# Ex Parte Thicklin

> Supreme Court of Alabama · January 11, 2002 · 824 So. 2d 723

URL: https://www.frixlaw.com/law-library/cases/9938888

## Case

- **Full name:** Ex Parte Sharon Thicklin. (In Re: Sharon Thicklin v. Fantasy Mobile Homes, Inc.)
- **Court:** Supreme Court of Alabama
- **Decided:** January 11, 2002
- **Citations:** 824 So. 2d 723; 2002 WL 27925
- **Precedential status:** Published
- **Opinion:** Concurrence by Houston
- **Judges:** Harwood, Houston, Lyons, Moore, See
- **Cited by:** 44 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Patriot Mfg., Inc. v. Jackson, 929 So. 2d 997 (2005).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9938888

## How later opinions describe it (automated extraction)

- stating that substantive unconscionability relates to whether the substantive contract terms are unreasonably favorable to the more powerful party or whether they contravene the public interest or public policy
- holding that it violates Alabama public policy for a party to contract away its liability for punitive damages, regardless of whether the provision was intended to operate in an arbitral or a judicial forum
- rejecting the argument that arbitration under the Commercial Rules was unconscionable "from a financial standpoint" because the plaintiff "d[id] not provide any evidence, such as her income, her family's expenses, or the estimated costs of the arbitration procedure"
- stating that plaintiff's one-document rule argument was "compelling as to Thick-lin's express-warranty and Magnuson-Moss Act violation claims”

## Opinion text

The United States Court of Appeals for the Eleventh Circuit released its opinion in Cunningham v. Fleetwood Homes of Georgia, Inc., 253 F.3d 611
(11th Cir. 2001), on June 6, 2001, after this Court *Page 736
released its opinion on original submission in Cavalier Manufacturing, Inc. v. Jackson, [Ms. 1000391, April 13, 2001] So.2d (Ala. 2001). Therefore, this Court did not have the benefit of the Eleventh Circuit's opinion in Cunningham when Cavalier was decided. When it comes to predispute arbitration under the Federal Arbitration Act, 9 U.S.C. § 2
(which I personally do not believe Congress intended to apply in State Courts, see my special writing in Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33 , 38 (Ala. 1998) (Houston, J., concurring specially)), I follow not only the direction of the United States Supreme Court, which I am required to do under the Supremacy Clause of the Constitution of the United States, but also the direction of the United States District Courts and Courts of Appeals, although the Supremacy Clause does not require that I do so. See my special writing in Southern Energy Homes, Inc. v. Lee, 732 So.2d 994 , 1003-04 (Ala. 1999) (Houston, J., concurring specially):
"The United States Supreme Court has not specifically addressed the issues presented in this present case. However, the United States District Court for the Middle District of Alabama has. See Rhode v. E T Investments, Inc., 6 F. Supp.2d 1322 (M.D.Ala. 1998); Wilson v. Waverlee Homes, Inc., 954 F. Supp. 1530
(M.D.Ala. 1997), affirmed, 127 F.3d 40 (11th Cir. 1997) (table); Boyd v. Homes of Legend, Inc., 981 F. Supp. 1423 (M.D.Ala. 1997). It is also significant to me that the United States Court of Appeals for the Eleventh Circuit affirmed the district court's judgment in Wilson, albeit without an opinion. Although I am not bound to follow the decisions of the federal courts that decided those cases, I nonetheless find the reasoning of the district court to be sound, at least on its face. Because of the strong public policy in this state against the specific enforcement of pre-dispute arbitration agreements, I will not go behind the reasonable decisions of these federal courts interpreting a federal statute as barring the specific enforcement of such agreements."
Therefore, I concur in overruling Jackson to the extent that it is inconsistent with Cunningham; in doing so, I compare myself with the "barrister" in the quote from Christopher Sinclair Stevenson's When in France, p. 166 (1989): "There is nothing like a new precedent to cause a barrister to leap with joy like a springtime lamb."

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9938888. Public record. Not legal advice.