UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1969

MONIQUE P. HOWARD,

Plaintiff - Appellee,

versus

KING’S CROSSING, INCORPORATED; ROSEPARK, LLC;

ERIC FEDEWA,

Defendants - Appellants,

and

COUNCIL OF UNIT OWNERS OF KING’S CROSSING

CONDOMINIUM, INCORPORATED,

Defendant.

Appeal from the United States District Court for the District of

Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.

(8:04-cv-02966-AW)

Submitted: January 14, 2008 Decided: February 19, 2008

Before WILLIAMS, Chief Judge, SHEDD, Circuit Judge, and Liam

O’GRADY, United States District Judge for the Eastern District of

Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.
2

Neil S. Hyman, SELZER, GURVITCH, RABIN & OBECNY, CHTD., Bethesda,

Maryland, for Appellants. Cheryl Chapman Henderson, College Park,

Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
1

The district court’s order is immediately appealable under 9

U.S.C. § 16.

3

PER CURIAM:

Monique Howard brought this action under Maryland law,

alleging various contract and tort claims arising from her purchase

of a condominium from King’s Crossing, Inc. (“King’s”). Defendants

King’s; Rosepark, LLC; and Eric Fedewa (collectively “Defendants”)

removed the case to federal court and moved to dismiss or to stay

based on the arbitration clause contained in the condominium’s

sales agreement. The district court denied the motion, concluding

that the arbitration clause failed for want of consideration and

for unconscionability, and Defendants now appeal.1 Finding no

error, we affirm.

Defendants first contend that the district court erred by

considering the validity of the arbitration clause rather than by

leaving this question to the arbitrator. Defendants’ argument is

foreclosed by the Supreme Court’s decision in Buckeye Check

Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006). There, the Court

held that challenges to the validity of a contract as a whole must

be considered in the first instance by an arbitrator, while

challenges to an arbitration clause or agreement can be considered

by the courts. Id. at 449. Although Howard’s complaint challenges

the validity of the sales agreement as a whole, her response to

Defendants’ motion to dismiss/stay asserts that the arbitration
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clause is invalid for reasons distinct from those raised in the

complaint. The issue before the district court, therefore, was the

validity of the arbitration clause, and under Buckeye the court was

empowered to determine this issue in the first instance.

Defendants next argue that the district court erred by

concluding that the arbitration clause failed for want of

consideration and for unconscionability. Again, case law

forecloses Defendants’ position. We summarized the applicable

Maryland law in Hill v. Peoplesoft USA, Inc., 412 F.3d 540, 543

(4th Cir. 2005), as follows:

Because this case involves the question of whether the

Arbitration Agreement was a valid contract, we turn to

Maryland law. . . . Under Maryland law, to be binding and

enforceable, an arbitration agreement must be a valid

contract. Cheek v. United Healthcare of Mid-Atlantic,

Inc., 835 A.2d 656, 661 (Md. 2003). . . . [T]o be binding

and enforceable, a contract must be supported by

consideration. Id. at 661. A “promise becomes

consideration for another promise only when it

constitutes a binding obligation.” Id. Unlike a binding

obligation, an “‘illusory promise’ appears to be a

promise, but it does not actually bind or obligate the

promisor to anything.” Id. at 662. Because an illusory

promise is not binding on the promisor, an illusory

promise cannot constitute consideration. Id. 

In Hill, we found that both parties had promised to arbitrate all

of their disputes except for a few enumerated exceptions. We

therefore concluded that the arbitration agreement was supported by

mutual consideration in the form of binding mutual promises to

arbitrate. In contrast, in Cheek, the Maryland Court of Appeals

examined an arbitration agreement in which both parties promised to
2

We do not reach the question of whether the arbitration

clause is unconscionable.

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arbitrate their disputes but in which one party reserved the right

to modify or revoke the agreement at any time. The Cheek court

held that the right to modify or revoke the arbitration agreement

rendered the party’s promise to arbitrate illusory; and because

there was no valid promise, the arbitration agreement failed for

want of consideration.

We believe the arbitration clause in this case similarly

fails. In the sales agreement, Howard agreed to arbitrate her

disputes against Defendants and to waive any right to proceed in a

court of law. Defendants, on the other hand, made no corresponding

promise. Rather, they reserved the right to seek specific

performance of the agreement in any court of competent jurisdiction

and/or to sue Howard for damages. Defendants’ “promise” is not

merely illusory, it is nonexistent. Under Cheek, the arbitration

clause clearly fails for want of mutual consideration.2

Accordingly, we affirm the denial of Defendants’ motion to

dismiss/stay. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED