                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2005-CA-01316-SCT

GREATER CANTON FORD MERCURY, INC.,
KEITH CLARK, FORD MOTOR COMPANY, RAY
L. FAYNE AND KATRINA FAYNE

v.

WALLACE ABLES, MARY BENNETT AND JOHN
WILLIAMS


DATE OF JUDGMENT:                        07/18/2005
TRIAL JUDGE:                             HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED:               HOLMES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                MICHAEL DAVID TAPSCOTT
                                         THOMAS WICKER
                                         DARA STEELE-BELKIN
                                         JOHN H. FLEMING
                                         DANIEL H. SCHLUETER
                                         PHIL B. ABERNETHY
                                         ARNOLD DATRON LEE
                                         GARY E. FRIEDMAN
                                         LATOYA CHEREE MERRITT
ATTORNEY FOR APPELLEES:                  J. DOUGLAS MINOR, JR.
NATURE OF THE CASE:                      CIVIL - CONTRACT
DISPOSITION:                             VACATED IN PART AND REVERSED AND
                                         REMANDED IN PART - 02/01/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      SMITH, CHIEF JUSTICE, FOR THE COURT:

                      FACTS AND PROCEEDINGS BELOW

¶1.   Plaintiffs Wallace Ables, Mary Bennett and John H. Williams (Plaintiffs) purchased

pre-owned vehicles from Greater Canton Ford Mercury, Inc. (GCFM). Plaintiffs allege that
Defendants, GCFM and its employees, Keith Clark, Ray L. Fayne, and Katrina Fayne, along

with Ford Motor Company (Ford), committed fraud by selling them “certified, pre-owned

vehicles” when, in fact, the vehicles were either not eligible for this program or had not

undergone an inspection and maintenance program required of “certified, pre-owned

vehicles.” Defendants filed a Motion to Stay Litigation and Compel Arbitration. The circuit

court denied the motion, and consequently, Defendants appeal. Separately, Ford appeals the

applicability of the circuit court judgment to it, particularly, whether as a non-signatory it

may compel arbitration.

¶2.    In 2002, the three plaintiffs1 each purchased a vehicle from GCFM, a Ford dealership

located in Canton, Mississippi. In August 2003, the plaintiffs filed suit against GCFM, three

of its employees, and Ford in the Holmes County Circuit Court alleging that due to

Defendants’ misrepresentations, they purchased vehicles under the belief that the vehicles

were certified pre-owned when the vehicles had, in fact, not undergone the certification

process required by Ford in order to qualify as “certified pre-owned.” Each plaintiff claims

to have purchased one of the fraudulently identified vehicles, in reliance on Defendants’

alleged misrepresentations, at an increased price based on a false value. After the circuit

court granted an extension of time for Defendants’ responses, four answers were filed. Ford

answered in October 2003. Ray and Katrina Fayne responded jointly in the same month.



       1
         The three plaintiffs were joined by forty-one others at the initial filing of the suit in the
Holmes County Circuit Court. The claims of the thirty-eight who were not residents of Holmes
County were later severed and transferred to the proper jurisdictions on October 26, 2004. Six
plaintiffs remained, but only the three before this Court signed retail installment contracts, the
contract containing the arbitration provision in dispute, with GCFM and, thus, might be subject to
arbitration of their claims.

                                                  2
GCFM answered in November 2003, and Keith Clark filed his answer in December 2003.

Each party listed the right to arbitrate the dispute as a defense.

¶3.      On February 27, 2004, Ford alone filed a Motion to Compel Arbitration and Stay

Litigation in the United States District Court for the Southern District of Mississippi in

Jackson, Mississippi. The district court denied the motion on March 31, 2005, citing Ford’s

non-signatory status and finding that the claims brought against Ford “seemingly fall outside

the arbitration agreement.” Ford Motor Co. v. Ables, No. 3:04-CV-00152 (S.D. Miss.

March 31, 2005). Ford appealed, and the United States Court of Appeals for the Fifth Circuit

reversed the district court, holding that Ford could compel arbitration as a non-signatory.2

¶4.      In June 2004, Plaintiffs filed a Motion for Partial Summary Judgment and Declaratory

Judgment requesting the circuit court to decide the arbitrability of their claims. Plaintiffs

contended that the arbitration clauses in the retail installment contracts executed by Plaintiffs

did not cover claims asserted by Plaintiffs in their complaint. GCFM and Ford responded

in the same month by filing in circuit court a Joint Motion to Stay Resolution of Plaintiffs’

Motion for Partial Summary Judgment. On October 26, 2004, the circuit court partially

granted Defendants’ motion, staying resolution until November 26, 2004.

