Caplin Enterprises, Inc. v. Denise Arrington ( 2011 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2011-CT-01332-SCT
CAPLIN ENTERPRISES, INC. AND CHECK
CASHERS & MORE, INC. d/b/a ZIPPY CHECK
ADVANCE
v.
DENISE ARRINGTON, JOHNNY ARRINGTON,
MARGIE BLACKLEDGE, BRENDA BONNER,
JUANITA DAVIS, KENNETH DAVIS, KER’RITA
EVANS, LARRY EVANS, GOLDIE GOODWIN,
PANSAFAE GORDON, RAY CHARLES GRAY,
MAMIE HENRY, CAROLYN HINTON, CURTIS
HINTON, TAMMY HOWARD, KATHY JONES,
VIOLA NASH, LANNY SKINNER, KATHLEEN
STERLING AND JAMES WATTS
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 06/20/2011
TRIAL JUDGE: HON. LESTER F. WILLIAMSON, JR.
TRIAL COURT ATTORNEYS: GEORGE CAYCE NICOLS
HENRY PALMER
CHRISTOPHER MICHAEL FALGOUT
COURT FROM WHICH APPEALED: CLARKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: GEORGE C. NICOLS
ATTORNEYS FOR APPELLEES: CHRISTOPHER MICHAEL FALGOUT
EARL P. JORDAN, JR.
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS AFFIRMED IN PART AND
REVERSED IN PART. THE JUDGMENT OF
THE CLARKE COUNTY CIRCUIT COURT
IS AFFIRMED - 05/08/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2011-CT-01932-SCT
CAPLIN ENTERPRISES, INC. AND CHECK
CASHERS & MORE, INC. d/b/a ZIPPY CHECK
ADVANCE
v.
JERALD AINSWORTH, MARY BATTLE, WILMA
CARSTARFHNUR, KIMBERLY GAINES, FRED
JONES, SHONDA LOVE, ARCHIE MOORE,
TOMECCA PICKETT, TAMMY PITTS, DORIS
TURNER, BORONICA WILLIAMSON AND
SHIRLEY WILSON
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 11/28/2011
TRIAL JUDGE: HON. VERNON R. COTTEN
COURT FROM WHICH APPEALED: NEWTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: GEORGE C. NICOLS
ATTORNEYS FOR APPELLEES: CHRISTOPHER MICHAEL FALGOUT
EARL P. JORDAN, JR.
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS AFFIRMED IN PART AND
REVERSED IN PART. THE JUDGMENT OF
THE NEWTON COUNTY CIRCUIT COURT
IS AFFIRMED - 05/08/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CHANDLER, JUSTICE, FOR THE COURT:
¶1. In these consolidated cases, thirty-two plaintiffs who signed delayed-deposit check
agreements with Zippy Check Advance agreed that Zippy Check could pursue judicial
2
remedies against them to collect the debt, while any and all of their claims would be
relegated to arbitration. The circuit courts found the arbitration agreements to be
unconscionable and denied Zippy Check’s motions to compel arbitration. The Court of
Appeals affirmed as to one version of the agreement and reversed as to the other. We find
that both versions of the arbitration agreement were so one-sided that they were substantively
unconscionable and unenforceable. Therefore, we affirm in part and reverse in part the
judgment of the Court of Appeals and affirm the judgments of the Circuit Court of Clarke
County and the Circuit Court of Newton County.
FACTS
¶2. In 2010, the plaintiffs initiated two lawsuits against Zippy Check, a check-cashing
business, alleging fraudulent misrepresentation and predatory lending, inter alia. One suit
was filed in the Circuit Court of Clarke County; the other was filed in the Circuit Court of
Newton County. Each plaintiff had signed one of two versions of a delayed-deposit
agreement with Zippy Check; each agreement contained different arbitration provisions.
Zippy Check filed a motion to compel arbitration in each case.
¶3. Eight of the plaintiffs signed the older version of the delayed-deposit agreement. The
front of this contract provided the amount financed, finance charge, annual percentage rate
(described as “the cost of your fee as a yearly rate”), and the total owed. The reverse side of
the contract consisted of several unnumbered paragraphs in fine print, including the
following language:
Should you default under this Agreement, the Company may, at its option,
exercise any one of the following remedies:
3
...
2. If payment is not made after a written demand, the Company may go
to court and get a judgment against you for the then unpaid amount of your
obligation to the Company. In the event judgment is entered in the Company’s
favor, the Company may seek to collect this judgment through all judicial
means necessary including attaching your non-exempt property, or garnishing
your wages;
...
4. If this matter is placed with an attorney for collection of any and all
monies due and owing the Company, all reasonable and necessary costs and
expenses of collection, specifically including, but not limited to reasonable
attorney fees and other damages as set forth by the court, shall be paid by you.
...
Any controversy or claim arising out of or relating to this contract, or the
breach thereof, shall be settled by arbitration administered by the American
Arbitration Association (“AAA”) and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
The Company shall not be liable to you for any indirect, special or
consequential damages arising out of or related to this contract, even if the
Company has been advised of the possibility of such damages. In no event
shall the Company’s liability, if any, exceed [t]he price paid by you for the
services rendered hereunder. Where disclaimer, exclusion or limitation of
liability for consequential or incidental damages is limited by law, our liability
is limited to the greatest extent permitted by law.
Thus, the contract provided that Zippy Check could pursue “all” judicial remedies to collect
on the debt, including attaching property and garnishing wages, as well as collecting
“attorney fees and other damages as set forth by the court,” but the plaintiffs had to bring all
of their claims to arbitration. Additionally, the contract limited Zippy Check’s liability to the
“price paid by [the plaintiffs] for the services rendered.”
4
¶4. Twenty-four of the plaintiffs signed the “new” version of the contract. That contract
provided:
ARBITRATION PROVISION: Any and all disputes or agreements
between the parties arising out of this Agreement or any prior agreement
between them (except the Lender’s rights to enforce the Borrower[’s] payment
obligations in the event of default by judicial or other process) shall be
resolved, upon the election of you or us, by binding arbitration and in
accordance with rules of the American Arbitration Association as presently
published and existing. The parties agree to be bound by the decision of the
arbitrator(s). The arbitration proceeding shall be a condition precedent to any
court proceeding. Notwithstanding the applicability of any other law to any
other provision of this Agreement, the Federal Arbitration Act, 9 U.S.C.
