IN THE SUPREME COURT OF MISSISSIPPI

NO. 2002-IA-00952-SCT

McKENZIE CHECK ADVANCE OF MISSISSIPPI, LLC

d/b/a NATIONAL CASH ADVANCE, CASH ADVANCE

CENTERS, INC., AND SHARON RUSSELL

v.

CENNIE M. HARDY, ANDREA JAMES, DOROTHY W.

HARKLESS, JOHN W. BUXTON, CINDERELLA

ROBINSON, TRACY ADAMS, RAYMOND E. NELSON,

STEPHEN MOORE, GRADIE COLLEY, TOMMEAKKA

COLLEY, ANTHONY O. DAVIS AND DEBRA A. DAVIS

CONSOLIDATED WITH

NO. 2002-IA-00953-SCT

ADVANCE AMERICA, CASH ADVANCE CENTERS

OF MISSISSIPPI, INC. AND JERALD PARRISH

v.

LILLIAN D. TURNER

CONSOLIDATED WITH

NO. 2002-IA-00954-SCT

ADVANCE AMERICA, CASH ADVANCE CENTERS

OF MISSISSIPPI, INC. AND JERALD PARRISH

v.

GEORGIA PIERCE, JEARLEAN WILSON AND

JANET EVANS

CONSOLIDATED WITH

NO. 2002-IA-00956-SCT
2

ADVANCE AMERICA, CASH ADVANCE CENTER OF

MISSISSIPPI, INC. AND JERALD PARRISH

v.

ANDREA JAMES, JAMES E. DIXON, EDWARD

DIXON, KOKEISHA D. JOHNSON, SHERRY ANN

BOWIE, CENNIE M. HARDY, DARLEAN M. MILSAP

AND SHEMEKA LOFTON

DATE OF JUDGMENT: 05/30/2002

TRIAL JUDGE: HON. ROBERT G. EVANS

COURT FROM WHICH APPEALED: JASPER COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: RICHARD O. BURSON

RICHARD A. FOLLIS

ROBERT M. BUELL

CHARLES K. SEYFARTH

ATTORNEYS FOR APPELLEES: EDDIE JACOB ABDEEN

THOMAS LEWIS TULLOS

JEANNENE T. PACIFIC

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: REVERSED AND REMANDED - 02/26/2004

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE PITTMAN, C.J., WALLER, P.J., AND CARLSON, J.

CARLSON, JUSTICE, FOR THE COURT:

¶1. McKenzie Check Advance of Mississippi, LLC, d/b/a National Cash Advance ("NCA") and

Advance America, Cash Advance Centers of Mississippi, LLC ("Advance America") were denied their

motion to compel arbitration against current and former customers (hereinafter "Customer") . Pursuant to

M.R.A.P. 5, we granted NCA and Advance America permission to seek interlocutory review in these four

consolidated appeals of the rulings of the circuit court based on their assertions of abuse of discretion in

the trial court's failure to apply the Federal Arbitration Act ("FAA") and refusal to enforce the arbitration

agreements. Finding the trial court erred in denying the motions to compel arbitration, this Court reverses
3

the judgments entered by the Circuit Court of Jasper County and remands this case for further proceedings

consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. NCA and Advance America are licensed check cashers which engage in delayed deposit check

cashing pursuant to the Mississippi Check Cashers Act, Miss. Code Ann. §§ 75-67-501 et seq. (Rev.

2000). NCA and Advance America accepted personal checks from their customers for amounts not

greater than $400 plus a fee which may not exceed 18% of the face amount of the check. See Miss. Code

Ann. § 75-67-519(2) & (4). This fee charged by a licensed check casher for cashing a check is deemed

by law to be a service fee rather than interest. See id. § 75-67-515(4). The following scenario is indicative

of a typical transaction between NCA or Advance America and its customer. On the day the check is

written, NCA or Advance America gives the customer cash equal to the face value of the check less the

fee authorized by statute. NCA and Advance America then agree to delay deposit of the check until an

agreed future date which is usually the customer's next payday. See id. § 75-67-519(1). The customer

then agrees to repurchase the check by paying the face amount of the check in cash on or before the

deposit date; otherwise, NCA or Advance America will present the check for deposit to the customer's

bank. 

