Jason Vidrine, Et Ux. v. J & J Exterminating Company Ofalexandria

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-285

JASON VIDRINE, ET UX.

VERSUS

J & J EXTERMINATING COMPANY OF ALEXANDRIA

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 232,479
HONORABLE DONALD T. JOHNSON, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy and
Shannon J. Gremillion, Judges.

AFFIRMED.

Gremillion, J., dissents and assigns written reasons.

Robert G. Nida
Gold, Weems, Bruser, Sues & Rundell
Post Office Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Jason Vidrine
Sherry Vidrine

John G. Alsobrook
Ostendorf, Tate, Barnett & Wells
650 Poydras Street, Suite 1460
New Orleans, LA 70130
(504) 527-0700
COUNSEL FOR DEFENDANT/APPELLEE:
J & J Exterminating Company of Alexandria

AMY, Judge.

The plaintiffs sought damages from the defendant termite company for what

they allege was a negligent termite inspection report prepared prior to their purchase

of a house. The defendant filed an exception of prematurity and, in the alternative,

a motion to enforce arbitration due to an arbitration agreement contained in the report.

The trial court sustained the exception and granted the motion to enforce the

arbitration agreement. The plaintiffs appeal. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiffs, Jason Anthony Vidrine and Sherri Lynn Rae Vidrine, alleged

that they entered into a purchase and sale agreement for the purchase of a residence

in Cheneyville, Louisiana. The agreement was conditioned on the house passing a

termite inspection. The petition indicates that the defendant, J&J Exterminating

Company of Alexandria, Inc., performed a termite inspection of the residence on

August 21, 2007. Thereafter, it issued a Wood Destroying Insect Report. The

plaintiffs alleged that they purchased the residence after the report revealed no

previously undetected termite damage. However, the plaintiffs asserted that they later

discovered additional termite damage while performing renovations. They sought

damages for what they alleged was a negligent inspection.

In response, the defendant filed a Dilatory Exception of Prematurity and/or

alternatively, a Motion to Enforce Arbitration Clause. It entered the Wood

Destroying Insect Report into evidence in support of its filing. The report includes

the following clause:

Arbitration Clause

Any party to this agreement shall agree that any controversy or claim
between them arising out of or relating to this agreement shall be settled
exclusively by arbitration. Such arbitration shall be conducted in
accordance with the then current Commercial Arbitration Rules of the

American Arbitration Association. The decision of the arbitrator shall
be a final and binding resolution of the disagreement, which may be
entered and made enforceable by any court of competent jurisdiction.
The parties hereto agree that neither party shall sue the other over
anything contained in this agreement except for enforcement of the
arbitrator’s decision. In no event shall either party be liable to the other
for indirect, special or consequential damages or loss of anticipated
profits.

The plaintiffs questioned the validity of the clause asserting that it was not part of a

contract, and that it was not entered into prior to the commencement of the inspection.

Following a hearing, the trial court sustained the exception of prematurity and

granted the motion to enforce the arbitration clause.1

1
In written reasons for ruling, the trial court explained:

This arbitration clause is located directly above the section of the report titled “Received by”.
Ms. Vidrine signed the report. However, the plaintiffs state that the signing of this section does not
bind them to arbitration because Ms. Vidrine did not understand the concept of arbitration. The
plaintiffs also argue that the report is written following completion of the actual work and
consequently cannot constitute an agreement. Any contract between those entities would have to
have been entered prior to the beginning of the work to be performed. The plaintiffs argue that the
report is not a contract because the plaintiffs did not consent to arbitration. Moreover, the plaintiffs
argue that J&J Exterminating Co. also did not sign the agreement; therefore the arbitration clause
is invalid due to lack of mutuality.

This Court disagrees. In Coleman v. Jim Walter Homes, Inc.[,] 2007-1574, 982 So.2d 341
(La.App. 3 Cir. 2008), the Court stated “In determining whether a party is bound by an arbitration
agreement, a court applies ordinary principles of contract. One of the conditions of a valid contract
is consent of both parties.”

In Aguillard v. Auction Management Corp., 908 So.2d 1 (La. 2005), the Louisiana Supreme
Court stated, “consent is called into question by the standard form, small print, and most especially
the disadvantageous position of the accepting party, which is further emphasized by the potentially
unequal bargaining power.”

