Franklin Structures, LLC v. Karl Edmond Williams and Tonya Marie Williams

Rel: August 29, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
SPECIAL TERM, 2025

_________________________

SC-2024-0586
_________________________

Franklin Structures, LLC

v.

Karl Edmond Williams and Tonya Marie Williams

Appeal from Baldwin Circuit Court
(CV-23-900330)

MENDHEIM, Justice.

Franklin Structures, LLC ("Franklin"), appeals from the Baldwin

Circuit Court's order denying, in part, its motion to compel arbitration of
SC-2024-0586

all the claims asserted in an action commenced by Karl Edmond Williams

and Tonya Marie Williams. We reverse and remand.

I. Facts

On July 7, 2020, the Williamses executed a sales contract with

Whitson Builders, LLC ("Whitson"), to purchase a custom two-story,

three-bedroom, two-bathroom modular home manufactured by Franklin.

Whitson is a modular-home retailer whose principal place of business is

located in Gulf Shores. Franklin is a modular-home manufacturer whose

manufacturing plant is located in Russellville.

Modular homes are similar to mobile homes in that both are

prefabricated off-site at a factory. However, a mobile home is delivered to

the property on which it rests and it is capable of being moved. In

contrast, a modular home is transported in pieces to the property on

which it is to be assembled; the modular home is then assembled and

attached to a foundation. According to a document in the record,

"modular homes are held to the same local state and regional building

codes required for on-site homes. Manufactured homes are held to a

federal code set by the Department of Housing and Urban Development

…."

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The sales contract stated in part: "[Whitson] agrees to sell and [the

Williamses] agree[] to buy and take delivery of the Whitson Builders,

LLC, building product, in accordance with the provisions of this

contract." It is undisputed that the sales contract identified Franklin as

the manufacturer of the modular home. 1 The total sales price for the

home was $353,000. The sales contract provided that Franklin would

deliver the manufactured pieces of the modular home to the assembly site

on Sea Oaks Drive in Fort Morgan and that Whitson would assemble the

home.2 Additionally, the sales contract contained the following provision:

"6. Exclusion of Warranties
"[The Williamses] understand[] that [Franklin], not
[Whitson], will provide any warranties on the Home.
[Whitson] will give [the Williamses] a copy of the
manufacturer's warranty. [The Williamses] understand[] that
[the Williamses] will obtain any warranty service on the
Home from [Franklin] and not from [Whitson].
"[Whitson] hereby disclaims and excludes all implied or
expressed warranties relating to the Home, including but not
limited to the implied warranties of merchantability, fitness

1Technically, the sales contract identified the "manufacturer" as
"Franklin Homes, LLC," but the parties agree that the manufacturer's
corporate legal name is Franklin Structures, LLC.

2The Williamses previously had purchased that property for their

retirement home.
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for a particular purpose, warranties of habitability, and
workmanlike construction, to the Home."
(Bold typeface and first emphasis in original; second emphasis added.)

That page of the sales contract was initialed by both Karl and Tonya, and

the sales contract as a whole was signed by both Karl and Tonya.

On June 7, 2021, Franklin delivered the manufactured pieces of the

home to the Williamses' property. In their complaint, the Williamses

alleged that "this was the very first two-story modular home

manufactured and delivered in Alabama by Franklin, and the first one

assembled by Whitson." The Williamses further alleged:

"22. Unbeknownst to [the Williamses], Defendants,
collectively and/or individually, arranged for a film crew to be
on their property to film the delivery of the Home, and it was
broadcast on television news and being featured on
Defendants' websites and social media accounts.

"23. Because Whitson Builders and Franklin were
advertising, the Home was transported from Russellville to
Fort Morgan without the finished siding in place at the
factory, as is customarily done. Instead, the siding was
unpainted, unfinished, and uninstalled, so the Franklin logo
could be readily seen as it travelled over four hundred miles
and be easily seen on television."

Despite the pride Franklin and Whitson allegedly took in the project, the

Williamses alleged that, because of "improper preparations, delivery, and

installation of the Home by Defendants, the plumbing, electrical, walls,

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and other components were and are incomplete, non-functioning,

malfunctioning, incomplete, and/or out of alignment." The Williamses'

quintessential example of the allegedly shoddy workmanship was that

"the second-floor door intended to lead to an upstairs deck instead opened

to the slope of the roof, becoming a non-functioning 'door to nowhere.' "

On December 3, 2021, the Williamses closed on the home and

moved into it because, according to their complaint, "they had nowhere

else to go, had retired, and had already sold their home in Northern

Alabama." The Williamses alleged that they had reached out to Franklin

and Whitson several times to have issues with the home repaired, but

their requests were ignored. As it relates to Franklin, the Williamses

specifically alleged: "From August 8, 2022, through August 17, 2022, the

Franklin defendants failed to repair or restore most of the outstanding

issues."

