                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2006-CA-00826-SCT

AMSOUTH BANK

v.

CHARLES QUIMBY


DATE OF JUDGMENT:                         05/10/2006
TRIAL JUDGE:                              HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED:                SMITH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   E. BARNEY ROBINSON, III
ATTORNEYS FOR APPELLEE:                   STANLEY A. SOREY
                                          EUGENE C. TULLOS
NATURE OF THE CASE:                       CIVIL - CONTRACT
DISPOSITION:                              AFFIRMED - 09/06/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE WALLER, P.J., EASLEY AND GRAVES, JJ.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Charles Quimby filed a complaint in the Circuit Court of Smith County against

AmSouth Bank and American Heritage Life Insurance Company alleging that their failure

to pay benefits under a credit disability insurance policy constituted a tortious breach of

contract and caused him emotional distress. Both defendants filed answers, and AmSouth

filed a motion to compel arbitration. The circuit court denied the motion to compel

arbitration, and from its amended order, AmSouth now appeals.1 Under the rule announced


       1
       American Heritage filed a motion for summary judgment prior to the hearing on the
motion to compel arbitration and so remains a defendant below. It has not joined in this
in Tupelo Auto Sales, Ltd. v. Scott, 844 So. 2d 1167 (Miss. 2003), this court has jurisdiction

over this appeal.

                                           FACTS

¶2.    In 1985, Charles Quimby opened a line of credit with Deposit Guaranty National

Bank. Deposit Guaranty is a predecessor to AmSouth Bank, having merged with AmSouth

on December 31, 1999.2 There is no signature card for the line of credit account in the record

nor is there an original contract in the record covering this account. In his complaint,

Quimby alleges that at the time he opened the line of credit, he requested credit disability

insurance.   On February 9, 2000, AmSouth mailed a Customer Agreement to each

Mississippi resident with an open account. The agreement covered ‘the use of any type of

depository account you have with us, both personal and nonpersonal, except for time

deposits, certificates of deposit, and IRAs.’       It contained new terms for these accounts,

notably including an arbitration clause.

¶3.    According to his complaint, Quimby became disabled on June 15, 2000. He

demanded benefits from American Heritage, which denied he is covered under any credit

disability policy. Having been denied what he thought was due, Quimby filed suit in 2005

to recover the benefits plus compensatory damages for emotional distress and punitive

damages for tortious breach of contract. AmSouth answered, raising arbitration as a defense,

and subsequently filed a motion to compel arbitration.


appeal.
       2
        Quimby had previously opened two separate checking accounts in 1981 and 1982
with First National Bank of Laurel, and a savings account in 1984 with Deposit Guaranty.
First National Bank of Laurel also merged with AmSouth prior to December 1999.

                                                2
¶4.    After a hearing on the motion, the circuit court sent a letter to counsel explaining it

would deny the motion and the basis of its ruling:

              From the pleadings, briefs, exhibits, and authorities filed in connection
       with the above encaptioned matter, the following is clear:
              1.    The “Amendment to Customer Agreement” was effective March
                    17, 2000;
              2.    The plaintiff (according to his complaint) became disabled in
                    June of 2000; and
              3.    The arbitration clause became effective March 1, 2004.

                It is my opinion that since the plaintiff’s cause of action accrued almost
       four (4) years prior to the effective date of the arbitration agreement, the
       bank’s motion to compel arbitration and stay proceedings should be denied.
       It is also my opinion that this case is controlled by B. C. Rogers Poultry, et al
       v. Wedgeworth, 2005 WL 2234777 (Miss ).

              I do not believe that the bank can rely on the March 17, 2000
       “Amendment of Customer Agreement” because while said document does say
       the bank can change the customer agreement at any time, it does not say that
       future changes would relate back to March 17, 2000. Again, I think this is
       squarely in line with the ruling in the Rogers v. Wedgeworth case, despite
       Judge Lee’s 2001 opinion in Beneficial National Bank, et al v. Payton, 214 F.
       2d 679.

