Full Opinion (html_with_citations)

    Case: 18-60344    Document: 00515233677     Page: 1   Date Filed: 12/12/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                            United States Court of Appeals
                                                                     Fifth Circuit

                                 No. 18-60344                      FILED
                                                           December 12, 2019
                                                              Lyle W. Cayce
                                                                   Clerk

In the Matter of: CHUCK WILLIS
            Debtor.

TOWER LOAN OF MISSISSIPPI, L.L.C.,
Doing Business as Tower Loan of Crystal Springs,
            Appellant,
versus
CHUCK WILLIS,
            Appellee.




                Appeal from the United States District Court
                  for the Southern District of Mississippi




Before OWEN, Chief Judge, SMITH and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      In adversary bankruptcy proceedings, Chuck Willis sued Tower Loan of
Mississippi, L.L.C. (“Tower Loan”), for allegedly violating the Truth in Lending
Act (“TILA”). Tower Loan moved to dismiss or compel arbitration. The bank-
ruptcy court denied the motion, and the district court affirmed. Tower Loan
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                                      No. 18-60344
appeals. Because the parties reached a valid agreement to arbitrate and dele-
gated threshold arbitrability issues to the arbitrator, we reverse and remand
with instructions to refer this case to arbitration.

                                             I.
       This appeal centers on the relationship between two arbitration agree-
ments that Willis signed in November 2016 when he borrowed money from
Tower Loan via an Installment Loan Agreement and Disclosure Statement
(“loan agreement”). The loan agreement showed that Willis had also pur-
chased insurance policies; those policies were issued by Tower Loan subsidi-
aries. In signing the loan agreement, Willis agreed to an arbitration agree-
ment found on its back side (“first arbitration agreement”). And in purchasing
the insurance policies, Willis agreed to a separate arbitration agreement (“sec-
ond arbitration agreement”). Though Tower Loan didn’t sign the second agree-
ment, a Tower Loan representative had handed it to Willis for his signature. 1

       The two arbitration agreements are similar but not identical. Start with
the similarities. Both broadly require arbitration for all disputes between and
among Willis, Tower Loan, and the insurance companies, including any that
arise from the loan or the policies. Each agreement binds Willis to arbitrate
any dispute with Tower Loan’s affiliates. Both delegate to the arbitrator the
power to decide gateway arbitrability issues, including whether a given claim
is covered. But the agreements conflict over several procedural aspects of the
arbitration, relating mainly to the selection and number of arbitrators, time to
respond, location, and fee-shifting.

       In January 2017, Willis filed for Chapter 7 bankruptcy. About four


       1That fact is not in the record, but counsel for Tower Loan conceded at oral argument
that a Tower Loan representative—and not a representative for the insurance companies—
handed Willis the second arbitration agreement.
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months later, he sued Tower Loan in an adversary proceeding, alleging that
the company had violated the TILA,
15 U.S.C. § 1601
 et seq., by providing in-
accurate disclosures in the loan agreement. After answering, Tower Loan
moved to dismiss or compel arbitration.

       The bankruptcy court denied the motion. It held that the first and sec-
ond arbitration agreements formed a single contract and that the conflicting
provisions meant that Willis and Tower Loan hadn’t formed a sufficiently
definite contract to arbitrate under Mississippi law. The district court affirmed
in a terse opinion that added nothing on the merits. 2 Tower Loan appeals,
contending that the arbitration agreements should be construed separately
and that even if we construe them together, the parties still formed a valid
contract.

                                             II.
       “We review de novo a ruling on a motion to compel arbitration” and follow
“two analytical steps” in doing so.          Kubala v. Supreme Prod. Servs., Inc.,
830 F.3d 199, 201
 (5th Cir. 2016). We first apply state law to determine
whether the parties formed “any arbitration agreement at all.”
Id.
 Second, we
interpret the contract “to determine whether this claim is covered by the arbi-
tration agreement.”
Id.
 The second step is also ordinarily for the court.
Id.
But “the analysis changes” where the agreement delegates to “the arbitrator
the primary power to rule on the arbitrability of a specific claim.”
Id.
 In such
a case, we ask only whether there is a valid delegation clause. 3 If there is, then
the arbitrator decides whether the claim is arbitrable.
Id.