¶5.      On November 29, 2004, still awaiting a decision from the circuit court on Plaintiffs’

motion regarding arbitrability of the claims, GCFM and Keith Clark filed a Motion to Stay

Litigation and Compel Arbitration in the circuit court, which all of the other Defendants

subsequently joined. The circuit court entered an Order on March 10, 2005, staying its ruling



         2
             Ford Motor Co. v. Ables, No. 05-60391, 2006 U.S. App. LEXIS 29347 (5th Cir. Nov. 29,
2006).

                                                  3
on Plaintiffs’ Motion for Partial Summary Judgment until the federal district court ruled on

Ford’s Motion to Compel. Following the federal district court’s denial of Ford’s Motion to

Compel on March 31, 2005, the circuit court entered an Order on June 13, 2005, granting

Plaintiffs’ Motion for Partial Summary Judgment and Declaratory Judgment. Explicitly

relying on the federal district court opinion, the circuit court reached the same conclusion and

found that Plaintiffs had no duty to submit to arbitration of their claims. The circuit court

subsequently, on July 12, 2005, denied Defendants’ Motion to Stay Litigation and Compel

Arbitration.

¶6.    GCFM and Keith Clark appealed jointly on July 5, 2005, with Ford filing its appeal

separately on the same day. Ray and Katrina Fayne filed a Notice of Appeal on July 8,

2005. Defendants each claim the decision by the Holmes County Circuit Court was in error

regarding arbitrability of Plaintiffs’ claims. They raise one issue, whether the trial court

properly refused to stay litigation and compel arbitration of those claims presented by

Plaintiffs who executed arbitration agreements. Ford claims the court erred in finding it

incapable of compelling arbitration as a non-signatory. Ford adopts the arguments presented

by the other Defendants and further presents two legal issues, specifically in relation to Ford.

Ford raises two issues: (1) whether Ford has a right compel arbitration as a non-signatory

to the retail installment contract and (2) whether the circuit court should have granted

Defendants’ motion to stay litigation as to Ford until resolution of the arbitrability of

Plaintiffs’ claims.




                                               4
                                       DISCUSSION

       I.     WHETHER THE TRIAL COURT ERRED IN DENYING
              DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND
              STAY LITIGATION

¶7.    A lower court’s grant or denial of a motion to compel arbitration is reviewed de novo.

East Ford, Inc. v. Taylor, 826 So. 2d 709, 713 (Miss. 2002).

¶8.    The fraudulent actions alleged by Plaintiffs resulted in the purchase of vehicles, a

transaction involving commerce. Written agreements to arbitrate contained in contracts

evidencing a transaction involving commerce are subject to the Federal Arbitration Act

(FAA), 9 U.S.C. §§ 1 et seq., and in determining whether to grant a motion to compel

arbitration of a dispute subject to the FAA, there are two prongs of inquiry. Mitsubishi

Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626-28, 105 S. Ct. 3346, 87

L. Ed. 2d 444 (1985); East Ford, 826 So. 2d at 713. The first prong the Court must examine

is whether the parties agreed to arbitrate the dispute. Id. Second, the Court must determine

whether legal constraints external to the parties’ agreement bar arbitration of the claims. Id.

       Prong 1: Whether the parties agreed to arbitrate the dispute

¶9.    The first prong is two-fold in that the court considers whether there is a valid

arbitration agreement and then whether the parties’ dispute is within the scope of the

arbitration agreement. East Ford, 826 So. 2d at 713.




                                              5
       A. Whether there is a valid arbitration agreement

¶10.   Plaintiffs do not dispute the validity of the arbitration agreement. Instead, the parties

disagree about the scope of the agreement, specifically, whether the Plaintiffs’ claim of

fraudulent behavior is encompassed within the arbitration provision.

