author: KING, P.J.,

text:
    J.B. PRICE, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01629-COA.
    Court of Appeals of Mississippi.
    June 3, 2003.

      Godfrey Ronald Tillman, Jackson, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   KING, P.J.,

for the court.

¶ 1. J.B. Price was convicted of rape in the Yazoo County Circuit Court. When the jury was unable to agree on a sentence, the court sentenced Price to ten years in the custody of the Mississippi Department of Corrections. Price has appealed and raised the following issues:

I. Whether the jury verdict is against the overwhelming weight of the evidence.
II. Whether the trial court erred in denying Price’s motion for judgment notwithstanding the verdict, or in the alternative, a new trial.

FACTS

¶2. On May 19, 1999, at approximately 12:30 a.m., T. Davis heard a knock on her door. Davis found Price at her door. Price, who lived across the street with his mother, stated that his ear had broken down and he needed to use the telephone. Davis testified that Price used the telephone and then asked to use the bathroom.

¶3. After Price came out of the bathroom, he sat down in a chair. According to Davis, he then got up, walked over to her, put one hand at her neck, the other hand over her mouth, and took her outside through the back door. Price told Davis to he down, which she did. Davis indicated that she wanted to scream at that time but did not. Price then proceeded to engage in nonconsensual intercourse with Davis.

¶ 4. According to Davis, Price took her to several places behind the house to have intercourse. At the last location, Davis stated that Price inquired, “Do you want me to turn myself in?” Davis testified that because she was scared, she responded by telling him no. Davis stated that she did not want to have intercourse with Price but was forced to do so. Davis indicated that at some point she actively resisted Price.

¶5. When Price departed, Davis called 911. Ed Warren, the Chief of Police in Bentonia, responded to. the call. Officer Warren testified that when he arrived, Davis appeared disoriented, - “she was shaking, she was muddy, she was scratched up, and seemed like she had been abused pretty good.” Officer Warren took photographs of the area where Davis had indicated that Price had taken her. Davis was then taken to the hospital where a rape Mt was performed, and taken to the Mississippi Crime Lab in Jackson.

¶ 6. According to Officer Warren, when he went across the street to talk to Price, who “came out the door, stepped out the door. And just without me -talking to him or anything, he just turned around and put his hands behind his back and I cuffed him and we went to the town hall and took some pictures.” Warren indicated that Price appeared to have had “grass looped in his shoelaces. He had muddy pants on his knees and his body temperature was very hot,, like a lot of exercise or whatever, but he was real hot.”

¶ 7. At trial on April 4, 2000, a jury convicted Price of rape.

ISSUES AND ANALYSIS

I.

Whether the jury verdict is against the overwhelming weight of the evidence.

¶ 8. Price contends that the verdict is against the overwhelming weight of the evidence. He claims that Davis’ testimony “was in many respects improbable and unreasonable.” Price asserts that the testimony given by Davis alleging that she “had little or no relationship” with him was unbelievable. He asserts that this testimony was refuted by his mother who stated that Davis constantly called her house to speak with Price. Price further alleges that Davis’ testimony was contradictory when she testified to having continuously kicked him, because there are no bruises or marks to show her resistance.

¶ 9. Price contends that “a great disparity exists between the testimony of [Davis] and the statement given immediately after the incident.” Price indicates that Davis’ statement reflects that they had intercourse one time, but that her testimony states that there were three encounters. Price claims that Davis never mentioned in her statement that she was scared but did in fact testify that she was scared.

¶ 10. Price relies on Joslin v. State, 129 Miss. 181, 91 So. 903 (1922), where a rape conviction was reversed because the testimony was in many respects so improbable and unreasonable that the verdict was against the clear weight of the evidence.

¶ 11. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court adheres to the following standard:

The standard of review for the determination of whether a jury verdict is against the overwhelming weight of the evidence is that this Court must “accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” A new trial will not be ordered unless the verdict' is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction “unconscionable injustice.”

Crawford v. State, 754 So.2d 1211(¶ 30) (Miss.2000) (citations omitted).

¶ 12. In this case, Davis testified that Price put his penis in her vagina, that she did not want to have sex with him, and that he forced her to do so. It is well settled that in such a case of conflicting testimony, each distinct view is absorbed into the minds of the jury as the finders of fact, and it is within the province of the jury to determine the credibility among several witnesses. Hughes v. State, 724 So.2d 893(¶ 18) (Miss.1998). Our case law clearly holds that the unsupported word of the victim of a sex crime is sufficient- to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime. Crawford v. State, 754 So.2d 1211, (¶ 31) (Miss.2000).