¶3. Each of the Customers in this case contracted with either NCA or Advance America for delayed

deposit check cashing services as described above. In conjunction with their transactions, each Customer

also entered into an arbitration agreement with either NCA or Advance America. The arbitration agreement

provided that all disputes between the Customer and NCA or Advance America would be resolved by

binding arbitration under the Federal Arbitration Act, except those disputes that were within the jurisdiction

of a small claims tribunal; however, both the Customer and NCA or Advance America were mutually
1The plaintiffs referred to the defendants’ practices as “payday lending.” In the plaintiffs’ brief, we

find the following allegations:

The way that payday lending works is as follows: if a customer wants to

borrow $100.00 they (sic) write a check for $118.00 to the payday

lender who gives them (sic) $100.00 in cash. In 14 days the customer

returns and pays the face amount of the check to the lender. The lender

accepts the cash for the old loan, but immediately renews the first loan

with new loan money. In essence what happens is if the customer can’t

afford to repay the entire amount they (sic) renew the loan for an

additional 14 days, by paying another $18.00 fee to extend the

loan.....Regardless of the fact that payday lenders characterize these

subsequent transactions as new loans, the effect is still the same. The

customer makes repeated payments of 18% interest every two weeks on

these loans but never decreases the underlying principal. The end result is

4

obligated to arbitrate all other disputes between them, and all parties waived their rights to trial by jury in

any dispute. Regardless of which party demanded or initiated arbitration, NCA and Advance America

agreed to advance the Customer's portion of the expenses associated with initiating arbitration, including

the filing and hearing fees. The Customer also had the right to select the arbitrator, and the arbitration was

required to be held in a venue which was convenient to the Customer.

¶4. The arbitration agreement was conspicuously presented and was written in plain English. The rights

that both parties agreed to waive by signing the arbitration agreement were printed in all capital letters and

bold typeface to highlight them from the rest of the text. Both parties signed the Customer Agreement

directly under a highlighted acknowledgment that drew attention to the fact that the Customer Agreement

contained and included a "Waiver of Jury Trial and Arbitration Agreement."

¶5. On February 19, 2002, a complaint was filed collectively by former and current customers of both

NCA and Advance America alleging that each subsequent transaction with NCA and Advance America

was a renewal or extension of the first transaction allowing NCA and Advance America to charge an

additional fee.1 In conjunction with these transactions, each Customer entered into an arbitration agreement
that by renewing the first loan for another two weeks the customer pays

$36.00 instead of $18.00 for the same $100.00 they (sic) borrowed

initially.

5

with either NCA or Advance America. NCA and Advance America filed a motion to compel arbitration

which was denied by the circuit court, finding that "(1) the FAA does not apply to the arbitration

agreements, (2) the arbitration agreements lack mutuality of obligation, (3) the rationale of the concurring

opinion of Justice Diaz in Parkerson v. Smith, 817 So. 2d 529 (Miss. 2002), is applicable to the

arbitration agreements, and (4) Customers did not knowingly and voluntarily waive the constitutional right

to a jury trial." The trial judge also denied NCA and Advance America's ore tenus motion to certify the

matter for interlocutory appeal. NCA and Advance America timely petitioned this Court for permission to

appeal from the circuit court's interlocutory order pursuant to M.R.A.P. 5, and this Court granted the

petition. In this appeal, NCA and Advance America raise the following issue before this Court: Whether

the circuit court erred in declining to apply the Federal Arbitration Act and in refusing to enforce the

arbitration agreements between the Customers and National Cash Advance and Advance America.

DISCUSSION

A. Applicability of the Federal Arbitration Act

¶6. The grant or denial of a motion to compel arbitration is reviewed de novo. East Ford, Inc. v.

Taylor, 826 So.2d 709, 713 (Miss. 2002) (citing Webb v. Investacorp, Inc., 89 F.3d 252, 256 (5th

Cir. 1996)). The Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., applies to all written agreements to

arbitrate contained in any contract "evidencing a transaction involving commerce." 9 U.S.C. § 2. Whenever

a valid arbitration agreement exists between parties to an action, a court must "stay trial of the action until

arbitration has been had in accordance with the terms of the parties' agreement." 9 U.S.C. § 3. 
6

¶7. Courts have long recognized the existence of "a liberal federal policy favoring arbitration

agreements."Perry v. Thomas, 482 U.S. 483, 489, 107 S.Ct. 2520, 2525, 96 L.Ed.2d 426 (1987)

(quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927,

941, 74 L.Ed.2d 765 (1983)). "In enacting § 2 of the federal Act, Congress declared a national policy

favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of

claims which the contracting parties agreed to resolve by arbitration." Southland Corp. v. Keating, 465

U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d 1 (1984). Unless the agreement to arbitrate is not part of a

contract evidencing interstate commerce or is revocable "upon such grounds as exist at law or in equity for

the revocation of any contract," arbitration is required. 9 U.S.C. § 2. At the same time, "arbitration is a

matter of contract between the relevant parties; no party can be required to arbitrate absent an agreement

to do so." Rosenblum v. Travelbyus.com, Ltd., 299 F.3d 657, 662 (7th Cir. 2002) (citing First

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)).