       B. Whether the parties’ dispute is within the scope of the arbitration agreement

¶11.   This appeal centers around the parties’ disagreement as to the interpretation of the

agreement. Defendants dispute who, a court or an arbitrator, should interpret the agreement

and determine its scope as well as whether the arbitration agreement in the retail installment

contract encompasses Plaintiffs’ claims. Consequently, two questions must be answered: (1)

whether the proper forum for determining the scope of the arbitration agreement is in court

or in arbitration, AT&T Technologies, Inc. v. Communications Workers of America, 475

U.S. 643, 649, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986) (citing United Steelworkers of

America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S. Ct. 1347 4 L. Ed.

2d 1409 (1960)), and (2) whether the arbitration agreement encompasses the dispute,

Mitsubishi Motors, 473 U.S. at 626-28. Efficiency dictates that we decide first whether it is

proper for the court to interpret the arbitration agreement before attempting to interpret it.

¶12.   First, we must determine the proper interpreter of the arbitration agreement. We have

not previously answered this particular inquiry. However, since the FAA governs the

enforcement of the disputed agreement, we are bound by the decisions of the United States

Supreme Court, which has spoken on the issue. While this Court consistently recognizes the

established federal policy favoring arbitration agreements, Terminix Int’l, Inc., Ltd. P’ship

v. Rice, 904 So. 2d 1051, 1055 (Miss. 2004), [t]he presumption in favor of arbitration does

                                               6
not apply to the question of who should decide arbitrability, because the purpose of the FAA

was to make arbitration agreements as enforceable as other contracts, not more so, First

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 945, 115 S. Ct. 1920, 131 L. Ed. 2d 985

(1995). Whether a party is bound by an arbitration agreement is generally considered an

issue for the courts, not the arbitrator, "[u]nless the parties clearly and unmistakably provide

otherwise." AT&T Technologies, 475 U.S. at 649 (emphasis added). In other words, when

the parties have explicitly agreed that the question of arbitrability is to be decided by an

arbitrator rather than the court, that agreement must be interpreted by an arbitrator.

¶13.   The United States Supreme Court has mandated that general contract principles will

apply. Consequently, the general practice of allowing courts to determine the issue of

arbitrability is superceded by the contractual terms of an arbitration provision which provide

that arbitrability will be decided by an arbitrator. The terms of the arbitration provision must

be honored in a dispute over arbitrability. Therefore, arbitration of the issue of arbitrability

is the mandatory result if those are the terms to which the parties have validly agreed. That

premise is entirely consistent with the view of this Court. It is well established that parties

may agree on the scope of arbitration in any way they desire. B. C. Rogers Poultry, Inc. v.

Wedgeworth, 911 So. 2d 483, 491 (Miss. 2005). Contracts are solemn obligations, and the

court must give them effect as written. Id. at 487.

¶14.   Under the exception in the binding authority, the question becomes whether the

agreement clearly and unmistakably states that interpretation of the agreement will be

arbitrated. The pertinent part of the arbitration provision reads:




                                               7
       Either you or Creditor (“us” or “we”) (each, a Party) may choose at any time,
       including after a lawsuit is filed, to have any Claim related to this contract
       decided by arbitration. Such claims include, but are not limited to the
       following: (1) claims in contract, tort, regulatory, or otherwise; (2) claims
       regarding the interpretation, scope or validity of this clause or arbitrability of
       any issue....

(Emphasis added).

¶15.   Defendants assert that the circuit court never should have ruled on the question of

whether Plaintiffs agreed to arbitrate their claims when one of the specific examples in the

agreement lists disputes as to arbitrability of claims as an example of issues for which the

parties agreed to submit to arbitration. Plaintiffs contend that the governing language is the

general language “related to [the retail installment] contract” which precedes the specific

example Defendants cite. Plaintiffs maintain that the general language does not apply to their

claim, which relates to pre-sale fraudulent representations and not to the retail installment

contract, a financing agreement between the plaintiffs and GCFM. Thus, Plaintiffs argue that

the example of arbitrability does not encompass arbitrability of a claim unrelated to the retail

installment contract, such as the claim in this case, and accordingly, that the court, not an

arbitrator should interpret the agreement because at a minimum the general and specific

language Defendants cite is conflicting as opposed to clear and unmistakable.

¶16.   Clearly, the language of the arbitration agreement directs that disputes regarding

interpretation of the agreement, including scope and arbitrability of issues, to be decided by

an arbitrator. Though Plaintiffs dispute the clarity of the language in the provision, the

examples in the arbitration provision explicitly identify disputes as to interpretation, scope,

validity, and arbitrability of any issue as those subject to arbitration upon the initiation of



                                               8
either party, including after litigation had begun.3 Therefore, this clear and unmistakable

language requires this Court to find that the appropriate forum for interpretation is

arbitration.