The Court went on to say that “even if a contract is standard in form and printed in small
font, if it does not call into question the non-drafting party’s consent and if it is not demonstrated that
the non-drafting party did not consent or his consent is vitiated by error, the contract is not a contract
of adhesion.” Id. at 11.

Furthermore, the Court held, “Even when the scope of an arbitration clause is fairly debatable
or reasonably in doubt, the court should decide the question of construction in favor of arbitration.”

After review of the report, it is the determination of this court that both parties consented to
arbitration. Both parties signed the report. A representative of J&J Exterminating Company signed
the report below the arbitration clause as well as the plaintiff Ms. Vidrine. The font of the arbitration
clause is the same as that in the rest of the form. In fact, the title labeling the arbitration clause is
bold and underlined to assure that the parties are aware of it. The plaintiff Ms. Vidrine read and
signed the report. Thus, it is the ruling of this Court that the arbitration clause in the Wood

2

The plaintiffs appeal. They argue that the arbitration clause is contained only

in a report instead of in a binding contract, that they did not consent to the agreement,

and that the agreement was unenforceable as the defendant was not bound to arbitrate

by the terms of the agreement.

Discussion

Arbitration Agreements

An action is deemed premature when it is brought prior to the right to enforce

it has accrued. LaCoste v. Pendleton Methodist Hosp., LLC, 07-0008 (La. 9/5/07),

966 So.2d 519. The exception of prematurity, as provided by La.Code Civ. Proc. art.

926, contests whether a plaintiff’s cause of action has matured to the point where it

is ripe for judicial determination. Id. The exceptor bears the burden of proving

prematurity. Id. Thus, we consider the parties’ submissions in light of this standard

and the applicable substantive law.

Arbitration agreements are favored in both state and federal law. See 9 U.S.C.

§ 2.2 See also La.R.S. 9:2401.3 As observed in Aguillard v. Auction Mgmt. Corp.,

Destroying Insect Report is enforceable.
2
Section 2 of the Federal Arbitration Act provides that:

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 or any
part thereof, or an agreement in writing to submit to arbitration an existing
controversy arising out of such 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 such contract.
3
Entitled “Validity of arbitration agreements,” La.R.S. 9:4201 provides:

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

3

04-2804, 04-2857 (La. 6/29/05), 908 So.2d 1, federal law concerning arbitration

clauses preempts state law. However, “the states do retain the ability to regulate

contracts involving arbitration agreements and may do so under general contract

law[.]” Id. at 8. Thus, a central inquiry into the validity of an arbitration clause is the

consent of the parties. Id. As discussed below, the plaintiffs contest the trial court’s

determination that they consented to the arbitration clause.

The defendant supported its exception by introducing the Wood Destroying

Insect Report, which contains the subject arbitration clause. In pertinent part, the

report reveals that: “[F]or and in consideration of the Price and Sum of $60 and State

Fee $6 for a Total of $66[,] A qualified inspector employed by this company has

carefully inspected all accessible areas of the structure(s) on the property located at

the address below for termites and other wood destroying insects.” In addition to

details of the inspection, the report includes the arbitration clause, followed by the

“signature and number of [the] inspector[.]” It also indicates that the report was

requested by “Sherri Vidrine[,]” who is identified as the “purchaser.” The box

entitled “Report Received By” bears the name “Sherri Vidrine.” The reverse side of

the form contains a number of “terms and definitions” as well as “general information

and conditions governing this report.”4

Further, a joint stipulation of fact indicates, in part, that: “Following the

inspection of the premises . . . on August 21, 2007 by J&J Exterminating Company

of Alexandria, Inc., the inspector told Sherri Vidrine to sign in Block 16 which she

4
The latter category includes a statement that: “No arbitration, other cause for action, or
claim for damages shall be filed by any party until an inspection of the property has been made by
an inspector of the Louisiana Structural Pest Control Commission.”

4

did. The inspector then gave Sherri Vidrine the original of the Wood Destroying

Insect Report.”

