IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-01622-COA DR. ARENIA C. MALLORY COMMUNITY HEALTH CENTER, INC. APPELLANT

v. STELLANDA DAVIS-CORNELIUS APPELLEE
DATE OF JUDGMENT: 10/21/2014 TRIAL JUDGE: HON. JANNIE M. LEW I S COURT FROM W HICH APPEALED: HOLMES COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: LAURA FORD ROSE JESSICA IRIS MORRIS ATTORNEY FOR APPELLEE: STEVEN TODD JEFFREYS NATURE OF THE CASE: CIVIL - CONTRACT TRIAL COURT DISPOSITION: DENIED MOTION TO COMPEL ARBITRATION DISPOSITION: REVERSED AND REMANDED - 04/12/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. WILSON, J., FOR THE COURT: ¶1. T h e c ircuit court denied Dr. Arenia C

. Mallory Com m unity Health Center Inc. ’ s

m otion t o com

pel a rbitration. Its basis f or doing so was the He a l th Center’s f ailure to conduct arbitration p r oceedings within thirty to sixty day s of f iring its C EO, Stellanda DavisCornelius, as required under her em ploy m ent contract’s arbitration provision. But questions of tim eliness and whether a party f ulf i lled the procedural requirem ents o f the arbitra tion provision are ones of “procedural a rbitrability .” And questions of procedural arbitrability are f or the arbitrator, not the courts, to decide.¶2. For t his reason, we r everse the circuit c ourt’s order deny i ng the Health Center’s

m otion to com

pel arbitration. W e rem and this case back to the circuit court to stay DavisC o r n e l i u s’s suit a gainst the Health Center a nd c om pel arbitration o n w h e t

h e r D a v i s - C o r

n e l i u s
was term inated f

or “cause.”
B ackground Facts and Procedural History ¶3. On March 1 9 , 2008, the chairm an of the Health C enter’s board of d irectors signed a
contract t o em

ploy D avis-Cornelius as its chief executive of f i cer. U nder the contract, DavisCornelius would rem ain em ploy e d by the Health C enter f rom July 1, 2008, until June 30, 2023, “unless term inated sooner as h erein p r o vided.” 1 T he contract provided f or a base starting salary o f $170,000 with m andatory annual cost-of -living increases, $50,000 bonuses in certain y ears, and various f r inge benef

its. ¶4. The board term inated Davis-Cornelius on January 2 2, 2014. I n its term ination letter

to Davis-Cornelius, t he board stated that “f inancial dif

f erences m ake it i mp o s s i ble to continue to pay y ou.” In March 2014, D a v i s -Cornelius dem anded that t he H ealth Center continue to pay her salary pursuant to her contract. In response, t he board asserted through its attorney s that i t had n e ver seen the “alleged em p loy m ent c ontrac t ” p r i o r to receiving
Dav i s - C o r nelius’s dem and letter. The board claim ed that it had b een presented with the
contract’s signature page b u t had never review e d , discussed, or negotiated the contract’s

1 A n o th e r p ro v isio n o f th e co n tract s tated , “O n each an n i v e rsary d ate o f th is ag reem en t, th e term s an d co n d itio n s co n tain ed h erein sh all au to m atically ren ew f o r an ad d itio n al f

iv e (5 ) y e ar term .” 2other term s. Accordingly , the board claim ed that the alleged contract was not valid.

¶5. The board f

urther stated that Davis-Cornelius was properly f ired f or cause on grounds of which she was well aware. These included allegedly m isappropriating f

unds, f alsif y ing board m inutes to ref

lect board approval of decisions never brought to its attention, violations of f ederal regulations, f

ailing t o pay pay

roll taxes, violation of the board’s nepotism policy , and other issues. The board stated that the f ederal Health Resources Services Adm inistration (HRSA) had “m ade [ Davis-Cornelius] aware o f these a nd num erous o ther issues” during a site visit and through a subsequent report. The b oard c l aim ed that Davis-Cornelius’s conduct had j eo p a r d i z e d the H ealth Center’s f ederal f unding and e xistence. The board c losed its
respons e by stating: “Because [ Davis-Cornelius] ha[ d] f ailed to d o s o , pursuant to Section
VI of the alleged contract, the Center is initiating arbitration without waiving a ny of its def enses to [ her] contract claim s.” ¶6. U n d e r t h e term s of the e m ploy m ent contract a t tached to her com p laint, the Health
Center could t e rm inate Davis-Cornelius f or any reason on ninety day s’ n otice. B ut if it did

so, i t had to pay her salary “until the total y ears of contract is e nded with n o exceptions.” The

contract also provided that the Health Center could term inate Davis-Cornelius “f or cause,” 2