¶ 13. We find that the record contained sufficient credible evidence upon which the jury could find that Price violated Miss. Code Ann. Section 97 — 3—65(3)(a) (Supp. 1999).

II.

Whether the trial court erred in denying Price’s motion for judgment notwithstanding the verdict, or in the alternative, a new trial.

¶ 14. Price contends that the trial court erred by denying his motion for judgment notwithstanding the verdict, or new trial. He claims that Davis’ testimony was improbable and unbelievable. He further claims that “[a] credible witness, Ms. Gertrude Wilkerson refuted Ms. [Davis’] contentions, of a casual relationship with J.B. Price.”

¶ 15. This Court must review the denial of a motion for judgment notwithstanding the verdict in the following manner:

This Court’s standards of review regarding a denial of a judgment notwithstanding the verdict and a peremptory instruction are the same. Our standards of review for a denial of a judgment notwithstanding the verdict and a directed verdict are also identical. Under this standard, this Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standards of review, however, are predicated on the fact that the trial judge applied the correct law.

Jackson v. State, 815 So.2d 1196(¶ 14) (Miss.2002).

¶ 16. In this case, Davis testified that Price forced her to have sexual intercourse and that she did not want to do so. The jury sits as trier of fact, and is charged with resolving the conflicts in evidence. Hughes, 724 So.2d at (¶ 18). The jury resolved the conflict in favor of Davis. There existed within the record substantive credible evidence to support that finding. Therefore, we affirm the trial court’s decision.

¶ 17. THE JUDGMENT OF THE YA-ZOO COUNTY CIRCUIT COURT OF CONVICTION OF RAPE AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

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

      . Due to the nature of the offense, the victim’s real name is not being used for purposes of this opinion.

      . Miss.Code Ann. Section 97-3-65(3)(a) (Supp. 1999) provides: (3)(a) Every person who shall have forcible sexual intercourse with any person, or who shall have sexual intercourse not constituting forcible sexual intercourse or statutory rape with any person without that person's consent by administering to such person any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, upon conviction, shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment, the court shall fix the penally at imprisonment in the State Penitentiary for any term as the court, in its discretion, may determine.


source: Caselaw Access Project

author: McMILLIN, C.J.,

license: Public Domain

text:
    Leonard Lee BOUTWELL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-00998-COA.
    Court of Appeals of Mississippi.
    June 3, 2003.
    Leonard Boutwell, pro se, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.

      Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Leonard Lee Boutwell pled guilty to felony driving under the influence in 1995 and was sentenced to a term of five years. Four and one-half years of the sentence were suspended and it was ordered that Boutwell be placed on supervised probation for five years after his release from his initial incarceration period of six months. Some time after Boutwell’s release from initial confinement, the State successfully moved to have Boutwell’s probation revoked when the trial court determined that Boutwell had violated the terms of his probationary release. According to the transcript of that revocation hearing, the trial court reviewed the evidence of Boutwell’s continuing difficulties with the law and concluded, “I don’t have any option but to revoke his probation. He’s going to be sentenced to serve his two and [sic] half years with the Mississippi Department of Corrections.”

¶2. Despite this oral pronouncement, the formal written order revoking probation dated and entered the same day as the hearing contained the following provision: “It is therefore ordered and adjudged that the defendant’s probation is revoked and he is sentenced to serve four (4) and/é years in the custody of the Mississippi Department of Corrections.”

¶3. Section 47-7-37 of the Mississippi Code makes plain that the court has some measure of discretion in deciding on the appropriate sanction for a probation violation when it says that, “the court ... may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction.” Miss.Code Ann. § 47-7-37 (Rev.2000) (emphasis supplied). Thus, it was permissible under the law for the court to sentence Boutwell to serve something less than the entire suspended portion of his sentence. Because of the discretion afforded the court in the matter of appropriate punishment upon probation revocation, we possibly deal with something different than a simple misstatement by the court that could be rectified summarily upon its discovery.

¶4. Boutwell filed a motion for post-conviction relief seeking to have the oral pronouncement by the trial court of a two and one-half year sentence enforced as the lawful sentence of the court, rather than the four and one-half year sentence recited in the court’s written order.

¶5. The trial court, in denying Bout-well’s post-conviction relief motion, stated that “the Court misstated the sentence to be imposed during the revocation hearing.” The court then said that “the Petitioner was in fact sentenced to serve the suspended portion of his sentence, which was four and one half years.”

