Kenneth Coleman v. Stan King Chevrolet, Inc., Dan McKinley and Jessie Bowman

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CA-00943-COA

KENNETH COLEMAN APPELLANT

v.

STAN KING CHEVROLET, INC., DAN APPELLEES
McKINLEY AND JESSIE BOWMAN

DATE OF JUDGMENT: 08/18/2022
TRIAL JUDGE: HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: CARROLL RHODES
ATTORNEY FOR APPELLEES: BRAD RUSSELL BOERNER
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: REVERSED AND RENDERED - 01/09/2024
MOTION FOR REHEARING FILED:

EN BANC.

BARNES, C.J., FOR THE COURT:

¶1. This appeal concerns the Lincoln County Circuit Court’s dismissal of Kenneth

Coleman’s motion to compel arbitration under Mississippi Rule of Civil Procedure 60(b) on

the basis that the statute of limitations had run on Coleman’s claims. Concluding that the

circuit court erred in dismissing Coleman’s motion, we reverse and render judgment. We

order the circuit court to restore the case to the court’s docket and stay the proceedings until

arbitration has been conducted and completed.

FACTS AND PROCEDURAL HISTORY

¶2. On July 3, 2019, Kenneth Coleman filed a complaint in the Lincoln County Circuit

Court against Stan King Chevrolet Inc. (Stan King), Dan McKinley, and Jessie Bowman
(collectively “the defendants”),1 alleging negligence, unlawful conversion, negligent

misrepresentation, breach of express warranty, and breach of implied warranty.2 The

complaint alleged that Coleman owned a 2015 Chevrolet Silverado truck he had purchased

from Herrin Gear Chevrolet. He bought and installed several accessories for the vehicle,

including 20-inch wheels, “mats, full back glass, window shades, bug shield, back cover, bed

cover, [and] chrome exhaust tip.” In 2017, he went to Herrin Gear to shop for a new truck.

Herrin Gear quoted him $36,000 for the trade-in value of his existing truck. He told the

salesperson he wanted to keep the purchased accessories and restore the original accessories

to the vehicle.

¶3. Because Herrin Gear did not have a new truck in its inventory, Coleman went to Stan

King in August 2017 to search for a truck with the style and accessories he wanted. Stan

King agreed to find a new truck with the desired style and accessories and told Coleman that

the trade-in value for the 2015 Silverado would be $32,000. After the salesman found the

truck Coleman wanted, Coleman asked the dealer to match the trade-in value quoted by

Herrin Gear. According to Coleman, Stan King eventually agreed to pay Coleman $37,000

as the trade-in value for the 2015 Silverado truck with the truck’s original accessories.

1
Coleman had already filed suit against Stan King in the Lincoln County Justice
Court, which dismissed the action after a hearing on the merits. This order of dismissal is
not contained in the record.
2
On July 12, 2019, Coleman filed an amended complaint alleging negligence,
unlawful conversion, negligent misrepresentation, fraudulent misrepresentation, breach of
express warranty, breach of implied warranty, civil fraud, and unlawful forgery.

2
¶4. Coleman and Stan King entered into a retail installment contract for $52,612.84 on

August 31, 2017, for the purchase of the new 2017 Silverado truck. The contract had an

arbitration provision on the back page, which stated:

Any claim or dispute, whether in contract, tort, statute or otherwise (including
the interpretation and scope of this Arbitration Provision, and the arbitrability
of the claim or dispute) between you or us or our employees, agents,
successors or assigns, which arise out of or relate to your credit application,
purchase or condition of this vehicle, this contract or any resulting transaction
or relationship (including any such relationship with third parties who do not
sign this contract) shall, at your or our election, be resolved by neutral, binding
arbitration and not by court action.

Although Coleman contends that he was unaware of this provision when he signed the

contract, the contract also provided:

NOTICE TO THE BUYER: 1. Do not sign this contract before you read it or
if it contains any blank spaces.

You agree to the terms of this contract and any dispute resolution agreement
you signed with this contract. You confirm that before you signed this contract
and any dispute resolution agreement, we gave them to you, and you were free
to take them and review them. You acknowledge that you have read both sides
of this contract, including the arbitration provision on the reverse side before
signing below. . . .

Coleman signed the contract on the signature line directly below this language.

¶5. Because Stan King did not have the floor mats and bug shield at the time the contract

was executed, the dealer signed a “WE OWE” form, indicating that Stan King owed

Coleman two extra oil changes, the floor mats, window shade, and the bug shield. Coleman

alleges that those items were not provided, nor were the 20-inch wheels that he already

owned.