2 T h e co n tract d ef

in es “cau se” as “n eg lig en c e o r m i sco n d u ct as sh all co n stitu te, as a m atter o f law , th e f

ailu re o f t h e E x ecu tiv e D irecto r/C h ief E x ecu tiv e O f f icer to d isch arg e in g o o d f aith th e o b lig atio n s an d r esp o n sib ilities as set f o rth h e rein af

ter ab o v e, to en g ag e in co n d u ct o f an u n eth ical o r illeg al n atu re w h ich a d v ersely ef f ects [ sic] th e o p eratio n s o f th e C e n t er o r co n d u cts [ sic] g ro ss an d reck less a s to ev id e n ce a d isreg ard f o r th e in teg rity , rep u tatio n an d b est in terest o f th e C en ter.” 3in which case it would not have to continue to pay her. Section VI(D) provided that if the

Health Center f

ired Davis-Cornelius f

or cause,

an arbitration panel shall be f orm ed im m ediately

upon the term ination of the Executive D irector/Chief Executive Of f icer to determ i ne whether o r not there was “Cause” f

or the discharge by

the Board of

Directors. The panel shall consist of the f ollowing: (1) A person selected by the Executive Director/Chief Executive Of

f i cer. (2) A person selected by the Board of Directors. (3) A third person selected by the s elected [ sic] as a result of subparagraph D(l) and D(2). The p anel of arbitrators shal l begin t heir d eliberations prom ptly and shall no t i f y both t he Executive Director/Chief E xecutive Of f icer and Board of Directors o f the tim e and place a t which t he E xecutive Director/Chief Executive Of

f icer and Board Chairm an w i ll have opportunity to be heard on the issue of

“Cause[ .]” The Executive Director/Chief Executive Of f i cer and the panel m

ust reach a decision within thirty (30) day s f r om the date on which he/she is term inated and the panel m ust r each a decision within s ixty (60) d ay s of said date. ¶7. W h en Davis-Cornelius was f ired, an arbitration panel was not im m ediately f orm ed. Instead, m ore than sixty day s l ater, on March 8, 2014, she sued t he Health Center in circuit

court. In he r c o m

plaint, Davis-Cornelius a lleged she was not term inated f or cause. Thus,

as she saw it, she was e ntitled to her salary f or t he alm ost decade r em aining of the contract (totaling m ore than $1,000,000), and f or her other alleged unpaid benef its. ¶8. T h e H ealth Center responded by f iling a m otion to com

pel arbitration. W hile t h e Health Center contests the validity of som e of the contract’s term s, the arbitration provision

4was not one of t hem

. 3 The Health Center argued Davis-Cornelius’s claim that she was not
term inated f

or “cause” f

e ll within the scope of this a r bitration provision. So i t was f or the arbitration panel, not the circuit court, to decide. ¶9. The circuit c ourt d e n i e d t h e Health Center’s m otion. The court em ploy ed the twoprong inquiry f

or deciding arbitrability , see East F o r d I n c
. v. T aylor , 826 S o. 2d 709, 713 (¶¶9-10) (Miss. 2002), a nd f ound t hat the Health Center’s m o tion f ailed under the f

i rst prong. “The f irst prong h a s t w o considerations: (1) whether there is a v alid arbitration agreem ent and (2) whether the parties’ dispute is within t he scope o f the arbitration agreem ent.” Id. at (¶9). A c c o r ding to the circuit j udge, while a v alid arbitration agreem e nt existed, this “agreem ent [ was] l im i ted t o the determi n a tion of ‘Cause’ f or term ination only to be conducted prom

ptly a nd im m ediately wit h i n 30-60 day s of term ination.” T heref ore, the
agreem ent “does not encom p ass the claim s pursued by [ Davis-Cornelius].” ¶10. The Health Center tim ely appealed the circuit court’s order. See Tupelo Auto Sales Ltd. v
. Scott , 844 So. 2 d 1167, 1170 (¶10) (Miss. 2003) (holding that “an appeal m ay be taken

