Buster Rico, Et Ux. v. Cappaert Manufactured Housing, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-141

BUSTER RICO, ET UX

VERSUS

CAPPAERT MANUFACTURED HOUSING, INC., ET AL.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT,
PARISH OF AVOYELLES, NO. 2004-6423,
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Jimmie C. Peters, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

Fred A. Pharis
Pharis Law Offices
831 DeSoto Street
Alexandria, Louisiana 71301
(318) 445-8266
Counsel for Plaintiffs/Appellees:
Buster Rico
Marilyn Rico

Walter K. Jamison, III
Marjorie B. Breaux
Daigle, Scofield, Rivera & Crawford
303 W. Vermilion, Suite 210
Lafayette, Louisiana 70502
(337) 234-7000
Counsel for Defendant/Appellant:
Cappaert Manufactured Housing, Inc.

SULLIVAN, Judge.

The plaintiffs sued the manufacturer and the retailer of an allegedly defective

mobile home. The manufacturer filed an exception of prematurity, contending that

the plaintiffs’ claims were subject to binding arbitration. The trial court overruled the

exception, and the manufacturer has appealed. For the following reasons, we affirm.

Discussion of the Record

On November 11, 2002, Buster and Marilyn Rico (the Ricos) purchased a new,

manufactured home built by Cappaert Manufactured Housing, Inc. (Cappaert) from

Chatelain’s Bayou Housing, Inc. (Chatelain’s). The Ricos filed the present suit on

May 24, 2004, alleging that the ceiling sheet rock had begun to sag throughout the

home due to improper construction and that any repair attempts were tardy and

ineffective.

On July 12, 2004, Cappaert filed an exception of prematurity, arguing that the

Ricos were bound by an arbitration agreement contained in the homeowner’s manual

that was delivered with the home. That manual has two references to arbitration. The

first page of the manual is entitled “BINDING ARBITRATION AGREEMENT” and

has signature lines for the buyer, for representatives of both the retailer and the

manufacturer, and for witnesses. The language of the arbitration agreement is also

found on pages eight and nine of the manual, within the terms of the “ONE YEAR

LIMITED WARRANTY.”1 The limited warranty provisions also require that the

1
The language on the page entitled “BINDING ARBITRATION AGREEMENT” is
reproduced below, with additional or alternative language appearing in the warranty section noted
in brackets:

All disputes [between us not resolved as outlined above and] not barred by applicable
statutes of limitations or otherwise barred by law, resulting from or arising out of the
design, manufacture, warranty, or repair of the manufactured home, (including but
not limited to: the terms of the warranty, the terms of this arbitration agreement, and
all clauses herein contained, their breadth and scope, and any term of any agreement
contemporaneously entered into by the parties concerning any goods or services
manufactured or provided by Cappaert Manufactured Housing, Inc.; the condition of

purchaser complete and return an “Owner Registration Card” before any warranty

service can be scheduled. There is no evidence that the Ricos or any other party

signed the “BINDING ARBITRATION AGREEMENT” or that the Ricos completed

and returned the “Owner Registration Card,” although it is undisputed that Cappaert

did perform some warranty repairs on the home.

At trial of the exception, Harold Mouser, a Cappaert representative, testified

that the homeowner’s manual would have been located in the kitchen drawer of the

home. Susan Chatelain, who sold the home to the Ricos, testified that the Ricos

would not have seen a copy of the homeowner’s manual until the home was delivered

to them sometime after the sale. Ms. Chatelain also testified that the only document

generated at the time of the sale was an “Invoice” that did not mention arbitration.

