Opposition Brief — Home Buyers Warranty Corp. II v. Lopez

No. 93-995 '

rE 994 |

In The f ‘ERK )

|

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Supreme Court of the Hnited States

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October Term, 1993

HOME BUYERS WARRANTY CORPORATION II, and

NATIONAL HOME INSURANCE COMPANY,

Petitioners,

VS

JULIETTE G. LOPEZ, |

|

Respondent |

On Petition for a Writ of Certiorari to the |

Supreme Court of Alabama |

.

RESPONDENT’S BRIEF IN OPPOSITION

L. LANDIS SEXTON

Counsel of Record

BEASLEY, WILSON, ALLEN,

MAIN & CROW, P.C

Attorneys for Responde nf

218 Commerce Street

P.O. Box 4160

Montgomery, Alabama 36103-4160

(205) 269-2343

4864

)

AP ellate

ervices, inc

le ne tos ne _ oy en ED ot a ome ee

QUESTIONS PRESENTED

1. Whether certiorari review is necessary where the

dispositive issue is the Alabama Supreme Court’s factual

determination that a warranty contract containing an arbitration

provision does not sufficiently “involve” interstate commerce to

invoke the provisions of the Federal Arbitration Act?

2. Whether certiorari review is necessary for Petitioners’

claim that Alabama Supreme Court decisions concerning the

Federal Arbitration Act conflict with decisions by this Court?

3. Whether certiorari review is necessary for Petitioners’

claim that Alabama Supreme Court decisions concerning the

Federal Arbitration Act conflict with the decisions of some United

States courts of appeal?

ul

TABLE OF CONTENTS

Page

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Summary ofthe Argument .............. (owen *oe-es 2

Reasons for Denying the Writ .....ccccecceccveveces 2

I. Certiorari review is umnecessary, because

Petitioners’ self-contradictory position on the

merits of the test used by the Alabama Supreme

Court shows that it is the factual application of the

test with which the Petitioners actually disagree. . 2

A. Petitioners Contradict Themselves On The

Substantive Effect Of The Test They

COUPMR io osdecddvicsseekadereesier 2

B. The Application Of The Substantiai

Contemplation Test To The Facts Of The Case

Is The Source Of The Petitioners’ True

Disagreement Raised In This Petition For A

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II]. Certiorari review is unnecessary, because Alabama

Supreme Court decisions on the Federal

Artibration Act do not conflict with decisions by

a Pre rer ne er) eee 5

ili

: Contents

A. Petitioners’ Argument About The State Of The

Law Involving The Contemplation Test In

Alabama Is Inaccurate. .................

B. The Holdings By The Alabama Supreme

Court Do Not Conflict With Decisions Of This

Dé chebdteudubbaee ns beddus bee aces

III. Certiorari review is unnecessary, because Alabama

Supreme Court decisions on the Federal

Arbitration Act do not conflict with the decisions of

any federal courts of appeal. .................

IV. The Federal Arbitration Act will not be destroyed if

certiorari review is denied. ..................

ET ES a a a

TABLE OF CITATIONS

Cases Cited:

Applied-Bruce Terminix Companies, Inc. v. Dobson, 628

evinces cece sober eneabeness

Del E. Webb Construction y. Richardson Hospital

Authority, 823 F.2d 145 (Sth Cir. 1987) ............

Ex Parte Alexander, 558 So. 2d 364 (Ala. 1990) ........

Foster v. Turley, 808 F.2d 38 (10th Cir. 1986) ..........

Page

li

13

15

6,7

iv

Contents

Page

Lopez v. Home Buyer's Warranty Corp., et al., 628 So. 2d

eels SUE Ses ckies dren cdadew coedkwenetar 4,6

Mesa Operating Limited Partnership v. Louisiana

Intrastate Gas Corp., 797 F.2d 238 (Sth Cir. 1986) ... 12

Perry v. Thomas, 482 U.S. 483 (1987) ................ 8,9,10

Snyder v. Smith, 736 F.2d 409 (7th Cir. 1984), cert. denied,

Ga MT ERED: viede rdvccescevatsensteee 11,12

Southland Corporation v. Keating, 465 U.S. 1(1984) ...8,9,10

The Terminix Int. Co. LP v. Jackson, 628 So. 2d 357 (Ala.

SE nh cd owe obs dbs Cad C cde de et eee 6,7

Statute Cited:

POM O cs vedacsvcaetisccesetenpedsassene tees 6

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STATEMENT OF THE CASE

Juliette Lopez filed this action, asserting claims based on a

warranty contract involving Home Buyers Warranty Corporation,

Il (“HBW”), and National Home Insurance Company (“NHIC”).

HBW and NHIC filed a motion to compel arbitration, and the

circuit court of Montgomery County, Alabama granted that

motion. Ms. Lopez appealed the order to the Alabama Supreme

Court.

On August 20, 1993, the Alabama Supreme Court granted a

writ of mandamus compelling the circuit court to vacate its order.

Petitioners argued to both the circuit court and the Alabama

Supreme Court as if the contract containing the arbitration

provision — and the associated facts concerning interstate

commerce — was the contract for the purchase of the house.

Significantly, the Alabama Supreme Court noted that the

arbitration provision involved in this case was contained in the

warranty contract involving the Petitioners, not in the contract to

purchase the house. Based on that distinction, which Petitioners

fail to acknowledge even to this Court, the Alabama Supreme

Court held that factually there was insufficient evidence that the

arbitration provisions of the warranty contract involved interstate

commerce to invoke the Federal Arbitration Act (“FAA”).

HBW and NHIC filed their certiorari petition. They argue as if

their true objection is to the standard used by the Alabama

Supreme Court to determine if a contract involves interstate

commerce so as to invoke the FAA. Ms. Lopez will show that this

Court need not review that standard, and that Petitioners are

actually seeking review of the factual findings of the Alabama

Supreme Court. Certiorari need not be granted to review those

factual determinations.

:

9

SUMMARY OF THE ARGUMENT

There is nothing unusual or spectacular about this case despite

Petitioners’ frantic tone. The Alabama Supreme Court made a

factual determination supportable under any standard that the

warranty contract containing the arbitration provision did not

involve interstate commerce. Petitioners effectively concede that

the test itself they challenge can be used to broaden the

applicability of the FAA by a court making a factual determination

that the FAA applies. Rhetoric notwithstanding, it is the factual

determination in this case that Petitioners actually challenge.

There is no conflict between the decisions of the Alabama

Supreme Court and decisions of this Court or the United States

courts of appeal. Petitioners do not state fully Alabama’s law on the

challenged test. Viewed in full context, Petitioners’ cases are

distinguishable. For all these reasons, certiorari review of this case

is unnecessary.

REASONS FOR DENYING THE WRIT

I.

CERTIORARI REVIFW IS UNNECESSARY,

BECAUSE PETITIONERS’ SELF-CONTRADICTORY

POSITION ON THE MERITS OF THE TEST USED BY

THE ALABAMA SUPREME COURT SHOWS THAT IT IS

THE FACTUAL APPLICATION OF THE TEST WITH

WHICH THE PETITIONERS ACTUALLY DISAGREE.

A. Petitioners Contradict Themselves On The Substantive

Effect Of The Test They Challenge.

Petitioners continuously complain about the “contemplation”

test used by the Alabama Supreme Court, saying that it functions to

restrict the applicability of the FAA. (See, e.g., page 12, Certiorari

a

3

Petition.) They contradict themselves, however, in the process of

trying to distinguish the cases from which the Alabama Supreme

Court took the test:

[The opinion in which Petitioners contend tlie

contemplation test originated] addressed the

“involving commerce” question, not for the

purpose of restricting the reach of the

FAA...but [to address} whether the

agreement on its face “evidences interstate

traffic.” 287 F.2d, at 387.

North Carolina’s Supreme Court, which

sometimes relies on [the] “contemplation”

language, does so not to further an anti-

arbitration policy, but to broaden the reach of

the FAA and rebut arguments that it does not

apply....

(Emphasis added). Pages 12-13, HBW and NHIC’s Petition for a

Writ of Certiorari.

Petitioners acknowledge that the contemplation test itself is

not necessarily restrictive of the applicability of the FAA.' To the

contrary, according to Petitioners, the contemplation test was

written “not for the purpose of restricting the reach of the FAA,”

and the test can be used as a matter of fact “to broaden the reach of

the FAA.” By acknowledging that the contemplation ‘est itself is

usable to broaden the FAA, Petitioners acknowledge that the test

itself is not deficient. The deficiency, if there is any, must be in the

application of the test to the facts of a case. Petitioners cannot

1. Petitioners do not show any differences whatsoever in the Alabama

formulation of the test than in the cases where they acknowledge the test as not

restrictive of the FAA and usable to broaden it.

4

admit that, however, without having to convince this Court their

petition deserves review because of the factual determination by

the Alabama Supreme Court.