On March 27, 2023, the Williamses commenced an action in the

Baldwin Circuit Court against Franklin, Whitson, and several other

defendants that they alleged were involved in the sale, manufacturing,

delivery, assembly, foundation preparation, and repair of the home. On

June 15, 2023, the Williamses filed a "First Amended Complaint." On

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July 6, 2023, the Williamses filed a "Second Amended Complaint" that

simply added one defendant to the lawsuit. On July 14, 2023, Franklin

filed an answer to the Williamses' second amended complaint.

On December 2, 2023, the Williamses filed their "Third Amended

Complaint," which is their operative complaint for purposes of this

appeal. In that complaint, the Williamses asserted numerous claims

against Franklin and all the other defendants, including breach of

contract, fraud, negligence, recklessness, negligence per se, wantonness,

unjust enrichment, violations of the Magnuson-Moss Warranty Act,

breach of the implied warranty of habitability, and breach of fitness for a

particular purpose. Count Nine of the third amended complaint provided:

"BREACH OF EXPRESS WARRANTIES

"121. [The Williamses] incorporate and re-allege the
foregoing allegations of their Complaint.

"122. Defendants expressly warranted that the Home
would be merchantable and/or fit for the ordinary purposes
for which it was to be used and did expressly warrant that the
Home was expressly fit, designed, and built as directed by [the
Williamses], and that the Home was free from defects in
materials and workmanship, or any defects would be repaired
or replaced under the warranty.

"123. The home, as delivered, was not free from defects
in the materials or workmanship.

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"124. These Defendants have failed or refused to correct
the defects in the Home and/or warranty has failed in its
essential purpose causing the [Williamses] to suffer injury
and damages.

"125. As a direct and proximate result of the breach of
warranties by Defendants, individually and collectively, by
and through agency, [the Williamses] have been proximately
damaged."

(Bold typeface and emphasis in original.)

On January 23, 2024, Franklin filed a "Motion to Enforce Non-

Binding Mediation and Binding Arbitration and Brief in Support

Thereof" ("motion to compel arbitration"). Franklin based its motion on

language contained in Exhibit B of the "Franklin Homes Homeowner's

Manual" ("the homeowner's manual"). Exhibit B addressed Franklin's

"One Year Limited Warranty" on the home. Within the warranty portion

of the homeowner's manual was the following provision:

"MEDIATION AND ARBITRATION.

"The parties acknowledge and agree that this
Mediation and Arbitration Agreement is a condition of
the sale and is a material part of the consideration for
the sale of the Home. The parties further acknowledge
that the purchase of this Home involves interstate
commerce.

"ARBITRATION AND LIMITATION OF
REMEDIES: It is agreed that any controversy, claim or
dispute between or among the Manufacturer, Original
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Consumer Purchaser(s), retailer, independent dealer, finance
company or any other person or entity arising from or relating
to the Home, its sale, transportation, setup, repair,
installation, use, design, manufacture, financing, insurance,
any other condition, the manufacturer's limited warranty,
any contract or any alleged promise, representation,
agreement or instrument relating to or delivered in
connection with the Home, or any alleged breach thereof, and
any claim based on or arising from an alleged tort or claim of
any kind whatsoever, including any claim relating to the
validity of this arbitration and limitation of remedies
provision [collectively 'Claim(s)'], and if the Claim(s) cannot
be resolved through direct discussions or negotiations, the
Claim(s) first shall be mediated as administered by the
American Arbitration Association under its Commercial
Mediation Rules before resorting to binding arbitration. The
parties agree that they will share equally in the
administrative costs charged by the [American Arbitration
Association] for the mediation. While you do not need an
attorney to participate in mediation, any party choosing to use
legal counsel must pay their own legal fees.

"Unless otherwise provided by law, if a dispute is not
resolved through Mediation, the parties agree to settle the
dispute through binding Arbitration (as defined by the
Federal Arbitration Act) under the then current Rules of the
American Arbitration Association ('AAA'). … The AAA shall
administer the proceedings of the Arbitration in the county
where the Home was sold, unless the parties agree otherwise.
… Any such dispute shall be arbitrated on an individual basis,
and shall not be consolidated in any Arbitration with any
dispute of any other party. …

"…. The parties further agree if any party brings any
claim through a traditional court without first submitting the
claim to mediation, and then to arbitration, as required by the
Agreement, then the party bringing such claim shall be
required to pay all of the other party's costs and expenses,
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including attorney's fees, to stay or dismiss such claim and/or
to transfer it first to Mediation and then to Arbitration. …

"IT IS AGREED AND UNDERSTOOD THAT THE
PARTIES ARE KNOWINGLY GIVING UP AND
WAIVING ANY RIGHT TO TRIAL BY JURY. This
arbitration and limitation of remedies provision is part of the
manufacturer's limited warranty for the Home and shall be
binding on an inure to the benefit of the parties' respective
hers and assigns."