3
¶6. On August 5, 2019, the defendants filed an answer and affirmative defenses

(including the statute of limitations), a counterclaim for breach of contract, and a motion to

compel arbitration. Specifically, their counterclaim and motion asserted that the installment

contract contained an arbitration provision, and they requested that the circuit court “conduct

a hearing upon and determine the enforceability of the arbitration agreement, and compel

Coleman to participate in arbitration as agreed in the contract.” The defendants also moved

“for an [o]rder staying this action and enjoining Coleman from proceeding with this matter

until . . . any arbitration has been conducted, concluded and confirmed in accordance with

the terms of the arbitration agreement.”

¶7. The defendants filed an application to the circuit court clerk for entry of default on

December 20, 2019, based on Coleman’s failure to plead, answer, or otherwise defend the

counterclaim. They also filed a motion to dismiss Coleman’s complaint. On December 27,

2019, Coleman’s attorney filed a motion to strike the clerk’s entry of default,3 indicating that

he had not received the defendants’ answer or counterclaim. He also filed a motion for leave

to file an out-of-time answer to the defendants’ counterclaim, an answer to the counterclaim,

and a response to the motion to dismiss. In his proposed answer, Coleman “affirmatively

ple[d] that the arbitration clause and agreement contained in the contract were procedurally

and substantively unconscionable.”

¶8. Coleman did not notice his motion to strike until almost two years later. A motions

3
The record does not contain or show a docketed clerk’s entry of default.

4
hearing was held in December 2021, but Coleman’s attorney did not make an appearance.

The circuit court therefore dismissed Coleman’s motion to strike and entered a default

judgment against Coleman on December 20, 2021, finding that the defendants were “entitled

to the relief sought in their Counter-complaint.” The court further held that “in accord with

the contract among the parties herein, the proper procedure to address the allegations made

herein is arbitration.” The next day, Coleman filed a motion for reconsideration but

immediately withdrew the motion.

¶9. Months later, on May 9, 2022, Coleman’s attorney mailed a letter to the defendants’

counsel, which stated that Coleman “wants to proceed with arbitration.” The attorney further

asserted in the letter that “the statute of limitations was tolled from July 3, 2019 until

December 20, 2021[.]” The defendants responded that they “disagree[d] with [Coleman’s]

proposal that the statute of limitations is tolled” and that the court’s “last Order terminated

this matter once and for all.”

¶10. On June 10, 2022, Coleman filed a motion pursuant to Mississippi Rules of Civil

Procedure 60(b)(5)-(6) and 70(a).4 In the motion, Coleman requested that the circuit court

“compel the defendants to arbitrate [his] claims, or, alternatively, restore the case to the

Court’s active docket.” At the motions hearing, counsel for the defendants argued that the

case was now barred by the statute of limitations.5

4
Coleman does not discuss Rule 70(a) or its application to this case on appeal.
5
The defendants cite Haycraft v. Mid-State Construction Co., 915 So. 2d 1117
(Miss. Ct. App. 2005), in support of their argument that Coleman’s claims are barred. In

5
¶11. The circuit court dismissed Coleman’s motion to compel on August 8, 2022, holding

“that the statute of limitations has run on the claims raised by [Coleman] in his amended

complaint.” Coleman appeals the circuit court’s dismissal of his motion to compel the

defendants to arbitrate his claim or, alternatively, to restore the case to the circuit court’s

active docket.6

DISCUSSION

¶12. As noted, the defendants initially requested in their motion to compel arbitration that

the circuit court enter an “[o]rder staying the [a]ction and enjoining Coleman from

proceeding with this matter until this [c]ourt has ruled upon the enforceability of the

arbitration agreement at issue and any arbitration has been conducted, concluded and

Haycraft, the circuit court entered an order dismissing the case and compelling arbitration
in 1994. Id. at 1119-20 (¶¶4-5, 11). However, the Haycrafts failed to initiate arbitration
until August 2001 when they filed an “application” for “an order mandating arbitration” in
the circuit court, seeking enforcement of the circuit court’s prior order. Id. at 1119 (¶5).
The circuit court denied the application, and this Court affirmed. Id. at 1119, 1123 (¶¶7,
28). We held the Haycrafts’ “action to compel arbitration [was] time-barred” because the
Haycrafts failed to initiate arbitration within three years of the circuit court’s original order
compelling arbitration. Id. at 1123 (¶¶26, 28). We did not hold the Haycrafts’ underlying
claims were barred by the statute of limitations or otherwise address the merits of the
Haycrafts’ claims. Therefore, our decision in Haycraft is inapposite here because Coleman
timely filed his complaint and then attempted to initiate arbitration within five months of the
circuit court’s order compelling arbitration.
6
Nearly six months passed between the entry of the default judgment and Coleman’s
notice of appeal. Therefore, our review is limited to whether the court erred in denying
Coleman’s Rule 60(b) motion. See Woods v. Victory Marketing LLC, 111 So. 3d 1234,
1236 (¶8) (Miss. Ct. App. 2013) (noting that “a notice of appeal following the denial of a
Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was
properly denied under Rule 60(b)”).

