On Appeal from the Circuit Court of Hinds County, Mississippi CAUSE NO. 25Cl1:14-cv-434-JAW

Transcription

1 E-Filed Document Oct :16: CA SCT Pages: 27 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE NO.: 2015-CA JANE DOE APPELLANT V. HALLMARK PARTNERS, LP; SJP ONE, LLC; NEW HORIZONS DEVELOPMENT, LLC; VERONICA MOORE; NEW HORIZONS MANAGEMENT, LLC; SECURITY ENGINEERS, INC.; AND JOHN DOES 1-10 APPELLEES APPELLANT S REPLY On Appeal from the Circuit Court of Hinds County, Mississippi CAUSE NO. 25Cl1:14-cv-434-JAW ORAL ARGUMENT REQUESTED COUNSEL FOR APPELLANT JANE DOE JESSE MITCHELL, III (MSB No ) JESSICA MCLAURIN (MSB No ) THE MITCHELL FIRM, PLLC 1020 HIGHLAND COLONY PKWY, SUITE 704 RIDGELAND MS TEL: FAX:

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE NO.: 2015-CA JANE DOE APPELLANT V. HALLMARK PARTNERS, LP; SJP ONE, LLC; NEW HORIZONS DEVELOPMENT, LLC; VERONICA MOORE; NEW HORIZONS MANAGEMENT, LLC; SECURITY ENGINEERS, INC.; AND JOHN DOES 1-10 APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Honorable Jeff Weill, Sr. Hinds County Circuit Court Judge 2. Jane Doe - Appellant 3. Hallmark Partners, LP Appellee 4. SJP One, LLC Appellee 5. New Horizons Development, LLC Appellee 6. Veronica Moore Appellee 7. New Horizons Management, LLC Appellee 8. Security Engineers, Inc. Appellee 9. John Does Appellee 10. Jesse Mitchell, III and Jessica McLaurin - Attorneys for Appellant 11. Adria H. Jetton, La Verne Edney and Everette E. White - Attorneys for Appellee 12. Patrick Patronas Attorney for Appellee (Security Engineers, Inc.) /s/ Jesse Mitchell Jesse Mitchell, III Attorney of record for Appellant 2

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES...2 TABLE OF CONTENTS TABLE OF AUTHORITIES...5 STATEMENT OF THE ISSUES...6 STATEMENT OF THE FACTS SUMMARY OF THE ARGUMENT STANDARD OF REVIEW...10 ARGUMENT...10 A. A two step-inquiry is required to determine if a dispute must be submitted to arbitration. B. The arbitration agreement is a broad arbitration clause with limitations, and Jane s claims fall outside the limits of the arbitration agreement. (1) Defendants argue that no court has ever detected that broad arbitration clauses have limits, but agree that broad arbitration clauses have limits, and contend that the arbitration agreement has no limits. (2) Broad arbitration clauses can be far reaching and embrace disputes that have a significant relationship to the contract. But courts have recognized that clauses with related to language, are broad clauses with limits. (3) Defendants argue that case law reflects that similar premise liability claims have been found to be within the scope of broad arbitration agreement. C. Courts give no credence to language that specifically includes or excludes coverage of general causes of action such as tort law. D. Courts focus on factual allegations to determine if a claim falls within the scope of an arbitration agreement, and the scope of the agreement hinges upon the source of Jane s injury the rape. 3

4 1. Courts focus on factual allegations to determine if a claim has a significant relationship to the contract and whether the factual allegations breach the outer limits of the arbitration language. 2. Because Jane s rape occurred in the parking lot, a common area on the premises, and the arbitration clause is limited only to the occupancy and leasing of an apartment unit, her claims fall outside the scope of the arbitration agreement. (a) Jane cannot be required to submit a dispute to arbitration where she did not agree to do so. CONCLUSION...25 CERTIFICATE