(Bold typeface and emphasis in original.)

In its motion to compel arbitration, Franklin contended that the

foregoing provision in the homeowner's manual was binding upon the

Williamses because: (1) they had received a copy of the homeowner's

manual; (2) they had requested, received, and approved warranty work

on the home by Franklin; and (3) they had asserted express-warranty

claims against Franklin in their complaint. Additionally, Franklin

argued:

"The arbitration provision in the Limited Warranty is a
broad agreement that requires the arbitration of all claims
the [Williamses] may have against not only Franklin, but also
'the retailer, independent dealer, finance company or any
other person or entity arising from or relating to the Home,
its sale, transportation, setup, repair, installation, use,
design, manufacture, financing, insurance any other
condition … ' In short, the arbitration provision covers any
claim asserted against any entity involving the Home.
Further, the [Williamses'] Complaint seeks damages against
all the Defendants in this lawsuit, 'jointly and severally,
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combined and concurring.' … Therefore, the [Williamses']
claims must be adjudicated in a single proceeding. That
proceeding must be the mediation, and then if necessary,
binding arbitration, contemplated by the arbitration
provision in the Limited Warranty."

Franklin concluded its motion by requesting that the trial court "enter

an order dismissing this case and compelling the [Williamses'] claims to

be resolved through … non-binding mediation and/or arbitration."

In support of its motion to compel arbitration, Franklin attached an

affidavit from its sales manager Blake Jackson. Among other things,

Jackson testified that "[t]he component materials used in the

manufacture of the Home were purchased from suppliers throughout the

United States, Mexico and Canada." He also stated that the Williamses'

home

"was manufactured at Franklin's facility in Russellville,
Alabama and was shipped to Whitson Homebuilders, LLC
('Whitson') on June 7, 2021. The Home was picked up at
Franklin's manufacturing facility in Russellville, Alabama,
and then transported by common carrier to Whitson's facility,
located [on] Lakeshore Drive, Gulf Shores, Alabama.
Thereafter, the home was delivered to the [Williamses']
property located [on] Sea Oates Drive, Gulf Shores, Alabama."

Finally, Jackson declared:

"7. Each home manufactured by Franklin is shipped
with a Homeowner's Manual. The home was covered by a one-
year limited warranty, a copy of which is included in the
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Homeowner's Manual. Following Whitson's delivery and
setup of the Home, Franklin performed warranty services in
accordance with the limited warranty. The warranty services
occurred on February 13, 2022, August 8, 2022, and August
17, 2022."

Attached to Jackson's affidavit were copies of the warranty work

orders that he had described. The work orders contained work-order

numbers; the address of the Williamses' home; the "Retail Customer,"

who was listed as Karl Williams; and printed descriptions of problems

with the home, which were followed by handwritten notes from the

technician as to what was done about the listed problems. Each work

order was signed at the bottom by Karl and the technician, and each

handwritten description from the technician was initialed by Karl. Issues

listed in the work orders included: kitchen cabinets being hung one-inch

off-level; adjustments needed to the exterior doors; trim, shoe mold, and

baseboards not being leveled or caulked; no attic access; a bow in the front

end wall of the first and second story and on the stairwell wall; and

missing air vents in the master bedroom. According to the work orders,

all listed issues were fixed except the problem of the trim and baseboards

not being leveled; the technician wrote that "[t]he walls are not leveled.

Completely different issue." The technician indicated that a revisit would

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be required to fix that issue, but there is no indication on subsequent

work orders that the issue was repaired.

On July 24, 2024, the Williamses filed a response in opposition to

Franklin's motion to compel arbitration. In that response, the Williamses

contended that the arbitration provision in the homeowner's manual was

not binding because "it was not a condition of the sale" because it was not

shown to them or signed when the Williamses paid for their home. They

also argued that they did not assent to the arbitration agreement through

Franklin's "disingenuous pretending to repair part of the defectively

constructed home …. Even if the few diddly squat items Franklin tried

to fix are purportedly covered by arbitration, the whole case is not." The

response further asserted that the Williamses "never received the generic

Franklin homeowner's manual containing an arbitration provision and

purportedly thrown somewhere in the home before it was shipped down

the Alabama highway without siding to the [Williamses'] property in Fort

Morgan."

