In Barnes v. Conn Appliances, Inc., 2018 WL 907418, at *3 (S.D.Miss., 2018), Judge Wingate agreed with a TCPA defendant’s argument that a non-party to a contract can assent to its terms, including a TCPA-consent clause, but a jury would have to decide whether she did.
This court now turns to an examination of the law. The TCPA occupies a special place in protecting consumers from harassment on the telephone from overzealous merchants. Now, let’s review the factual offerings of the parties. The cast of characters here are primarily Barnes; her son Iassac; and Mitchell DeAngelo, a Conn employee. Barnes and Iassac admit that Barnes was present when Barnes went to the Conn store and picked a bedroom suite for purchase, signed the credit application and contract that are at the core of the controversy here. Barnes did not sign any documents, nor promise to make any payments to Conn at that time. Conn provided the bedroom suite for Iassac. He failed to make any payments. After some months, utilizing a telephone number for Iassac, Conn began calling that certain phone number as the point of contact listed on the contract and credit application. The parties dispute how Conn obtained the number and who placed that number on the contract and credit application. Barnes answered the phone. She said the telephone number was hers, not Iassac’s. If the conversation had stopped there, this lawsuit would not have developed; instead, Conn again called, searching for Iassac. Barnes later made some ambiguous statements. Several times she stated that they knew they (she and Iassac) owed the money and that they would pay as soon as possible. Barnes even attempted unsuccessfully to make payments a few times, but was unable to complete the endeavor because her credit card company refused the charges. Even so, she told Conn that “they” wanted the bedroom suite and would not return the bedroom suite to Conn. Finally, aggrieved, Barnes told Conn not to call her telephone number anymore.  Conn admits to calling Barnes’ telephone number over six-hundred (600) times, with the majority of the telephone calls having been placed after Barnes claims she told Conn to stop calling her.  This court held two (2) hearings on Conn’s Motion for Summary Judgment: one on October 18, 2017; and one on October 31, 2017. During the second hearing, this court ordered the parties to submit supplemental briefs on the issue of whether Barnes had ratified Iassac’s contract. That contract waived the protection of the TCPA. The provision in question recites as follows:  “Consent to telephone/text message/email contact: For each telephone number you provide to Seller (either directly or by placing a call directly to us), you consent and authorize us to place telephone call to you at that number, such consent expressly includes authorization for Seller (and/or Seller’s affiliates and/or agents) to send text messages and/or place telephone calls to cellular or landline telephone numbers using pre-recorded or artificial voice messages, as well as calls made by an automatic dialing system. Similarly, for each email address you provide to Seller, you authorize Seller to send emails to you at that address regarding your account.” . . . Contract ratification falls under Mississippi’s well-established jurisprudence:  “Contract ratification has the following elements for proof: Ratification does not arise by operation of law; rather, “[a] person ratifies an act by (a) manifesting assent that the act shall affect that person’s legal relations, or (b) conduct that justifies a reasonable assumption that the person so consents.””  Northlake Dev. L.L.C. v. BankPlus, 60 So. 3d 792, 797 (Miss. 2011). Accordingly, a jury must determine, inter alia, whether: Barnes manifested assent to Conn’s continued contacts; and/or whether Barnes had conducted herself in such a way that Conn could reasonably rely on the assumption that she consented to the terms of the contract at issue.  After reviewing the submissions of the parties, the arguments of counsel, and the relevant jurisprudence, this court is persuaded that a genuine issue of material fact exists whether Barnes ratified Iassac’s contract with Conn. Accordingly, a finder of fact must determine this issue and summary judgment is not appropriate here.