alabama dealt with a situation, seemingly similar to the one in case the case subjudice. Waverlee Homes, the manufacturer, was not a signatory to the contracts that contained the arbitration agreement. Wilson, 954 F.Supp. at 1532. Waverlee Homes sought to invoke the arbitration clause and compel arbitration. Id. The district court held that because it was a non-party to the contracts containing the
¶ 83. However, a closer look at Wilson indicates that the case is clearly distinguishable from the present case. In Wilson, the court found that the manufacturer could not compel arbitration for the following reasons:
Wilson, 954 F.Supp. at 1535. In the case sub judice, there clearly is an agency relationship between Champion and Town & Country, Champion's warranty does not specifically disavow such a relationship, and the relevant issues are inescapably intertwined. Wilson can be further distinguished in that the mobile home seller, (who was the signatory in that case) Hart's Mobile Home, was not even a party to the lawsuit. Id. at 1532. Presiding Justice McRae's reliance on Wilson is misplaced.
¶ 84. Two years after affirming the district court in Wilson, the Eleventh Circuit in MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942 (11th Cir.1999) once again visited this issue and joined the overwhelming majority of circuits that have addressed that issue. The Eleventh Circuit first noted that there were three theories under which a non-signatory could compel arbitration: (1) equitable estoppel, (2) agency theory, and (3) third-party beneficiary theory. MS Dealer, 177 F.3d at 947-48. In that case, the court held that the nonsignatory could compel arbitration under the theory of equitable estoppel and did not get to the merits of the other two theories. Id.
¶ 85. Mississippi federal courts have similarly dealt with this issue.
¶ 86. In Gulf Guar. Life Ins. Co. v. Connecticut Gen. Life Ins. Co., 957 F.Supp. 839 (S.D.Miss.1997), Judge Barbour held:
Gulf Guar. Life, 957 F.Supp. at 841-42 (citing Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 758 (11th Cir. 1993)). The district court also rejected the plaintiff's argument that the claim was not based on the agreement containing the arbitration clause, but instead, based on an independent tort action for two reasons: first, the plaintiff alleged an agency relationship in its complaint; and second, the tort claim was not separate and independent because it necessarily rested on the validity of the contract claim. Id. at 842.
¶ 87. In Mississippi Fleet Card v. Bilstat, Inc., 175 F.Supp.2d 894 (S.D.Miss. 2001), the District Court for the Southern District of Mississippi had a opportunity to revisit this issue, and came to the same conclusions. In Mississippi Fleet Card, five different defendants who were not signatories to a processing agreement which contained an arbitration clause, attempted to compel arbitration of the claims asserted against them. Mississippi Fleet Card, 175 F.Supp.2d at 900. The district court
Id. (quoting Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 527 (5th Cir.2000), quoting MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999)). The district court then held that all five of the defendants could compel arbitration, under Mississippi law, because all claims asserted by the plaintiff against the non-signatory defendant either presume the existence of the written processing agreement or allege concerted misconduct by both the non-signatory defendants and the signatory defendant. Id. at 900-01.
¶ 88. In the case subjudice, all of claims of Parkerson against the Smiths, in their individual capacity, and against Champion, make reference to, arise out of, and presume the existence of a contract that contains the arbitration clause. Further, the amended complaint sets forth the agency relationship between the signatory dealer, Town & Country, and the non-signatory manufacturer, Champion. Parkerson's claims are grounded in the contract of sale and her enumerated damages rely upon this contract of sale. I find the reasoning of the Mississippi federal courts persuasive and the Smiths and Champion, as non-signatory defendants, can compel arbitration through the theory of equitable estoppel.
VII. WHETHER THE ARBITRATION CLAUSE IS UNENFORCEABLE BECAUSE PARKERSON DID NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVE HER CONSTITUTIONAL RIGHT TO A JURY TRIAL.
