Rentokil North America, Inc., d/b/a Terminix v. Colton Turner and Keegan Turner

Rel: June 20, 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,
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2024-2025

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Rentokil North America, Inc., d/b/a Terminix

v.

Colton Turner and Keegan Turner

Appeal from Houston Circuit Court
(CV-24-900420)

SHAW, Justice.

Rentokil North America, Inc., d/b/a Terminix ("Terminix"), the

defendant below, appeals from the Houston Circuit Court's order denying
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its motion seeking to compel arbitration of the claims asserted against it

by the plaintiffs, Colton Turner and Keegan Turner. We reverse and

remand.

Facts and Procedural History

Terminix is a Pennsylvania entity registered to provide pest-control

services in Alabama. In 2023, Terminix, through its Dothan location,

was retained to conduct, in connection with the Turners' contract to

purchase a residence in Ozark, an inspection satisfying the seller's duty

to provide the Turners a "Wood Destroying Insect Inspection Report"

("the report") on the residence. Specifically, Terminix entered into an

agreement ("the inspection agreement"), at the request of the seller, to

conduct a visual inspection of the residence for signs of infestation and/or

damage by termites (or other wood-destroying organisms).

Thereafter, on November 11, 2023, Terminix conducted its

inspection as required by the inspection agreement and provided the

report, which identified areas of visible damage in the residence. The

report identified both the "Seller," who, the record suggests, paid all the

charges associated with the inspection and resulting treatment, and

listed Colton Turner as the "Purchaser."

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Also on November 11, 2023, Terminix entered into a separate

"Property Work Authorization and Service Agreement" ("the service

agreement") for related repairs to the residence and also an agreement

providing for the installation of a "Subterranean Termite Baiting

System" ("the baiting agreement") in the residence. Among its other

"terms and conditions," the baiting agreement contained a "mandatory

arbitration" provision, providing, in pertinent part:

"Any claim, dispute or controversy, regarding any
contract, tort, statute or otherwise ('Claim') arising out of or
relating to this Agreement or the relationships among the
parties hereto, shall be resolved by one arbitrator through
binding arbitration administered by the American
Arbitration Association ('AAA'), under the AAA Commercial
or Consumer, as applicable, Rules in effect at the time the
Claim is filed ('AAA Rules'). . . . This clause is made pursuant
to a transaction involving interstate commerce and shall be
governed by the Federal Arbitration Act. ... The arbitrator,
and not any federal, state or local court, shall have exclusive
authority to resolve any dispute relating to the interpretation,
applicability, unconscionability, arbitrability, enforceability,
or formation of this Agreement, including any claim that all
or any part of this Agreement is void or voidable."

(Capitalization omitted; emphasis added.)1 Both the service agreement

1The service agreement also contained a provision requiring
mandatory arbitration; however, in moving to compel arbitration,
Terminix appears to have relied exclusively on the quoted provision in
the baiting agreement. See also n.2, infra.
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and the baiting agreement, in all relevant locations, again designated, in

typeface, Colton Turner as the "Purchaser" and contained an illegible

signature beside each such designation. After Terminix's initial

treatment of the residence pursuant to the service agreement and the

baiting agreement, the Turners, in 2024, paid the required annual

renewal fee to renew the baiting agreement.

In September 2024, the Turners sued Terminix alleging that

representations Terminix included in the report regarding the scope and

location of existing termite damage in the residence were "false" and

asserting the following claims: breach of contract, "fraud-

misrepresentation," fraudulent suppression, and negligence. In

response, Terminix filed a motion seeking to stay the action and to

compel the Turners to arbitrate their claims pursuant to the arbitration

provision in the baiting agreement. More specifically, Terminix argued

that the Turners' claims were subject to arbitration under the Federal

Arbitration Act ("the FAA"), 9 U.S.C. § 1 et seq., because, it alleged, the

arbitration provision in the baiting agreement both governed those

claims and evidenced a transaction involving interstate commerce.

