Thompson v. Skipper Real Estate Co., 1971767.

• Decision Date: 15 January 1999
• Docket Number: No. 1971767.,1971767.
• Citation: 729 So.2d 287
• Parties: James W. THOMPSON and Michelle Thompson v. SKIPPER REAL ESTATE COMPANY et al.
• Court: Alabama Supreme Court

729 So.2d 287

James W. THOMPSON and Michelle Thompson v. SKIPPER REAL ESTATE COMPANY et al.

No. 1971767.

Supreme Court of Alabama.

January 15, 1999.

J. Patrick Courtney III, Mobile, for appellants.

James G. Curenton, Jr., Fairhope, for appellees.

HOUSTON, Justice.

James W. Thompson and Michelle K. Thompson appeal from an order of the Baldwin County Circuit Court dismissing their action alleging fraud and breach of contract against Skipper Real Estate Company, George Skipper, Mickey Skipper, Danny Pullian, and Malcolm Hollingsworth, in connection with the Thompsons' purchase of a house in Baldwin County from George Skipper. The Thompsons filed their action in the Mobile County Circuit Court; however, that court transferred it to Baldwin County on the motion of the defendants. The Baldwin Circuit Court held that all of the Thompsons' claims were arbitrable, pursuant to an arbitration provision contained in their real estate sales contract. We affirm.¹ The facts pertinent to this appeal are undisputed. The real estate sales contract signed by the Thompsons provided in part:

"As part of this agreement the undersigned agree that any controversy or claim between them arising out of or relating to this agreement shall be settled exclusively by arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules then in force of the American Arbitration Association. The decision of the arbitrator shall be a final and binding resolution of the disagreement which may be entered as a judgment by any court of competent jurisdiction. Neither party shall sue the other where the basis of the suit is this agreement other than for enforcement of the arbitrator's decision...."

In order to perform under the contract, the Thompsons obtained a loan from Matrix Financial Services Corporation ("Matrix") in Phoenix, Arizona, and executed a mortgage securing that loan. Matrix later assigned the note and mortgage to BankAtlantic in Pompano Beach, Florida. In addition, the Thompsons purchased their title insurance from First American Title Insurance Company, a California corporation, and they purchased their homeowner's insurance from Nationwide Mutual Fire Insurance Company, which has its home office in Columbus, Ohio. The record also indicates that other documents associated with the sale of the house were executed by the Thompsons and circulated in interstate commerce.

The Thompsons filed their complaint on June 5, 1997. The defendants were served with the complaint on July 1, 1997. The defendants' attorney filed a notice of appearance on July 16, 1997. On July 29, 1997, the defendants filed a motion to transfer the action from Mobile County to Baldwin County. On that same date, the defendants served the plaintiffs with a set of interrogatories. On August 19, 1997, the Thompsons filed a brief in opposition to the defendants' motion to transfer the action, requesting that the Mobile Circuit Court delay its ruling until they had completed discovery with respect to the venue issue. On January 7, 1998, the Thompsons took the depositions of George Skipper and Susan Harmon. Harmon was the office manager and closing agent for Skipper Real Estate Company. In those depositions, Skipper and Harmon were asked questions pertaining to the venue issue, as well as questions pertaining to the merits of the fraud and breach-of-contract claims. Skipper and Harmon were also questioned about the arbitration provision in the sales contract. At one point during Skipper's deposition, the defendants' attorney, in response to a question posed by the Thompsons' attorney, stated:

"You're assuming that I'll be defending Mr. Pullian and other defendants on the merits of this case. We're simply at the threshold of transferring the case to Baldwin County. Right now, the defendants are unified. If we ever get to that issue, provided arbitration allows us to, you'll then probably discover that the defendants will have different attorneys on the merits...."

The Mobile Circuit Court entered an order on January 30, 1998, transferring the case to Baldwin County. Three months and eight days later, on May 8, 1998, the defendants moved the Baldwin Circuit Court to compel the Thompsons to arbitrate their claims. On May 14, 1998, the Baldwin Circuit Court dismissed the Thompsons' complaint and ordered that their claims be arbitrated. On May 20, 1998, the Thompsons filed a brief in opposition to the motion to compel, and on May 21, 1998, they filed a motion to alter, amend, or vacate the judgment of dismissal. The court denied that motion.

