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IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

KIMBERLY and LUTHER *

THURMAN,

*

Plaintiffs,

* CASE NO. 1:06 CV-709-DRB

v.

*

TIMBERLINE HOMES, INC., 

FLEETWOOD SPRINGHILL HOMES *

OF GEORGIA,

*

Defendants.

MOTION TO STAY AND COMPEL ARBITRATION

COMES NOW Defendant Timberline Homes, Inc. (hereinafter “Timberline”), by and through the

undersigned counsel, and moves this Court to stay this action and compel arbitration. As grounds for this

motion, Timberline shows unto the Court as follows:

NARRATIVE SUMMARY OF UNDISPUTED FACTS

1. On or about June 7, 2003, Plaintiffs Kimberly and Luther Thurman, purchased a new2002

Fleetwood Anniversary manufactured home, bearing Serial No. GAFL234A/B75320-AV11 from

Timberline. (See Plaintiffs' Complaint, ¶ 6, attached as Exhibit "A;" Purchase Agreement, attached as

Exhibit “B”). The home was manufactured by Fleetwood Springhill Homes of Georgia on April 26, 2002

. (Exhibit “A,” ¶¶ 3 & 6).

2. Included in the sales documents relating to the purchase of this manufactured home

is an "Agreement for Binding Arbitration," which states in pertinent part:

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1. Purchaser and Retailer acknowledge that the said Home is a product

manufactured and sold in interstate commerce and that the provisions of Federal

Arbitration Act are intended to be applicable to their transaction by agreement.

2. Purchaser and Retailer agree, covenant, and consent that all claims, disputes and

controversies between Purchaser and Retailer (and/or its agents or employees)

arising out of or relating in any way to the sale (and the negotiations leading up to

the sale), purchase, or occupancy of the Home or to any goods, fixtures, products

(including insurance) offered or sold in connection with this transaction, or arising

out of the financing of the Home, the design, construction, performance, delivery,

condition, installation, set-up, financing, repair or servicing of the Home, or claims

for equitable relief or claims based on statute, contract, warranty, (or any alleged

breach thereof), tort, negligence, wantonness, fraud, misrepresentation,

suppression of fact, or inducement or deceit, will to the fullest extent permitted by

Federal law be resolved by binding arbitration.

. . .

8. PURCHASER AND RETAILER UNDERSTAND THAT BY ENTERING

INTO THIS AGREEMENT EACH WAIVES ANY RIGHT TO A TRIAL BY

JURY OR A TRIAL IN COURT AS TO ANY CLAIM, DISPUTE, OR

CONTROVERSY BETWEEN THEM.

. . .

(Sales Arbitration Provision attached hereto as Exhibit "C").

3. The Arbitration Provision is initialed and signed by Plaintiff, and it is dated. As such, there

can be no question that she was aware of the Arbitration Provision and its contents, and that she willingly

and knowingly agreed to their terms. The law is settled in Alabama that a party to a contract may not avoid

the contract by claiming ignorance of the terms. Ex Parte Stripling, 694 So.2d 1281 (Ala. 1997);

Locklear Dodge City, Inc. v. Kimbrell, 703 So.2d 303 (Ala. 1997); Power Equipment v. First

Alabama Bank, 585 So.2d 1291 (Ala. 1991). 

4. Plaintiff also signed a Supplement to the Purchase Agreement itself, whereby she admits

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to reading the following provision:

Arbitration Agreement

Part of your closing package will include a binding document. By signing this document, you agree

that any controversy or claim arising out of, or in any way relating to the sale of the manufactured

home and the negotiations leading up to the sale, breach of contract, or other cause of action, will

be settled solely by arbitration and not by court action. The arbitration agreement provides that you

waive your right to trial by jury. Arbitration will be the sole process for the settlement of any and

all disputes, claims or controversies between you and Timberline, related to the sale of your

manufactured home.

(Supplement to Purchase Agreement, attached as Exhibit "D")

MOTION TO STAY AND COMPEL ARBITRATION

I. The transaction involves interstate commerce.

In order to compel arbitration, it must first be decided whether the transaction in question involves

interstate commerce so as to render the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq. applicable.

