Apryl L. Parkerson v. Wayne Smith ( 2000 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-CA-00549-SCT
APRYL L. PARKERSON
v.
WAYNE SMITH, VERDA PEARL SMITH, TOWN AND COUNTRY BUILDERS, INC. d/b/a
TOWN AND COUNTRY MOBILE HOMES AND CHAMPION HOME BUILDERS CO.,
INC.
DATE OF JUDGMENT: 03/22/2000
TRIAL JUDGE: HON. V. R. COTTEN
COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: EDWARD A. WILLIAMSON
ATTORNEYS FOR APPELLEES: SANDRA S. MOHLER
DAVID M. OTT
DALE GIBSON RUSSELL
MICHAEL O. GWIN
WILLIAM BENNETT CARTER
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: REVERSED AND REMANDED - 3/07/2002
MOTION FOR REHEARING FILED: 4/5/2002; denied 6/6/2002
MANDATE ISSUED: 6/13/2002
EN BANC.
McRAE, PRESIDING JUSTICE, 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 Parkerson's mobile
home. The defendants made a motion to have the case dismissed and to compel arbitration. Parkerson
subsequently filed an amended complaint wherein she alleged that Champion issued an express warranty
covering the mobile home; that Verda Pearl Smith had extended certain implied and express warranties to
her as a part of the sale and purchase of the mobile home; that by extending Champion's warranties to the
plaintiff, Town & Country was acting as Champion's agent; and that the defendants had failed to comply
with express and implied warranties arising under Mississippi law and the Magnuson-Moss Warranty Act.
¶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.
FACTS
¶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:
a. Dispute Resolution. Any controversy or claim between or among you and me or our assignees
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 from an alleged tort, shall, if
requested by either you or me, be determined by arbitration, reference, or trial by a judge as provided
below. A controversy involving only a single claimant, or claimants who are related or asserting claims
arising from a single transaction, shall be determined by arbitration as described below. Any other
controversy shall be determined by judicial reference of the controversy to a referee appointed by the
court or, if the court where the controversy is venued lacks the power to appoint a referee, by trial by
a judge without a jury, as described below. YOU AND I AGREE AND UNDERSTAND THAT
WE ARE GIVING UP THE RIGHT TO A TRIAL BY JURY, AND THERE SHALL BE NO
JURY WHETHER THE CONTROVERSY OR CLAIM IS DECIDED BY ARBITRATION, BY
JUDICIAL REFERENCE, OR BY TRIAL BY A JUDGE.
b. Arbitration. Since this Contract touches and concerns interstate commerce, an arbitration under this
Contract shall be conducted in accordance with the United States Arbitration Act (Title 9, United
States Code), notwithstanding any choice of law provision in this Contract. The Commercial Rules of
the American Arbitration Association ("AAA") also shall apply....
(emphasis added).
¶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).
DISCUSSION
¶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); Raesley 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 Rhodes 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).
¶10. While the Federal Arbitration Act (FAA) does in fact favor the enforcement of arbitration agreements,
it appears that it has been superceded by the Magnuson-Moss Warranty Act. A federal statute overrides
the FAA where the statute's text or history shows a clear congressional intent to do so, or where there is
inherent conflict between compelling arbitration and the purposes of the statute. Shearson/Am. Exp., Inc.
v. McMahon, 482 U.S. 220, 226-27, 107 S. Ct. 2332, 2338, 96 L. Ed. 2d 185 (1985). In addition, where
statutory provisions are in irreconcilable conflict, the more recently enacted and more specific statute
controls over an earlier and more general statute. HCSC-Laundry v. United States, 450 U.S. 1, 6, 101
S. Ct. 836, 67 L.Ed. 2d 1(1981). The Magnuson-Moss Warranty Act was enacted approximately 50 years
after the FAA, and new legislation must be presumed to have been enacted in light of earlier enactments.
United States v. Trident Seafoods Corp., 92 F.3d 855, 862 (9th Cir. 1996).