5 TABLE OF AUTHORITIES Cases Adams v. Greenpoint Credit, LLC., 943 So. 2d 703 (Miss. 2008)..23 Cappaert v. Junker, 413 So. 2d 378 (Miss. 1982)..22 Freese v. Mitchell, 2014 WL (Miss. 2014). 10, 13, 20, 21, 22, 23 Jones v. Haliburton Co., 583 F. 3d 228 (5 th Circ. 2009)..10, 12, 14-19, 24 Niolet v. Rice, 20 So. 3d 31, 34 (Miss. Ct. App. 2009). 18 Page v. Captain D s, LLC., 2012 WL (S.D. Miss 2012) 12, 15, 17 Pennzoil Exploration and Production Co. v. Ramco Energy, Ltd., 139 F. 3d 1061 (5 th Cir. 1998)..13, 14 Rogers-Dabbs Chevolet-Hummer, Inc. v. Blakeney, 950 So. 2d 170 (Miss. 2007) 11 Smith ex rel. Smith v. Captain D s, LLC., 963 So. 2d 1116 (Miss. 2007) 9, 12, 13, 15, 18, 21 Woodard v. Pebble Creek, No. 3:06-cv (S.D. Miss. Dec. 17, 2007)..15, 16 Community Care Ctr. of Vicksburg, LLC v. Mason, 966 So. 2d 220 (Miss. Ct. App. 2007)..17, 18 5

6 STATEMENT OF THE ISSUES 1. Scope of arbitration. Even broad clauses have limits. Jane executed an apartment lease and a broad arbitration agreement with Hallmark, covering all disputes arising out of or in any way related to Jane s occupancy and leasing of an apartment unit. Jane was raped in Hallmark s parking lot by third parties, and brought negligence claims against Hallmark. Does Jane s claims exceed the arbitration clause s limits? 2. Factual allegations. To determine if a dispute falls within the scope of an arbitration agreement, courts focus on factual allegations in the complaint rather than the legal causes of action asserted. Yet, the trial court only focused on Jane s negligence claims, such as, Hallmark failed to provide adequate security, and held that these claims related to the leasing and occupancy of her apartment unit. Shouldn t the factual allegations be based upon the underlying injury, Jane s rape claim? 6

7 STATEMENT OF THE FACTS Jane Doe is a former resident of Hallmark Gardens apartments located at 987 E. Northside Drive in Jackson, Mississippi. 1 She entered into a Lease agreement with Hallmark on September 20, 2013, and later executed an arbitration agreement six months after entering into her Lease agreement. 2 The operative portion of the agreement requires arbitration of any dispute, claim or controversy arising out of or in any way related to [Plaintiff s] occupancy and leasing of the subject property from [Hallmark]. 3 Hallmark s management company, New Horizons Management, contracted with Security Engineers to provide uniformed security officers to patrol two of their properties: Hallmark and Holly Hills. The schedule of services was contracted for eight hours shared between the two properties. 4 On Easter Saturday, around noon, Jane left her apartment unit and walked to her car in the parking lot, located in the center of the apartment complex, directly in front of the mailbox area, and very close to the leasing office. 5 Before she was able to get inside of her car, two males unknown to her, rushed Jane at gunpoint, struck her, and forced her to get into the back seat of her car. 6 Holding her against her will, the two males violently and brutally raped and attacked Jane. They pistol-whipped and raped her multiple times, all while in Hallmark s parking lot only steps away from 1 R. 14, Jane Doe s Complaint. 2 R , 53-54, Lease Agreement and Arbitration Agreement. 3 R. 53, Arbitration Agreement. 4 R , Affidavit of James Bottom and Service Agreement. 5 R , Jane Doe s Complaint. 6 Id. 7

8 the leasing office. 7 Security Engineers was not patrolling Hallmark s premises when Jane was attacked and no one came to her aid. After having their way with Jane, the two males kidnapped Jane off the premises. 8 Unknown to Jane at the time of her attack, since 2009, multiple instances of criminal activity has required the Jackson Police Department to respond to both the immediate vicinity and the actual premises of Hallmark Gardens. These incidents include: Armed Robbery, Auto Theft and Burglary, House Burglary, Assault, Carjacking, Kidnapping, Rape, Purse Snatching, Shooting, and Threats. 9 Jane now seeks recovery for the injuries she suffered and damages which include: medical related expenses, pain and suffering, emotional distress, and punitive damages. Jane filed her lawsuit against New Horizons Management (Hallmark s management company), Hallmark Partners (the owner of the complex), SJP One (a Hallmark general partner), Veronica Moore (Hallmark s former property manager), and Security Engineers; all for their failures to exercise reasonable care to keep the Hallmark Gardens premises reasonably safe for invitees. 10 SUMMARY OF THE ARGUMENT Mississippi law is well settled that this Court will not reach a result inconsistent with the plain language of a contract. Here, in order to remain in her apartment unit, Hallmark mandated that Jane execute a lease agreement and an 7 Id. 8 Id. 9 Id. 10 Id. at 17. 8

