Rel: 10/24/2014




Notice: This opinion is subject to formal revision before publication in the advance
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           SUPREME COURT OF ALABAMA
                           OCTOBER TERM, 2014-2015

                         _________________________

                                  1130150
                         _________________________

                        America's Home Place, Inc.

                                          v.

                                 Gregory Rampey

                  Appeal from Chambers Circuit Court
                            (CV-13-900032)

MAIN, Justice.

       The defendant below, America's Home Place, Inc. ("AHP"),

appeals from an order of the Chambers Circuit Court ("the

trial court") denying AHP's motion to compel arbitration of
1130150

the claims brought by the plaintiff below, Gregory Rampey. We

reverse and remand.

                 I. Facts and Procedural History

      In August 2012, Rampey and AHP entered into a contract,

the terms of which provided that AHP would construct a house

for Rampey in Chambers County.           AHP constructed the house for

Rampey; however, after he took possession of the house, Rampey

began to notice "settlement and sinking of the foundation,"

which, according to Rampey, resulted in significant structural

and other damage to the house. AHP attempted to stabilize the

foundation and to repair the damage to the house that had

occurred   as    a   result   of   the    unstable   foundation;     those

efforts, however, were unsuccessful. On March 3, 2013, Rampey

filed in the trial court a complaint against AHP.                      The

complaint alleged 10 counts against AHP, each count stemming

from the construction of the house that was the subject of the

parties' August 2012 contract.

      AHP moved to compel arbitration of Rampey's claims and to

stay the proceedings in the trial court pending the outcome of

arbitration between the parties.            In support of its motion,

AHP   attached   the   contract    between     AHP   and   Rampey.     The


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contract stated that "Contractor and Owner agree as follows"

and then set forth 46 enumerated provisions.             Beside each

enumerated provision in the contract (except nos. 4 and 27,

which were inapplicable) there was a line for the "owner"

(i.e., Rampey) to initial.          Rampey admittedly wrote his

initials in the line next to every one of the 44 applicable

provisions,   including   provision   no.   37   ("the   arbitration

provision"), which states, in toto:

    "BINDING ARBITRATION AGREEMENT

    "ALL CLAIMS, DISPUTES AND OTHER MATTERS OR QUESTIONS
    ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
    BREACH THEREOF, SHALL BE SETTLED BY BINDING
    ARBITRATION IN ACCORDANCE WITH THE RULES OF AMERICAN
    ARBITRATION ASSOCIATON [sic] (AAA) AND/OR DEMARS &
    ASSOCIATES, LTD. (DMA), AND JUDGEMENT UPON THE AWARD
    RENDERED BY THE ARBITRATOR OR ARBITRATORS MAY BE
    ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
    THE PARTIES EXPRESSLY AGREE THAT THE ARBITRATOR OR
    ARBITRATORS SHALL HAVE THE POWER AND AUTHORITY TO
    GRANT REASONABLE ATTORNEY'S FEES AND COSTS IN
    RESOLUTION OF THE CLAIMS, DIFFERENCES AND/OR
    CONTROVERSIES ARISING FROM THIS AGREEMENT WHICH THE
    PARTIES   HAVE   AGREED   TO   SUBMIT   TO   BINDING
    ARBITRATION.

    "THE DEMAND FOR ARBITRATION SHALL BE IN WRITING AND
    DELIVERED TO THE OTHER PARTY TO THE AGREEMENT AND
    THE ARBITRATOR. THE DEMAND FOR ARBITRATION SHALL BE
    MADE WITHIN A REASONABLE TIME AFTER THE CLAIM,
    DISPUTE OR OTHER MATTER RELATING TO THIS AGREEMENT
    HAS ARISEN, AND IN NO EVENT SHALL BE MADE AFTER THE
    DATE WHEN INSTITUTION OF LEGAL OR EQUITABLE
    PROCEEDINGS BASED ON SUCH CLAIM, DISPUTE OR OTHER

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    MATTER WILL BE BARRED BY THE APPLICABLE STATUTE OF
    LIMITATIONS.

