Custom Performance, Inc. v. Dawson

57 So. 3d 90, 2010 Ala. LEXIS 154, 2010 WL 3377672
CourtSupreme Court of Alabama
DecidedAugust 27, 2010
Docket1090017
StatusPublished
Cited by20 cases

This text of 57 So. 3d 90 (Custom Performance, Inc. v. Dawson) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Custom Performance, Inc. v. Dawson, 57 So. 3d 90, 2010 Ala. LEXIS 154, 2010 WL 3377672 (Ala. 2010).

Opinion

COBB, Chief Justice.

This is an appeal from the order of the Jefferson Circuit Court, granting in part and denying in part the motion to compel arbitration filed by Custom Performance, Inc. We affirm in part, reverse in part, and remand.

Facts

Custom Performance, Inc., a motorcycle-part dealer in Bessemer, also has a service department in which it repairs motorcycles and installs motorcycle parts. According to Johnny Johnson, the president of Custom Performance,

“the service department at [Custom Performance] uses trained technicians and repairs are made to motorcycles, including [the motorcycle involved in the accident underlying this case] using parts and supplies traveling into Alabama from other states, and utilizing tools and instruments provided to the dealership from out of state entities.”

On May 27, 2007, Horace Dawson purchased from Custom Performance two new motorcycle tires. Horace paid Custom Performance to install the motorcycle tires on his motorcycle in its service department. In conjunction with the installation [93]*93agreement, Horace signed the following arbitration agreement:

“In connection with the undersigned’s acquisition or attempted acquisition of the below described product, by lease, purchase or otherwise, the undersigned and [Custom Performance] stipulate and agree, in connection with the resolution of any dispute arising out of or relating to or concerning all of the contract(s) and agreements entered into by the parties and relationships resulting therefrom, as follows: .... The undersigned agree that all disputes not barred by applicable statutes of limitations, resulting from or arising out of or relating to or concerning the transaction entered into (including but not limited to any matters taking place either before or after the parties entered into this agreement, including any prior agreements or negotiations between the parties; the terms of this agreement and all clauses herein contained, their breadth and scope, and any term of any agreement contemporaneously entered into by the parties; the past, present, and future condition of the product, the conformity of the product to any contract description the representations, promises, undertakings, warranties or covenants made by [Custom Performance], or otherwise or dealing with the product; ... and all claims or disputes as to any body and/or mechanical repairs now or hereafter made to the product) shall be submitted to BINDING ARBITRATION pursuant to the provisions of 9 U.S.C. § 1, et seq., and according to the Commercial Dispute Resolution Procedures of the American Arbitration Association (the AAA) then existing in the County where [Custom Performance] maintains its principle place of business.... THE UNDERSIGNED HAVE AGREED TO WAIVE THE UNDERSIGNED(S) [sic] RIGHT TO A TRIAL BY JUDGE OR JURY AND THAT ARBITRATION SHALL BE IN LIEU OF ANY CIVIL LITIGATION IN ANY COURT AND IN LIEU OF ANY TRIAL BY JUDGE OR JURY....
“Description of product: SERVICE WORK.”

(Capitalization in original.) In late June 2007, Horace purchased a motorcycle helmet from Custom Performance.

On July 1, 2007, Horace and his wife, Tammie,1 were riding Horace’s motorcycle on Interstate 65 in Alabama when, according to Horace, the rear motorcycle tire deflated suddenly without warning. As a result, Horace contends, he lost control of the motorcycle, and both he and Tammie were thrown from the motorcycle and seriously injured. After the accident, Tammie was transported to a hospital in Montgomery, where she died on July 6, 2007, from head trauma" suffered in the motorcycle accident. According to Horace, at the time of the motorcycle accident, Tammie was wearing the motorcycle helmet Horace had purchased from Custom Performance in June.

Tammie was not present when Horace purchased the motorcycle tires or when he purchased the motorcycle helmet.

Procedural History

On June 19, 2009, Horace filed a complaint in the Jefferson Circuit Court, Bessemer Division, on his own behalf and as administrator of Tammie’s estate. Horace’s complaint named Custom Performance; HongJin Crown America, Inc., the [94]*94manufacturer of the motorcycle helmet Tammie was wearing; and Sullivans, Inc., a retail distributor of motorcycle helmets from whom Custom Performance had acquired the helmet Horace purchased, as defendants. In the complaint, Horace alleged that “Custom Performance failed to properly install the subject rear tire on the motorcycle.” With regard to the motorcycle helmet, Horace, individually and as administrator of Tammie’s estate, asserted claims against Custom Performance under the Alabama Extended Manufacturer’s Liability Doctrine, as well as claims of negligence, wantonness, failure to warn, and breach of warranty. With respect to the sale and installation of the motorcycle tires, Horace, individually and as administrator of Tammie’s estate, claimed that Custom- Performance negligently or wantonly installed the tires and that Custom Performance failed to warn that it had not replaced the tire valve stems during installation.

On July 31, 2009, Custom Performance filed a motion to dismiss without prejudice and compel arbitration. On September 17, 2009, the trial court granted the motion to compel arbitration with regard to Horace’s personal claims against Custom Performance arising out of the sale and installation of the motorcycle tires. The trial court denied the motion to compel arbitration of the remaining claims against Custom Performance, i.e., Horace’s personal claims with regard to the motorcycle helmet and all the claims asserted on behalf of Tammie’s estate.

On October 2, 2009, Custom Performance appealed from the trial court’s order denying the motion to compel arbitration in part. Horace did not cross-appeal.

Standard of Review
“We review de novo the trial court’s grant or denial of a motion to compel arbitration. Bowen v. Security Pest Control, Inc., 879 So.2d 1139, 1141 (Ala.2003). Initially, the party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction involving interstate commerce. Polaris Sales, Inc. v. Heritage Imports., Inc., 879 So.2d 1129, 1132 (Ala.2003). The moving party ‘must “ ‘produce some evidence which tends to establish its claim.”” Wolff Motor Co. v. White, 869 So.2d 1129, 1131 (Ala.2003) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.1995), quoting in turn In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)). Once the moving party has properly supported his or her motion to compel arbitration, the burden then shifts to the nonmovant to present evidence tending to show that the arbitration agreement is invalid or inapplicable to the case. Polaris Sales, 879 So.2d at 1132.”

Edwards v. Costner, 979 So.2d 757, 761 (Ala.2007).

Analysis

I. Enforceability of the Written Arbitration Agreement

We note that predispute arbitration agreements cannot be specifically enforced under Alabama law. See

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Cite This Page — Counsel Stack

Bluebook (online)
57 So. 3d 90, 2010 Ala. LEXIS 154, 2010 WL 3377672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/custom-performance-inc-v-dawson-ala-2010.