It is respectfully submitted that the FAA applies to the transaction described in this motion. The FAA, §

2 provides, in pertinent part, that a “written provision in . . . a contract evidencing a transaction involving

commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the

refusal to perform the whole or any part thereof, . . . shall be valid, irrevocable, and enforceable, save upon

such grounds as exist at law or in equity for the revocation of any contract.” The Supreme Court of the

United States has held that “the word [‘]involving[‘] is broad and is indeed the functional equivalent of

[‘]affecting[‘]” Allied-Bruce Terminix Cos. , v. Dobson, 513 U.S. 265 (1995).

The FAA is applicable in this case. Upon information and belief, this manufactured home was

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1Timberline adopts the narrative summary of undisputed facts set forth in Co-Defendant

Fleetwood Homes of Georgia, Inc. (“Fleetwood”) as if fully set forth herein, and further relies upon the

Affidavit of Todd Uhlick attached as Exhibit “A” to Fleetwood’s Motion to Dismiss, or in the

alternative, Motion to Compel Binding Arbitration and Motion to Stay (Doc 1) in support of this

argument.

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substantially manufactured from equipment and parts sold across state lines into Alabama.1 The FAA

applies in a case involving a construction contract if materials manufactured outside the state are

substantially used in the construction. F.A. Dobbs & Sons, Inc. v. Northcutt, 819 So. 2d 607 (Ala.

2001).

The manufactured home industry is heavily regulated by the Congress of the United States. In

August 1974, President Ford signed into law the MHCSS Act. 42 U.S.C. §§ 5401, et seq. The MHCSS

Act required the Secretary of the Department of Housing and Urban Development to establish Federal

manufactured home construction and safety standards and to issue regulations to carry out the purpose of

the MHCSS Act. The standards promulgated pursuant to the MHCSS Act appear in the Code of Federal

Regulations, Title 24, Federal Manufactured Home Construction and Safety Standards. 24 CFR § 3280.

The regulations promulgated pursuant to the MHCSS Act appear in the Code of Federal Regulations, Title

24, Manufactured Home Procedural and Enforcement Regulations. 24 CFR § 3282. The financing of

manufactured homes is also heavily regulated by the Congress of the United States. See the Truth-inLending Act, 15 U.S.C. §1601 et seq.; See also Federal Reserve Board Regulation Z, 12 C.F.R. Part

226, et seq. Congress’s power to regulate the manufactured home industry is derived from its inherent

power to regulate interstate commerce.

In the case sub judice, we are dealing with a manufactured home built in accordance with the

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MHCSS Act and the standards and regulations promulgated pursuant to the MHCSS Act. Since the

MHCSS Act controls the building of manufactured homes, rather than state or local codes, it is respectfully

submitted that the FAA applies and that this matter is due to be arbitrated.

II. The arbitration provision is valid and enforceable.

Arbitration clauses in warranties are enforceable and do not violate the Magnuson-Moss WarrantyFederal Trade Commission Improvement Act 15 U.S.C. § 2301, et seq. (the “Magnuson-Moss Warranty

Act”). The Supreme Court of Alabama’s ruling in Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131

(Ala. 2000) established that the Magnuson-Moss Warranty Act does not preclude the use of binding

arbitration provisions in warranties. The Supreme Court of Alabama has steadfastly followed the Ard

holding. See Harold Allen’s Mobile Home Factory Outlet, Inc. v. Early, 776 So.2d 777, 785 (Ala.

2000); Southern Energy Homes, Inc. v. Davis, 776 So.2d 770, 771 (Ala. 2000); Southern Energy

Homes, Inc. v. Gregor, 777 So.2d 79 (Ala. 2000); Southern Energy Homes, Inc. v. McCray, 788

So.2d 882 (Ala. 2000); Fleetwood Enterprises, Inc. v. Bruno, 784 So.2d 277, 280 (Ala. 2000).

The Eleventh Circuit and courts around the country have likewise found arbitration provisions in

warranties to be valid and enforceable. See Davis v. Southern Energy Homes, Inc., 305 F.3d 1268

(11th Cir. 2002) (abrogating Boyd v. Homes of Legend, Inc., 981 F.Supp. 1423 (M.D. Ala. 1997); In

Re American Homestar of Lancaster, Inc., 50 S.W.3d 480 (Tex. 2001); Results Oriented, Inc. v.

Crawford, 538 S.E.2d 73 (Ga.App. 2000); Michelle Nicole Vice, et al. v. Classic Homes of Gautier,

Inc., Case No. 1:99CV432RG, U.S. Dist. Court for the Southern District of Mississippi, Southern

Division; Horace Dean Glisson v. Homes of Legend, Inc., et al., Case No. CV00-JEO-0479-J, U.S.