After AmSouth filed a supplemental motion to compel arbitration, the circuit court wrote

another letter to counsel which provided in relevant part:

              I read and considered Mr. Robinson’s October 19 letter and
       supplemental motion, together with the “intervening evidence,” the “Second
       Affidavit of Kimberly Burkhalter.” I compared this affidavit with Ms.
       Burkhalter’s first one paragraph-by-paragraph and found the changes of little
       or no import. I found nothing to change the dates I felt controlling in my
       October 18 letter. Further, other than reading Rogers v. Wedgeworth different
       from me, the supplemented amended motion to compel arbitration simply
       appears to rehash matters I have already decided.




                                               3
In its Amended Order Denying Motion to Compel Arbitration, the court incorporated these

letters as the rationale for its ruling. The amended order itself includes no other grounds for

denying the motion to compel arbitration. AmSouth appealed.

                                STANDARD OF REVIEW

¶5.    An order denying a motion to compel arbitration raises a question of law and is

subject to de novo review. Smith v. Captain D’s, LLC, ___ So. 2d ___, 2006-CA-00024-

SCT, ¶ 9 (June 14, 2007); East Ford, Inc. v. Taylor, 826 So. 2d 709, 713 (Miss. 2002). At

this stage, this court’s review is limited to a two-pronged inquiry: “The first prong has two

considerations: (1) whether there is a valid arbitration agreement and (2) whether the parties'

dispute is within the scope of the arbitration agreement. . . . Under the second prong, the

United States Supreme Court has stated the question is ‘whether legal constraints external

to the parties' agreement foreclosed arbitration of those claims.’” East Ford, Inc., 826 So.

2d at 713 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614,

626, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985)). Under the second prong, applicable contract

defenses available under state contract law such as fraud, duress, and unconscionability may

be asserted to invalidate the arbitration agreement without offending the Federal Arbitration

Act. Id. (citing Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 686, 116 S. Ct. 1652, 134

L. Ed. 2d 902 (1996)). We find that Quimby’s claims do not fall within the scope of a valid

arbitration clause in AmSouth’s Customer Agreements, and hold that the circuit court’s

judgment is correct and is hereby affirmed.

                                       DISCUSSION




                                              4
¶6.    The circuit court’s judgment denying the motion to compel arbitration rests primarily

upon this court’s opinion in B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So. 2d 483 (Miss.

2005). AmSouth devotes half of its brief to arguing that the circuit court misapplied its

holding, reaching an incorrect result and requiring reversal. Quimby responds that the

arbitration agreement came into effect after his claims arose, and the agreement does not

cover the claims in his complaint which concern his credit disability insurance policy. He

also counters by raising contract defenses available under state law which operate to

invalidate the arbitration clauses.   The Wedgeworth opinion and the circuit court’s

application are discussed below.

¶7.    In the Wedgeworth case, a poultry grower, Wedgeworth, contracted with a poultry

processor, B.C. Rogers, to house and care for B.C. Rogers’s live inventory. Wedgeworth,

911 So. 2d at 485. The written contract between the parties contained an arbitration clause

whose scope included ‘all disputes arising under this agreement.’ Id. No other contract

between the parties contained such a clause, and this clause did not state that it was

applicable to disputes which existed before the contract’s execution. Id. at 487. When

Wedgeworth sued B.C. Rogers for coercion and interference with contracts, events which

occurred prior to the execution of the contract between them, B.C. Rogers moved to compel

arbitration. The circuit court denied the motion to compel arbitration. On appeal, this court

found that the scope of the arbitration agreement did not include the disputes in

Wedgeworth’s complaint nor did the arbitration clause’s terms apply retroactively. Id. at

489. The circuit court’s judgment was affirmed.




                                             5
I.     Whether the trial court erred by incorrectly applying B.C. Rogers Poultry, Inc.
       v. Wedgeworth, 911 So. 2d 483 (Miss. 2005), and finding the arbitration
       provisions in AmSouth’s March 1, 2004, Account Agreement not broad enough
       in temporal scope to cover a preexisting claim.

