Russell v. Performance Toyota, Inc.

For the Court.

¶ 1. After the Lee County Circuit Court referred this matter to arbitration pursuant to a contract between Charles Russell and Performance Toyota, Inc., Russell appeals to this Court contending that his claims were not subject to the arbitration clause, arbitration was improper, Performance Toyota waived its right to arbitration, the arbitration clause violates Miss. Code Ann. § 15-1-5 (1995), and the arbitration clause is unconscionable. We affirm the Lee County Circuit Court’s decision to compel arbitration.

FACTS

¶ 2. Russell traded in a Toyota T-100 truck to and purchased a Toyota Tacoma truck from Performance Toyota. Russell alleges that First Tennessee Bank attempted to finance the purchase, but Performance Toyota notified Russell that it refused to assign the financing to First Tennessee. Performance Toyota took possession of the Tacoma and refused to return the T-100 to Russell.

¶ 3. Performance Toyota alleges that, after Russell expressly represented that the T-100 had not been wrecked, it credited Russell $10,000 toward the purchase of the Tacoma for the T-100 trade-in. Because the pay-off of the T-100 was $8,347.78, it issued a check to Russell in the amount of $1,652.22. Later, Performance Toyota discovered that the title noted that the T-100 had been “rebuilt.” Performance Toyota took steps to cancel the sale and, after it successfully took possession of the Tacoma, informed Russell that he could reclaim the T-100 and demanded that Russell return the $1,652.22 which had been advanced.

¶ 4. Russell never took steps to reclaim the T-100 trade-in, but instead filed suit against Performance Toyota alleging wrongful repossession, conversion, fraud, and tortious interference in a business relationship. After appropriate motions were filed, the Circuit Court of Lee County compelled arbitration of the dispute.

DISCUSSION

¶ 5. We conduct a de novo review for determinations of legal questions. Gant v. Maness, 786 So.2d 401, 403 (Miss.2001); Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000). Findings of fact are given deferential treatment and are subject to the “manifest error/substantial evidence” standard.

I. WHETHER THE FEDERAL ARBITRATION ACT APPLIES TO THIS CASE.

¶ 6. In IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 104, 106, 107, 108 (Miss.1998), we recognized the applicability of arbitration for resolving disputes by stating that we

will respect the right of an individual or an entity to agree in advance of a dispute to arbitration or other alternative dispute resolution.

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Articles of agreement to arbitrate, and awards thereon are to be liberally construed so as to encourage the settlement of disputes and the presumption will be indulged in favor of the validity of arbitration proceedings.

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“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.” 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. “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.”

Doubts as to the availability of arbitration must be resolved in favor of arbitration. “[UJnless 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.”

In addition to establishing a strong presumption in favor of arbitration, the Act also limits the role of the court to determining whether an issue is arbitrable. The court’s sole function is to determine whether the claim is referable to arbitration. Once that determination is made, the court may not delve further into the dispute. “The courts ... have no business weighing the merits of a particular claim, or determining whether there is particular language in the written instrument which will support the claim.”

(citations omitted).

¶ 7. Because Performance Toyota is a Tennessee corporation with its principal place of business in Memphis, Tennessee, and Russell is an adult resident citizen of Lee County, Mississippi, we find that this matter “evidences a transaction in interstate commerce” and the FAA therefore applies to it.

II. WHETHER THE ARBITRATION AGREEMENT APPLIES TO RUSSELL’S CLAIMS.

¶ 8. Russell contends that his claims “arise from the actions and the wilful and wanton disregard of [his] property rights by [Performance Toyota],” and are not, therefore, subject to the arbitration agreement.

¶ 9. The following provisions were conspicuously included in the Purchase Agreement:

NOTICE TO CREDIT BUYER

If this order involves credit, this form shall constitute an agreement by Purchaser and Seller to arbitrate any disputes which arise between them and shall authorize the Seller to secure any and all information from any source to determine the credit worthiness of the purchase.

* * *

ARBITRATION AGREEMENT

Any controversy or claim arising out of or relating to the vehicle which is the subject of this contract or its acquisition by Purchaser shall be submitted to arbitration before one arbitrator in Memphis, Tennessee in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment on the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. Arbitration shall be the exclusive, final and binding method of resolution of any claim or controversy between the Purchaser and Performance Toyota, Inc. and must be initiated within 180 days after the claim or controversy first arises. Failure to timely initiate arbitration shall constitute waiver of the claim or controversy.