¶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:
"First, the bill provides the consumer with an economically feasible private right of action so that when
a warrantor breaches his warranty or service contract obligations, the consumer can have effective
redress. Reasonable attorney's fees and expenses are provided for the successful consumer litigant,
and the bill is further refined so as to place a minimum extra burden on the courts by requiring as a
prerequisite to suit that the purchaser give the [warrantor] reasonable opportunity to settle the
dispute out of court, including the use of a fair and formal dispute settlement mechanism...."
119 Cong.Rec. 972 (Jan. 12, 1973) (emphasis added). Congressman Moss therefore made clear
that the informal dispute settlement mechanisms or procedures are a "prerequisite," not a bar, to suit in
court. The House report on the bill makes this point even clearer. The report states that "[a]n adverse
decision in any informal dispute settlement proceeding would not be a bar to a civil action on the
warranty involved in the proceeding." H.R.Rep. 93-1107, 93d Cong., 2d Sess. 41, reprinted in 1974
U.S.C.C.A.N. 7702, 7723. This history reflects that it was Congress's intent that any non- judicial
dispute resolution procedures would be nonbinding, and consumers would always retain the right of
final access to court.
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:
In Pitchford, Judge James H. Michael held that "there can be no agreement at the time of sale to
enter into binding arbitration on a written warranty". The clear intent of the Magnuson-Moss
Warranty Act, he wrote, "is to encourage alternate dispute settlement mechanisms but to not deprive
any party of their right to have their warranty dispute adjudicated in a judicial forum."
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 clause, lacked standing to compel arbitration on the warranty claims. Id. at 1534.
¶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.
CONCLUSION
¶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.
¶23. REVERSED AND REMANDED.
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, JUSTICE, 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
Warranty Act supercedes the Federal Arbitration Act. The majority chooses not to address the remaining
issues, including, whether the arbitration clause in question is unenforceable because it is unconscionable,
and whether the arbitration clause in question violated Parkerson's constitutional right to a trial by jury as
provided under Art. 3,§ 24, Miss. Const. (1890). I would address the remaining issues because I believe
the manufacturer never had an agreement to arbitrate, and therefore could not compel arbitration.
¶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.
¶29. In the present case, the terms of the arbitration provision were located on the fourth and fifth pages of
the adhesion contract. The defendants made no showing that the Parkersons were fully aware of the
significance and consequences of the language in this provision. Furthermore, the arbitration provision was
pre-printed on a form contract which was a necessary condition of the sale, and there was a great disparity
in the bargaining power between the parties. For these reasons, I believe the contract contained an invalid
arbitration clause.
¶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, JUSTICE, 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. 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. 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
arbitration in accordance with the terms of the agreement." 9 U.S.C.A. § 4 (2001).
¶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:
It is settled at common law that a general agreement, in or collateral to a contract, to submit to final
determination by arbitrators the rights and liabilities of the parties with respect to any and all disputes
that may thereafter arise under the contract is voidable at will by either party at any time before a valid
award is made, and will not be enforced by the courts, because of the rule that private persons
cannot, by a contract to arbitrate, oust the jurisdiction of the legally constituted courts.
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:
This state, as a matter of public policy, has long allowed parties to arbitrate their differences and to
give effect to an arbitration award. Scottish Union & Nat'l Ins. Co. v. Skaggs, 114 Miss. 618, 75
So. 437, 438 (1917). "That policy has even greater force in our present era of overcrowded judicial
dockets. If there be any type of arbitration award we should loathe to disturb, it should be that
between private contracting parties respecting a matter of interest only to themselves and their
respective pocket books." Craig v. Barber, 524 So. 2d 974, 977 (Miss.1988). In Hutto v. Jordan,
204 Miss. 30, 36 So. 2d 809, 812 (1948), this Court stated:
Articles of agreement to arbitrate, and awards thereon are to be liberally construed so as to
encourage the settlement of disputes and the prevention of litigation, and every reasonable
presumption will be indulged in favor of the validity of arbitration proceedings.
