author: IRVING, J.,

text:
    JS, INC., d/b/a Caps Auto Parts, Appellant, v. BRANDON AUTO SUPPLY, INC., d/b/a Noel’s Automotive Warehouse Appellee.
    No. 2002-CA-00299-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.

      Mel J. Breeden, Jackson, attorney for appellant.
    Sheryl Bey, Jackson, attorney for appel-lee.
    Before KING, P.J., THOMAS, IRVING and CHANDLER, JJ.
   IRVING, J.,

for the court.

¶ 1. JS, Inc., d/b/a Caps Auto Parts, filed a complaint against Brandon Auto Supply for breach of contract concerning an agreement which would have required Brandon Auto to buy back certain inventory from JS under certain specified conditions. JS sought enforcement of the agreement between the parties, or in the alternative, a money judgment in the amount of $100,000, plus costs and interest. Brandon Auto responded by filing a motion for summary judgment. The Chancery Court of the First Judicial District of Hinds County issued an opinion and order which granted Brandon Auto’s motion for summary judgment. Filing a timely appeal, JS presents a sole issue: whether the chancery court was correct when it granted Brandon Auto’s motion for summary judgment and dismissed the complaint of JS, Inc.

¶ 2. Discerning no error, we affirm.

FACTS

¶ 3. In the spring of 1996, JS opened a new automotive parts store in south Jackson, Mississippi. Prior to opening the store, JS sought financing from Union Planters National Bank to cover the costs associated with opening the store. During the same time, JS was negotiating with Brandon Auto for the latter to be JS’s principal inventory supplier. Before finalizing its negotiations with JS, Union Planters encouraged JS to pursue a buy-back agreement with Brandon Auto. Consequently, JS and Brandon Auto entered into a buy-back agreement which provided that Brandon Auto Supply, Inc. would buy back JS’s inventory at a price not to exceed eighty percent of Brandon Auto’s acquisition costs. The buy-back provision covered only inventory purchased by JS from Brand Auto Supply and would be effective only if JS closed the business during the initial period of bank financing, not to exceed five years. Following the execution of the buy-back agreement by Brandon Auto Supply, Union Planters approved JS’s request for a loan and provided the business with $100,000 in financing.

¶4. In 1998, JS obtained a loan from Deposit Guaranty National Bank, now d/b/a AmSouth Bank, in the amount of $400,000. With this money, JS decided to expand its business by increasing its retail space, adding a repair shop, and increasing its inventory. JS also extinguished the balance of the original Union Planters’s loan with money it had obtained from the Deposit Guaranty loan.

¶5. In February 2001, JS closed the business due to substantial losses in revenue caused by competition in the national market. JS sought unsuccessfully to have Brandon Auto buy back JS’s inventory pursuant to the buy-back agreement. Consequently, JS filed suit against Brandon Auto seeking a declaratory judgment that the buy-back agreement was valid and enforceable. JS also sought either specific performance or a money judgment in the amount of $100,000 plus costs and interest.

¶ 6. Brandon Auto answered the complaint, and after some discovery, filed a motion for summary judgment. After hearing arguments on the motion, the chancellor issued an opinion and order which granted Brandon Auto’s motion for summary judgment. The chancellor found that the buy-back agreement between the parties was clear and unambiguous and that the buy-back clause referred to the initial financing period by Union Planters Bank, not to exceed five years. She also found that there was no genuine issue of material fact requiring a full trial on the merits.

DISCUSSION AND ANALYSIS OF THE ISSUES

¶ 7. This Court applies a de novo standard of review on appeal from a grant of summary judgment by the trial court. Vaughn ex rel. Vaughn v. Estate of Worrell, 828 So.2d 780, 782(119) (Miss.2002) (citing Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232(¶16) (Miss.2001)). Rule 56(c) of the Mississippi Rules of Civil Procedure provides that summary judgment shall be granted by a court if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c). The moving party has the burden of demonstrating that there is no genuine issue of material fact in existence, while the non-moving party should be given the benefit of every reasonable doubt. Vaughn, 828 So.2d at 782(¶ 9) (citing Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990)). “If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied.” Vaughn, 828 So.2d at 782-83(¶ 9) (citing Williamson v. Keith, 786 So.2d 390, 393(¶ 10) (Miss.2001)).

¶ 8. JS argues in this appeal, as it did in the trial court, that there is a genuine issue of material fact and focuses on two terms in the buy-back agreement which it deems ambiguous. Those terms are “bank” and “initial financing.” According to JS, there was no evidence before the trial court that the term “bank” as used in the agreement referred exclusively to Union Planters Bank. It explains that “bank” could reasonably pertain to another bank which provided financing to JS during the five-year initial term of financing. Moreover, JS proclaims that the term “initial financing” could mean the maximum length of time of the original term of financing, the entire five-year period. Disagreeing with these interpretations, Brandon Auto proclaims that “bank” refers only to Union Planters and the term “initial financing” means the financing obtained from Union Planters, to the exclusion of any other bank, not to exceed a period of five years.

¶ 9. The agreement-at-issue reads in relevant part as follows:

Brandon Auto Supply, Inc. agrees to buy back inventory from JS, Inc. d/b/a C.A.P.S. Auto Parts and/or Union Planters Bank (Customer) under the following terms:
Only if customer closes the business during the initial period of Bank financing, not to exceed five years.
Only inventory purchased from Brandon Auto Supply, Inc. Any and all inventory brought back under this agreement must be in saleable condition (unbroken packaging, “like new” appearance), and listed in current price sheets.
Buying price will not exceed 80% of Brandon Auto Supply’s acquisition cost.

¶ 10. “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Vaughn, 828 So.2d at 783(¶ 9) (citing Tucker, 558 So.2d at 872). Of importance here is the language of the rule authorizing summary judgment “where there is no genuine issue of material fact.” Id. “The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. Id. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense ... the existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.” Id. (citing Simmons v. Thompson Mach, of Miss., Inc., 631 So.2d 798, 801 (Miss.1994)) (citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985)). The evidence must be viewed in the light most favorable to the non-moving party. Id.

¶ 11. Despite the differences of interpretation by the parties, we find that JS does not present any genuine material issue, for we find that the terms “bank” and “initial financing” are clear and unambiguous upon our review of the four corners of the JS-Brandon Auto agreement. We agree with the chancellor that the terms “bank” and “initial financing” refer to the initial loan by Union Planters Bank. In reaching this conclusion we note that the term “bank” is capitalized and could only refer to Union Planters Bank under any reasonable interpretation. It would not have been necessary to identify Union Planters Bank by name and .include the phrase “initial term of Bank financing” if the intent was to make the buy-back provision applicable to any bank financing obtained within five years from the inception of JS’s business.

¶ 12. It is undisputed from the evidence that JS satisfied its loan from Union Planters with money obtained from Deposit Guaranty Bank before the conclusion of the five-year period. Therefore, upon JS’s satisfaction of the Union Planters loan, Brandon Auto had no further duty to buy back inventory from JS, as JS’s business did not close during this initial financing period. We also note that the language of the agreement unequivocally states that the initial period of financing could be less than five years.

¶ 18. Therefore, in viewing the evidence in the light most favorable to JS, this Court finds that there are no genuine issues of material fact in dispute. Accordingly, we affirm the judgment of the trial court.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ„ BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Rudolph Valentino JOHNSON, Sr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00393-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.

      Rudolph V. Johnson, Sr., Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., MYERS and GRIFFIS, JJ.
   MYERS, J.,

for the court.