B. The Application Of The Substantial Contemplation Test

To The Facts Of The Case Is The Source Of The Petitioners’

True Disagreement Raised In This Petition For A Writ Of

Certiorari.

The Constitution of Alabama provides broad jurisdiction to

the Alabama Supreme Court. With no intermediate appellate

review, the Alabama Supreme Court reviews a circuit court ruling

concerning a motion to arbitrate by a petition for writ of mandamus

to that circuit court. Ex Parte Alexander, 558 So. 2d 364, 365 (Ala.

1990). As opposed to certiorari review, the Alabama Supreme

Court reviews, as a matter of an appellant’s right, mandamus

petitions filed on motions to arbitrate. Accordingly, the Alabama

Supreme Court often serves to correct factual errors in rulings by

the circuit court.

The Alabama Supreme Court found “no evidence” that the

contract involved interstate commerce. Lopez v. Home Buyer's

Warranty Corp. et al., 628 So. 2d 361, 364 (Ala. 1993). As a

practical matter, that finding is what the Petitioner seeks to have

this Court reverse. Certiorari review is unnecessary for that

purpose.

There is nothing spectacular or unusual about this case. The

warranty contract, not the contract for the house purchase,

contained the arbitration provision. The only evidence indicating

that the warranty contract involved interstate commerce was that it

provided that any claims under the warranty should be filed in

either Denver, Colorado, or Tucker, Georgia. Petitioner’s other

factual arguments about whether the contract “involved”

commerce address the contract for the purchase of the house.

eer

5

Please imagine Ms. Lopez’ response if under these facts the

Alabama Supreme Court had determined that the warranty

contract containing the arbitration provision involved interstate

commerce. Ms. Lopez would say what Petitioners said: the

contemplation test is usable “to broaden the reach of the FAA and

rebut arguments that it does not apply.” Ms. Lopez would argue

that the test was too broad, too burdensome. Of course, Ms. Lopez’

real complaint would be with the factual application of that test,

just like the Petitioners.

Under the facts of this case, there was no interstate commerce

involved in the warranty contract that contained the arbitration

clause. Even if this Court thought the contemplation test deserved

review, the virtually non-existent factual basis for a finding of

interstate commerce would likely limit the precedential value of

the case and virtually require affirmance. Certiorari review is

unnecessary, and the certiorari petition is due to be denied.

Il.

CERTIORARI REVIEW IS UNNECESSARY,

BECAUSE ALABAMA SUPREME COURT DECISIONS

ON THE FEDERAL ARBITRATION ACT DO NOT

CONFLICT WITH DECISIONS BY THIS COURT.

A. Petitioners’ Argument About The State Of The Law

Involving The Contemplation Test In Alabama Is Inaccurate.

Section II of the FAA declares that written agreements to

arbitrate:

In any maritime transaction or a contract

evidencing a _— transaction involving

commerce ... shall be valid... .

(Emphasis added).

6

Obviously, arbitration clauses in contracts “invoiving

commerce” are enforceable. “Commerce” is broadly defined in

relation to the FAA at 9 U.S.C., § 1, and, as Ms. Lopez shows in

Section III of this brief, there has been litigation concerning the

meaning of “commerce” in relation to the FAA. The Alabama

Supreme Court analyzes the applicability of the FAA by

determining whether “commerce” is involved in the contract

containing the arbitration clause. Lopez v. Home Buyers Warranty

Corporation, et al., 628 So. 2d 361 (Ala. 1993); The Terminix Int.

Co. LP v. Jackson, 628 So. 2d 357 (Ala. 1993); Allied-Bruce

Terminix Companies, Inc. v. Dobson, 628 So. 2d 354 (Ala. 1993).

To determine whether “commerce” is involved in a contract

containing an arbitration clause, Alabama courts determine

whether the parties contemplated that the contract involved

substantial interstate activity at the time the parties entered into the

contract and accepted the arbitration clause. Lopez v. Home Buyers

Warranty Corporation, et al., 628 So. 2d 361 (Ala. 1993); The

Terminix Int. Co. LP v. Jackson, 628 So. 2d 357 (Ala. 1993). In

other words, the test Petitioners challenge does not define

“commerce”, but, instead, analyzes whether “commerce” is

involved in a contract containing an arbitration clause.

