Rel: 10/24/2014

Notice: This opinion is subject to formal revision before publication in the advance

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Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)

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SUPREME COURT OF ALABAMA

 OCTOBER TERM, 2014-2015

_________________________

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_________________________

America's Home Place, Inc.

v.

Gregory Rampey

Appeal from Chambers Circuit Court

(CV-13-900032)

MAIN, Justice.

The defendant below, America's Home Place, Inc. ("AHP"),

appeals from an order of the Chambers Circuit Court ("the

trial court") denying AHP's motion to compel arbitration of
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the claims brought by the plaintiff below, Gregory Rampey. We

reverse and remand.

I. Facts and Procedural History

In August 2012, Rampey and AHP entered into a contract,

the terms of which provided that AHP would construct a house

for Rampey in Chambers County. AHP constructed the house for

Rampey; however, after he took possession of the house, Rampey

began to notice "settlement and sinking of the foundation,"

which, according to Rampey, resulted in significant structural

and other damage to the house. AHP attempted to stabilize the

foundation and to repair the damage to the house that had

occurred as a result of the unstable foundation; those

efforts, however, were unsuccessful. On March 3, 2013, Rampey

filed in the trial court a complaint against AHP. The

complaint alleged 10 counts against AHP, each count stemming

from the construction of the house that was the subject of the

parties' August 2012 contract.

AHP moved to compel arbitration of Rampey's claims and to

stay the proceedings in the trial court pending the outcome of

arbitration between the parties. In support of its motion,

AHP attached the contract between AHP and Rampey. The

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contract stated that "Contractor and Owner agree as follows"

and then set forth 46 enumerated provisions. Beside each

enumerated provision in the contract (except nos. 4 and 27,

which were inapplicable) there was a line for the "owner"

(i.e., Rampey) to initial. Rampey admittedly wrote his

initials in the line next to every one of the 44 applicable

provisions, including provision no. 37 ("the arbitration

provision"), which states, in toto:

"BINDING ARBITRATION AGREEMENT

"ALL CLAIMS, DISPUTES AND OTHER MATTERS OR QUESTIONS

ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE

BREACH THEREOF, SHALL BE SETTLED BY BINDING

ARBITRATION IN ACCORDANCE WITH THE RULES OF AMERICAN

ARBITRATION ASSOCIATON [sic] (AAA) AND/OR DEMARS &

ASSOCIATES, LTD. (DMA), AND JUDGEMENT UPON THE AWARD

RENDERED BY THE ARBITRATOR OR ARBITRATORS MAY BE

ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.

THE PARTIES EXPRESSLY AGREE THAT THE ARBITRATOR OR

ARBITRATORS SHALL HAVE THE POWER AND AUTHORITY TO

GRANT REASONABLE ATTORNEY'S FEES AND COSTS IN

RESOLUTION OF THE CLAIMS, DIFFERENCES AND/OR

CONTROVERSIES ARISING FROM THIS AGREEMENT WHICH THE

PARTIES HAVE AGREED TO SUBMIT TO BINDING

ARBITRATION.

"THE DEMAND FOR ARBITRATION SHALL BE IN WRITING AND

DELIVERED TO THE OTHER PARTY TO THE AGREEMENT AND

THE ARBITRATOR. THE DEMAND FOR ARBITRATION SHALL BE

MADE WITHIN A REASONABLE TIME AFTER THE CLAIM,

DISPUTE OR OTHER MATTER RELATING TO THIS AGREEMENT

HAS ARISEN, AND IN NO EVENT SHALL BE MADE AFTER THE

DATE WHEN INSTITUTION OF LEGAL OR EQUITABLE

PROCEEDINGS BASED ON SUCH CLAIM, DISPUTE OR OTHER

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MATTER WILL BE BARRED BY THE APPLICABLE STATUTE OF

LIMITATIONS.

"THE COSTS OF THE ARBITRATOR WILL BE PAID BY THE

PARTY WHO IS AT FAULT ON THE POINT BEING ARBITRATED.