¶ 1. Rudolph Johnson entered a guilty plea to armed robbery and aggravated assault on January 25, 1999. The trial court conducted a guilty plea hearing the same day. The trial judge accepted the guilty plea. On January 28, 2002, Johnson filed a petition for post-conviction relief. The trial court denied the petition and Johnson appeals asserting:

1. HIS ISSUES SHOULD NOT BE TIME BARRED;
2. THE LOWER COURT ERRED IN DENYING HIM AN EVIDENTIA-RY HEARING IN HIS POST-CONVICTION RELIEF REQUEST;
8. HIS PLEA WAS NOT VOLUNTARILY NOR KNOWINGLY MADE;
4. HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL; AND
5. HE WAS SUBJECTED TO DOUBLE JEOPARDY

LEGAL ANALYSIS

1. HIS ISSUES ARE TIME BARRED

¶2. Johnson was not entitled to post-conviction relief because the three year time period for filing post-conviction relief petitions had expired. Miss Code Ann. § 99-39-5(2) (Supp.2002). Johnson, through counsel, did not file his petition for post-conviction relief until three days after the three year deadline. Johnson does not argue any exemption excusing delay; therefore, he is not entitled to the relief he seeks. What Johnson argues for is an extension of the prison mailbox rule. Gaston v. State, 817 So.2d 618, 616(¶ 7) (Miss.Ct.App.2002). Due to security reasons, it may take a letter from a prisoner longer to reach a court, thus petitions for post-conviction relief from pro se appellants are considered filed when mailed by the prisoner.

¶ 3. Although Johnson attempts to argue the merits and we are limited in our review, we shall review the merits.

2. THE LOWER COURT DID NOT ERR IN DENYING HIM AN EVI-DENTIARY HEARING. IN HIS POST-CONVICTION RELIEF REQUEST

¶ 4. The trial court made extensive findings of fact and conclusions of law in denying Johnson’s request for post-conviction relief. A trial court does not have to grant an evidentiary hearing when it is apparent that there are no material facts to support the claim. Frierson v. State, 812 So.2d 1090, 1092(¶5) (Miss.Ct.App.2001). The trial court was correct in denying Johnson an evidentiary hearing.

3. HIS PLEA WAS VOLUNTARILY AND KNOWINGLY MADE

¶ 5. When determining whether a guilty plea made by the defendant was knowingly, voluntarily, and intelligently made, a review of the entire record must be conducted by the appellate court. Weatherspoon v. State, 736 So.2d 419, 421(¶ 5) (Miss.Ct.App.1999). For a plea to be valid, the plea must be “one in which the defendant was advised about the nature of the crime charged against him and the consequences of the guilty plea.” Stovall v. State, 770 So.2d 1019, 1020-21(¶ 7) (Miss.Ct.App.2000). “Trial judges are entitled to place great weight upon a defendant’s initial plea under oath.” Templeton v. State, 725 So.2d 764, 767(¶10) (Miss.1998). This Court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous. Stevenson v. State, 798 So.2d 599, 602(¶ 7) (Miss.Ct.App.2001).

¶ 6. Johnson asserts that he was incorrectly informed of the sentence his plea would carry. His arguments consist of a blend of failing to tell of maximum and minimum sentence and the failure of his attorney to properly inform him of the length of sentence. While it is true that the attorney misinformed Johnson prior to the plea hearing, the attorney brought the mistake to light. The trial judge properly informed Johnson what the sentence could be under the statutory guidelines. Johnson said he understood and still wanted to enter the plea.

4. HE RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL

¶ 7. The standard to be applied to an ineffective assistance of counsel claim was set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance of counsel, it must be shown (1) that the counsel’s performance was deficient, and (2) the deficient performance caused prejudice to the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Walker v. State, 703 So.2d 266, 268(¶ 8) (Miss.1997). The deficiency and the prejudicial effect are judged by looking at the totality of the circumstances, and there is a strong presumption counsel’s performance fell within the wide range of reasonable professional assistance. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). The burden is on the defendant to demonstrate the Strickland factors to support an ineffective assistance of counsel claim. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

¶ 8. As the basis of this argument, Johnson points out the erroneous advice from his lawyer concerning the length of the sentence. The attorney advised the judge of the misinformation during the hearing. Johnson was asked if he understood the correct sentence and he responded that he did.

5. HE WAS NOT SUBJECTED TO DOUBLE JEOPARDY

¶ 9. This issue is net only time barred, but is procedurally barred because Johnson failed to present it to the trial court and raises it first on appeal. Coleman v. State, 772 So.2d 1101, 1103(¶ 8) (Miss.Ct.App.2000).

¶ 10. The Fifth Amendment Double Jeopardy Clause provides that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. Article 3, § 22 of the Mississippi Constitution provides: “No person’s life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.”

¶ 11. Johnson argues that he could not plead guilty to both aggravated assault and armed robbery because the two crimes arose from the same incident. Although they arose from the same incident, the two crimes were separate and there is no double jeopardy issue.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF THE LAUDER-DALE COUNTY DENYING POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. COSTS ARE ASSESSED TO LAUDERDALE COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, CHANDLER and GRIFFIS, JJ., concur. SOUTHWICK, P.J., and IRVING, J., concur in result only.


author: THOMAS, J.,

text:
    Gary HEMBA, Appellant, v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2002-CC-01153-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.

      John R. Reeves and Christopher Paul Palmer, Attorneys for Appellant.
    Office of the Attorney General by Jane L. Mapp, Jackson, Attorney for Appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the Court:

¶ 1. Gary Hemba was investigated for allegedly violating policies of the Mississippi Department of Corrections (MDOC) after an administrative hearing, the hearing officer recommended Hemba be suspended without pay for six weeks. Hemba appealed to the Employee Appeals Board, which reversed the decision of the MDOC. The MDOC appealed to the full Employee Appeals Board which affirmed the ruling of the hearing officer for the Employee Appeals Board. The MDOC appealed to the Circuit Court of Hinds County which reversed the decision of the Employee Appeals Board and reinstated Hemba’s suspension. Aggrieved Hemba asserts the following:

1. THE CIRCUIT COURT ERRED IN REVERSING THE MISSISSIPPI EMPLOYEE APPEALS BOARD’S DECISION.

II. THE CIRCUIT COURT ERRED IN REFUSING TO AWARD ATTORNEY’S PEES TO THE APPELLANT.

Finding reversible error in the trial court’s decision to reverse the decision of the Employee Appeals Board, we reverse and render.

FACTS

¶ 2. Gary Hemba began his employment with the Mississippi Department of Corrections (MDOC) on approximately March 2, 1987. Hemba was the state director of therapeutic recreation and general library services. His supervisor was stationed in MDOC’s Central Office in Jackson, however, his physical office was at Central Mississippi Correctional Facility in Pearl, Mississippi. Mr. William Speed, Mr. Richard Gaston and Mr. Kelvin Griffin were under Hemba’s direct supervision. Hemba’s supervisor at the time was Ms. Brenda Blanks.

¶ 3. On April 10,2000, Warden Jackie Parker requested that Hemba be investigated. On that day, Mr. Johnny Coving-ton, director of the internal audit division, approved the investigation. On April 14, 2000, Warden Jackie Parker requested that Hemba be reassigned pending the outcome of the investigation. On April 18, 2000, Hemba was reassigned temporarily. On June 15, 2000, Hemba was notified that an administrative review hearing was scheduled for July 7, 2000. He was accused of the following:

1. Bringing food in from outside the facility and making it available to inmates and providing his credit card to Richard Caston to use to purchase food for the inmates. This was a Group HI, # 11 and Group 11, # 1 charge.
2. Bringing female inmates into his office and closing the door without the benefit of another staff member to act as a witness. This was a Group LII, # 11 and Group II, # 1 charge.
3. Bringing a handgun into his office inadvertently and then, upon realizing his error, taking the handgun immediately back to his vehicle. This was a Group III, # 8 and #11 charge.
4. Having inmates type letters of reprimand, a letter of counsel and having typed social security numbers on many employee time sheets. This was a Group III, # 15 charge.

¶ 4. An administrative review hearing was held on July 7, 2000. David Fondren, the MDOC hearing officer, recommended that Hemba be suspended for six work weeks without pay. He also recommended that the MDOC dismiss the charge involving Hemba’s bringing female inmates into his office and closing the door without the benefit of another staff member because the MDOC had no policy that made such activity inappropriate. On August 4, 2000, the MDOC suspended Hemba without pay for six workweeks effective August 21, 2000, to September 29, 2000. Although Mr. Fondren recommended that the “behind closed doors” charge be dismissed since nothing in MDOC policy made that behavior a violation subject to discipline, it was included in the suspension notice anyway. Hemba appealed to the Mississippi Employee Appeals Board. On September 28, 2000, Hemba was permanently reassigned.