6
confirmed in accordance with the terms of the arbitration agreement.”7 In their request for

relief, the defendants further asked that the court “[c]ompel Coleman to participate in . . .

arbitration” and “[d]ismiss this cause of action in favor of binding arbitration, in accordance

with the Contract subject of this matter.”

¶13. Instead of staying the action, however, the circuit court entered a default judgment,

finding that the defendants were “entitled to the relief sought in their [c]ounter-complaint”

and that “in accord with the contract among the parties herein, the proper procedure to

address the allegations made herein is arbitration.” Complying with the circuit court’s ruling,

Coleman began searching for an arbitrator. Coleman explains,

After the trial court dismissed the case ordering the parties to arbitrate, the
plaintiff had to find an arbitrator qualified to arbitrate the dispute and get the
defendants to agree to the arbitrator selected. There was insufficient time for
the plaintiff to accomplish this task within the 10 day time period in which to
file a Rule 59(b) motion. The plaintiff did not know that the defendants did not
want to arbitrate until it was newly discovered on May 13, 2022. A judgment
may be set aside under Rule 60(b)(1) for fraud upon the court when a party
files a false statement misleading the court. See Trim v. Trim, 33 So. 3d 471
(Miss. 2010) (en banc). Furthermore, a judgment may be set aside based upon
newly discovered evidence. January v. Barnes, 621 So. 2d 915 (Miss. 1992)
(en banc). The trial court’s judgment dismissing the case and ordering
arbitration should be set aside because of the newly discovered evidence that
the defendants refused to arbitrate after requesting the court to dismiss the case
and compel arbitration.

(Emphasis added).

7
See Century 21 Maselle & Assocs. Inc. v. Smith, 965 So. 2d 1031, 1037 (¶10)
(Miss. 2007) (“[P]arties desiring to seek arbitration should promptly file and present to the
trial court a motion to stay proceedings and a motion to compel arbitration.”).

7
¶14. Assuming the defendants had a good-faith intention to arbitrate when filing the motion

to compel,8 they nevertheless pulled a “bait and switch” by insisting that Coleman’s claims

are now barred by the statute of limitations after the circuit court dismissed the lawsuit.

Mississippi Rule of Civil Procedure 60(b)(6) provides that a “court may relieve a party or his

legal representative from a final judgment, order, or proceeding for . . . (6) any other reason

justifying relief from the judgment.” M.R.C.P. 60(b)(6). We find that the defendants’

rejection of Coleman’s attempt to proceed with arbitration provides justification for granting

Coleman relief under Rule 60(b)(6).

¶15. We further find that the circuit court erred in addressing the statute-of-limitations

issue. The subject agreement expressly provided, “The arbitrator shall apply governing

substantive law and the applicable statute of limitations” and was “governed by the Federal

Arbitration Act . . . and not by any state law concerning arbitration.” Under the Federal

Arbitration Act, an affirmative defense based on the statute of limitations should be

addressed by an arbitrator, not the court. See, e.g., Cooper v. WestEnd Cap. Mgmt. L.L.C.,

832 F.3d 534, 546 (5th Cir. 2016) (“Procedural questions, such as whether a claim is barred

8
Had the defendants filed the motion to compel arbitration with no intention of
arbitrating the claims, that would have constituted “fraud” or “misrepresentation,” see
Vincent v. Corbitt, 94 Miss. 46, 54, 47 So. 641, 642 (1908) (holding that a person may be
“liable for false representations” if it is “shown that he made the representation . . . with
actual knowledge of their falsity”), and would have provided Coleman relief from the
judgment under Rule 60(b)(1), see Sabal Corp. v. Howell, 853 So. 2d 122, 124 (¶5) (Miss.
Ct. App. 2003) (A party’s knowing and false misrepresentation for the purpose of inducing
another party to rely on the representation, which results in injury to that party, constitutes
actionable fraud.).

8
by a statute of limitations, are generally to be reviewed by the arbitrator.” (internal quotation

marks omitted)); see also Joel E. Smith, Annotation, Statute of Limitations as Bar to

Arbitration Under Agreement, 94 A.L.R.3d 533, § 2[b] (1979) (noting that “where the matter

sought to be arbitrated was subject to the provisions of the Federal Arbitration Act[,] . . . it

has been held that it was for the arbitrators to determine whether the arbitration was

time-barred” (citation omitted)).