The Williamses attached numerous exhibits to their response in

opposition to the motion to compel arbitration. Among those exhibits was

the report summarizing a home inspection engineer Joseph Asarisi had

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performed for this lawsuit, which concluded that the pieces of the

modular home "do not match up, which results in gaps between the

structural members and produces other structural deficiencies." Asarisi

also concluded that the home "does not meet the structural code and will

not meet the minimum wind requirements." Another exhibit included

excerpts from a second home inspection by Lydell Johnson of Property

Claims Damage Consulting that detailed numerous alleged issues with

the home. Both Karl and Tonya submitted affidavits, but neither

affidavit provided any testimony concerning: (1) whether they had

received the homeowner's manual, (2) whether they were aware of the

terms of Franklin's one-year warranty, or (3) what they thought about

the warranty services provided by Franklin.

On July 29, 2024, the trial court held a hearing on Franklin's

motion to compel arbitration. On July 31, 2024, the trial court entered an

order that provided: "Motion to compel filed by Franklin Structures, LLC,

is hereby denied in part as to arbitration." Franklin appeals that order.

II. Standard of Review

As is noted in the rendition of the facts, the arbitration provision at

issue in this case is not a straightforward arbitration provision because

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it dictates that disputes "first shall be mediated as administered by the

American Arbitration Association under its Commercial Mediation Rules

before resorting to binding arbitration" and that, "if a dispute is not

resolved through Mediation, the parties agree to settle the dispute

through binding Arbitration (as defined by the Federal Arbitration Act)

under the then current Rules of the American Arbitration Association

('AAA')." In other words, we have before us a mediation and arbitration

provision, not just an arbitration provision, which raises the issue

whether our ordinary method of dealing with arbitration appeals should

be employed in this case?

Lee v. YES of Russellville, Inc., 784 So. 2d 1022 (Ala. 2000), also

involved a mediation and arbitration provision. After observing that "[a]

trial court's denial of a motion to stay proceedings pending arbitration is

reviewable by direct appeal," id. at 1025, the Lee Court made the

following observation in a footnote:

"The contract at issue required that the parties first
submit their dispute to mediation. Should the parties fail to
resolve all their disputes in mediation, the contract required
them to proceed to binding arbitration. Although this is not
solely an arbitration provision, then, we nonetheless conclude
that our caselaw stating the method of review to be applied in
cases involving arbitration clauses is applicable, because the
contract ultimately requires the parties to submit to binding
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arbitration to resolve their dispute if mediation fails to resolve
it. We note that we have previously reached the same
conclusion in other cases. See, e.g., Homes of Legend, Inc. v.
McCollough, 776 So. 2d 741 (Ala. 2000)."

Id. at 1025 n.1 (emphasis added). In subsequent cases, this Court has

continued to entertain appeals from mediation and arbitration provisions

under Rule 4(d), Ala. R. App. P. See, e.g., Digital Forensics Corp. v. King

Mach., Inc., [Ms. SC-2024-0031, Jan. 10, 2025] __ So. 3d __ (Ala. 2025).

Consequently, we will do the same in this case.

" 'This Court reviews de novo the denial of a motion to
compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779
So. 2d 1205 (Ala. 2000). A motion to compel arbitration is
analogous to a motion for a summary judgment. TranSouth
Fin. Corp. v. Bell, 739 So. 2d 1110, 1114 (Ala. 1999). The party
seeking to compel arbitration has the burden of proving the
existence of a contract calling for arbitration and proving that
the contract evidences a transaction affecting interstate
commerce. Id. "[A]fter a motion to compel arbitration has been
made and supported, the burden is on the non-movant to
present evidence that the supposed arbitration agreement is
not valid or does not apply to the dispute in question." Jim
Burke Automotive, Inc. v. Beavers, 674 So. 2d 1260, 1265 n.1
(Ala.1995) (opinion on application for rehearing).' "

Elizabeth Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala. 2003)

(quoting Fleetwood Enters., Inc. v. Bruno, 784 So. 2d 277, 280 (Ala.

2000)).

III. Analysis
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Franklin contends that the trial court erred by denying its motion

to compel arbitration. Franklin argues that the Williamses were bound

by the arbitration provision in the homeowner's manual for two reasons:

(1) because the Williamses obtained warranty services from Franklin on

at least three occasions and (2) because the Williamses asserted express-

warranty claims in their complaint. According to Franklin, because the

Williamses were bound by the arbitration provision in the homeowner's

manual, the trial court had to grant Franklin's motion to compel

arbitration in its entirety.

In response, the Williamses argue that they are not bound by the

arbitration provision because: (1) they never received the homeowner's

manual, and thus they were not aware of the arbitration provision; (2)

they never signed an agreement with Franklin that contained an

arbitration provision; and (3) the Franklin warranty work orders that

Karl Williams signed are not reliable because they were attached to an

affidavit from Franklin sales manager Blake Jackson that contained

false information.