       2 Because the district court’s opinion adopted the bankruptcy court’s reasoning in its
entirety, our references are to the bankruptcy court.
       3Specifically, we ask whether the clause “evinces an intent to have the arbitrator
decide whether a given claim must be arbitrated.” Kubala,
830 F.3d at 202
.
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                                             III.
       The first question per Kubala is whether, as a matter of Mississippi law, 4
the parties created a valid contract to arbitrate.
Id.
 That requires us to resolve
two related issues. First, should the arbitration agreements be construed as
one contract? Second, assuming we construe them together, did the parties
have a meeting of the minds as to arbitration?

                                A. Contract Construction
       The bankruptcy court construed the arbitration agreements together,
noting that both cover all disputes between Willis and Tower Loan. Tower
Loan contends that the agreements should be construed separately because
Tower Loan assented only to the first arbitration agreement and not the sec-
ond. The company suggests that because it did not sign or otherwise agree to
the second, it cannot be considered a party to it. Hence, on Tower Loan’s
theory, only the first agreement applies.

       We disagree. Under Mississippi law, “when separate documents are exe-
cuted at the same time, by the same parties, as part of the same transaction,
they may be construed as one instrument.” 5 All of those requirements are met,
so the bankruptcy court properly construed the agreements as one.

       First, Tower Loan is a party to the second arbitration agreement just as
it is to the first. Tower Loan conceded at oral argument that its representative
handed Willis both arbitration agreements to sign. And the agreements are


       4Because the loan agreement has a choice-of-law provision for Mississippi, we apply
the law of that state. See Nethery v. CapitalSouth Partners Fund II, L.P.,
257 So. 3d 270, 273
 (Miss. 2018) (applying Delaware law per the contract’s choice-of-law clause in reviewing
motion compelling arbitration).
       5  Sullivan v. Mounger,
882 So. 2d 129, 135
 (Miss. 2004); accord Neal v. Hardee’s Food
Sys., Inc.,
918 F.2d 34, 37
 (5th Cir. 1990) (“Under general principles of contract law, separate
agreements executed contemporaneously by the same parties, for the same purposes, and as
part of the same transaction, are to be construed together.”).
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closely related. Each requires Willis to arbitrate any dispute involving Tower
Loan. Both apply to all disputes that arise from the loan Willis received and
the insurance he purchased. Moreover, the loan agreement—to which Tower
Loan is indisputably bound—shows that Willis purchased the insurance poli-
cies that the company insists are part of an entirely separate transaction. 6           5F




       Next, Tower Loan and Willis executed the two agreements at the same
time and as part of the same transaction. As stated above, a Tower Loan rep-
resentative handed Willis both agreements, and the loan agreement evidences
both the loan and the insurance purchases. Accordingly, the arbitration agree-
ments were “executed at the same time, by the same parties, as part of the
same transaction.” Sullivan,
882 So. 2d at 135
. We construe them together.

                                 B. Meeting of the Minds
       Next, construing the agreements as one, we decide whether Willis and
Tower Loan entered into a valid contract to arbitrate despite inconsistencies
in the contractual terms.

                                              1.
       To form a contract, Mississippi law requires, among other things, 7
“mutual assent” 8 or a “meeting of the minds” 9 as to essential terms, as well as