¶ 89. Parkerson argues that Article 3, Section 31 of the Mississippi Constitution guarantees more than just a jury trial, it guarantees that our courts shall remain open so that citizens have a remedy by due course of law. She also argues that, because of the potential that the front-loaded high cost of arbitration can deprive our citizens of that right, the courts must require a strong showing that the citizen has made a knowing, intelligent and voluntary waiver of the right to a jury trial.
¶ 90. Champion responds that the determinative issue is not whether Parkerson knowingly raised her federal or state constitutional rights to a jury trial, but simply, whether she has agreed to have her claims arbitrated. There is no right to a jury trial in a arbitral forum, as opposed to a judicial forum.
¶ 91. In Bank One v. Coates, 125 F.Supp.2d 819 (S.D.Miss.2001), the District Court for the Southern District of Mississippi
Bank One, 125 F.Supp.2d at 834.
¶ 92. As was previously discussed in Issue V, Parkerson clearly agreed to arbitrate any controversy or claim ... arising out of or relating to this Contract or any agreements or instruments relating to or delivered in connection with this Contract, including any claim based on or arising form an alleged tort, .... Language such as this as been deemed "a broad arbitration clause" by this Court. See Smith Barney, 775 So.2d at 726.
¶ 93. Champion was not specifically referenced nor specifically excluded in the contract. However, Parkerson clearly agreed to arbitrate any controversy or claim, and that assent is manifested in the contract itself, and the principles of agency, contract and equity as have been discussed in previous sections. There is no constitutional right to a jury trial in an arbitral forum, any more than there is a constitutional right to a jury trial in chancery court.
¶ 94. For the foregoing reasons, I would find that the Magnuson-Moss Act does not supersede the Federal Arbitration Act. However, because the trial judge did not make findings of facts on this issue, nor did he discuss this issue in his final order, the question of the substantive unconscionability remains unresolved. I would remand for further proceedings as set forth in Issue IV above, so the trial judge can properly consider and make the record on this issue.
PITTMAN, C.J., concurring in part and dissenting in part.
¶ 95. I am of the opinion that the Magnuson-Moss Warranty Act is not in sufficient conflict with the Federal Arbitration Act to warrant our holding that it supercedes the FAA. The reasoning in Justice Cobb's dissent on this matter is sound, and I am persuaded by the opinion of the Texas Supreme Court whose holding is
¶ 96. I write separately to discuss an issue Presiding Justice McRae addresses and Justice Diaz mentions in his opinion, but does not elaborate upon: whether Champion Homes can compel arbitration in this case.
¶ 97. This dispute arises from the formulation and breach of a contract between the contracts signatories: Apryl Parkerson and Town and Country Mobile Homes. This contract contains the only arbitration clause to be found in the exhibits before the Court. The only other party mentioned in this purchase contract is the financier, BankAmerica Housing Services, which is not a party to this suit. Champion Homes asserts it has the ability to compel arbitration because Parkerson asserts in her complaint that Town and Country was acting as an agent for Champion Homes. I reject this assertion in light of the fact that Champion Homes is not a signatory to the contract.
¶ 98. Arbitration is only available between the parties who choose to include it in their contract. It is not available to a third party who is not a signatory to the contract. How can it be said that Champion Homes bargained for an arbitration clause in a contract that it never signed? It follows that Champion Homes cannot reap the benefit of a bargain it never made. The theory of equitable estoppel considered by the Fifth Circuit in Grigson v. Creative Artists Agency, L.L.C. 210 F.3d 524, 527 (5th Cir.2000), is compelling insofar as recovery is allowed for breach of contractual warranties. However, instead of an action for breach of contract, I find Parkerson's remedy is better found in a products liability suit against Champion Homes as the mobile home's manufacturer.
¶ 99. Champion Homes cannot use this purchase contract to force Apryl Parkerson into arbitration simply because it did not execute the contract. Therefore, I concur in part and dissent in part.
WALLER, J., JOINS THIS OPINION. COBB AND CARLSON, JJ., JOIN IN PART.
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. at 626-27, 105 S.Ct. at 3354 (citations omitted).
Miss.Code Ann. § 75-2-302 (1972).