BankAmerica Housing Services v. Lee

833 So.2d 609

BANKAMERICA HOUSING SERVICES, a DIVISION OF BANK OF AMERICA, FSB v. Robert LEE.

GreenPoint Credit, LLC, f/k/a GreenPoint Credit Corp. v. Letha Witherspoon.

GreenPoint Credit, LLC, f/k/a GreenPoint Credit Corp. v. LaSonya Dudley.

GreenPoint Credit, LLC, f/k/a GreenPoint Credit Corp. v. Antoine Parnell.

GreenPoint Credit, LLC, f/k/a GreenPoint Credit Corp. v. Bernice King.

1004.

Supreme Court of Alabama.

April 26, 2002.

George M. Ritchey, Gregory S. Ritchey, and Richard S. Walker of Ritchey & Ritchey, P.A., Birmingham, for appellants.

Garve Ivey, Jr., of Ivey & Ragsdale, Jasper, for appellees.

HARWOOD, Justice.

I. Introduction

Robert Lee (case no. 1010324), Letha Witherspoon (case no. 1010325), LaSonya Dudley (case no. 1010326), Antoine Parnell (case no. 1010327), and Bernice King (case no. 1010504) are the plaintiffs in these cases.¹ (For ease of reference, each case will hereinafter be referred to by the respective plaintiff's name, e.g., "the Lee case," "the Witherspoon case," etc.) In each case, the respective plaintiff purchased a manufactured home or a mobile home from a seller, and the transaction was financed by either GreenPoint Credit, LLC² (hereinafter referred to as "GreenPoint") (the Witherspoon case, the Dudley case, the Parnell case, and the King case), or by BankAmerica Housing Services, a division of Bank of America, FSB (hereinafter referred to as "BankAmerica") (the Lee case) ("GreenPoint" and "BankAmerica" are hereinafter jointly sometimes referred to as "the defendants"). In each transaction, the plaintiff became dissatisfied with the home he or she had purchased and sued the seller, the manufacturer, and the financing company, either GreenPoint or BankAmerica. In his or her complaint, each plaintiff asserted numerous claims, including fraud and breach of fiduciary duty. In each of the underlying transactions, the installment sales contract signed by the plaintiff contained an arbitration agreement. In each of these cases, the defendant financing company, either GreenPoint or BankAmerica, moved to compel arbitration. With the exception of Witherspoon, each plaintiff eventually consented to arbitrate their claims.

In each case, the trial court entered an order compelling arbitration. The defendants now appeal, complaining about certain aspects of those orders, arguing that in each case the order compelling arbitration was improper because it impermissibly deviated from the terms of the applicable arbitration provision by changing the contractually prescribed method of selecting the arbitrator and conducting the arbitration.

II. Procedural History

As a foundation for our legal analysis, we set forth the pertinent procedural sequence of events in each case. In the Lee case, the order to compel arbitration was entered on October 18, 2001. The order stated, in pertinent part:

"THIS CAUSE, having come before the Court upon Defendants' various Motions to Compel Binding Arbitration, and the Plaintiff having consented to arbitration, it is

"ORDERED, ADJUDGED, and DECREED that said motions are due to be granted, as follows, viz:

"1. All claims of the Plaintiff against the Defendants shall be submitted to arbitration;

"2. The Attorneys for the parties are ORDERED to provide to the Court within fourteen (14) days of the date of this Order, the name of the arbitrator selected by the parties. Failure to do so shall result in the Court selecting the arbitrator;

"3. All parties shall participate in immediate binding arbitration, and said arbitration shall be concluded within 90 days;

"4. The fees and expenses of the Arbitration shall be paid equally by the Defendants and in the manner required by the Arbitrator;

"5. The parties are hereby ORDERED to notify the Court within ten (10) days from the conclusion of arbitration as to the outcome of the same;

"6. All other matters concerning these proceedings are stayed, and this case shall be transferred to the Administrative Docket pending conclusion of the arbitration process."

On November 2, 2001, BankAmerica filed a notice of appeal.

In the Witherspoon case, the initial order to compel arbitration was entered on July 17, 2001. That order stated:

"THIS CAUSE, having come before the Court upon Defendants' various Motions to Compel Binding Arbitration, and the same having been considered by the Court, it is

"ORDERED, ADJUDGED, and DECREED that said motions are due to be granted and all claims of the Plaintiff against the Defendants shall be submitted to arbitration. All parties shall participate in immediate binding arbitration, and said arbitration shall be concluded within 90 days.