¶17.   Had we found the court capable of deciding arbitrability, we would proceed to

determine whether the arbitration agreement encompasses the dispute. However, we need not

proceed to the rules of interpretation for arbitration provisions in order to determine whether

the circuit court’s interpretation of the provision in dispute was proper since we have found

that the court was the improper forum for such a determination, and therefore, the circuit

court judgment is ineffective. Having applied the first prong of the two-pronged inquiry, this

Court finds that the issue on review – whether the plaintiffs’ allegations of fraudulent

behavior by the defendants are subject to the arbitration agreement in the retail installment

contract – is properly decided by an arbitrator rather than a court.

       Prong 2: Whether Legal Constraints External to the Parties’ Agreement
       Foreclose Arbitration of the Claim

¶18.   As for the second prong of the test, the existence of legal constraints external to the

parties’ agreement, foreclosing arbitration of the claim, even if the claim was found to be

within the arbitration provision in question, “[t]he FAA mandates that arbitration agreements

shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in

equity for the revocation of any contract.” Rice, 904 So. 2d at 1055 (internal quotes omitted).

In considering this prong, courts should apply ordinary state-law contract principles. East



       3
         GCFM filed its Motion to Compel and to Stay Litigation fifteen months after the suit was
filed and was later joined by the other defendants.


                                               9
Ford, 826 So. 2d at 713-14. Defenses such as fraud, duress, and unconscionability may be

asserted to invalidate the arbitration agreement without offending the FAA. See id. at 714.

¶19.   Plaintiffs allege that they were fraudulently induced to purchase vehicles. Plaintiffs

further claim that they were fraudulently induced to enter into a sales contract, and it is only

with regard to such sale contract that they claim fraudulent inducement. Yet, no such contract

was presented to this Court in either the record, only mentioned in the briefs. This Court is

limited to consideration of the facts in the record, while reliance on facts only disclosed in

the briefs is prohibited. Atlantic Horse Ins. Co. v. Nero, 108 Miss. 321, 329, 66 So. 780

(1914). Moreover, per the issues raised by the parties in response to the circuit court’s denial

of defendants’ motion to compel arbitration, the subject matter under consideration on review

consists exclusively of the arbitration agreement in the retail installment contract. Plaintiffs

argue that the retail installment contract encompassing the arbitration agreement is wholly

unrelated to the sale of the vehicles and, thus, their claims of fraud. Therefore, as the second

prong of the test requires assertion of a contract defense, clearly, Plaintiffs have neither

raised the argument nor presented evidence indicating that they were fraudulently induced

to enter into the arbitration agreement. Having found from the plaintiffs no allegation of

fraudulent inducement to entering the arbitration agreement and no defense presented before

the Court as to why the arbitration provision should be deemed unenforceable, this Court

finds no legal constraints external to the parties’ agreement that would foreclose arbitration.

¶20.   Mississippi law honors contracts as written, a concept the dissent acknowledges but

fails to apply. The dissent wholly misses the dispute between the parties on appeal. On appeal

from the circuit court’s denial of defendants’ motion to compel arbitration, the parties dispute

                                              10
one thing - the interpretation of the arbitration agreement. Plaintiffs agreed that upon the

occurrence of such a dispute, the parties would submit to arbitration of that issue, and the

United States Supreme Court, which this Court is indeed bound to follow, has mandated that

we honor the parties’ choice. We would act in derogation of the United States Supreme Court

as well as the parties’ intent to interpret or allow any court, including this one, to interpret

the arbitration agreement when the parties have contracted otherwise. We decide today

neither whether Plaintiffs’ claims are encompassed by the arbitration agreement nor whether

the entire case must be decided by arbitration or by trial. Because we honor the parties’

written agreement, the dissent voices a fear which is unfounded. We do not end litigation and

send the entire case to be arbitrated. We send the parties, according to their undisputed,

explicit wishes, to arbitration solely to determine arbitrability of their claims.