Section 10 shall control the construction, interpretation, and application of the
paragraph. Any issue as to whether the Agreement is subject to arbitration
shall be determined by the arbitrator.
Like the old version of the contract, the new version allowed Zippy Check to pursue judicial
remedies, while relegating any and all of the plaintiffs’ claims to arbitration.
¶5. Finding both arbitration provisions unconscionable, the Clarke County Circuit Court
denied Zippy Check’s motion to compel arbitration. The Newton County Circuit Court
adopted those findings and also denied arbitration. Zippy Check appealed the denial of
arbitration in both cases, and the cases were consolidated on appeal. The Court of Appeals
reversed as to the twenty-four plaintiffs who had signed the newer agreement. Caplin
Enters., Inc. v. Arrington, 2011-CA-01332-COA, 2013 WL 1878879, **8-9 (¶¶ 41-42)
(Miss. Ct. App. May 7, 2013). However, the Court of Appeals affirmed the circuit courts’
denial of arbitration as to the eight plaintiffs who had signed the older agreement, finding that
the arbitration provision in the older agreement was procedurally unconscionable. Id. at **
7, 10 (¶¶ 29, 42). The Court of Appeals also found that both versions of the agreement
5
amounted to contracts of adhesion. Id. at **6, 7 (¶¶ 27, 32). We granted Zippy Check’s
petition for writ of certiorari.
DISCUSSION
¶6. We begin by addressing a procedural matter attendant to Zippy Check’s petition for
certiorari. Zippy Check sought certiorari review of the decision of the Court of Appeals on
the older version of the contract. Nonetheless, having granted certiorari, this Court may
review the Court of Appeals decision on the new version of the contract as well. Mississippi
Rule of Appellate Procedure 17 states that, by granting a petition for writ of certiorari, this
Court may “review any decision of the Court of Appeals.” M.R.A.P. 17(a); see also
M.R.A.P. 17(h) (“The Supreme Court’s review on the grant of certiorari shall be conducted
on the record and briefs previously filed in the Court of Appeals . . . .”); Guice v. State, 952
So. 2d 129, 133 (Miss. 2007) (“[W]e have the authority to address all issues raised before the
Court of Appeals and addressed by that court . . . .”); Lester v. State, 744 So. 2d 757, 758
(Miss. 1999) (addressing as plain error a matter not raised in the certiorari petition). We
proceed to review the entire decision of the Court of Appeals.
¶7. This Court applies de novo review to the grant or denial of a motion to compel
arbitration. Sawyers v. Herrin-Gear Chevrolet Co., Inc., 26 So. 3d 1026, 1034 (Miss. 2010)
(citing East Ford, Inc. v. Taylor, 826 So. 2d 709, 713 (Miss. 2002)). We have adopted the
federal policy favoring arbitration, under which “any doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration.” Sawyers v. Herrin-Gear
Chevrolet Co., Inc., 26 So. 3d 1026, 1034 (Miss. 2010) (quoting Moses H. Cone Mem’l
6
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 74 L. Ed. 2d 765
(1983)).
¶8. We apply a two-pronged test to determine whether arbitration should be enforced
under the Federal Arbitration Act. Rogers-Dabbs Chevrolet-Hummer, Inc. v. Blakeney, 950
So. 2d 170, 173 (Miss. 2007) (citing Taylor, 826 So. 2d at 713). Under the first prong, we
determine “whether the parties have agreed to arbitrate the dispute.” Blakeney, 950 So. 2d
at 173 (citing Taylor, 826 So. 2d at 713). This prong has two aspects: “(1) whether there is
a valid arbitration agreement and (2) whether the parties’ dispute is within the scope of the
arbitration agreement.” Blakeney, 950 So. 2d at 173 (citing Taylor, 826 So. 2d at 713). If we
determine that the parties did not agree to arbitrate the dispute at issue, the analysis is at an
end. But if we conclude that the parties did agree to arbitrate, we will address the second
prong, which is “whether legal constraints external to the parties’ agreement foreclosed
arbitration of those claims.” Blakeney, 950 So. 2d at 173 (quoting Taylor, 826 So. 2d at 713).
I. Whether the parties agreed to arbitrate the dispute.
¶9. To determine if the arbitration agreement is valid, we apply contract law to analyze
whether a valid contract exists between the parties. Adams Cmty. Care Ctr., LLC v. Reed,
37 So. 3d 1155, 1158 (Miss. 2010) (citing Grenada Living Ctr., LLC v. Coleman, 961 So.
2d 33, 36-37 (Miss. 2007)). “The elements of a contract are ‘(1) two or more contracting
parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal
capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding
contract formation.’” Reed, 37 So. 3d at 1158 (quoting Coleman, 961 So. 2d at 37). The
plaintiffs focus on the alleged procedural and substantive unconscionability of the arbitration
7
clauses; they do not argue that the contract itself was invalid. Each agreement involved two
or more contracting parties; consideration consisted of a cash amount in exchange for Zippy
Check’s cash-advance services; the agreement was sufficiently definite; and there was no
legal prohibition precluding the contract. The parties have not presented any evidence that
they lacked the legal capacity to contract or that mutual assent was lacking. Therefore, we
find that each element of a contract is present.
¶10. Second, we must determine whether the disputed issue is within the scope of the
arbitration agreement. Blakeney, 950 So. 2d at 173 (citing Taylor, 826 So. 2d at 713 (¶ 9)).
The arbitration clause provided that “[a]ny controversy or claim arising out of or relating to”
the contract shall be settled by arbitration. The plaintiffs alleged that Zippy Check engaged
in predatory lending; made fraudulent misrepresentations concerning the terms of the
transactions and in their collection attempts; breached the covenant of good faith and fair
dealing; was negligent in handling the plaintiffs’ accounts; caused the plaintiffs to suffer
emotional distress and mental anguish; and was negligent in hiring, training, and supervising
employees. The plaintiffs’ claims against Zippy Check arise out of or relate to the Zippy
Check delayed-deposit agreement, and the dispute is within the scope of the arbitration
agreement. We find that the parties agreed to arbitrate the dispute.
II. Whether legal constraints external to the parties’ agreement
foreclosed arbitration.