    "THE COSTS OF THE ARBITRATOR WILL BE PAID BY THE
    PARTY WHO IS AT FAULT ON THE POINT BEING ARBITRATED.
    IN THE EVENT OF MULTIPLE POINTS BEING ARBITRATED THE
    ARBITRATOR'S FEE WILL BE ALLOCATED ON A PRO RATA
    BASIS BY THE ARBITRATOR. IF EITHER PARTY FAILS TO
    ATTEND THE ARBITRATION, SUCH PARTY SHALL PAY FOR THE
    COSTS OF THE ARBITRATOR, PLUS A $1,000.00 PENALTY
    FOR LIQUIDATED DAMAGES FOR LOST TIME OF THE PARTY
    THAT ATTENDED THE ARBITRATION. CONTRACTOR MAY SECURE
    ITS RIGHTS UNDER THE MECHANIC'S LIEN LAW, AND,
    SUBSEQUENT TO THE ARBITRATION AWARD, MAY ENFORCE
    SAID RIGHT AND OBTAIN A LIEN FORECLOSURE JUDGEMENT."

(Capitalization    in       original.)        Immediately   beneath    the

arbitration provision were signature lines for the parties to

the contract, including one for "owner," i.e., Rampey. Rampey

also initialed provision no. 42, which states: "[Rampey]

acknowledges that each paragraph of this contract has been

explained and initials acceptance of same. [Rampey] also

acknowledges receipt of this agreement."              (Emphasis added.)

Furthermore, Rampey admittedly signed his name at the bottom

of each of the last two pages of the contract.

    Rampey     filed    a    response    to   AHP's   motion   to   compel

arbitration.    Rampey's sole argument in his response was that

his signature on the signature line immediately beneath the

arbitration provision was forged, and, thus, he said, there


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exists no proof of his intent to arbitrate any disputes

between himself and AHP.    Rampey did not argue that the

contract itself was invalid and/or unenforceable; rather,

Rampey argued only that the arbitration provision in the

contract was unenforceable because, according to Rampey, his

signature immediately beneath the arbitration provision was

forged. Rampey supported his response to the motion to compel

arbitration with, among other evidentiary documents, his own

affidavit, which states:

         "My name is Gregory Rampey. I am a resident
    citizen of the State of Alabama aged nineteen (19)
    years or older and have personal knowledge of the
    facts and matters set forth herein which are true
    and accurate to the best of my belief and knowledge.

         "I am the Plaintiff in the above identified
    cause and have personal knowledge of the facts set
    forth in this affidavit.

         "On August 29, 2012, I entered into a contract
    with America's Home Place, Inc.[,] for the
    construction of a home located at ___ Springfield
    Avenue, Chambers County, Alabama. This contract
    contained a binding arbitration agreement on page 5,
    paragraph    37.   (See   Contract,   attached    to
    Plaintiff[']s Opposition as Exhibit 1). I did not
    sign the binding arbitration agreement contained
    within the contract. I do not know who signed my
    name nor did they have my permission. I had no
    intention of agreeing to binding arbitration. The
    forged signature appearing within the binding
    arbitration clause in no way bears any resemblance


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1130150

    to my actual signature on pages 7-8 of the Contract.
    (See Contract)."

    After a hearing on AHP's motion to compel arbitration,

the trial court entered the following order: "[AHP's] Motion

to Compel arbitration is denied at this time. [Rampey] has

claimed that the signature on the contract is forged. The

issue of whether an enforceable agreement to arbitrate exists

shall be set for jury trial on the next available jury

docket."   AHP appealed.

                     II. Standard of Review

         "Our standard of review of a ruling denying a
    motion to compel arbitration is well settled:

                "'"This Court reviews de novo the
           denial of a motion to compel arbitration.
           Parkway Dodge, Inc. v. Yarbrough, 779 So.
           2d 1205 (Ala. 2000). A motion to compel
           arbitration is analogous to a motion for a
           summary judgment. TranSouth Fin. Corp. v.
           Bell, 739 So. 2d 1110, 1114 (Ala. 1999).
           The party seeking to compel arbitration has
           the burden of proving the existence of a
           contract calling for arbitration and
           proving that the contract evidences a
           transaction affecting interstate commerce.
           Id. '[A]fter a motion to compel arbitration
           has been made and supported, the burden is
           on the non-movant to present evidence that
           the supposed arbitration agreement is not
           valid or does not apply to the dispute in
           question.' Jim Burke Automotive, Inc. v.
           Beavers, 674 So. 2d 1260, 1265 n. 1 (Ala.


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1130150

           1995)   (opinion        on      application        for
           rehearing)."'"

SSC Montgomery Cedar Crest Operating Co., LLC v. Bolding, 130

So. 3d 1194, 1196 (Ala. 2013) (quoting Elizabeth Homes, L.L.C.

v. Gantt, 882 So. 2d 313, 315 (Ala. 2003), quoting in turn

Fleetwood Enters., Inc. v. Bruno, 784 So. 2d 277, 280 (Ala.

2000)).