9 arbitration agreement, six months after she had already moved in, requiring arbitration of claims related to Jane s leasing and occupancy of the leased apartment unit. Arbitration agreements are not a novel issue, and courts have characterized arbitration clauses as narrow and broad clauses. Broad clauses can further be distinguished as limited-broad and broadest clauses. Clauses that require arbitration of claims that relate to a contract are limited-broad clauses that limit the scope of the arbitration agreement. Said differently, these type clauses do not reach far enough to encompass purely all claims between the parties. While a Hallmark tenant, two males forced Jane at gunpoint into the backseat of her car and violently attacked and raped her multiple times, all while the car was parked in Hallmark s parking lot. Hallmark moved to compel arbitration of Jane s rape claims. Jane and Hallmark executed a limited-broad clause that never contemplated such an heinous crime be allowed to occur in Hallmark s parking lot, therefore, the scope of the arbitration agreement does not encompass Jane s rape claims. As far as we have been able to discover, no binding precedent is directly factually on point to the case here, as it relates to liability of landlords in common area apartment rape cases. Both this Court and the Fifth Circuit, however, have laid the foundation to examine whether a rape claim lies outside the scope of an arbitration clause, with an employment contract, like the one concerning Jane s lease. The following cases provide the helpful groundwork to examine this case: Smith v. Captain D s, (Miss. 2007): The question of scope is narrowed to whether [her] rape claim arises out of or relates to [the contract]. 9

10 Freese v. Mitchell, 2014 WL (Miss. May 15, 2014): In determining whether a particular claim falls within the scope of an arbitration agreement, this Court has adopted the federal court s instruction to focus on factual allegations in the complaint rather than the legal causes of action asserted Jones v. Haliburton, (5th Cir. 2009): The court refuses to read the [related to language of the] arbitration provision so broadly as to encompass any claim related to [the other party], or any incident that happened during [the contractual relationship because] that is not the language of the contract. STANDARD OF REVIEW A trial court s order to compel arbitration is a question of law and a de novo standard of review is applied. 11 Under a de novo review, this Court owes no deference to the trial court s analysis. Instead, this court must view the case anew to determine if the parties agreed to arbitrate Jane s rape claim. ARGUMENT A. A two step-inquiry is required to determine if a dispute must be submitted to arbitration. The parties agree that the Federal Arbitration Act applies to the arbitration at issue. Under FAA, to determine the validity of a motion to compel arbitration, courts conduct a two-step inquiry to determine whether a party is required to submit their claim to arbitration. 12 The first step is to determine if the parties agreed to arbitrate the dispute. This step involves two considerations: (1) does a valid arbitration 11 Smith v. Capt. D s, LLC, 963 So. 2d 1116, 1119 (Miss. 2007). 12 Id. at

11 agreement exist between the parties and 2) does the parties dispute fall within the scope of the arbitration agreement. If both questions are positively answered then the court moves to the second step and asks whether any legal constraints render the claims nonarbitrable. 13 This appeal focuses on the first step whether the parties agreed to arbitrate the dispute and further narrowed to whether Jane s claims fall within or outside the scope of the arbitration agreement. B. The arbitration agreement is a broad arbitration clause with limitations, and Jane s claims fall outside the limits of the arbitration agreement. Both parties agree that Courts categorize arbitration agreements as broad or narrow. Broad arbitration agreements have further been illustrated as having limits and other broad clauses with no limits. The clause at issue here is a broad arbitration clause with limits. For the sake of clarity, Jane s earlier brief labels this type of clause as a limited-broad arbitration clause and this label is used throughout Jane s briefs to refer to broad arbitration clause with limits. Defendants assert that Jane has made-up a new category to avoid the reach of a broad clause, however, Jane provides this label only for simplicity in Jane s discussions and not to misguide this court. Notably, although courts have not labeled or named such a clause, courts have explained or found certain broad arbitration clauses to have limitations. (1) Defendants argue that no court has ever detected that broad arbitration clauses have limits, but agree that broad arbitration clauses have limits, and contend that the arbitration agreement has no limits. 13 Id. at 1120 (citing Rogers-Dabbs v. Blakeney, 950 So. 2d 170, 173 (Miss. 2007)). 11