¶8. The circuit court declined to apply the FAA to the arbitration agreements in this case because it

found that the arbitration agreements were not contained in a written contract "evidencing a transaction

involving commerce." NCA and Advance America contend the FAA applies to the arbitration agreement

because their transactions involved interstate commerce as evidenced by the agreements which stated:

"Our agreement to arbitrate is made pursuant to the FAA, because the transaction evidenced by this

Agreement involves interstate commerce." The Customers argue NCA and Advance America failed to

offer any evidence establishing the transactions involved interstate commerce. The Customers were

residents of Mississippi and the offices in which the transactions took place were located in Mississippi.

However, NCA and Advance America were both foreign corporations.
7

¶9. InAllied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753

(1995), the Supreme Court held that Section 2 of the Federal Arbitration Act, which makes enforceable

a written arbitration provision in "a contract evidencing a transaction involving commerce," 9 U.S.C. § 2,

"should be read broadly to extend the Act's reach to the limits of Congress' Commerce Clause Power."

Allied-Bruce, 513 U.S. at 265. 

¶10. The pertinent facts in Allied-Bruce follow: In 1987 Steven Gwin purchased a "Termite Protection

Plan" from a local office of Allied-Bruce Terminix Companies which promised to protect his home against

termites and provide treatment if necessary. Id. at 268. The Plan contained a clause which stated any claim

shall be settled by arbitration. In 1991 the Gwins sold their home and transferred the Termite Plan to the

Dobsons. The Dobsons soon found their new house infested with termites. Id. After Allied-Bruce

attempted to treat and repair the Dobsons' home, the Dobsons sued the Gwins and Allied-Bruce in an

Alabama state court. Id. at 269. Pursuant to the arbitration clause and Section 2 of the FAA, Allied-Bruce

filed a motion to stay to allow arbitration to proceed. The trial court denied the stay, and Allied-Bruce

appealed.

¶11. The Supreme Court of Alabama upheld the denial of the stay finding a state statute made "written,

predispute arbitration agreements invalid and 'unenforceable.'" Id. (citing Allied-Bruce Terminix Cos.

v. Dobson, 628 So. 2d 354, 355 (Ala. 1993)). The Alabama Supreme Court held that the FAA did not

apply because "the connection between the termite contract and interstate commerce was too slight."

Allied-Bruce, 513 U.S. at 269. The Alabama Supreme Court also held that the parties must contemplate

substantial interstate activity. Id.
8

¶12. After examining Section 2 of the FAA, the United States Supreme Court reversed the Alabama

Supreme Court finding that "the word 'involving' [as it pertains to interstate commerce] is broad and is

indeed the functional equivalent of 'affecting.'" Id. at 273-74. 

[Section] 2 gives States a method for protecting consumers against unfair pressure to agree

to a contract with an unwanted arbitration provision. States may regulate contracts,

including arbitration clauses, under general contract law principles and they may invalidate

an arbitration clause "upon such grounds as exist at law or in equity for the revocation of

any contract." 9 U.S.C. § 2 (emphasis added). What States may not do is decide that a

contract is fair enough to enforce all its basic terms (price, service, credit), but not fair

enough to enforce its arbitration clause. The Act makes any such state policy unlawful, for

that kind of policy would place arbitration clauses on an unequal "footing," directly contrary

to the Act's language and Congress' intent. See Volt Information Sciences, Inc. v.

[Board of Trustees of Leland Stanford Junior University], 489 U.S. [468], 474,

109 S.Ct., [1248], 1253, [103 L.Ed.2d 488 (1989)].

For these reasons, we accept the "commerce in fact" interpretation, reading the Act's

language as insisting that the "transaction" in fact "involv [e]" interstate commerce, even if

the parties did not contemplate an interstate commerce connection.

Allied-Bruce, 513 U.S. at 281. The Supreme Court remanded the case for further proceedings

consistent with its opinion. Id.

¶13. In First Family Financial Services, Inc. v. Fairley, 173 F. Supp. 2d 565 (S.D. Miss.