[T]he trade-in vehicle has not been rebuilt, reconditioned or salvaged, the vehicle has not suffered flood, hail or other substantial weather damage; and there is no indication of any of the foregoing or any other exception or condition noted on the vehicle’s title.

¶ 10. In Smith Barney, Inc. v. Henry, 775 So.2d 722, 726 (Miss.2001), Justice Mills, writing for a 6-3 Court and discussing a similar argument, found that the broad phrase “[a]ny controversy arising out of or relating to” contained in an account management agreement encompassed a claim of breach of fiduciary duty because the funds which were the subject of the breach of fiduciary duty claim “were derived directly from ... accounts and transactions with Smith Barney.” The subject Purchase Agreement contains the identical phrase “[a]ny controversy or claim arising out of or relating to the vehicle which is the subject of this contract or its acquisition by Purchaser .... ” (emphasis added).

¶ 11. Russell argues that his claims that Performance Toyota fraudulently obtained the original title documents from the Lee County Tax Collector’s office, wrongfully repossessed the Tacoma, illegally auctioned off the T-100 and intentionally converted Russell’s property should not be subject to the arbitration agreement. Russell’s claims do not differ in any way from those in Smith Barney. All of these claims pertain to the disputed ownership of the Tacoma and the T-100, the two vehicles which are the subject of the Purchase Agreement. Given the broad language of the clause contained in the Purchase Agreement, we find that the arbitration agreement does apply to Russell’s claims.

III. WHETHER ARBITRATION WAS APPROPRIATE IN THIS MATTER.

¶ 12. Russell next argues that, because the “Purchaser’s Agreement Concerning Trade In” does not contain an arbitration clause, any claims that involve the trade-in agreement are not subject to arbitration.

¶ 13. Russell fails to note, however, that the “Purchaser’s Agreement Concerning Trade In” is specifically integrated into the “Retail Buyer’s Order,” which does contain an arbitration clause. The “Retail Buyer’s Order” states, “The attached Purchaser’s Agreement Concerning Trade In hereby is incorporated into this contract.”

¶ 14. This claim is without merit.

IY. WHETHER PERFORMANCE TOYOTA WAIVED ITS RIGHT TO ARBITRATION.

¶ 15. Russell argues that, if the arbitration clause is valid, Performance Toyota “has waived its right to arbitration by its actions of seizing the Toyota Tacoma [Russell] purchased ... and selling the T-100 that Performance [Toyota] claims is a ‘trade-in.’ ” Performance Toyota “took actions on [its] own and did not arbitrate its claims.... ” In support of his argument, Russell cites Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908, 911 (Miss.1993), in which we held that a party waives arbitration if it substantially takes advantage of the judicial process, and Subway Equipment Leasing Corp. v. Forte, 169 F.3d 324, 326 (5th Cir.1999), in which the United States Court of Appeals for the Fifth Circuit held that, to establish a waiver, the objector to arbitration must establish “that a party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.”

¶ 16. A “[w]aiver of arbitration is not a favored finding, and there is a presumption against it.” Miller Brewing Co. v. Fort Worth Distrib. Co., 781 F.2d 494, 497 (5th Cir.1986); see also Subway Equip., 169 F.3d at 326 (“[A] party alleging waiver of arbitration must carry a heavy burden.”)

¶ 17. We note that, even though Performance Toyota took possession of the Tacoma, it never instituted legal proceedings against Russell. Under the Uniform Commercial Code (adopted in Mississippi as Miss.Code Ann. § 75-9-609 (2002)), when a debtor has defaulted, a secured party has the right to take possession of the collateral without using judicial process. The cases cited by Russell which hold that a right to arbitration was waived all involved the institution of legal proceedings in court and the party which invoked arbitration had filed pleadings and motions and had participated in discovery. See, e.g., Subway Equip., 169 F.3d at 328; Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156 (5th Cir.1986); Cox, 619 So.2d at 914. Here, Performance Toyota’s only overt act in the legal proceedings filed against it was to file a motion to compel arbitration.