¶6. The law in most jurisdictions appears clear that, when there is a direct conflict between the oral pronouncement of sentence and the ensuing written judgment of sentence, the oral pronouncement of the sentencing court controls. U.S. v. Martinez, 250 F.3d 941, 942 (5th Cir.2001); Evans v. State, 675 So.2d 1012, 1015 (Fla. 4 Dist. Ct.App.1996); Vilicie v. State, 637 So.2d 978, 978 (Fla. 1 Dist. Ct.App.1994); State v. Hess, 533 N.W.2d 525, 528 (Iowa 1995); State v. Lane, 288 Mont. 286, 957 P.2d 9 (¶ 40) (1998); Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App.1998).

¶ 7. The rationale for this rule appears to arise out of the widely-held view that one of a defendant’s fundamental rights is that he be present in open court when sentence against him is pronounced. Lane, 957 P.2d at (¶ 38). To do otherwise, one court observed, would be to permit a defendant to be sentenced in absentia. Scott v. U.S., 484 F.2d 11, 20 (5th Cir.1970).

¶ 8. Nevertheless, despite the rule followed in other jurisdictions that the oral pronouncement prevails over a directly conflicting written order, there is authority in Mississippi for the proposition that the written sentence controls. Temple v. State, 671 So.2d 58, 58 (Miss.1996). In Temple, the issue was whether an oral announcement of sentence that contained punitive provisions omitted from the subsequent written judgment would, nevertheless, apply. Id. at 58. In that situation, the supreme court refused to uphold the harsher punishment provisions that were not subsequently memorialized in -the written judgment. Id. at 59. That circumstance is directly opposite from the situation we face where the oral pronouncement was more lenient and there would appear to be at least some question as to whether the same considerations invoked in Temple would apply. However, more to the point in this case, there is also authority, even in jurisdictions following the general rule of giving precedence to the oral announcement, that, when there is some ambiguity in the sentence — rather than an irreconcilable conflict — there may be further inquiry that takes into account both the oral pronouncement and the written order in an effort to discern the court’s actual intent. U.S. v. Villano, 816 F.2d 1448, 1451 (10th Cir.1987).

¶ 9. The trial court in the case before us spoke of its decision to sentence Boutwell to “his two and one-half years” (emphasis added). It does not appear logical for the court to use that phrasing had it been the court’s actual intent to sentence Boutwell to serve something less than his entire suspended sentence. The Villano case, in suggesting examples of situations that might give rise to ambiguity, specifically mentioned the situation “when otherwise unambiguous words are used in an unusual way.” Villano, 816 F.2d at 1453 n. 6. In light of the court’s phrasing in its oral pronouncements in open court concerning Boutwell’s sentence and the difference that appeared in the written order entered shortly thereafter, we conclude that, rather than facing a direct conflict, we confront a situation where a measure of ambiguity is present. That ambiguity permits additional inquiry in order to determine what the true intention of the court was in pronouncing sentence, rather than forcing a decision to pick one provision over the other based on a rule that gives no regard to what the court may have truly intended.

¶ 10. Boutwell’s right to have that ambiguity resolved was satisfied when the circuit court, in considering his post-conviction relief motion, reviewed the matter and affirmatively determined that it was the court’s intention from the beginning to sentence Boutwell to the entire remaining term of four and one-half years and that the contrary statement in open court was, in fact, a simple misstatement. Certainly, it would have been preferable to immediately bring Boutwell back before the court and correct the court’s misstatement in a face-to-face encounter. However, there is no indication that the court’s error in reciting the length of Boutwell’s remaining sentence in open court was noted by anyone until it was raised by Boutwell himself in his motion. At that point, the matter was dealt with promptly and the ambiguity was resolved. We do not find reversible error in the trial court’s resolution of this matter.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: MYERS, J.,

text:
    Andreda D. BROWN, Appellant, v. MAGNOLIA REGIONAL HEALTH CENTER, by and through its Chief Executive Officer, Diane BOATMAN, and its Board of Directors and the Mississippi Employment Security Commission, Appellees.
    No. 2002-CC-01226-COA.
    Court of Appeals of Mississippi.
    June 3, 2003.
    Gertrude (Trudy) Reid, Corinth, attorney for appellant.
    B. Ray Therrell, Jackson, attorney for appellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   MYERS, J.,

for the court.

¶ 1. Magnolia Regional Health Center (Magnolia Regional) terminated the employment of the appellant, Andreda D. Brown, on August 15, 2001. She was denied unemployment benefits by the Mississippi Employment Security Commission (MESC). She appealed her denial of benefits to both an appeals referee and the Alcorn County Circuit Court. Both of these forums affirmed the initial decision to deny Brown benefits. Brown then appealed to this Court, claiming she was unjustly terminated from her employment at Magnolia Regional.