¶ 5. On November 16, 2000, a hearing was held before Roosevelt Daniels II, Mississippi Employee Appeals Board hearing officer. At the beginning of the hearing, Joe Goff, the attorney for the MDOC, announced to Officer Daniels that the MDOC was withdrawing its allegation that Hemba did anything improper in bringing female inmates into his office and that the charge was inadvertently included in the suspension notice. In response to the allegation regarding the food, the following relevant facts were established through testimony at the hearing:

The audiotape recording of Hemba’s interview with Jerry Dettman, integrity investigator for MDOC, reflected that Hemba did not admit that he had given his credit card to Richard Caston to buy food for inmates, although MDOC asserted that Hemba admitted the same. MDOC asserts that Hemba violated a certain MDOC policy 8.01 that prohibits providing food to inmates. Christopher Epps, deputy commissioner of MDOC, testified that inmates were allowed to consume food brought in by religious organizations that have Christmas celebrations. He also admitted that there was no written policy allowing this exception to MDOC’s assertion that it was against regulations for inmates to consume “free world” food. He further testified that other MDOC employees commonly brought “free world” food into the correctional facility for the inmates to consume.

¶ 6. MDOC held a community services banquet for all community services directors across the state. Christopher Epps, deputy commissioner of MDOC, was present at the banquet, as well as all the MDOC community services directors. Tina Ladner, an employee of MDOC who at the time was supervised by Epps, called Hemba and said, “we fixed /all plates of food for your staff and your inmates, if you’ll send somebody up.” Hemba sent inmates to pick up the food. Later, as Hemba passed the banquet, he saw a stream of inmates leaving with plates of food.

¶ 7. Hemba testified that he and his staff did not have a lunch hour and therefore had to bring their lunches to work. MDOC supplied a small refrigerator for the use of his department. Since the staff did not get to leave the facility for lunch, it was common for them to bring two or three days worth of lunch food and store it in the refrigerator for convenience. Inmates worked in Hemba’s department for twelve hours each day. He and other witnesses testified that inmates would sometimes go into the refrigerator and consume leftover food. Hemba testified to conduct by other MDOC staff members involving food and inmates. Specifically, he reported seeing Warden Jackie Parker and other staff members lying on beds with inmates eating spaghetti. MDOC did not punish any of the offenders.

¶ 8. In response to the allegation regarding the gun, the following relevant facts were established at the hearing: Hemba admitted to inadvertently bringing a handgun into CMCF approximately three years prior to the his disciplinary hearing. He immediately secured the gun in his vehicle when he realized his mistake. Jerry Dett-man admitted bringing a handgun into a correctional facility and leaving it in a vehicle. Dettman admitted that an inmate found the handgun as well a cell phone. MDOC had knowledge of the mishap. MDOC did not discipline Dettman in any fashion.

¶ 9. Hearing Officer Daniels, exercising his discretion as the trier of fact, dismissed the gun charge as being too remote in time and because no disciplinary action had been brought within a reasonable time.

¶ 10. In response to the allegation regarding inmates typing certain documents, the following relevant facts were established at the hearing: Dettman testified that in practice, inmates have been allowed to handle some records within MDOC. Dettman admitted that the policy that purports to prohibit inmate contact with records in practice is applied to “sensitive records” of the type that would compromise the security of the facility. Aaron Jagers, Hemba’s former supervisor, wrote a memorandum to Smitty Jordan, the American Corrections Association manager for the MDOC, affirming that Hemba’s department was considered a non-sensitive area. Dettman testified that the MDOC had conflicting policies in dealing with inmates acting as clerical workers.

¶ 11. William Speed, an MDOC employee under Hemba’s supervision, testified that the use of inmate clerks was institution wide. Speed also testified that he had never received any complaints about the use of inmate clerks.

¶ 12. Richard Caston, an MDOC employee under Hemba’s supervision, testified that in approximately mid-March or early April, 2000, Captain Danny Triggs approached Caston and advised him that he “should inform two other employees that worked under Hemba that we shouldn’t have inmates who type for us to type their initials on our memos when they type them, but not to inform Gary Hem-ba.”

¶ 13. Caston testified that Associate Warden McClinton removed some inmates from a class Caston was teaching in order to have them type for her. Caston testified that during the pendency of the charges against Hemba for allowing inmates to type certain documents, Captain Patrick Marion reprimanded Caston for a certain policy violation and had the written reprimand typed by an inmate. Kevin Griffin, an MDOC employee under the supervision of Hemba, testified that around April 2000, Captain Danny Triggs came to Griffin’s employment area and told him that “memos that were being typed up down at the gym were not supposed to be typed up by inmates, and that by initialing that, we were saying that we allowed the inmates to type it up. And he told us not to put our initials on them anymore.” He then told Griffin to not tell Hemba.

¶ 14. Hemba testified that inmates have typed his documents for thirteen years. He testified that he did not have a secretary and was the only treatment director in the state without a secretary. He was also the only state treatment director with two separate departments under his supervision. Hemba testified that MDOC policy required him to hire qualified inmate workers to supplement staff members and that the inmate workers can possess clerical skills. Hemba testified that his former supervisor, Aaron Jagers, clarified that Hemba’s work area is “non-sensitive.” He told Hemba that “if they’re not going to get you a secretary, you’ve got to have somebody do your work, because I expect you to put your product out.” The memorandum Hemba was referring to was typed by an inmate. Hemba testified that he was given the authority to hire an inmate librarian by former MDOC Commissioner James Anderson. One of the requirements was that the inmate librarian must maintain inmate records for the State. Hemba testified that the only time he had been told not to allow inmates to type documents was when Jack Donnelly told him to stop letting inmates type rule violation reports. Hemba complied with Mr. Donnelly’s order and stopped allowing inmates to type rule violation reports.

¶ 15. After a full hearing on the merits, Officer Daniels rendered an opinion on December 11, 2000, in which he found that MDOC’s actions were arbitrary and capricious, that Hemba’s suspension from duty without pay should be reversed and all charges dismissed, and that Hemba should be reimbursed for the wages lost as a result of the suspension as well as the $50 filing fee. On December 14, 2000, MDOC appealed to the Mississippi Employee Appeals Board. On December 18, 2000, Officer Daniels rendered an amended opinion and order, superseding the December 11, 2001 order. The Full Board affirmed the decision of the hearing officer.

¶ 16. The MDOC appealed to the Hinds County Circuit Court by petition for writ of certiorari. Certiorari was granted. Hinds County Circuit Court reversed the decision of the Mississippi Employee Appeals Board, finding that its decision to affirm the hearing officer was arbitrary and capricious. This case sits before this Court in its fourth level of appeal.

I. DID THE CIRCUIT COURT ERR IN REVERSING THE MISSISSIPPI EMPLOYEE APPEALS BOARD’S DECISION?

¶ 17. Hemba contends that the decision of the MDOC hearing officer to suspend him for six weeks without pay was reached arbitrarily and capriciously and that the reversal by the Mississippi Appeals Board should stand. Hemba argues that the trial court erred in reversing the decision of the Appeals Board.

¶ 18. This Court’s standard of review of an administrative agency’s findings and decisions is well established. An agency’s conclusions must remain undisturbed unless the agency’s order (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4) violates one’s constitutional rights. Mississippi Dept. of Corrections v. Harris, 831 So.2d 1190, 1192-1193 (¶10) (Miss.App.2002); Lewis v. Mississippi Employment Sec. Comm’n, 767 So.2d 1029(¶ 9) (Miss.Ct.App.2000). A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Id. Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency. Id. When an agency has taken disciplinary action against an employee, that person is entitled to review by the Employee Appeals Board under Miss.Code Ann. §§ 25-9-131 (Rev.1999). The proceedings before the Employee Appeals Board shall be de novo, and the employee shall be afforded all applicable safeguards of procedural due process. The Employee Appeals Board may modify the action of the department, agency or institution but may not increase the severity of such action on the employee. Miss. Code Ann. § 25-9-131 (Rev.1999). At the Appeals Board, the employee “shall have the burden of proving that the action taken against the employee is arbitrary, capricious, against the overwhelming weight of the evidence and merits the relief requested.” S.P.B. Rule 10.40.19(B) (Rev.1999).