                               III. Analysis

    The dispositive issue in this case is whether the trial

court erred in denying AHP's motion to compel arbitration

based on Rampey's allegation that his signature immediately

beneath the arbitration provision in the contract was forged.

We conclude that the trial court did err.                As noted, the

contract contains a binding arbitration provision (enumerated

provision no. 37 in the contract); Rampey admittedly wrote his

initials   in    the    line   provided    next   to   the     arbitration

provision.      Also, as noted, provision no. 42 of the contract

states: "[Rampey] acknowledges that each paragraph of this

contract has been explained and initials acceptance of same.

[Rampey] also acknowledges receipt of this agreement"; Rampey

admittedly      wrote    his    initials    beside     that     provision.

Furthermore, provision no. 39 of the contract states: "This

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1130150

Agreement constitutes the sole and entire Agreement between

the parties hereto and no modifications of this Agreement

shall   be   binding    unless        signed   by   all   parties   to   this

Agreement.    No representation,            promise,   or   inducement   not

included in this Agreement shall be binding upon any party

hereto."     Moreover, on page 7 of the contract, directly above

one of the two places in which Rampey admittedly signed the

contract, it states, in pertinent part: "This agreement[,

i.e., the contract,] shall be binding on the parties thereto

...."     The contract language quoted above shows that Rampey

and AHP entered into a binding contract, which Rampey does not

dispute,     that    includes    two    signatures     Rampey   agrees   are

legitimate     and     that     the     contract    includes    a   binding

arbitration provision.           The fact that Rampey's signature

immediately beneath the arbitration provision was (allegedly)

forged is of no consequence because his signature was not

required immediately beneath the arbitration provision and,

furthermore, Rampey assented to be bound by that provision

when he admittedly wrote his initials on the line next to the

arbitration provision.           See, e.g., Stiles v. Home Cable




                                        8
1130150

Concepts, Inc., 994 F. Supp. 1410 (M.D. Ala. 1998), which

aptly explains the fallacy of Rampey's argument:

         "Stiles'[s] '[f]irst and foremost' objection is
    that he did not sign the arbitration clause at
    issue. It is, of course, a matter of general
    contract law that a party must agree to a contract
    in order to be bound by it. See Old Republic Ins.
    Co. v. Lanier, 644 So. 2d 1258, 1260 (Ala. 1994);
    Roberson v. Money Tree of Ala., Inc., 954 F. Supp.
    1519, 1528 (M.D. Ala. 1997), citing Restatement of
    Contracts, 2d. § 17. This provision of general
    contract law applies even if the arbitration clause
    is subject to the Federal Arbitration Act [('the
    FAA')]. See 9 U.S.C. § 2 (arbitration clause not
    enforced where invalid 'upon such grounds as exist
    at law or in equity for the revocation of any
    contract'). In addition, the FAA also requires that
    an arbitration clause be written to be enforceable.
    9 U.S.C. § 2 (a 'written provision'); Continental
    Grain Co. v. Beasley, 628 So. 2d 319, 322 (Ala.
    1993).

         "While written agreement is required for
    arbitration, however, there is no requirement that
    every single provision of a contract, including the
    arbitration clause, must be signed in order to form
    part of the agreement. Indeed, it is axiomatic that
    'parties may become bound by the terms of a
    contract, even though they do not sign it, where
    their assent is otherwise indicated.' 17A Am. Jur.
    2d § 185. ... The FAA has no separate requirement of
    a signed arbitration clause. As noted by the
    Northern District of Alabama, '[i]t is well
    established that a written agreement to arbitrate
    need not be signed by the parties as a prerequisite
    to the enforcement of the agreement.' Middlebrooks
    v. Merrill Lynch, Pierce, Fenner & Smith, Inc., [No.
    CV 89-HM-5015-NW, April 5, 1989] (N.D. Ala. 1989)
    [not reported in F. Supp.].