IN THE EVENT OF MULTIPLE POINTS BEING ARBITRATED THE

ARBITRATOR'S FEE WILL BE ALLOCATED ON A PRO RATA

BASIS BY THE ARBITRATOR. IF EITHER PARTY FAILS TO

ATTEND THE ARBITRATION, SUCH PARTY SHALL PAY FOR THE

COSTS OF THE ARBITRATOR, PLUS A $1,000.00 PENALTY

FOR LIQUIDATED DAMAGES FOR LOST TIME OF THE PARTY

THAT ATTENDED THE ARBITRATION. CONTRACTOR MAY SECURE

ITS RIGHTS UNDER THE MECHANIC'S LIEN LAW, AND,

SUBSEQUENT TO THE ARBITRATION AWARD, MAY ENFORCE

SAID RIGHT AND OBTAIN A LIEN FORECLOSURE JUDGEMENT." 

(Capitalization in original.) Immediately beneath the

arbitration provision were signature lines for the parties to

the contract, including one for "owner," i.e., Rampey. Rampey

also initialed provision no. 42, which states: "[Rampey]

acknowledges that each paragraph of this contract has been

explained and initials acceptance of same. [Rampey] also

acknowledges receipt of this agreement." (Emphasis added.) 

Furthermore, Rampey admittedly signed his name at the bottom

of each of the last two pages of the contract.

Rampey filed a response to AHP's motion to compel

arbitration. Rampey's sole argument in his response was that

his signature on the signature line immediately beneath the

arbitration provision was forged, and, thus, he said, there

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exists no proof of his intent to arbitrate any disputes

between himself and AHP. Rampey did not argue that the

contract itself was invalid and/or unenforceable; rather,

Rampey argued only that the arbitration provision in the

contract was unenforceable because, according to Rampey, his

signature immediately beneath the arbitration provision was

forged. Rampey supported his response to the motion to compel

arbitration with, among other evidentiary documents, his own

affidavit, which states:

"My name is Gregory Rampey. I am a resident

citizen of the State of Alabama aged nineteen (19)

years or older and have personal knowledge of the

facts and matters set forth herein which are true

and accurate to the best of my belief and knowledge.

"I am the Plaintiff in the above identified

cause and have personal knowledge of the facts set

forth in this affidavit.

"On August 29, 2012, I entered into a contract

with America's Home Place, Inc.[,] for the

construction of a home located at ___ Springfield

Avenue, Chambers County, Alabama. This contract

contained a binding arbitration agreement on page 5,

paragraph 37. (See Contract, attached to

Plaintiff[']s Opposition as Exhibit 1). I did not

sign the binding arbitration agreement contained

within the contract. I do not know who signed my

name nor did they have my permission. I had no

intention of agreeing to binding arbitration. The

forged signature appearing within the binding

arbitration clause in no way bears any resemblance

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to my actual signature on pages 7-8 of the Contract.

(See Contract)."

After a hearing on AHP's motion to compel arbitration,

the trial court entered the following order: "[AHP's] Motion

to Compel arbitration is denied at this time. [Rampey] has

claimed that the signature on the contract is forged. The

issue of whether an enforceable agreement to arbitrate exists

shall be set for jury trial on the next available jury

docket." AHP appealed.

II. Standard of Review

"Our standard of review of a ruling denying a

motion to compel arbitration is well settled:

"'"This Court reviews de novo the

denial of a motion to compel arbitration.

Parkway Dodge, Inc. v. Yarbrough, 779 So.

2d 1205 (Ala. 2000). A motion to compel

arbitration is analogous to a motion for a

summary judgment. TranSouth Fin. Corp. v.

Bell, 739 So. 2d 1110, 1114 (Ala. 1999).

The party seeking to compel arbitration has

the burden of proving the existence of a

contract calling for arbitration and

proving that the contract evidences a

transaction affecting interstate commerce.

Id. '[A]fter a motion to compel arbitration

has been made and supported, the burden is

on the non-movant to present evidence that

the supposed arbitration agreement is not

valid or does not apply to the dispute in

question.' Jim Burke Automotive, Inc. v.

Beavers, 674 So. 2d 1260, 1265 n. 1 (Ala.

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1995) (opinion on application for

rehearing)."'"

SSC Montgomery Cedar Crest Operating Co., LLC v. Bolding, 130

So. 3d 1194, 1196 (Ala. 2013) (quoting Elizabeth Homes, L.L.C.

v. Gantt, 882 So. 2d 313, 315 (Ala. 2003), quoting in turn

Fleetwood Enters., Inc. v. Bruno, 784 So. 2d 277, 280 (Ala.

2000)).

