SOUTHERN ENERGY HOMES RETAIL CORPORATION v. McCool

• Decision Date: 07 September 2001
• Citation: 814 So.2d 845
• Parties: SOUTHERN ENERGY HOMES RETAIL CORPORATION v. Terry D. McCOOL and Greenpoint Credit Corporation.
• Court: Alabama Supreme Court

814 So.2d 845

SOUTHERN ENERGY HOMES RETAIL CORPORATION¹ v. Terry D. McCOOL and Greenpoint Credit Corporation.

1991764.

Supreme Court of Alabama.

September 7, 2001.

Dan E. Batchelor and W. Scott Simpson of Batchelor & Simpson, Birmingham; and J. Clinton Pittman of Spain & Gillon, L.L.C., Birmingham, for appellant.

Submitted on appellant's brief only.

HOUSTON, Justice.

Southern Energy Homes Retail Corporation ("Southern Energy") appeals from the trial court's June 1, 2000, order, which stated in part:

"1. This court orders all parties involved to arbitration by judicial reference in accordance with the Retail Installment Contract, Security Agreement, Waiver of Trial by Jury and Agreement to Arbitration or Reference or Trial by Judge Alone and the Alabama Arbitration Act;

". . . .

"4. In accordance with the Retail Installment Contract, Security Agreement, Waiver of Trial by Jury and Agreement to Arbitration or Reference or Trial by Judge Alone, the court appoints Charles E. Harrison, an active attorney, to hear this controversy and determine all questions of law and fact and render a decision;

"5. The arbitration by judicial reference is to take place within 45 days of this order.

"This proceeding is stayed until the court hears the final disposition of the arbitration by judicial reference."

Southern Energy contends that the trial court erred in denying its motion to compel arbitration. However, we do not read the above-quoted order as denying a motion to compel arbitration. In fact, the trial court ordered all parties to arbitration and stayed the proceeding pending arbitration. "[A]n appeal is ... the proper procedure by which to challenge a denial of a motion to compel arbitration." A.G. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 360 (Ala.1990) (emphasis added). "[A] petition for a writ of mandamus is the proper means to test a trial court's granting of a motion to arbitrate or the granting of a stay pending arbitration."²Ex parte Alexander, 558 So.2d 364, 365 (Ala.1990). In Morrison Restaurants, Inc. v. Homestead Village of Fairhope, Ltd., 710 So.2d 905, 906 (Ala. 1998), this Court stated:

"Before we discuss the issues presented by the parties, we first consider whether the trial court's order was reviewable, thereby quickening this Court's jurisdiction. The fact that Morrison styled its request for relief as an appeal is not determinative. The order entered in this case is one referring a pending case to mediation and/or arbitration. This Court has previously held that a petition for a writ of mandamus is the appropriate method of challenging an order referring a case to arbitration. Accordingly, we treat Morrison's `appeal' as, in reality, a petition for a writ of mandamus."

(Citations omitted.) Because the trial court's order refers the case to arbitration, we will treat Southern Energy's "appeal" as a petition for a writ of mandamus.

On November 10, 1997, Terry D. McCool purchased a manufactured home from Southern Energy in Columbus, Mississippi; the home was delivered to McCool's property in Carrollton, Alabama. Fleetwood Homes of Georgia, Inc. ("Fleetwood"), was the manufacturer of the home.

In connection with the purchase of this manufactured home, McCool executed numerous documents. Among those documents were a "Retail Installment Contract, Security Agreement, Waiver of Trial by Jury and Agreement to Arbitration or Reference or Trial by Judge Alone" (hereinafter referred to as "the Retail Installment Contract"), an "Alternative Dispute Resolution Agreement," and "A Contract Between BR Holding Corp. and Terry D. McCool."³ Each of these documents contained an arbitration provision.

McCool's purchase of this manufactured home was financed through Bank of America. The terms of the financing arrangement were outlined in the Retail Installment Contract, which stated:

"`I,' `me,' `myself' or `my' means all persons who sign this Contract as buyer or co-buyer, jointly and severally, and `you' or `your' mean the Seller [Southern Energy, formerly known as BR Holding Corp.] and any assignee. This Contract will be submitted to the Creditor indicated below, at a local office and, if approved, it will be assigned to that Creditor. On the date of this Contract [November 10, 1997], I buy from you on a credit sale basis the manufactured home described on page 2, together with furnishings, equipment, appliances and accessories included in the manufactured home at the time of purchase (called `Manufactured Home').

"CREDITOR: BANK OF AMERICA, FSB"

On November 12, 1999, Greenpoint Credit Corporation, as Servicing Agent for BankAmerica Housing Services, Inc., a division of Bank of America (hereinafter referred to as "Greenpoint Credit"), filed a two-count complaint against McCool, contending that McCool was unlawfully detaining and possessing the manufactured home. Greenpoint Credit also demanded a judgment against McCool in the sum of $37,638.57 (the price of the manufactured home), plus interest and costs. Greenpoint Credit contended that that was the sum that was "due by Retail Installment Contract and Security Agreement made by [McCool] on November 10, 1997, a copy of which is attached as Exhibit `A.'"

McCool answered and also filed a counterclaim against Greenpoint Credit and a cross-claim against Southern Energy and Fleetwood. Greenpoint Credit, Southern Energy, and Fleetwood each filed answers. Greenpoint Credit also filed a cross-claim against Southern Energy.

Southern Energy moved to compel arbitration and to stay the proceedings. With its motion to compel arbitration, Southern Energy filed copies of the three documents executed on November 10, 1997, each of which contained an arbitration provision. Fleetwood joined in Southern Energy's motion to compel arbitration. McCool filed a response in opposition to the motion to compel arbitration. Thereafter, the trial court issued its June 1, 2000, order.

Southern Energy argues that although the trial court properly compelled arbitration, it erred when it compelled arbitration in a manner that was not consistent with the terms of the agreements between the parties.

Page 4 of the Retail Installment Contract contains the following arbitration provision:

"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 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. The arbitrator(s) shall follow the law and shall give effect to the statutes of limitation in determining any claim. Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator(s). The award of the arbitrator(s) shall be in writing and include a statement of reasons for the award. The award shall be final. Judgment upon the award may be entered in any court having jurisdiction, and no challenge to entry of judgment upon the award shall be entertained except as provided by Section 10 or the United States Arbitration Act or upon a finding of manifest injustice.

"c. Judicial Reference or Trial by a Judge. If requested by either you or me, any controversy or claim under subparagraph (a) that is not submitted to arbitration as provided in subparagraph (b) shall be determined by reference to a referee appointed by the court who, sitting alone and without jury, shall decide all questions of law and fact. You and I shall designate to the court a referee selected under the auspices of the AAA in the same manner as arbitrators are selected in AAA-sponsored

...