Glory Rigsby v. American Credit Counselors, Inc.
2017 Miss. App. LEXIS 184
Miss. Ct. App.2017Background
- Plaintiff Glory Rigsby, an elderly Mississippi resident on Social Security disability, entered a debt-relief program and paid roughly $1,000 to American Credit Counselors, Inc. (ACCI) and related entities, alleging she received no meaningful services.
- Rigsby signed a Portner P.C. "Agreement" and ACCI "Program Guidelines;" both contained forum/jurisdiction provisions locating disputes in Palm Beach County, Florida (ACCI's clause stated jurisdiction and venue "shall be solely and properly had in Palm Beach County, Florida").
- Rigsby's county-court complaint asserted fraud, breach of fiduciary duty, unjust enrichment, and violations of the Mississippi Debt Management Services Act; she sued ACCI, Portner P.C., and Henry Portner.
- Defendants moved to dismiss based on the forum-selection clause and pleading deficiencies; the county court dismissed Rigsby's fraud claim for lack of particularity and dismissed ACCI based on the forum clause; Portner-related defendants remained for some time and later settled.
- The circuit court affirmed dismissal as to ACCI; Rigsby appealed further, arguing the ACCI forum-selection clause was permissive or, if mandatory, unenforceable because enforcement would practically deprive her of her day in court.
- The appellate court held the ACCI clause was mandatory but unenforceable because requiring Rigsby to litigate in Florida would be "so gravely difficult and inconvenient" that she would, for all practical purposes, be deprived of her day in court; the judgment dismissing ACCI was reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the forum-selection clause is mandatory or permissive | Clause is permissive ("Guidelines" and typographical errors show non-mandatory intent) | Clause requires exclusive litigation in Palm Beach County, Florida | Clause is mandatory (language: "shall be solely and properly had in Palm Beach County, Florida") |
| Whether the clause is unenforceable for fraud/overreaching | Clause was the product of a debt-relief scheme targeting vulnerable consumers; fraud/overreaching invalidates clause | No fraud specific to the forum clause; clause presumptively valid | Requisite fraud specific to the forum clause not shown; argument abandoned because general fraud dismissal |
| Whether enforcement would deprive plaintiff of her day in court (gravely difficult/inconvenient) | Enforcing clause would be gravely difficult given plaintiff's disability, low income, and small-claims nature of dispute | Mere inconvenience/expense does not meet the heavy burden to avoid enforcement; clause presumptively enforceable | Held unenforceable: plaintiff met lower consumer burden—practical effect would deprive her of access to court |
| Whether enforcement would contravene Mississippi public policy (Miss. Debt Management Services Act) | State statute protecting consumer remedies implies forum cannot be contractually waived | Act does not prohibit choice of forum in another state | Held no conflict with Mississippi public policy; public-policy argument rejected |
Key Cases Cited
- Titan Indem. Co. v. Hood, 895 So.2d 138 (Miss. 2004) (standard for determining mandatory vs. permissive forum clauses and defenses to enforcement)
- Long Beach Auto Auction, Inc. v. United Sec. All. Inc., 936 So.2d 361 (Miss. 2006) (forum-selection clauses presumptively valid; resisting party may show fraud, grave inconvenience, or public-policy conflict)
- M/S Bremen v. Zapata OffShore Co., 407 U.S. 1 (1972) (federal standard for enforceability of forum-selection clauses)
- Haynsworth v. The Corp., 121 F.3d 956 (5th Cir. 1997) (fraud or overreaching must be specific to the forum clause to invalidate it)
- Slater-Moore v. Goeldner, 113 So.3d 521 (Miss. 2013) (contracting party charged with knowledge of contract terms; burden on resisting party to show unenforceability)