2001), the district court applied the FAA and enforced an arbitration agreement between a foreign lender

and a borrower, who was a citizen of Mississippi and had entered into a loan contract with the lender in

Mississippi. 

The arbitration agreement signed by the parties is concomitant to the financing transaction

entered into by First Family and the Defendant. . . . The financing transaction, itself, must

comply with federal laws and regulations including the Truth-in-Lending Act (promulgated

by Congress under its Commerce Clause powers). The Court therefore finds that a nexus

exists between the arbitration agreement in this case and interstate commerce.

Id. at 573. Therefore, the district court granted the motion to compel arbitration. Id.
9

¶14. InRussell v. Performance Toyota, Inc., 826 So. 2d 719, 722 (Miss. 2002), this Court found

that the FAA did apply to the arbitration agreement because "Performance Toyota is a Tennessee

corporation with its principal place of business in Memphis, Tennessee, and Russell is an adult resident

citizen of Lee County, Mississippi," and therefore, the "matter 'evidences a transaction in interstate

commerce.'"

¶15. Both the United States Supreme Court, other federal courts and this Court have recognized the

strong federal policy favoring arbitration. In the case sub judice, the borrower and lender are citizens of

different states. Even though it is not required that the parties to the transaction contemplate an interstate

transaction, the Customers and NCA and Advance America expressly agreed that the FAA would apply

to their transactions.

¶16. Because the transactions did involve interstate commerce and because the parties agreed their

arbitration agreement would be governed by the FAA, we find that the circuit court erred by failing to

apply the FAA to that arbitration agreement. 

B. Mutuality of Obligation

¶17. The circuit court held that the arbitration agreements were unenforceable contracts under

Mississippi law because they lacked mutuality of obligation. NCA and Advance America argue that

although consideration is essential to the formation of a valid contract under Mississippi Law, mutuality of

obligation is not. However, NCA and Advance America contend that the arbitration agreements in this case

are supported by mutual promises which constitute consideration. The Customers argue the trial court

properly found the arbitration provisions in the agreements were unenforceable due to a lack of mutuality

of obligation. The Customers contend mutuality of obligation is a prerequisite to the formation of a valid

bilateral contract under Mississippi law.
10

¶18. Here, both parties promised to arbitrate all disputes between them that were not within the

jurisdiction of a small claims tribunal. Both parties agreed to waive their right to a jury trial or to file suit in

circuit court. Both parties had the option of litigating claims that were within the jurisdiction of the small

claims tribunal. Neither NCA nor Advance America had any greater right or privilege to go to court or to

pursue judicial remedies than did the Customers. The Customers enjoyed greater rights because they could

demand that NCA or Advance America advance the costs of the arbitration for both parties. The

Customers also had the right to select the arbitrator and control where the arbitration would be held.

¶19. In Prigden v. Green Tree Financial Servicing Corp., 88 F. Supp. 2d 655 (S.D. Miss.

2000), Stacey Prigden financed the purchase of a mobile home and her installment contract was later

assigned to Green Tree. Prigden defaulted on her payments, and Green Tree began efforts to collect the

money due. Id. at 656. Prigden filed suit against Green Tree alleging Green Tree had harassed and

threatened her causing her embarrassment and humiliation. Green Tree moved to dismiss the suit and also

to compel arbitration pursuant to the clause in the installment contract. Id.

¶20. Pursuant to the arbitration agreement, the district court found:

Green Tree, the "Assignee," reserved its right to seek judicial remedies on certain types of

actions. At the same time, Green Tree preserved the right to compel arbitration as to any

other claim, including any counterclaim that Plaintiff may assert in any judicial action

instituted by Green Tree. Therefore, Green Tree generally had an option of whether to sue

in court, especially with certain types of claims, or to submit a claim to arbitration. Plaintiff,

meanwhile, is bound to arbitration on any claim she may bring on the contract. This is

clearly one-sided.

Id. at 658. However, the district court further found that mutuality of obligation is not required under

Mississippi law for a contract to be enforceable, as long as the underlying contract was supported by

consideration. Id. at 659 (citing Clinton Serv. Co. v. Thornton, 233 Miss. 1, 100 So.2d 863, 866

(1958)). "Therefore, the arbitration clause is not unenforceable solely because it is one-sided." Id. In light
11

of the strong federal policy favoring arbitration, the district court held that the arbitration clause was not

unconscionable. Id.