¶ 18. Other jurisdictions addressing this issue have held that taking possession of the collateral or other similar actions do not waive a party’s right to arbitration. See, e.g., Southwest Indus. Imp. & Exp., Inc. v. Wilmod Co., 524 F.2d 468, 470 (5th Cir.1975) (seller-mover’s participation in settlement discussions and self-help measure of reselling goods in dispute did not amount to waiver of contractual right to arbitrate); Eagle Telecom, Inc. v. Billing Concepts Sys., Inc., 1999 WL 570860 *1 (E.D.Pa.1999) (unilateral discontinuance of services under an agreement does not result in waiver of right to arbitration); Ex parte Dickinson, 711 So.2d 984, 988 (Ala.1998) (Dickinson’s claim that the dealership should have allowed the repossessed vehicle to remain in his possession pending arbitration “confuses self-help with ‘judicial process.’ ” “[S]elf-help is not ‘judicial process,’ and we decline to extend the rule to encompass self-help.”); Conseco Fin. Servicing Corp. v. Wilder, 47 S.W.3d 335, 345 (Ky.Ct.App.2001) (Lender did not waive its right to arbitration by pursuing repossession of mobile home because repossession was not for purpose of gaining tactical advantage with respect to court proceedings.);

¶ 19. This claim is without merit.

V. WHETHER THE ARBITRATION AGREEMENT VIOLATES MISS. CODE ANN. § 15-1-5.

¶ 20. Russell contends that the following two sentences within the arbitration agreement violate Miss.Code Ann. § 15 — 1— 5 (1995): “[Arbitration] must be initiated within 180 days after the claim or controversy first arises. Failure to timely initiate arbitration shall constitute a waiver of the claim or controversy.” Russell states that the sentences attempt to shorten the statute of limitations designated in § 15-1-5, and therefore the arbitration agreement is void.

¶21. Mississippi case law, however, holds that if a court strikes a portion of an agreement as being void, the remainder of the contract is binding. See, e.g., Lawler v. Government Employees Ins. Co., 569 So.2d 1151, 1153 (Miss.1990); Plaza Amusement Co. v. Rothenberg, 159 Miss. 800, 131 So. 350, 357 (1930) (“If an illegal condition is annexed to a contract, it will not void the whole contract, but the illegal part will be treated as void.”) (citing Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692 (1910)). Also, the Fifth Circuit has held that a limitation in an insurance policy was void under Mississippi law, but that the remainder of the policy was not affected by the void provision. Richards v. Allstate Ins. Co., 693 F.2d 502, 505 (5th Cir.1982). Finally, the United States District Court for the Southern District of Mississippi, applying Mississippi law, specifically struck a time limitation period contained in a contract and declared that the remainder of the contract was binding. Smith v. Orkin Exterminating Co., 791 F.Supp. 1137, 1142 (S.D.Miss.1990).

¶ 22. We find that, even if the limitation time period contained in the arbitration agreement were void, the arbitration agreement is still binding.

YI. WHETHER THE ARBITRATION AGREEMENT IS UNCONSCIONABLE.

¶ 23. Russell complains that the arbitration agreement was “unilateral” and inequitable because he was a consumer and Performance Toyota was a corporation with a much greater bargaining position. He states that he was not in a position to negotiate the terms of the contract because there was no equal footing between the parties.

¶ 24. Specifically, Russell argues that the arbitration agreement was unconscionable because he had a lack of knowledge of the contract as a whole and of the arbitration agreement in particular, there was a lack of voluntariness inasmuch as he was not in a position to negotiate or bargain with Performance Toyota, the arbitration clause was not reasonably related to the business risks of the parties, and the arbitration clause was against public policy. See, e.g., Bank of Indiana, Nat’l Ass’n v. Holyfield, 476 F.Supp. 104, 109-10 (S.D.Miss.1979).