III. Analysis

The dispositive issue in this case is whether the trial

court erred in denying AHP's motion to compel arbitration

based on Rampey's allegation that his signature immediately

beneath the arbitration provision in the contract was forged. 

We conclude that the trial court did err. As noted, the

contract contains a binding arbitration provision (enumerated

provision no. 37 in the contract); Rampey admittedly wrote his

initials in the line provided next to the arbitration

provision. Also, as noted, provision no. 42 of the contract

states: "[Rampey] acknowledges that each paragraph of this

contract has been explained and initials acceptance of same.

[Rampey] also acknowledges receipt of this agreement"; Rampey

admittedly wrote his initials beside that provision. 

Furthermore, provision no. 39 of the contract states: "This

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Agreement constitutes the sole and entire Agreement between

the parties hereto and no modifications of this Agreement

shall be binding unless signed by all parties to this

Agreement. No representation, promise, or inducement not

included in this Agreement shall be binding upon any party

hereto." Moreover, on page 7 of the contract, directly above

one of the two places in which Rampey admittedly signed the

contract, it states, in pertinent part: "This agreement[,

i.e., the contract,] shall be binding on the parties thereto

...." The contract language quoted above shows that Rampey

and AHP entered into a binding contract, which Rampey does not

dispute, that includes two signatures Rampey agrees are

legitimate and that the contract includes a binding

arbitration provision. The fact that Rampey's signature

immediately beneath the arbitration provision was (allegedly)

forged is of no consequence because his signature was not

required immediately beneath the arbitration provision and,

furthermore, Rampey assented to be bound by that provision

when he admittedly wrote his initials on the line next to the

arbitration provision. See, e.g., Stiles v. Home Cable

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Concepts, Inc., 994 F. Supp. 1410 (M.D. Ala. 1998), which

aptly explains the fallacy of Rampey's argument:

"Stiles'[s] '[f]irst and foremost' objection is

that he did not sign the arbitration clause at

issue. It is, of course, a matter of general

contract law that a party must agree to a contract

in order to be bound by it. See Old Republic Ins.

Co. v. Lanier, 644 So. 2d 1258, 1260 (Ala. 1994);

Roberson v. Money Tree of Ala., Inc., 954 F. Supp.

1519, 1528 (M.D. Ala. 1997), citing Restatement of

Contracts, 2d. § 17. This provision of general

contract law applies even if the arbitration clause

is subject to the Federal Arbitration Act [('the

FAA')]. See 9 U.S.C. § 2 (arbitration clause not

enforced where invalid 'upon such grounds as exist

at law or in equity for the revocation of any

contract'). In addition, the FAA also requires that

an arbitration clause be written to be enforceable.

9 U.S.C. § 2 (a 'written provision'); Continental

Grain Co. v. Beasley, 628 So. 2d 319, 322 (Ala.

1993).

"While written agreement is required for

arbitration, however, there is no requirement that

every single provision of a contract, including the

arbitration clause, must be signed in order to form

part of the agreement. Indeed, it is axiomatic that

'parties may become bound by the terms of a

contract, even though they do not sign it, where

their assent is otherwise indicated.' 17A Am. Jur.

2d § 185. ... The FAA has no separate requirement of

a signed arbitration clause. As noted by the

Northern District of Alabama, '[i]t is well

established that a written agreement to arbitrate

need not be signed by the parties as a prerequisite

to the enforcement of the agreement.' Middlebrooks

v. Merrill Lynch, Pierce, Fenner & Smith, Inc., [No.

CV 89-HM-5015-NW, April 5, 1989] (N.D. Ala. 1989)

[not reported in F. Supp.].

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"Stiles has cited this court to three cases

which allegedly stand for the proposition that he

must sign an arbitration agreement for it to be

enforceable. His reliance is misplaced, however. The

first that he cites, Old Republic Ins. Co., 644 So.

2d at 1260, only stands for the proposition that a

party must agree to a contract to be bound by it.

The second, Continental Grain Co., 628 So. 2d at

322, merely notes that the FAA requires arbitration

clauses to be written. Finally, the third, Ex parte

Jones, 686 So. 2d 1166 (Ala. 1996), only stands for

the proposition that someone who is 'not a party to

the contract containing the arbitration agreement'

may not compel arbitration. None states the

proposition that the arbitration clause itself must

be signed. Indeed, these cases could not state that

proposition. Alabama law is not permitted by the FAA

to treat arbitration clauses any differently than

other contracts. See Doctor's Assoc., Inc. v.