Petitioners argue that the analysis of whether the parties

contemplated substantial interstate activity is completely

subjective. That is inaccurate. The actual standard, both as stated

and as applied, looks at both objective and subjective criteria. For

example, in The Terminix Int. Co. LP v. Jackson, 628 So. 2d 357

(Ala. 1993) the Alabama Supreme Court considered some

subjective criteria, but also wrote that the performance of the

contract:

did not involve interstate commerce to such a

degree that a reasonable person must have

contemplated substantial interstate activity

when they entered into the contract.

tn, oe i |.

;

628 So. 2d at 359. Consideration of “reasonable persons” is

obviously objective criteria. Even clearer, the Alabama Supreme

Court in Allied-Bruce Terminix Companies v. Dobson, 628 So. 2d

354 (Ala. 1993) explicitly stated the criteria for evaluating whether

the parties contemplated substantiai interstate activity as

containing both subjective and objective criteria:

Cogent evidence regarding their state of mind

at the time would be the terms of the contract,

and if it, on its face, evidences interstate

traffic... the contract should come within

Section II [of the FAA]. In addition, evidence as

to how the parties expected the contract to be

performed and how it was performed is

relevant to whether substantial interstate

activity was contemplated.

(Emphasis added). 628 So. 2d at 355. Accordingly, this is not a

purely subjective analysis, but rather an analysis focusing on both

objective and subjective factors.

Petitioners also claim that Alabama courts do not recognize

that the FAA preempts Alabama’s policy against predispute

arbitration ciauses. That claim does not withstand scrutiny. /n

every case involving the FAA, the Alabama Supreme Court

recognizes that the FAA preempts state law. For example, in The

Terminix Int. Co. LP v. Jackson the Alabama Supreme Court stated:

If an arbitration clause is contained in the

contract that involves Interstate Commerce,

then the Federal Arbitration Act, 9 U.S.C.

Section | ef seq., preempts state law. Under the

FAA, arbitration clauses are specifically

enforceable.

628 So. 2d at 359.

8

Moreover, Petitioners’ argument that the Alabama Supreme

Court favors Alabama policies over the FAA is circular to the issue

of whether the standard challenged in the certiorari petition is

appropriate for determining if the FAA applies. That argument by

Petitioners is purely emotional, not logical. If the standard for

determining the applicability of the FAA is appropriate, then

Alabama law is appropriately preempted, considering that in every

single case involving the FAA the Alabama Supreme Court has

recognized that the FAA preempts Alabama law. Nevertheless,

Petitioners imply that the Alabama Supreme Court is somehow

circumventing the Supremacy Clause by not allowing federal law

to preempt state law. That is untrue, but if unaddressed,

Petitioners’ tactic could cause confusion when considering the

decisions of this Court and some decisions of United States courts

of appeal.

B. The Holdings By The Alabama Supreme Court Do Not

Conflict With Decisions Of This Court.

Petitioners claim that Alabama Supreme Court holdings

conflict with Southland Corporation v. Keating, 465 U.S. 1 (1984)

and Perry v. Thomas, 482 U.S. 483 (1987). Neither Southland

Corporation v. Keating nor Perry v. Thomas addressed the issue

raised by Petitioners — whether the contemplation test used by the

Alabama Supreme Court is improper.

In Southland Corp. v. Keating, 465 U.S. 1 (1984), this Court

addressed a California statutory ban on arbitration of claims

brought in state court under a state franchise law. This Court held

that Section 2 of the FAA is applicable in both state and federal

courts and that the California statute was preempted. Petitioners

here challenge the contemplation standard for determining

whether commerce is “involved” in a contract containing an

arbitration clause, not a specific state statute that outlaws

i)

arbitration in certain cases no matter what.’

Petitioners cite Southland Corporation v. Keating for the

general proposition that Congress with the FAA declared a

national policy favoring arbitration of claims that the contracting

parties agreed to resolve by arbitration. See 465 U.S. at 14. Even

assuming Petitioners are correct, any existence of a national policy

favoring arbitration does not create a conflict between Alabama

and this Court’s cases unless one shows that the Alabama courts

favor Alabama policies over the FAA. As stated immediately

above, Petitioners’ arguments concerning favoritism are circular

to the issue of whether the contemplation standard is proper,

because if the contemplation standard is proper, Alabama courts

properly preempt Alabama law.

Perry v. Thomas, 482 U.S. 483 (1987) is distinguishable. In

Perry, the issue was what matters were and what matters were not

subject to the FAA and arbitration. The case involved a

stockbroker’s dispute with a national stock brokerage firm that

employed him over commissions paid in connection with the sale

of certain stocks. This Court addressed whether Section 2 of the

FAA preempted Section 29 of the California Labor Code, which

provided that actions for collection of wages were not subject to

private arbitration agreements. Again, as in Southland, what was

challenged was a specific state statute outlawing arbitration in

certain cases no matter what. This Court determined that the FAA

applied to the case and held accordingly that the FAA preempted

the state law.