       6 On a related point, Tower Loan avers that the arbitration agreements are separate
because Willis supposedly executed them for different purposes—the first to get a loan, the
second to purchase insurance. We see it differently. As already noted, the loan agreement
shows that Willis purchased the insurance. And each arbitration agreement states that it
applies to any dispute arising from both the loan and the insurance. So, it makes little sense
to say that the agreements were executed for different purposes.
       7 Mississippi law also requires that there be multiple contracting parties with legal
capacity, consideration, and no “legal prohibition precluding contract formation.” See
GGNSC Batesville, LLC v. Johnson,
109 So. 3d 562, 565
 (Miss. 2013). Willis and Tower Loan
don’t dispute that those elements are met.
       8   GGNSC Batesville, LLC,
109 So. 3d at 565
.
       9   Howard v. TotalFina E & P USA, Inc.,
899 So. 2d 882, 889
 (Miss. 2005).
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a contract that is “sufficiently definite” to “enable the court under proper rules
of construction to ascertain its terms.” Leach v. Tingle,
586 So. 2d 799, 802
(Miss. 1991). A “[d]etermination that an agreement is sufficiently definite is
favored in the courts, so as to carry out the reasonable intention of the parties
if it can be ascertained.” Jones v. McGahey,
187 So. 2d 579, 584
 (Miss. 1966).
Thus, “[a] court will, if possible, interpret doubtful agreements by attaching a
sufficiently definite meaning to a bargain if the parties evidently intended to
enter into a binding contract.” 1 WILLISTON ON CONTRACTS (“WILLISTON”)
§ 4:21 (4th ed. 2019). Mississippi courts have not addressed whether conflict-
ing terms in an arbitration agreement prevent a contract from forming.

                                               2.
       The bankruptcy court identified several terms in conflict between the
two arbitration agreements. They relate to (1) the number of arbitrators, 10
(2) selection of arbitrators, 11 (3) time allowed to respond, 12 (4) location of the
arbitration, 13 (5) who pays the arbitration costs, 14 (6) who is entitled to


       10The first agreement requires a single arbitrator. The second provides for one arbi-
trator but permits either party to request a panel of three—provided that the requesting
party agrees to pay the extra costs.
       11 Both agreements state that the parties should mutually select an arbitrator. The
first agreement provides that if the parties cannot agree, then the Federal Arbitration Act’s
selection provisions will apply. But under the second agreement, if the parties can’t agree,
then the National Arbitration Forum will appoint the arbitrator.
       12 The first agreement gives a party thirty days to deliver an answering statement
after receiving notice of the demand for arbitration. The second allows only twenty.
       13 The first agreement requires that the arbitration take place in Rankin County,
Mississippi, unless the borrower requests that it be held in his county of residence or prin-
cipal place of business. But the second agreement requires that the arbitration be held in
the borrower’s county of residence unless the parties agree otherwise.
       14  The first agreement requires the lender to “pay the arbitrator’s fees and expenses
for the first two days of [the] hearings,” and it directs the arbitrator to require the parties to
“pay his or her fees and other costs according to the relative fault of the parties.” But the
second agreement requires the “company” to “pay all costs of the arbitration, except that each
party must” pay for its own attorneys, experts, and witnesses.
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attorneys’ fees and on what showing, 15 and (7) when arbitration doesn’t
apply. 16 The court held that those inconsistencies prevented a meeting of the
minds, so Willis and Tower Loan hadn’t agreed to arbitrate.

       For that conclusion, the bankruptcy court relied mainly on Ragab v.
Howard,
841 F.3d 1134
 (10th Cir. 2016), which applied Colorado contract law.
There (as here) the court analyzed multiple arbitration agreements that had
conflicting procedural terms and held that the inconsistencies precluded a
meeting of the minds. See
id.
 at 1136–38. Justice (then-Judge) Neil Gorsuch
dissented and would have concluded that the parties had agreed to arbitrate.
Id.
 at 1139–41 (Gorsuch, J., dissenting). He urged that even if the parties
“differ[ed] on the details concerning how arbitration should proceed,” they
united “on the fundamental question whether they wish[ed] to arbitrate or
not.”
Id. at 1139, 1141
. The rest was minor procedural detail. See
id. at 1139
.

                                              3.
       Willis asks us to follow Ragab and hold that the conflicting provisions
thwarted a meeting of the minds. We decline his request. The parties’ inten-
tions were unmistakable: They wished to arbitrate any dispute that might
arise between them. Not once but twice they stated that any dispute arising
from the loan Willis purchased should be arbitrated. Both agreements broadly
cover “all claims and disputes between” Willis and Tower Loan, and both
embrace any federal-law claim that Willis brings. The parties thus “evidently
intended to enter into a binding contract.” 1 WILLISTON § 4:21. We have more



       15The first agreement doesn’t say which party must pay fees for attorneys, experts,
and witnesses. But the second agreement says that each party must bear its own costs in
those regards unless the arbitrator decides otherwise.
       16The first agreement states that the lender isn’t required to arbitrate “for collection
matters of $10,000 or less” or before the lender “repossess[es] collateral or foreclos[es] upon
real property.” The second agreement contains no such carve-out.
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than enough to ascertain the terms. See Leach,
586 So. 2d at 802
.

