Ex parte Thicklin

• Decision Date: 11 January 2002
• Citation: 824 So.2d 723
• Parties: Ex parte Sharon THICKLIN. (In re Sharon Thicklin v. Fantasy Mobile Homes, Inc., et al.)
• Court: Alabama Supreme Court

824 So.2d 723

Ex parte Sharon THICKLIN.

(In re Sharon Thicklin v. Fantasy Mobile Homes, Inc., et al.)

1000224.

Supreme Court of Alabama.

January 11, 2002.

G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for petitioner.

Charles B. Paterson and J. Beth Moscarelli of Balch & Bingham, L.L.P., Montgomery, for appellee Fantasy Mobile Homes (brief in support of application for rehearing filed by Sterling G. Culpepper and Charles B. Paterson of Balch & Bingham, L.L.P., Montgomery).

John R. Bradwell of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellees Riverchase Homes and Cavalier Manufacturing, Inc.

W. Scott Simpson, Dan E. Batchelor, and Gordon L. Blair of Batchelor & Simpson, P.C., Birmingham, for amicus curiae Southern Energy Homes, Inc., on application for rehearing.

On Applications for Rehearing

LYONS, Justice.

The opinion of October 12, 2001, is withdrawn, and the following is substituted therefor. Sharon Thicklin is the plaintiff in an action pending in the Elmore Circuit Court. She petitions for a writ of mandamus directing Judge John B. Bush to vacate his order of June 30, 2000, granting the defendants' motions to compel arbitration, and his order of September 21, 2000, denying Thicklin's motion to alter, amend, or vacate the June 30 order. For the reasons discussed below, we grant the petition in part and deny it in part.

I.

On June 22, 1998, Thicklin purchased a mobile home from Fantasy Mobile Homes, Inc. ("Fantasy"). Fantasy is located in Montgomery. Cavalier Manufacturing, Inc., doing business as Riverchase Homes, manufactured the home in Haleyville. Cavalier is a Delaware corporation; Riverchase is a division of Cavalier (the manufacturer will hereinafter be referred to as "Riverchase"). Thicklin and representatives of Riverchase and Fantasy executed a document entitled an "Acknowledgment and Agreement (HUD Code Home)." Paragraph 10 of that contract contains the following arbitration clause:

"10. ARBITRATION AND WAIVER OF JURY TRIAL. All parties acknowledge and agree that this Agreement and the performance of the transactions contemplated hereby evidence transactions which involve a substantial nexus with interstate commerce. Accordingly, any dispute, controversy or claim of any kind or nature which has arisen or may arise between the parties ... (including any dispute, controversy or claim relating to the validity of this arbitration clause), whether arising out of past, present or future dealings between the parties, ... shall be governed by the Federal Arbitration Act and shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.... Without limiting the generality of the foregoing, it is the intention of the parties to resolve by binding arbitration, as provided herein, all past, present, and future disputes, whether in tort, contract or otherwise, concerning or related to (i) the manufactured home, its sale, warranty, set up, repair, installation, manufacture, financing, insurance, its condition, (ii) the validity of this Agreement, and (iii) any other dealings, business or otherwise, between the parties.... The parties understand and agree that the arbitrator shall have all powers provided by law, and may award any legal or equitable relief, including, without limitation, money damages, declaratory relief and injunctive relief; provided, however, that the arbitrator will have no power to award punitive damages or other damages not measured by the prevailing party's actual damages. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY CONTROVERSY BETWEEN THE PARTIES...."

(Capitalization in original.)

Thicklin says that Riverchase provided her with a written warranty and a homeowner's manual, but neither, she says, mentioned arbitration. On December 27, 1999, Thicklin sued Riverchase and Fantasy. She alleged that Riverchase had breached express and implied warranties; had violated the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq. ("the Magnuson-Moss Act"); had negligently or wantonly constructed the mobile home; had negligently or wantonly attempted to repair the mobile home; and had defrauded her. She alleged that Fantasy had breached implied warranties; had violated the Magnuson-Moss Act; had negligently or wantonly delivered and set up the mobile home; and had negligently or wantonly attempted to repair the mobile home. Riverchase and Fantasy then moved to compel arbitration, and Thicklin opposed those motions. Thicklin also amended her complaint to allege that Riverchase and Fantasy had conspired to deprive her of certain rights guaranteed her by the Magnuson-Moss Act. After the trial court granted Riverchase and Fantasy's motions to compel arbitration and denied Thicklin's motion to alter, amend, or vacate its decision, Thicklin filed this petition for the writ of mandamus.