¶8.    AmSouth argues that three distinctions between the present case and Wedgeworth

make the circuit court’s reliance upon that case misplaced: (1) The arbitration provisions in

this case are broader than those in Wedgeworth; (2) the March 17, 2000, and October 4,

2004, Customer Agreements contained an applicable arbitration clause that covered disputes

prior to Quimby’s alleged disability and lawsuit, unlike Wedgeworth’s limited coverage; and

(3) Wedgeworth’s contract did not contain a First Options clause referring questions of

arbitrability explicitly to the arbitrator.

¶9.    First, AmSouth argues that the terms of its arbitration agreement in its Customer

Agreements are broader than the terms in Wedgeworth. Three revised Customer Agreements

are in the record.3 They will be referenced by their effective dates: March 17, 2000; March

1, 2004; and October 4, 2004. Their scope and terms are examined below.

¶10.   The March 17, 2000, revision of AmSouth’s Customer Agreement covered “the use

of any type of depository account you have with us, both personal and nonpersonal, except

for time deposits, certificates of deposit, and IRAs.” It defined depository account as “any

type of account to which funds may be deposited.” The arbitration clause read in pertinent

part as follows:

       Any controversy, claim, or dispute between us (or between you and any of our
       employees, agents, representatives, parent or affiliated companies, or any of


       3
       Also, one amendment to the March 1, 2004, Agreement is applicable to “depository
accounts” whose arbitration terms are identical to the March 2004 Customer Agreement.

                                              6
       their employees) shall be settled by arbitration as set forth below. Such
       arbitration shall include, without limitations, any dispute or controversy
       regarding or pertaining in any way to any of the following (a) this agreement;
       (b) the Account; (c) any charge or cost incurred under this Agreement or the
       Account; (d) the collection of any amounts due under this Agreement or the
       Account; (e) any contract or alleged tort related to or arising out of your
       business or relationship with us; and (f) any statements or representations
       made to you. . . . Any disagreement as to whether a particular dispute or claim
       is subject to arbitration under this paragraph shall be decided by arbitration in
       accordance with the provisions of this paragraph. . . . WITH RESPECT TO
       DISPUTES SUBMITTED TO ARBITRATION, YOU AND WE EACH
       WAIVE ALL RIGHT TO A TRIAL BY JURY.

Also part of the March 2000 Customer Agreement was language permitting unilateral

revision of the agreement. Acceptance of the revised terms was made “[b]y continuing to

maintain your account.”

¶11.   The March 1, 2004, Customer Agreement covered “[Time Deposits or Certificates of

Deposit, and Individual Retirement Accounts]. . . ; and any other type of depository account,

both personal and nonpersonal. . . . As used herein, the term “account” shall mean and

include any Time Deposit, Certificate, IRA or Deposit Account you have with us from time

to time. The provisions in this Section 1 shall apply to all accounts you may have with us

from time to time.” The arbitration clause was contained in Section 6. The pertinent March

1, 2004, revision read as follows:

       Except as expressly provided below, any controversy, claim, dispute or
       disagreement (any “Claim”) arising out of, or in connection with or relating to
       (1) the interpretation, execution, administration or modification of the
       Agreement; (2) any account; (3) any charge or cost incurred pursuant to the
       Agreement; (4) the collection of any amounts due under the Agreement or any
       account; (5) any alleged tort arising out of or relating in any way to the
       Agreement or any account; (6) any breach of any provision of the Agreement;
       (7) any statements or representations made to you with respect to the
       Agreement or any account; or (8) any of the foregoing arising out of, in
       connection with, or relating to any agreement which relates to the Agreement


                                              7
       or any account; will be settled by binding arbitration with the Federal
       Arbitration Act.

The agreement also stated that by continuing to maintain the account, the customer agreed

to the revised terms.