       The conflicting provisions do not change that result. Though the agree-
ments differ over procedural details, they speak with one voice about whether
to arbitrate. We thus find good company in Justice Gorsuch: We will not shut
our eyes to an agreement that demonstrates a baseline intent to arbitrate just
because it contains inconsistent terms about procedural minutiae. See Ragab,
841 F.3d at 1139–41 (Gorsuch, J., dissenting).

       Willis points out that contracts fail for indefiniteness where they don’t
set out matters such as the price in a first-refusal contract or rent owed under
a lease. 17 So too here, he contends, we should find the contract indefinite
because of the inconsistencies. But the conflicting terms here aren’t like the
essential terms of price and rent. Instead, they concern such innocuities as the
number of arbitrators, location, and fee shifting. As Willis concedes, proce-
dural terms about “time for performance and time for payment are non-
essential.” 18 The inconsistent terms here are similarly non-essential. Hence,
under Mississippi law, the parties validly contracted to arbitrate.

                                              IV.
       Ordinarily the next step—after concluding that there is a valid
agreement—is to determine whether this claim is arbitrable. See Kubala,
830 F.3d at 201
. But because Tower Loan has pointed to a delegation clause,
we ask only whether the parties “evince[d] an intent to have the arbitrator



       17See Intrepid, Inc. v. Bennett,
176 So. 3d 775
, 778–79 (Miss. 2015) (“Without a definite
agreement as to the amount of rental, there can be no binding lease contract.”); Duke v.
Whatley,
580 So. 2d 1267, 1273
 (Miss. 1991) (refusing to enforce a first-refusal contract with
a missing price).
       18 See, e.g., Etheridge v. Ramzy,
276 So. 2d 451, 454
 (Miss. 1973) (recognizing that
time for payment isn’t an essential term); Smith v. Mavar,
21 So. 2d 810, 811
 (Miss. 1945)
(noting that time for performance isn’t an essential term).
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decide whether a given claim must be arbitrated.” Id. at 202. They did. Each
arbitration agreement has a delegation clause that mirrors the one we held
valid in Kubala. 19 Hence, it is for the arbitrator—not us—to decide whether
Willis’s TILA claim is arbitrable. See id. It is similarly the arbitrator’s pro-
vince to resolve the inconsistent procedural terms. 20

                                          * * * *

       For the foregoing reasons, the order denying Tower Loan’s motion to
dismiss or compel arbitration is REVERSED, and we REMAND to the district
court and direct it to refer the dispute to arbitration.