¶ 19. A circuit court sits as a reviewing court in appeals from decisions made by administrative agencies and, as such, its scope of review is limited to the findings of the agency. Walters v. Mississippi Dept. of Economic and Community Dev., 768 So.2d 893(¶8) (Miss.2000). In other words, the lower court is not sitting as the initial fact-finder, but rather as an intermediate appellate court. Board on Law Enforcement Officer Standards and Training v. Rushing, 752 So.2d 1085(¶8) (Miss.Ct.App.1999) (citing Board of Law Enforcement Officers Standards and Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996)). Consequently, the findings of the lower court are not entitled to the same deference that would be afforded to it were it sitting as a trial court. Id. “If the [agency’s] decision is founded upon substantial evidence, then it is binding upon an appellate court, i.e., the Circuit Court and this Court.” Wilkinson County Bd. Of Supervisors v. Quality Farms, Inc., 767 So.2d 1007, 1010(¶ 9) (Miss.2000); NCI Building Components v. Berry, 811 So.2d 821, 327(¶ 13) (Miss.Ct.App.2001).

¶ 20. The parameters of the circuit court when acting as a court of first appeal is clear. Unless the Mississippi Employee Appeals Board acted without any support of substantial evidence, in an arbitrary or capricious way, beyond the scope of power granted to the agency, or in violation of a person’s constitutional rights then the decision reached by the agency must not be reversed. Lewis v. Mississippi Employment Sec. Comm’n, 767 So.2d 1029(¶ 9) (Miss.Ct.App.2000). The trial court must not substitute its judgement for the judgment of the agency. The Employee Appeals Board conducts a de novo review of appeals while the circuit court, acting as an appeals court under such circumstances, is limited to a more narrowed standard of review. NCI Building Components, 811 So.2d at 327(¶ 13). The review completed by the Employee Appeals Board was conducted de novo with a thorough record of findings and evidence presented. The credibility of the testimony was a matter to be judged by the Board and was a factor in its decision, the circuit court has no right to re-evaluate the credibility of the testimony.

II. DID THE CIRCUIT COURT ERR IN REFUSING TO AWARD ATTORNEY’S FEES TO THE APPELLANT?

¶ 21. Hemba argues that the circuit court erred in not awarding him attorney’s fees, and he accuses the MDOC of filing a frivolous appeal.

¶ 22. Under Rule 11(b) of the Mississippi Rules of Civil Procedure, the court may award reasonable expenses and attorney’s fees against a party or his attorney, or both, whose pleading or motion (1) is frivolous or (2) is filed for the purpose of harassment or delay. In reviewing whether the imposition of sanctions is warranted under Rule 11, this Court uses an abuse of discretion standard. January v. Barnes, 621 So.2d 915, 921 (Miss.1992).

¶ 23. The circuit court did not grant an award of attorney’s fees against MDOC because it ruled in favor the MDOC. The question implicitly presented here is whether we should remand for the circuit court to make a determination of whether Hemba should be awarded attorney’s fees now that we have ruled in his favor. We decline to do so because we hold that given the nature and course of these proceedings that, even though it has ultimately lost, MDOC’s appeal was not subject to sanctions.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED AGAINST THE APPEL-LEE.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: HARWOOD, Justice.

text:
    Ex parte ESTATE OF Matthew Ryan COOK. (In re Matthew Ryan Cook v. City of Gadsden).
    1010711.
    Supreme Court of Alabama.
    July 3, 2002.
    Jack W. Torbert, Jr., of Torbert & Tor-bert, P.A., Gadsden, for petitioner.
    Alice B. Pruett, Gadsden, for respondent.
   HARWOOD, Justice.

The estate of Matthew Ryan Cook (hereinafter referred to as “the Estate”) petitioned this Court for a writ of certiora-ri. We granted the Estate’s petition to consider an issue of first impression in this State — what is the effect of a defendant’s death upon a defendant’s conviction for a crime when the death occurs while the defendant is challenging that conviction by an appeal taken as a matter of right? We conclude that the conviction abates from its inception, and we remand the cause.

On November 17, 1998, Matthew Ryan Cook was convicted in the Gadsden Municipal Court (hereinafter referred to as “the municipal court”) of the offense of driving under the influence. On December 8, 1998, Cook filed a notice of appeal to the Etowah County Circuit Court (hereinafter referred to as “the circuit court”) for a trial de novo. On September 17, 1999, the circuit court entered the following order on its case action summary:

“This case having been tried and submitted to a jury but the jury unable to reach a unanimous verdict, a mistrial is hereby declared and the case returned to the next criminal appeals jury docket.”

On January 16, 2001, before a second trial was conducted, counsel for Cook filed a suggestion of death and a motion to continue the trial. On that same day, the circuit court granted the motion to continue. On March 13, 2001, the City of Gadsden (hereinafter referred to as “the City”) filed a motion seeking a dismissal of Cook’s appeal to the circuit court and a remand of the case to the municipal court, and counsel for Cook filed a motion to dismiss the City’s prosecution of the driving-under-the-influence claim, arguing, in part, that Cook’s death constituted an abatement of his prosecution and that the conviction in the municipal court was a nullity. On that same day, the circuit court entered an order stating that Cook’s death terminated his appeal to that court and that the Estate could not pursue an appeal, and it remanded the cause to the municipal court.

On March 19, 2001, the Estate filed a notice of appeal to the Court of Criminal Appeals. On November 21, 2001, relying on the fact of Cook’s death, that court dismissed the appeal as moot, citing Rule 43(a), Ala. R.App. P.; Evans v. State, 728 So.2d 1164 (Ala.Crim.App.1998); Kennedy v. State, 690 So.2d 1225 (Ala.Crim.App.1997). Cook v. City of Gadsden, (No. CR-00-1259, November 21, 2001) 851 So.2d 633 (Ala.Crim.App.2001)(table). On January 4, 2002, the Estate petitioned this Court for a writ of certiorari.

The Estate’s petition presents a question this Court has not previously addressed — whether, under the circumstances presented here, the conviction in the municipal court should abate or whether it should remain a valid judgment. It is a settled proposition of law in this State that when a criminal defendant dies during the course of an appeal, the appeal is abated. See Stallworth v. State, 726 So.2d 761 (Ala.Crim.App.1998); Kennedy v. State, supra; Ulmer v. State, 39 Ala.App. 519, 104 So.2d 766 (1958); Morgan v. State, 30 Ala.App. 510, 9 So.2d 33 (1942); Ex parte Rosenblum, 210 Ala. 401, 98 So. 219 (1923); Browning v. State, 68 So. 545 (Ala.Ct.App.1915). However, the status of the underlying conviction being challenged by that appeal has never been addressed. Accordingly, we consider the treatment of this issue by other jurisdictions.

