OLSHAN FOUNDATION REPAIR COMPANY OF JACKSON, LLC d/b/a OLSHAN FOUNDATION SOLUTIONS AND WAYNE BROWN
GLORIA MOORE, PHILLIP R. MOORE AND KATELYN A. MOORE
OF JUDGMENT: 01/17/2017
COUNTY CIRCUIT COURT HON. JON MARK WEATHERS TRIAL JUDGE
COURT ATTORNEYS: ROBIN L. ROBERTS KATHLEEN INGRAM CARRINGTON
RICHARD M. DYE
ATTORNEYS FOR APPELLANTS: RICHARD M. DYE KATHLEEN INGRAM
ATTORNEYS FOR APPELLEES: ROBIN L. ROBERTS CHRISTOPHER D.
NOBLES HEATHER E. MURRAY
KITCHENS, PRESIDING JUSTICE.
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.
AND PROCEDURAL HISTORY
On June 10, 2013, Phillip Moore contracted 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. 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.
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
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.
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).
Olshan and Brown appeal only the circuit court's denial
of their motion to compel Katelyn Moore to arbitrate her
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)).
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.
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)).
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
Simmons was introduced to these proceedings by
Olshan in its motion to compel arbitration, albeit for a
different proposition. 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 ...