FOR PUBLICATION

ATTORNEYS FOR APPELLANTS :    

JAMES L. PETERSEN
ANN L. THRASHER
Ice Miller
Indianapolis, Indiana

     IN THE COURT OF APPEALS OF INDIANA

BLIMPIE INTERNATIONAL, INC.     )

and BLIMPIE PERSHING INDIANA         )
VENTURES, INC.,                      )
                                     )
Appellants-Defendants,               )
                                     )
vs.                                  )    No. 29A05-0305-CV-260
                                     )
TINA CHOI and 8TA.CHOI CORP.,        )
                                     )
Appellees-Plaintiffs.                )

    APPEAL FROM THE HAMILTON SUPERIOR COURT
    The Honorable William J. Hughes, Judge
    Cause No. 29D03-0211-CT-889

     February 28, 2005

     OPINION - FOR PUBLICATION

MAY, Judge

    Blimpie International, Inc. See footnote and Blimpie Pershing Indiana Ventures, Inc. See footnote (collectively “Blimpie”) appeals the denial of its motion to stay proceedings pending arbitration of the action brought by Tina Choi and 8TA.Choi Corporation See footnote (collectively “Choi”). Blimpie raises three issues, which we consolidate and restate as whether the trial court properly determined a reference in the franchise agreement to non-waiver of jury trial manifested the parties’ intention that claims arising under the Indiana Franchise Disclosure Law (the “Indiana Act”) would not be resolved by arbitration.
    We reverse.

21.3    Franchisor and Operator agree that this Agreement evidences a transaction involving interstate commerce and that the enforcement of this arbitration provision and the confirmation of any award issued to either party by reason of an arbitration conducted pursuant to this arbitration provision is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq.

(Appellants’ App. at 50-51.)

(Appellants’ App. at 9-10.)
The trial court thus determined the provision concerning waiver of the right to jury trial necessarily took all Choi’s claims arising under the Indiana Franchise Disclosure Law outside the arbitration agreement. It reasoned arbitration proceedings do not include jury trials; therefore, the reference to the waiver of the jury trial right necessarily meant claims arising under the Indiana Act were not arbitrable.
    We note initially that had the parties intended to remove all claims arising under the Indiana Act from arbitration they could presumably have so stated directly rather than in terms of jury trial waiver. Furthermore, as our supreme court recognized in Isp.com LLC. v. Theising, 805 N.E.2d 767, 776 (Ind. 2004), the mere existence of a provision addressing procedures outside arbitration does not necessarily demonstrate an “affirmative intention . . . to undo the arbitration covenant[.]” There, Theising sought to avoid arbitration and noted that a Loan and Security Agreement included a forum selection clause and a consent to jurisdiction in Marion County. He argued those provisions demonstrated the parties’ intention not to arbitrate any dispute under the note or Loan and Security Agreement.
Our supreme court disagreed, noting:
It is not uncommon to find both arbitration and forum selection clauses in agreements. Several considerations may lead to the inclusion of both. First, and obviously, arbitration may be waived by the parties. If they choose, they may prefer to litigate, but be required to do so in a designated forum.

Id. at 776-77 (citations omitted). The court accordingly found the forum selection provision did not reflect the parties’ intent to undo their general agreement to arbitrate.
    Similarly, in the agreement before us, we cannot say the reference to the waiver of a jury trial right demonstrated the parties’ intent that actions brought under the Indiana Act would not be arbitrated. Like the parties in Isp.com LLC., the parties to the agreement before us are presumably free to waive arbitration; should they choose to litigate, they could agree that jury trial would be available. See footnote
    The ambiguity may also be clarified by looking at extrinsic evidence. Adams v. Reinaker, 808 N.E.2d 192, 196 (Ind. Ct. App. 2004). Paragraph 21.5 of the January 2002 version of the franchise agreement states that “Operator and Franchisor each waives any right to trial by jury” in “all cases,” including those that are arbitrated and those not arbitrated under the agreement, which include monetary defaults (exempted from arbitration by Article 21.2) and injunctive matters (exempted from arbitration by Article 21.5). See Appellants’ App. at 159. This version of the franchise agreement was amended later in 2002, and the former Article 21.5 became Article 21.8 in the new version of the franchise agreement, which is the version Choi signed. See id. at 123-125. But the cross-reference in Article 24.12 was not changed in this revision, so it still referred to Article 21.5, which had been changed to Article 21.8.
    This extrinsic evidence resolves the ambiguity in the franchise agreement because the “jury trial” language in Article 24.12 (the so-called “Indiana Addendum”) is clear and purposeful if read as modifying the general waiver of jury trial formerly contained in Article 21.5, but moved to Article 21.8 of the revised agreement Choi signed. When Article 24.12 is read as modifying Article 21.8 of the version of the franchise agreement Choi signed, the document states that there may be jury trials of claims under the Indiana Deceptive Franchise Practices Act or the Indiana Franchise Disclosure Law only when the parties have otherwise agreed not to arbitrate, either through the franchise agreement itself (for example, for injunctive matters as set forth in Article 21.8 of the version of the agreement Choi signed) or by waiving arbitration independent of the franchise agreement. This reading of the agreement eliminates any ambiguity and attributes meaning to every portion of the franchise agreement.