Terminix's motion further contended that the baiting agreement

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indicated that an arbitrator, rather than the courts, would determine any

issue of arbitrability.

Although the Turners did not dispute the presence or the general

validity of the arbitration provision in the service agreement, on which

they appeared to believe Terminix's motion relied, the Turners opposed

Terminix's request to compel arbitration. Specifically, they contended

that the controversy between the parties and their resulting claims were

based exclusively on misrepresentations by Terminix in the report, which

-- unlike the subsequently executed service agreement and baiting

agreement -- did not contain an arbitration provision. Also according to

the Turners, the report on which their claims were based had been

provided to them before they renewed, and therefore allegedly assented

to, the provisions of the baiting agreement.2

2Terminix interpreted the Turners' renewal of the baiting
agreement as their acceptance of its terms. Thus, Terminix contended
below that it was immaterial whether the Turners had actually signed
the initial baiting agreement containing the arbitration provision. See
Orkin Exterminating Co. v. Larkin, 857 So. 2d 97, 101-02 (Ala. 2003)
(concluding, even in the absence of the plaintiffs' signatures on a termite
agreement containing an arbitration provision that the termite
agreement containing the arbitration provision was nonetheless
enforceable against them based on external and objective manifestations
of mutual assent).
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The trial court, without stating the basis of its ruling, ultimately

denied Terminix's motion. Terminix appeals.

Standard of Review

" ' "[T]he standard of review of a trial court's
ruling on a motion to compel arbitration at the
instance of either party is a de novo determination
of whether the trial judge erred on a factual or
legal issue to the substantial prejudice of the party
seeking review." Ex parte Roberson, 749 So. 2d
441, 446 (Ala. 1999). Furthermore:

" ' "A motion to compel arbitration is
analogous to a motion for 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 that
contract evidences a transaction
affecting interstate commerce. Id.
'After 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.' "

" 'Fleetwood Enters., Inc. v. Bruno, 784 So. 2d 277,
280 (Ala. 2000) (quoting Jim Burke Auto., Inc. v.
Beavers, 674 So. 2d 1260, 1265 n.1 (Ala. 1995)
(emphasis omitted)).'

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"Vann v. First Cmty. Credit Corp., 834 So. 2d 751, 752-53
(Ala. 2002)."

Elizabeth Homes, L.L.C. v. Cato, 968 So. 2d 1, 3 (Ala. 2007).

Discussion

Terminix contends that the trial court erred, on several grounds, in

failing to compel arbitration. Specifically, it argues that it demonstrated

the undisputed existence of a contract both affecting interstate commerce

and requiring arbitration of disputes arising from the parties'

relationship. It further contends, as it did below, that the arbitration

provision in the baiting agreement both incorporates the American

Arbitration Association ("the AAA") rules 3 and specifically reserves to the

3Terminix's motion explicitly relied on and attached, among other

exhibits, a copy of Rule 14 of the AAA Consumer Rules, which provides,
in pertinent part: "The arbitrator shall have the power to rule on his or
her own jurisdiction, including any objections with respect to the
existence, scope, or validity of the arbitration agreement or to the
arbitrability of any claim or counterclaim." See also, e.g., Federal Ins.
Co. v. Reedstrom, 197 So. 3d 971, 976 (Ala. 2015) ("[T]he arbitration
provision in this case provides that any arbitration proceedings will be
conducted 'pursuant to the then-prevailing commercial arbitration rules
of the American Arbitration Association.' The relevant commercial
arbitration rule, Rule 7(a), expressly provides, in its current form, that
'[t]he arbitrator shall have the power to rule on his or her own
jurisdiction, including any objections with respect to the existence, scope,
or validity of the arbitration agreement or to the arbitrability of any claim
or counterclaim.' "), and Performance Builders, LLC v. Lopas, 341 So. 3d
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arbitrator the right to resolve questions of jurisdiction and arbitrability.