This issue has been addressed by the federal courts on numerous occasions. In United States v. Christopher, 273 F.3d 294 (3d Cir.2001), the United States Court of Appeals for the Third Circuit effectively summarized the federal courts’ treatment of this issue as follows:

“The Supreme Court of the United States encountered the issue a number of times in its early history. See, e.g., List v. Pennsylvania, 131 U.S. 396, 9 S.Ct. 794, 33 L.Ed. 222 (1888). Rather than catalog those cases, however, we think it appropriate to begin in more modern times with Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971).
“In Durham, the Court of Appeals for the Ninth Circuit had affirmed the defendant’s conviction, and the petition for certiorari had been filed before the defendant died. 401 U.S. at 481, 91 S.Ct. 858. The Supreme Court granted the petition for certiorari, vacated the judgment of the Court of Appeals, and remanded the case to the District Court with directions to dismiss the indictment. Id. at 483, 91 S.Ct. 858. The Supreme Court observed that ‘[i]n federal criminal cases [it had] developed the practice of dismissing the writ of certio-rari and remanding the cause to the court below.’ Id. at 482, 91 S.Ct. 858. Basically, the Court allowed the scope of abatement to be determined by the lower federal courts.
“A few years later, the Court dismissed a petition for certiorari in a factually identical situation. See Dove v. United States, 428 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976). The Court explained that ‘[t]o the extent that Durham ... may be inconsistent with this ruling, Durham is overruled.’ Id. at 325, 96 S.Ct. 579; see also Kelly v. Matusiak, 479 U.S. 805, 107 S.Ct. 248, 93 L.Ed.2d 172 (1986)(petition for certiorari dismissed); Mintzes v. Buchanon, 471 U.S. 154, 105 S.Ct. 2006, 85 L.Ed.2d 120 (1985)(order granting certiorari vacated, petition for certiorari dismissed); Warden, Green Haven State Prison v. Palermo, 431 U.S. 911, 97 S.Ct. 2166, 53 L.Ed.2d 221 (1977)(petition for certiorari dismissed).
“In most criminal cases, proceedings in the Supreme Court differ from those in the Courts of Appeals in one fundamental respect: appeals to the Courts of Appeals are of right, but writs of certio-rari are granted at the discretion of the Supreme Court. The prevailing practice of the Supreme Court to dismiss petitions for certiorari upon the death of the convicted defendant, therefore, does not readily transfer to the Courts of Appeals.
“Faced with circumstances similar to those presented here, the Court of Appeals for the Seventh Circuit, while acknowledging Durham and Dove, concluded that when ‘death has deprived the accused of his right’ to review by a Court of Appeals, ‘the interests of justice ordinarily require that he not stand convicted without resolution of the merits of his appeal, which is an integral part of [our] system for finally adjudicating [his] guilt or innocence.’ United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir.1977)(internal quotations omitted). The Court concluded that the appeal was moot, vacated the conviction, and remanded the case to the District Court to dismiss the indictment. Id.
“Other courts have reached the same result. See United States v. Wright, 160 F.3d 905, 908 (2d Cir.1998)(interests of justice require that conviction not stand without resolution of the merits of an appeal); United States v. Zizzo, 120 F.3d 1338, 1346 (7th Cir.1997)(abating conviction of defendant who died before the Court was able to decide his appeal on the merits and remanding with instructions to vacate conviction and dismiss indictment); United States v. Dogal, 106 F.3d 1547, 1552 (11th Cir.1997)(criminal conviction not final until resolution of defendant’s appeal as a matter of right); United States v. Pogue, 19 F.3d 663, 665 (D.C.Cir.1994)(citing cases holding the same from the Courts of Appeals for the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits).
“Thus, the rule followed almost unanimously by the Courts of Appeals is that a conviction abates on the death of the accused before his appeal has been decided .... ”

273 F.3d at 296-97.

Our review of the jurisprudence of other states shows that a majority follow this same rule, and some have provided compelling policy reasons in support thereof. See People v. Robinson, 187 Ill.2d 461, 463, 719 N.E.2d 662, 663, 241 Ill.Dec. 533, 534 (1999)(“the purpose of criminal prosecutions is to punish the defendant; continuing criminal proceedings when the defendant is dead is a useless act”); State v. Holland, 288 Mont. 164, 167, 955 P.2d 1360, 1362 (1998)(adopting rationale for abating criminal proceeding upon defendant’s death set forth by the Arizona Supreme Court “that the interests of the state in protecting society have been satisfied, the imposition of punishment is impossible, and further collection of fines or forfeiture would result in punishing innocent third parties”); State v. Hoxsie, 570 N.W.2d 379, 382 (S.D.1997)(“Mere dismissal of the appeal, without abatement of the proceedings ab initio, would permit a judgment to stand that is not final.”); Gollott v. State, 646 So.2d 1297, 1300 (Miss.1994)(“What is obvious is that society needs no protection from the deceased.... Moreover, other potential criminals will be no less deterred from committing crimes. In the abatement ab initio scheme, the judgment is vacated and the indictment is dismissed, but only because the convicted defendant died. Surely this would not give peace of mind to the criminally inclined.”); State v. McClow, 395 So.2d 757, 758 (La.1981)(abatement has as its purpose “serving the interest of the surviving family in preserving, unstained, the memory of the deceased defendant or his reputation”); State v. Griffin, 121 Ariz. 538, 592 P.2d 372 (1979)(rationale adopted in State v. Holland, supra); State v. Carter, 299 A.2d 891, 895 (Me.1973)(“By such principle of abatement, ab initio, there is avoided, likewise, danger of any potential collateral carry-over to affect personal or property rights of survivors of the deceased defendant or other persons.”).

We are persuaded by these authorities; we conclude that Cook’s conviction in the municipal court is due to be vacated as a result of his death during the course of his de novo appeal to the circuit court. The facts of this case present an appropriate occasion for the application of the ab initio abatement rule. At the time of Cook’s death, he was exercising an appeal as of right; further, his appeal to the circuit court was de novo; he was being retried as if the municipal court conviction did not exist, and he had no burden to show reversible error — the City had the burden of proving his guilt. § 12-14-70(c), Ala.Code 1975; Rule 30, Ala. R.Crim. P. Cook’s first trial in the circuit court resulted in a hung jury, and a second trial could not be had because of his death.

We conclude, as did the Court of Criminal Appeals, based upon this State’s existing caselaw, that Cook’s appeal has abated as a result of his death. We further conclude, however, in line with the majority of other jurisdictions addressing this matter, that Cook’s conviction in the municipal court is also due to be vacated. Accordingly, we remand the cause to the Court of Criminal Appeals for that court to remand for the municipal court to vacate Cook’s conviction.

REMANDED WITH DIRECTIONS.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, WOODALL, and STUART, JJ., concur.

MOORE, C.J., recuses himself.

      . The second trial had been continued three times on Cook's motions.

      . See Tim A. Thomas, Abatement of State Criminal Case by Accused’s Death Pending Appeal of Conviction — Modem Cases, 80 A.L.R.4th 189 (1990), for a collection of the slates following this majority rule.

      . Because the issue has not been presented in this case, we do not address whether the abatement ab initio rule applies when the death of a criminal defendant occurs during the course of a discretionary appeal.


author: WISE, Judge.

text:
    Matthew Ryan COOK v. CITY OF GADSDEN.
    CR-00-1259.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    Jack W. Torbert, Jr., Gadsden, for appellant.
    Alice B. Pruett, Gadsden, for appellee.
   After Remand from the Alabama Supreme Court

WISE, Judge.

On November 21, 2001, this Court entered an order dismissing Matthew Ryan Cook’s appeal from the Etowah Circuit Court’s dismissal of his de novo appeal, based on the fact that Cook died before the scheduled trial de novo began. See Rule 43(a), Ala.R.App.P.; Evans v. State, 728 So.2d 1164 (Ala.Crim.App.1998). Thereafter, Cook’s estate petitioned the Alabama Supreme Court for certiorari review of this Court’s dismissal of the appeal. On July 3, 2002, the Alabama Supreme Court remanded the case to this Court with directions that we remand this case to the Etowah Circuit Court with directions that the case be remanded so that the municipal court could vacate Cook’s conviction. See Ex parte Estate of Cook, 848 So.2d 916 (Ala.2002).

Therefore, in accordance with the Supreme Court’s decision in Ex parte Estate of Cook, we remand this case to the Eto-wah Circuit Court with directions that that court remand Cook’s case to the municipal court of the City of Gadsden with directions for the municipal court to vacate Cook’s conviction for driving while under the influence of alcohol.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.


author: HOUSTON, Justice.

text:
    Billie J. LEWIS and Jackie Lewis v. CONSECO FINANCE CORPORATION. WLS, Inc., et al. v. Billie J. Lewis and Jackie Lewis.
    1010772 and 1010752.
    Supreme Court of Alabama.
    Aug. 30, 2002.
    Rehearing Denied Oct. 25, 2002.

