                               IN THE SUPREME COURT OF MISSISSIPPI

                                           NO. 2003-CA-02727-SCT

UNITED CREDIT CORPORATION AND UNITED
CREDIT CORPORATION OF MAGEE

v.

FRANCES HUBBARD

DATE OF JUDGMENT:                                    12/04/2003
TRIAL JUDGE:                                         HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED:                           SIMPSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                              ROBERT E. SANDERS
ATTORNEY FOR APPELLEE:                               SUZANNE GRIGGINS KEYS
NATURE OF THE CASE:                                  CIVIL - CONTRACT
DISPOSITION:                                         REVERSED AND REMANDED - 12/09/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


        BEFORE SMITH, C.J., CARLSON AND DICKINSON, JJ.

        SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.     This case comes to this Court from an order of the Simpson County Circuit Court

denying a motion to compel arbitration. Frances Hubbard borrowed money from United Credit

Corporation of Magee on two separate occasions: June 27, 2000, and May 24, 2002.                      Both

loans contained the same arbitration agreement providing that Hubbard would relinquish her

right to a jury trial if a dispute arose involving either loan.

¶2.     On January 3, 2003, Hubbard filed suit against United Credit Corporation alleging

several causes of action including: breach of fiduciary duties, breach of implied covenants of

good faith      and     fair    dealing,   fraudulent    misrepresentation   and/or   omission,   negligent
misrepresentation and/or omission, civil conspiracy, negligence and unconscionability.       After

UCC responded to the complaint, United Credit Corporation of Magee ( UCCM) filed a

motion to intervene as defendant, in accordance with Miss. R. Civ. P. 24(a), and for order

compelling arbitration.

¶3.      Attached to this motion are exhibits A and B.     Exhibit A is an affidavit of the acting

secretary/treasurer of UCC, who is also the acting secretary/treasurer of UCCM. This affidavit

was to support the intervention of UCCM. Exhibit B is a copy of the arbitration agreement at

issue.

¶4.      Hubbard filed a response to UCCM’s motion asking the court to allow UCCM to

intervene in the action and not compel Hubbard to arbitrate this matter.         Included in this

response were three exhibits A, B and C, as well as Hubbard’s contention that arbitration

should not be allowed. Exhibit A is a copy of the June 27th loan agreement; exhibit B is the

affidavit of Frances Hubbard stating her ignorance of arbitration; exhibit C is a copy of the

American Arbitration Association’s rules and procedures.

¶5.      The circuit court allowed the intervention of UCCM as the proper defendant in the suit.

On the other hand, the circuit court denied the motion to compel arbitration, finding that the

defendants did not make an “adequate showing that the [p]laintiff voluntarily and knowingly

agreed to waive her rights and agree to arbitration.” UCC & UCCM appeal from the denial of

the motion.

                                          DISCUSSION

¶6.      Notwithstanding the lack of a final judgment or a grant of a petition for interlocutory




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appeal, this Court has jurisdiction over an appeal from a denial of a motion to compel

arbitration. Tupelo Auto Sales, Ltd. v. Scott, 844 So.2d 1167, 1170 (Miss. 2003). In Scott,

this Court adopted the procedure of the Federal Arbitration Act and established a bright-line

rule that an appeal may be taken from an order denying a motion to compel arbitration. Id.

¶7.    The standard of review for a denied motion to compel arbitration is de novo.            Id. at

1169 (citing East Ford, Inc. v. Taylor, 826 So. 2d 709, 713 (Miss. 2002)).

       I.      Whether the Circuit Court Erred by Denying the Motion to
               Compel Arbitration.


               A.      Did Hubbard’s Signature Constitute a Voluntary and
                       Knowing Representation of Her Intent Regarding
                       Arbitration?


¶8.    The first factor to consider is whether UCCM had the burden of proving that Hubbard

acted voluntarily and knowingly when signing the arbitration agreement.        The trial court found

that “the [d]efendants have not made an adequate showing that the [p]laintiff voluntarily and

knowingly agreed to waive her rights and agree to arbitration . . . .” “[G]enerally applicable

contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate

arbitration agreements without contravening §         2 [of the FAA].” Doctor’s Assocs., Inc. v.

Casarotto, 517 U.S. 681, 687, 116 S.Ct.1652, 1656, 134 L.Ed.2d 902 (1996). “Knowing and

voluntary” is an element of procedural unconscionability.      Sanderson Farms, Inc. v. Gatlin,

848 So. 2d 828, 845 (Miss. 2003) (citing Entergy Miss., Inc. v. Burdette Gin Co., 726 So.

2d 1202, 1207 (Miss. 1998)).