¶21.   Upon completion of the two-pronged inquiry, the decisions of this Court and the

United States Supreme Court necessitate that we honor the agreement of the parties as

evidenced in their contract and find that the circuit court erred in ruling on the interpretation

of the arbitration provision and declaring its scope. The trial court decision is vacated as to

its determination of arbitrability of the claims.

       II.    WHETHER THE CIRCUIT COURT ERRED IN DENYING
              DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND
              STAY LITIGATION AS TO FORD

¶22.   Ford argues separately in its appeal of the circuit court judgment that Plaintiffs had

no duty to submit their claims of fraud to arbitration. Ford maintains that, as a defendant,

despite its non-signatory status, it can independently compel arbitration. Second, it requests




                                               11
that this Court stay the litigation in the circuit court pending arbitration of the claims against

the remaining defendants.

¶23.   As for Ford’s ability to compel arbitration as a non-signatory to the arbitration

provision in dispute, Ford first attempted to gain contract enforcement rights in federal

district court. The federal district court ruled that Ford could not compel arbitration.4

¶24.   While the circuit court did not mention comity specifically, when deciding the same

issue the court explicitly recognized the analysis of the federal court and issued the same

judgment. Comity is similar to full faith and credit but is not governed by the United States

Constitution or federal statutes. See Laskosky v. Laskosky, 504 So. 2d 726, 729 (Miss. 1987)

(citing Kountouris v. Varvaris, 476 So. 2d 599, 607 (Miss. 1985); Cox v. Cox, 234 So. 2d

885, 892, 108 So. 2d 422 (1959)). Comity is a principle based on courtesy which recognizes

the decision of a court from another jurisdiction. “In general, the principle of “comity” is that

courts of one state or jurisdiction will give effect to laws and judicial decisions of another

state or jurisdiction, not as a matter of obligation but out of deference and mutual respect.”

Black’s Law Dictionary 183 (abridged 6th ed. 1991).

¶25.   The courtesy of comity is applied at the discretion of the trial court. Jundoosing v.

Jundoosing, 826 So. 2d 85, 90 (Miss. 2002); Laskosky, 504 So. 2d at 729. The circuit court

stayed the identical action in its court to await the outcome in federal district court. Upon the

issuance of the district court decision, the circuit court issued a decision drawing its sole

rationale and ultimate ruling from the district court judge, referring to him by name. Clearly,

       4
        As a matter of venue, Ford chose to have the issue of its ability to compel arbitration
decided in federal court, and Ford is bound by that choice. The federal district court judgment was
reversed on appeal by the United States Court of Appeals for the Fifth Circuit.

                                                12
when faced with the identical issue, the trial court in its own words “in agreement with the

United States District Court” decided to recognize the federal district court’s judgment, and

this Court finds no abuse of discretion in that decision. However, now that the Fifth Circuit

has reversed the district court, the same principle of comity applies, and this Court defers to

that ruling. Thus, mooting Ford’s appeal to this Court.

¶26.   Based on the above reasons, the circuit court should have excluded Ford from its

decision of arbitrability because by Ford’s choice of forum it was bound by the outcome in

federal court. The circuit court applied an acceptable legal standard when it exercised comity

with respect to the outcome in federal court as to Ford.

                                        CONCLUSION

¶27.   In accordance with the law, the plain text of the arbitration provision, and the federal

policy favoring arbitration, this Court finds that the arbitration provision requires a stay of

litigation while Plaintiffs submit to arbitration for a determination of the arbitrability of their

claims of fraudulent misrepresentation against GCFM, Keith Clark, Ray L. Fayne, and

Katrina Fayne. Therefore, this Court vacates the circuit court’s judgment, as to those

defendants, interpreting the arbitration provision.

¶28.   Additionally, the circuit court judgment denying Ford’s right to compel arbitration is

reversed in accordance with the reversal by the Fifth Circuit of the district court decision

upon which the circuit court wholly relied. Thus, this case is remanded to the circuit court

with directions to stay the entire case pending arbitration.

¶29.   VACATED IN PART AND REVERSED AND REMANDED IN PART.




                                                13
     WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ., CONCUR.
EASLEY, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE
WRITTEN OPINION. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED IN PART BY EASLEY, J. GRAVES AND RANDOLPH, JJ., NOT
PARTICIPATING.


       DIAZ, JUSTICE, DISSENTING:

¶30.   Because a contract that is fraudulently induced is void ab initio, and because federal

law should not mandate the result in today’s case, I must respectfully dissent.