      G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for Billie J. Lewis and Jackie Lewis.
    Paul C. Garrison of Hall, Conerly, Mudd & Bolvig, P.C., Birmingham, for WLS, Inc., d/b/a S&H Mobile Homes, Larry Smith, Gail Smith, and Lisa Melendy.
    R. Austin Huffaker, Jr., and Ronald G. Davenport of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for Conseco Finance Company-Alabama.
   HOUSTON, Justice.

These consolidated appeals present issues involving arbitration. The trial court granted Conseco Finance Corporation’s motion to compel arbitration and denied a similar motion filed by WLS, Inc., Larry Smith, Gail Smith, and Lisa Melendy (hereinafter “the WLS defendants” -). For the reasons stated below, we affirm the trial court’s judgment with respect to Conseco and reverse the trial court’s judgment with respect to the WLS defendants.

I. Facts

Billie and Jackie Lewis purchased a mobile home from WLS, Inc. To effectuate the purchase, Billie Lewis executed a purchase agreement and an installment agreement. The installment agreement, which contained an arbitration provision, was subsequently assigned to Conseco (formerly known as Green Tree Financial Corporation), which financed the purchase.

Approximately one year after purchasing the mobile home, the Lewises sued Conseco and the WLS defendants, asserting claims of fraud and suppression, breach of express warranty, breach of implied warranty, and violations of the Mag-nuson-Moss Warranty Act. Many of the claims — most notably the breach-of-express-warranty and Magnuson-Moss claims — were purportedly asserted against Conseco through the following provision found in the installment agreement, which is required to be in the agreement pursuant to a Federal Trade Commission (“FTC”) rule, 16 C.F.R. § 433.2:

“Any holder of this consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller of the goods or services obtained pursuant hereto or with the proceeds hereof.”

Both Conseco and the WLS defendants filed motions to compel arbitration. The trial court initially granted both motions, but, following the Lewises’ filing of a motion to alter, amend, or vacate, which relied primarily on our decision in Ex parte Thicklin, 824 So.2d 723 (Ala.2002), the trial court vacated its order compelling arbitration with respect to the WLS defendants. The Lewises appeal the grant of Conseco’s motion to compel arbitration (no. 1010772), and the WLS defendants appeal the denial of their similar motion (no. 1010752).

II. Standard of Review

Our analysis in this case is guided by the following standard of review:

“This Court reviews de novo the [grant or] denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000). A motion to compel arbitration is analogous to a motion for a 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. ‘[A]fter 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.’ Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing).”

Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (emphasis omitted).

III. Analysis

The Federal Arbitration Act, 9 U.S.C. § 1 et seq., “mandates the arbitration of claims encompassed by an arbitration clause that is contained in a binding contract that involves interstate commerce.” Ex parte Conference America, Inc., 713 So.2d 953, 955 (Ala.1998). We have held that a contract “involves” interstate commerce when the underlying transaction “substantially affects” interstate commerce. Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759, 761-62 (Ala.2000). We now turn to consider whether, under these principles, Conseco and the WLS defendants are entitled to arbitrate the claims asserted against them by the Lewises.

A. The Lewises v. Conseco

The Lewises make three arguments against arbitration with respect to Conse-co. First, they argue that Conseco failed to demonstrate that the transaction “substantially affected interstate commerce.” Second, they argue that because there was allegedly no “substantial performance” of the installment agreement on the part of WLS, Inc., the trial court erred in “specifically enforcing” the arbitration provision. Third, the Lewises assert that the breaeh-of-express-warranty and Magnuson-Moss claims asserted against Conseco “through” the FTC rule provision are not subject to arbitration under Ex parte Thicklin, supra.

1. Interstate Commerce

In support of its motion to compel arbitration, Conseco submitted the affidavit of Robert D. Eller, regional manager of Conseco Finance Corporation-Alabama, which is described in the affidavit as an affiliate of Conseco Finance Corporation. Eller’s affidavit states, in pertinent part:

“2. The Complaint identifies Conseco Finance Corp.-Alabama, whose correct name is Conseco Finance Corp. (‘Conse-co’), as one of the Defendants in this action. Conseco was at the time of the transaction made the basis of this suit, a corporation organized and existing under the laws of the State of Delaware and maintaining its principal place of business in St. Paul, Minnesota. Conse-co, through its affiliates, is engaged, among other things, in consumer finance operations in the fifty United States, including the State of Alabama.
“3. The customer file in this matter reflects that the Plaintiffs entered into an agreement with WLS, Inc. to purchase a mobile home. In connection with the financing of this purchase, the Plaintiffs executed a Retail Installment Contract, a copy of which is attached hereto as Exhibit A. The Retail Installment Contract contains an arbitration provision.
“4. The financing transaction with respect to the purchase of the mobile home by the plaintiffs was handled by the Montgomery office of Conseco. The installment contract signed by the Plaintiffs indicates that the assignee was Green Tree Financial Corp. with its address at 324 Interstate Park Drive, Montgomery, Alabama. Checks drawn by Conseco in connection with the financial transaction, such as the payment of the mobile home dealer, were drawn on a bank account in East Grand Forks, Minnesota. The mobile home which is the subject of this action was financed and the payments made by the Plaintiffs on the purchase were to be, and have been, mailed to an address in Louisville, Kentucky.”

The Lewises contend that this affidavit is insufficient to demonstrate that the transaction had a “substantial effect” on interstate commerce as required under Sisters of the Visitation; we disagree. The undisputed facts in this case are almost identical to those in Green Tree Financial Corp. v. Channell, 825 So.2d 90 (Ala.2002). In that case, we reversed a trial court’s denial of the motion to compel arbitration filed by Green Tree (now known as Conseco):

“The record before us indicates that Green Tree is a Delaware corporation whose principal place of business is in Minnesota and that the installment agreement was assigned to Green Tree in exchange for funds it provided; those funds were drawn on an out-of-state financial institution. Additionally, the Channells mailed their installment payments to Green Tree at an address in Louisville, Kentucky.
“These facts are similar to those presented in Green Tree Financial Corp. v. Lewis, 813 So.2d 820 (Ala.2001), and American General Finance, Inc. v. Branch, 793 So.2d 738 (Ala.2000). In both Lewis and Branch we concluded that the subject transactions had had a substantial effect on interstate commerce based upon evidence that the lender in each case was a foreign corporation with headquarters outside of Alabama, that the loan proceeds had moved from outside Alabama to Alabama, and that payments made by the customers to the lender were sent out of the state of Alabama. Lewis, 813 So.2d at 824; Branch, 793 So.2d at 747. Based on the facts presented here and relying on our holdings in Lewis and Branch, we conclude that Green Tree has met its burden of proving that the transaction made the subject of this litigation substantially affected interstate commerce and has thus triggered application of the Federal Arbitration Act (‘FAA’).”

825 So.2d at 94-95.

Although the Lewises make several arguments in an attempt to attack Eller’s affidavit as “vague,” we are not persuaded. The Lewises do not point to any evidence that contradicts Eller’s statements regarding Conseco’s corporate status and structure or its statement that payment to WLS, Inc., was made from a bank in Minnesota, and the Lewises do not dispute that they submitted several payments to an address in Kentucky. Accordingly, we see no legitimate basis to reach a result in this case different from the one reached in Channell with regard to the interstate-commerce question.

2. Specific Enforcement

The Lewises argue that the trial court erred in specifically enforcing the arbitration agreement because, it says, WLS, Inc., breached the installment agreement. The Lewises rely on Ala.Code 1975, § 8 — 1—40, which provides:

“Specific performance cannot be enforced against a party to a contract in any of the following cases:
“(1) If he has not received an adequate consideration for the contract;
“(2) If it is not, as to him, just and reasonable;
“(3) If his assent was obtained by the misrepresentation, concealment, circumvention or unfair practices of any party to whom performance would become due under the contract or by any promise of such party which has * not been substantially fulfilled; or
“(4) If his assent was given under the influence of mistake, misapprehension, or surprise; except, that where the contract provides for compensation in case of mistake, a mistake within the scope of such provision may be compensated for and the contract specifically enforced in other respects if proper to be so enforced.”