We agree and find this issue determinative.

In their response opposing Terminix's motion to arbitrate, the

Turners noted that "[w]hether the parties' agreement covers a particular

controversy has been deemed a gateway arbitrability question" that is

generally reserved for the courts. In this case, however, as Terminix

argues, the arbitration provision, which is sufficiently broad to arguably

require arbitration of the Turners' claims concerning Terminix's

performance under the inspection agreement, both incorporates the AAA

rules and specifically retains, for the arbitrator, the right to resolve

questions of jurisdiction and arbitrability. In such cases, we have

explained:

"The arbitration provision [at issue] provides that 'any
dispute, controversy or claim arising out of or in connection
with the [master service] agreement' that cannot otherwise be
resolved by the parties must be submitted to the AAA for
binding arbitration conducted in accordance with the AAA
commercial arbitration rules. Those rules vest the arbitrator
with the power ' "to rule on his or her own jurisdiction,

1084, 1090 n.8 (Ala. 2021) ("Rules 14(a) and (b) of the AAA Consumer
Rules are identical to Rules 7(a) and (b) of the AAA Commercial Rules.").

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including any objections with respect to the existence, scope
or validity of the arbitration agreement or to the arbitrability
of any claim or counterclaim." ' [Federal Ins. Co. v.]
Reedstrom, 197 So. 3d [971] at 976 [(Ala. 2015)] (quoting AAA
Commercial Arbitration Rule 7(a)). In CitiFinancial Corp.,
L.L.C. v. Peoples, 973 So. 2d 332 (Ala. 2007), this Court first
considered the effect of an arbitration provision specifically
incorporating the AAA commercial arbitration rules in a
dispute regarding which party -- a trial court or an arbitrator
-- should decide arbitrability issues:

" 'In Smith v. Mark Dodge, Inc., 934 So. 2d 375, 379
(Ala. 2006), we stated:

" ' "A threshold issue is which
forum should decide the question of the
scope of the arbitration agreement. In
First Options of Chicago, Inc. v.
Kaplan, 514 U.S. 938, 115 S. Ct. 1920,
131 L. Ed. 2d 985 (1995), the United
States Supreme Court stated:

" ' " 'Just as the arbitrability
of the merits of a dispute
depends upon whether the
parties agreed to arbitrate
that dispute, see, e.g.,
Mastrobuono v. Shearson
Lehman Hutton, Inc., [514
U.S. 52, 57 (1995)];
Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth,
Inc., 473 U.S. 614, 626
(1985), so the question "who
has the primary power to
decide arbitrability" turns
upon what the parties
agreed about that matter.'
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" ' "514 U.S. at 943, 115 S. Ct. 1920.
However, the Court warned, '[c]ourts
should not assume that the parties
agreed to arbitrate arbitrability unless
there is "clea[r] and unmistakabl[e]"
evidence that they did so.' 514 U.S. at
944, 115 S. Ct. 1920 (quoting AT & T
Techs. v. Communications Workers,
475 U.S. 643, 649, 106 S. Ct. 1415, 89
L. Ed. 2d 648 (1986)). This Court has
similarly required that trial courts
order arbitration of the issue of
arbitrability when the plain language
of the agreement unquestionably
shows that the parties agreed to
arbitrate the issue of arbitrability.
Polaris Sales, Inc. v. Heritage Imports,
Inc., 879 So. 2d 1129, 1133-34 (Ala.
2003); and Ex parte Perry, 744 So. 2d
859, 866-67 (Ala. 1999)."