12 Defendants pose that Jane has invented a new standard to apply to arbitration agreements and that this Court should apply the traditional broad standard that has been recognized by this Court for the last two decades. 14 The parties both agree, however, that courts categorize arbitration agreements as either broad or narrow, and both parties even agree that broad arbitration clauses have limits. 15 Courts describe narrow clauses one that requires arbitration of disputes arising out of the contract while broad arbitration clauses govern disputes related to or connected with the contract. 16 But, Defendants assert that a broad arbitration clause with limits is not an issue before this Court; and that the standard Jane presents is concocted to avoid the reach of a broad clause. This is an attempt to distract this Court from recent case law that illustrates the contrary, namely, Smith, Jones, and Page. (2) Broad arbitration clauses can be far reaching and embrace disputes that have a significant relationship to the contract. But courts have recognized that clauses with related to language, are broad clauses with limits. In Smith, this Court, sitting en banc, addressed whether a rape claim falls outside the scope of an arbitration clause. After her supervisor assaulted and raped her, Smith sued Captain D s for negligent hiring, supervision, and retention of her manager. 17 The arbitration clause required arbitration of claims arising out of or relating to [Smith s] application for employment, employment and/or cessation of 14 Hallmark Brief at Id. 16 Smith, 963 So. 2d at 1121; Jones, 583 F. 3d at Id. at

13 employment with Captain D s. 18 The Smith Court relied on the Black s Law Dictionary s definition of relate, which means to stand in some relation; to have bearing or concern; to pertain, refer; to bring into association with or connect with. 19 The Smith Court narrowed the question of scope as whether [Smith] s rape claim arises out of or relates to [Smith s] application for employment, employment, and/or cessation of employment with Captain D s, so as to subject [Smith s] sexual assault claim to arbitration. 20 Ultimately this Court unquestionably found that Smith s rape did not pertain to or have a connection with her employment. 21 The Court recognized the breadth of the arbitration language, but ultimately held that the language was not broad enough to require arbitration of Smith s sexual assault claim. 22 These type clauses do not automatically encompass any and all claims raised, but, require the court determine whether the claims asserted actually relate to the contract in dispute. The Smith court did not specifically label the arbitration provision as a broad arbitration clause with limitations, however, as recently as 2014, in Freese v. Mitchell, this Court quoted that even broad arbitration clauses have their limits, recognized Smith as example of one those occurrences. 23 The Court has in fact recognized that broad arbitration clauses have limits. Here, the agreement requires arbitration of all claims arising out of or in any way related to [Jane s] occupancy and leasing of the subject property from [Hallmark]. 24 And as discussed 18 Id. at Id. at Id. 21 Id. 22 Id. 23 Freese v. Mitchell, R

14 in Smith, the question of scope in this case should be narrowed to whether Jane s rape claim arises out of or relates to Jane s occupancy and leasing of an apartment unit. In Pennzoil Exploration and Production Co. v. Ramco Energy Ltd., the Fifth Circuit recognized that with broad clauses, disputes need only touch matters covered by the contract to be arbitrable. 25 Thus, arbitrability hinges upon the dispute s relationship to the contract. In other words, does Jane s rape claims touch matters covered by the lease agreement? In Jones, the Fifth Circuit used the Pennzoil dictum to discuss limited broad clauses. The Jones court faced similar facts as this Court in Smith, as Jones was sexually assaulted by several coworkers in her bedroom located in Baghdad, which was employee housing provided by Haliburton. 26 Jones signed an employment contract which required arbitration of any and all claims that you might have against [Haliburton] related to your employment, including your termination, and any and all personal injury claims arising in the workplace. 27 The court distinguished that, although, the related to clause creates a broad reach, the extent of that reach is not unbounded. 28 The Fifth Circuit further stressed that the court would only apply the language of the agreement as it read and refused to read the provision so broadly as to encompass any claims related to Jones s employer, or any incident that happened during her employment. 29 Ultimately, the court held that 25 Pennzoil, 139 F. 3d at Jones, 583 F. 3d at Id. at Id. at Id. at