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¶9.     UCCM contends that normal rules of contract construction apply and that Hubbard’s

signature on the agreement is sufficient proof that she acted voluntarily and knowingly.

¶10.    In Russell v. Performance Toyota, Inc.,            826 So. 2d 719, 726 (Miss. 2002), the

plaintiff Russell signed an arbitration agreement very similar to the agreement signed by

Hubbard. The agreement Russell signed was in all bold capital font and it almost immediately

preceded the signature line. Id.        Similarly, in the present case, immediately preceding the

signature line the following clause appeared:

        THE PARTIES UNDERSTAND THAT BY SIGNING THIS ARBITRATION
        AGREEMENT THEY ARE LIMITING ANY RIGHT TO PUNITIVE
        DAMAGES AND GIVING UP THE RIGHT TO A TRIAL IN COURT,
        BOTH WITH AND WITHOUT A JURY.

(emphasis in original). Thus, there was no hidden text in the agreement, and Hubbard was not

deceived by the language of the actual document that she signed. Hubbard contends that she

was ignorant as to what arbitration was and the UCCM employee did not explain it to her

before she signed the agreement.          Even assuming these contentions are correct, it is still

essentially Hubbard’s duty to read and understand any document she signs because “[i]n

Mississippi, a person is charged with knowing the contents of any documents that [she]

executes.” Russell, 826 So. 2d at 726 (citing J.R. Watkins Co. v. Runnels, 252 Miss. 87, 96,

172 So. 2d 567, 571 (1965) (holding that “A person cannot avoid a written contract which he

has entered into on the ground that he did not read it or have it read to.”)).             Consequently,

because Hubbard signed the            arbitration agreement     we conclude that           she   voluntarily

acknowledged the terms of the arbitration agreement.

                B.      Was the Arbitration                 Agreement         Valid and
                        Enforceable?

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¶11.   The issue raised before this Court is whether the arbitration clause in the loan

agreement between Hubbard and UCCM is enforceable. Hubbard contends that the trial court

did not commit reversible error when it denied the motion to compel arbitration.          Hubbard

bases this contention on the notion that UCCM waived its right to arbitration by participating

in discovery and that the arbitration clause contained in the loan agreement is both procedurally

and substantively unconscionable.

¶12.   “Procedural unconscionability may be proved by showing ‘a lack of knowledge, lack of

voluntariness, inconspicuous print, the use of complex or legalistic language, disparity in

sophistication or bargaining power of the parties and/or a lack of opportunity to study the

contract and inquire about the contract terms.’” Taylor, 826 So. 2d at 714.         In Taylor, the

plaintiff argued that the arbitration clause he signed was procedurally unconscionable because

he did not know what arbitration was and the employee of East Ford failed to inform the

plaintiff that he should read the arbitration agreement before signing it.   Id.   These facts are

identical to the present case, with one important fact that is different, in Taylor the arbitration

clause was in a font size that was less than one-third the size of the rest of the font in the

document. Id at 716-17.

¶13.   The present arbitration agreement provided language that was conspicuous because it

was in all bold and capital letters. In addition, as previously stated, Hubbard was responsible

for reading and understanding any document that she may sign.       Russell, 826 So. 2d at 726

(citing Runnels, 252 Miss. at 96, 172 So. 2d at 571). Thus, the arbitration clause was not

procedurally unconscionable and is enforceable against Hubbard.




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¶14.    “Substantive unconscionability may be proven by showing the terms of the arbitration

agreement to be oppressive.” Taylor, 826 So. 2d at 714. This issue can be decided by looking

at the plain language of the agreement. The arbitration agreement equally binds both UCCM

and Hubbard. There is no disparity in bargaining power or either party’s ability to arbitrate any

issue stemming from the loans made to Hubbard. Therefore, the arbitration agreement was not

substantively unconscionable because both parties were guaranteed the same rights by the

agreement.

                                            CONCLUSION

¶15.    For the foregoing reasons, we reverse the circuit court’s order denying the motion to

compel arbitration, and we remand this case to the circuit court for entry of an appropriate

order referring this case to arbitration in accordance with the agreement.

¶16.    REVERSED AND REMANDED.

    WALLER AND COBB, P.JJ., EASLEY, CARLSON AND DICKINSON, JJ.,
CONCUR. DIAZ, GRAVES AND RANDOLPH, JJ., NOT PARTICIPATING.




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