       19   The delegation clause in Kubala,
830 F.3d at 204
, stated that
       [t]he arbitrator shall have the sole authority to rule on his/her own jurisdiction,
       including any challenges or objections with respect to the existence, applicabil-
       ity, scope, enforceability, construction, validity and interpretation of this Policy
       and any agreement to arbitrate a Covered Dispute.
The delegation clause in the first arbitration agreement states that
       [t]he Arbitrator shall have the power to rule on his or her own jurisdiction,
       including any objections with respect to the existence, scope, or validity of the
       Arbitration Agreement, or the to the [sic] arbitrability of any claim or
       counterclaim.
The delegation clause in the second arbitration agreement states that the agreement applies
to disputes over “[w]hether the claim or dispute must be arbitrated” and “the validity of this
arbitration agreement.”
       20 See, e.g., BG Grp. PLC v. Republic of Arg.,
572 U.S. 25, 34
 (2014) (recognizing
general presumption that “the parties intend arbitrators, not courts, to decide disputes about
the meaning and application of particular procedural preconditions for the use of arbitra-
tion”); Howsam v. Dean Witter Reynolds, Inc.,
537 U.S. 79, 84
 (2002) (“Procedural questions
which grow out of the dispute and bear on its final disposition are presumptively not for the
judge, but for an arbitrator, to decide.” (cleaned up)).
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                                  No. 18-60344
JAMES L. DENNIS, Circuit Judge, dissenting:
      I respectfully dissent. In my view, the bankruptcy court properly applied
state law and common law contract principles in deciding there was not a
meeting of the minds or mutual assent on a contract to arbitrate. Hence, the
bankruptcy court and district court judgments refusing to order arbitration
should be affirmed. The majority of this panel reverses, however, following a
dissent in the Tenth Circuit Court of Appeals that relied on a unique analogy
to the “battle of forms” concept in UCC cases. See Ragab v. Howard,
841 F.3d 1134, 1140
 (10th Cir. 2016) (Gorsuch, J., dissenting).        The merit of that
dissent’s reasoning is debatable and does not appear to have been applied by
any court to decide a meeting of the minds issue with respect to arbitration. If
it is ever applied, its use should be limited to the kind of case and contract with
respect to which it was conceived: a case that “involves parties to a commercial,
not a consumer, transaction, with contracts actively negotiated by both sides,
not contracts of adhesion thrust upon the plaintiff.”
Id.
 Indeed, it is precisely
because Ragab involved transactions between knowledgeable merchants that
the Ragab dissent deemed the battle of the forms—in which “conflicting terms
[on merchants’ standardized forms] . . . knock each other out but do not void
[a] contract”—an apt analogy.
Id.
 The present case, by contrast, involves
ordinary consumer loan and insurance contracts that were presented to Willis,
a mechanic and truck driver, without his having had the benefit of counsel or
bilateral negotiation, but on a take it or leave it basis. Given this consumer
transaction context, I agree with the bankruptcy court that an analogy to the
“mirror image” rule, where neither party is bound when the acceptance differs
from the offer, is more appropriate. Accordingly, I believe the majority falls
into serious error in adopting the Ragab dissent as a model for deciding the
issue of mutual assent in consumer transactions in our circuit.
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                                 No. 18-60344
      The Supreme Court has repeatedly reaffirmed that the Federal
Arbitration Act (FAA) “declare[s] a national policy favoring arbitration of
claims that parties contract to settle in that manner.” Preston v. Ferrer,
552 U.S. 346, 353
 (2008) (alteration in original) (internal quotation marks and
citation omitted). In determining whether to enforce an arbitration agreement,
our circuit follows “two analytical steps. The first is contract formation—
whether the parties entered into any arbitration agreement at all. The second
involves contract interpretation to determine whether this claim is covered by
the arbitration agreement.” Kubala v. Supreme Prod. Servs., Inc.,
830 F.3d 199, 201
 (5th Cir. 2016). The initial question, therefore, is whether as a matter
of state contract law, the parties have entered into a valid arbitration
agreement. See
id. at 202
. Importantly, the “federal policy favoring arbitration
does not apply to th[is] determination.” Fleetwood Enters., Inc. v. Gaskamp,
280 F.3d 1069
, 1073–74 (5th Cir. 2002), opinion supplemented on denial of
reh’g,
303 F.3d 570
, 571 (5th Cir. 2002).
      Under Mississippi law, a meeting of the minds is required to form a
contract. See Brooks v. Brooks,
111 So. 376, 377
 (Miss. 1927). As the majority
notes, there is no Mississippi caselaw on whether conflicting terms in
arbitration agreements may prevent a meeting of the minds and thus thwart
the formation of a contract to arbitrate.        However, two courts in outside
jurisdictions have addressed this subject and concluded that the parties in each
case did not agree to arbitrate. See Ragab,
841 F.3d at 1138
; NAACP of
Camden Cty. E. v. Foulke Mgmt. Corp.,
24 A.3d 777, 794
 (N.J. Super. Ct. App.
Div. 2011). The majority makes scant mention of the principal holding in the
first case, Ragab v. Howard, focusing almost solely (and misguidedly) on the
dissent by then Judge (now Justice) Gorsuch and does not even cite the NAACP
of Camden Cty. E. v. Foulke Mgmt. Corp. decision. An examination of the
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                                  No. 18-60344
Ragab majority opinion and NAACP, however, shows that their reasoning is
persuasive and ought be applied here.
      In NAACP, a consumer who was buying a new vehicle signed various
documents provided by the dealership in connection with her purchase.
24 A.3d at 780, 794-95
. Several of the forms contained arbitration provisions,
which conflicted with respect to the following material terms: (1) the venue of
the arbitration, (2) which arbitration organization’s rules would govern, (3) the
time by which arbitration must be initiated, (4) how the costs of arbitration
would be allocated, including whether a party was liable for attorneys, experts,
and witness fees and on what showing, and (5) class-action waiver provisions.
Id. at 794-95
. After a dispute arose between the parties, the dealership moved
to compel arbitration.
Id. at 780
. A New Jersey appeals court determined that
there was no “meeting of the minds” on the issue of arbitration and thus no
enforceable arbitration agreement because “[v]iewed in their totality, the
arbitration provisions . . . are too plagued with . . . inconsistencies to put a
reasonable consumer on fair notice of their intended meaning.”
Id. at 794
.
      Similarly, in Ragab, the Tenth Circuit majority confronted multiple
arbitration agreements that conflicted over “(1) which rules will govern, (2)
how the arbitrator will be selected, (3) the notice required to arbitrate, and (4)
who would be entitled to attorneys’ fees and on what showing.” Ragab,
841 F.3d at 1136
. Applying Colorado law, the Tenth Circuit affirmed the district
court’s denial of a motion to compel arbitration.
Id.
 Like the NAACP court,
the Tenth Circuit concluded that the multiple inconsistencies thwarted a
meeting of the minds—a requirement under state law to form a contract.
Id.
at 1137-38 (citing Agritrack, Inc. v. DeJohn Housemoving, Inc.,
25 P.3d 1187, 1192
 (Colo. 2001)).