¶21. In First Family, the district court found the defendant's argument regarding the illusory nature

of the arbitration agreement without merit. 173 F. Supp. 2d at 572. The defendant argued that the

arbitration agreement was one-sided and unsupported by consideration. Id. However, the district court,

following the holding in Prigden, held that "'mutuality of obligation is not required for a contract to be

enforceable,' and an 'arbitration clause is not unenforceable solely because it is one-sided.'" Id. (citing

Prigden, 88 F. Supp. 2d 655, 659). The district court found that the arbitration agreement stated "In

consideration of the mutual promises made in this agreement...." Therefore, the defendant was unable to

establish the illusory nature of the agreement. Id. The district court granted the motion to compel

arbitration. 

¶22. InMurphy v. AmSouth Bank, 269 F. Supp. 2d 749 (S.D. Miss. 2003), the district court again

held:

Regarding the mutuality issue, plaintiffs argue because the arbitration agreement mandates

arbitration of any claim they might choose to assert, while reserving unto AmSouth the right

to utilize the remedies of foreclosure, selfhelp repossession and replevin in a court, the

agreement lacks mutuality of obligation and is for that reason unconscionable and

unenforceable. This court has previously rejected this identical argument. See First

Family Financial Services, Inc. v. Fairley, 173 F.Supp.2d 565, 572 (S.D.Miss.

2001) (holding that " 'mutuality of obligation is not required for a contract to be

enforceable,' and an 'arbitration clause is not unenforceable solely because it is one-sided.'

") (quoting Pridgen v. Green Tree Financial Servicing Corp., 88 F.Supp.2d 655,

659 (S.D.Miss. 2000)); see also Raesly v. Grand Housing, Inc., 105 F.Supp.2d

562, 570 (S.D.Miss. 2000) (same).

Murphy, 269 F. Supp. 2d at 752.
12

¶23. Pursuant to Mississippi law, mutuality of obligation is not required for an arbitration agreement to

be enforceable as long as there is consideration. Therefore, we find that the circuit court erred in finding

that the arbitration agreements were unenforceable for lack of mutuality of obligation. 

C. Parkerson v. Smith

¶24. In denying the motion to compel arbitration, the trial court relied upon Justice Diaz's concurring

opinion in Parkerson v. Smith, 817 So. 2d 529 (Miss. 2002). In Parkerson, this Court held that the

Magnuson-Moss Warranty Act superceded the FAA and prohibited the enforcement of otherwise binding

arbitration agreements contained in warranty contracts which were subject to the MMWA. However, the

plurality opinion did not address the issues of whether the arbitration clause was unconscionable or whether

the clause impermissibly waived Parkerson's right to a jury trial. 

¶25. In a concurring opinion, Justice Diaz discussed why he believed the arbitration agreement was

unconscionable.Id. at 535-37. The arbitration provision required Parkerson to pay the attorney's fees and

costs if she lost in arbitration. Id. at 536. Here, there is no such stipulation found in the arbitration clause.

NCA and Advance America agreed to advance the cost of arbitration to the Customers, but the Customers

were not required to reimburse NCA or Advance America if they did not prevail.

¶26. Justice Diaz next cited a case dealing with an indemnity clause, not an arbitration clause, to find that

"the defendants must show that 'the provision was reasonably related to the business risks of the parties.'"

Id. (quoting Entergy Miss. Inc. v. Burdette Gin Co., 726 So.2d 1202, 1207-08 (Miss. 1998))

(quoting Bank of Indiana, Nat'l Ass'n v. Holyfield, 476 F. Supp. 104, 109 (S.D. Miss. 1979)). In

East Ford, Inc. v. Taylor, this Court held:

While Burdette concluded that an indemnity clause within a contract of adhesion is

presumptively unconscionable, the same is not true for arbitration clauses. Burdette
2

In fact, the Parkerson opinion came from a heavily divided court. McRae, P.J., for the Court,

Diaz, Easley and Graves, JJ., concurred. Carlson, J., concurred in result only. Diaz, J., concurred with

separate written opinion joined by McRae, P.J., Easley and Graves, JJ. Cobb, J., dissented with separate

written opinion. Pittman, C.J., concurred in part and dissented in part with separate written opinion joined

by Waller, J. Cobb and Carlson, JJ., joined in part. Smith, P.J., did not participate.