Casarotto, 517 U.S. 681, 686–87, 116 S. Ct. 1652,

1656, 134 L. Ed. 2d 902 (1996) ('Courts may not,

however, invalidate arbitration agreements under

state laws applicable only to arbitration

provisions') (emphasis in original); Allied–Bruce

Terminix Co. v. Dobson, 513 U.S. 265, 281, 115 S.

Ct. 834, 130 L. Ed. 2d 753 (1995) (FAA makes

unlawful any state policy that 'would place

arbitration clauses on an unequal "footing"').

Because Alabama law only requires the contract to be

signed (and only certain contracts at that), and

does not require every single provision of every

contract to be signed, it could not require the

arbitration clause at issue here to be signed.

Doctor's Assoc., 517 U.S. at 682–84, 116 S. Ct. at

1654 (holding that Montana law cannot require

special notice provisions in arbitration contracts).

"Stiles assented to the contract as a whole in

this case. That fact is uncontested. ... Stiles has,

therefore, assented to an arbitration clause, even

absent his signature. ... The provision is not

invalid because not signed."

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Stiles, 994 F. Supp. at 1416 (initial emphasis added).

Furthermore, it is well settled that

"[a] plaintiff cannot seek the benefits of a

contract but at the same time avoid the arbitration

provision in the contract. Wolff Motor Co. [v.

White], 869 So. 2d [1129,] 1136 [(Ala. 2003)].

Instead, 'she must accept or reject the entire

contract.' Credit Sales, Inc. v. Crimm, 815 So. 2d

540, 546 (Ala. 2001). Britta's claims, including her

breach-of-contract claim, rely on the contract to

support her claims for damages. Therefore, she is

bound by the arbitration provision in the contract.

Infiniti of Mobile, Inc. v. Office, 727 So. 2d 42,

48 (Ala. 1999)[ ]; Delta Constr. Corp. v. Gooden, 714 1

So. 2d 975, 981 (Ala. 1998)."

Bowen v. Security Pest Control, Inc., 879 So. 2d 1139, 1143

(Ala. 2003) (emphasis added). See also Southern Energy Homes,

Inc. v. Ard, 772 So. 2d 1131, 1134-35 (Ala. 2000) ("A

plaintiff cannot simultaneously claim the benefits of a

contract and repudiate its burdens and conditions." (citing

Value Auto Credit, Inc. v. Talley, 727 So. 2d 61 (Ala. 1999);

Infiniti of Mobile, Inc. v. Office, 727 So. 2d 42 (Ala. 1999);

Notably, in Infiniti of Mobile, Inc., a plurality of this 1

Court concluded that, "[b]ecause the undisputed evidence

indicates that the second retail-buyer's-order form represents

the final contract between Mr. Office and Infiniti, and

because Mr. Office clearly initialed the arbitration

provisions appearing on both the front side and the reverse

side of that contract, we must conclude that Mr. Office agreed

to arbitrate his claims against Infiniti." 727 So. 2d at 47

(emphasis added). 

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Georgia Power Co. v. Partin, 727 So. 2d 2 (Ala. 1998); Delta

Constr. Corp. v. Gooden, 714 So. 2d 975 (Ala. 1998); and Ex

parte Dyess, 709 So. 2d 447 (Ala. 1997))). 

Here, Rampey, whose claims are all predicated on alleged

breaches and violations of the contract, attempts to claim the

benefits of the contract while repudiating one of its

conditions, i.e., the binding arbitration provision. However,

as noted, Rampey must "'accept or reject the entire

contract.'" Bowen, 879 So. 2d at 1143 (quoting Credit Sales,

Inc. v. Crimm, 815 So. 2d 540, 546 (Ala. 2001)). As was the

case in Bowen, Rampey's claims, including his

breach-of-contract claim, rely on the contract for support. 

Thus, Rampey is bound by all the provisions of the contract,

including the arbitration provision. Accordingly, we conclude

that the trial court erred in denying AHP's motion to compel

arbitration. 