¶12.   The October 4, 2004, Customer Agreement covers:

       the use of the following accounts you may have with us: any AmSouth Time
       Deposit . . . or AmSouth Certificate of Deposit . . . ; any AmSouth Individual
       Retirement Account . . . ; and any other type of depository account, both
       personal and nonpersonal. . . . As used herein, the term “account” shall mean
       and include any Time Deposit, Certificate, IRA or Deposit Account you have
       with us from time to time. The provisions in this Section 1 shall apply to all
       accounts you may have with us from time to time. The dispute resolution
       provisions in section 6 of this Agreement also apply to any account, contract,
       loan, transaction, business, contact, interaction or relationship you may have
       with us. Further, as used in, or in relation to, or in interpreting any provision
       of this Agreement, the term “account” shall also include any account or other
       business relationship of any nature whatsoever you may hold from time to time
       with any of us.

The arbitration clause was contained in Section 6, and its terms were largely unchanged from

the March 2004 agreement. Preceding the arbitration clause was the following language:

“The following applies to all of the above referenced account types and agreements, as well

as to any dispute you may have with us.” Another revision to the October 4, 2004, Customer

Agreement made arbitration an elective, as opposed to a mandatory, event. Once again,

continued maintenance of an account constituted acceptance of the revised terms.

¶13.   The arbitration clauses in all of the revisions to the AmSouth Customer Agreement

appear to be more broad than those in Wedgeworth. The October 4, 2004, revision, in

particular, covered “any account or other business relationship of any nature whatsoever you

may hold from time to time with any of us,” and the arbitration clause within that agreement



                                              8
applied to “any dispute you may have with us.” AmSouth also argues that Quimby’s use of

his other accounts with AmSouth may have been sufficient to bind the disputes concerning

his line of credit account over to arbitration under the terms of the October 2004 revisions

to the Customer Agreement. His checking accounts were clearly depository accounts

covered by the revised agreements. He agreed in his signature card on at least one of these

accounts to abide by the “rules and regulations and all amendments” to his account

agreements. By the express terms of the Customer Agreements his “continuing to maintain”

any of those accounts constituted acceptance of the terms of the revised agreements, and the

October 2004 Customer Agreement bound over to arbitration “any dispute you may have

with us.”

¶14.   We find, however, the line of credit account was not governed by the March 2000 and

March 2004 Customer Agreements, and this court’s holding in Wedgeworth requires

specific, retroactive language within an arbitration agreement before we will find a

preexisting controversy within its scope. Under this interpretation, the October 2004 revised

Customer Agreement does not apply retroactively to cover the claims in Quimby’s

complaint. Therefore, analyzing this matter under East Ford, we conclude the circuit court

had the authority to determine whether Quimby’s claims were within the scope of the

AmSouth Customer Agreements, and that it correctly decided that they were not. East Ford,

Inc., 826 So. 2d at 713.

¶15.   From the sparse record before the court, it appears the term “line of credit” is

undefined by either party or by any revised AmSouth Customer Agreement. During the

hearing on the motion to compel arbitration, counsel for AmSouth referred to this account

                                             9
as a “loan.” Neither party indicates the nature of this line of credit. Black’s Law Dictionary

defines “line of credit” simply as:

       A margin or fixed limit of credit granted by one to another, to the full extent
       of which the latter may avail himself in his dealings with the former, but which
       he must not exceed; usually intended to cover a series of transactions, in which
       case, when the customer’s line of credit is nearly or quite exhausted, he is
       expected to reduce his indebtedness by payments before drawing upon it
       further.

Black’s Law Dictionary 1078 (Rev. 4 th ed. 1968) (citing Pittinger v. Southwestern Paper Co.

of Fort Worth, 151 S.W.2d 922, 925 (Tex. Civ. App. 1941)). There is no indication in the

record whether this account is a secured line of credit, such as a home-equity line of credit,

or an unsecured line of credit, such as a consumer credit card. No signature card appears in

the record for this account. It is assumed throughout the record that Quimby is the debtor

and AmSouth and its predecessors are the creditors. The parties appear to agree that

Quimby’s claims are tied to opening the line of credit with Deposit Guaranty.