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1130150

         "Stiles has cited this court to three cases
    which allegedly stand for the proposition that he
    must sign an arbitration agreement for it to be
    enforceable. His reliance is misplaced, however. The
    first that he cites, Old Republic Ins. Co., 644 So.
    2d at 1260, only stands for the proposition that a
    party must agree to a contract to be bound by it.
    The second, Continental Grain Co., 628 So. 2d at
    322, merely notes that the FAA requires arbitration
    clauses to be written. Finally, the third, Ex parte
    Jones, 686 So. 2d 1166 (Ala. 1996), only stands for
    the proposition that someone who is 'not a party to
    the contract containing the arbitration agreement'
    may not compel arbitration. None states the
    proposition that the arbitration clause itself must
    be signed. Indeed, these cases could not state that
    proposition. Alabama law is not permitted by the FAA
    to treat arbitration clauses any differently than
    other contracts. See Doctor's Assoc., Inc. v.
    Casarotto, 517 U.S. 681, 686–87, 116 S. Ct. 1652,
    1656, 134 L. Ed. 2d 902 (1996) ('Courts may not,
    however, invalidate arbitration agreements under
    state   laws   applicable    only   to   arbitration
    provisions') (emphasis in original); Allied–Bruce
    Terminix Co. v. Dobson, 513 U.S. 265, 281, 115 S.
    Ct. 834, 130 L. Ed. 2d 753 (1995) (FAA makes
    unlawful any state policy that 'would place
    arbitration clauses on an unequal "footing"').
    Because Alabama law only requires the contract to be
    signed (and only certain contracts at that), and
    does not require every single provision of every
    contract to be signed, it could not require the
    arbitration clause at issue here to be signed.
    Doctor's Assoc., 517 U.S. at 682–84, 116 S. Ct. at
    1654 (holding that Montana law cannot require
    special notice provisions in arbitration contracts).

         "Stiles assented to the contract as a whole in
    this case. That fact is uncontested. ... Stiles has,
    therefore, assented to an arbitration clause, even
    absent his signature. ... The provision is not
    invalid because not signed."

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1130150

Stiles, 994 F. Supp. at 1416 (initial emphasis added).

       Furthermore, it is well settled that

            "[a] plaintiff cannot seek the benefits of a
       contract but at the same time avoid the arbitration
       provision in the contract. Wolff Motor Co. [v.
       White], 869 So. 2d [1129,] 1136 [(Ala. 2003)].
       Instead, 'she must accept or reject the entire
       contract.' Credit Sales, Inc. v. Crimm, 815 So. 2d
       540, 546 (Ala. 2001). Britta's claims, including her
       breach-of-contract claim, rely on the contract to
       support her claims for damages. Therefore, she is
       bound by the arbitration provision in the contract.
       Infiniti of Mobile, Inc. v. Office, 727 So. 2d 42,
       48 (Ala. 1999)[1]; Delta Constr. Corp. v. Gooden, 714
       So. 2d 975, 981 (Ala. 1998)."

Bowen v. Security Pest Control, Inc., 879 So. 2d 1139, 1143

(Ala. 2003) (emphasis added). See also Southern Energy Homes,

Inc.       v.   Ard,   772    So.   2d   1131,   1134-35   (Ala.   2000)   ("A

plaintiff        cannot      simultaneously      claim   the   benefits   of   a

contract and repudiate its burdens and conditions." (citing

Value Auto Credit, Inc. v. Talley, 727 So. 2d 61 (Ala. 1999);

Infiniti of Mobile, Inc. v. Office, 727 So. 2d 42 (Ala. 1999);


       1
     Notably, in Infiniti of Mobile, Inc., a plurality of this
Court concluded that, "[b]ecause the undisputed evidence
indicates that the second retail-buyer's-order form represents
the final contract between Mr. Office and Infiniti, and
because Mr. Office clearly initialed the arbitration
provisions appearing on both the front side and the reverse
side of that contract, we must conclude that Mr. Office agreed
to arbitrate his claims against Infiniti." 727 So. 2d at 47
(emphasis added).
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1130150

Georgia Power Co. v. Partin, 727 So. 2d 2 (Ala. 1998); Delta

Constr. Corp. v. Gooden, 714 So. 2d 975 (Ala. 1998); and Ex

parte Dyess, 709 So. 2d 447 (Ala. 1997))).

       Here, Rampey, whose claims are all predicated on alleged

breaches and violations of the contract, attempts to claim the

benefits        of    the     contract   while    repudiating    one   of   its

conditions, i.e., the binding arbitration provision. However,

as     noted,        Rampey    must   "'accept     or   reject   the   entire

contract.'"          Bowen, 879 So. 2d at 1143 (quoting Credit Sales,

Inc. v. Crimm, 815 So. 2d 540, 546 (Ala. 2001)).                  As was the

case       in        Bowen,      Rampey's        claims,   including        his

breach-of-contract claim, rely on the contract for support.