Petitioners cite Perry v. Thomas for the phrase stating that the

FAA is a statute “that embodies Congress’ intent to provide for the

enforcement of arbitration agreements within the full reach of the

2. There is no argument that Alabama's statute opposing predispute

arbitration is illegal and is due to be vacated.

10

commerce clause.” 482 U.S. at 490. Petitioners use that language

to argue that the contracts at issue here must somehow involve

commerce within the meaning of the FAA. In Perry, the issue was

what matters were and what matters were not subject to the FAA.

Read in context, the Petitioners’ quoted phrase refers to Congress’

exercising its power to resolve what issues are arbitrable. Perry did

not say that Congress had in fact decided to subject every contract

to the FAA. It stated that if a contract is, in fact, governed by the

FAA, then inconsistent state law is preempted. It determined that

the transactions addressed by the challenged statute were indeed

within the FAA.

Perry did not speak to the issue presented here, which is

whether there is evidence that would allow a court to decide that

the warranty contract involves “commerce,” so that the FAA is

invoked. There is no legal dispute properly raised by Petitioners

concerning the definition of “commerce.” As explained earlier, the

test Petitioners challenge does not define “commerce” but, instead,

analyzes whether “commerce” is involved in a contract and

arbitration clause. That “commerce” was not involved was

factually determined by the Alabama Supreme Court, and that

factual determination need not be reviewed.’

Petitioners attempt to create a gloss implying that the

contemplation test somehow diminishes any policy favoring

arbitration mentioned by this Court in Southland Corporation or

Perry v. Thomas. Petitioners themselves stated that the

contemplation test itself was createc “not for the purpose of

restricting the reach of the FAA,” and that it is usable “to broaden

the reach of the FAA and rebut arguments that it does not

apply.” As always, it is not the contemplation test itself that the

3. Of course, in Perry v. Thomas there was almost no doubt that the action

involved “commerce.” The dispute in Perry involved a stock broker on a

national stock brokerage exchange and sales of stocks on national stock

exchanges.

ll

Petitioners actually object to; instead, as Ms. Lopez has

consistently shown, Petitioners object to the application of the

facts to that test. That objection does not deserve certiorari review.

The petition for a writ of certiorari is due to be denied.

Il.

CERTIORARI REVIEW IS UNNECESSARY,

BECAUSE ALABAMA SUPREME COURT DECISIONS

ON THE FEDERAL ARBITRATION ACT DO NOT

CONFLICT WITH THE DECISIONS OF ANY FEDERAL

COURTS OF APPEAL.

The United States courts of appeal’s cases cited by Petitioners

show controversies over whether “commerce,” existed. Because

the contemplation standard does not define “commerce,” the cases

cited by Petitioners are distinguishable.* Even assuming that the

test did define “commerce,” any differences in holdings results

from the factual analysis by the courts, not because of the

contemplation test. Compared to the interstate commerce in

Petitioners’ cited cases, in this case the only evidence indicating

that the warranty contract involved interstate commerce was that it

provided that any claims under the warranty should be filed in

Denver, Colorado or Tucker, Georgia.°

To avoid inundating the Court with a morass of factual details,

Ms. Lopez will only briefly address each case. Snyder v. Smith, 736

F.2d 409 (7th Cir. 1984), cert. denied, 469 U.S. 1037 (1985)*

4. This is explained in detail in Section II.A.

5. The other facts the Petitioners assert as relating to commerce address

the contract for the purchase of the house, which did not contain the arbitration

provision.

6. In their Alabama Supreme Court brief, Petitioners characterized the

(Cont'd)

12

involveda contract dispute between Illinois residents who formed

a partnership concerning property and business activities in Texas.

In Del E. Webb Construction v. Richardson Hospital Authority, 823

F.2d 145 (Sth Cir. 1987) the court factually determined that in this

dispute over a construction contract:

The contract involved persons from different

states; employees of the plaintiff traveled

interstate; the interstate mails were used to

facilitate the work of the plaintiff's

subcontractors; and the materials used in the

construction on the defendant's facilities were

manufactured and moved in_ interstate

commerce.