¶16.   The Mississippi Uniform Commercial Code (UCC)–Negotiable Instruments generally

defines an “account” as “any deposit or credit account with a bank, including a demand, time,

savings, passbook, share draft, or like account, other than an account evidence by a certificate

of deposit.” Miss. Code Ann. § 75-4-104(3) (Rev. 2002). A “deposit account” is defined

under the UCC–Secured Transactions as “a demand, time, savings, passbook, or similar

account maintained with a bank. The term does not include investment property or accounts

evidenced by an instrument.” Miss. Code Ann. § 75-9-102(29) (Rev. 2002). This Court has

held “funds deposited to a general account belong to the bank, with the bank becoming the

debtor to the owner of the account for the amount of the deposit.” First Investors Corp. v.



                                              10
Rayner, 738 So. 2d 228, 235 (Miss. 1999) (quoting Deposit Guar. Nat’l Bank v. B.N.

Simrall & Son, Inc., 524 So. 2d 295, 299 (Miss. 1987)). Under Mississippi law, Quimby’s

line of credit may qualify as an “account,” but not as a deposit account. The AmSouth

Customer Agreements further narrow the definition of “account” to the point that they

exclude the line of credit account.

¶17.   The March 2000 Customer Agreement defined “account or depository account” as

“any type of account to which funds may be deposited.” Section 4-104 of the UCC

differentiates between deposit and credit accounts, but includes both in its general definition

of account. Miss. Code Ann. § 75-4-104(3). However, the definition in AmSouth’s March

2000 Customer Agreement was narrower and applied only to “depository accounts,” among

other non-credit and unrelated accounts. The March 2004 Customer Agreement covered only

“[Time Deposits or Certificates of Deposit, and Individual Retirement Accounts]. . . ; and

any other type of depository account, both personal and nonpersonal. . . . As used herein, the

term “account” shall mean and include any Time Deposit, Certificate, IRA or Deposit

Account you have with us from time to time.” This Customer Agreement likewise limited

its application to accounts into which funds were placed or kept, rather than where debts

were to be repaid.

¶18.   The cover of the March 2000 Customer Agreement read “Customer Agreement for

Depository Accounts,” “Time Deposit/Certificate of Deposit Agreement,” and “Individual

Retirement Accounts Investment Agreements.” The cover of the March 2004 Customer

Agreement read “Important information about your Checking, Money Market, Savings, Time

Deposit and IRA accounts; your Electronic Banking services; and more.”

                                              11
¶19.   From the exhibits in the record before the court, we find that Quimby’s line of credit

account, or loan, does not fall within the meaning of the various depository accounts listed

and defined in the March 2000 and March 2004 Customer Agreements. Even if there is

ambiguity within the Customer Agreements such that an argument could be made for its

inclusion, this Court construes ambiguity within a contract against the drafter. Banks v.

Banks, 648 So. 2d 1116, 1121 (Miss. 1994). We therefore conclude that the March 2000 and

March 2004 revised Customer Agreements, by their terms, did not cover Quimby’s line of

credit account.

¶20.   The March 2004 and October 2004 Customer Agreements did not cover Quimby’s

claims for another reason: There was no explicit, retroactive application language in any of

the arbitration clauses. AmSouth relied on the use of the word ‘any’ in its Customer

Agreements to indicate retroactive application. For example, the October 2004 arbitration

clause stated a party may elect that “any controversy . . . relating to . . . any account. . .”

be resolved by arbitration. The March 2004 Customer Agreement likewise covered “any

account” or “the collection of any amounts due under the Agreement or any account.”

¶21.   This court’s opinion in Wedgeworth indicated the Court’s intent that explicit language

of retroactive application appear in arbitration clauses before they will be enforced on

preexisting claims. It also left the Court room to insist upon this language in arbitration

agreements. The court stated in Wedgeworth, “[h]ere, the arbitration provision contained

neither language that was broad enough to cover events which predated the contract’s

execution, nor language which would broaden its application by containing terms such as

‘applies to all transactions occurring before or after execution’ or ‘all transactions between

                                              12
us’ or ‘all business with us.’ Where such clause exists, a legal basis to apply the arbitration

clause retroactively may exist.” Id. at 489 (emphasis added). By indicating a preference for

specific, retroactive application language in arbitration agreements, and using the permissive

“may” to indicate that it was not bound to find retroactive application even if an arbitration

agreement’s language was broader than that in Wedgeworth, the court left itself room to find

AmSouth’s clauses insufficient to apply retroactively. Even without this leeway within this

Court’s precedent, there is evidence in the record that AmSouth did not intend its Customer

Agreements to apply retroactively.