3 A s n o ted ab o v e, in i ts in itial resp o n se to a D a v is-C o rn eliu s’s p r e-su it d e m an d letter, th e H ealth C en ter co n ten d ed th at th e em p lo y m en t co n tract w as n o t v alid . B u t b y th e t im e its m o tio n to co m

p el arb i tratio n w as h eard , th e H ealth C e n t e r h a d ack n o w led g ed th at o n e o f its b o ard m e m

b ers h ad sig n ed th e co n tract an d th at a t least so m e o f its p r o v isio n s, in clu d in g th e a rb itratio n clau se, w ere en f o rceab le. C o u n sel f

o r t h e H ealth C en ter n o ted t h at th e ag reem en t co n tain ed a sev erab ilty clau se, so a n y i n v alid term s co u ld b e sev ered an d th e rem ain d er o f th e a g reem en t en f o rced

. T h e H e alth C en ter v ig o ro u sly m ain tain s th at n o t all th e p ro v isio n s in t h e c o n tract are v alid an d en f o rceab le. In a f

o o tn o te in th eir o p en in g b rief o n ap p eal, th e H ealth C e n ter states: “F o r p u rp o ses lim ited to [ i ts m o tio n t o c o m p el arb itratio n ] , [ th e H ealth C en ter] d o es n o t co n t est th e v alid ity o f th e e m p lo y m en t co n tract.” 5f

rom an order deny i ng a m otion to com pel arbitration”).
Discussion ¶11. W e review the denial of a m otion to com pel arbitration de novo. Id. a t 1 1 6 9 ( ¶ 5 ). And our d e novo r eview leads u s t o the opposite c o nclusion of the circuit court. W e f ind the substance of Davis-Cornelius’s claim against the H ealth C enter f ell within t he scope of the arbitration agreem ent. And any issue of tim eliness or f ailure to com

ply with the procedural requirem ents of the arbitration agreem ent was f or t he arbitration panel, n ot the c ircuit court, to decide.
I. Validity of the Arbitration Agreem e nt ¶12. Bef

ore we discuss t he scope of the arbitration agreem ent, we m ust f irst a d dress its validity

. ¶13. The circuit court f ound a valid arbitration agr e e m e nt existed, but in her brief on appeal, Davis-Cornelius accuses the Health Center of taking an inconsistent position about the validity

of the em ploy m ent contract. According to Davis-Cornelius, the Health Center is try ing “to have i ts cake and e at it too” by deny ing the validity of the em ploy m ent contract but stipulating t hat, should such a contrac t e x i s t , i ts arbitration agreem ent is valid. In
response, the Health Center argues that it m ay enf orce the arbitration provision without also conceding that all term s in the em ploy m ent contract are enf

o rceable. ¶14. It i s true that “where the ‘very existence of a contract’ containing the relevant arbitration a greem ent is called i n t o question,” t he courts—not the arbitrators—“have

6authority and responsibility to decide the m atter.” Banc One A cceptance C orp. v. Hill , 367 F.3d 426, 429 ( 5th Cir. 2004) (quoting W ill-Drill Res. Inc. v. Samson Res. Co. , 3 52 F.3d 211,
218 ( 5th Cir. 2003)). This i s b e c a u s e , i f “ n o contract ever existed,

. . . by proxy , . . . no
agreem ent to arbitrate was ever concluded. The a r bitrat or consequently would have no authority to decide any

t hing.” Banc One , 367 F.3d at 4 29-30. But here, neither side argues the em ploy m ent contract never existed —especially not Davis-Cornelius, whose m illiondollar lawsuit depends on the contract’s existence. ¶15. Instead, what the Health Center challenges is the enforceability of t he contract. And when a party d oes “not challenge the existence of a contract, but rather at t a cks the enf orceability of the agreem ent alleging that the contract i s v oid ab initio or v oidable[ ,]

. . . [ s]uch a scenario c alls f or application o f t h e s everability doctrine contained in Prima
Paint [ Corp. v. Flood & C onklin Manufacturing Co. , 388 U.S. 395, 403-04 ( 1967)].” Banc One , 367 F.3d at 4 30. “Under this approach, ‘only if the arbitration clause i s attacked on an independent b asis can the court decide th e dispute; otherwise, general attacks on the
agreem ent are f

or the arbitrator.’” Id. (quoting W ill-Drill , 352 F.3d at 218). ¶16. Under Prima Paint , an arbitration clause is d eem ed “separable” f r om t he contract in which it i s contained. Prima P aint , 388 U.S. at 402. Theref ore, a claim that the c ontract as

a whole was f

ra u d u l e n t l y i nduced is subject to arbitration unless there is a “ c laim