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                                 No. 18-60344
      In the present case, the two arbitration agreements contain seven
conflicting terms, which the majority inappropriately downplays as differences
over mere “procedural minutiae.” In the majority’s view, these discrepancies
do not defeat the conclusion that the parties agreed on the fundamental
question of whether to arbitrate. Far from conflicting exclusively over a few
“procedural details,” however, the variances here are like those in NAACP and
Ragab: numerous and material, concerning terms that go to the heart of
arbitration. See Ragab,
841 F.3d at 1138
; NAACP,
24 A.3d at 794
; see also
Rotenberry v. Hooker,
864 So.2d 266, 270
 (Miss. 2003) (noting that under
Mississippi law, “[a] contract is unenforceable if the material terms are not
sufficiently definite”).
      Take, for instance, the discrepancy over how long a party has to respond
to a notice of demand for arbitration. While the first agreement provides for
thirty days to deliver an answering statement after receiving notice, the second
agreement permits only twenty days. A significant cost follows from filing an
untimely answering statement: the opposing party is entitled to select the
arbitrator. The length of time to respond to the notice is, thus, an important
aspect of this agreement, and the ten-day difference in time to file a reply is a
material distinction. Indeed, a difference over the length of notice required
prior to proceeding to arbitration was one of the four conflicts in Ragab deemed
significant enough to preclude formation of an agreement to arbitrate. See
Ragab,
841 F.3d at 1136
.
      Like the arbitration agreements in NAACP, the agreements here also
differ over the location of arbitration. See
24 A.3d at 794
. While the first
agreement requires that the arbitration be held in Rankin County, Mississippi,
unless the borrower requests in the demand for arbitration or answering
statement that it to be held in his county of residence, the second agreement
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                                       No. 18-60344
states the arbitration will occur in the borrower’s county of residence. The
impact of this distinction is reduced somewhat because the first agreement
empowers the borrower to move the arbitration to her county of residence, thus
aligning the agreements. However, the borrower can only do so if (when the
borrower is the party answering a demand) she timely files an answering
statement—and, as explained, the time by which a party must file such a
statement is uncertain.
       As with the arbitration provisions at issue in Ragab, the agreements
here further conflict regarding how the arbitrator will be selected. See Ragab,
841 F.3d at 1136
. The first agreement states that if the parties are unable to
agree upon an arbitrator then the provisions of the Federal Arbitration Act
(FAA) govern. See
9 U.S.C. § 5
. Under the FAA, the court designates the
arbitrator.
Id.
 Conversely, the second arbitration agreement provides that in
the event the parties do not agree upon the arbitrator then the National
Arbitration Forum (NAF) will appoint the arbitrator. 1
       The most glaring—and material—difference between the agreements
concerns who pays for the arbitration. This is analogous to both NAACP and
Ragab; in those cases, inconsistencies between provisions on how the costs of
arbitration would be allocated were key to the courts’ determination that there
was no meeting of the minds to arbitrate. See Ragab,
841 F.3d at 1136
;
NAACP,
24 A.3d at 795
. Here, the first agreement requires the lender to “pay
the arbitrator’s fees and expenses for the first two days,” yet later says that the



