TranSouth Financial Corp. v. Rooks
| Decision Date | 30 August 2004 |
| Docket Number | No. A04A0970.,A04A0970. |
| Parties | TRANSOUTH FINANCIAL CORPORATION v. ROOKS. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Troutman Sanders, Alan W. Loeffler, Bryony H. Bowers, Atlanta, for appellant.
Harper, Waldon & Craig, John B. Craig, Atlanta, for appellee.
After Angela Rooks sued TranSouth Financial Corporation (TranSouth) for, among other things, breach of contract, TranSouth filed a motion to compel arbitration. In denying the motion to compel, the trial court determined that the controlling agreement did not contain an arbitration provision. After following the interlocutory appeal procedures, TranSouth challenges that determination. After review, we find no error and affirm.
In November 1999 Rooks executed an automobile financing loan agreement with Auto Group, Inc. for a 1997 Toyota Corolla. Auto Group subsequently assigned that loan agreement to TranSouth. After her Toyota Corolla was repossessed in April 2003, Rooks sued TranSouth for wrongful repossession, violation of the Fair Business Practices Act, attorney fees, and punitive damages. Rooks claimed that on March 10, 2003, she and TranSouth executed an amendment agreement, and that by repossessing her car, TranSouth violated the terms and conditions of that agreement.
In answering Rooks's complaint, TranSouth denied having any contractual relationship with Rooks and also denied executing the amendment agreement which contains the arbitration provision. Simultaneously, however, TranSouth asserted that "Plaintiff's claims are subject to a valid, binding arbitration agreement." Invoking the amendment agreement, TranSouth twice demanded that Rooks dismiss her lawsuit and proceed in arbitration. In lieu of responding to Rooks's discovery, TranSouth filed a motion to compel arbitration.
In support of its motion to compel, TranSouth submitted the affidavit of Cassandra Jones, a collections manager with TranSouth, who attested to having personal knowledge of Rooks's account. Jones testified that in February 2003, Rooks had applied for a hardship amendment to the loan agreement "because she was having a difficult time making her monthly payments." Jones testified: She added:
TranSouth was unable to accommodate [Rooks's] request for an amendment agreement because TranSouth discovered that [Rooks's] sole source of income was unemployment benefits that were about to expire. Accordingly, that amendment agreement was never approved by anyone at TranSouth with authority to do so, and the amendment agreement never became effective.
Notwithstanding that testimony, Jones then quoted the arbitration provisions at length from the amendment agreement, the same document that she testified had not been properly approved and the same document that TranSouth denied executing.1 The arbitration provision at issue states in part:
Any claim or dispute, except as provided below, whether in contract, tort or otherwise (including, without limitation, interpretation and the scope of this provision, the arbitrability of any issue and matters relating to the consummation, servicing, collection or enforcement of this contract or note) between you and us or our employees, agents, successors or assigns which arise out of or relate to this contract ... shall, at your or our election ... be resolved by neutral, binding arbitration and not by court action.
In opposing TranSouth's motion to compel arbitration, Rooks argued that since TranSouth drafted the contract, any ambiguities had to be construed against TranSouth. In her own affidavit, Rooks testified that the entire agreement "consisted of only one page when I signed it and discussed it with Ms. Baker of TranSouth."2 She denied that a second page was attached to or part of the agreement that she signed. Rooks also claimed that TranSouth was attempting "to rely on the provisions of a non-existent agreement."
The trial court determined that the amendment agreement did not contain an arbitration provision. The trial court also found that the amendment was never approved by TranSouth and never became effective. In denying TranSouth's motion to compel arbitration, the trial court noted the irony that "[TranSouth], on the one hand, finds it appropriate to rely on the ineffectiveness of the amendment, but, on the other, urges enforcement of the arbitration clause contained therein."
1. TranSouth contends that the trial court erred in denying its motion to compel arbitration "given that Rooks asserts in this lawsuit that the amendment agreement, which contains the arbitration provision, is binding and enforceable." TranSouth argues that Rooks should not be permitted to insist upon the validity of the contract "while at the same time denying the enforceability of the arbitration provision in that contract." TranSouth also asserts that the arbitration provisions in the amendment agreement explicitly provide for the arbitration of any dispute "relating to the consummation ... or enforcement of this contract."
On appeal, this Court considers questions of law de novo. Tachdjian v. Phillips, 256 Ga.App. 166, 168, 568 S.E.2d 64 (2002). Absent any issue of fact, the construction of a contract is a question of law for the court. OCGA § 13-2-1.
Here, the threshold issue is not the enforceability of the arbitration provision, as TranSouth contends, but the existence of an enforceable contractual provision that requires arbitration. "To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate." OCGA § 13-3-1. Unless and until there is a meeting of the minds as to all essential terms, a contract is not complete and enforceable. Clark v. Schwartz, 210 Ga.App. 678, 679, 436 S.E.2d 759 (1993).
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