¶11. The second prong of the test for whether arbitration should be enforced is to determine
“whether legal constraints external to the parties’ agreement foreclosed arbitration of those
claims.” Blakeney, 950 So. 2d at 173 (citing Taylor, 826 So. 2d at 713). Under the second
8
prong, we consider whether “defenses available under state contract law such as fraud,
duress, and unconscionability” may invalidate the arbitration agreement. Taylor, 826 So. 2d
at 713 (citing Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 686, 116 S. Ct. 1652, 134
L. Ed. 2d 902 (1996)). The only defense at issue is unconscionability, which “has been
defined as ‘an absence of meaningful choice on the part of one of the parties, together with
contract terms [that] are unreasonably favorable to the other party.’” Taylor, 826 So. 2d at
715 (quoting Entergy Miss., Inc. v. Burdette Gin Co., 726 So. 2d 1202, 1207 (Miss. 1998)).
¶12. Two strains of unconscionability are recognized – procedural and substantive. Taylor,
826 So. 2d at 714. Procedural unconscionability can be shown by: (1) lack of knowledge; (2)
lack of voluntariness; (3) inconspicuous print; (4) the use of complex, legalistic language;
(5) disparity in sophistication or bargaining power of the parties; and/or (6) lack of
opportunity to study the contract and inquire about the terms. MS Credit Ctr., Inc. v. Horton,
926 So. 2d 167, 177 (Miss. 2006) (quoting Taylor, 826 So. 2d at 714). “Substantive
unconscionability may be proven by showing the terms of the arbitration agreement to be
oppressive.” Taylor, 826 So. 2d at 714 (citing York v. Georgia-Pac. Corp., 585 F. Supp.
1265, 1278 (N.D. Miss. 1984)).
¶13. Our analysis focuses on the substantive unconscionability of the arbitration
agreements. A contract is substantively unconscionable if there is “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 1202, 1207
(Miss. 1998) (quoting Bank of Indiana, Nat’l Ass’n v. Holyfield, 476 F. Supp. 104, 109
(S.D. Miss. 1979)). To determine whether a contract is substantively unconscionable, “we
9
look within the four corners of an agreement in order to discover any abuses relating to the
specific terms which violate the expectations of, or cause gross disparity between, the
contracting parties.” Covenant Health & Rehab. of Picayune, LP v. Estate of Moulds ex rel.
Braddock, 14 So. 3d 695, 699 (Miss. 2009) (quoting Vicksburg Partners, L.P. v. Stephens,
911 So. 2d 507, 521 (Miss. 2005) (overruled on other grounds)).
¶14. “Substantive unconscionability is proven by oppressive contract terms such that ‘there
is a one-sided agreement whereby one party is deprived of all the benefits of the agreement
or left without a remedy for another party’s nonperformance or breach.’” Estate of Moulds,
14 So. 3d at 699-700 (quoting Holyfield, 476 F. Supp. at 110). It is not necessary that
arbitration agreements contain “mutual promises that give the parties identical rights and
obligations, or that the parties must be bound in the exact same manner.” 21 Williston on
Contracts § 57:15 (4th ed. 2013) (quoting Iwen v. U.S. West Direct, a Div. of U.S. West
Mktg. Res. Group, Inc., 293 Mont. 512, 522, 977 P.2d 989, 996 (Mont. 1999)). But
“disparities in the rights of the contracting parties must not be so one-sided and unreasonably
favorable to the drafter . . . that the agreement becomes unconscionable and oppressive.” 21
Williston on Contracts § 57:15 (4th ed. 2013) (quoting Iwen, 977 P.2d at 996). Under
Mississippi Code Section 75-2-302, which has been applied to contracts other than for sale
of goods, when a contract is found unconscionable, this Court “may refuse to enforce the
contract, or it may enforce the remainder of the contract without the unconscionable clause,
or it may so limit the application of any unconscionable clause as to avoid any
unconscionable result.” Miss. Code Ann. § 75-2-302 (Rev. 2002); Estate of Moulds, 14 So.
3d at 700.
10
¶15. The contracts at issue, which Zippy Check drafted unilaterally and presented to its
customers on a take-it-or-leave-it basis, were contracts of adhesion. A contract of adhesion
has been described as one that is “drafted unilaterally by the dominant party and then
presented on a ‘take-it-or-leave-it’ basis to the weaker party who has no real opportunity to
bargain about its terms.” Taylor, 826 So. 2d at 716 (quoting Holyfield, 476 F. Supp. at 108).
These contracts “are usually prepared in printed form, and frequently at least some of their
provisions are in extremely small print.” Taylor, 826 So. 2d at 716 (quoting Holyfield, 476
F. Supp. at 108). Contracts of adhesion are not automatically unconscionable. Estate of
Moulds, 14 So. 3d at 701. Nonetheless, we have held that a finding that a contract is adhesive
“makes an argument targeting a provision for a substantive unconscionability review easier
to prove.” Id.
¶16. This Court found a contract of adhesion to be substantively unconscionable in Pitts
v. Watkins, 905 So. 2d 553 (Miss. 2005). Michael and Stephanie Pitts contracted with
Charles Watkins to perform a home inspection on a residence the Pittses were interested in
purchasing. Id. at 554. After Watkins performed the inspection, they purchased the home.
Id. Soon after, the Pittses noticed problems with the home that should have been identified
by the inspector and sued Watkins. Id. at 554-55. The trial court granted Watkins’s motion
for summary judgment on the basis of an arbitration clause in the home-inspection contract.
Id. at 554. The arbitration clause stated “Any dispute concerning the interpretation of this
Agreement or arising from the Inspection and Report (unless based on payment of fee) shall
be resolved by . . . arbitration.” Id. at 556. The arbitration clause forced the Pittses to
arbitrate their claims against Watkins, while permitting Watkins to sue the Pittses in court
11
if they breached the contract by failing to pay the fee. Id. The contract also provided that if
the Pittses breached the contract by failing to pay the fee, they would be responsible for
administration costs, attorney’s fees, and the cost of litigation. Id. This Court found the
arbitration clause, which allowed Watkins to pursue a breach by the Pittses in court while
requiring the Pittses to arbitrate any breach by Watkins, to be “clearly one-sided, oppressive,
and therefore, substantively unconscionable.” Id.