       1 The bankruptcy court noted that, following litigation, the NAF agreed to
permanently stop administering arbitrations involving consumer debt. Thus, under the
second agreement, it is unclear how an arbitrator will be selected if the parties cannot agree
on whom to appoint.


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                                  No. 18-60344
“arbitrator shall direct the parties to pay his or her fees and other costs
according to the relative fault of the parties.” The bankruptcy court recognized
this “internal[] inconsistency” in the first agreement.       As if that weren’t
confusing enough, the second agreement requires Tower Loan to “pay all the
costs of the arbitration, except that each party” pays for its own attorneys,
experts, and witnesses. In view of these contradictions—both internal and
otherwise—the bankruptcy court aptly opined that it couldn’t “discern whether
Tower Loan pays none, some, or all of the costs” of the arbitration.
      As demonstrated, the extent of the conflicting terms here parallels the
contradictory provisions in Ragab and NAACP. See Ragab,
841 F.3d at 1136
;
NAACP,
24 A.3d at 794-95
. Indeed, the differences here are more numerous
than in either of those cases. Without rehashing the details of the other
remaining differences between the agreements—including over the number of
arbitrators—it suffices to say that these conflicting terms are so copious and of
such considerable import that there was no meeting of the minds. See Brooks
v. Brooks,
111 So. 376, 377
 (Miss. 1927).
      While the sheer number of discrepancies militates in favor of a
determination that there was no formation of a contract to arbitrate, this
conclusion is further supported by the nature of the conflicts. I simply cannot
agree with my colleagues’ conclusion that these inconsistencies relate only to
“non-essential” provisions.    For instance, the matter of who pays for the
arbitration is more akin to the essential term of price in a contract than it is to
a mere “procedural detail’’ of the arbitration. See Leach v. Tingle,
586 So. 2d 799, 803
 (Miss. 1991) (noting that price is an essential term of a contract); see
also Ragab,
841 F.3d at 1137
 (finding that the three conflicting provisions
prevented an agreement “upon all essential terms” (quoting I.M.A., Inc. v.
Rocky Mountain Airways, Inc.,
713 P.2d 882, 888
 (Colo. 1986))); NAACP, 24
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      Case: 18-60344   Document: 00515233677         Page: 16   Date Filed: 12/12/2019



                                     No. 18-60344
A.3d at 798 (describing the conflicting terms as relating to “material parts of
the arbitration”). It is also worth observing that this is not a case where one
of the agreements contains a merger clause, which could potentially permit
that agreement’s arbitration clause to supersede the other one, thereby
resolving the problem of the conflicting provisions. Cf. Ex parte Palm Harbor
Homes, Inc.,
798 So.2d 656, 660-61
 (Ala. 2001) (compelling arbitration
pursuant to the terms contained in a contract with a merger clause because
the merger clause caused that contract to supersede other agreements that had
differing arbitration provisions).
        The arbitration provisions here are “too plagued with . . . inconsistencies
to put a reasonable consumer on fair notice of their intended meaning.” Ragab,
841 F.3d at 1138
 (quoting NAACP,
24 A.3d at 794
). What’s more, arbitrarily
enforcing the terms of one agreement “[w]ould violate the other” agreement.
Id.
    In sum, the cumulative effect of the conflicting terms compels the
conclusion that there was no mutual assent to arbitrate, and thus Willis cannot
be forced to arbitrate. See GGNSC Batesville, LLC v. Johnson,
109 So. 3d 562, 565
 (Miss. 2013) (stating that “mutual assent” is an essential term of a
contract).
        For these reasons, I respectfully dissent.




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