Deer Auto. Grp., LLC v. Brown

454 Md. 52

163 A.3d 176

DEER AUTOMOTIVE GROUP, LLC t/a Liberty Ford

v.Barbara BROWN et al.

No. 62, Sept. Term, 2016

Court of Appeals of Maryland.

June 27, 2017

Argued by Steven R. Freeman (Lee B. Rauch and Brett R. Myerson, Freeman Rauch LLC, Towson, MD), on brief, for Appellant

Argued by Martin E. Wolf (Richard S. Gordon, Benjamin H. Carney and Mark H. Steinbach (of counsel), Gordon, Wolf & Carney Chtd., Towson, MD), on brief, for Appellees

Argued before: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

Greene, J.Appellant¹ , Deer Automotive Group, LLC t/a Liberty Ford ("Liberty Ford" or "Appellant") is a Maryland limited liability company, which operates a new and used automobile dealership in Baltimore County. Appellees, Barbara Brown and Herbert E. Spencer, Jr., ("Brown and Spencer", or collectively "Appellees") are individuals who each purchased vehicles from Appellant's dealership. On March 13, 2015, Brown and Spencer filed a class action lawsuit (the "Class Action") in the Circuit Court for Baltimore County against Liberty Ford, in which they challenged Liberty Ford's practice of providing customers with an alleged free lifetime Limited Warranty for their vehicles. The alleged free warranty was conditioned on the consumer's continued use of and payment for other services provided by Liberty Ford, which, Appellees aver, is an arrangement that violates federal law.

In lieu of filing a motion to compel arbitration in the Class Action matter, Liberty Ford commenced an independent action in the same court on April 27, 2015 ("the Arbitration Action") seeking to compel arbitration in the existing Class Action case. The Circuit Court ruled that Brown and Spencer's claims in the Class Action were not subject to binding arbitration. Liberty Ford appealed. In the Court of Special Appeals, Brown and Spencer filed a motion to dismiss the appeal arguing that the Circuit Court's order denying arbitration was not an appealable final judgment. The Court of Special Appeals denied the motion, and Brown and Spencer petitioned this Court for review.

FACTUAL AND PROCEDURAL BACKGROUND

On or about July 6, 2007, Appellee Brown purchased a used 2002 Hyundai Santa Fe from Liberty Ford. Ms. Brown signed multiple documents in connection with the sale, including a buyer's order, dated July 6, 2007, and a retail installment sales contract ("RISC"), dated July 11, 2007. The buyer's order presented to Ms. Brown by Liberty Ford reflected the following provisions related to claims and disputes arising out of or relating to the purchase of the Santa Fe:

The parties irrevocably agree that any controversy, claim or dispute arising out of or relating to the purchase or the financing of this vehicle included but not limited to this Purchase Agreement or the breach thereof shall be settled by binding arbitration, pursuant to the separate Agreement to Arbitrate Disputes. However, binding arbitration will not apply to the failure of the Purchaser to provide consideration including failure to pay a note, a dishonored check, failure to provide a trade title, or failure to pay a deficiency resulting from an additional payoff on a trade. In addition, binding arbitration will not apply to Dealer's right to retake possession of the vehicle. SEE SEPARATE ARBITRATION AGREEMENT ATTACHED HERETO AND INCORPORATED BY REFERENCE HEREIN FOR SPECIFIC DETAILS.

On or about April 28, 2012, Appellee Spencer purchased a used 2010 Chrysler 300 from Liberty Ford and signed numerous documents in connection with this purchase, including a RISC, dated April 28, 2012. The RISC presented to Mr. Spencer by Liberty Ford reflected the following information related to arbitration and class action lawsuits:

READ THIS ARBITRATION PROVISION CAREFULLY AND IN ITS ENTIRETY ARBITRATION

Arbitration is a method of resolving any claim, dispute, or controversy (collectively, a "Claim") without filing a lawsuit in court. Either you or Creditor ("us" or "we") (each, a "Party") may choose at any time, including after a lawsuit is filed, to have any Claim related to this contract decided by arbitration. Such Claims include but are not limited to the following: 1) Claims in contract, tort, regulatory or otherwise; 2) Claims regarding the interpretation, scope or validity of this clause, or arbitrability of any issue; 3) Claims between you and us, your/our employees, agents, successors, assigns, subsidiaries or affiliates; 4) Claims arising out of or relating to your application for credit, this contract, or any resulting transaction or relationship, including that with the dealer, or any such relationship with third parties who do not sign this contract.