¶17. The Court also found the contract’s limitation-of-liability clause to be substantively
unconscionable. Id. This clause limited Watkins’s liability to the amount paid for the
inspection, $265. Id. We held that limitation-of-liability clauses are to be given strict scrutiny
and will not be enforced “unless the limitation is fairly and honestly negotiated and
understood by both parties.” Id. (quoting Royer Homes of Miss., Inc. v. Chandeleur Homes,
Inc., 857 So. 2d 748, 754 (Miss. 2003)). The Court quoted Lucier v. Williams, 366 N.J.
Super. 485, 493, 841 A.2d 907, 912 (2004), which found a limitation-of-liability clause in
a home-inspection contract to be unconscionable for these reasons:
(1) the contract, prepared by the home inspector, is one of adhesion; (2) the
parties, one a consumer and the other a professional expert, have grossly
unequal bargaining status, and (3) the substance of the provision eviscerates
the contract and its fundamental purpose because the potential damages level
is so nominal that it has the practical effect of avoiding almost all
responsibility for the professional’s negligence.
Pitts, 905 So. 2d at 557. We concluded that the limitation-of-liability clause, which limited
Watkins’s liability to $265 while leaving the Pittses with no redress for their claimed
damages of $30,000 to $40,000, was substantively unconscionable. Id. at 556. The Court also
found that the contract’s attempt to shorten the statute of limitations was unconscionable. Id.
12
at 558. We held that arbitration clause and the limitation-of-liability clause, taken together,
deprived the Pittses of a meaningful remedy. Id.
¶18. In Estate of Moulds, we applied Pitts to find an arbitration clause in a nursing-home-
admission agreement to be substantively unconscionable. Estate of Moulds, 14 So. 3d at 703.
The Court deemed the contract to be one of adhesion because it was a preprinted contract
presented to the weaker party on a take-it-or-leave-it basis. Id. at 701. The arbitration clause
required the patient and responsible party to submit any claims to a grievance procedure but
allowed the nursing-home facility to pursue its claims in court. Id. at 702 n.6. We deemed
the clause unconscionable, noting that, in an earlier case, we had found that, under Pitts, this
very clause was unconscionable because it was one-sided and oppressive. Id. at 703 (citing
Covenant Health Rehab. of Picayune, LP v. Brown, 949 So. 2d 732, 739-41 (Miss. 2007)
(overruled on other grounds)). In the earlier case, we also had relied on Pitts to find that a
clause requiring the plaintiff to pay all costs of collection, including attorney’s fees and
litigation costs, to be so one-sided and oppressive as to be unconscionable. Brown, 949 So.
2d at 739.1
¶19. Applying this precedent, it is beyond question that the old version of the arbitration
clause contained in the adhesive delayed-deposit check agreements was so one-sided as to
1
We note our holding in Sawyers v. Herrin-Gear Toyota, 26 So. 3d 1026, 1035
(Miss. 2010), that an arbitration clause was not unconscionable although it permitted a car
dealership to sue for replevin or possession of the vehicle while relegating the vehicle
purchaser’s claims to arbitration. The Court held the contract provided “a limited exception
to arbitration . . . to obtain possession of the subject vehicle by replevin in the event of
Sawyers’s default under the terms of the sales contract.” Id. The Court approved this limited
exception because “there is collateral or a security interest at stake, because an arbitrator
would not have authority to grant certain relief that only courts could give.” Id. Because this
case does not involve a security interest, we find that Sawyers’s reasoning is distinguishable.
13
be oppressive and substantively unconscionable. As in Pitts, the arbitration clause was
oppressive because it forced the plaintiffs to arbitrate their claims, while permitting Zippy
Check to pursue remedies for the plaintiffs’ breach in court. Additionally, the contract foisted
upon the plaintiffs Zippy Check’s cost of hiring an attorney for collection, including “other
damages” ordered by the court. A similar clause was found to be unconscionable in Pitts.
That contract also attempted to limit Zippy Check’s liability to the finance charge each
plaintiff had paid in exchange for the cash.2 While not all the contracts are in the record, the
ones included show finance charges ranging from $65.85 to $72. As in Pitts, Zippy Check’s
contractually-limited liability is “so nominal that it has the practical effect of avoiding almost
all responsibility” for a breach by Zippy Check, and is unconscionable. The arbitration clause
and the limitation-of-liability clause, taken together, effectively deny the plaintiffs an
adequate remedy against Zippy Check. The arbitration clause is clearly oppressive and
substantively unconscionable. And the arbitration clause in the new version of the contract,
which permitted Zippy Check to pursue judicial remedies while relegating the plaintiffs’
claims to arbitration, is also clearly oppressive and substantively unconscionable pursuant
to Pitts.
¶20. The plaintiffs obviously were so desperate for immediate funds that they signed
agreements for relatively small amounts of cash for a fee that, if characterized as interest,
2
We consider the limitation-of-liability and attorney’s fees-clauses because all clauses
affecting dispute resolution are relevant to whether an arbitration agreement is substantively
unconscionable. This Court in Pitts embraced this approach. Pitts, 905 So. 2d at 557 (stating
that “the limitation of liability clause, when paired with the arbitration clause, effectively
denies the plaintiff of an adequate remedy and is further evidence of substantive
unconscionability”).
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would be usurious.3 They simultaneously agreed that Zippy Check could institute judicial
debt-collection proceedings against them in the event they defaulted on their payment
obligations. The signers of the old version of the contract also agreed that they would pay
Zippy Check’s attorney’s fees and other damages, and that Zippy Check’s liability would be
limited to the finance charge. The preprinted contracts were offered on a take-it-or-leave-it
basis and were contracts of adhesion. While an arbitration agreement need not contain
identical obligations, under the particular facts of this case, the arbitration agreements were
unreasonably favorable to Zippy Check, oppressive, unconscionable, and unenforceable.
Therefore, we affirm in part and reverse in part the judgment of the Court of Appeals and
affirm the judgments of the circuit courts.
¶21. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART
AND REVERSED IN PART. THE JUDGMENTS OF THE CIRCUIT COURT OF
CLARKE COUNTY AND THE CIRCUIT COURT OF NEWTON COUNTY ARE
AFFIRMED.
WALLER, CJ., RANDOLPH, P.J., LAMAR, KITCHENS, PIERCE AND KING,
JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY DICKINSON, P.J.