Dist. Court for the Northern District of Alabama, Jasper Division; James R. Collins v. Fleetwood Homes,

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Inc., et al. U.S. Dist. Court for the Northern District of Alabama, Middle Division, Case No 00-PWG0521-M); but see Cunningham v. Fleetwood Homes of Georgia, Inc., 253 F.3d 611 (11th Cir. 2001)

(in denying Fleetwood’s motion to compel based on a third party beneficiary status, followed the rulings

in Boyd v. Homes of Legend, 981 F. Supp. 1423, 1434-41 (M.D. Ala. 1997) and Wilson v. Waverlee

Homes, Inc., 954 F. Supp. 1530, 1537-39 (M.D. Ala. 1997) but specifically did “not decide whether

Magnuson-Moss makes arbitration agreements unenforceable as to all Magnuson-Moss claims . . . [or]

whether warrantors may include binding arbitration provisions in the warranty itself”).

InArd, the manufacturer of the manufactured home was allowed to compel arbitration even though

its warranty was unsigned. In this case, Plaintiff signed the Arbitration Agreement and acknowledged

receipt of a copy of the agreement with its terms, conditions and limitations. (Exhibits “C” and “D”). 

There is clear evidence of acceptance of the terms of the Arbitration provision. See Southern Energy

Homes, Inc. v. Ard, 772 So.2d at 1134. 

WHEREFORE, PREMISES CONSIDERED Timberline moves that an order be entered requiring

the submission of this case to arbitration and for such other and further relief as this Honorable Court deems

just.

AFFIRMATIVE DEFENSES

FIRST DEFENSE

The Complaint fails to state a claim upon which relief can be granted as, among other things, one

or more documents relevant in this matter require that disputes for which a claim is made in the Complaint

are to be submitted to arbitration.

SECOND DEFENSE

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Your pleader denies it proximately caused the damages complained of in the Complaint.

THIRD DEFENSE

A manufactured home is not a “consumer product” as defined in the Magnuson-Moss Warranty

- Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq. (the “Magnuson-Moss Act”)

as a manufactured home is a dwelling. Under 16 C.F.R. § 700.1(e), it is stated that:

[n]umerous products which go into the construction of a consumer dwelling are all

consumer products when sold “over the counter,” as by hardware and building supply

retailers . . . However, where such products are at the time of sale integrated into the

structure of a dwelling they are not consumer products as they cannot be practically

distinguished from realty. (Emphasis added).

FOURTH DEFENSE

Even if the Magnuson-Moss Act is applicable, there has been a failure to comply with the

conditions precedent to recovery under the Magnuson-Moss Act. 

FIFTH DEFENSE

The statute of frauds is hereby plead.

SIXTH DEFENSE

There has not been a mitigation of the alleged damages.

SEVENTH DEFENSE

Any warranty obligations owed are controlled and strictly limited by the expressed terms of its

warranty, including all limitations and exclusions set out in its warranty.

EIGHTH DEFENSE

Conditions precedent relative to the right to maintain this action have not been met.

NINTH DEFENSE

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Your pleader has not been afforded a reasonable amount of time to cure alleged defects in the

manufactured home and, thus, any breach of warranty claim or any Magnuson-Moss Act claim (if

applicable) is barred.

TENTH DEFENSE

Any alleged damage to the manufactured home was caused by an independent intervening cause

after the manufacture and/or delivery of the home.

ELEVENTH DEFENSE

It is denied that there was any alleged reliance upon any alleged representation made and that any

such reliance was reasonable.

TWELFTH DEFENSE

 This Defendant was the retailer of the manufactured home, not the manufacturer of the

manufactured home.

THIRTEENTH DEFENSE

Punitive damages are not recoverable based upon the averments in the Complaint.

FOURTEENTH DEFENSE

The invitation for a trier of fact to impose liability for punitive damages, without guidelines or

standards for determination of the amount or proper circumstances for such an award, would deny due

process of law in violation of the Fourteenth Amendment to the United States Constitution and in violation

of the Constitution of the State of Alabama.

FIFTEENTH DEFENSE

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The claims alleged for punitive damages are barred by the Fourteenth Amendment to the United

States Constitution and by the Constitution of the State of Alabama.