Specifically, the Lewises contend that § 8-1-40 applies and precludes the enforcement of the arbitration provision because “WLS, Conseco’s assignor, did not substantially perform its obligations [under the installment agreement] to Lewis, and Lewis’ consent was obtained by ‘misrepresentation, concealment, circumvention or unfair practices.’ ” Lewises’ brief at 23.

However, if the Lewises’ challenge is in reality a challenge to the enforceability of the installment agreement as a whole, then that challenge is properly resolved by an arbitrator — not by the court. Green Tree Fin. Corp. v. Wampler, 749 So.2d 409, 413 (Ala.1999) (holding that an attack on the enforceability of a security agreement must be arbitrated). Wampler provides the general rule for determining the proper forum for the resolution of claims when an arbitration provision is involved:

“When deciding the threshold issue whether the court or the arbitrator decides a challenge to the enforcement of an arbitration clause entered into by the parties, the court first must satisfy itself that the terms of the arbitration clause are broad enough to permit the arbitrator to decide issues of arbitrability. However, a determination that, by the terms of the arbitration clause, the arbitrator is to decide issues of arbitrability does not end the inquiry. Where the attack is addressed to the arbitration clause itself, as opposed to the contract as a whole, the court, and not the arbitrator, resolves the issue. But, when the challenge goes to the whole contract, a contract that happens to contain an arbitration clause, the issue of enforceability of the contract, including the arbitration clause, is for the arbitrator to decide.”

749 So.2d at 413. When engaging this analysis, we “ ‘look beyond the ad hoc arguments of counsel in order to determine whether [the plaintiffs] claim actually bears upon the entire agreement’ or just the arbitration clause.” NationsBanc Invs., Inc. v. Paramore, 736 So.2d 589, 591 (Ala.1999) (quoting Anniston Lincoln Mercury Dodge v. Conner, 720 So.2d 898, 901-02 (Ala.1998)).

In this case, it is apparent that the Lewises challenge the enforceability of the installment agreement as a whole, not merely the arbitration provision. If § 8-1-40 were truly applicable, it would preclude Conseco from seeking the specific enforcement of any provision of the agreement, not merely the arbitration provision.

The Lewises creatively, but erroneously, attempt to construe their challenge to the enforceability of the contract as a challenge to the arbitration provision alone, arguing that Conseco currently seeks only the specific enforcement of the arbitration provision and that the remaining contractual provisions would be unaffected because they have not been asserted. In this respect, the Lewises simply mischaracterize the relevant analysis, which is properly directed at the extent and 'possible effect of the Lewises’ challenge on the whole contract rather than on the particular provision — here the arbitration provision-sought to be enforced.

Based upon the above, we hold that the Lewises’ arguments concerning specific performance raise issues that are properly resolved by an arbitrator.

3. The FTC rule, the Magnuson-Moss Warranty Act, and Ex parte Thicklin

The Lewises argue that their claim under the Magnuson-Moss Warranty Act and their breach-of-express-warranty claim against Conseco are not subject to arbitration under our decision in Ex parte Thicklin. However, assuming that those claims could properly be brought against Conseco, those claims are derivative; that is, they are asserted through the language from the installment agreement quoted above, which, pursuant to an FTC rule (16 C.F.R. § 433.2), must appear in such an agreement. Therefore, the claims purportedly would be viable against Conseco only to the extent that they are viable against the WLS defendants. Because, as discussed below, we hold that the Lewises have failed to demonstrate that the WLS defendants gave them a “written warranty,” we hold that Ex parte Thicklin — in which we held that, where a written warranty had been given, Magnuson-Moss and express-warranty claims could not be arbitrated unless the arbitration provision at issue was included in that written warranty — is inapplicable. See Part B.2. below. Therefore, because Ex parte Thick-lin is inapplicable to the claims against the WLS defendants, it is inapplicable to the Lewises’ claims against Conseco.

B. The WLS defendants v. The Lewises

The WLS defendants contend that the trial court erred in vacating its order compelling arbitration with respect to the Lewises’ claims against them because, they say, the necessary requirements of 1) an agreement to arbitrate and 2) a substantial effect on interstate commerce have been satisfied. The Lewises contend that the trial court acted appropriately, and they raise many of the same arguments they advanced against Conseco; namely, 1) that the WLS defendants failed to demonstrate the requisite effect on interstate commerce, 2) that specific enforcement of the arbitration provision is not appropriate because of certain breaches of the installment agreement, and B) that the arbitration provision cannot be enforced because it was not disclosed in a written warranty. Because we find the Lewises’ specific-enforcement argument unpersuasive for the reasons given above, we address only the first and third arguments raised by the Lewises in support of the trial court’s ruling.

1. Interstate Commerce

In support of their motion to compel arbitration, the WLS defendants relied upon the affidavit of Larry Smith; however, the trial court struck Smith’s affidavit as untimely; it therefore did not consider it. The Lewises argue that while the WLS defendants now rely upon Conseco’s involvement in the transaction to establish the requisite connection to interstate commerce (as supported by Eller’s affidavit), the WLS defendants never sufficiently pursued this argument before the trial court.

However, a review of the WLS defendants’ response to the Lewises’ motion to alter, amend, or vacate the trial court’s original order granting the WLS defendants’ motion to compel arbitration reveals the following assertions:

“3. As the Motions to Compel Arbitration granted by this Honorable Court have substantiated, the sales transaction involving the purchase of the manufactured home in question had a substantial effect on interstate commerce, such that the arbitration provision in the Retail Installment Contract was properly enforced by this Court.
“4. Defendants cite the Court to the Alabama Supreme Court’s decision in Green Tree Financial Corp., n/k/a Conseco Financial Corp. v. Lewis, [813 So.2d 820] (Ala.2001), a copy of which is attached for the Court’s convenience. In that case, involving the same Delaware corporation that is the codefendant in the case at bar, the arbitration provision in the installment contract was found to be enforceable even though the sale took place in Alabama between Alabama buyers and an Alabama dealer, by virtue of the lender, Conseco, being a Delaware corporation with its principal place of business in Minnesota, payments remitted by checks drawn on out-of-state banking institutions, and payments mailed by the purchasers to out-of-state addresses, as well as specific authorization in the contract to assign the installment contract to the lender, Conseco. Such factors were deemed sufficient to constitute the requisite ‘substantial effect on interstate commerce’ required for enforcement of the arbitration provision in the installment contract under the Federal Arbitration Act.
“5. The Alabama Supreme Court recognized in Lewis, supra, that the arbitration provision not only embraced the installment contract itself, but also ‘ “all relationships which result(ed) from (the) Contract.’” [813 So.2d at 824.] As a result, the facts supporting the conclusion that the sales transaction in that case were found to have a substantial effect upon interstate commerce, as they do in the case at bar, including those facts arising from the assignment by the retailer to the finance company, Conse-co, which the Alabama Supreme Court held to be ‘quite relevant’ to the substantial nexus with interstate commerce. [813 So.2d at 824.]
“6. The relationships between the corporations providing the substantial nexus with interstate commerce and making the Order Compelling Arbitration appropriate in Lewis, supra, make this Court’s Order Compelling Arbitration appropriate, and the Plaintiff’s Motion to Alter, Amend or Vacate said Order is due to be denied.
“7. Under substantially the same facts as in the case at bar, the Alabama Supreme Court held in Lewis, supra, that Conseco Financial Corp. (f/k/a Green Tree Financial Corp.) carried its burden of establishing that the sales transaction had a substantial effect on interstate commerce, and arbitration was ordered in that case and upheld, as it should be in this case, based upon the same rationale by which the Alabama Supreme Court rejected plaintiffs challenge to arbitration.”