COLEMAN, JUSTICE, DISSENTING:
¶22. Applying the two-pronged inquiry for determining whether arbitration should be
enforced, under the Court’s policy favoring arbitration, I would hold that the arbitration
provisions in both contracts are valid and enforceable. Therefore, I respectfully dissent.
3
In 1997, this Court held that delayed-deposit check transactions charging more than
eight percent interest per annum were loans that violated the civil usury statute. State v.
Roderick, 704 So. 2d 49, 53 (Miss. 1997). In response, the Legislature enacted the
Mississippi Check Cashers Act, providing that the fees charged are “service fees,” not
interest. Miss. Code Ann. § 75-67-515(4) (Rev. 2009).
15
¶23. The Court of Appeals held that the more extensive arbitration provision in the newer
contract was sufficient and that arbitration should be enforced as to the twenty-four plaintiffs
who signed that contract. Caplin Enters., Inc. v. Arrington, 2011-CA-01332-COA, 2013
WL 1878879, **9-10 (¶¶ 41-42) (Miss. Ct. App. May 7, 2013). Because I agree with the
Court of Appeals about the arbitration clause in the newer contract, and because the parties
did not seek review of that decision, my discussion is limited to the older version of the
contract.
¶24. Mississippi follows the federal policy favoring arbitration, and “any doubts
concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Sawyers
v. Herrin-Gear Chevrolet Co., Inc., 26 So. 3d 1026, 1034 (¶ 20) (Miss. 2010) (quoting
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)). As the
majority explained, we apply a two-pronged test to determine whether arbitration should be
enforced. I agree with the majority that the Zippy Check agreements were valid contracts
and the claims are within the scope of the arbitration agreements. Thus, the parties agreed
to arbitrate the dispute, and the first prong of the test is satisfied. I disagree with the
majority, however, as to the second prong – whether legal constraints external to the parties’
agreement foreclosed arbitration.
¶25. As the majority stated, unconscionability is the only defense at issue.
“Unconscionability has been defined as ‘an absence of meaningful choice on the part of one
of the parties, together with contract terms [that] are unreasonably favorable to the other
party.’” East Ford, Inc. v. Taylor, 826 So. 2d 709, 715 (¶ 17) (Miss. 2002) (quoting Entergy
Miss., Inc. v. Burdette Gin Co., 726 So. 2d 1202, 1207 (¶ 11) (Miss. 1998)). Two types of
16
unconscionability have been recognized by the courts – procedural and substantive. Taylor,
826 So. 2d at 714 (¶ 13).
A. Procedural Unconscionability
¶26. Procedural unconscionability can be shown by: (1) lack of knowledge; (2) lack of
voluntariness; (3) inconspicuous print; (4) the use of complex, legalistic language; (5)
disparity in sophistication or bargaining power of the parties; and/or (6) lack of opportunity
to study the contract and inquire about the terms. MS Credit Ctr., Inc. v. Horton, 926 So.
2d 167, 177 (¶ 30) (Miss. 2006) (quoting Taylor, 826 So. 2d at 714 (¶ 13)). The last three
factors are dispensed with easily. The arbitration clause clearly states that any claims arising
out of or relating to the agreement are subject to arbitration, and it does not contain complex
legalistic language. In addition, no argument has been made regarding disparity in
sophistication or bargaining power of the parties or lack of opportunity to read the contract.
In fact, the check manager testified that she gives customers an opportunity to review the
contract and ask questions.
¶27. The only evidence presented by the plaintiffs pertaining to the lack of knowledge
factor is the lack of knowledge of the check manager for Zippy Check, not the lack of
knowledge of the plaintiffs. Although the check manager’s knowledge is not at issue, she
indicated an understanding of the arbitration clause. She said that, if customers asked her
what the arbitration provision meant, she would explain that it meant they were waiving their
right to a jury trial. Regardless, the check manager did not have a duty to explain all of the
contract terms to the plaintiffs. Horton, 926 So. 2d at 177 (¶ 32) (“[T]his Court has never
held that one party to an arm’s-length contract has an inherent duty to explain its terms to the
17
other.”). It is well established that individuals “have an inherent duty to read the terms of a
contract prior to signing[.]” Id. at 177 (¶ 31). “[A] party may neither neglect to become
familiar with the terms and conditions and then later complain of lack of knowledge, nor
avoid a written contract merely because he or she failed to read it or have someone else read
and explain it.” Id. There is no evidence of lack of knowledge here.
¶28. Regarding the inconspicious print factor, the Court of Appeals found that the
arbitration provision in the older agreement was in a “much smaller font” than the
transactional terms. Caplin, 2013 WL 1878879, *6 (¶ 28). Although the majority does not
address it, I will discuss the font size issue because the Court of Appeals’ language regarding
the “much smaller font” is the only issue actually raised in Zippy Check’s petition for writ
of certiorari. Zippy Check argues that the difference in font sizes does not render the
arbitration provision procedurally unconscionable, because it does not rise to the level of the
significant difference at issue in East Ford v. Taylor, in which the Court held that an
arbitration clause was procedurally unconscionable where it was “less than one-third the size
of many other terms in the document.” Taylor, 826 So. 2d at 716-17 (¶ 21).
¶29. The font for the additional terms on the back of the Zippy Check agreement is indeed
smaller than the font used for the transactional terms on the front. However, the arbitration
provision is formatted identically to all of the “additional” terms, and the arbitration clause
is not hidden in a smaller font among the other terms. There is no requirement that
arbitration provisions be set off or distinguished more than other provisions. In fact, the
Federal Arbitration Act prohibits putting additional requirements on arbitration provisions;
18
rather, arbitration provisions must be treated equally with other contractual terms. See
Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996). We have written:
The United States Supreme Court – whose decisions the justices on this Court
are bound by oath to follow – has clearly declared that Section 2 of the FAA
prohibits courts (including this Court) from singling out arbitration provisions
for special treatment. That is to say, it prevents courts from placing more
stringent requirements for the enforcement of arbitration provisions than for
other provisions in a contract. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S.
681, 687, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996).
Horton, 926 So. 2d at 173-74 (¶ 16). An arbitration clause is sufficient if it is “at least as
open and obvious as other contractual provisions.” Id. at 178 (¶ 34). Such is the case here,
and the arbitration provision is not so inconspicious as to be procedurally unconscionable.