Facts and Procedural History

¶ 2. Brown was hired by Magnolia Regional on February 24, 1996. Her job title was patient service coordinator. Approximately two years later, she received a promotion to department facilitator in the dietary department. On July 28, 2001, Brown was demoted back to patient service coordinator. Magnolia Regional explained to Brown that the position of department facilitator had been eliminated.

¶ 3. On August 15, 2001, Brown’s immediate supervisor tried to get Brown to release to him a computer password that was essential to the daily functions of Magnolia Regional. The only other person with the password had been Brown’s previous supervisor. Brown had needed the password while in the position of departmental facilitator, but apparently no longer needed it as a patient service coordinator. While as a departmental facilitator, Brown had been advised to not reveal the password to anyone. Brown refused to give the password to her supervisor. Magnolia Regional’s CEO even communicated to Brown, telling her to give the supervisor the password, and that without the password, the dietary department would not be able to do its daily work. Brown still refused to divulge the password. Brown was then discharged on the basis of misconduct, specifically, insubordination based on the above-described incident.

¶ 4. Brown filed for unemployment benefits the next day, August 16, 2001. The claims examiner investigated the claim and, based on the circumstances surrounding Brown’s termination, decided that she did not qualify for unemployment benefits. Brown filed a notice of appeal of this decision on September 5, 2001.

¶ 5. The appeals referee heard the case on September 27, 2001. The referee also decided that Brown was not qualified for benefits. Brown next appealed to the Al-corn County Circuit Court. There, the circuit judge affirmed MESC’s decision to deny benefits.

Legal Analysis

¶ 6. Our inquiry into this case is limited by statute. When a decision of the Mississippi Employment Security Commission Board of Review is appealed first to a circuit court, and then to this Court, we must limit our review to questions of law. Miss.Code Ann. § 71-5-581 (Rev.2000); Huckabee v. Mississippi Emp. Sec. Comm’n, 735 So.2d 390, 393(119) (Miss.1999). It is the board of review that is the fact finder, and we will not disturb its findings if they are supported by the evidence. § 71-5-531.

¶ 7. Brown was discharged from her employment for misconduct. The Mississippi Supreme Court defined misconduct, as used in this context, as “conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.” Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982).

¶ 8. Brown’s refusal to turn over the password certainly meets that definition. She was told to turn over the password and refused to do so. She was told that the password was needed for the daily operations of her department. She continued to refuse to turn over the password. The chief executive officer of Magnolia Regional told her to turn it over, and she refused. Granted, Brown probably felt some conflict since, in her previous position, she had been told not to reveal that password to anyone, and that if she did reveal the password, she would be subject to disciplinary action. However, she was no longer in a position where she needed the password to carry out her duties. Additionally, the highest ranking official at Magnolia Regional, the CEO, told her to turn over the password. Surely, she could not expect that following the CEO’s order would result in disciplinary action. Magnolia Regional had an expectation that Brown would divulge the password so that its daily operations could be carried out. Refusing the orders of all those above her demonstrates a willful and wanton disregard of that expectation. The denial of unemployment benefits is affirmed.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF ALCORN COUNTY IS AFFIRMED.

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

      . Brown did not include a statement of issues as required by M.R.A.P. 28(a). The only indication of any issues in her brief or the record is a sentence stating, "Appellant alleges that she has been unfairly and unjustly terminated from her employment at Magnolia Regional Health Center....” We therefore have used this as the only issue she raises in this appeal.


author: BROWN, Justice.

text:
    BAMA’S BEST HOUSING, INC., and Gary Taunton v. Stephen HODGES.
    1002057.
    Supreme Court of Alabama.
    June 28, 2002.
    Rehearing Denied Sept. 27, 2002.
    S.Anthony Higgins of Nix, Holtsford, Gilliland, Lyons & Higgins, P.C., Montgomery, for appellants.
    G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellee.
   BROWN, Justice.

Bama’s Best Housing, Inc. (“Bama’s Best”), and Gary Taunton appeal from the trial court’s denial of their motion to compel Stephen Hodges to submit his claims against them to binding arbitration. We reverse and remand.