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:
"In enacting § 2 of the Arbitration Act, Congress declared a national policy favoring arbitration and
withdrew the power of the states to require a judicial forum for the resolution of claims which the
contracting parties agreed to resolve by arbitration. Congress has thus mandated the enforcement of
arbitration agreements." Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S. Ct. 852, 79 L.Ed.2d
1(1984). The Arbitration Act, resting on Congress's authority under the Commerce Clause, creates a
body of federal substantive law that is applicable in both state and federal courts. Moses H. Cone
Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983).
"The sine qua non of the FAA's applicability to a particular dispute is an agreement to arbitrate the
dispute in a contract which evidences a transaction in interstate commerce." Peoples Sec. Life Ins.
Co. v. Monumental Life Ins. Co., 867 F.2d 809, 813 n.4 (4th Cir.1989).
Doubts as to the availability of arbitration must be resolved in favor of arbitration. Moses H. Cone
Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983).
"[U]nless it can be said with positive assurance that an arbitration clause is not susceptible of an
interpretation which would cover the dispute at issue, then a stay pending arbitration should be
granted."
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:
We overturned prior case law and "expressly stated that this Court will respect the right of an
individual or an entity to agree in advance of a dispute to arbitration or other alternative dispute
resolution." We reiterated our policy that "[a]rticles of agreement to arbitrate, and awards thereon are
to be liberally construed so as to encourage the settlement of disputes and the prevention of litigation,
and every reasonable presumption will be indulged in favor of the validity of arbitration proceedings."
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:
the court is aware that a number of courts (primarily Alabama state and federal courts) have expressly
held that while an agreement for binding arbitration may be enforced on claims for breach of non-
written warranties and implied warranties, binding arbitration of written warranties, in transactions to
which the Magnuson-Moss Warranty Act applies, is forbidden by that Act. See Southern Energy
Homes, Inc. v. Lee, 732 So. 2d 994, 999-1000 (Ala. 1999)(holding that "the general provisions of
the [FAA] are superseded by the subsequent and specific provision in the Magnuson-Moss Act by
which Congress has prohibited the inclusion in written warranties of clauses calling for binding
arbitration."). . ..
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:
The undersigned is of the opinion that because Judge Lee's opinion in Raesly was based upon the
decision of the Supreme Court of Alabama which has been recently overruled, the Raesly opinion is
not persuasive. The undersigned agrees with the well-reasoned opinion of the Supreme Court of
Alabama in Ard, and accordingly, finds that the Magnuson Moss Act does not invalidate arbitration
provisions in a written warranty. For this reason, the undersigned is of the opinion that the motion to
compel arbitration and stay proceedings should be granted.
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:
For many years, the Supreme Court did not favor enforcing arbitration agreements. In 1953, holding
that a claim under the Securities Act of 1933 could not be arbitrated, the Court opined that arbitration
was an inadequate forum in which to enforce such a statutory claim. Wilko v. Swan, 346 U.S. 427,
435-37, 74 S. Ct. 182, 98 L.Ed.168 (1953), overruled by Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989).
But the Supreme Court has since abandoned that view. In fact, since 1985, the Supreme Court has
consistently upheld agreements to arbitrate federal statutory claims under the FAA. See Gilmer,(1)
500 U.S. at 35, 111 S.Ct. at 1647 (Age Discrimination in Employment Act of 1967); Rodriguez de
Quijas, 490 U.S. at 481, 109 S. Ct. 1917 (Securities Act of 1933); McMahon,(2) 482 U.S. at 238,
241, 107 S. Ct. 2332 (Securities and Exchange Act of 1934 and Racketeer Influenced and Corrupt
Organizations Act); Mitsubishi Motors Corp.(3), 473 U.S. at 640, 105 S. Ct. 3346 (Sherman
Antitrust Act). "By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights
afforded by the statute; it only submits to their resolution in an arbitral forum rather than a judicial,
forum." Mitsubishi Motors Corp., 473 U.S. at 628, 105 S. Ct. 3346. Moreover, the "duty to
enforce arbitration agreements is not diminished when a party bound by an agreement raises a claim
founded on statutory rights." McMahon, 482 U.S. at 226, 107 S. Ct. 2332.
