IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWAR E IN AND FOR NEW CASTLE COUNTY

CREDIT ACCEPTANCE CORPORATION ) assignee of ) FIRST CHOICE AUTO SALES INC, ) ) Plaintiff, ) ) v. ) C.A. No. CPU4-16-003564 ) STEWART LIGGON, ) ) Defendant. ) Submitted: June 8, 2017 Decided: July 7, 2017

Joelle E. Polesky, Esquire Stewart Liggon Stradley Ronon Stevens & Young, LLP 7 Greenwich Court 1000 N. West Street, Suite 1279 Newark, DE 197 02 Wilmington, DE 19801 Pro Se Defendant Attorney for Plaintiff Jessica A. Kolansky, Esquire ( pro hac vice) Stradley Ronon Stevens & Young, LLP 2600 One Commerce Square Philadelphia, PA 19103 Attorney for Plaintiff

ORDER

COME NOW , this 5th day of July, 2017, the Court, having held a heari ng on the motions on May 19, 2017 and after consideration of submissi ons on June 8, 2017, finds as

follows: 1. On November 22, 2016, Plaintiff/Counterclaim-Defendan t Credit Acceptance Corporation (“Plaintiff”) filed an action against Defendant/C ounterclaim-Plaintiff Stewart2

Liggon (“Defendant”) for defaulting on a retail installm ent contract for the purchase of a 2007 Chevrolet Impala (the “Vehicle”). The contract was as signed to Plaintiff from First Choice Auto Sales, Inc. (the “Dealer”). 2. On December 30, 2016, Defendant filed an Answer and Counterclaim, alleging the Vehicle was a “lemon.” Defendant also claims the Dealer failed to provide him with a copy of the Vehicle’s “CarFax” after requested. A dditionally, Defendant claims he is the “victim of fraudulent business practices,” and seeks punitive and compensatory damages against Plaintiff. 3. On January 23, 2017, Plaintiff filed the instant Moti on to Dismiss and Compel Arbitration, alleging the retail installment contract Defe ndant signed contained a provision which requires arbitration of both Plaintiff’s claim for breac h of contract and Defendant’s counterclaim related to the quality of the vehicle. 4. On March 3, 2017, the Court held a hearing on Plainti ff’s Motion to Dismiss and Compel Arbitration, at which Defendant failed to appear. However, Defendant’s mother, Elizabeth Liggon (“Ms. Liggon”), appeared attempting to represent Defendant and asserted—over objection of Plaintiff’s counsel—the issue of Defendant’s competency to enter into the retail installment contract. The Court passed the motions until May 19, 2017, and permitted Defendant leave to “file any motion raising t he issue of competency within twenty (20) days.” 5. On March 23, 2017, Ms. Liggon submitted a letter to the Court, on behalf of Defendant, stating Defendant suffers from dyslexia and ca nnot read. Ms. Liggon requested Defendant “be given the help he needs to understand these proce edings and anything else he3

is asked to sign.” Furthermore, on April 7, 2017, Ms. L iggon submitted another letter to the Court, in the form of a motion, requesting the Court appoint counsel to represent Defendant. On May 12, 2017, Plaintiff filed a Response i n opposition of Ms. Liggon’s motion to appoint counsel and a cross-motion to strike Ms. L iggon’s motion to appoint

counsel. 6. On May 19, 2017, the Court held a hearing on Plaintif f’s motion to dismiss and compel arbitration, Ms. Liggon’s motion to appoint counsel, a nd Plaintiff’s cross-motion to strike Ms. Liggon’s motion to appoint counsel. At the concl usion of the hearing, the Court reserved decision, and ordered supplemental briefing. 7. In Delaware, only attorneys admitted to the Bar of the State of Delaware or attorneys admitted pro hac vice may appear before the Court on behalf of another individual. 1 Any attempt by a non-attorney to appear before the Court on behalf of another is considered the unauthorized practice of law. 2 The Delaware Supreme Court has held:

“The unauthorized practice of law is prohibited so that member s of the public will receive legal representation only from a person who has dem onstrated his or her competence to practice law by passing the bar examinati on, as well as the character and fitness examination, and who is subject to t he Delaware Lawyers' Rules of Professional Responsibility.” 3 8. In the instant matter, Ms. Liggon has filed a motion to appoint counsel on behalf of Defendant. Defendant claims Ms. Liggon performs a ll of his legal work because he does not understand legal proceedings. 4 Ms. Liggon is not a party to this litigation.

1 See In re Estep , 933 A.2d 763, 766 (Del. 2007). 2 See id

. 3 Id

. 4 Although Defendant claims he does not understand t hese legal proceedings, his assertion is not suppor ted by the record. Attached to Plaintiff’s supplementa l briefing are dockets from several cases filed by4

Moreover, Ms. Liggon is not an attorney admitted to the Bar of the State of Delaware—or to the Bar of any state for that matter. Therefore, when M s. Liggon filed a motion on behalf of Defendant, she was engaging in the unauthorized practice of law, and as such the motion is not properly before the Court. Accordingly, the motion to appoi nt counsel filed by Ms. Liggon is DENIED and Plaintiff’s cross-motion to strike is GRANTED

. 9. Plaintiff also brings a motion to dismiss and compel arbit ration, arguing the Court lacks subject matter jurisdiction over this disput e because the parties’ financing agreement contains a provision which provides for arbitration. Specifically, Plaintiff contends the language of the arbitration clause requires the arbitration of any disputes:

“arising out of or in any way related to this Contract, incl uding but not limited to, any default under this Contract . . . the purchase, sal e, delivery, set-up, [or] quality of the Vehicle . . . . “Dispute” shall have the broa dest meaning possible, and includes contract claims, and claims based on t ort, violations of laws, statutes, ordinances or regulations or any other lega l or equitable theories.

