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Parties can't pick certain provisions to enforce

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The Indiana Court of Appeals addressed an issue of first impression today regarding whether a person could seek to enforce rights under a vehicle purchasing agreement he didn't sign but then disavow other provisions set forth in the same document.

The issue in TWH, Inc. d/b/a Tom Wood Honda v. Jennifer Binford, No. 48A02-0805-CV-441, is whether Jennifer Binford was required to arbitrate her complaint of breach of warranty and fraud against the car dealer. Binford bought a used car for her son, Aaron. She was the only one to sign the purchase agreement with Tom Wood, which included an arbitration provision. Both she and Aaron signed the retail installment contract, which didn't have an arbitration provision.

After Aaron had some problems with the car, Binford filed her complaint; Tom Wood filed a motion to compel arbitration. Aaron filed a petition for permissive joinder, which was granted. The trial court denied Tom Wood's motion to compel, finding the company failed to get Aaron's signature on the purchase agreement that would mandate arbitration of the dispute.

The Court of Appeals agreed with Tom Wood's argument that because Aaron's claims are the same or similar to those of his mother and relate to the car purchase, he is bound by the arbitration clause and can't selectively choose the rights he wants to enforce and then disregard other provisions in the same document.

Aaron didn't initially sign the purchase agreement, but he then petitioned for permissive joinder since he is the co-purchaser of the car. As such, it constitutes a judicial admission and binds him to the arbitration provision in the purchase agreement, wrote Judge Edward Najam. Binford and her son can't seek affirmative relief from the transaction and disavow the arbitration provision in the purchase agreement. Tom Wood has proven that the dispute is the type of claim the parties agreed to arbitrate, so the appellate court reversed the denial of the motion to compel arbitration and remanded with instructions for the trial court to grant Tom Wood's motion and to enter judgment accordingly.

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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