Homestar, 50 S.W.3d at 484-85.(4)
¶39. The Texas court next noted the United States Supreme Court's test for determining whether a federal
statute overrides the FAA's directive to enforce arbitration agreements; namely, the party opposing
arbitration must show a clear congressional intent to override the FAA's mandate. Homestar, 50 S.W.3rd
at 485 (citing McMahon, 482 U.S. at 227, 107 S.Ct. at 2332). "According to the Supreme Court, this
congressional intent must be evidenced in the statute's text or history or through an inherent conflict between
arbitration and the statute's purposes." Id. (citing McMahon). After a lengthy, persuasive, in-depth analysis,
the Texas court concluded there is "nothing in the Magnuson-Moss Act's text, legislative history, or
purposes that preclude enforcement of predispute binding arbitration agreements under the FAA . . .." Id. at
490.
¶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:
Ambiguity of a contract, or its terms and a contract's meaning and effect are issues of law that are
reviewed de novo by this Court. Whittington, 608 So. 2d at 1274. This Court must construe the
agreement as made by the parties and give the words of the document their commonly accepted
meaning. If no ambiguity exists, this Court will accept the plain meaning of the instrument as the intent
of the parties. Contracts are solemn obligations and the Court must give them effect as written.
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 which provided for
arbitration of "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. . . ." The agreement appears to be a
standard arbitration clause very similar to those deemed unambiguous in Raesly and other cases.
Therefore, I find no merit to this argument and would affirm the trial court on this issue.
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:
The indicators of procedural unconscionability generally fall into two areas: (1) lack of knowledge,
and (2) lack of voluntariness. A lack of knowledge is demonstrated by a lack of understanding of the
contract terms arising from inconspicuous print or the use of complex, legalistic language, disparity in
sophistication of parties, and lack of opportunity to study the contract and inquire about contract
terms. A lack of voluntariness is demonstrated in contracts of adhesion when there is a great
imbalance in the parties' relative bargaining power, 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.
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:
The arbitration provision/agreement was not buried in the fine print, or otherwise hidden from them
but rather was presented to them as a separate document headed by the word "ARBITRATION" in
large, bold letters which are easy to read simply by glancing at the document. And although plaintiffs
claim that no one explained to them that by signing the document they would be giving up their right to
go to court and their right to a jury trial, the document plainly recites, in bold, conspicuous print,
"THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY
HAVE TO A JURY TRIAL EITHER PURSUANT TO ARBITRATION UNDER THIS
CLAUSE OR PURSUANT TO A COURT ACTION BY ASSIGNEE." Plaintiffs do not claim to
be illiterate and in fact, both have high school diplomas and are able to read.
......
And they do not claim that they were actually prevented from reading the document. Rather, their
position apparently is simply that the salesman downplayed the importance of the document.
......
For all of these reasons, the court finds no procedural unconscionability in the arbitration clause.
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:
RETAIL INSTALLMENT CONTRACT, SECURITY AGREEMENT, WAIVER OF
TRIAL BY JURY AND AGREEMENT TO ARBITRATION OR REFERENCE OR
TRIAL BY JUDGE ALONE
Also, the arbitration provision itself was presented in large, bold letters that are easy to read simply by
glancing at the document:
YOU AND I AGREE AND UNDERSTAND THAT WE ARE GIVING UP THE RIGHT
TO TRIAL BY JURY, AND THERE SHALL BE NO JURY WHETHER THE
CONTROVERSY OR CLAIM IS DECIDED BY ARBITRATION, BY JUDICIAL
REFERENCE, OR BY TRIAL BY A JUDGE.
¶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:
To permit a party when sued on a written contract, to admit that he signed it but to deny that it
expresses the agreement he made or to allow him to admit that he signed it but did not read it or
know its stipulations would absolutely destroy the value of all contracts.
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 party failed to discuss or read the
contract, or did not understand every term contained therein, it would destroy the value of all contracts. I
do not find the arbitration agreement procedurally unconscionable. There is no merit to Parkerson's
argument on this issue, and I would affirm the trial court on this issue.