Facts and Procedural History

In November 2000, Hodges, who wanted to purchase a mobile home, met with Taunton, an employee of Bama’s Best. Hodges wanted to make a “land-home purchase,” which means that Hodges wanted to secure financing for both the mobile home and the real estate upon which the mobile home would be situated. On December 8, 2000, Hodges executed a real estate purchase and sales agreement pursuant to which he agreed to purchase a certain parcel of real estate if he was able to secure financing for the purchase. Thereafter, Hodges executed credit applications, and Taunton began communicating with various lenders to obtain financing for Hodges’s land-home purchase. Although Hodges was dissatisfied with the amount of financing available and the interest rates Taunton had offered him, he told Taunton the type of mobile home he wanted and on January 8, 2001, Taunton ordered a Fleetwood Westfield Classic, Model 6763T, mobile home from Fleetwood Homes of Georgia, Inc. After Fleetwood delivered the home, Taunton and Hodges discovered that the home did not comply with several of Hodges’s specifications. Once Fleetwood had corrected the deficiencies, Taunton contacted Hodges about completing the transaction. Because Hodges once again expressed concern about the financing and the available interest rates, Taunton contacted the lenders again in an attempt to secure more favorable financing for Hodges.

Several days later, Hodges contacted Taunton and told him that he wanted to look elsewhere to see if he could secure a better price or better financing. Because Hodges had not signed a contract to purchase the Fleetwood home, Bama’s Best began to show the home to other customers, and on February 10, 2001, another customer purchased the home. Several days later, Hodges telephoned Taunton and told him that he still wanted to purchase the Fleetwood home because he had been unable to secure a better price from another dealer. Taunton ordered a home from Fleetwood that was identical to the home Hodges had previously ordered, and Taunton again attempted to secure financing to meet Hodges’s needs.

On March 12, 2001, Hodges signed a contract to purchase a Fleetwood West-field Classic, Model 6763T, mobile home from Bama’s Best. Taunton stated that he informed Hodges on March 12, 2001, that Hodges would be required to sign an arbitration agreement and according to Taun-ton, Hodges never expressed any unwillingness to do so. Conversely, Hodges contended that Taunton did not tell him that he would be required to sign an arbitration agreement. On March 23, 2001, Taunton mailed a copy of the arbitration agreement to Hodges for his signature. Although Hodges admits that he received the arbitration agreement, he did not sign and return the agreement to Taunton.

On March 31, 2001, Taunton and a delivery crew arrived at Hodges’s property to deliver and set up the mobile home. At that time, Taunton presented Hodges with another copy of the arbitration agreement and requested that Hodges execute the document before the delivery crew set up the mobile home. Hodges became very angry, yelled at Taunton, and refused to sign the arbitration agreement. Because Hodges refused to sign the agreement, Taunton advised the delivery crew not to set up the home, and Taunton left. After Taunton left, Hodges spoke with the delivery crew, which was still on the property, and Hodges then telephoned Taunton and consented to sign the arbitration agreement. Hodges signed the agreement, and the mobile home was delivered to him.

On April 19, 2001, Hodges sued Bama’s Best and Taunton, alleging various counts of fraud, “continuing fraud,” and breach of contract. Bama’s Best and Taunton moved to stay the proceedings and to compel arbitration. In support of their motion, they submitted the affidavit of Lewis Holmes, the general manager of Bama’s Best, and a copy of the arbitration agreement signed by Hodges. Hodges opposed the motion, submitting his own affidavit for consideration by the trial court. On July 13, 2001, the trial court held a hearing and allowed Bama’s Best and Taunton until July 20, 2001, to submit supplemental briefs and evidence. The defendants filed a supplemental brief, Taunton’s affidavit, and the file Bama’s Best had compiled regarding the Hodges purchase. On July 31, 2001, the trial court summarily denied the motion to compel arbitration. This appeal follows.

Analysis
“A direct appeal is the proper procedure by which to seek review of a trial court’s order denying a motion to compel arbitration.[] See Homes of Legend, Inc. v. McCollough, 776 So.2d 741 (Ala.2000). This Court reviews de novo a trial court’s denial of a motion to compel arbitration. Id. at 742-43.”

Tefco Finance Co. v. Green, 793 So.2d 755, 758 (Ala.2001).

Bama’s Best and Taunton argue that the trial court erred by denying their motion to compel arbitration, maintaining that Hodges’s claims fell within the broad range of the arbitration agreement. In response, Hodges contends that the arbitration agreement did not apply to the home he purchased because, he says, his claims arose out of Bama’s Best and Taun-ton’s failure to deliver the first mobile home he had ordered and the arbitration agreement he signed references the serial number of the second mobile home. Additionally, Hodges contends he should not be bound by the arbitration agreement because, he says, he signed the document as a result of “economic duress.”