¶22.   In support of its motion to compel arbitration, AmSouth offered the affidavit of

Kimberly Burkhalter, an AmSouth employee, which states that the dates of the Customer

Agreements were the dates their terms became ‘effective’; e.g., the March 17, 2000,

Customer Agreement became effective on that date, and so on. Even if implied acceptance

by continued use of the account was sufficient to bind Quimby to the arbitration terms in the

March 2004 and October 2004 Customer Agreements, the effective dates of the Customer

Agreements occurred after the accrual of his claims against AmSouth and American

Heritage.

¶23.   Despite the federal policy favoring arbitration, our courts are required to submit to

arbitration only what the parties agreed to submit to arbitration. Adams v. Greenpoint

Credit, LLC, 943 So. 2d 703, 708 (Miss. 2006) (citing AT&T Technologies, Inc. v.

Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d

648 (1986)). The testimony within the Burkhalter affidavit provides sufficient indication

that AmSouth intended the revised terms in these agreements to apply prospectively from

                                              13
their effective dates. We therefore conclude, on the record before the court, that the parties

intended the revisions to the Customer Agreements to apply prospectively to claims which

occurred after their stated effective dates.

¶24.     Therefore, we find another reason in the record that the March 2004 and October 2004

Customer Agreements did not cover the claims made in Quimby’s complaint. This court’s

precedent does not require it to give retroactive application to the language found within the

March 2004 and October 2004 Customer Agreements. Our precedent requires this court to

enforce arbitration agreements only to the extent the parties agreed to submit their claims to

arbitration. There being sufficient evidence in the record of an intent to apply prospectively

the terms in AmSouth’s customer agreements, we find the circuit court’s judgment to have

merit.

¶25.     The record indicates that Quimby’s pursuit of his claims began after his disability, but

before the effective dates of the 2004 Customer Agreements. A letter from American

Heritage to Quimby’s counsel, dated November 19, 2002, indicated that Quimby’s failure

to submit a proper notice of disability claim would result in the denial of benefits for lack of

coverage. This letter is proof within the record that Quimby’s claims pre-dated the effective

dates of the 2004 Customer Agreements. The record also demonstrates that retroactive

application language does not appear in the arbitration clauses in the AmSouth Customer

Agreements.

¶26.     Therefore, we conclude that the March 2000 and March 2004 AmSouth Customer

Agreements did not cover the line of credit account. Furthermore, the March 2004 and

October 2004 effective dates for the AmSouth Customer Agreement post-date the accrual of


                                               14
Quimby’s cause of action against AmSouth. The Court’s precedent in Wedgeworth indicates

that such clauses are not to be given retroactive force unless the clause contains specific

language stating so, and the parties so intended. The language in the 2004 Customer

Agreements did not do so, relying on the use of the term ‘any’ to imply a retroactive

application. Since it appears that the parties intended the provisions in the revised Customer

Agreements to apply prospectively, not retroactively, the circuit court’s judgment applying

Wedgeworth to the facts was not in error and is affirmed. The first reason AmSouth offers

to require enforcement of the arbitration clause found within its Customer Agreements, that

the scope of the agreement is broader than that in Wedgworth, is insufficient to require

reversal of the circuit court’s judgment.

¶27.   Second, AmSouth argues that its revised Customer Agreement contains an arbitration

clause that became effective March 17, 2000, and covers this dispute because its effective

date preceded Quimby’s disability claim. The March 2000 revision indeed contained an

arbitration clause. Its effective date preceded Quimby’s disability claim and the accrual of

his right of action against American Heritage and AmSouth for benefits and damages for

emotional distress and tortious breach of contract. However, as noted above, the March

2000 Customer Agreement applied to specific types of accounts which did not include line

of credit accounts. By its own terms, the March 2000 Customer Agreement did not apply to

line of credit accounts. Therefore, this reason is insufficient to find the trial court in error.