       I. Arbitration Does Not Apply in This Case.

¶31.   The majority struggles mightily to apply arbitration to this case, and in doing so, does

damage to both the law and the factual record before us. The following facts are undisputed.

There were two transactions in this case. First, the plaintiffs made a decision to purchase a

vehicle from Greater Canton Ford. Second, the plaintiffs entered into a separate contract

with the dealership to secure credit for the purchase of the cars. The contract for credit

contained the arbitration clause which we examine today.

¶32.   However, the fraud alleged by the plaintiffs goes to the pre-sale representations of the

dealership. The majority crafts a particularly flimsy scarecrow when it states that the

“Plaintiffs have neither raised the argument nor presented evidence indicating that they were

fraudulently induced to enter into the arbitration agreement.” Since this was not an argument

of the plaintiffs, it is of course easy for the majority to dismiss it.

¶33.   The plaintiffs actually argued that the arbitration agreement contained in the credit

contract did not extend to or relate out of the separate contract for purchase. Thus they

offered that, since the arbitration clause was in a separate transaction, it did not reach their



                                                14
claims. This argument satisfies both logic and common sense. See Greenwood v. Sherfield,

895 S.W.2d 169, 175 (Mo. Ct. App. 1995) (“where the statements that give rise to a tort

claim are independent of the contract terms between the parties and do not require reference

to the underlying contracts, arbitration is not compelled”).

¶34.   Further, any fraud to coerce a party into entering a contract automatically invalidates

that the contract—and any clause therein—ab initio. The bedrock rule of contract law is that

“[a] written contract is to be upheld unless it is obtained through deceit or misrepresentation.”

Continental Jewelry Co. v. Joseph, 140 Miss. 582, 585, 105 So. 639, 639 (1925); Estate of

Baxter v. Shaw Assocs., 797 So. 2d 396, 399 (Miss. Ct. App. 2001). Accordingly, the

arbitration provision contained in the credit contract is not all-encompassing.

       II. Arbitration Damages the Constitutional Rights of Mississippians.

¶35.   I also write to express my continuing concern at our steadfast march towards

arbitration. Arbitration as a concept is wholly valid—if parties wish to settle disputes outside

of the legal system, they should be able to contract for such a result.

¶36.   However, two massive problems have proved to be the norm rather than the exception.

First, this Court has continually deferred to the decisions of the federal courts and the FAA,

which is a creation of the U.S. Congress. In my view, the states are not bound by these

decisions, and the Legislature and courts of Mississippi should ultimately regulate the usage

of arbitration within our state. See generally Allied-Bruce Terminix Companies, Inc. v.

Dobson, 513 U.S. 265, 285-97, 115 S.Ct. 834, 845-51, 130 L.Ed. 753 (1995) (Thomas, J.,

dissenting).




                                               15
¶37.   I also repeat the same concerns I have previously voiced concerning the unlimited

reach of arbitration: if we decide today that arbitration covers claims wholly unrelated to the

contract from which it is grounded, what is not covered by this arbitration agreement? For

example, if one of the plaintiffs had been murdered while at Greater Canton Ford paying a

bill, could the dealership insist that the wrongful death claim be submitted to arbitration? If

an employee of Greater Canton Ford picked one of the plaintiff’s pockets when he came in

on business related to the purchase of a vehicle, and the plaintiff sued the employee for

conversion, would he be forced to arbitrate that claim? Would it make no difference that the

conversion had occurred 20 years after her last transaction with Greater Canton Ford? These

very same hypotheticals were dismissed as absurd by the Seventh Circuit, which limited an

arbitration agreement over payday loans in Smith v. Steinkamp, 318 F.3d 775, 777 (7th Cir.

2003). Yet today we chart a different path—one towards unlimited arbitration.

¶38.   Lastly, I write to emphasize my continuing belief that all Mississippians have a

fundamental constitutional right to both a jury of their peers and access to the court system.

Because arbitration significantly interferes with these fundamental rights, it should be

reviewed accordingly with strict scrutiny. See Cleveland v. Mann, 942 So. 2d 108, 121-22

(Miss. 2006) (Diaz, J., dissenting). Because today the majority continues down a path which

deprives Mississippians of fundamental constitutional rights, I must respectfully dissent.

       EASLEY, J., JOINS THIS OPINION IN PART.




                                              16