. . . that
f raud was direct to t he a rbitration clause itself .” Id. Likewise, a claim that an entire contract is i l l e g a l a n d v oid ab initio m ust be arbitrated when t here is n o such claim directed to the

7arbitration agreem ent specif ically

. See Buckeye Check Cashing Inc. v. C ardegna , 546 U.S. 440, 4 42-46 (2006). This rule is “a m atter of substantive f ederal arbitration law” and thus “applies in state as well as f e deral courts.” Id. at 445-46. ¶17. Neither party has l odged an independent a ttack on the arbitration c lause itself

. Thus,
any i ssues surrounding the contract’s enf orceability do not preclude arbitration; such issues are f or the arbitrators to decide.
II. Scope of the Arbitration Agreem ent ¶18. W e next consider whether the parties’ dispute f alls within t he scope of the arbitration clause. East Ford , 826 So. 2d at 713 (¶9). ¶19. The arbitration clause was not broa d

. It d id not encom pass “any and all disputes” between Davis-Cornelius a nd t he Health Center. Rather, it covered one issue—whether Davis-Cornelius was term inated f or “cause.” But narrow as the arbitration clause m ay be, this is the exact issue that f o rm s t he basis of D a v i s - C o r n e l i us’s lawsuit against the Health
Center. Theref

ore , t h e u nderly ing substance of her claim f a l ls within the scope of the arbitration clause. ¶20. The circuit c ourt held t hat the dispute f ell outside the s c o p e o f the arbitration
ag r e e m ent because the clause temporally lim i ted arbitration to the s ixty -day window
f ollowing Davis-Cornelius ’ s t e r m ination. However, such c laim s m ust be decided by an arbitrator, not a court. The Suprem e Court m a de this clear in Howsam v. Dean W itter Reynolds, Inc. , 537 U .S

. 7 9 ( 2 0 0 2 ). Howsam addressed a rule of the f orm er National

8Association of Securities D ealers (NASD), which the parties’ agreem ent incorporated by

ref erence, “that no dispute ‘shall be eligible f or subm ission to arbitration . . . where six (6)
y ears have elapsed f

rom the occurrence or event giving rise to the

. . . dispute.” Id. at 81-82 (quoting NASD C ode of Arbitration Procedure § 10304 (19 8 4 ) )

. More specif ically , the
Court addressed who—a court or an arbitrator—should decide whether a claim was initiated within the tim e lim it. The Court held that “‘“procedural” questions [ of arbitrability ] which
grow out of the dispute and b ear on its f inal disposition’ are p resum p tively not f

or t he judge, but f o r an arbitrator, to decide.” Id. at 84 (quoting J ohn W iley & S ons I nc. v. Livingston , 376
U.S. 543, 557 (1964)). Thus, “ t h e presum ption is that the arbitrator should decide ‘allegation[ s] of w aiver, delay , or a like def ense to arbitrability .’” I

d

. ( q u o ting Moses H. Cone Mem’l Hosp. v. Mer c u r y C o n str. Corp. , 460 U.S. 1, 24-25 (1983)). The Court continued, “in the absence of an agreem ent t o the contrary , . . . issues of p r ocedural arbitrability , i.e., whether prerequisites such as time limits

. . . and other conditions p recedent

to an obligation to arbitrate have been met, a r e f or the arbitrators t o decide.” Id. at 85 (quoting Revised Unif

orm Arbitration Act of 2000, § 6, com m ent 2). The tim e lim it at issue in this case is not m eaningf ully distinguishable f

rom the one at i ssue in Howsam ; theref ore, Davis-Cornelius’s contention that the Health Center f ailed to com

ply with i t m

ust be decided by an arbitration panel, not the circuit court. ¶21. “ T h i s general r

ule in f avor of the arbitrator’s deciding q uestions of procedur a l arbitrability has one exception: ‘[ A] court c ould d eny a r bitration only if it could conf idently