13

involved an agreement to indemnify, which essentially allows a party to contract away or

escape liability. Arbitration agreements merely submit the question of liability to another

forum--generally speaking, they do not waive liability. Furthermore, Congress has

expressed no federal interest in enforcing indemnification agreements as it has in

guaranteeing the enforcement of valid arbitration agreements. See Federal Arbitration Act,

9 U.S.C. §§ 1 et seq. As noted, "questions of arbitrability must be addressed with a

healthy regard for the federal policy favoring arbitration," with any doubt concerning the

scope of the agreement resolved in favor of arbitration. Bank One, [N.A. v. Coates, 125

F.Supp.2d 819,] 827 [(S.D.Miss. 2001)] (quoting Moses H. Cone Mem'l Hosp. v.

Mercury Constr. Co., 460 U.S. 1, 24-25, 103 S.Ct. 927).

East Ford, 826 So.2d at 716.

¶27. Again, Justice Diaz's concurring opinion was not the holding of this Court.2 Regardless, the facts

of the case sub judice are clearly distinguishable from Parkerson. Therefore, this Court finds that the

circuit court erred in relying on the concurring opinion in Parkerson when it denied NCA and Advance

America's motion to compel arbitration. 

D. Knowing, Intelligent and Voluntary Waiver of Jury Trial

¶28. The trial court, again following Justice Diaz's concurring opinion in Parkerson, found that the

Customers did not knowingly, intelligently and voluntarily waive their constitutional rights to a jury trial.

¶29. In First Family, the district court stated that Angela Fairley, the defendant, must prove

procedural unconscionability by showing "a lack of knowledge, lack of voluntariness, inconspicuous print,

the use of complex legalistic language, disparity in sophistication or bargaining power of the parties and/or

a lack of opportunity to study the contract and inquire about the contract terms." 173 F. Supp. 2d at 570

(quotingNauru Phosphate Royalties, Inc. v. Drago Daic Interests Inc., 138 F.3d 160, 165 (5th
14

Cir. 1998)). Fairley argued the arbitration agreement was procedurally unconscionable because she did

not "voluntarily enter into it, did not have a chance to read it, was not given a chance to negotiate its terms,

and because the agreement used complex legal terms that [she] could not understand." However, the

district court, finding that the agreement was written in simple and plain English, held there was no

procedural unconscionability in the arbitration agreement. Id.

¶30. "It is well settled under Mississippi law that a contracting party is under a legal obligation to read

a contract before signing it." Id. See Godfrey, Bassett & Kuykendall Architects, Ltd. v.

Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss. 1991). See also Koenig v.

Calcote, 199 Miss. 435, 25 So.2d 763 (1946); McCubbins v. Morgan, 199 Miss. 153, 23 So.2d 926

(1945). In addressing the constitutional right to a jury trial, the court in Bank One, N.A. v. Coates, 125

F. Supp. 2d 819, 834 (S.D. Miss. 2001), aff'd mem., 34 Fed. Appx. 964 (5th Cir. 2002), stated that

the Constitution does not "confer the right to a trial, but only the right to have a jury hear the case once it

is determined that the litigation should proceed before a court. If the claims are properly before an arbitral

forum pursuant to an arbitration agreement, the jury trial right vanishes."

¶31. In the case sub judice, the Customers do not allege that they are illiterate that NCA or Advance

America failed to give them an opportunity to read the arbitration agreement or prevented them from doing

so in any way. Had they read the arbitration agreement, as the law presumes that they did, they would have

easily understood the language of the agreement, and their attention would have been particularly drawn

to the rights that they were agreeing to waive by signing the agreement, which were printed in larger capital

letters and in bold typeface to highlight them from the rest of the text. 
15

¶32. Therefore, the circuit court erred in finding the Customers did not knowingly, intelligently and

voluntarily waive their constitutional right to a jury trial when they signed the arbitration agreement with

NCA and Advance America.

CONCLUSION

¶33. The circuit court erred in denying NCA and Advance America's motion to compel arbitration.

Because the transaction involved interstate commerce and because both parties agreed the arbitration

agreement would be governed by the FAA, the Federal Arbitration Act is applicable to the agreement

between the parties. Pursuant to Mississippi law, mutuality of obligation is not required for an arbitration

agreement to be enforceable as long as there is consideration. Also there was no evidence presented that

the Customers did not knowingly, intelligently and voluntarily waive their constitutional right to a jury trial

when they signed the arbitration agreement with NCA and Advance America. Therefore, the judgments

of the Circuit Court of Jasper County are reversed, and these cases are remanded for the trial court to grant

the motions to compel arbitration.

¶34. REVERSED AND REMANDED.

PITTMAN, C.J., SMITH AND WALLER, P.JJ., COBB AND DICKINSON, JJ.,

CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN

OPINION. DIAZ, J., NOT PARTICIPATING.