Review of the evidence supports the trial court’s determination that the

defendant met its burden of proving the prematurity of the plaintiffs’ claim. In

Aguillard, 908 So.2d 1, the supreme court questioned the issue of consent to a written

arbitration agreement by considering whether it was contained on a standard form,

whether it was in a smaller font than the remainder of the agreement, and whether the

parties were on an equal footing in the acceptance of the clause. The Wood

Destroying Insect report bears Ms. Vidrine’s signature immediately beneath the

arbitration clause, which is set apart from the remainder of the report. The font of the

clause is consistent with the remainder of report and the terms of the agreement affect

both parties identically. Consideration of these factors indicates that the trial court

correctly enforced the arbitration clause. However, we also address the plaintiffs’

particular arguments raised in brief.

Existence of a Contract to Arbitrate

The plaintiffs first contend that the report cannot constitute a binding contract

as it was executed after the inspection. They assert that any contract concerning the

inspection would have to have been entered prior to the beginning of the work to be

performed.

This argument finds no support in the Louisiana Civil Code, as Article 1906

defines a contract as “an agreement by two or more parties whereby obligations are

created, modified, or extinguished.” This provision anticipates that parties may agree

to create an obligation or destroy or modify previously existing obligations. Thus,

to the extent that the parties contracted for the prospective performance of services

5

upon Ms. Vidrine’s request for the inspection, the offer and acceptance of the report

defined the terms of the contract as they existed from that point forward.

This argument lacks merit.

Consent of the Plaintiffs

Alternatively, the plaintiffs contend that there is no proof that they consented

to arbitration. They note that Ms. Vidrine’s signature is contained only in the “report

received by” portion of the report, and that no signature is contained in the space

provided for the signature of the owner/agent of the property or in that space provided

for the signature of the purchaser of the property. They argue that the report’s

“received by” box is merely in the nature of a chain of custody provision.

First, we find no error in the trial court’s acceptance of Ms. Vidrine’s signature

on the form as demonstration of her consent to the report. Further, in addition to Ms.

Vidrine’s signature on the report, the plaintiffs’ petition reports that their claim is

based on their reliance on that report. Thus, there is additional evidence of the

report’s acceptance. See La.Civ.Code art. 1927.5 In short, the plaintiffs

contradictorily claim that they relied on a valid contract in order to maintain their suit,

but that they did not consent to one aspect of that contract, i.e., the arbitration clause.

This argument lacks merit.

5
Article 1927 provides, in part, that: “Unless the law prescribes a certain formality for the
intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that
under the circumstances is clearly indicative of consent.” Further, “[u]nless otherwise specified in
the offer, there need not be conformity between the manner in which the offer is made and the
manner in which the acceptance is made.”

6

Mutuality of Obligation

Finally, the plaintiffs argue that the report contains no identification of the

defendant’s willingness to be bound by the terms of the contract. However, the report

the defendant company offered the report to the plaintiffs. Additionally, the wording

of the arbitration clause provides that: “Any party to this agreement shall agree that

any controversy between them arising out of or relating to this agreement shall be

settled exclusively by arbitration.” In fact, the clause contains multiple references to

both parties and contains no indication that the defendant reserved a right to litigate

any issue arising from the contract.

The plaintiffs also contend that, although the report was signed by the

inspector, there was no proof that the inspector had the authority to bind the

defendant. The plaintiffs assert that Broussard v. Compulink Business Systems,

41,276 (La.App. 2 Cir. 8/23/06), 939 So.2d 506, is persuasive. They argue in their

brief that the second circuit found that no valid arbitration agreement existed in that

case “because the party pursuing arbitration failed to prove that the agent who signed

the agreement on behalf of the principal had authority to do so.” However, Broussard

involved a case in which the exceptor failed to prove the authority of the plaintiff’s

employee to accept the terms of a contract. The present case is distinguishable from

Broussard as the report at issue was signed by one of the plaintiffs. Thus, the

authority to accept on the plaintiffs’ behalf was not at issue.

This final argument lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of this proceeding are assessed to the appellants, Jason Anthony Vidrine and Sherri

Lynn Rae Vidrine.

AFFIRMED.

7

09-285

JOSEPH VIDRINE, ET UX

VERSUS

J & J EXTERMINATING COMPANY OF ALEXANDRIA

GREMILLION, Judge, dissenting.

I respectfully dissent from the opinion of the majority. I agree completely that

arbitration agreements are and should be favored by law. It is also true that federal

law preempts state law on the enforceability of arbitration agreements. However, the

real issue in this case has nothing to do with either the merit or enforceability of a

arbitration agreement in general. Rather, the issue here is whether an arbitration

agreement existed in the first place. I am convinced that it did not.