We begin by noting what is undisputed between the parties. First,

it is undisputed that the homeowner's manual contains an arbitration

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provision. It is also undisputed that the transaction at issue affects

interstate commerce. Finally, it is undisputed that the Williamses did not

sign the homeowner's manual or the warranty portion of the manual that

contained the arbitration provision. Therefore, for the arbitration

provision to be binding upon the Williamses, assent to it must be shown

by some other means.

" ' "[A]rbitration is a matter of contract and a party
cannot be required to submit to arbitration any dispute which
he has not agreed so to submit." ' AT&T Techns., Inc. v.
Communication Workers of America, 475 U.S. 643, 648, 106
S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United
Steelworkers of America v. Warrior & Gulf Navigation Co.,
363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)); and
see Ex parte Lovejoy, 790 So. 2d 933 (Ala. 2000). ' "When
deciding whether parties agree to arbitrate a certain matter
(including arbitrability) courts generally ... should apply
ordinary state-law principles that govern the formation of
contracts." ' Oakwood Mobile Homes, Inc. v. Barger, 773 So.
2d 454, 459 (Ala. 2000) (quoting First Options of Chicago, Inc.
v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985
(1995)). ' "The requisite elements of [a contract] include: an
offer and an acceptance, consideration, and mutual assent to
terms essential to the formation of a contract." ' Ex parte
Grant, 711 So. 2d 464, 465 (Ala. 1997) (quoting Strength v.
Alabama Dep't of Finance, Div. of Risk Mgmt., 622 So. 2d
1283, 1289 (Ala. 1993)). 'Assent must be manifested by
something. Ordinarily, it is manifested by a signature.
[However], [a]ssent may be manifested by ratification.'
Southern Energy Homes, Inc. v. Hennis, 776 So. 2d 105, 108
(Ala. 2000) (citing Southern Energy Homes, Inc. v. Harcus,
754 So. 2d 622, 625 (Ala. 1999)), wherein this Court remanded
the case to the trial court for a finding of whether the
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purchasers of a manufactured home ratified and thereby
accepted an arbitration provision by accepting repairs
pursuant to a warranty containing the arbitration provision."

Ex parte Cain, 838 So. 2d 1020, 1026-27 (Ala. 2002).

Franklin contends that the facts in this case "are essentially

identical to those in Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131

(Ala. 2000)." Franklin's brief, p. 8.

"In Ard, the Ards sued Southern Energy Homes, the
manufacturer of the Ards' mobile home, alleging a violation of
Southern Energy's express warranty, a violation of the
Magnuson-Moss Warranty -- Federal Trade Commission
Improvement Act, 15 U.S.C. § 2301 et seq. ('the Magnuson-
Moss Act'), and the negligent manufacture of the mobile
home. The Ards also alleged fraud. Southern Energy sought
to compel arbitration of the Ards' claims on the basis of an
arbitration provision contained in its express warranty.
Evidence in the form of an affidavit by Southern Energy
employee Don McNutt indicated that the Ards had requested
and received service under the warranty on their mobile home
from Southern Energy. The evidence also indicated that the
Ards did not sign any written agreement with Southern
Energy expressly calling for arbitration. The trial court
denied Southern Energy's motion to compel arbitration, and
it appealed. After discussing the burdens imposed upon
Southern Energy to establish its right to compel arbitration,
… this Court concluded that the trial court's order denying
arbitration was due to be reversed:

" 'The Ards are contractually bound to the
arbitration provisions for two reasons. First, the
affidavit of Don McNutt establishes, without
contradiction, that the Ards have accepted the
benefits of the warranty containing the arbitration
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provisions. This acceptance constitutes the Ards'
acceptance of the arbitration provisions
themselves. Rush v. Atomic Electric Co., 384 So.
2d 1067 (Ala. 1980). Second, the Ards have sued
Southern Energy on the theory, among others, of
express warranty. The only express warranty
included in the evidentiary materials is the one
containing the arbitration provisions. A plaintiff
cannot simultaneously claim the benefits of a
contract and repudiate its burdens and conditions.
Value Auto Credit, Inc. v. Talley, 727 So. 2d 61
(Ala. 1999); Infiniti of Mobile, Inc. v. Office, 727 So.
2d 42 (Ala. 1999); Georgia Power Co. v. Partin, 727
So. 2d 2 (Ala. 1998); Delta Constr. Corp. v. Gooden,
714 So. 2d 975 (Ala. 1998); Ex parte Dyess, 709 So.
2d 447 (Ala. 1997).'

"772 So. 2d at 1134-35. The Court therefore concluded that
the record showed the formation of a valid agreement to
arbitrate, and it reversed the trial court's order denying
Southern Energy's motion to compel arbitration."

Springhill Nursing Homes, Inc. v. McCurdy, 898 So. 2d 694, 698-99 (Ala.