15 Jones s rape claim fell outside the scope of the arbitration agreement, concluding that the outer limits of the related to language of the arbitration provision [had] been tested and breached. 30 In contrast, the arbitration agreement in Page v. Captain D s reflects the very language that the Jones court refused to read into the arbitration agreement language that encompasses all possible claims between the parties. 31 After its unsuccessful attempt to enforce a limited broad clause in Smith, Captain D s modified its arbitration language to effectively cover all disputes between Captain D s and its employees with no limitations. The arbitration provision in Page consisted of broader language, because it required arbitration of all legal claims between the Company and its employees, including those that relate to, arise from, concern, or involve in any way this Plan, the employment of the employee, or any other matter between the Company and the employee, whether or not involving the employee s employment with the Company. 32 (emphasis added). Page recognized that because the Smith and Jones arbitration clauses encompassed claims only related to the contract, those clauses were narrower in effect than the Page clause. In other words, Page involved the broadest possible arbitration clause, but Smith and Jones involved only a limited-broad clause. (3) Defendants argue that case law reflects that similar premise liability claims have been found to be within the scope of broad arbitration agreement. 30 Id. at Page v. Captain D s, 2012 WL (S.D. Miss. 2012) (unpublished) 32 Id. at *1. 15

16 In Woodard v. Pebble Creek, Woodard, a tenant of Pebble Creek Apartments, brought suit against the owners of the complex after her fifteen year old daughter was assaulted and raped inside their apartment. Woodard alleged that the owners of Pebble Creek breached their duty to provide adequate security on the premises and that breach caused the assault and rape. The defendants moved to compel arbitration based on the broad arbitration clause in Woodard s lease. Finding that the arbitration provision was valid and enforceable, and that Woodard s claims were within the scope of the agreement, the court ordered the parties to arbitrate the dispute. The arbitration agreement required that: any claims, demands, disputes, controversies and differences of any kind that may arise between the parties to this lease agreement shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association. Matters subject to binding arbitration include, but are not limited to, the breach of this lease agreement, the validity of this arbitration provision, all claims for personal injury. 33 Here, Defendants attempt to use Woodard to draw comparison as to the scope of the arbitration agreements, as if to show that when a tenant signs an arbitration agreement within the lease, and then brings premise liability claims, the tenant must automatically arbitrate their claims. But, if the layers are peeled back, Woodard actually supports Jane s arguments even more, as it describes the reach of the agreement just as in the Page and Jones court explained. Judge Jordan said it best during the hearing on the matter: Because this provision is not limited to the claims arising out of this agreement, but instead governs claims that may arise between the 33 R , Pebble Creek hearing transcript; Woodard v. Pebble Creek, No. 3:06-cv (S.D. Miss. Dec. 17, 2007). 16

17 parties, and because it further states that the subject of binding arbitration includes all claims for personal injury, I find that this is a broad arbitration clause. The majority of federal cases I have read, including those cited in the defendants' memorandum, have held that broad language such as this applies retroactively. In sum, the language is significant because it does not operate like the arbitration clause in Smith, Jones, or the one at issue before this court which tie the arbitration agreement to disputes that may relate to the lease agreement, instead Woodard, like Page refers to all claims between the parties, nothing more, and with no limitations. This is the very type of broad arbitration agreement that is capable of expansive reach, not the arbitration clause before this court. In Community Care Ctr. of Vicksburg, LLC v. Mason, Former nursing home resident filed a complaint against nursing home alleging negligence, negligence per se, premise liability, and gross negligence after she allegedly was attacked by another resident while alone in her room and fell, breaking her hip. 34 Although the court found that the Plaintiffs negligence claims were within the scope of the arbitration agreement, its discussion is unhelpful as it does not provide details as to why the dispute is clearly within the scope arbitration agreement. Moreover, the Mississippi Court of Appeals decided the Mason case in October 2007; and the Supreme Court decided the Smith case (addressed above) earlier that year, June In 2009, however, the Court of Appeals decided a more closely factually related case, Niolet v. Rice, that involved whether or not an employee s sexual assault claim was within the scope of the arbitration agreement. The court did not follow the Mason 34 Community Care Ctr. of Vicksburg, LLC v. Mason, 966 So. 2d 220 (Miss. Ct. App. 2007). 17