¶30. The final factor is lack of voluntariness. The Court has said that “[l]ack of
voluntariness is demonstrated in contracts of adhesion,” which often arise “when there is a
great imbalance in the parties’ relative bargaining power” or where the contract is “presented
to a party on a take it or leave it basis.” Taylor, 826 So. 2d at 715-16 (¶¶ 18-19) (quoting
Entergy Miss., Inc., 726 So. 2d at 1207-1208 (¶¶ 12, 15) (internal citations omitted)). The
majority finds that both contracts at issue amounted to contracts of adhesion. (Maj. Op. ¶
15.) However, contracts of adhesion are not automatically void. See Taylor, 826 So. 2d at
716 (¶ 20) (quoting Hughes Training, Inc. v. Cook, 254 F.3d 588, 593 (5th Cir. 2001)).
The fact that an arbitration agreement is included in a contract of adhesion
renders the agreement procedurally unconscionable only where the stronger
party’s terms are unnegotiable and “the weaker party is prevented by market
factors, timing[,] or other pressures from being able to contract with another
party on more favorable terms or to refrain from contracting at all.”
Taylor, 826 So. 2d at 716 (¶ 20) (quoting Entergy Miss., Inc., 726 So. 2d at 1207 (¶ 12)
(emphasis added)). Accordingly, for an arbitration provision to be rendered procedurally
19
unconscionable as part of a contract of adhesion, two factors must be present: (1) the stronger
party’s terms are unnegotiable, and (2) the weaker party is prevented from contracting with
another party by market factors, timing, or other pressures.
¶31. The terms in Zippy Check’s preprinted, form agreement are not negotiable. The check
manager testified that if customers did not agree to the terms, she would not be able to loan
them money. Further, the argument can be made that there is an imbalance in the bargaining
power of parties to a delayed-deposit agreement, as the party seeking cash advance services
has a need for immediate cash that is not otherwise available. However, the customers have
the option of choosing from numerous entities that provide the same service. Therefore,
while the terms of the preprinted, form agreement may not be negotiable on an individual
basis, customers certainly have the ability to chose another check cashing business whose
terms may be more favorable. The plaintiffs presented no evidence that they were
“prevented by market factors, timing[,] or other pressures from being able to contract with
another party on more favorable terms or to refrain from contracting at all.” Taylor, 826 So.
2d at 716 (¶ 20). Therefore, I do not find the arbitration provision to be procedurally
unconscionable as part of a contract of adhesion.
B. Substantive Unconscionability
¶32. Because the Court of Appeals agreed with the trial court that the arbitration provision
in the older agreement was procedurally unconscionable, it did not address whether that
agreement was substantively unconscionable, nor did the parties raise substantive
unconscionability in their petition. However, the majority’s analysis is based solely on
substantive unconscionability. (Maj. Op. ¶13.) The arbitration provision used is a standard
20
arbitration clause, and the requirement to arbitrate is not in itself unconscionable. However,
the plaintiffs claim – and the majority accepts – that the agreement unfairly allowed Zippy
Check to pursue judicial remedies for debt collection while limiting the plaintiffs to
arbitration for all claims.
¶33. The clause providing that Zippy Check could pursue judicial remedies for debt
collection was separate from the arbitration clause, which required “[a]ny controversy or
claim arising out of or relating to this contract” to be settled by arbitration. Construing the
terms together, it is clear that Zippy Check could use judicial remedies only for debt
collection, not for all claims against the plaintiffs. Should any claim or controversy arise,
other than debt collection, Zippy Check would be limited to arbitration. A similar situation
was present in Sawyers v. Herrin-Gear Chevrolet, where a contract for the purchase of a
vehicle required arbitration for any claims related to the purchase of the vehicle, “[e]xcept
for an action by [d]ealer to obtain possession and/or replevin of the [v]ehicle.” Sawyers, 26
So. 3d at 1029 (¶ 5). In that case the Court wrote:
The arbitration agreement does permit Herrin-Gear to bring an action for
possession and/or replevin of the vehicle purchased by Sawyers in a court of
law rather than resolving the matter by binding arbitration. However, mutuality
of obligation is not required for a contract to be enforceable. Murphy v.
Amsouth Bank, 269 F. Supp. 2d 749, 752 (S.D. Miss. 2003). See also
McKenzie Check Advance of Miss., LLC v. Hardy, 866 So. 2d 446, 453
(Miss. 2004) (“[p]ursuant to Mississippi law, mutuality of obligation is not
required for an arbitration agreement to be enforceable . . .”). Also, as
discussed by the trial court, “[i]t is common for such provisions to be
contained in an arbitration agreement where there is collateral or a security
interest at stake, because an arbitrator would not have authority to grant certain
relief that only courts could give.” As such, the provision whereby a limited
exception to arbitration is given only to Herrin-Gear to obtain possession of
the subject vehicle by replevin in the event of Sawyer’s default under the terms
21
of the sales contract does not render the arbitration agreement substantively
unconscionable.
Sawyers, 26 So. 3d at 1035 (¶ 22). Likewise, an exception to arbitration for debt collection
should not render the agreement substantively unconscionable.
¶34. In Covenant Health & Rehabilitation of Picayune, LP v. Estate of Moulds ex rel.
Braddock, 14 So. 3d 695 (Miss. 2009), the Court wrote:
Substantive unconscionability is proven by oppressive contract terms such that
“there is a one-sided agreement whereby one party is deprived of all the
benefits of the agreement or left without a remedy for another party’s
nonperformance or breach . . . .” [Bank of Indiana v. Holyfield, 476 F. Supp.
104, 110 (S.D. Miss. 1979)]. One example of a one-sided agreement is one that
allows one party to go to court, but restricts the other to arbitration. See
Pridgen v. Green Tree Fin. Servicing Corp., 88 F. Supp. 2d 655, 658 (S.D.
Miss. 2000).
Estate of Moulds, 14 So. 3d at 699-700 (¶ 12). The agreement at issue is not so one-sided
that the plaintiffs are left without a remedy. They can take their claims to arbitration.
