IN RE PALM HARBOR HOMES, INC. AND PALM HARBOR HOMES I, L.P. D/B/A PALM HARBOR VILLAGE (concurring)

============

No. 04-0490

============

In re Palm Harbor Homes, Inc., and Palm Harbor Homes I, L.P. d/b/a Palm Harbor Village, Relator

====================================================

On Petition for Writ of Mandamus

====================================================

Argued March 23, 2006

Justice O Neill, concurring.

In my view, the unilateral right that the retail contract conferred on the manufacturer to compel or avoid arbitration with the parties to that contract after the events giving rise to the Ripples claim arose rendered the contract s arbitration clause unconscionable as to the manufacturer and non-binding on the Ripples. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 230 & n.2 (Tex. 2003). Because I agree with the trial court and the court of appeals on this point, I do not join part IV, A, of the Court s opinion. Nevertheless, the Ripples claims against the manufacturer in this case necessarily rely on the terms of the retail contract and raise substantially interdependent and concerted misconduct; accordingly, I believe the Ripples are equitably estopped from seeking to avoid arbitration with the manufacturer. See, e.g., Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524 (5th Cir. 2000). On this basis, I concur in the Court s judgment.

__________________________________________

Harriet O Neill

Justice

OPINION DELIVERED: June 9, 2006.