According to Ms. Chatelain, arbitration was not discussed at the time of the sale, and

the Ricos did not sign an arbitration agreement at that time. Ms. Chatelain also

indicated that several of her other customers have refused to sign such agreements.

the manufactured home; the conformity of the manufactured home to federal building
standards; the representations, promises, undertakings, warranties or covenants made
by Cappaert Manufactured Housing, Inc., (if any); or otherwise dealing with the
manufactured home); will be submitted to BINDING ARBITRATION, pursuant to
the provisions of 9 U.S.C. section 1, et seq. Said binding arbitration shall be by one
(1) arbitrator selected by the manufacturer with the consent of the owner(s) [owner].
The party seeking affirmative relief shall prepay an[y] and all arbitration filing fees
and processing fees. An arbitrator selected to hear any dispute shall be empowered
to enter an award of such damages, fees, and costs, as said arbitrator deems just and
proper. Notwithstanding, the maximum award permitted, in connection with any
dispute submitted to said arbitrator, shall not exceed the amount originally demanded
by the party seeking affirmative relief at the time the demand for arbitration is filed.
Any party to this agreement who fails or refuses to arbitrate in accordance with the
terms of this pre-dispute binding arbitration agreement shall, in addition to any other
relief awarded through arbitration, be taxed by the arbitrator with all of the costs,
including reasonable attorneys fees, of the other party who had to resort to judicial
or other means of compelling [completing] arbitration in accordance with the terms
herein contained. THIS ARBITRATION SHALL BE IN LIEU OF ANY CIVIL
LITIGATION IN ANY COURT, AND IN LIEU OF ANY TRIAL BY JURY.

2

At the conclusion of the hearing on the exception, the trial court ruled in favor

of the Ricos, finding that they did not consent to arbitration, as they were not

provided with notice of the arbitration agreement until after the sale. On appeal,

Cappaert argues that the trial court erred in overruling the exception of prematurity,

given that the Ricos sought to enforce the provisions of the limited warranty in which

the arbitration agreement was contained.

Opinion

Burden of Proof and Standard of Review

This court recently reviewed a trial court’s refusal to grant an exception of

prematurity that would have compelled arbitration in Abshire v. Belmont Homes, Inc.,

04-1200, pp. 7-8 (La.App. 3 Cir. 3/2/05), 896 So.2d 277, 283 (citations omitted)

(emphasis added), wherein we stated:

The dilatory exception of prematurity is provided for in La.Code
Civ.P. art. 926(A)(1), and its function is to raise the issue that a judicial
cause of action does not yet exist because of some unmet prerequisite
condition. “It usually is utilized in cases where the law or a contract has
provided a procedure for one aggrieved of a decision to seek relief
before resorting to judicial action,” and “[t]he exceptor has the initial
burden of showing that an administrative remedy was available, thus
making the judicial action premature.” Thus, the burden is upon [the
exceptor] to establish that a valid and enforceable arbitration
agreement exists. In determining whether a party is bound by an
arbitration agreement, we apply ordinary contract principles, and a party
cannot be required to submit to arbitration a dispute that he has not
agreed to submit. Whether a court should compel arbitration is a
question of law. Therefore, “[a]ppellate review of questions of law is
simply to determine whether the trial court was legally correct or
incorrect.”

3

Arbitration Law: State and Federal

The Louisiana Binding Arbitration Law (LBAL) is found at La.R.S. 9:4201-17.

However, the arbitration agreement in the present case specifically references the

Federal Arbitration Act (FAA), 9 U.S.C. 1, et seq.2

The FAA, at 9 U.S.C. 2 (emphasis added), provides:

A written provision in any maritime transaction or a contract
evidencing a transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or transaction, or the
refusal to perform the whole of any part thereof, or an agreement in
writing to submit to arbitration an existing controversy arising out of a
contract, transaction, or refusal, shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the
revocation of any contract.

As the court explained in Posadas v. The Pool Depot, Inc. 02-1819, pp. 3-4

(La.App. 1 Cir. 6/27/03), 858 So.2d 611, 613-14, writ denied, 03-2125 (La. 11/7/03),

857 So.2d 502 (citations omitted) (emphasis added):

Although a state law cannot be used to invalidate an arbitration
agreement [governed by the FAA] when the law applies only to
arbitration agreements, a state law may be applied to invalidate an
arbitration agreement if that law governs issues concerning the validity,
revocability, and enforceability of contracts generally. Thus, generally
applicable contract defenses, such as fraud, duress, or unconscionability,
may be applied to invalidate arbitration agreements without
contravening the FAA.