Notably, although Moulds cited Pridgen v. Green Tree for the premise that an agreement
permitting one party to go to court but restricting the other party to arbitration is a one-sided
agreement, the Pridgen Court upheld the arbitration agreement in that case, writing:
. . . Green Tree argues that such one-sidedness has been held to be an
insufficient basis upon which to find the arbitration clause unconscionable,
citing Harris v. Green Tree Fin. Corp., 183 F.3d 173 (3rd Cir. 1999) and
Green Tree Fin. Corp. of Ala. v. Vintson, [753 So. 2d 496 (Ala. 1999).] In
Harris, addressing the very arbitration clause that is involved in the case sub
justice, the United States Court of Appeals for the Third Circuit held that,
under Pennsylvania law, mutuality of obligation was not required for the
arbitration clause to be enforceable, as long as the underlying contract was
supported by consideration. Harris, 183 F.3d at 179-81. That is, the fact that
judicial remedies were not available to both parties did not make the clause
unconscionable or unenforceable. The Third Circuit also noted that this
holding comported with the majority opinion of other federal courts that had
addressed the issue. Id. at 180 (citing Doctor’s Assocs., Inc. v. Distajo, 66
22
F.3d 438 (2d Cir. 1995); Wilson Elec. Contractors, Inc. v. Minnotte
Contracting Corp., 878 F.2d 167 (6th Cir. 1989); Dorsey v. H.C.P. Sales,
Inc., 46 F. Supp. 2d 804 (N.D. Ill. 1999); Randolph v. Green Tree Fin. Corp.,
991 F. Supp. 1410 (M.D. Ala. 1997)).
The United States Court of Appeals for the Fifth Circuit has not directly
addressed this issue. However, Mississippi law is in accord with the law of
Pennsylvania, upon which the Third Circuit based its decision in Harris, in
that mutuality of obligation is not required for a contract to be enforceable.
Clinton Serv. Co. v. Thornton, 233 Miss. 1, 100 So. 2d 863, 866 (1958).
Therefore, the arbitration clause is not unenforceable solely because it is one-
sided. Moreover, even though the Court could still consider the one-sidedness
as a factor in determining whether the clause was substantively
unconscionable, Plaintiff’s only assertion that the clause is substantively
unconscionable is that it is one-sided. As stated above, however, the majority
opinion seems to be that such one-sidedness is not, alone, sufficient to find the
clause unconscionable. The Court finds persuasive the reasoning of the Third
Circuit in Harris, as well as the cases cited therein. Accordingly, the Court
finds that the arbitration clause is not unconscionable, especially in light of the
federal policy favoring arbitration. The Court thus finds that the motion of
Green Tree to dismiss and compel arbitration should be granted.
Pridgen, 88 F. Supp. 2d at 658-59 (footnote omitted). Also worth noting is the fact that the
issue is well-settled in Mississippi federal courts. In Murphy v. Amsouth Bank, 269 F.
Supp. 2d 749 (S.D. Miss. 2003), the Southern District Court wrote:
Regarding the mutuality issue, plaintiffs argue because the arbitration
agreement mandates arbitration of any claim they might choose to assert, while
reserving unto AmSouth the right to utilize the remedies of foreclosure,
selfhelp repossession[,] and replevin in a court, the agreement lacks mutuality
of obligation and is for that reason unconscionable and unenforceable. This
court has previously rejected this identical argument. See First Family
Financial Services, Inc. v. Fairley, 173 F. Supp. 2d 565, 572 (S.D. Miss.
2001) (holding that “‘mutuality of obligation is not required for a contract to
be enforceable,’ and an ‘arbitration clause is not unenforceable solely because
it is one-sided.’”) (quoting Pridgen v. Green Tree Financial Servicing Corp.,
88 F. Supp. 2d 655, 659 (S.D. Miss. 2000)); see also Raesly v. Grand
Housing, Inc., 105 F. Supp. 2d 562, 570 (S.D. Miss. 2000) (same).
Murphy, 269 F. Supp. 2d at 752.
23
¶35. The majority relies on Pitts v. Watkins, 905 So. 2d 553 (Miss. 2005), in which the
Court held that an arbitration clause containing some of the same restrictions as the instant
contract was substantively unconscionable. Pitts, 905 So. 2d at 555 (¶ 10). The arbitration
clause in Pitts restricted the parties to arbitration, with the exception that Watkins could
pursue claims for nonpayment of his fee in court. Id. The contract also limited the amount
that the Pittses could recover to the amount paid for their home inspection and imposed a
one-year statute of limitations. Id. at 556-58 (¶¶ 12, 17). The Court held that “[t]he
limitation of liability clause, when paired with the arbitration clause, effectively denies the
plaintiff . . . an adequate remedy and is further evidence of substantive unconscionability.”
Id. at 557 (¶ 15).
¶36. The contract in Pitts was similar to the Zippy Check contract in that both parties were
required to take all claims to arbitration, with one exception. In Pitts, Watkins was required
to arbitrate all claims with the exception of disputes based on the payment of his fee. Id. at
560 (¶ 28) (Dickinson, J., dissenting). Likewise, here, Zippy Check is required to arbitrate
claims arising out of the contract with the exception of debt collection. As discussed above,
in Sawyers v. Herrin-Gear Chevrolet, the Court upheld an arbitration agreement where the
contract required arbitration for any claims related to the purchase of the vehicle, “[e]xcept
for an action by [d]ealer to obtain possession and/or replevin of the [v]ehicle.” Sawyers, 26
So. 3d at 1029 (¶ 5). The holding in Sawyers was subsequent to Pitts v. Watkins and is
consistent with numerous decisions from Mississippi federal courts. Thus, I would hold,
consistent with Sawyers, that the fact that one party retains the option to use judicial
remedies for specific purposes – especially a purpose that generally requires judicial
24
enforcement (i.e., collection, replevin, repossession) – should not invalidate an agreement
to arbitrate. Pitts v. Watkins was an exception to the general rule and, in my opinion, it
should be overruled.
