Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Olshan Foundation Repair Co. of Jackson, LLC v. Moore

Supreme Court of Mississippi, En Banc

June 28, 2018

OLSHAN FOUNDATION REPAIR COMPANY OF JACKSON, LLC d/b/a OLSHAN FOUNDATION SOLUTIONS AND WAYNE BROWN
v.
GLORIA MOORE, PHILLIP R. MOORE AND KATELYN A. MOORE

          DATE OF JUDGMENT: 01/17/2017

          PERRY COUNTY CIRCUIT COURT HON. JON MARK WEATHERS TRIAL JUDGE

          TRIAL COURT ATTORNEYS: ROBIN L. ROBERTS KATHLEEN INGRAM CARRINGTON RICHARD M. DYE

          ATTORNEYS FOR APPELLANTS: RICHARD M. DYE KATHLEEN INGRAM CARRINGTON

          ATTORNEYS FOR APPELLEES: ROBIN L. ROBERTS CHRISTOPHER D. NOBLES HEATHER E. MURRAY

          KITCHENS, PRESIDING JUSTICE.

         ¶1. Phillip Moore, Gloria Moore, and Katelyn Moore sued Olshan Foundation Repair of Jackson, LLC (Olshan), and Wayne Brown in Perry County Circuit Court. Olshan and Brown sought to compel arbitration pursuant to an arbitration provision within a contract between Phillip Moore and Olshan for the repair of the foundation of the Moores' home. The circuit court ordered Phillip and Gloria Moore to arbitrate their claims. But because the circuit court declined to order Katelyn Moore to the arbitral forum, Olshan and Brown now appeal. We affirm the judgment of the Perry County Circuit Court denying the motion to compel arbitration filed by Olshan and Brown as to Katelyn Moore's claims.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On June 10, 2013, Phillip Moore contracted[1] with Olshan for repairs to the foundation of the home he shared with his wife, Gloria Moore, and his adult daughter, Katelyn Moore. Phillip, Gloria, and Katelyn Moore sued Olshan and Brown in the Circuit Court of Perry County on April 29, 2016, requesting contract damages solely for Phillip Moore and Gloria Moore, including damages related to loss of value and expenses to repair their home.[2] Katelyn Moore alleged intentional or negligent infliction of emotional distress. The only remedy she sought is found in the unnumbered prayer for relief, separate and apart from the contract damages sought by Phillip Moore and Gloria Moore.

         ¶3. After Olshan and Brown moved to compel arbitration, the circuit court held a hearing. It then entered an order granting the motion with respect to Phillip and Gloria Moore's claims while denying the motion as it pertains to Katelyn Moore's claims. Regarding Katelyn Moore's claims, the circuit court reasoned that the terms of the contract were not broad enough to include Katelyn as a third-party beneficiary of the agreement and that the arbitration agreement could not be enforced against Katelyn on the grounds of estoppel "as her claims are not based solely on the terms of the contract." The circuit court explained:

Katelyn asserts claims for intentional or negligent infliction of emotional distress and negligence which could be pursued regardless of whether or not there was a contract. Moreover, due to ambiguity in the Complaint, it is not clear to the [c]ourt if Katelyn is seeking to assert claims for breach of contract and breach of warranty. Those claims more properly belong to Phillip and Gloria.

         The trial court further held that Katelyn Moore was neither a third-party beneficiary nor a direct beneficiary of the Olshan contract, because:

the terms of the contract were not expressly broad enough to include Katelyn as a third-party by name or as one of a specified class, as Katelyn was not an owner of the property. Furthermore, Katelyn was not a direct beneficiary of the contract. The fact that Katelyn resides in the home makes her an incidental, not direct beneficiary of the construction work performed by Olshan. See Rein v. Benchmark Construction Company, 865 So.2d 1134 (Miss. 2004); Simmons Housing Inc. v. Shelton ex rel. Shelton, 36 So.2d 1283 (Miss. 2010).

         ¶4. Olshan and Brown appeal only the circuit court's denial of their motion to compel Katelyn Moore to arbitrate her claims.

         ANALYSIS

         ¶5. A grant or denial of a motion to compel arbitration is reviewed de novo. Harrison Cty. Commercial Lot, LLC v. H. Gordon Myrick, Inc., 107 So.3d 943, 949 (Miss. 2013) (citing Cmty. Bank of Miss. v. Stuckey, 52 So.3d 1179, 1181 (Miss. 2010)).

         ¶6. The circuit court held that the arbitration provision in the foundation-repair contract between Phillip Moore and Olshan was valid and enforceable and that Gloria Moore was a third-party beneficiary. Phillip and Gloria Moore declined to cross-appeal the circuit court's decision that the arbitration agreement was valid and enforceable respecting their claims. Accordingly, the validity of the arbitration provision, itself, is not before the Court. The only question is whether Katelyn Moore, a nonsignatory, is bound to arbitrate her claims against Olshan.

         ¶7. Olshan contends that a federal policy favoring arbitration exists and the Federal Arbitration Act (FAA) requires "that 'we rigorously enforce agreements to arbitrate.'" East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss. 2002) (quoting Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987)). But Phillip Moore contracted specifically with Olshan for Mississippi law to govern any disputes or lawsuits arising out of their agreement. So the FAA does not apply to this case. And Mississippi courts will "not override the clear intent of the parties, or reach a result inconsistent with the plain text of the contract, simply because the policy favoring arbitration is implicated." B.C. Rogers Poultry Inc. v. Wedgeworth, 911 So.2d 483, 487 (Miss. 2005) (quoting EEOC v. Waffle House, Inc., 534 U.S. 279, 294, 122 S.Ct. 754, 764, 151 L.Ed.2d 755 (2002)).

         ¶8. Only in the rarest of circumstances, and with caution, should we shackle a citizen to an agreement of others that strips the citizen of his or her constitutional right to a trial by jury. Miss. Const. Art. 3, § 31; see Pinnacle Trust Co., L.L.C. v. McTaggart, 152 So.3d 1123, 1127 (quoting Scruggs v. Wyatt, 60 So.3d 758, 767 (Miss. 2011) (quoting Bridas S.A.P.I.C. v. Gov't of Turkmenistan, 345 F.3d 347, 354 n.3 (5th Cir. 2003))) ("arbitration agreements apply to nonsignatories only 'in rare circumstances.'"). This Court has held that "[a] nonsignatory may be bound to an arbitration agreement under ordinary principles of contract and agency." Simmons Housing, Inc. v. Shelton ex rel. Shelton, 36 So.3d 1283, 1286 (Miss. 2010) (internal citations omitted). "[A] signatory may enforce an arbitration agreement against a non-signatory if the non-signatory is a third-party beneficiary or if the doctrine of equitable estoppel applies." Id. (internal quotations omitted).

         ¶9. Simmons was introduced to these proceedings by Olshan in its motion to compel arbitration, albeit for a different proposition.[3] Roy and Kimberly Shelton and their two minor children brought suit against Simmons Housing, Inc., et al., for claims concerning a defective mobile home. Simmons, 36 So.3d at 1285. The circuit court compelled the parents' claims to arbitration based on two agreements they had signed in purchasing the mobile home, but refused to compel the children's claims to arbitration. Id. at 1285-86. This Court held that the nonsignatory children could not be ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.