" 'The question presented by this case is
whether the arbitration provision clearly and
unmistakably provides that the arbitrator shall
decide arbitrability. The [appellants] argue that
incorporation into the arbitration provision of the
Commercial Rules of the American Arbitration
Association, conferring authority to decide such
issues on the arbitrator, evidences such an intent.
This Court has not decided whether the
incorporation of such rules is sufficient to show the
parties' intent to delegate the issue of arbitrability
to an arbitrator, but federal courts have so held.
In Terminix International Co. v. Palmer Ranch
Ltd. Partnership, 432 F.3d 1327, 1332 (11th Cir.
2005), the United States Court of Appeals for the
Eleventh Circuit stated:
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" ' "[T]he parties have agreed that the
arbitrator will [decide the issue of
arbitrability] by providing (in all three
of the arbitration clauses at issue) that
'arbitration shall be conducted in
accordance with the Commercial
Arbitration Rules then in force of the
American Arbitration Association'
(AAA). [The relevant AAA rule], in
turn, provides that '[t]he arbitrator
shall have the power to rule on his or
her own jurisdiction, including any
objections with respect to the existence,
scope or validity of the arbitration
agreement.' ... By incorporating the
AAA Rules ... into their agreement, the
parties clearly and unmistakably
agreed that the arbitrator should
decide whether the arbitration clause
is valid. See, e.g., Contec Corp. v.
Remote Solution, Co., 398 F.3d 205,
208 (2d Cir. 2005) ('when ... parties
explicitly incorporate rules that
empower an arbitrator to decide issues
of arbitrability, the incorporation
serves as clear and unmistakable
evidence of the parties' intent to
delegate such issues to an arbitrator');
Apollo Computer, Inc. v. Berg, 886 F.2d
469, 473 (1st Cir. 1989) ('By contracting
to have all disputes resolved according
to the Rules of the ICC ..., Apollo
agreed to be bound by Articles 8.3 and
8.4. These provisions clearly and
unmistakably allow the arbitrator to
determine her own jurisdiction when,
as here, there exists a prima facie
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agreement to arbitrate whose
continued existence and validity is
being questioned.')...."

" 'We find the reasoning of the Eleventh
Circuit and other Circuit Courts of Appeal that
have addressed this issue persuasive and hold that
an arbitration provision that incorporates rules
that provide for the arbitrator to decide issues of
arbitrability clearly and unmistakably evidences
the parties' intent to arbitrate the scope of the
arbitration provision.'

"973 So. 2d at 339-40 (footnotes omitted). This Court has
since consistently reiterated the holding that questions of
arbitrability must be decided by an arbitrator when the
parties have executed a contract containing an arbitration
provision incorporating the AAA commercial arbitration
rules. See, e.g., Slamen v. Slamen, 254 So. 3d 188 (Ala. 2017);
Locklear Auto. Grp., Inc. v. Hubbard, 252 So. 3d 67 (Ala.
2017); Managed Health Care Admin., Inc. v. Blue Cross &
Blue Shield of Alabama, 249 So. 3d 486 (Ala. 2017); Bugs 'R'
Us, LLC v. McCants, 223 So. 3d 913 (Ala. 2016);[4] Reedstrom;
Anderton v. Practice-Monroeville, P.C., 164 So. 3d 1094, 1102
(Ala. 2014); and Auto Owners Ins., Inc. v. Blackmon Ins.
Agency, Inc., 99 So. 3d 1193 (Ala. 2012)."

Eickhoff Corp. v. Warrior Met Coal, LLC, 265 So. 3d 216, 221-22 (Ala.

2018) (emphasis added).

4According to Terminix, the facts in McCants, in which the Court

reversed an order refusing to compel arbitration, are "virtually identical"
to those in the present case. Terminix's brief at p. 23. Cf. Ex parte
Morris, 782 So. 2d 249 (Ala. 2000).