The arbitration agreement Hodges executed provides, in pertinent part:

“This agreement for binding arbitration is this dated entered between Stephen Hodges, hereinafter called ‘Buyer,’ and Bama’s Best Housing, A Corporation, hereinafter called ‘Seller.’
“Buyer has this date purchased from Seller a mobile home described as follows: Fleetwood Westfield 6763T, S.N. 48287, Serial Number 48287 [sic]. As part of the consideration for the sale of said mobile home, Buyer and Seller hereby enter into this agreement for binding arbitration, each intending to be mutually bound by the terms of this agreement.
“Buyer and Seller acknowledge that the said mobile home is a product manufactured and sold in interstate commerce and that the provisions of the Federal Arbitration Act are applicable to this contract. The parties further acknowledge that the sale of the said mobile home is a transaction involving interstate commerce.
“Buyer and Seller agree, covenant and consent, that any and all controversies or claims arising out of or in any way relating to the sale of the said mobile home and the negotiations leading up to the sale, whether in the nature of covenant, warranty, misrepresentation, rescission, any breach of contract, or other tort, shall be settled solely by arbitration in accordance with the applicable Rules of the American Arbitration Association then in effect, and that judgement [sic] upon award rendered by the arbitrators may be entered in and enforceable by any court of competent jurisdiction. Buyer and Seller further agree that they shall submit any and all disputes, controversies and cases arising out of the negotiations for the sale and service of the mobile home, whether in the nature of contract, warranty, or tort, to the decision of a three-person arbitration panel. Buyer and Seller agree that they shall be bound by the determination of the said arbitration panel....
“Buyer and Seller agree that this agreement shall cover any and all disputes, claims or controversies between them, including but not limited to warranty claims, service or repairs disputes, set-up or installation disputes, breach of contract, misrepresentations claims, rescission or revocation, loss of use, claims involving fitness for a particular purpose of merchantability, and all other claims arising out of or any way related to the sale and service of the said mobile home.”

(Emphasis added.)

Hodges maintains that his claims concern only the negotiations and the delivery delays related to the first Fleetwood mobile home he ordered. However, we have held that where a contract signed by the parties contains a valid arbitration clause that applies to claims “arising out of or relating to ” the contract, that clause has a broader application than an arbitration clause that refers only to claims “arising from” the agreement. See Reynolds & Reynolds Co. v. King Autos., Inc., 689 So.2d 1, 2 (Ala.1996)(citing Old Republic Ins. Co. v. Lanier, 644 So.2d 1258 (Ala.1994)). The arbitration agreement Hodges signed clearly states that all claims or controversies arising out of or in any way relating to the sale of the mobile home and the negotiations leading up to that sale are subject to arbitration. Because Hodges’s claims relate to his desire to purchase but one mobile home, and because the defendants’ alleged failure to deliver the first home led to Hodges’s purchase of the second home, we find that his claims, even though they concern the first mobile home, arise out of or relate to the sale of the second home. See generally, Reynolds & Reynolds Co., 689 So.2d at 3.

Finally, Hodges argues that the arbitration agreement should not apply because, he says, he was under “economic duress” when he signed it. Specifically, Hodges asserts that because he was required to sign the arbitration agreement as a condition to receiving the second mobile home, he had no meaningful choice in whether to agree to arbitration. Hodges cites Ex parte Early, 806 So.2d 1198 (Ala.2001), as authority for his claim that he signed the arbitration agreement involuntarily and under economic duress. In Early, the plaintiffs had made a partial deposit of $4,000 toward the purchase of a mobile home. When the plaintiffs informed the defendant that they would not sign an arbitration agreement, the defendant allegedly told them that they could not purchase a mobile home without signing the agreement and that, if they declined to purchase the home, the plaintiffs would forfeit their $4,000 down payment. A plurality of this Court held that the record was insufficient to establish whether the trial court had conducted the necessary hearing to determine whether the plaintiffs had signed the arbitration agreement under economic duress. We issued a writ of mandamus directing the trial court to vacate its order compelling arbitration and to conduct further proceedings to determine whether there were genuine issues as to whether the agreement to arbitrate was entered into involuntarily and under economic duress. We find Early to be distinguishable from the facts of this case, however, because Hodges does not allege that he had made a down payment on the first mobile home that he would forfeit if he faded to sign the agreement or that Taunton told Hodges that he would forfeit any money or property by refusing to execute the arbitration agreement.

Because we have determined that the arbitration agreement was applicable to Hodges’s claims relating to the mobile home and that he has failed to demonstrate a genuine issue concerning whether he executed the arbitration agreement involuntarily and under economic duress, we hold that the trial court erred by refusing to grant Bama’s Best and Taunton’s motion to compel arbitration.