2004) (plurality opinion) (emphasis added).

The Williamses seek to counter Ard with Southern Energy Homes,

Inc. v. Hennis, 776 So. 2d 105, 107 (Ala. 2000), a case with some factual

similarities to Ard, but in which this Court stated:

"However, the manufacturer's unilateral enclosure of an
arbitration provision in a homeowner's manual is -- without
more -- insufficient as a matter of law to show that the buyer
assented to all the contents therein. Without more, the
provisions contained in such a homeowner's manual are
immaterial, 'except in the utterly collateral sense that if the
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plaintiffs had never purchased their mobile homes,' Ex parte
Isbell, 708 So. 2d 571, 578 (Ala. 1997) (emphasis and internal
quotation marks omitted), they would not have received the
homeowner's manual.

"In this case, it is not contended -- much less,
demonstrated -- that Hennis invoked the warranty or, in any
manner, accepted the benefits thereof. On the contrary,
Southern Energy, in merely stating that '[a]fter purchasing
the home, Plaintiff became dissatisfied ... and filed suit,' Brief
of Appellant, at xiii (emphasis added), apparently concedes
that Hennis did not attempt to invoke the warranty. Other
than the breach-of-express-warranty claim itself, the record is
devoid of evidence indicating that Hennis assented to the
terms in the Homeowner's Manual, including the warranty
and the arbitration provisions."

776 So. 2d at 108-09 (some emphasis added). This Court in Hennis

concluded that the trial court in that case had not erred in denying the

motion to compel arbitration. However, the Court did observe that,

"under the recent precedent of this Court, Hennis may not pursue his

breach-of-express-warranty claim against Southern Energy. This is so

because he cannot rely on the express written warranty and, at the same

time, disavow the arbitration provision contained therein." Id. at 109.

Similar to Hennis, in Southern Energy Homes, Inc. v. Kennedy, 774

So. 2d 540 (Ala. 2000), this Court affirmed a trial court's denial of a

Southern Energy motion to compel arbitration because the plaintiffs in

affidavits had "state[d] unequivocally that they never received the
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warranty Southern Energy says it extended and that Southern Energy

has never provided any service to them pursuant to that warranty." Id.

at 547. As in Hennis, though, the Kennedy Court held that the plaintiffs

were "foreclosed from maintaining any claim they may have had against

Southern Energy for its alleged breach of the express written warranty."

Id.

Ard is a more apt comparison to this case than either Hennis or

Kennedy. In both Hennis and Kennedy, the plaintiffs had not availed

themselves of the services provided under the subject warranties. In

contrast, in Ard the plaintiffs did accept the benefits of warranty service,

and this Court held that "[t]his acceptance constitutes the Ards'

acceptance of the arbitration provisions themselves." Ard, 772 So. 2d at

1134. Likewise, in this case, Franklin submitted evidence showing that

the Williamses accepted warranty services from Franklin on at least

three separate occasions.

The Williamses attempt to explain away the importance of those

work orders, but their explanations are unconvincing. First, the

Williamses argue that the work orders themselves did not state that they

were connected to Franklin's limited warranty. See the Williamses' brief,

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p. 10. But the work orders did not need to do so. As we noted in the

rendition of the facts, the sales contract the Williamses executed with

Whitson expressly stated that "[the Williamses] understand[] that

[Franklin], not [Whitson], will provide any warranties on the Home" and

that "[the Williamses] understand[] that [the Williamses] will obtain any

warranty service on the Home from [Franklin] and not from [Whitson]."

The Williamses both signed the sales contract, and they each initialed

the page that contained information about the warranty on their home.

Thus, when the Williamses contacted Franklin to perform work on the

home, they were on notice that it was work performed under the

warranty Franklin provided -- a warranty that contained an arbitration

provision.

Second, the Williamses complain that one of the work orders is

double-dated -- for August 8 and August 17, 2022. The Williamses assert

that this was because on August 8, 2022, "the representative sent by

Franklin … did no work and told the Williamses that there were too

many repairs for him to manage and to get an attorney." The Williamses'

brief, p. 3. However, the Williamses fail to provide a record citation that

supports their assertion, and their own affidavits provided no testimony

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concerning the warranty services established by the work orders. As

Franklin observes, the Williamses have not denied that a "Franklin

technician came to their home on August 8, 2022," or that "Franklin

returned on August 17, 2022, and Mr. Williams clearly acknowledged

th[at] warranty services were provided that day." 3 Franklin's reply brief,

pp. 10-11. In short, the Williamses failed to establish their allegation of

a lack of work performed on August 8, 2022, and, even if they had, that

point ignores the reality that the Williamses did have Franklin perform

warranty work on their home.