SIXTEENTH DEFENSE

The imposition of punitive damages in this case would contravene the due process clause of the

United States Constitution and the Constitution of the State of Alabama and the Fourth, Sixth, Eighth, and

Fourteenth Amendments, separately, to the United States Constitution on each of the following grounds:

A. The procedures pursuant to which punitive damages are awarded permit the

award of punitive damages upon satisfaction of a standard of proof less than the

applicable standard of proof required for the imposition of criminal sanctions.

B. The procedures pursuant to which punitive damages are awarded may result in the

award of joint and several judgments against multiple defendants for different

alleged acts of wrong doing.

C. The procedures pursuant to which punitive damages are awarded fail to provide

a reasonable limit on the amount of award.

D. The procedures pursuant to which punitive damages are awarded fail to provide

specific standards for the award of punitive damages.

E. The procedures pursuant to which punitive damages are awarded are

unconstitutionally vague.

F. The procedures pursuant to which punitive damages are awarded fail to provide

a means for awarding separate judgments against alleged joint tortfeasors.

G. The procedures pursuant to which punitive damages are awarded fail to provide

specific standards for the amount of punitive damages.

H. The procedures pursuant to which punitive damages are awarded fail to provide

a clear appellate standard of review of an award of punitive damages.

I. The procedures pursuant to which punitive damages are awarded may permit the

admission of evidence relative to punitive damages in the same proceedings during

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which liability and compensatory damages are determined.

J. An award of punitive damages would constitute an arbitrary and capricious taking

of property without due process of law.

SEVENTEENTH DEFENSE

Imposition of punitive damages would contravene the Commerce Clause of the United States

Constitution in that such an award would constitute, if imposed, an undue and unreasonable burden on

interstate commerce.

EIGHTEENTH DEFENSE

All defenses, criteria, limitations, and standards mandated by the Supreme Court of the United

States in the case styled BMW of North America, Inc., v. Gore, 116 S.Ct. 1589, 134 L.Ed.2d 809

(1997) are hereby adopted.

NINETEENTH DEFENSE

Any statutory cap on damages enacted at present or subsequent to the filing of this pleading is

hereby adopted and asserted.

TWENTIETH DEFENSE

Any and all claims for punitive damages in this action are limited in amount by the application of §

6-11-21, Alabama Code (1975), which provides that an award of punitive damages shall not exceed

$250,000.00.

TWENTY-FIRST DEFENSE

The holding of Henderson v. Alabama Power Co., 627 So.2d 878 (Ala. 1993) is due to be

overruled for each and every reason set forth in the special concurrences in Goodyear Tire & Rubber Co.

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v. Vinson, 749 So.2d 393 (Ala. 1999), and supporting authorities therein, which are adopted by reference

as if fully set out herein.

TWENTY-SECOND DEFENSE

The doctrine of revival dictates that upon the overruling of Henderson v. Alabama Power Co.,

627 So.2d 878 (Ala. 1993), the $250,000.00 cap provided by §6-11-21, Alabama Code (1975), is

applicable to this case which was filed after §6-11-21 was enacted.

TWENTY-THIRD DEFENSE

The Complaint is filed in the improper venue and/or there is a more convenient forum for the parties

to this action.

TWENTY-FOURTH DEFENSE

All or some of the claims made in the Complaint are preempted by federal law.

TWENTY-FIFTH DEFENSE

The Court lacks jurisdiction this defendant.

TWENTY-SIXTH DEFENSE

The time within which the claims alleged in the Complaint could have brought has expired and

therefore the claims made in the Complaint for punitive damages or other damages are barred by the

Statute of Limitations.

TWENTY-SEVENTH DEFENSE

Potential liability for mental anguish damages should be restricted to conduct which is bound to

result in shame, humiliation, and mental anguish, but not mere disappointment, anger, worry, aggravation,

resentment, or embarrassment, and in the absence of emotional distress so severe that no reasonable

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person could be expected to endure it and substantial evidence a defendant was aware of circumstances

that would make alleged intentional or negligent conduct result in shame, humiliation, and mental anguish,

claims for mental anguish should not be allowed to be submitted to the jury. No emotional injury recovery

is available in this case as Alabama follows the “zone of danger” test, which limits recovery of mental

anguish damages to those plaintiffs who sustain a physical injury as a result of a defendant’s negligent

conduct, or who are placed in immediate risk of physical harm by that conduct. See Grand Manor, Inc.

v. Dykes, 2000 WL 337528 (Ala. March 31, 2000); Wal-Mart Stores, Inc. v. Bowers, 752 So.2d 1201

(Ala. 1999.); AALAR, Ltd., Inc. v. Francis, 716 So.2d 1141, 1147 (Ala. 1998); accord, White Consol.