18 case, a nursing home case, instead the court followed the Smith court to determine that the Niolet s claims premised upon sexual assault were not related to her employment and thus was outside of the scope of the arbitration agreement. The court explained that [t]his holding is consistent with the supreme court s holding in [Smith] where under the broad language in an arbitration agreement, the supreme court found that a claim of sexual assault neither pertains to nor has a connection with [the employee s] employment. 35 Likewise, this Court should not follow the Mason case. Defendants further assert that because the district court at the trial level compelled arbitration of Jones premise claims, this Court should compel Jane s claims. The district court did submit Jones premise claims to arbitration. Jones negligence claims included that the defendants failed to exercise ordinary or reasonable care in providing a safe living environment. The district court explained that it believe that Jones status as an invitee would at least touch on her employment. 36 But, this issue was not presented to the Fifth Circuit Court on appeal. The Court only addressed the claims that the district court found to be outside the scope of the arbitration agreement. Even though the Fifth Circuit did not address Jones s premise claims, the court s analysis is helpful to understand the court s approach that would have been applicable to this issue. The court explained that if non-haliburton employees were allowed where Jones s assault occurred and he or she 35 Niolet v. Rice, 20 So. 3d 31, 34 (Miss. Ct. App. 2009) (quoting Smith v. Captain D s, 963 So. 2d at 1121). 36 Jones, 625 F. Supp.2d 339, 352 (S.D. Tex. 2008). 18

19 had been assaulted by Haliburton employees, the non-employee would have an actionable claims; as such, Jones would also have an actionable claim, despite that she was an employee. C. Courts give no credence to language that specifically includes or excludes coverage of general causes of action such as tort law. In an effort to broaden their reach, the Smith and Jones arbitration agreements took an extra step to generally define covered disputes. In Smith, the arbitration agreement included all claims under common law, contract law, and tort law. 37 In Jones, the arbitration agreement defined dispute to include all legal claims of whatever nature or kind, whether contract or tort law. 38 With each of these attempts, the courts gave no credence to these definitions or inclusions. Here, Defendants, on the other hand, contend that the exceptions carved out of the arbitration clause should be considered and in fact are helpful to understand what the parties agreed to arbitrate. 39 The arbitration agreement provides that disputes that are not subject to arbitration include: (1) any amount related to rent payments and (2) any amount related to the lessor s property. 40 Specifically Defendants state their argument as follows: [i]f the parties agreed not to arbitrate disputes over rent, damage to personal property, or other claims for less than $5,000, then they necessarily did agree to arbitrate some other kind of claims of more than $5,000 (e.g., personal injury premises liability claims). 41 But just as the courts in Jones and 37 Smith, 963 So. 2d at Jones, 583 F. 3d at Hallmark Brief at R Hallmark Brief at

20 Smith gave no weight to the attempted inclusions within the arbitration s agreement, likewise the limiting exceptions, here, should not be a factor to be considered to determine the claims covered by the agreement. D. Courts focus on factual allegations to determine if a claim falls within the scope of an arbitration agreement, and the scope of the agreement hinges upon the source of Jane s injury the rape. 1. Courts focus on factual allegations to determine if a claim has a significant relationship to the contract and whether the factual allegations breach the outer limits of the arbitration language. Once the breadth of the arbitration clause is characterized as broad, the question of scope is answered through a fact specific analysis, to determine if the facts underlying the dispute falls out the agreement s limits. To resolve if a claim falls outside the scope of an arbitration agreement, courts focus on factual allegations in the complaint rather than the legal causes of action asserted. 42 Factual allegations are then used to discern if the dispute has a significant relationship to the contract and whether those facts exceed the limited arbitration language. Therefore, in this case the question is whether Jane s rape is related to the leasing and occupancy of an apartment unit. The Jones court recognized that the issue before it whether Jones s rape claim fell within the scope of the broad arbitration agreement requires a factspecific analysis. This factual analysis is crucial to the outcome in cases concerning broad arbitration clauses. Here, the court focused its attention on Jane s causes of 42 Jones, 583 F. 3d at 240; Freese v. Mitchell, 2013-CA SCT, 6 (Miss. 2014). 20