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.(5) In effect, she is claiming that the arbitration agreement is "substantively unconscionable."
¶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.
§ 176:48 Administrative fees.
......
The filing fee shall be advanced by the initiating party or parties, subject to final apportionment by the
arbitrator in the award.
The AAA may, in the event of extreme hardship on the part of any party, defer or reduce the
administrative fees.
¶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 the AAA and its arbitrator." Id. at 980-81.
¶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:
In this case, Mr. Shankle signed the Agreement as a condition of continued employment. The
Agreement requires Mr. Shankle to arbitrate all disputes arising between he and his former employer.
In order to invoke the procedure mandated by his employer, however, Mr. Shankle had to pay for
one-half of the arbitrator's fees. Assuming Mr. Shankle's arbitration would have lasted an average
length of time, he would have had to pay an arbitrator between $1,875 and $5,000 to resolve his
claims. Mr. Shankle could not afford such a fee and it is unlikely other similarly situated employees
could either. The Agreement thus placed Mr. Shankle between the proverbial rock and a hard place-
it prohibited use of the judicial forum, where a litigant is not required to pay for a judge's services, and
the prohibitive cost substantially limited use of the arbitral forum. Essentially, B-G Maintenance
required Mr. Shankle to agree to mandatory arbitration as a term of continued employment, yet failed
to provide an accessible forum in which he could resolve his statutory right.
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:
Arbitration ordinarily brings hardships for litigants along with potential efficiency. Arbitral litigants
often lack discovery, evidentiary rules, a jury, and any meaningful right to further review. In light of the
strong federal policy favoring arbitration, these inherent weaknesses should not make an arbitration
clause unenforceable. [Citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S. Ct.
1647, 114 L. Ed. 2d 26 (1991)]. But a clause such as this one that deprives an employee of any hope
of meaningful relief, while imposing high costs on the employee, undermines the policies that support
Title VII. It is not enforceable.
Id.
¶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:
This clause says nothing about the payment of filing fees or the apportionment of costs of arbitration.
It neither assigns an initial responsibility for filing fees or arbitrators' costs, nor provides for a waiver in
cases of financial hardship. . . . It does not say whether the rules of the American Arbitration
Association, which provide at least some guidelines concerning filing fees and arbitration costs, apply
to the proceeding, whether some other set of rules applies, or whether the parties must negotiate their
own set of rules.
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, 149 L.Ed 373 (2000).
However, the Supreme Court went on to say:
It may well be that the existence of large arbitration costs could preclude a litigant such as Randolph
from effectively vindicating her federal statutory rights in the arbitral forum. But the record does not
show that Randolph will bear such costs if she goes to arbitration. Indeed it contains hardly any
information on the matter. . . . The record reveals only the arbitration agreement's silence on the
subject, and that fact alone is plainly insufficient to render it unenforceable. The 'risk' that Randolph
will be saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration
agreement.
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 hearing, the district court lifted the stay, reopened the case, and found that the
arbitration fees precluded the Dobbins from availing themselves of the arbitral forum. Id. The defendants
appealed and the Eighth Circuit reversed and remanded with instructions:
As the district court noted in its order, courts across the country have begun to recognize the potential
that arbitration fees will make an arbitration agreement unconscionable. We agree with those courts
that the potential is present. However, whether or not arbitration fees make the agreement to arbitrate
unconscionable is something that must be determined on a case-by-case basis in light of the state law
governing unconscionability.
In this case, the Dobbinses claim that the final fee determination they received from the AAA was $23,
000. The district court found this fee to be oppressive and therefore granted the stay. The AAA,
however, has a fee waiver procedure. It decides whether or not to waive, in whole or in part, a fee on
the basis of a claimant's financial situation. It is clear, however, from our reading of the evidentiary
hearing transcript, that the Dobbinses never fully explored the AAA's fee waiver procedures because
Mr. Dobbins refused to provide his family's financial information to the AAA. This is an important step
that must be taken before an unconscionability determination can be made.
