223 So. 3d 913
Ala.2016Background
- Plaintiff Autumn McCants bought a house; BRU inspected and issued a Wood Infestation Inspection Report (WIIR) dated Jan 13, 2015, showing no infestation; McCants alleges she relied on that report and later discovered severe powder‑post beetle damage.
- BRU also issued a Termite Damage Protection Agreement (termite contract) dated Jan 13, 2015 that included on its reverse side a mandatory arbitration clause referencing AAA rules; the contract front referenced an attached property graph.
- McCants signed the WIIR (Jan 16, 2015) and signed the termite contract on March 6, 2015 at closing; she alleges the sellers (the Johnses) paid for BRU’s services and she had no pre‑closing dealing or meeting of the minds with BRU.
- BRU moved to compel arbitration; it attached the termite contract to the motion and later attached the graph (with McCants’s signature) to its reply; the trial court denied BRU’s motion and BRU appealed.
- On appeal, BRU established the contract and interstate‑commerce nexus; McCants argued the termite contract was void for lack of the graph attachment, unauthenticated on the record, that she was not the intended "purchaser," and that her claims arose from the WIIR (not the termite contract).
- The Alabama Supreme Court held the termite contract was part of the record (no waiver preserved by McCants) and—because the arbitration clause delegates arbitrability to the arbitrator under the AAA rules—reversed the denial and remanded for arbitration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an enforceable arbitration agreement exists and is in the record | The termite contract was not properly introduced/authenticated and thus cannot be relied on | BRU produced the termite contract (with signatures) and affidavit showing interstate commerce; the contract is part of the record | Court: BRU met its burden; no record evidence of a timely trial‑court objection by McCants, so exhibits are part of the record and the agreement exists |
| Whether arbitrability (threshold issues like scope, validity, applicability, nonsignatory enforcement, waiver) is for the court or arbitrator | These threshold issues should be decided by the court (contract may be void, not binding on McCants, or cover different claims) | The arbitration clause expressly incorporates AAA rules, which (per AAA Rule 7) commit arbitrability and validity questions to the arbitrator | Court: The clause shows "clear and unmistakable" intent to delegate arbitrability to the arbitrator; arbitrability issues must be sent to arbitration |
| Whether the termite contract is void on its face for lack of the required attached property graph | The contract states it is void without the attached graph; BRU’s initial filing lacked the graph, so the contract is void | BRU later filed the graph with McCants’s signature in its reply; no timely objection preserved at trial to exclude the exhibits | Court: Trial court record contains the exhibits; McCants waived objection—cannot rely on the "void" argument at this stage; arbitrator decides applicability if disputed |
| Whether McCants’s tort claims (based on the WIIR) fall outside the termite contract / FAA §2 limits | Her claims arise from the WIIR, not from the termite contract, so FAA §2 enforcement should not reach these claims | The arbitration clause is broad and delegates questions of scope to the arbitrator | Court: Because of delegation to the arbitrator, the question whether these claims are covered goes to the arbitrator |
Key Cases Cited
- Ex parte Roberson, 749 So.2d 441 (explaining standard of review for arbitration motions)
- TranSouth Fin. Corp. v. Bell, 739 So.2d 1110 (motion to compel arbitration analogous to summary judgment)
- Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1 (unauthenticated documentary evidence objection must be raised below or is waived)
- First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (delegation to arbitrator requires clear and unmistakable evidence)
- Anderton v. The Practice–Monroeville, P.C., 164 So.3d 1094 (incorporation of AAA rules can constitute clear and unmistakable delegation)
- Federal Ins. Co. v. Reedstrom, 197 So.3d 971 (same: AAA rules delegation commits arbitrability to arbitrator)
- Chris Myers Pontiac‑GMC, Inc. v. Perot, 991 So.2d 1281 (courts may judicially notice AAA commercial arbitration rules)