21 action against Hallmark in support of its decision to compel arbitration. The court considered the following allegations: Defendant s failed to provide a safe environment to its tenants. Defendant s failed to prevent foreseeable criminal attacks. Defendant s failed to provide adequate security. Nowhere in its analysis are the facts surrounding Jane s rape claims considered. This approach is wrong because it skips over the underlying facts surrounding the injury Jane s rape. Defendants argue that Jane poses an injury only approach, however, that is not true, but as already address, the Smith and the Jones court, narrow the question of scope to the underlying facts, and both Jones and the Smith court began its analysis with the injury plaintiff sustained before acknowledging any actions by the defendants. Defendants argue that even if this is true, Jane does not assert a rape claim but she asserts premise claims against Defendants. This argument simply fails, because Jones nor Smith alleged that their employers assaulted them, instead they alleged another party made the assault, but the court allowed their negligence claims. Defendants further argue that the court must consider the defendants conduct to determine whether the dispute in question is within the scope of the arbitration agreement; and because of the alleged conduct, her claims should be subject to arbitration. In Freese v. Mitchell, this Court clearly demonstrated its use of factual allegations, within its analysis, to decide whether a broad arbitration provision encompassed a dispute. Freese involved the issue of whether a fee dispute related to a retainer agreement executed between Mitchell, Freese, and their clients. This 21

22 Court summarized Mitchell s factual allegations as follows: (1) Mitchell was not paid the correct portion of the attorney s fees collected, (2) he was overcharged for litigation expenses, and (3) Freese failed to provide Mitchell with an accounting of disbursement to clients. 43 By the same token, Freese followed the same analysis as Jones and Smith, by beginning with the plaintiff s injury first and conducted its fact specific analysis based upon the underlying injury. 2. Because Jane s rape occurred in the parking lot, a common area on the premises, and the arbitration clause is limited only to the occupancy and leasing of an apartment unit, her claims fall outside the scope of the arbitration agreement. Premise owners have an affirmative duty to maintain and keep their premises reasonably safe. A residential lease conveys possessory interest of a unit, and the premise owner (ie. landlord) maintains absolute control of all common areas, such as the parking areas where Jane was raped. Its common areas are available for use by many, including: tenants, premise owners, guests, prospective tenants, Hallmark s employees, pizza delivery drivers, utility workers, and more. Premise owners have an affirmative duty to maintain these areas with reasonable care. 44 In opposition to this argument, Defendants arguments are collectively provided as follows: Because Jane was a resident, it does not matter if the rape occurred in the parking lot instead of her apartment, the rape is subject to arbitration. Whether or not defendants owed a duty to invitees is irrelevant. 43 Freese v. Mitchell, 2013-CA SCT. 44 Cappaert v. Junker, 413 So. 2d 378 (Miss. 1982). 22

23 Jane s rape does not render the dispute outside of the scope of the arbitration agreement and that it was not necessary that the parties contemplate the manner of the injury. Jane s claims that the premises were not properly maintained is the only kind of claim that could have been contemplated by the parties. But for Jane s leasing of an apartment at Hallmark Gardens, she would not have been present at Hallmark Gardens and would not have been the victim of an attack. The Lease explicitly mentions the Parties duties and responsibilities in the common areas of Hallmark Gardens, such as the parking lot where Jane s rape occurred. a. Jane cannot be required to submit a dispute to arbitration where she did not agree to do so. No party should be required to arbitrate claims to which he or she has not agreed. 45 Despite the federal policy favoring arbitration, our courts are required to submit to arbitration only what the parties agreed to submit to arbitration. 46 Mississippi law is well settled that this Court will not reach a result inconsistent with the plaint text of the contract, simply because the policy favoring arbitration is implicated. 47 If the agreement required Jane to simply arbitrate any and all claims against Hallmark, without more, a susceptible interpretation that Jane s claims relate to the arbitration clause, might exist. But here, the plain language by no means is vulnerable to an interpretation that includes Jane s claims within the scope of the arbitration agreement. Instead, limited by its own language, the agreement 45 Adams v. Greenpoint, 943 So. 2d 703,708 (Miss. 2006). 46 Id. 47 Freese v. Mitchell, 2013-CA SCT. 23