RIGHTS YOU AND WE AGREE TO GIVE UP

If either you or we choose to arbitrate a Claim, then you and we agree to waive the following rights:

• RIGHT TO A TRIAL, WHETHER BY A JUDGE OR JURY

• RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR A CLASS MEMBER IN ANY CLASS CLAIM YOU MAY HAVE AGAINST US WHETHER IN COURT OR IN ARBITRATION

• BROAD RIGHTS TO DISCOVERY AS ARE AVAILABLE IN A LAWSUIT

• RIGHT TO APPEAL THE DECISION OF AN ARBITRATOR

• OTHER RIGHTS THAT ARE AVAILABLE IN A LAWSUIT

You may choose the organization to conduct the arbitration subject to our approval. The applicable rules (the "Rules") may be obtained from the selected organization. If there is a conflict between the Rules and this contract, this contract shall govern. This contract is subject to the Federal Arbitration Act ( 9 U.S.C. § 1 et seq. ) and the Federal Rules of Evidence. The arbitration decision shall be in writing with a supporting opinion. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. We will pay your total reasonable arbitration fees and expenses (not including attorneys fees, except where applicable law otherwise provides) in excess of $125. We will pay the whole filing fee if we demand arbitration first. Any portion of this arbitration clause that is unenforceable shall be severed, and the remaining provisions shall be enforced. If a waiver of class action rights is deemed or found to be unenforceable for any reason in a case in which class action allegations have been made, the remainder of this Arbitration Clause shall be unenforceable. Notwithstanding any other provision of this Arbitration clause, the validity and scope of the waiver of class action rights shall be decided by the court and not by the arbitrator.

On March 13, 2015, Barbara Brown and Herbert E. Spencer, Jr., filed a class action lawsuit in the Circuit Court for Baltimore County against Liberty Ford. Brown and Spencer's complaint alleged that Liberty advertised a "Liberty for Life" Warranty for new and used vehicles that was "free of charge" and "for life" then conditioned those benefits upon certain mandatory and costly requirements of the consumer. Specifically, Brown and Spencer allege that, with respect to Mr. Spencer's warranty, when "Mr. Spencer refused to have the mandatory 15,000 mile service performed by Liberty Ford because of the dealership's excessive $265 charge, Liberty Ford voided his warranty and refused to honor or provide Mr. Spencer any of the benefits under the [']Liberty for Life' Limited Warranty program." Brown and Spencer allege that Liberty Ford "informed Ms. Brown that, by obtaining required service work on her vehicle at a location other than Liberty Ford, Ms. Brown voided the terms of her 'Liberty for Life' Limited Warranty." According to Brown and Spencer, the practice of requiring additional costly maintenance services, which were outside the scope of a vehicle's warranty and could only be performed at Liberty Ford, is a "tying arrangement" because the consumer is forced to pay for non-warranty service and maintenance charges if the consumer wants the promised benefits of the "Liberty for Life" Warranty. In effect, the consumer is "tied to" the continued receipt of benefits through non-warranty and costly services at Liberty Ford. Brown and Spencer allege that this tying arrangement constitutes a violation of the Magnuson–Moss Warranty Act ("MMWA"), 15 U.S.C. § 2301 et seq.²

In lieu of filing a motion to compel arbitration in the Class Action suit, Liberty Ford commenced the independent Arbitration Action in the same court on April 27, 2015. The matter was assigned to the same judge presiding in the Class Action. In the Arbitration Action, Liberty Ford sought to compel arbitration of any and all claims contained in the Class Action and to stay the Class Action. On June 23, 2015, Brown and Spencer filed a Motion to Consolidate the Class Action and the Arbitration Action. Liberty Ford did not file a response. The Circuit Court denied Brown and Spencer's motion pursuant to an order issued on June 29, 2015. The court explained:

While Plaintiffs are correct that these actions involve common questions of law and fact and a common subject matter, in this instance the consideration of "convenience" addressed in Md. Rule 2–503(b) dictates that these matters not be consolidated. This is the case because Plaintiffs are correct about another point, that enough information is before the Court to allow a determination to be made in the Arbitration Action. A hearing will be held on the pending Petition in that case on August 4, 2015. The Court's determination of that Petition will end proceedings in the Arbitration Action and will either result in the staying of the Class Action or in allowing the Class Action to proceed outside of the shadow of the Arbitration Action. That is, one way or the other, aside from any potential appeal, the Arbitration Action will be concluded after August 4, 2015.

That being the case, the only thing consolidation will accomplish at this point will be to keep the case file in the Arbitration Action active after it should be closed. It has been the Court's experience that the Office of the Clerk of the Court has a great deal of difficulty docketing papers in an orderly fashion where cases—especially cases

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