¶16. Nonetheless, because the circuit court’s ruling that “the statute of limitations ha[d] run

on the claims raised by [Coleman]” was the sole basis for dismissing Coleman’s Rule 60(b)

motion, we find that there is no way of getting that issue to arbitration without addressing the

merits of the court’s ruling. A statute-of-limitations issue is reviewed de novo. Marshall v.

Kansas City S. Rys. Co., 7 So. 3d 210, 213 (¶14) (Miss. 2009). Coleman filed his amended

complaint on July 12, 2019, twenty-two months after the contract at issue was signed (August

31, 2017). “Ordinarily, the filing of a complaint tolls the statute of limitations.” Koestler v.

Miss. Baptist Health Sys. Inc., 45 So. 3d 280, 282 (¶9) (Miss. 2010). The filing of the

lawsuit here tolled the statute of limitations9 until the court’s judgment was entered on

December 20, 2021. See Johnson v. Rhett, 250 So. 3d 486, 490 (¶11) (Miss. Ct. App. 2018)

(recognizing the “general rule . . . ‘that, unless process is not timely served, the statute of

limitations is tolled upon the filing of the complaint, and does not begin to run again until

9
Coleman’s claims are subject to the three-year “catch-all” statute in Mississippi
Code Annotated section 15-1-49 (Rev. 2019). Therefore, at that point, Coleman had over
thirteen months (416 days) remaining on the general statute of limitations.

9
litigation has ended[]’” (quoting Thornhill v. Ingram, 178 So. 3d 721, 724 (¶14) (Miss.

2015))). Less than six months later (172 days), Coleman filed his motion to compel

arbitration or, alternatively, for relief from the judgment. The calculation or reasoning

behind the court’s ruling that Coleman’s claims are statutorily time-barred is simply not

supported by the record. We therefore hold that the court’s dismissal on this basis was error.

¶17. In summary, the defendants have offered no valid reason why they should not be

required to comply with the court’s prior judgment compelling arbitration. Accordingly, we

reverse and render the court’s ruling dismissing Coleman’s Rule 60(b) motion. Because the

defendants’ counterclaim specifically requested that the circuit court stay the action “[u]nder

9 U.S.C. § 3” until “arbitration has been conducted, concluded and confirmed[,]”10 we order

the circuit court to restore the case to the court’s active docket and stay the proceedings

pending the conclusion of the arbitration proceedings. See MS Credit Ctr. Inc. v. Horton,

10
9 U.S.C. § 3 provides:

If any suit or proceeding be brought in any of the courts of the United States
upon any issue referable to arbitration under an agreement in writing for such
arbitration, the court in which such suit is pending, upon being satisfied that
the issue involved in such suit or proceeding is referable to arbitration under
such an agreement, shall on application of one of the parties stay the trial of
the action until such arbitration has been had in accordance with the terms
of the agreement, providing the applicant for the stay is not in default in
proceeding with such arbitration.

9 U.S.C. § 3 (emphasis added). “[S]tate courts, as much as federal courts, are obliged to
grant stays of litigation under § 3 of the [Federal] Arbitration Act.” Moses H. Cone Mem’l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 26 (1983).

10
926 So. 2d 167, 181 n.8 (Miss. 2006) (noting that “[w]here a motion to compel arbitration

is granted, the litigation does not terminate, but rather is stayed pending completion of the

arbitration process and entry of the arbitrator’s decision”).

¶18. REVERSED AND RENDERED.

CARLTON AND WILSON, P.JJ., WESTBROOKS AND McDONALD, JJ.,
CONCUR. LAWRENCE AND SMITH, JJ., CONCUR IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. McCARTY, J., CONCURS
IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GREENLEE, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY EMFINGER, J.

GREENLEE, J., DISSENTING:

¶19. Because I would affirm the circuit court’s dismissal of Coleman’s Rule 60(b) motion,

I respectfully dissent.

¶20. A party may move the circuit court to reconsider its judgment by (1) filing a motion

for a new trial or to alter or amend the judgment under Mississippi Rule of Civil Procedure

59 or (2) filing for relief from a final judgment under Rule 60(b). Loftin v. Jefferson Davis

Cnty. Sch. Dist., 142 So. 3d 1098, 1100 (¶5) (Miss. Ct. App. 2014). “The timing of the

motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.” Id. (quoting

Woods v. Victory Mktg. LLC, 111 So. 3d 1234, 1236-37 (¶¶6-8) (Miss. Ct. App. 2013)). “A

motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59

and tolls the thirty-day time period to file a notice of appeal until the disposition of the

motion” whereas “a motion to reconsider filed more than ten days after the entry of judgment

falls under Rule 60(b) . . . [a]nd . . . does not toll the thirty-day time period to file a notice of

11
appeal.” Id.