823 F.2d at 147.

Foster v. Turley, 808 F.2d 38 (10th Cir. 1986) involved a

contract dispute over an agreement to purchase half of a New

Mexico mine where the output of the mine went into interstate

commerce. The buyer was in Oregon; he sent trucks to New

Mexico; proceeds were sent to him in Oregon; and the mine

products were sometimes milled and sold outside New Mexico.

Mesa Operating Limited Partnership v. Louisiana Intrastate

Gas Corp., 797 F.2d 238, 243-244 (Sth Cir. 1986), an opinion

roundly criticized by other courts, concerned a contract dispute

involving a general partnership that had partners in both Louisiana

and Texas. The Texas partners worked and traveled in Louisiana, as

well as communicating with Louisiana frequently; personnel were

sent from Texas to Louisiana; and when in Texas the Texas partners

received all partnership payments there. 797 F.2d at 243.

(Cont'd)

holding in Snyder v. Smith as “law of the case,” which indicates Petitioners then

viewed the holding of that case as limited to the facts of that case.

bint tt ana? ‘te

13

There is no conflict between Alabama Supreme Court

decisions and the decisions of the United States courts of appeal.

Any perceived conflict comes from factual distinctions between

the cases cited by Petitioners that address what constitutes

“commerce” — which the challenged contemplation test does not

address —- and this case, where factually the Alabama Supreme

Court held that “commerce” was not involved in the contract

containing the arbitration provision. Certiorari review is

unnecessary. The petition is due to be denied.

IV.

THE FEDERAL ARBITRATION ACT WILL NOT BE

DESTROYED IF CERTIORARI REVIEW IS DENIED.

With unsupportable assuredness, at pages 16-21, Petitioners

predict the complete destruction of the FAA if certiorari is denied

and the contemplation test allowed to stand. That argument will not

withstand scrutiny.

At pages 17-19, Petitioners claim that certain entire groups of

contracts are exempt from the FAA under current Alabama law. For

example, at page 17, Petitioners claim that because of this case the

FAA and all FAA related decisions “no longer apply in Alabama to

all home buyers warranties issued by out of state companies with

no local presence.”

Petitioners also claim (incorrectly) that the contemplation

test, the alleged root of the destruction of the FAA, requires a

purely subjective analysis of the contemplation of the parties to

determine the applicability of the FAA. [7 that is so, then no entire

group of contracts can be judicially removed from the reach of the

FAA, because the understanding of the parties to the contract about

the interstate activity involved in the contract determines the

applicability of the FAA. Cynicism reaches new heights indeed if

1+

Petitioners are actually suggesting that everyone signing contracts

containing arbitration provisions would perjure themselves if the

issue of subjective., contemplating the arbitration provision was

litigated.

In relation to the contemplation test, the only way for there to

be a purely uniform result as to an entire group of contracts is if a

uniform contract is viewed purely in objective terms. That is, if a

standard contract was said to be on its four corners outside the FAA

and there were no subjective criteria, an entire group of contracts

could be held to be outside the FAA. Petitioners strenuously argue

that the entire analysis is purely subjective, however. Ms. Lopez

has shown that under the purely subjective standard that

Petitioners claim exists, there can be no entire group of contracts

judicially removed from the FAA.

In reality, the contemplation analysis in the Alabama

decisions contains both objective and subjective elements, as

shown in Section II.A. With such an analysis, the test effectively

prevents widespread destruction of the FAA as to entire groups of

contracts. In this regard at the very least, Petitioners should

concede that the test is proper.

Considering the logical fallacies of Petitioners’ arguments,

Ms. Lopez will neither bother the Court with tedious factual

discussion of the Alabama cases mentioned, nor will she consume

the Court’s time replying to the rhetoric based on those fallacies.

15

CONCLUSION

The apocalyptic tone used throughout by Petitioners is

inappropriate. There is nothing unusual or spectacular about this

case. The Alabama Supreme Court made a factual determination

that the warranty contract containing the arbitration provision did

not involve interstate “commerce.” That judgment and the standard

applied in reaching that judgment does not conflict with the

decisions of this Court or the United States courts of appeal.

Ceriiorari review is unnecessary.

The petition for a writ of certiorari to the Alabama Supreme

Court is due to be denied. The cause is due to be remanded to the

Alabama Supreme Court then the Circuit Court of Montgomery

County, Alabama, so that Ms. Lopez can proceed to trial.

Respectfully submitted,

L. LANDIS SEXTON

Counsel of Record

BEASLEY, WILSON, ALLEN,

MAIN & CROW, P.C.

Attorneys for Respondent

P.O. Box 4160

Montgomery, Alabama 36103-4160

(205) 269-2343