REVERSED AND REMANDED.

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

MOORE, C.J., dissents.

        . Although Hodges contracted to purchase the Fleetwood home on March 12, 2001, Bama’s Best and Taunton allege that he did not execute the final loan documents until August 17, 2001, several months after this action was commenced. Although the record does not contain any evidence establishing the exact date on which Hodges executed the final loan documents, Taunton testified that as of the date of his affidavit, July 20, 2001, Hodges had not yet executed the final documents.

      . See Rule 4(d), Ala. R.App. P., effective October 1, 2001. By that amendment an order either granting or denying a motion to compel arbitration is reviewable by appeal.


author: LYONS, Justice.

text:
    Jerry TRAPP v. Jerry VESS and Cotton States Insurance Company.
    1011406.
    Supreme Court of Alabama.
    Sept. 27, 2002.
    Jeffrey L. Bowling of Bedford, Rogers & Bowling, P.C., Russellville, for appellant.
    Steve A. Baccus of Almon, McAlister, Baccus, Hall & Kelley, Tuscumbia, for ap-pellee Jerry Vess.

      Larry B. Moore, Florence, for appellee Cotton States Mutual Insurance Company.
   LYONS, Justice.

Jerry Trapp appeals from a summary judgment for Jerry Vess and Cotton States Insurance Company. We affirm.

Facts and Procedural History

On January 28, 2000, the weather conditions in Franklin County included freezing temperatures and two to three inches of snow. Jerry Vess and his daughter left their home that morning to take Vess’s daughter to Russellville Hospital, where she was scheduled to undergo medical tests. Along the way, Vess applied the brakes on an icy portion of a road, and his car skidded into a ditch. Neither Vess nor his daughter were injured; however, Vess’s car was stuck in the ditch.

A few minutes later Trapp drove by and stopped to help. Vess says that he informed Trapp that he and his daughter were not injured and that they had been on their way to Russellville Hospital where his daughter was to undergo some tests. Trapp offered to get a truck with a trailer hitch to pull Vess’s car out of the ditch. Trapp left and later returned with a truck and five or six men to aid in getting Vess’s car out of the ditch.

The men attached a chain to the front of Vess’s car and proceeded to pull the car from the ditch. During this process, Trapp and some of the men were standing in the ditch pulling on the car while the truck pulled from the road. As Trapp pulled on the car, he tore his right distal biceps tendon. The men successfully removed the car from the ditch. Trapp sought medical attention for his injury a few days later and eventually underwent surgery on his arm.

Trapp sued Vess and Cotton States, alleging that the injury to his arm resulted from Vess’s negligence and/or wantonness in driving his car into the ditch. Both Vess and Cotton States filed motions for a summary judgment. After Trapp responded to the motions, the trial court entered a summary judgment for Vess and Cotton States. Trapp appealed.

Standard of Review

The principles of law applicable to the review of a motion for a summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not raise a genuine issue of material fact and that the movant is entitled to the judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden then shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

In reviewing a summary judgment, we apply the same standard the trial court applied. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).

Analysis

Trapp argues that the record contains substantial evidence creating a genuine issue of material fact as to whether Trapp’s injury was caused by Vess’s negligence and/or wantonness. Trapp argues that he is entitled to a recovery from Vess and Cotton States based on the “rescue doctrine” of tort law. This Court recently described the purpose of the rescue doctrine as follows: “The rescue doctrine arose as a way to establish causal relation between the action of the defendant and the harm to a rescuer and to prohibit the negligent defendant from using the affirmative defenses of assumption of the risk and contributory negligence against the rescuer.” Dillard v. Pittway Corp., 719 So.2d 188, 193 (Ala.1998). The rescue doctrine allows a person who sustains an injury when he or she comes to the aid of another in peril to recover damages based upon the negligence of the tortfeasor, despite the absence of proximate cause. See id. In order to meet the standard under the rescue doctrine, the defendant must have been negligent as to the person being rescued. If so, the defendant is deemed to have acted negligently towards the rescuer as well. Id.

Trapp maintains that there is a genuine issue of material fact as to whether Vess’s driving his car in such a manner that it landed in a ditch constituted negligence. He points to the hazardous weather conditions and also to § 32-5A-170, Ala. Code 1975, which provides: “No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.” Trapp also relies on Nelson v. Meadows, 684 So.2d 145 (Ala.Civ.App.1996). In that case, the Court of Civil Appeals, applying the summary-judgment standard, held that the mere fact that an individual was abiding by the speed limit at the time of the accident was not sufficient evidence indicating that the driver acted reasonably and with prudence under the conditions present at the time of the accident. 684 So.2d at 148.