"The fees and expenses of the Arbitration shall be paid by the Defendants and in the manner required by the Arbitrator;

"The parties are hereby ORDERED to notify the Court within ten (10) days from the conclusion of arbitration as to the outcome of the same;

"All other matters concerning these proceedings are stayed, and this case shall be transferred to the Administrative Docket pending conclusion of the arbitration process."

GreenPoint filed a motion to alter, amend, or vacate the order, and Witherspoon filed a motion to extend time. In response, the trial court issued a second order compelling arbitration; that order is the one at issue in this appeal. The trial court's second order, entered on October 23, 2001, differed from the original order by extending the time for arbitration to be completed by another 90 days, and by adding the following clause:

"The Attorneys for the parties are ORDERED to provide to the Court within fourteen (14) days of the date of this Order, the name of the arbitrator selected by the parties. Failure to do so shall result in the Court selecting the arbitrator."

On November 2, 2001, GreenPoint filed a notice of appeal from this second order.

In the Dudley case, the order compelling arbitration was entered on October 23, 2001, and provided, in pertinent part:

"THIS CAUSE, having come before the Court upon Defendants' various Motions to Compel Binding Arbitration, and the Plaintiff having consented to arbitration, it is

"ORDERED, ADJUDGED, and DECREED that said motions are due to be granted, as follows, viz:

"1. All claims of the Plaintiff against Defendants shall be submitted to arbitration;

"2. The Attorneys for the parties are ORDERED to provide to the Court within thirty (30) days of the date of this Order, the name of the arbitrator selected by the parties. Failure to do so shall result in the Court selecting the arbitrator;

"3. All parties shall participate in immediate binding arbitration, and said arbitration shall be concluded within 120 days;

"4. The fees and expenses of the Arbitration shall be paid equally by the Defendants and in the manner required by the Arbitrator;

"5. The parties are hereby ORDERED to notify the Court within ten (10) days from the conclusion of arbitration as to the outcome of the same;

"6. All other matters concerning these proceedings are stayed, and this case shall be transferred to the Administrative Docket pending conclusion of the arbitration process."

On November 2, 2001, GreenPoint filed a notice of appeal.

In the Parnell case, the order compelling the parties to arbitration was entered on September 7, 2001. That order stated in pertinent part:

"THIS CAUSE, having come before the Court upon Defendants' various Motions to Compel Binding Arbitration, and the same having been considered by the Court, it is

"ORDERED, ADJUDGED, and DECREED that said motions are due to be granted and all claims of the Plaintiff against the Defendants shall be submitted to arbitration. All parties shall participate in immediate binding arbitration, and said arbitration shall be concluded within 90 days.

"The parties are hereby ORDERED to notify the Court within ten (10) days from the conclusion of arbitration as to the outcome of the same.

"All other matters concerning these proceedings are stayed, and this case shall be transferred to the Administrative Docket pending conclusion of the arbitration process."

The trial court entered a second order on October 23, 2001, which stated that the parties had appeared before the trial court and had requested an extension of time within which to arbitrate. The second order stated in pertinent part:

"[I]t is ORDERED, ADJUDGED, and DECREED that the parties are granted 120 days within which to arbitrate this matter.

"It is FURTHER ORDERED, the Attorneys for the parties are ORDERED to provide to the Court within thirty (30) days of the date of this Order, the name of the arbitrator selected by the parties. Failure to do so shall result in the Court selecting the arbitrator."

On November 2, 2001, GreenPoint filed a notice of appeal from this order.

In the King case, the first order compelling arbitration was entered on October 12, 2001. This order stated in pertinent part:

"THIS CAUSE, having come before the Court upon Defendants' various Motions to Compel Binding Arbitration, and the Plaintiff having consented to arbitration, it is

"ORDERED, ADJUDGED, and DECREED that said motions are due to be granted, as follows, viz:

"1. All claims of the Plaintiff against Defendants shall be submitted to arbitration;

"2. The Attorneys for the parties are ORDERED to provide to the Court within fourteen (14) days of the date of this Order, the name of the arbitrator selected by the parties. Failure to do so shall result in the Court selecting the arbitrator;

"3. All parties shall participate in immediate binding arbitration, and said arbitration shall be concluded within 90 days;

"4. The fees and expenses of the Arbitration shall be paid equally by the Defendants and in the manner required by the Arbitrator;

"5. The parties are hereby ORDERED to notify the Court within ten (10) days from the conclusion of arbitration as to the outcome of the same;

"6. All other matters concerning these proceedings are stayed, and this case shall be transferred to the Administrative Docket

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