Third, the Williamses seem to imply that the work orders attached

to Jackson's affidavit should be ignored because, according to the

Williamses, that affidavit "contains false information." The Williamses'

brief, p. 1. Specifically, the Williamses state that, in his affidavit, Jackson

incorrectly testified that the home was transported from Franklin's

manufacturing facility in Russellville to Whitson's facility, and then to

3As Franklin also notes: "The authorizations concern two work
orders. Work pursuant to work order [number] 130755 was performed
February 13, 2022, while work performed pursuant to work order
[number] 150069 was performed on both August 8, 2022, and August 17,
2022." Franklin's reply brief, p. 9 n.2. The fact that two of the work orders
contain the same work order number would explain why one of the work
orders is double-dated.
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the Williamses' property. According to the Williamses, their home "was

not shipped to a retail destination, but rather directly to the Williamses'

lot." The Williamses' brief, p. 5. In other words, the home was not taken

to Whitson's business address before it was transported to the

Williamses' property. 4

For its part, Franklin concedes that factual discrepancy in its reply

brief, but it contends the error is immaterial.

"It appears the Williamses are correct about this
inaccuracy, though it would also seem to be the very definition
of harmless error. … Whether [the home] was first shipped to
Whitson's facility in Gulf Shores, or shipped directly to the
Williamses' property -- also in Gulf Shores -- has no bearing
on … whether the Williamses' claims against Franklin must
be arbitrated."

Franklin's reply brief, p. 8 (emphasis in original).

Franklin is correct that the conceded error in Jackson's affidavit

has no direct bearing on the arbitration issue, but its argument ignores

the Williamses' more general assertion that, because Jackson's affidavit

contained erroneous information, the entire affidavit, and the evidence

4In their brief, the Williamses also assert that the homeowner's
manual was not delivered to them with the home. See the Williamses'
brief, p. 7 (stating that "[t]here was no homeowner's manual in the
Williamses' home"). However, there is no sworn evidence in the record on
appeal establishing that assertion.
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accompanying it, should be discounted. However, the Williamses provide

no legal authority for the proposition that the entire affidavit and its

exhibits should have been ignored by the trial court because the affidavit

contained one factual error. "Rule 28(a)(10)[, Ala. R. App. P.,] requires

that arguments in briefs contain discussions of facts and relevant legal

authorities that support the party's position. If they do not, the

arguments are waived." White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.

2d 1042, 1058 (Ala. 2008). Moreover, the Williamses did not file a motion

to strike Jackson's affidavit in the trial court, and there is no indication

that the trial court did not consider that evidence in reaching its

judgment. Cf. Ex parte Secretary of Veterans Affairs, 92 So. 3d 771, 777

(Ala. 2012) ("[A] party must move the trial court to strike any evidence

that violates Rule 56(e), Ala. R. Civ. P. An objection to the inadmissible

evidence alone is not sufficient. The motion to strike brings the objection

to the trial court's attention and requires action on the part of the trial

court to properly preserve the ruling on appeal." (footnote omitted)).

Furthermore, the Williamses do not deny that they received service work

from Franklin. Instead, they simply complain that "the work

authorizations deal only with small items and punt on the structural

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ones." The Williamses' brief, p. 16. But the scale of the work performed is

not the point; no such distinction was drawn in Ard with respect to its

conclusion that acceptance of warranty work constituted ratification of

the warranty's terms. Thus, we are not persuaded by the Williamses'

assertion that the work orders should be ignored because of the factual

inaccuracy contained in Jackson's affidavit.

In Ard, the Court also concluded that because the plaintiffs had

asserted claims based on violations of an express warranty, and the only

express warranty in evidence was the one containing the arbitration

provision, the plaintiffs were bound by the arbitration provision because

a party cannot simultaneously claim the benefits of a contract and

repudiate its burdens and conditions. See Ard, 772 So. 2d at 1134-35. In

Hennis and Kennedy, the Court also confirmed that the plaintiffs in those

cases could not maintain their express-warranty claims without also

accepting the arbitration provisions contained in those warranties.

Likewise, in this case, the Williamses have asserted express-warranty

claims, and the only express warranty in evidence is the one contained in

the homeowner's manual. Therefore, the Williamses' express-warranty

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claims constitute another reason they are bound by the arbitration

provision in the warranty provided by Franklin.

As we have explained, and as Ard dictates, because the Williamses

accepted warranty services from Franklin and they have asserted

express-warranty claims against Franklin, they are contractually bound

by the arbitration provision contained in the warranty portion of the

homeowner's manual. 5 The only question that remains, then, is whether

the trial court's July 31, 2024, order correctly implemented the

arbitration provision?