I can certainly find no fault with majority’s reliance on the Supreme Court case

of Aguillard v. Action Management Corp., 04-2804 (La. 6/29/05), 908 So.2d 1. This

case has clearly become seminal in the area of arbitration agreements. However, even

under Aguillard, the court should ask “whether a valid arbitration agreement exists.”

NCO Portfolio Management, Inc. v. Gougisha, 07-604, p. 8 (La.App. 5 Cir. 4/29/08),

985 So.2d 731, 735, writ denied, 08-1146 (La. 9/26/08), 992 So.2d 986.

Here, J & J presented Ms. Vidrine with a standard-form termite damage report.

The trial court as well as the majority was clearly moved by the clarity of the

arbitration clause found in that report. I agree, that the arbitration clause, itself, was

clear and unambiguous.

However, the document provided to the plaintiff contained more than just an

arbitration clause. It contained two signature blocks for Ms. Vidrine.

Ms. Vidrine was to sign the first signature block to indicate that she received

1

the report. She did, in fact, sign that block, thereby acknowledging receipt of the

report. The majority simply stops its examination of the contract at this point as if

nothing follows.

If there was nothing after this first signature block, I would completely agree

with the majority’s opinion that J & J could rely on that signature “as demonstration

of her consent to the report.” There is, however, more to this contract.

There is a second signature block. Where the first signature merely

acknowledges receipt, the second signature block does much more.As the document

itself indicates, signing it would have memorialized Ms. Vidrine’s agreement “to the

terms and conditions” of the contract. That brings us to the singular, critical fact in

this analysis: Ms. Vidrine did not sign this second signature block.

There are four important Civil Code articles at play here. The first is La.Civ.

Code art. 1947 which provides that when, as is the case here, there is “an absence of

a legal requirement,” and “the parties have contemplated a certain form, it is

presumed that they do not intend to be bound until a contract is executed in that

form.” In this case, it is abundantly clear that the parties did contemplate a certain

form: a one-page document requiring Ms. Vidrine to sign once to acknowledge

receipt and a second time to confirm her agreement to the “terms and conditions” of

the contract. Accordingly, the majority should have presumed that Ms. Vidrine did

not intend to be bound to the terms and conditions of that contract.

Next, La.Civ. Code art. 2049 says that every part of a contract “must be

interpreted with a meaning that renders it effective and not with one that renders it

ineffective.” Here, the majority does not merely render the second signature block

ineffective; rather, it ignores it completely.

The very next Civil Code article, 2050, reads in its entirety as follows:

2

“Each provision in a contract must be interpreted in light of
the other provisions so that each is given the meaning
suggested by the contract as a whole.”

If I may be indulged a colloquialism, this is provision is where the rubber meets

the road. Had the majority interpreted each provision of the contract in light of the

others, logic would have forced it to conclude that the first signed signature block

was merely to acknowledge receipt and the second signature block was to confirm

consent to the arbitration clause, as well as all of the other terms and conditions of the

agreement. However, the majority chose to simply disregard the second—and more

important—signature line.

I see absolutely no ambiguity here. The parties clearly contemplated that Ms.

Vidrine would sign once to acknowledge receipt of the form. This she did. She

would sign a second time to “agree to the terms and conditions” of the contract. This

she simply did not do.

Despite the simplicity and the clarity of these facts, let us assume for the sake

of argument that we are left with what by La.Civ. Code art. 2056 describes as a “case

of doubt.” In such an instance, the code provides that the contract must be interpreted

against J & J because it “furnished the text,” and because the contract was J & J’s

“standard-form.” La.Civ. Code art. 2056. In other words, any ambiguity as to the

meaning of a contract must be eliminated by interpreting the contract against the party

who prepared it. Sabine Construction Co., Inc. v. Cameron Sewage Department, No.

1, 298 So.2d 319 (La.App. 3 Cir. 1974).

As the Aguillard court affirmed, a signature on a contract means something and

it should not be ignored. Aguillard, 908 So.2d 1, 22. It must, therefore, be true, for

even a greater reason, that the absence of a signature means something.

The arbitration clause in this contract is clear, and it is favored by both state

3

and federal law. However, in this case, the plaintiff did not agree to it. I, therefore,

would have respectfully reversed the trial court’s ruling and denied the exception of

prematurity.

4