9be said n ot only that the claim w as strictly ‘procedural,’ but also that it s hould o perate to bar

arbitration altogether.” G en. W arehousemen & H

e lpers U nion Local 767 v. Albertson’s Distrib. Inc. , 3 3 1 F

. 3 d 485, 488 (5th Cir. 2003) (quoting J ohn W i ley , 376 U.S. at 557-58).
But “ such cases are likely to be rare indeed.” John W iley , 376 U.S. at 558. T he Fif th Circuit has “interpreted this rare e x c e p tion t o m ean that ‘a c o urt will not order arbitration if ‘no rational m ind’ could q

uestion that the p arties intended f o r a procedural provision to preclude arbitration and that the breach of the procedural requi r e m ent was clear.’” Albertson’s
D i s t ribution , 331 F.3d at 488 (quoting Oil, Chem. & Atomic W orker’s Int’l Union, Loca l 4–447 v. Chevron Chem. Co. , 815 F.2d 338, 342 (5th Cir. 1987)). ¶22. Here, we cannot say t hat com pliance with the procedures o f t he arbitration provision in Davis-Cornelius’s em

ploy m ent cont r a ct is an issue that f i ts t he “rare” e xception. The circuit court’s i nterpretation

— t h at the f a i lure t o strictly com

ply with the tim e period precludes arbitration—is reasonable. But a rational m ind could also conclude that the t im e provision is not an absolute bar to arbitration because, as the Health Center argues, it had no

reason to suspect Davis-Cornelius would c o n test that her t erm ination was “f or cause”; because Davis-Cornelius a lso f a i l ed to initiate arbitration; or f or som e o ther reason. The Health Center asserts it raised the issue of a r bitration as soon as i t learned Davis-Cornelius intended to contest that it had cause to f ire her. ¶23. It is n o t o u r r ole to decide if t he Health Center in f a ct breached t he p rocedural requirem ents of the a rbitration provision. B ecause w e cannot conf idently s ay t hat such a

1 0breach should operate to bar arbitration altogether, we f ind this issue should be decided by the arbitration panel, not the court. ¶24. “The courts’ role is very lim ited when deciding issues of a rbitrability .” Albertson’s Distribution , 3 31 F.3d a t 487. “The court d ecides only whether the parties a greed to subm it the subject matter of the grievance to arbitration.” Id. (em phasis added) (citing AT& T Techs.
Inc. v
. Commc’ns W

orkers of Am. , 475 U.S. 643, 649 (1986)). The subject m atter of DavisC o r n e l i u s’s dispute w ith her f o r m er e m ploy er f a lls within the scope of the arbitration provision in her em

ploy m ent contract. 4 Theref

ore, we reverse the order of the circuit court and rem and this case to the circuit court to com pel arbitration. ¶25. THE JUDGMENT O F THE HOLMES C OUNTY CIRC U IT COURT IS REVERSED, AND THIS C A S E I S REMANDED FOR THE C IRCUIT COURT TO STAY PROCEEDINGS AND COMPEL ARB I T RATION. ALL COSTS O F THIS APPEAL ARE ASSESSED TO THE APPELLEE. LEE, C .J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, J AMES AND G REENLEE, JJ., CONCUR. IRVING, P.J., CONCURS I N RESULT O N L Y WITHOUT SEPARATE WRITTEN OPINION.

4 T h e circu it co u rt d id n o t co n sid er, an d n eith er s id e h as arg u e d th e seco n d p ro n g o f arb itratio n a n aly s is co m es in to p lay

. T h e seco n d p ro n g en c o m p asses “ w h eth er leg al co n strain ts ex tern al t o t h e p arties’ ag reem en t f o reclo sed arb i tratio n o f th o se claim s.” E a st F o rd , 8 2 6 S o . 2 d a t 7 1 3 (¶1 0 ) ( q u o tin g M itsu b ish i M

o to r s C o rp
. v. S

o ler C h r ysler-P lym o u th In c. , 4 7 3 U .S

. 6 1 4 , 6 2 6 (1 9 8 5 )). U n d er th is p ro n g , “ap p licab le co n t ract d ef en ses av ailab le u n d er state co n trac t l aw su c h as f rau d , d u ress, an d u n co n scio n ab ility m ay b e asserted to in v alid ate th e arb itratio n ag reem en t w i th o u t o f f en d in g th e F ed eral A rb i tratio n A c t

. ” Id

. (citin g D o cto r ’s A sso cs. v. C a sa r o tto , 5 1 7 U .S

. 6 8 1 , 6 8 6 (1 9 9 6 )).

1 1