2
As this court recognized in Abshire, 896 So.2d at 283, n.4:

[A]pplication of the Louisiana Binding Arbitration Law as opposed to the Federal
Arbitration Act is of little consequence because, as pointed out by the supreme court
in International River Center v. Johns-Manville Sales Corp., 02-3060, p. 6 (La.
12/3/03), 861 So.2d 139, 143, the Federal Arbitration Act is “a collection of statutes
which is very similar to the Louisiana Binding Arbitration Law.”

See also Dufrene v. HBOS Manufacturing, LP, 03-2201, p. 3 (La.App. 4 Cir. 4/7/04), 872
So.2d 1206, 1210, where the fourth circuit stated that the federal and state acts are “virtually
identical.” The arbitration agreement in Dufrene also referenced the FAA, but the court cited both
state and federal law in determining its validity.

4

See also Snyder v. Belmont Homes, Inc., 04-445, p. ___ (La.App. 1 Cir.

2/16/05), __ So.2d __, __, in which the court stated that “[i]n determining whether the

parties agreed to arbitrate a certain matter, courts apply the contract law of the

particular state that governs the agreement.”

“One of the conditions of a valid contract is the consent of both parties.

[La.Civ.Code art. 1927.]” Rodriguez v. Ed’s Mobile Homes of Bossier City, La.,

04-1082, p. 3 (La.App. 3 Cir. 12/8/04), 889 So.2d 461, 464. In Rodriguez, this court

found that the plaintiffs’ consent to arbitration was vitiated by error, as they were

under the mistaken belief that they had to sign an arbitration agreement that was not

presented to them until after the terms of the sale had been agreed upon, and those

terms did not include arbitration. In refusing to enforce an arbitration agreement

signed under these circumstances, this court stated that “[a] party cannot, unilaterally,

assign additional consideration for the perfection of a sale.” Id.

In the present case, the Ricos and Chatelain’s agreed to the terms of the sale on

November 11, 2002, as evidenced by the “Invoice” of that date showing a price and

full payment of $45,500.00. Ms. Chatelain testified that the “Invoice” did not

reference an arbitration agreement, that the parties did not discuss or sign an

arbitration agreement at that time, and that the Ricos would not have received the

homeowner’s manual, which contained the arbitration agreement, until delivery of the

home sometime after the sale. Thus, as in Rodriguez, the purchasers did not receive

the arbitration agreement until after the terms of the sale had been agreed upon.

Unlike Rodriguez, however, there is no evidence that the Ricos ever signed such an

agreement or that it was ever pointed out to them.

5

It is well-settled that a valid, written arbitration agreement need not be signed

by the parties. Hurley v. Fox, 520 So.2d 467 (La.App. 4 Cir. 1988). Absent a

signature, however, “the effect or validity of the agreement may be shown by the

actions and conduct of the parties.” Id. at 469. Here, the trial court found that the

Ricos did not consent to the arbitration agreement because they were not notified of

its existence or its terms at the time of the sale. Cappaert argues, however, that the

Ricos’ consent is shown by their actions in seeking to enforce the written limited

warranty, which contained the arbitration agreement.

Cappaert relies on two federal cases to support this argument. In Hill v.

Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997), cert. denied, 522 U.S. 808, 118

S.Ct. 47 (1997), the court held that a purchaser who ordered a computer over the

telephone was bound by an arbitration agreement contained in additional terms that

arrived with the computer, where the purchaser kept the computer beyond thirty days

as provided in those terms. The court based its decision on the “accept-or-return”

offer that accompanied the product, in which the consumer had “an opportunity to

read the terms and to reject them by returning the product.” Id. at 1148. Similarly,

in O’Quin v. Verizon Wireless, 256 F.Supp.2d 512 (M.D. La. 2003), the court found

that the plaintiff’s activation of the defendant’s wireless service, rather than his initial

receipt of the product, amounted to an acceptance of an arbitration agreement

contained in the boxes of two telephone handsets purchased in retail store. In so

doing, the court relied upon numerous cases “premised on the consumer having the

opportunity to return the product in order to avoid any term or condition that he found

to be unacceptable.” Id. at 516.

6

We find the present case to be distinguishable from those cited by Cappaert.

First, we find no evidence that the Ricos were presented with an “accept-or-return”

offer, as were the plaintiffs in Hill and O’Quin, who were given an opportunity to

reject the terms of arbitration agreements by returning the products purchased.

Second, we note that the arbitration agreements in the Cappeart homeowner’s manual

did contemplate a signed acceptance of their terms, whereas the offers in the above

cases were structured for acceptance by action or inaction, i.e., by retaining the

product beyond a specified date or activating service for use of the product. The

“BINDING ARBITRATION AGREEMENT” found on the first page of the manual

had signature lines for all parties (the buyer, the retailer, and the manufacturer) as

well as for witnesses. The language of that agreement was repeated within the terms

of the “ONE YEAR LIMITED WARRANTY,” which also stated that the customer

was required to complete and return a registration card before any warranty service

could be scheduled. The record does not contain any evidence that any party signed

the arbitration agreement or that the Ricos completed and returned the registration

card. Although it is clear under Hurley, 520 So.2d 467, that a signature is not

required for a valid arbitration agreement, we find that the absence of the Ricos’

signatures under these circumstances, especially where the arbitration provisions were

never brought to their attention, is one factor to be considered in determining whether

an agreement can be inferred from their actions and conduct. As the court recognized

in Dufrene v. HBOS Manufacturing, LP, 03-2201, p. 6 (La.App. 4 Cir. 4/7/04), 872

So.2d 1206, 1211, the plaintiffs’ signature “establish[ed] their knowledge of [the

arbitration agreement’s] existence.” Such proof is lacking here.

7

Finally, we disagree with Cappaert’s assertion that the Ricos’ scheduling of

warranty work on their home amounted to an acceptance of Cappaert’s limited

warranty and the arbitration provisions therein. Although the Cappeart homeowner’s

manual states on page eight that its limited warranty “EXCLUDES AND

SUPERSEDES ANY OTHER EXPRESS OR IMPLIED WARRANTY,” La.R.S.

51:911.25(A) provides the first retail purchaser of a manufactured home with certain

warranties that may not be contractually waived. Under La.R.S. 51:911.25(C)

(emphasis added):

The warranty required by this Part shall be in addition to and not
in derogation of any other warranties, rights, and privileges which the
buyer may have under any other law or instrument. The buyer may not
waive his rights under this Part and any such waiver is hereby
prohibited as contrary to public policy and shall be unenforceable and
void.

Thus, by scheduling warranty repairs on their home, the Ricos may have sought to

enforce the legal warranty provided in La.R.S. 51:911.25 rather than Cappaert’s

limited warranty. This conclusion is supported by the lack of any evidence that the

Ricos completed the “Owner Registration Card” which, according to the

homeowner’s manual, was required to validate the limited warranty, and by

Cappaert’s performance of warranty repairs in the absence of such a card.

As the exceptor, Cappeart bore the burden of proving a valid arbitration

agreement. In the absence of a signed agreement, Cappaert had to rely on the actions

of the parties in discharging this burden. Based upon the exhibits and testimony

introduced at the hearing, we find that the trial court was legally correct in overruling

the exception of prematurity.

8

Decree

For the above reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to defendant-appellant, Cappaert Manufactured Housing, Inc.

AFFIRMED.

9