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BENNETT v. ESKRIDGE AUTO GROUP2014 OK CIV APP 54326 P.3d 544Case Number: 111282Decided: 01/31/2014Mandate Issued: 05/28/2014DIVISION ITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION ICite as: 2014 OK CIV APP 54, 326 P.3d 544
TERRY BENNETT and WARDICE WHITE, 
Plaintiffs/Appellants,v.ESKRIDGE AUTO GROUP, MICHAEL MILLIGAN, BRIAN 
PAUL PENDARVIS, RUDY E. DOSS, JEFFREY SHAHAN, and JOHN DOE, 
Defendants/Appellees.

APPEAL FROM THE DISTRICT COURT OFOKLAHOMA COUNTY, 
OKLAHOMA
HONORABLE LISA TIPPING DAVIS, JUDGE

AFFIRMED

Terry Bennett and Wardice White, Oklahoma City, Oklahoma, Pro 
Se,Kathy W. Wallis, Edmond, Oklahoma, for 
Defendants/Appellees.


Kenneth L. Buettner, Judge:
¶1 Plaintiffs/Appellants Terry Bennett and Wardice White (collectively, 
Buyers) appeal from the trial court's order denying their motion to vacate the 
trial court's earlier order compelling arbitration of Buyers' suit against 
Defendants/Appellees Eskridge Auto Group, Michael Milligan, Brian Pendarvis, 
Rudy Doss, and Jeffrey Shahan (collectively, Sellers). The record shows the 
parties entered a valid agreement to arbitrate disputes arising out of the 
vehicle purchase agreement. Although the chosen arbitrator was no longer 
available, both the federal and state arbitration acts provide for appointing an 
alternate arbitrator in such case, which the trial court did in this case. We 
find no abuse of discretion in denying Buyers' motion to vacate, and affirm.
¶2 In their July 10, 2012 Petition, Buyers alleged Eskridge sold them a 1999 
Honda which Sellers represented was certified and which had a defective, 
recalled transmission and needed motor mounts. Buyers alleged Sellers knew or 
should have known that the vehicle was defective. Buyers asserted that due to 
Sellers' fraud, deceit, negligence, false representation, wilful and malicious 
conduct, and conversion, they suffered damages in excess of 100 million dollars. 
Buyers further alleged that Eskridge employees Shahan and Doe wilfully and 
maliciously deceived them about the need and cost of repairs to the vehicle.
¶3 Sellers filed a Special Appearance July 31, 2012, in which they sought an 
order compelling arbitration pursuant to a "dispute resolution clause" in the 
written Purchase Agreement for the sale of the vehicle. They asked for an order 
dismissing the case if Buyers failed to seek arbitration within 30 days.
¶4 Buyers objected to arbitration. They asserted that the National 
Arbitration Forum (NAF) had announced in 2009 that it would no longer administer 
consumer arbitration disputes as part of a settlement with the Minnesota 
Attorney General. Buyers urged that because NAF had ceased administering 
consumer arbitrations before they entered the sales agreement, the arbitration 
provision in that agreement was null and void and unenforceable. Although they 
did not expressly state they did not consent to the arbitration provision, 
Buyers cited Oklahoma authority that "arbitration is a matter of consent, not 
coercion."
¶5 Sellers then filed a motion to appoint an alternate arbitrator. Sellers 
noted that the arbitration provision in the sales agreement provided, in 
pertinent part, "all matters addressed within this Clause shall be submitted to 
binding arbitration, with the National Arbitration Forum, pursuant to the 
Federal Arbitration Act, Title 9 U.S.C. §1, et seq." Sellers agreed that 
the NAF had ceased administering consumer arbitrations in 2009, but noted that 
Section 5 of the FAA provides that if there is a lapse in the naming of an 
arbitrator under an arbitration provision, then a party may ask the court to 
designate and appoint an arbitrator. Sellers also cited 12 O.S.2011 §1862(a), which 
provides that if the agreed method of selecting an arbitrator fails, then the 
court, on motion of a party, shall appoint an arbitrator.
¶6 Following a hearing held September 6, 2012, the trial court granted 
Sellers' motion to compel arbitration. Buyers filed their motion to vacate 
September 12, 2012, in which they repeated their claims made in opposing the 
motion to compel arbitration. Sellers responded October 16, 2012, and Buyers 
asserted the response was out of time so their motion to vacate was deemed 