2

Rampey offers, as an alternative basis for affirming the 2

trial court's denial of the motion to compel arbitration, the

argument that AHP presented no evidence "showing that the

arbitration agreement involved or affected interstate

commerce." Rampey's brief, at 13. See, e.g., Elizabeth

Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala. 2003) ("'The

party seeking to compel arbitration has the burden of proving

the existence of a contract calling for arbitration and

proving that the contract evidences a transaction affecting

interstate commerce.'" (quoting Fleetwood Enters., Inc., 784

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IV. Conclusion

The trial court erred in denying AHP's motion to compel

arbitration. Therefore, we reverse the trial court's order

and remand the cause to that court with instructions to vacate

its order denying the motion to compel arbitration and to

enter an order granting AHP's motion to compel arbitration.

REVERSED AND REMANDED WITH DIRECTIONS.

Stuart, Bolin, Parker, Wise, and Bryan, JJ., concur.

Murdock and Shaw, JJ., concur in the result.

So. 2d at 280)). However, Rampey did not raise that argument

in the trial court; therefore, the argument is waived on

appellate review. See, e.g., Andrews v. Merritt Oil Co., 612

So. 2d 409, 410 (Ala. 1992) ("This Court cannot consider

arguments raised for the first time on appeal; rather, our

review is restricted to the evidence and arguments considered

by the trial court."). Furthermore, even if it were not

waived, we could conclude that the argument is unavailing

because the contract shows that the house was built in Alabama

by AHP, which listed its place of business as being in "Hall

County, Gainesville, GA." See Hurst v. Tony Moore Imports,

Inc., 699 So. 2d 1249, 1257 (Ala. 1997) ("[I]f any effect on

interstate commerce can be found in a commercial transaction,

then the transaction is considered to be one involving

interstate commerce.").

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MURDOCK, Justice (concurring in the result).

The main opinion correctly concludes that "Rampey

assented to be bound by [the arbitration] provision when he

admittedly wrote his initials on the line next to [that]

provision" and signed his name in the signature lines at the

end of the contract. ___ So. 3d at ___. I agree, and, based

on general principles of contract law, I find this conclusion

sufficient to the end achieved here. I therefore find it

unnecessary to rely, as does the main opinion, upon the

decision in Stiles v. Home Cable Concepts, Inc., 994 F. Supp.

1410 (M.D. Ala. 1998). In fact, I find Stiles to be

inapposite to the present case.

First, the statements from Stiles quoted in the main

opinion, see ___ So. 3d at ___, were made in the context of an

arbitration clause that, on the one hand, was not accompanied

by a signature line dedicated specifically to that clause and,

on the other hand, was not initialed by the party resisting

arbitration. In this context, the key passage from the

Stiles opinion quoted in the main opinion, i.e., "'there is no

requirement that every single provision of a contract,

including the arbitration clause, must be signed in order to

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form part of the agreement,'" ___ So. 3d at ___ (emphasis

omitted), lacks significant probative value in a case, such as

this one, where the arbitration clause is accompanied by an

unsigned signature line dedicated solely to that clause.

In addition to its lack of significant probative value as

to the peculiar facts presented in this case, I am reluctant

to rely upon Stiles for another reason. In Stiles the federal

district court went so far as to impose upon a consumer a

requirement to arbitrate pursuant to a provision in an

original contract that did not mention arbitration but instead 

purported to allow a credit-card issuer to change any of the

terms of the agreement between it and the consumer by

unilateral notification so long as the consumer did not reject

the proposed changes in writing within a prescribed period

following such notification. Regardless of whatever merit

this holding may have in regard to a consumer contract such as

the one at issue in Stiles, I see no reason to quote with

approval from a decision that goes this far in order to

achieve the result achieved in the present case.

I also find inapposite to the present case the principle

invoked in that portion of the main opinion that follows its

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invocation of Stiles. Specifically, the main opinion seizes

upon the proposition that "'[a] plaintiff cannot seek the

benefits of a contract but at the same time avoid the

arbitration provision in the contract.'" ___ So. 3d at ___

(quoting Bowen v. Security Pest Control, Inc., 879 So. 2d

1139, 1143 (Ala. 2003)). The only argument made by Rampey in

the present case, however, is that, because he did not sign

the signature line dedicated to the arbitration provision, the

arbitration provision is not "in the contract." He does not

go further and argue that, even if that arbitration provision

is part of the contract, he would not be bound by it for some

reason, even as he seeks to benefit from other parts of the

contract. The stated principle is therefore inapposite.

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