¶21. In this case, the circuit court entered a default judgment on December 20, 2021.

Nearly six months later, on June 10, 2022, Coleman filed his motion to reconsider.

Accordingly, the thirty-day time period to file a notice of appeal was not tolled, and this

Court’s review is limited “to whether reconsideration was properly denied under Rule 60(b).”

Id. Importantly, “[t]his [C]ourt has no jurisdiction to consider the merits of the underlying

judgment.” Id.

¶22. A motion filed under Rule 60(b) permits the court to relieve a party from a final

judgment, order, or proceeding for the following reasons:

(1) fraud, misrepresentation, or other misconduct of an adverse party;

(2) accident or mistake;

(3) newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b);

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should have prospective application;

(6) any other reason justifying relief from the judgment.

M.R.C.P. 60(b). A movant must file a Rule 60(b)(5) or (b)(6) motion within a reasonable

time. Id.11

11
When determining whether a Rule 60(b) motion was filed in a reasonable time,
courts have considered “whether the movant can show cause for failure to act sooner.”

12
¶23. In his appellate brief, Coleman notes that his motion was filed pursuant to Rules

60(b)(5)-(6) and 70(a). As noted by the majority, Coleman does not discuss Rule 70(a) or

its application to this case on appeal. A Rule 60(b) motion provides relief from a prior final

judgment or order—in this case, a default judgment. When Coleman did not respond to the

defendants’ counterclaim or motion to compel, the defendants requested entry of default and

filed a motion to dismiss. Subsequently, Coleman filed a motion to strike and a motion for

leave to file an answer to the defendants’ counterclaim out of time. The circuit court held

a hearing on Coleman’s motion. However, Coleman’s counsel did not appear at the hearing,

and the circuit court granted a default judgment. Thereafter, Coleman filed a motion for

reconsideration and then withdrew the motion. Nearly six months after the court entered its

order, he filed the motion to compel arbitration or to restore the case to the active docket.12

¶24. The motion, however, did not assert a compelling argument that the court’s judgment

had been “satisfied, released, or discharged” or that “a prior judgment upon which [the

judgment was] based ha[d] been reversed or otherwise vacated,” or that it was “no longer

equitable that the judgment should have prospective application.” Additionally, the motion

did not assert a compelling argument that Coleman was entitled to relief from the circuit

Smith v. Doe, 268 So. 3d 457, 462 (¶13) (Miss. 2018) (quoting Cucos Inc. v. McDaniel, 938
So. 2d 238, 246 (¶23) (Miss. 2006)).
12
To reiterate, any deficiencies or error in the circuit court’s grant of default
judgment—that may have been raised in Coleman’s Rule 59 motion for reconsideration that
he subsequently withdrew—cannot be addressed. This Court is limited in its review to
whether the circuit court properly denied Coleman’s Rule 60(b) motion, which was filed
almost 180 days after the circuit court’s judgment.

13
court’s default judgment. For these reasons, I would affirm the circuit court’s dismissal.13

EMFINGER, J., JOINS THIS OPINION.

13
In Marillo v. Shearson Hayden Stone Inc., 159 A.D.2d 1012, 1012, 552 N.Y.S.2d
730 (N.Y. App. Div. 1990), the appellate court held that “a motion to compel arbitration may
not be granted where the claim sought to be arbitrated is barred by limitation of time.” The
appellate court explained that “the granting of a motion to compel arbitration merely
precludes the aggrieved plaintiff from proceeding with his action; it does not require the
defendant to institute arbitration procedures.” Id. Further, “[i]f the party with a grievance
‘does not voluntarily turn now to the arbitral process he will find himself with no remedy
at all.’” In Marillo, the “plaintiff was the party required to initiate the arbitration
procedures[, and b]ecause she . . . failed to do so within the period of the Statute of
Limitations, her claim [was] time barred.” Id. (citation omitted). This Court agreed with
Marillo in Haycraft v. Mid-State Const. Co., 915 So. 2d 1117, 1123 (¶25) (Miss. Ct. App.
2005). This suggests that it was the plaintiff’s duty to initiate arbitration even if the circuit
court compelled arbitration and that the circuit court may refuse to compel arbitration when
the statute of limitations has run.

14