The WLS defendants, while perhaps not formally stating that they were incorporating Eller’s affidavit in defense of their motion to compel arbitration, nonetheless thoroughly described how, under Alabama law, Conseco’s involvement in the single transaction at issue substantially affected interstate commerce, a conclusion with which we today concur. By specifically basing their argument on materials already before the trial court — i.e., by referencing the trial court’s attention to both motions to compel arbitration, and by specifically arguing that Conseco’s involvement satisfied the interstate-commerce requirement for the entire transaction — the WLS defendants effectively incorporated Conseeo’s motion to compel arbitration in support of their own with regard to the interstate-commerce question.

It is undisputed that Conseco’s involvement was part of the underlying transaction; in fact, such a conclusion would be difficult to dispute under the facts before us. When examining whether a transaction substantially affects interstate commerce in the arbitration context, we do not employ a “divide and conquer” technique; rather, we examine all facets of a transaction. See Lewis, 813 So.2d at 824 (stating that “[w]e cannot employ an unrealistically narrow construction of the ‘transaction’ concept so as to limit our scrutiny to the events transpiring at the time of the sale [of a manufactured home],” and that, with respect to the interstate-commerce question, “even those facts arising from the assignment by [the seller of the manufactured home] to Green Tree, are quite relevant”). Based on the above, we hold that — as we did with Conseco— the WLS defendants have met their burden of demonstrating that the transaction substantially affected interstate commerce.

2. Application of Ex parte Thicklin to the Lewises’ Magnuson-Moss and express-warranty claims

The WLS defendants contend, contrary to the assertions of the Lewises, that the Lewises cannot use our recent decision in Ex parte Thicklin, supra, as a defense to arbitration because, they say, that case does not apply to these facts. We agree.

Ex parte Thicklin involved the sale of a mobile home. The buyer was given a written warranty that did not mention arbitration. The buyer sued the seller and the manufacturer, asserting various claims, including claims alleging Magnuson-Moss and express-warranty violations. Relying on Cunningham v. Fleetwood Homes of Georgia, Inc., 253 F.3d 611 (11th Cir.2001), we held that because the written warranty did not disclose to the buyer any arbitration requirement as it was required to do by the Magnuson-Moss Warranty Act, the trial court could not compel the buyer to arbitrate his Magnuson-Moss and express-warranty claims. Ex parte Thicklin, 824 So.2d at 728.

The disclosure requirements mentioned in Ex parte Thicklin applied specifically to a “written warranty,” a term defined in the Magnuson-Moss Warranty Act as follows:

“(6) The term ‘written warrant/ means—
“(A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or
“(B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking, which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product.”

15 U.S.C. § 2301(6). In order to invoke Ex parte Thicklin as a defense to arbitration, a party resisting arbitration would have to demonstrate initially that a written warranty of the type described in 15 U.S.C. § 2301(6) had been issued by the party seeking arbitration.

In this case, the Lewises have offered no written warranty given by the WLS defendants. In fact, the record reflects that the WLS defendants not only gave no written warranties, but that both express and implied warranties were specifically (and repeatedly) disclaimed in both the purchase agreement and the installment agreement.

In their brief to this Court, the Lewises argue that the existence of a written warranty is evidenced by 1) the existence of a one-year warranty from the manufacturer mentioned in the purchase agreement, and 2) the indication in both the purchase agreement and the installment agreement that the mobile home purchased by the Lewises was “new.” However, neither of these facts bolsters the Lewises’ argument. First, the one-year warranty mentioned in the purchase agreement was not given by the WLS defendants, but by the manufacturer — a fact made clear by the following language in the purchase agreement:

“11. MANUFACTURER’S WARRANTIES. I UNDERSTAND THAT THERE MAY BE WRITTEN WARRANTIES COVERING THE UNIT PURCHASED, OR ANY APPLIANCE©) OR COMPONENT(S), WHICH HAVE BEEN PROVIDED BY THE MANUFACTURER OF THE UNIT OR MANUFACTURER OF THE APPLIANCE (S) OR COMPONENT©). YOU WILL GIVE ME COPIES OF ANY AND ALL WRITTEN WARRANTIES SUPPLIED BY THE MANUFACTURERS. DELIVERY BY YOU TO ME OF THE WARRANTY BY THE MANUFACTURER OF THE UNIT PURCHASED, OR ANY APPLIANCE©) OR COMPONENT©) DOES NOT MEAN YOU ADOPT THE WARRANTY(S) OF SUCH MANUFACTURERS. I ACKNOWLEDGE THAT THESE EXPRESS WARRANTIES MADE BY THE MANUFACTURER(S) HAVE NOT BEEN MADE BY YOU EVEN IF THEY SAY YOU MADE THEM OR SAY YOU-MADE SOME OTHER EXPRESS WARRANTY. YOU ARE NOT AN AGENT OF THE MANUFACTURER©) FOR WARRANTY PURPOSES EVEN IF YOU COMPLETE, OR ATTEMPT TO COMPLETE REPAIRS FOR THE MANUFACTURER©).
“I UNDERSTAND THAT THERE IS A ONE YEAR WARRANTY ON THE CONSTRUCTION OF THE MOBILE HOME FROM THE MANUFACTURER. I ALSO UNDERSTAND THAT THIS WARRANTY-DOES NOT COME FROM [WLS, Inc.], I HAVE PERSONALLY EXAMINED THE-MOBILE HOME....”

Second, even if the indication that the mobile home was “new” could be construed to be a warranty under state law, see Ala.Code 1975, § 7-2-313 (an issue on which we express no opinion), it would not fit either definition of a “written warranty” under the Magnuson-Moss Warranty Act. It certainly does not fit the definition in § 2301(6)(B), and, with regard to 6(A), a statement that a product is “new” simply does not “affirm[ ] or promise[ ] that [the] material or workmanship [in the mobile home] is defect free or will meet a specified level of performance over a specified period of time.” Because the Lewises did not produce a written warranty given by the WLS defendants, any defense to arbitration stemming from our decision in Ex parte Thicklin is unavailable.

TV. Conclusion

Based upon the above, as to the appeal from the trial court’s order granting Con-seco’s motion to compel arbitration, we affirm; as to the appeal from the trial court’s order denying the WLS defendants’ motion to compel arbitration, we reverse and remand for further proceedings consistent with this opinion.

1010772 — AFFIRMED.

1010752 — REVERSED AND ' REMANDED.

SEE, LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., dissents.

      . Larry Smith is the president of WLS, Inc.; Gail Smith and Lisa Melendy are WLS, Inc., employees.

      . Our decision regarding the interstate-commerce issue precludes the need to address Conseco’s alternative argument that this case involves "persons or things" in interstate commerce. See Selma Med. Ctr., Inc. v. Fontenot, 824 So.2d 668 (Ala.2001).

      . There is no dispute as to the breadth of the arbitration provision at issue, which covers "all disputes, claims or controversies arising from or relating to this Agreement or the relationships which result from this Agreement, or the validity of this arbitration clause or the entire Agreement.”

      . Conseco argues that, even if the Magnuson-Moss Warranty Act applies to the WLS defendants, application of the Act to Conseco through the FTC rule at issue is improper. See Lindsey v. Ed Johnson Oldsmobile, Inc., No. 95 C 7306 (N.D.Ill., September 13, 1996) (not published in F.Supp.) ("To impose liability [through the FTC rule] against an assignee under [the Magnuson-Moss Warranty Act] where none was otherwise contemplated would be contrary to the congressional intent underlying such statutes.”); Results Oriented, Inc. v. Crawford, 245 Ga.App. 432, 538 S.E.2d 73, 81 (2000) (holding, in a challenge to the enforceability of an arbitration provision in an installment agreement assigned by a mobile-home dealer to Green Tree (now Conse-co), that the Magnuson-Moss Warranty Act did not apply to Green Tree because "Green Tree is neither a 'supplier, warrantor, or service contractor' covered by that Act.” (quoting 15 U.S.C. § 2310(d), and (f); citing 15 U.S.C. § 2301(4), (5), and (8) (defining "supplier,” "warrantor,” and "service contract”))). However, given our disposition in this case, we do not reach this issue.