As we noted in the rendition of the facts, the trial court's order

stated: "Motion to compel filed by Franklin Structures, LLC, is hereby

denied in part as to arbitration." Because the trial court denied

5The Williamses also have argued that the arbitration provision is

unconscionable, but the argument they present on that front is entirely
different than the one they presented in the trial court. "[W]e cannot
reverse the judgment of the trial court based on an argument not made
below and urged for the first time on appeal." Singleton v. State Farm
Fire & Cas. Co., 928 So. 2d 280, 285 n.2 (Ala. 2005). Moreover, the
Williamses presented no evidence in support of their assertion of
unconscionability. "A party must submit evidence in some form in order
to preserve for appellate review that party's contention of
unconscionability as a defense to the enforcement of an arbitration
agreement." First Family Fin. Servs., Inc. v. Jackson, 786 So. 2d 1121,
1131 (Ala. 2000). Therefore, the Williamses' unconscionability argument
is without merit.
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Franklin's motion to compel arbitration "in part," it is possible to

interpret the trial court's order as concluding that it was not ordering the

case to arbitration because the provision in question requires disputes

first to be submitted to nonbinding mediation and that a dispute will be

submitted to binding arbitration only "if a dispute is not resolved through

Mediation." If that is what the trial court intended, it read the arbitration

provision correctly, but it failed to implement the provision by its terms.

"When a trial court compels arbitration, it must do so in
a manner consistent with the terms of the arbitration
provision. See Ex parte Cappaert Manufactured Homes, 822
So. 2d 385, 387 (Ala. 2001) ('[section] 5 [of the Federal
Arbitration Act] mandates that the method set forth in the
arbitration agreement be followed'); Southern Energy Homes
Retail Corp. v. McCool, 814 So. 2d 845 (Ala. 2001) (trial court
directed to vacate its order because it failed to compel
arbitration in a manner consistent with the terms of the
agreement between the parties); Ex parte Dan Tucker Auto
Sales[, Inc., 718 So. 2d 33 (Ala. 1998)] (trial court erred in
assigning administrative fees of arbitration to the defendant
when the Rules of the [American Arbitration Association]
provided for the relief of a party in the event of hardship). A
trial court's order compelling arbitration that changes the
terms of the arbitration provision will be reversed when

" 'it appears that the trial court, although it
ordered the parties to arbitrate, failed to compel
arbitration in a manner consistent with the terms
of [the] arbitration provision.'

"McCool, 814 So. 2d at 849."

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BankAmerica Hous. Servs. v. Lee, 833 So. 2d 609, 618 (Ala. 2002) (first

emphasis added).

As we noted in the rendition of the facts, in its motion to compel

arbitration, Franklin expressly requested that the trial court "dismiss[]

this case and compel[] the [Williamses'] claims to be resolved through …

non-binding mediation and/or arbitration." The arbitration provision

requires the parties to submit disputes to nonbinding mediation and

then, if necessary, to binding arbitration. A trial court is empowered to

compel mediation under § 6-6-20(b), Ala. Code 1975, which provides:

"(b) Mediation is mandatory for all parties in the
following instances:

"(1) At any time where all parties agree.

"(2) Upon motion by any party. The party
asking for mediation shall pay the costs of
mediation, except attorney fees, unless otherwise
agreed.

"(3) In the event no party requests
mediation, the trial court may, on its own motion,
order mediation. The trial court may allocate the
costs of mediation, except attorney fees, among the
parties."6

6See also Rule 2, Ala. Civil Court Mediation Rules.

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Under the arbitration provision ratified by the Williamses,

Franklin and the Williamses have agreed to mediation of disputes

between them, and Franklin has filed a motion to compel mediation

according to the terms of the arbitration provision. The trial court,

however, did not compel the parties to mediation, which is contrary to

the terms of the arbitration provision. Therefore, the trial court's order is

due to be reversed. Cf. Karibu Home Builders, LLC v. Keenum, [Ms. SC-

2024-0440, Dec. 20, 2024] __ So. 3d __, __ (Ala. 2024) (Cook, J., concurring

in the result).

IV. Conclusion

The Williamses are bound by the arbitration provision contained in

the warranty portion of the homeowner's manual. That provision

requires the parties to submit any disputes "arising from or relating to

the Home" to nonbinding mediation and then, if necessary, to binding

arbitration. Franklin's motion to compel arbitration correctly requested,

in accordance with the arbitration provision, that the Williamses' claims

be compelled to mediation and, if necessary, to arbitration. The trial court

erred by failing to grant Franklin's motion to compel arbitration in a

manner consistent with the terms of the arbitration provision. Therefore,

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the trial court's order is hereby reversed, and the cause is remanded for

the trial court to enter an order consistent with Franklin's request.

REVERSED AND REMANDED.

Stewart, C.J., and Shaw, Bryan, and McCool, JJ., concur.

31