Two issues are presented on this appeal: 1) whether the real estate sales contract "involves" interstate commerce, so as to render applicable the provisions of the FAA; and, if so, 2) whether the defendants waived their right under the contract to compel arbitration of the Thompsons' claims.²

Applicability of the FAA

It is well settled that the FAA preempts contrary state law (based on statute and public policy) and renders enforceable a predispute arbitration agreement contained in a contract that "involves" interstate commerce. See Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260 (Ala.1995); Lopez v. Home Buyers Warranty Corp., 670 So.2d 35 (Ala. 1995). Recently, in Mutual Assurance, Inc. v. Wilson, 716 So.2d 1160, 1165-66 (Ala.1998), this Court, citing Hurst v. Tony Moore Imports, Inc., 699 So.2d 1249 (Ala.1997), noted that "United States Supreme Court precedent indicates that an intrastate transaction nonetheless `involves' interstate commerce if it has virtually any tangible effect on the generation of goods or services for interstate markets and their distribution to the consumer."

The record in this present case indicates that the Thompsons' real estate contract with George Skipper, although it was intrastate in nature, did have an effect on the provision of services in interstate commerce. As previously noted, the Thompsons obtained their financing from a corporation operating out of Arizona (which later assigned the note and mortgage to a corporation operating out of Florida); they obtained their title insurance from a California corporation; and they obtained their homeowner's insurance from a corporation operating out of Ohio. We conclude that the real estate sales contract between the Thompsons and Skipper had a sufficient nexus with interstate commerce to invoke the provisions of the FAA. See Lopez v. Home Buyers Warranty Corp., supra,

in which this Court held that the FAA applied to a home buyer's warranty that had been transferred to the buyers in a Montgomery real estate transaction. This Court specifically noted in Lopez that not only had the warranty been issued by Home Buyers Warranty Corporation from its office in Denver, Colorado, but also the house had a Veterans' Administration loan guaranty and the title insurance had been procured through a California company.

Waiver

"In Companion Life Ins. Co. v. Whitesell Manufacturing, Inc., 670 So.2d 897, 899 (Ala.1995), this Court stated:

"`It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration. Whether a party's participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks an intention to abandon the right in favor of the judicial process and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration. No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case. See Huntsville Golf Development, Inc. v. Aetna Casualty & Surety Co., 632 So.2d 459 (Ala.1994); Ex parte McKinney, 515 So.2d 693 n. 2 (Ala.1987); Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So.2d 1 (Ala.1986); Ex parte Costa & Head (Atrium), Ltd., 486 So.2d 1272 (Ala.1986), overruled on other grounds, Ex parte Jones, 628 So.2d 316 (Ala.1993). In accord, see S & H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1507 (11th Cir.1990), cert. denied, 498 U.S. 1026, 111 S.Ct. 677, 112 L.Ed.2d 669 (1991).'

"In Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So.2d 1, 2-3 (Ala. 1986), this Court elaborated on the considerations a court must take into account in determining whether one has waived the right to arbitrate:

"`The general rule with regard to waiver of one's right to arbitrate was stated in American Dairy Queen Corp. v. Tantillo, 536 F.Supp. 718 (M.D.La. 1982):

"`"It is well settled that there is a strong federal policy favoring arbitration and a waiver of the right to compel arbitration will not be lightly inferred. [Citations omitted.]"

"`536 F.Supp. at 720. The court went on to say:

"`"Therefore, the burden on one seeking to prove waiver is a heavy one. The question of what constitutes a waiver of the right of arbitration depends on the facts of each case. [Citations omitted.]"

"`Id. In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), the United States Supreme Court agreed that there is a strong federal policy favoring arbitration:

"`"The [Federal] Arbitration Act establishes that, as a matter of federal law, 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."

"`460 U.S. at 24-25, 103 S.Ct. at 941.

"`There is considerable support for the proposition that the determination of whether there has been a waiver must be made on a case-by-case basis and is to be based on the particular facts of each case. However, a two-pronged test has developed which courts use

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