Swindle v. Harvey

23 So. 3d 562, 2009 Miss. App. LEXIS 343, 2009 WL 1758840
CourtCourt of Appeals of Mississippi
DecidedJune 23, 2009
DocketNo. 2008-CA-00560-COA
StatusPublished
Cited by6 cases

This text of 23 So. 3d 562 (Swindle v. Harvey) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swindle v. Harvey, 23 So. 3d 562, 2009 Miss. App. LEXIS 343, 2009 WL 1758840 (Mich. Ct. App. 2009).

Opinion

ROBERTS, J.,

for the Court.

¶ 1. Jay F. Swindle, Sr., and Community Bank, Ellisville, Mississippi (“the Bank”) appeal the order of the Circuit Court of Covington County that denied their motion to compel arbitration finding that the matter was not within the scope of the arbitration agreement. After a thorough review of the record and applicable case law, we find that the circuit court erred in denying the Bank’s motion to compel arbitration. Therefore, we reverse and remand the case with directions to submit all disputes to binding arbitration.

FACTS AND PROCEDURAL HISTORY

¶ 2. Ellen and Tony Harvey (“the Har-veys”) owned a total of 39.52 acres. On 36.52 acres, there were two poultry houses, and the Harveys’ home sat on the remaining three acres. The properties adjoined. In 2001, the Harveys borrowed $355,000 from Community Bank to finance their poultry operations. In 2003, Tyson, the producer for the Harveys, required the Harveys to retrofit and upgrade their poultry houses. Therefore, in June 2003, the Harveys borrowed an additional $120,000 in order to make Tyson’s required changes. The Harveys intended for the $120,000 loan to be guaranteed by the United States Small Business Adminis[565]*565tration. On July 18, 2003, the Harveys met with Dennis Upchurch, the senior vice-president, and Carolyn Bryant, the loan assistant for Community Bank, to execute the $120,000 loan agreement. Although, the 2003 and 2001 loan documents had the same property description, the house and three acres were inadvertently omitted in the property description on the deed of trust for both loans. The omission from the 2003 loan was the catalyst for the present litigation.

¶ 3. Unfortunately, the Harveys were unable to remain in the poultry business, and ultimately, they filed for bankruptcy in September 2005. Subsequent to the execution and filing of the bankruptcy order, Community Bank began foreclosure proceedings on the house and poultry farm. On November 28, 2005, the Harveys signed an agreed order abandoning their home and poultry farm. The Bank foreclosed its deed of trust and received a substitute trustee’s deed on April 7, 2006.

¶ 4. Following the foreclosure on May 2, 2006, the Bank received a letter from the Harveys’ attorney informing the Bank that it did not have a lien on the house and three acres. The Bank laments that after receiving the letter, it examined the documents, and for the first time, it realized that the house and three acres were not listed in the description stated on the deed of trust. However, the bank avers that it and the Harveys intended for all of the Harveys’ property to be pledged as security for the 2003 loan, including the house and three acres.

¶ 5. Although the deed of trust for the loan did not contain a reference to or description of the house and three acres, other related documents did. Undisputed by the Harveys, the Bank asserts that the following loan-related documents represent that the Harveys intended for the house and three acres to be pledged as security for the loan:

1. Promissory Note dated July 18, 2003;
2. Farm Bureau Insurance Company notices;
3. Letters from Community Bank to the Harveys informing them that their insurance had expired on the house, and the Bank was adding insurance to the loan;
4. Agreement to provide insurance;
5. Financial Statement;
6. Statement of Personal History; and
7. Commercial Security Agreement.

¶6. The Bank submits that the loan-related documents for the 2003 loan included an arbitration agreement which provided that any disputes between the parties were to go to arbitration. Furthermore, the Bank declares that Upchurch and Bryant presented all of the loan documents to the Harveys, and that Upchurch and Bryant specifically explained the arbitration disclosure and the arbitration agreement. The Harveys admit that they did not read the loan documents, either at the bank or later at home.

¶ 7. The Harveys filed suit against the Bank on April 5, 2007, requesting damages and claiming that they never intended to pledge their house and three acres as security for the loan. In reliance upon the Harveys’ loan agreement, the Bank made a motion to compel arbitration, but the circuit court denied its motion finding that the dispute was not within the scope of the arbitration clause. Even though the arbitration clause required an arbitrator to decide if an issue was arbitrable, the circuit court ruled that arbitration was not the appropriate forum to determine if the issues in the case were subject to arbitration. The circuit court further determined that the arbitration clause was either un[566]*566conscionable or “at least had the color of unconseionability and appealed] unfair.” The circuit court also found that because the Harveys were under financial stress at the time they made the loan, “it tend[ed] to show a lack of voluntariness” on their part, and that “by reason of said lack of voluntariness, the arbitration clause was procedurally unconscionable.” Aggrieved by the circuit court’s ruling, the Bank filed a timely appeal to this Court.

¶ 8. On appeal, the Bank argues that there is a valid arbitration agreement, and the parties agreed to arbitrate any dispute related to the 2003 loan agreement. We list verbatim the issues raised by the Bank:

I. The trial court erred in finding that the arbitration agreement is not a binding contract.
II. The trial court committed reversible error by finding that arbitration is not the appropriate forum to determine the issue of arbitrability.
III. The trial court committed reversible error in finding that the arbitration agreement was procedurally and substantively unconscionable.
IV. The trial court committed reversible error in finding that the Har-veys were under economic duress when they signed the loan documents.
V. The trial court committed reversible error in finding that the claims alleged in the complaint are outside the scope of the arbitration agreement.

Issues I, II, and V relate to the scope and validity of the arbitration agreement, so they will be addressed collectively. Issues III and IV will be addressed together, as they address the Harveys’ assertion that they were under duress at the time the loan was executed, thereby making the arbitration agreement procedurally unconscionable.

STANDARD OF REVIEW

¶ 9. “The grant or denial of a motion to compel arbitration is reviewed de novo.” East Ford, Inc. v. Taylor, 826 So.2d 709, 713(¶ 9) (Miss.2002) (citing Webb v. Investacorp, Inc., 89 F.3d 252, 256 (5th Cir.1996)). “The Federal Arbitration Act states in part that ‘an agreement in writing to submit to arbitration an existing controversy arising out of [a contract evidencing a transaction involving commerce] shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’ ” 9 U.S.C. § 2 (2006). See Grenada Living Ctr. v. Coleman, 961 So.2d 33, 36 (¶ 8) (Miss.2007).

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Bluebook (online)
23 So. 3d 562, 2009 Miss. App. LEXIS 343, 2009 WL 1758840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swindle-v-harvey-missctapp-2009.