Therefore, in an effort to foster the policy in favor of arbitration, we reverse and remand this case with
directions to order the Dobbinses to present a reduced demand for damages and to seek a diminution
or a waiver of fees from the AAA. The district court also should retain jurisdiction over the case to
determine if the fee, if not waived all together, is lowered to a reasonable amount. If the district court
finds that the fee is unreasonable given the current financial situation of the Dobbinses, the district court
should accept the appellant's offer to pay the arbitration fees.
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."(6)
¶66. I agree, and therefore would remand on this issue, with directions to the circuit court to order
Parkerson to first seek a deferment or reduction of fees from the AAA. The circuit court should retain
jurisdiction over this case, as was done in Dobbins, supra. Upon ascertaining the actual cost of the
arbitration to be conducted in this case, the trial judge should then make a determination, on the record, as
to whether the cost of arbitration, in light of Parkerson's financial situation, still prevents her from affording
arbitration. If the circuit court so determines, it may consider ordering Town & Country and Champion to
pay part or all of the fees, or it may find that the arbitration clause is unenforceable due to the
unconscionability of the cost of arbitration.
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, "Any controversy or claim
between or among you and me or our assignees 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 from an alleged tort, shall, if requested by either you or me, be determined by
arbitration. . . ." (emphasis added). Clearly, the language of arbitration agreement means that warranty
claims are subject to arbitration.
¶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:
The fact that the arbitration provision/agreement was presented, while contemporaneously, on a
separate page or as a separate document does not detract from the plain and inescapable fact that the
arbitration provision was presented to and signed by the plaintiffs as part of their agreement respecting
the purchase of the subject mobile home and is therefore enforceable, unless some other cognizable
ground exists for invalidating the putative agreement.
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
non-signatory 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:
Upon closer analysis, however, the cases may suggest an increasing acknowledgment of federal
principles which would favor the non-signatory's right to compel arbitration, by focusing more on the
implicated agency relationships and claims asserted than on the narrow language of the underlying
contract. Under the federal authorities, agency and equitable principles will generally apply to favor
arbitration where a plaintiff is invoking identical claims against joint defendants and proceeding on a
theory that one is the agent for purposes of its allegations against all.
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 corporate veil may be pierced and a party may be held bound to arbitrate as the signatory's
alter ego."
¶75. The Third Circuit in Isidor Paiewonsky Assocs., Inc. v. Sharp Props., Inc., 998 F.2d 145, 155
(3rd Cir. 1985) 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, 285 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 nonsignatory
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. 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 arbitration clause, it lacked standing to compel arbitration. Id. at 1534. The Eleventh Circuit
affirmed. Wilson v. Waverlee Homes, Inc., 137 F.3d 40 (11th Cir. 1997).
¶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:
Here, however, there is no agency relationship between Waverlee and Hart's Mobile Home. In fact,
the Waverlee warranty specifically disavows such a relationship. Nor is there corporate identity
between them. In addition, the relevant issues are not already in arbitration between the parties to the
agreements; nor are there allegations of joint misconduct by a party to the arbitration agreements and
the nonparty.
Wilson, 954 F. Supp. 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 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:
The Court finds that the doctrine of equitable estoppel should apply in cases in which a non-signatory
seeks to enforce an arbitration agreement where the non-signatory is an agent of a signatory or where
the claims against the non-signatory are "intimately founded in and intertwined with" the agreement
containing the arbitration clause.
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 first discussed the
doctrine of equitable estoppel as it applies to non-signatories attempting to compel arbitration as follows:
Existing case law demonstrates that equitable estoppel allows a nonsignatory to compel arbitration in
two different circumstances. First, equitable estoppel applies when the signatory to a written
agreement must rely on the terms of the written agreement in asserting its claims against the
nonsignatory. When each of a signatory's claims against a nonsignatory makes reference to or
presumes the existence of the written agreement, the signatory's claims arise out of and relate directly
to the written agreement, and arbitration is appropriate. Second, application of equitable estoppel is
warranted when the signatory to the contract containing an arbitration clause raises allegation of
substantially interdependent and concerted misconduct by both the nonsignatory and one or more of
the signatories to the contract. Otherwise the arbitration proceedings between the two signatories
would be rendered meaningless and the federal policy in favor of arbitration effectively thwarted.