¶37. Relying on Pitts v. Watkins, the majority finds that the contract is unconscionable
because it limits Zippy Check’s liability and provides that the plaintiffs would have to pay
attorney’s fees and the cost of collection. (Maj. Op. ¶ 19.) That issue was not raised by the
plaintiffs. I recognize that “[c]lauses that limit liability are given strict scrutiny by this Court
and are not to be enforced unless the limitation is fairly and honestly negotiated and
understood by both parties.” Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857
So. 2d 748, 754 (¶ 18) (Miss. 2003). However, that issue is for the arbitrator. After finding
that the dispute is subject to arbitration and that the arbitration agreement itself is not
unconscionable, any other claims related to the contract must be submitted to arbitration. See
Rent-A-Ctr., W., Inc. v. Jackson, 130 S. Ct. 2772, 2778 (2010) (A “challenge to another
provision of the contract, or to the contract as a whole, does not prevent a court from
enforcing a specific agreement to arbitrate.”); Buckeye Check Cashing, Inc. v. Cardegna,
546 U.S. 440, 445-46 (2006) (challenges to the contract other than to the arbitration
provisions should be considered by the arbitrator); Will-Drill Res., Inc. v. Samson Res. Co.,
352 F.3d 211, 218 (5th Cir. 2003) (“Only if the arbitration clause is attacked on an
independent basis can the court decide the dispute; otherwise, general attacks on the
agreement are for the arbitrator.”). Arbitration is limited to choice of forum. Estate of
Moulds, 14 So. 3d at 697, 703 (¶¶ 3, 25). The limitation of liability provision in the Zippy
Check contract is separate from the arbitration clause. Thus, the validity of that provision
25
– and allegations of unconscionability as to any other provision in the contract – should be
submitted to the arbitrator.
¶38. The majority also relies on Estate of Moulds to support its position that the arbitration
agreement is substantively unconscionable. The Court’s finding of unconscionability in
Estate of Moulds was based on reasons not at issue here. The contract in that case had been
the subject of several lawsuits that had come before this Court and the Court of Appeals. In
each case, the appellate courts found additional provisions of the contract to be
unconscionable, each time striking the unconscionable provisions, but enforcing arbitration.
In Estate of Moulds, the Court wrote:
[E]ach time this contract has come before this Court, the litigants have urged
additional terms to be declared unconscionable and unenforceable. In
Stephens, clauses E7 and E8 were invalidated by this Court. [Vicksburg
Partners, L.P. v. Stephens, 911 So. 2d 507, 523-24 (Miss. 2005).] In Brown,
in addition to E7 and E8, this Court reformed the contract to invalidate clauses
C5, C8, E5, E6, E12, E16, and the last sentence of the arbitration agreement.
[Covenant Health Rehab of Picayune, L.P. v. Brown, 949 So. 2d 732, 741-42
(Miss. 2007).] Covenant Health concedes that all these provisions are
unenforceable in this case. In a previous case before the Court of Appeals,
Covenant Health conceded the unenforceability of all these provisions, as well
as two additional clauses, D4 and E13. Covenant Health & Rehab. of
Picayune, LP v. Estate of Lambert, 984 So. 2d 283, 287 (Miss. Ct. App.
2006). In another case before the Court of Appeals, the Court of Appeals
found several provisions unenforceable, including E14, which was held to be
in violation of a statute. [Trinity Mission of Clinton, LLC v. Barber, 988 So.
2d 910, 923 (Miss. Ct. App. 2007).]
Estate of Moulds, 14 So. 3d at 701-02 (¶ 20) (emphasis in original, footnotes omitted). By
the time the contract was before the Court in Estate of Moulds, no less than a dozen separate
provisions had been struck from the contract. Id. And in Estate of Moulds, the Court found
at least three more “questionable provisions.” Id. at 702 (¶ 21). Further, the arbitration
26
forum required by the agreement was no longer available to the parties. Id. at 706-709 (¶¶
36-45). The Court held that the unavailability of the arbitration forum, “coupled with a
multitude of unconscionable provisions” in the contract, rendered the entire contract
unconscionable. Id. at 703 (¶ 25). The Court wrote:
Based on the issues considered and the application of basic contract-law
principles, we conclude that this contract is unconscionable, as it contains
numerous unconscionable provisions. The contract weaves unconscionable
nonforum terms into the arbitration provision. Arbitration is limited to choice
of forum. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S.
614, 628, 105 S. Ct. 3346, 3354, 87 L. Ed. 2d 444, 456 (1985); Stephens, 911
So. 2d at 525. This conclusion is consistent with our body of law regarding the
enforcement of contracts, and conforms to the national body of law addressing
similar issues. The course we follow exceeds the excision of numerous
unconscionable provisions, and voids the contract. Furthermore, since
arbitration is about forum choice, were we to assume arguendo the validity of
the contract, the contested agreement to arbitrate still would be unenforceable,
as the forum putatively agreed upon is unavailable. The learned trial judge
rightly denied arbitration as the forum for this dispute.
Estate of Moulds, 14 So. 3d at 697-98 (¶ 3). Unlike the contract at issue in Estate of
Moulds, the contract in the case sub judice has not woven “unconscionable nonforum terms
into the arbitration provision.” Id. The nonforum terms, unconscionable or not, are not part
of the arbitration clause. The arbitration clause is simply one term in the contract; it stands
alone, as do the other provisions. The plaintiffs have not asked the courts to invalidate the
entire contract, and I decline to do so.
¶39. We are called upon to consider only whether the arbitration clause should be enforced.
“The party resisting arbitration must shoulder the burden of proving a defense to arbitration.”
Norwest Fin. Miss., Inc. v. McDonald, 905 So. 2d 1187, 1193 (¶ 11) (Miss. 2005) (citing
Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 92 (2000)). The plaintiffs have
27
the burden of proving that the arbitration clause is unconscionable. Zippy Check does not
bear that burden. Nor do we. I find no evidence that the arbitration provision itself was
oppressive or left the plaintiffs without a remedy. Rather, the provision “merely submits the
question of liability to a forum other than the courts.” Horton, 926 So. 2d at 179 (¶ 38)
(citing Taylor, 826 So. 2d at 716 (¶ 20)).
¶40. In my opinion, the arbitration provision is neither procedurally nor substantively
unconscionable and no legal constraints external to the parties’ agreement foreclose
arbitration. Disputes about any other provisions of the contract should be submitted to the
arbitrator. Therefore, I would reverse the Court of Appeals’ judgment affirming the trial
court’s denial of Zippy Check’s motion to compel arbitration as to the eight plaintiffs who
signed the older agreement and remand the cases for the parties to submit to arbitration.
DICKINSON, P.J., JOINS THIS OPINION.
28