24 requires her to arbitrate all claims related to her leasing and occupancy of an apartment unit from Hallmark. The Fifth Circuit in Jones stated it best in its analysis, that: [I]f non-halliburton/kbr employees were allowed in the area where the alleged assault occurred, and Halliburton/KBR employees had assaulted such a non-employee, that person obviously would have an actionable claim. That Jones was the victim in the alleged assault, and that she happened to be a co-worker of the alleged perpetrators, should not, and does not, change the calculus. 48 Following Fifth Circuit s same analysis, likewise, Jane stood in the shoes of any other guest or invitee on the premises and had any other guest been assaulted in the parking lot, that person would obviously have an actionable claim. Thus, Jane did not act in any way related to her leasing and occupancy of her apartment unit by being the victim of rape in Hallmark s parking lot. Hallmark s apartment lease conveyed Jane a possessory interest and control of an apartment unit for the exchange of monetary payment. 49 Nothing in the lease suggests that the parties intended the lease to cover disputes regarding a rape in the parking lot, or even negligence of Hallmark s common duties, namely the duty to maintain its commons areas reasonably safe, and the duty to protect invitees from third party criminal acts. And this language understandably does not exist in the lease agreement because these are duties owed as a result of common law not because of any contractual duty. In fact, contrary to the Defendants arguments that the lease expressly provides for the responsibilities regarding common areas, those particular 48 Jones, 583 F. 3d at R

25 lease provisions mostly relate to Jane s inspection of her apartment for issues such as heating and plumbing and further explain how Jane agrees to keep her apartment unit clean. 50 In no way did Jane agree to arbitrate a future rape in Hallmark s parking lot. CONCLUSION Clauses that require arbitration of claims related to a contract, can be far reaching. But even broad clauses have their limits. This agreement requires that Jane arbitrate claims related to the leasing and occupancy of an apartment unit. Under the agreement s own limitations, Jane s rape, which occurred in Hallmark s parking lot, does not relate in any way to her leasing an apartment unit. This court should find that Jane s rape claims against Hallmark and Security Engineers, are not within the scope of the arbitration agreement. Any other disposition would have would essentially force Jane to arbitrate a claim that she did not agree to arbitrate. Jane requests this Court to reverse the Hinds County Circuit Court s judgement and remand this case to the trial court so that she can pursue her claims in a jury trial. RESPECTFULLY SUBMITTED, this the 19th day of October, JANE DOE By: /s/jesse Mitchell, III Jesse Mitchell, III (MSB # ) Jessica McLaurin (MSB # ) Attorneys for Plaintiff 50 R. 44, 9. 25

26 OF COUNSEL: THE MITCHELL FIRM, PLLC 1020 Highland Colony Parkway, Suite 704 Ridgeland, MS Tel: (769) Fax: (601) CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing Appellant Brief with the Clerk of the Court using the MEC system which sent notification of such filing to the following counsel of record: Adria H. Jetton La'Verne Edney Everett E. White Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 4628 I-55 North Meadowbrook Office Park Jackson, Mississippi Attorneys for Defendants New Horizons Development, Hallmark Partners, LP, SJP One, LLC, New Horizons Management, LLC and Veronica Moore Patrick Patronas Lloyd, Gray, Whitehead & Monroe, P.C th Place South, Suite 300 Attorneys for Security Engineers, Inc. I hereby certify that all Appellant s Reply was mailed via First Class Mail on October 19, 2016 to: Honorable Jeff Weill, Sr. Hinds County Circuit Court P.O. Box Jackson, Mississippi

27 This the 19th day of October, By: /s/jesse Mitchell, III Jesse Mitchell, III 27