IN THE SUPREME COURT OF MISSISSIPPI

NO. 2004-IA-02076-SCT

SPEEDEE CASH OF MISSISSIPPI, INC.

d/b/a SPEEDEE CASH OF PEARL

v.

CHARLES WILLIAMS

a/k/a CHARLIE WILLIAMS

DATE OF JUDGMENT: 08/23/2004

TRIAL JUDGE: HON. WINSTON L. KIDD

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: NEVILLE H. BOSCHERT

NICHOLAS H. MANLEY

ATTORNEYS FOR APPELLEE: MICHAEL M. LOUVIER

LOUIS J. GUICHET, III

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: REVERSED AND REMANDED - 12/01/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1. Charles Williams a/k/a Charlie Williams filed suit against Speedee Cash of Mississippi,

Inc. d/b/a Speedee Cash of Pearl for wrongfully repossessing Williams’ Cadillac El Dorado.

Williams alleges that he had not been delinquent with the car payments and that there was no

default under the terms of the promissory note. He also alleges causes of action for

conversion, trespass, loss of income, and damage to business reputation, and demanded actual

and punitive damages. In its response to the complaint, Speedee Cash raised the affirmative2

defense of arbitration and alleged that Williams breached the contract. It also filed a motion

to stay discovery pending arbitration, and a motion to compel arbi tration. Attached to the

motion to compel was a copy of a document entitled “Mississippi Title, Pledge Agreements

Power of Attorney to Transfer Motor Vehicles,” which describe d the El Dorado, set out the

amount of money borr owed, the annual percentage rate, and the payment schedule. At the

bottom of the document was the following:

ARBITRATION DISCLOSURE

At the election of either party (Speedee Cas h or the Customer), any claims

whatsoever which either party has against the other shall be subject to arbitration

and shall be referred to a single arbiter agreed upon by the parti es, or if no single

arbiter can be agreed

upon, an arbiter or arbiters shall be selected in accordance

with the rules of the American Arbitration Association and such claim shall be

settled by a r bitration in accordance with the then prevailing commercial rules

of the American Arbitration Association, and judgment upon the award rendered

by the arbiter may be entered in any court having jurisdicti on thereof. This

arbitration agreement shall cover all claims whatsoever pertaining in any way to

any dwelling, transaction, or activities between the parties, including the

arbitrability of any clai

m, regardless of whether they are based upon contract,

tort, or otherwise

and regardless of whether they are assertable at law, in equity

or otherwise shall be decided by the arbiter.

The arbitration clause is locate d immediately above the customer’s signature and is the last

provision of the contract.

¶2. After th

e Circuit Court of the First Judicial District of Hinds County, Mississippi,

summarily denied S peedee Cash’s motion to compel arbitration, we granted Speedee Cash’s

petition to bring this interlocutory appeal. S ee M.R.A.P. 5. Speedee Cash raises one issue,

whether the arbitration agreement is enforceable.

DISCUSSION3 I. PRELIMINARY MATTERS.

¶3. It is elementary to find that the contract affects interstate commerce inasmuch as

Speedee Cash, a lender of mone y to consumers, must run its business in accordance with

federal laws and regulations. S ee, e.g., the Tru th-in-Lending Act, 15 U.S.C. §§ 1601 - 1693.

Therefore, under the precedent of this Court, the Federal Arbitration Act, 9 U.S.C. §§ 1 - 307,

applies to the interpretation of the arb itration clause in question. R ussell v. Performance

Toyota, Inc. , 826 So. 2d 719 (Miss. 2002).

¶4. It is further elementary to find that all of William s’ claims fall under the arbitration

agreement, which provides:

This arbitration agreement shall cover all claims whatsoever

pertaining in any way to any dwelling, transaction, or activities

between the parties, inclu ding the arbitrability of any claim,

regardle ss of whether they are based upon contract, tort, or

otherwise and regardle s s of whether they are assertable at law, in

equity or otherwise shall be decided by the arbiter.

The claims of wrongful p ossession, conversion, trespass, loss of income, and damage to

business reputation are based upon “contract, tort, or otherwise,” and ar e assertable “at law, in

equity or otherwise.”

¶5. Finally, there is no dispute th at Williams signed the document containing the arbitration

agreement.

II. PRESERVATION OF ISSUES ON APPEAL.

¶6. In the appellee’s brief presented to the Court, Williams makes a claim of

un c onscionability, and Speedee Cash responds to this claim in its appellant’s reply brief.

However, there is ab solutely nothing in the record to show that this claim was raised before4

the circuit court. The only claims in Williams’ complaint are those of wrongful repossession,

conversion, etc. Unconscionability is not mentioned. While there is a notice of hearing on

Speedee Cash’s motion to compel arbitration, there is no transcript of a hearing. While

Speedee Cash filed a memorandum in support of its motion to comp el, Williams never filed

a response. Finally, the circuit court’s order denying Speedee Cash’s motion to compel

arbitration is a summary order and offers absolutely no rationale for the circuit court’s

decision. Therefore, we must treat the issue of unconscionability as one never presented to

the circuit court and a pply the procedural bar. S ee, e.g., Brewer v. State

, 819 So. 2d 1169,

1175 (Miss. 2002).

CONCLUSION

¶7. Because Williams raise d no issues and offered no evidence to the circuit court as to

why the arbitration agreement should not be enforced, we reverse the circuit court’s denial of

Speedee Cash’s motion to compel arbitration. Therefore, the judgment of the Circuit Court

of Hinds County is reversed, and the case is remanded to the circ uit court with instructions to

grant the motion to compel arbitration.

¶8. REVERSED AND REMANDED.

SMITH, C.J., COBB, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ.,

CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN

OPINION. DIAZ, J., NOT PARTICIPATING.