¶ 25. Substantive unconsciona-bility may be found when the terms of the contract are of such an oppressive character as to be unconscionable. Id. at 110. “Procedural uneonscionability may be proved by showing ‘a lack of knowledge, lack of voluntariness, inconspicuous print, the use of complex legalistic language, disparity in sophistication or bargaining power of the parties and/or a lack of opportunity to study the contract and inquire about the contract terms.’ ” East Ford, Inc. v. Taylor, 826 So.2d 709, 714 (Miss.2002) (motion for rehearing pending) (quoting York v. Georgia-Pac. Corp., 585 F.Supp. 1265, 1278 (N.D.Miss.1984)). Russell’s claims of lack of knowledge and lack of voluntariness are claims of procedural uneonscionability, while his claims of the arbitration clause not bearing a reasonable relationship to the business risks of the parties and being violative of public policy are claims of substantive unconscio-nability.

¶ 26. The Fifth Circuit has ruled that, where a contract which contains an arbitration agreement is attacked as being procedurally unconscionable, the attack

is an attack on the formation of the contract generally, not an attack on the arbitration clause itself. Because [the plaintiffs] claim relates to the entire agreement, rather than just the arbitration clause, the FAA requires that her claims be heard by an arbitrator.

While we acknowledge that [the plaintiff] specifically attacks the arbitration clause, she also contends that she signed the Agreement “[b]ased upon the Defendant’s representations ... [that the Agreement’s] coverage [would] be limited to situations such as non-competition, payola, and intellectual property rights.” She also attacks the agreement based upon “inequality of bargaining power.” These assertions belie [the plaintiffs] contention that her attack is limited to the arbitration clause and they support our conclusion that her attack is directed at the entire agreement.

Rojas v. TK Communications, Inc., 87 F.3d 745, 749, 751 n. 3 (5th Cir.1996) (citations omitted).

¶ 27. We find that Russell’s procedural unconscionability claims (lack of knowledge and lack of voluntariness) attack the Purchase Agreement as a whole, and not just the arbitration agreement, and that the reasoning of the Fifth Circuit in referring the issue of unconscionability to the arbitrator is sound and should be followed.

¶ 28. However, considering the merits of Russell’s claims of procedural unconscionability, there were numerous car dealerships in Tupelo and in Memphis and Russell was not by any means coerced to do business with Performance Toyota. Performance Toyota was not the sole supplier of automobiles. After Russell was presented with the Purchase Agreement, he was not coerced into signing it. He could have walked away and gone to another dealership. The arbitration agreement in the Purchase Agreement is preceded by boldface and capitalized headings and was almost immediately succeeded by the signature line. In Mississippi, a person is charged with knowing the contents of any document that he executes. J.R. Watkins Co. v. Runnels, 252 Miss. 87, 96, 172 So.2d 567, 571 (1965) (“A person cannot avoid a written contract which he has entered into on the ground that he did not read it or have it read to him.”).

¶ 29. Russell claims that the arbitration clause was substantively unconscionable because it resulted in unreasonable risks and it unnecessarily shielded Performance Toyota from its own potential negligence. However, the arbitration agreement pertains to claims of either party and does not benefit Performance Toyota only. It is equally binding upon Performance Toyota and Russell. Performance Toyota will not be shielded from any negligence it may have committed. All claims, including Russell’s claim that Performance Toyota was negligent, will be heard and resolved during arbitration. Finally, other than making the bald statement that the arbitration agreement “resulted in unreasonable risks,” Russell has made no specific assertion how he was subjected to an unreasonable risk.

¶ 30. This issue is without merit.

CONCLUSION

¶31. The Lee County Circuit Court’s grant of Performance Toyota’s motion to compel arbitration is affirmed.

¶ 32. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., COBB, AND CARLSON, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J. AND GRAVES, J.

. Justice Diaz, in his dissent, argues that the arbitration agreement was unconscionable under our recent opinion in East Ford, Inc. v. Taylor, 826 So.2d at 717 (Miss.2002) (motion for rehearing pending), in which we held that the arbitration provision was procedurally unconscionable. East Ford is easily distinguishable from the case sub judice. Most importantly, the arbitration provision allowed East Ford to pursue most of its claims against the customer in court, while the only option the customer had was to arbitrate his claims against East Ford. The arbitration provision limited the customer's remedy to actual damages only. The provision appeared less than one-third the size of many other terms in the document and appeared in very fine print and regular type font. All of the details concerning the vehicle were in boldface print while the arbitration provision was not.