¶28.   Third, AmSouth argues that the circuit court should not have applied Wedgeworth

because the explicit terms of the revised Customer Agreements submitted all questions

concerning the scope of the arbitration agreement to the arbitrator. In First Options of

                                               15
Chicago v. Kaplan, the United States Supreme Court examined the narrow question of who

should have the primary power to decide whether the parties to a contract agreed to arbitrate

their claim. First Options of Chicago v. Kaplan, 514 U.S. 940, 942, 115 S.Ct. 1920, 131

L.Ed.2d 985, 992 (1995). It determined that “Courts should not assume that the parties

agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did

so.” Id. at 944 (citations and quotations removed).

¶29.   After reviewing the opinion in Wedgeworth, it appears that no agreement existed to

submit questions concerning the scope of the arbitration clause to the arbitrator within the

Wedgeworth agreement. Such an agreement undoubtedly existed in all of the revised

Customer Agreements in the record.4 Since the March 2000 Customer Agreement, by its

own terms, did not cover Quimby’s line of credit account, no revised Customer Agreement

predating Quimby’s disability claim required the question of arbitrability to be submitted to

an arbitrator. Since we hold above that the arbitration clauses in AmSouth’s Customer

Agreements must have specific retroactive application language to govern prior disputes, and

that it was the parties’ intent for the revisions to the Customer Agreements to apply

prospectively, it is immaterial whether subsequent Customer Agreements submitted the

question of the scope of the arbitration clause to an arbitrator. Because the March 2004 and

October 2004 Customer Agreements post-dated Quimby’s claims, the clauses submitting the




       4
       For instance, the March 2000 Customer Agreement provides: “Any disagreement as
to whether a particular dispute or claim is subject to arbitration under this paragraph shall
be decided by arbitration in accordance with the provisions in this paragraph.”

                                              16
question of arbitrability to the arbitrator did not cover his claims. This ground is likewise

insufficient to find the circuit court in error.

¶30.   In summary, the circuit court used the Wedgeworth opinion to find that Quimby’s

claims were not covered by a valid arbitration clause. After the analysis above, we agree

with and affirm its judgment. AmSouth’s arguments to the contrary fail to pass analysis

under East Ford. The following issues were argued before the trial court. While they did

not form the basis of the court’s ruling, both parties address the issues and so they are

addressed briefly here.

II.    Whether the trial court erred by not following First Options of Chicago, Inc. v.
       Kaplan, 514 U.S. 938, 943 (1995), and proceeding to decide the issue of temporal
       scope of the arbitration provisions, when those provisions expressly reserve that
       issue for the arbitrator.

¶31.   This issue is examined more fully above. AmSouth argues that the trial court erred

in deciding the scope of the arbitration agreement within the Customer Agreement because

the agreement specifically referred such questions to the arbitrator. Quimby responds that

state law principles of consideration, definite terms, mutual assent, and unconscionability

apply to invalidate the arbitration clause in the Customer Agreement such that the Court was

not bound to enforce its terms.

¶32.   While each of the three Customer Agreements did contain a readily-identifiable

agreement to submit the question of the scope of the arbitration agreement to the arbitrator,

the analysis above demonstrates that none of the revised AmSouth Customer Agreements

covered Quimby’s claims such that he was bound to arbitration. Therefore, the presence of




                                                   17
this clause in the Customer Agreements does not require the court to enforce arbitration, and

this issue is without merit.

III.   Whether the trial court erred by failing to find the Parties bound to arbitrate a
       preexisting claim under the broad “any dispute” temporal scope provisions of
       AmSouth’s October 4, 2004 amended Account Agreement.

¶33.   This issue also is discussed above. The arbitration clauses in the March and October

2004 Customer Agreements were insufficient under Mississippi law to receive retroactive

application, because they did not contain specific terms stating so and the intent of the parties

was for prospective application of the revisions to the Customer Agreements. While the

March 17, 2000, Customer Agreement contained an arbitration clause, its terms did not cover

line of credit accounts. Therefore, the use of the term ‘any’ within the October 2004

Customer Agreement was insufficient to bind Quimby’s claims over to arbitration. This

issue is without merit, and the circuit court’s judgment is affirmed.