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 rejected an argument similar to Parkerson's as follows:
Defendant contends that because the arbitration clause constitutes a waiver of his Seventh
Amendment right to a jury trial, then the plaintiff must demonstrate that there was a "clear and
unmistakable" waiver of this right. But that is not so. "[A] valid arbitration provision, which waives the
right to resolve a dispute through litigation in a judicial forum, implicitly waives the attendant right to a
jury trial." Marsh v. First USA Bank, N.A., 103 F. Supp. 2d 909, 921 (N.D.Tex. 2000). The
Seventh Amendment does not confer the right to a trial, but only the right to have a jury hear the case
once it is determined that the litigation should proceed before a court. If the claims are properly
before an arbitral forum pursuant to an arbitration agreement, the jury trial right vanishes. Id. (quoting
Cremin v. Merrill Lynch Pierce Fenner & Smith, Inc., 957 F. Supp. 1460, 1471 (N.D. Ill.
1997); see also Bosinger v. Phillips Plastics Corp., 57 F. Supp. 2d 986 (S.D. Ca. 1999)("clear
and unmistakable" standard not applicable to an individual's waiver of his or her own rights)(citing
Wright v. Universal Maritime Servs., 525 U.S. 70, 119 S. Ct. 391, 396, 142 L. Ed. 2d 361 (1998)
; Parsley, 1998 WL 1572764 ("The 'loss of the right to a jury trial is a necessary and fairly obvious
consequence of the agreement to arbitration'")(citation omitted); Burlington Northern RR Co. v.
Soo Line RR Co., 162 B.R. 207, 214 (D. Minn. 1993)(noting that "[i]f [the Defendants were
correct that a party's constitutional right to a trial by jury] presented a serious limitation on the duty to
arbitrate, arbitration provisions would have to be narrowly construed").
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, CHIEF JUSTICE, 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
contrary to the majority's ruling on this matter. See In re American Homestar of Lancaster, Inc., 50
S.W.3d 480 (Tex. 2001). However, I agree that the arbitration provisions in this contract and others like it
may be unconscionable, particularly where up-front payments are required to be afforded a hearing before
an arbitrator. Such a requirement is contrary to our policy that relief should be available to those who have
been injured.
¶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.
1. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S. Ct. 1647, 114 L. Ed. 2d 26 (1991).
2. Shearson/Amer. Exp., Inc. v. McMahon, 482 U.S. 220, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987).
3. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S. Ct. 3346, 87
L. Ed. 2d 444 (1985).
4. The United States Supreme Court has further stated:
There is no reason to depart from these guidelines where a party bound by an arbitration agreement
raises claims founded on statutory rights. Some time ago this Court expressed "hope for [the Act's]
usefulness both in controversies based on statutes or on standards otherwise created," and we are
well past the time when judicial suspicion of the desirability of arbitration and of the competence of
arbitral tribunals inhibited the development of arbitration as an alternative means of dispute resolution.
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. at 626-27, 105 S.Ct. at 3354
(citations omitted).
5. In her complaint, Parkerson demands judgment in the amount of $225,982.45, plus punitive damages.
According to AAA's fee schedule, where the amount of claim is over $150,000, up to $300,000, the initial
filing fee-to be paid by the person filing the claim-is $2,750 and the case service fee is $1,000. The cost of
the arbitrator is borne equally by the parties, as is the cost of the hearing room. The witness expenses must
be paid by the party producing the witness. The parties are required to deposit in advance the expected
costs of the arbitration. If payments are not made, the proceedings may be suspended or terminated.
6. Under Mississippi law, if the court finds all, or any part of a contract unconscionable, the court has
several options:
(1) If the court as a matter of law finds the contract or any clause of the contract to have been
unconscionable at the time it was made the 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 (1972).