Thus, Rampey is bound by all the provisions of the contract,

including the arbitration provision. Accordingly, we conclude

that the trial court erred in denying AHP's motion to compel

arbitration.2

       2
     Rampey offers, as an alternative basis for affirming the
trial court's denial of the motion to compel arbitration, the
argument that AHP presented no evidence "showing that the
arbitration agreement involved or affected interstate
commerce."   Rampey's brief, at 13.      See, e.g., Elizabeth
Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala. 2003) ("'The
party seeking to compel arbitration has the burden of proving
the existence of a contract calling for arbitration and
proving that the contract evidences a transaction affecting
interstate commerce.'" (quoting Fleetwood Enters., Inc., 784
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                       IV. Conclusion

    The trial court erred in denying AHP's motion to compel

arbitration.   Therefore, we reverse the trial court's order

and remand the cause to that court with instructions to vacate

its order denying the motion to compel arbitration and to

enter an order granting AHP's motion to compel arbitration.

    REVERSED AND REMANDED WITH DIRECTIONS.

    Stuart, Bolin, Parker, Wise, and Bryan, JJ., concur.

    Murdock and Shaw, JJ., concur in the result.




So. 2d at 280)). However, Rampey did not raise that argument
in the trial court; therefore, the argument is waived on
appellate review. See, e.g., Andrews v. Merritt Oil Co., 612
So. 2d 409, 410 (Ala. 1992) ("This Court cannot consider
arguments raised for the first time on appeal; rather, our
review is restricted to the evidence and arguments considered
by the trial court.").     Furthermore, even if it were not
waived, we could conclude that the argument is unavailing
because the contract shows that the house was built in Alabama
by AHP, which listed its place of business as being in "Hall
County, Gainesville, GA." See Hurst v. Tony Moore Imports,
Inc., 699 So. 2d 1249, 1257 (Ala. 1997) ("[I]f any effect on
interstate commerce can be found in a commercial transaction,
then the transaction is considered to be one involving
interstate commerce.").
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1130150

MURDOCK, Justice (concurring in the result).

       The   main   opinion     correctly    concludes        that     "Rampey

assented to be bound by [the arbitration] provision when he

admittedly wrote his initials on the line next to [that]

provision" and signed his name in the signature lines at the

end of the contract.      ___ So. 3d at ___.          I agree, and, based

on general principles of contract law, I find this conclusion

sufficient to the end achieved here.                 I therefore find it

unnecessary to rely, as does the main opinion, upon the

decision in Stiles v. Home Cable Concepts, Inc., 994 F. Supp.

1410    (M.D.   Ala.   1998).     In     fact,   I   find     Stiles    to   be

inapposite to the present case.

       First, the statements from Stiles quoted in the main

opinion, see ___ So. 3d at ___, were made in the context of an

arbitration clause that, on the one hand, was not accompanied

by a signature line dedicated specifically to that clause and,

on the other hand, was not initialed by the party resisting

arbitration.        In this context, the key passage from                    the

Stiles opinion quoted in the main opinion, i.e., "'there is no

requirement     that   every    single     provision     of    a     contract,

including the arbitration clause, must be signed in order to


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form part of the agreement,'" ___ So. 3d at ___ (emphasis

omitted), lacks significant probative value in a case, such as

this one, where the arbitration clause is accompanied by an

unsigned signature line dedicated solely to that clause.

    In addition to its lack of significant probative value as

to the peculiar facts presented in this case, I am reluctant

to rely upon Stiles for another reason. In Stiles the federal

district court went so far as to impose upon a consumer a

requirement    to    arbitrate    pursuant      to   a   provision   in   an

original contract that did not mention arbitration but instead

purported to allow a credit-card issuer to change any of the

terms   of   the    agreement    between   it    and     the   consumer   by

unilateral notification so long as the consumer did not reject

the proposed changes in writing within a prescribed period

following such notification.            Regardless of whatever merit

this holding may have in regard to a consumer contract such as

the one at issue in Stiles, I see no reason to quote with

approval from a decision that goes this far in order to

achieve the result achieved in the present case.

    I also find inapposite to the present case the principle

invoked in that portion of the main opinion that follows its


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invocation of Stiles.      Specifically, the main opinion seizes

upon the proposition that "'[a] plaintiff cannot seek the

benefits    of   a   contract   but    at   the   same   time    avoid   the

arbitration provision in the contract.'"             ___ So. 3d at ___

(quoting Bowen v. Security Pest Control, Inc., 879 So. 2d

1139, 1143 (Ala. 2003)).        The only argument made by Rampey in

the present case, however, is that, because he did not sign

the signature line dedicated to the arbitration provision, the

arbitration provision is not "in the contract."                 He does not

go further and argue that, even if that arbitration provision

is part of the contract, he would not be bound by it for some

reason, even as he seeks to benefit from other parts of the

contract.    The stated principle is therefore inapposite.




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