Indus., Inc. v. Wilkerson, 737 So.2d 447, 449 (Ala. 1999).

TWENTY-EIGHTH DEFENSE

Mental anguish damages are not available in this case as the terms the warranty expressly preclude

responsibility for incidental or consequential damages or expenses.

TWENTY-NINTH DEFENSE

Mental anguish damages are not recoverable under the Magnuson-Moss Warranty Act.

THIRTIETH DEFENSE

The invitation for a trier of fact to impose liability for mental anguish damages, without guidelines

or standards for determination of the amount or proper circumstances for such an award, would deny due

process of law in violation of the Fourteenth Amendment to the United States Constitution and in violation

of the Constitution of the State of Alabama.

THIRTY-FIRST DEFENSE

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The claims relating to mental anguish damages are barred by the Fourteenth Amendment to the

United States Constitution and by the Constitution of the State of Alabama

THIRTY-SECOND DEFENSE

The imposition of mental anguish damages in this case would contravene the due process clause

of the United States Constitution and the Constitution of the State of Alabama and the Fourth, Sixth, Eighth,

and Fourteenth Amendments, separately, to the United States Constitution on each of the following

grounds:

A. The procedures pursuant to which mental anguish damages are awarded permit

the award of mental anguish damages upon satisfaction of a standard of proof less

than the applicable standard of proof required for the imposition of criminal

sanctions.

B. The procedures pursuant to which mental anguish damages are awarded may

result in the award of joint and several judgments against multiple defendants for

different alleged acts of wrong doing.

C. The procedures pursuant to which mental anguish damages are awarded fail to

provide a reasonable limit on the amount of award.

D. The procedures pursuant to which mental anguish damages are awarded fail to

provide specific standards for the award of mental anguish damages.

E. The procedures pursuant to which mental anguish damages are awarded are

unconstitutionally vague.

F. The procedures pursuant to which mental anguish damages are awarded fail to

provide a means for awarding separate judgments against alleged joint tortfeasors.

G. The procedures pursuant to which mental anguish damages are awarded fail to

provide specific standards for the amount of mental anguish damages.

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H. The procedures pursuant to which mental anguish damages are awarded fail to

provide a clear appellate standard of review of an award of mental anguish

damages.

I. The procedures pursuant to which mental anguish damages are awarded may

permit the admission of evidence relative to mental anguish damages in the same

proceedings during which liability and compensatory damages are determined.

J. An award of mental anguish damages would constitute an arbitrary and capricious

taking of property without due process of law.

THIRTY-THIRD DEFENSE

Imposition of mental anguish damages would contravene the Commerce Clause of the United

States Constitution in that such an award would constitute, if imposed, an undue and unreasonable burden

on interstate commerce.

THIRTY-FOURTH DEFENSE

All affirmative defenses as itemized in Rule 8 of the Alabama Rules of Civil Procedure or that may

otherwise be applicable are hereby incorporated as if fully set forth herein. In the event of further

investigation or discovery reveals the applicability of any such defenses or other defenses, the right to plead

such affirmative defenses as may be appropriate in this case is hereby reserved. Such defenses are herein

incorporated by reference for the specific purpose of not waiving any such defense.

s/M. WARREN BUTLER

s/M. WARREN BUTLER BUT021

Attorneys for Defendants

Lyons, Pipes & Cook, P.C.

P. O. Box 2727

Mobile, AL 36652

Phone: (251) 441-8229

Fax: (251) 433-1820

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E-mail: MWB@lpclaw.com

Of Counsel:

Lyons, Pipes & Cook, P.C.

P. O. Box 2727

Mobile, AL 36652

(251) 441-8237

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CERTIFICATE OF SERVICE

I do hereby certify that I have on this 11th day of August, 2006, I electronically filed the foregoing

with the Clerk of the Court and I hereby served by United States Postal Service or electronically the

foregoing document:

David W. Rousseau, Esq.

211 W. Adams Street

Dothan, AL 36303

David C. Hilyer, Esq.

Craddock Reneker & Davis, LLP

4142 Carmichael Road, Suite C

Montgomery, AL 36106-2802

S/M. WARREN BUTLER 

M. WARREN BUTLER

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