Despite Trapp’s accurate description of the standard of care imposed on a driver in Alabama, his argument contains no factual support to show that Vess acted negligently in causing his car to enter the ditch. Trapp testified in his deposition that he did not see Vess’s car go into the ditch; it was already in the ditch when Trapp arrived on the scene. He presented no evidence indicating Vess’s speed at the time of the accident or that the speed, although unknown, was unreasonable. Trapp did not present any evidence to show that Vess’s use of his brakes on an icy road was not reasonable. The only evidence the trial court had before it as to the events occurring before the car left the road was Vess’s testimony. He testified, in his deposition, that the road was “slick and iced-over from prior traffic” and that he was not driving too fast when he applied his brakes and lost control of his car.

This Court has noted: “ ■ ‘ “The mere skidding of an automobile on an icy street does not necessarily prove negligence of the driver of the car.” ’ ” Harris v. Brewer, 487 So.2d 252, 254-55 (Ala.1986) (quoting National Biscuit Co. v. Wilson, 256 Ala. 241, 246, 54 So.2d 492, 496 (1951), quoting in turn Kaczmarek v. Murphy, 78 Ohio App. 449, 452, 70 N.E.2d 784, 786 (1946)). Alabama law also states that “[t]he mere possibility that negligence caused an injury, without evidence, is not sufficient to support a verdict.” Marshall Durbin Co. v. Hartley, 392 So.2d 240, 241 (Ala.Civ.App.1980). Therefore, in the absence of any evidence sufficient to raise a genuine issue of material fact as to Vess’s negligence, the trial court correctly entered a summary judgment for Vess and Cotton States.

The summary judgment for Vess and Cotton States was also appropriate because there is no genuine issue of material fact as to Trapp’s claim that the rescue doctrine is applicable in this case. Alabama courts have never directly addressed the issue of when a person qualifies as a rescuer under the rescue doctrine; however, other jurisdictions have soundly determined the scope of the doctrine. See, e.g., Estate of Minser v. Poinsatte, 129 Ohio App.3d 398, 402, 717 N.E.2d 1145, 1148 (1998); Bell v. Irace, 422 Pa.Super. 298, 304-05, 619 A.2d 365, 369 (1993); Commonwealth v. Millsaps, 232 Va. 502, 507-08, 352 S.E.2d 311, 314 (1987); Ellmaker v. Goodyear Tire & Rubber Co., 372 S.W.2d 650, 658 (Mo.Ct.App.1963). In order to claim the status of a rescuer, a party must establish that he had a reasonable belief that the person he was trying to rescue was in a dangerous position. See Estate of Minser, 129 Ohio App.3d at 402, 717 N.E.2d at 1148. The person being rescued does not need to be in actual peril so long as there is “ ‘a reasonable belief that some person is in imminent peril.’ ” Ellmaker, 372 S.W.2d at 658.

In this case, the only fact that could have led Trapp to a “reasonable belief that some person [was] in imminent peril” is Trapp’s statement in his affidavit indicating that Vess told Trapp that he needed to get his daughter to the hospital to have medical tests performed. However, there is absolutely no other evidence that Vess indicated that he and his daughter were in peril or that he requested Trapp’s assistance. There is no evidence indicating that Trapp, seeing what he perceived to be an emergency, offered to take Vess’s daughter immediately to the hospital or telephoned for an ambulance. Instead, he went to get a truck that could pull the car from the ditch and then returned to the scene. On this record, we conclude that, as a matter of law, Trapp did not have a “reasonable belief that some person [was] in imminent peril” and he is not entitled to the application of the rescue doctrine.

Conclusion

The trial court properly entered a summary judgment in favor of Vess and Cotton States. Trapp did not present sufficient evidence to create a genuine issue of material fact as to whether Trapp was a rescuer under the rescue doctrine. Even assuming that Trapp had a reasonable belief that Vess’s daughter was in imminent peril, so as to qualify as a rescuer, there is no evidence indicating that Vess acted negligently and/or wantonly in causing his car to go into the ditch. Accordingly, we affirm the judgment in favor of Vess and Cotton States.

AFFIRMED.

MOORE, C.J., and HOUSTON, JOHNSTONE, and WOODALL, JJ., concur.

      . There is a factual dispute as to whether Vess told Trapp that the situation was not an emergency. This is not a material fact in light of all of the other circumstantial evidence defeating Trapp's claim that he had a reasonable belief that Vess’s daughter was in peril.