. . . Either [Defendant] or [Plaintiff] may require any Dispute to be arbitrated and may do so before or after a lawsuit has been started ove r the Dispute or with respect to other Disputes or counterclaims brought later in the lawsuit.” 5 10. Defendant opposes Plaintiff’s motion to dismiss and compel arbitration, arguing the Court should not enforce the agreement because h e did not read nor comprehend the arbitration provision. In support of his position, De fendant maintains he suffers from dyslexia and only has an eleventh (11th) g rade education. However, Defendant Defendant. The record shows that Defendant has pre viously filed actions in the Superior Court, U.S. Di strict Court of New Jersey, U.S. District Court of Delawar e, 3rd Circuit Court of Appeals, and U.S. Bankruptc y Court. Therefore, Defendant cannot maintain ignora nce of this Court’s proceedings, when he is able to litigate in courts with more complex rules of civil procedure. 5 Plaintiff’s Motion Ex. A at 5.5

concedes that he entered into the retail installment contract for the purchase of the vehicle without the assistance of Ms. Liggon—because he wanted to pur chase the vehicle on his

own. 11. A motion to dismiss based on an arbitration clause goes to the court's subject matter jurisdiction over the dispute and is properly revi ewed under Court of Common Pleas Civil

Rule 12(b)(1). 6 When considering such a motion, the Court may consider docu ments outside the complaint, including the arbitration agreement at is sue. 7 In Delaware, “courts lack subject matter jurisdiction to resolve disputes that litig ants have contractually agreed to

arbitrate.” 8 The arbitration clause in this matter is governed by the F ederal Arbitration Act (the “FAA”). 9 Section 2 of the FAA provides:

“A written provision in any maritime transaction or a contra ct evidencing a transaction involving commerce to settle by arbitration a c ontroversy thereafter arising out of such contract or transaction, or t he refusal to perform the whole or any part thereof, or an agreement in writing to s ubmit to arbitration an existing controversy arising out of such a contr act, transaction, or refusal, shall be valid, irrevocable, and enforceable, s ave upon such grounds as exist at law or in equity for the revocation of any cont ract.” 10 12. Both Federal and Delaware public policy favors resolution of disputes through arbitration. As such, the Court will grant a motion to dism iss for lack of subject matter jurisdiction when the dispute clearly falls within the arbit ration clause of the contract. 11 However, a party may waive their contractual right to ar bitrate by actively participating in a

6 See NAMA Holdings, LLC v. Related World Mkt. Ctr., LLC, 922 A.2d 417, 429 (Del. Ch. 2007). 7 See Acierno v. New Castle County, 2006 WL 1668370, at *1 n. 8 (Del. Ch. Jun. 8, 2006 ). 8 Id

. 9 See Plaintiff’s Motion Ex. A at 5. 10 9 U.S.C. § 2. 11 See NAMA Holdings, LLC , 922 A.2d at 429; Healy v. Silverhill Const. Co ., 2007 WL 2769799, at *1 (Del. Com. Pl. Sept. 19, 2007).6

lawsuit or by taking actions inconsistent with their right t o arbitrate. 12 This waiver is not lightly inferred, and “the party seeking to prove a waive r of arbitration must do so by clear and convincing evidence.” 13 When considering whether a party has waived its right to arbitrate, the Court must analyze three factors: (1) the amount of non-arbitration action a party takes in prosecuting or defending a claim; (2) whethe r the party stated that they will or will not be moving to enforce the arbitration provision; and (3) whether the nonmoving party would be prejudiced by an untimely demand for arbitrati on. 14 13. In the instant matter, the retail installment contract signed by Defendant contains an agreement to arbitrate. Although Defendant clai ms he did not read the arbitration provision, “a party to a contract cannot silently a ccept its benefits and then object to its perceived disadvantages, nor can a party's failure to read a contract justify its

avoidance.” 15 In reviewing this agreement, I find that Plaintiff’s c laim for breach of contract and Defendant’s counterclaim related to the quality of the vehicle clearly fall within the list of “disputes” the parties agreed to arbitrate. Therefore, the pivotal question the Court must

determine is whether Plaintiff’s actions in the course of thi s litigation evidence a clear intent

to waive arbitration. 14. Plaintiff filed the instant action on November 22, 2016 . On December 30, 2016, Defendant filed an answer to the complaint, as well a s a counterclaim related to the quality of the vehicle. After Defendant raised a counte rclaim, Plaintiff moved to pursue arbitration and filed the instant motion on January 24, 2017. The record does not show that

12 Healy, 2007 WL 2769799, at *1. 13 Id

. 14 Healy, 2007 WL 2769799, at *2. 15 Graham v. State Farm Mut. Auto. Ins. Co ., 565 A.2d 908, 913 (Del. 1989).7

the parties engaged in extensive litigation or discovery. Further, Defendant has not shown how he would be prejudiced by Plaintiff’s demand for arbitra tion. Therefore, I find that Plaintiff has not waived its right to arbitration. Becau se I find that a valid arbitration agreement exists between the parties and the parties’ claim s fall within the scope of the agreement, Plaintiff’s motion to dismiss and compel arbitrat ion is hereby GRANTED . This matter is dismissed and will proceed to arbitration.

IT IS SO ORDERED

.

____________________________ Alex J. Smalls Chief Judge