II.

[1-3] "A writ of mandamus is an extraordinary remedy that requires the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court."

Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998), cert. denied, 528 U.S. 818, 120 S.Ct. 59, 145 L.Ed.2d 52 (1999). A petition for a writ of mandamus is the proper means by which to challenge a trial court's order granting a motion to compel arbitration.¹ Ex parte Napier, 723 So.2d 49 (Ala. 1998). We review an order granting a motion to compel arbitration under an abuse-of-discretion standard. Ex parte Morris, 782 So.2d 249 (Ala.2000).

III.

Thicklin first argues that the Federal Arbitration Act, 9 U.S.C. § 2 ("the FAA"), does not apply in this case because, she argues, her mobile-home purchase was not a transaction that affected interstate commerce. In Southern Energy Homes, Inc. v. McCray, 788 So.2d 882 (Ala.2000), we rejected a similar argument. "An Alabama resident's purchase of a new mobile home—even one manufactured in Alabama —can be a transaction that substantially affects interstate commerce, and the evidence indicates that the McCrays' purchase of their mobile home was such a transaction." 788 So.2d at 883 (footnote omitted).

Riverchase and Fantasy presented evidence concerning the effect on interstate commerce of Thicklin's purchase of her mobile home. An affidavit provided by Fantasy's sales manager states, in pertinent part:

"4. The mobile home purchased by Ms. Thicklin was manufactured by defendant Riverchase/Cavalier, an Alabama corporation. [Fantasy] purchases manufactured homes for resale from at least one foreign corporation that ships their products into Alabama from out-of-state locations. [Fantasy] frequently orders home decorations from a Georgia company to be shipped and delivered to [Fantasy's] location in Alabama.

"5. The mobile home purchased by Ms. Thicklin was financed by an entity located out-of-state, Bombadier Capital, whose lienholder address is in Cincinnati, Ohio. [Fantasy] sent Thicklin's finance paperwork to Bombadier Capital's Jacksonville, Florida office."

An affidavit provided by Riverchase's sales manager states, in pertinent part:

"Cavalier Manufacturing, Inc. is a Delaware corporation with its principal place of business in Winston County, Alabama. Riverchase Homes is a division of Cavalier Manufacturing, Inc. Riverchase Homes is a manufacturer of manufactured housing. Riverchase Homes does not sell homes directly to the retail customer. Riverchase Homes sells homes to retailers, who then sell the homes to the ultimate consumer.

"Riverchase Homes provides a limited warranty with each home. Those homes sold by Riverchase Homes are transported by independent common carrier. A copy of the warranty is transported with each home.

"Riverchase Homes manufactures homes in Marion County, Alabama. Riverchase Homes has suppliers around the country. Component parts of each home are transported by supplier via interstate commerce. Each home built by Riverchase Homes contains component parts transported by interstate commerce. In addition, appliances are supplied in each home. The appliances are purchased from manufacturers. Some, if not all, of these appliances are shipped to Riverchase Homes from other states."

We conclude that the evidence in this case indicates that Thicklin's purchase of her mobile home was a transaction that substantially affected interstate commerce. Therefore, the FAA applies to this transaction.

IV.

Thicklin next contends that the Magnuson-Moss Act prohibits the enforcement of the arbitration clause and that this Court should overrule Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131 (Ala.2000). Thicklin also contends that, even if the Court refuses to overrule Ard, the arbitration clause in this case is unenforceable because Riverchase did not disclose the arbitration clause in its written warranty or in its consumer manual and because the arbitration clause imposes upon a plaintiff who is pursuing federal statutory claims the costs and expenses of the arbitration process.

In Ard, we held that the Magnuson-Moss Act does not invalidate an arbitration provision contained in a warranty. 772 So.2d at 1135. Since then, we have consistently applied Ard, and it is clearly the law of this State. See, e.g., Cavalier Mfg., Inc. v. Jackson, 823 So.2d 1237, opinion on return to remand, 823 So.2d at 1245 (Ala. 2001); Palm Harbor Homes, Inc. v. Turner, 796 So.2d 295 (Ala.2001); McCray, 788 So.2d at 883-84; Southern Energy Homes, Inc. v. Nalley, 777 So.2d 99 (Ala. 2000); Southern Energy Homes, Inc. v. Gregor, 777 So.2d 79 (Ala.2000); Harold Allen's Mobile Home Factory Outlet, Inc. v. Early, 776 So.2d 777 (Ala.2000); Southern Energy Homes, Inc....