IV.    Whether section I of Union Planters Bank, National Association v. Rogers, 912 So.
       2d 116 (Miss. 2005), which failed to find an arbitration contract by performance,
       should be overruled due to its conflict with Perry v. Thomas, 482 U.S. 483 (1987)
       and Doctor’s Associates, Inc. v. Cassarotto, 517 U.S. 681 (1996), which prohibit
       applying stricter scrutiny to the formation of an arbitration contract than any
       other contract?

V.     Whether Section I of Union Planters Bank should be overruled due to its conflict
       with Perry and Cassarotto, which mandate application of the Mississippi Uniform
       Commercial Code to the arbitration provisions at issue in a nondiscriminatory
       manner, thus allowing the adoption of the entirety of an account agreement
       (including its arbitration provisions) through maintenance or use of the account,
       by implication, ratification, estoppel and course of performance?

VI.    Whether Section I of Union Planters Bank should be overruled due to its conflict
       with Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), which
       prohibits invalidating arbitration provisions based upon a defense equally
       applicable to the account agreement as a whole–such as the method of adoption
       of the account agreement?

                                               18
¶34.   AmSouth uses the next three issues to argue that this court should overrule Union

Planters Bank, National Association v. Rogers, 912 So. 2d 116 (Miss. 2005). This court

will not address Rogers for two reasons. First, the issue was not argued before the trial court

and it was given no opportunity to rule on this issue. The court did not cite Rogers in its

opinion and it serves as no basis for the court’s ruling. This Court has stated, “[w]e accept

without hesitation the ordinarily sound principle that this Court sits to review actions of trial

courts and that we should undertake consideration of no matter which has not first been

presented to and decided by the trial court.” Educ. Placement Serv. v. Wilson, 487 So. 2d

1316, 1320 (Miss. 1986). We find no reason to depart from this practice now.

¶35.   Second, Rogers, is distinguishable. The mail-outs in Rogers, while bearing a striking

resemblance to the Customer Agreements examined here, contained conflicting provisions

which the court concluded required existing bank customers to execute a signature card and

use their accounts before becoming bound by the arbitration agreement. Union Planters

Bank, Nat’l Ass’n v. Rogers, 912 So. 2d 116, 120 (Miss. 2005). The AmSouth Customer

Agreements do not appear to conflict in this way.

¶36.   Further, Rogers concerned a checking account, or depository account, and the record

contained the original signature card on the account, which bound Rogers to its terms.

Quimby’s account is a line of credit, and no signature card for this account nor any original

contract stating the initial terms of the account appears in the record. Neither does the record

contain any copy of any credit life or credit disability insurance policy applicable to Quimby.

We find these reasons sufficient to forego an examination of Rogers in this case.




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¶37.   Ordinarily, in a claim against a credit disability policy case, we would expect to find

within the record the credit disability policy or the loan agreement. In this case, we have

neither before us, nor do we know whether either contains an agreement to arbitrate within

its terms. The record does not even indicate whether Quimby owed any money at the time

of his disability such that he may be entitled to benefits under a credit disability policy.

Given these deficiencies in the record, we find no basis in the record for reversal.

                                       CONCLUSION

¶38.   The circuit court did not err when it relied upon the Wedgeworth case to deny

arbitration. The terms of the arbitration clauses in the revised customer agreements were

more broad than Wedgeworth, but contained no specific language of retroactive application

to bind Quimby to its terms. Since Quimby’s line of credit account is not covered by an

arbitration clause which became effective before the accrual of his action and claim for

damages, Wedgeworth supports the court’s decision to deny arbitration and retain

jurisdiction of this matter. Therefore, we affirm the judgment of the circuit court and remand

this matter for further proceedings.

¶39.   AFFIRMED.

      SMITH, C.J., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR,
JJ., CONCUR. DIAZ, P.J., AND GRAVES, J., CONCUR IN RESULT ONLY.




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