confessed.
¶7 Hearing on the motion to vacate was held October 25, 2012, and the trial 
court filed an order denying the motion to vacate and a journal entry granting 
the motion to compel arbitration the same day. In the journal entry, the court 
ordered Buyers to submit the case to arbitration within 30 days and directed 
that if Buyers refused, the case would be dismissed with prejudice. The trial 
court named an arbitrator "(u)pon recommendation of Sellers' attorney and by 
consent of Plaintiff, Terry Bennett." The court directed that the parties were 
free to agree on a different arbitrator. Buyers appeal.
¶8 We review an order granting or denying a motion to compel arbitration 
de novo. Thompson v. Bar-S Foods Co., 2007 OK 75, ¶9, 174 P.3d 567. We 
review the trial court's decision on a motion to vacate for an abuse of 
discretion. Schepp v. Hess, 1989 OK 28, 770 P.2d 34, 39.
¶9 In their Brief in Chief, Buyers complain the trial court failed to conduct 
an evidentiary hearing; failed to determine whether Buyers intended to 
arbitrate; failed to determine whether it was fraud to have the NAF provision in 
the purchase agreement; failed to determine whether NAF still existed; and 
failed to determine why the NAF is no longer involved in consumer arbitration. 
Because the trial court appointed an alternate arbitrator, any issues related to 
the NAF's existence or participation in consumer disputes are not relevant to 
this dispute.
¶10 The record indicates the trial court granted the motion to compel 
arbitration following a hearing held September 6, 2012, at which Bennett 
appeared, but White did not. The record includes a transcript of that hearing, 
in which Bennett repeated Buyers' contention that because NAF was not 
administering consumer arbitrations at the time of the purchase contract, the 
arbitration provision should not be effective.
¶11 The purchase agreement is in the record and includes White's signature 
immediately below the "Dispute Resolution Clause," which provides that the 
parties agree to submit to arbitration any dispute between the parties. As noted 
above, the clause provides in part: "The Purchaser and Dealer agree that all 
matters addressed within this Clause shall be submitted to binding arbitration, 
with the National Arbitration Forum, pursuant to the Federal Arbitration Act." 
Buyers have cited Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 
Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 3353, 87 L.Ed.2d 444 (1985), for 
the rule that "the first task of a court asked to compel arbitration of a 
dispute is to determine whether the parties agreed to arbitrate that 
dispute."
¶12 Buyers have not alleged that White was unaware of the arbitration 
provision, which was immediately above her signature. They contend they cannot 
be subject to arbitration because NAF, the arbitrator designated in the 
provision, no longer performs consumer arbitrations. But as noted by Sellers, 
the FAA and the Oklahoma Uniform Arbitration Act both expressly provide for 
appointment of an alternate arbitrator where the selected arbitrator is 
unavailable. Courts which have addressed this question have found that where the 
arbitration clause's selection of an arbitrator is "integral" to the agreement, 
the failure of the chosen arbitration forum is fatal to the arbitration clause 
itself, but if the choice of arbitrator is "merely an ancillary logistical 
matter" then alternate arbitrator provisions like Section 5 of the FAA or §1862 
of the OUAA will apply. Brown v. ITT Consumer Financial Corp., 211 F.3d 
1217 (11thCir.2000). Buyers have not argued or shown that the naming of NAF as 
arbitrator was integral to the agreement to arbitrate. We find the trial court 
properly followed the parties' contract and §1862 in compelling arbitration and 
appointing an alternate arbitrator.

AFFIRMED.

JOPLIN, P.J., and HETHERINGTON, V.C.J., concur.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Supreme Court Cases CiteNameLevel 1989 OK 28, 770 P.2d 34, 60 OBJ        540, Schepp v. HessDiscussed 2007 OK 75, 175 P.3d 567, THOMPSON v. BAR-S FOODS COMPANYCitedTitle 12. Civil Procedure CiteNameLevel 12 O.S. 1862, Selection or Appointment of Arbitrator - Conflict of InterestCited