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Unlike the language of the arbitration provisions at issue in the

cases on which the Turners rely, the language of the arbitration provision

in the baiting agreement is sufficiently broad to encompass, at least on

its face, the Turners' claims against Terminix -- even to the extent that

those claims allegedly relate to an earlier transaction. See Orkin

Exterminating Co. v. Larkin, 857 So. 2d 97, 103 (Ala. 2003) ("[W]e have

compelled the arbitration of disputes arising out of a previous transaction

when it was clear that the parties in a subsequently executed arbitration

agreement intended to arbitrate such disputes based upon the broad

scope of the arbitration clause at issue."). Specifically, the baiting

agreement renewed by the Turners indicates that the parties will

arbitrate any "claim, dispute or controversy" relating to the

"relationships" between the parties thereto. That language appears to

amount to an agreement to arbitrate claims arising out of even prior acts

occurring as part of the parties' relationships, including Terminix's

preparation and provision of the report.5 Regardless of whether the

baiting agreement is, in fact, applicable to claims based on the report,

5The Turners' complaint specifically acknowledges that they "were

the intended beneficiar[ies] of" the report.
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that issue is to be determined by the arbitrator under the AAA rules,

which the baiting agreement also incorporated. On that issue, too, our

caselaw is well settled:

"[O]nce it is established (1) that two parties to a dispute are
bound by a valid contract containing an arbitration provision,
(2) that that same contract contains a clear indication that
the parties have agreed to arbitrate the issue of arbitrability,
and (3) that the subject dispute is at least arguably within
the scope of that contract, this Court will not entertain
arguments that the dispute actually falls within the scope of
some other contract binding the parties that does not contain
an arbitration provision. Rather, those arguments should be
directed to the arbitrator. See, e.g., [Auto Owners Ins., Inc.
v.] Blackmon [Ins. Agency, Inc.], 99 So. 3d [1193] at 1198
[(Ala. 2012)] ('Because that is an arguable question, it is the
arbitrator's task to decide whether the dispute in this case is,
or is not, subject to mandatory arbitration under the …
agreement.'). Numerous parties on appeal -- as well as even
dissenting Justices on this Court -- have urged this Court to
abandon this standard and, instead, to make the arbitrability
determination in such cases itself; however, we have
continually declined to do so."

Eickhoff Corp., 265 So. 3d at 224. Accordingly, based on the foregoing

and the language of the arbitration provision in the baiting agreement,

the scope and applicability of that provision are for the arbitrator to

determine.

Finally, to the extent that, on appeal, the Turners appear to

challenge the potential authenticity of Terminix's exhibits below, namely

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the agreements containing the arbitration provisions, nothing in the

record before us suggests that they challenged those documents on this

basis before the trial court. Similarly, we also see nothing suggesting

that the Turners disputed that the agreements at issue related to a

transaction affecting interstate commerce. See Elizabeth Homes, supra.

Also, contrary to the Turners' representations on appeal, once

Terminix made the required showing of an existing contract both

ostensibly affecting interstate commerce and requiring arbitration by

producing that contract to the trial court, the burden shifted to the

Turners to present evidence demonstrating that the arbitration provision

was invalid or inapplicable to their claims. See Elizabeth Homes, supra.

See also Ex parte Greenstreet, Inc., 806 So. 2d 1203, 1209 (Ala. 2001)

("[O]nce a moving party has satisfied its burden of production by making

a prima facie showing that an agreement to arbitrate exists in a contract

relating to a transaction substantially affecting interstate commerce, the

burden of persuasion shifts to the party opposing arbitration."). In any

event, the Turners produced nothing either calling the authenticity of the

baiting agreement into question or disputing their renewal of that

agreement in 2024.

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Conclusion

The Turners' claims against Terminix are at least arguably

connected to the baiting agreement to the extent that it referenced the

"relationships" created among all parties thereto and "any" contract

affecting them. Because the parties to the baiting agreement also agreed

that the arbitrator would decide questions regarding the applicability of

the arbitration provision or the arbitrability of their dispute, the trial

court erred when it denied Terminix's motion seeking to compel

arbitration. Therefore, the trial court's order is hereby reversed and the

cause is remanded for the trial court to enter an order granting

Terminix's motion seeking to compel arbitration and staying proceedings

in the trial court during the pendency of the arbitration proceedings.

REVERSED AND REMANDED.

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

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