author: McMILLIN, C.J.,

text:
    Thomas HILL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01654-COA.
    Court of Appeals of Mississippi.
    Nov. 19, 2002.
    Rehearing Denied Feb. 25, 2008.

      Thomas Hill, Pro Se, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before McMILLIN, C.J., THOMAS, and BRIDGES, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Thomas Hill filed a pleading in circuit court that sought to have the court award him credits against his sentence that had allegedly been improperly denied by the Mississippi Department of Corrections. He specifically disclaimed that this was a challenge to his conviction or underlying sentence. The circuit court dismissed the petition. We affirm.

Facts

¶ 2. Hill has been convicted on a variety of crimes beginning in 1980. The first three noted in the record were for two burglaries and for grand larceny, for which he was imprisoned from 1980 until 1983. In 1984, he was convicted for rape, attempted rape, and armed robbery. Two of the sentences were imposed on him as an habitual offender. In the present proceedings, the circuit court found that he would be eligible for parole on October 30, 2003, his tentative discharge date is September 4, 2005, and the “maximum discharge date” is April 2, 2012.

¶ 3. On May 26, 2000, Hill filed a request for an administrative remedy with the Mississippi Department of Corrections Administrative Remedy Program. He alleged that he should be allowed trusty earned time and an administrative reduction of sentence. On July 5, 2000, Hill received a First Step Response Form, stating that he had received 180 days of credit while serving the non-habitual portion of his sentence but that he was now serving the habitual portion and that could not be reduced. The same day, Hill filed for the Second Step review and on September 1, 2000, received the same response. Immediately initiating the Third Step, Hill was on November 17, 2000, again told that trusty earned time was inapplicable to the mandatory part of his sentence. This answer was given by the Commissioner of Corrections, Robert Johnson. Hill did not appeal.

¶ 4. The present action was commenced on July 30, 2001, when the “Petition for an Order to Show Cause” was filed in the Sunflower County Circuit Court. Hill stated in his petition that he was not attacking the legality of his sentence. Instead, he wanted the circuit court to order the relief that the internal review process had denied him.

¶ 5. The circuit court denied relief on September 26, 2001. The court examined each of Hill’s sentences and determined that he was not entitled to any reduction to them. Hill was initially denied the right to appeal in forma pauperis in this case, as the circuit court determined that he had not filed for post-conviction relief. On reconsideration, the court found that this claim did fall under the post-conviction relief statutes and allowed him to proceed accordingly.

Discussion

I.

Jurisdiction

¶ 6. Hill argues 1) that he is serving a non-habitual sentence under which he is eligible for earned time, 2) other inmates are allowed to earn trusty time, 3) that a recent statute does not contain a prohibition of awarding trusty earned time to any offender participating in an approved work program while in trusty status, and 4) the trial court was clearly erroneous in not providing a hearing on his claims. The State finds its own issue and argues that Hill’s complaint should have been dismissed as being an untimely effort to seek judicial review of an administrative proceeding. Because the State’s argument would lead us to find that there is nothing on the merits of Hill’s claims for us to review, we examine it first.

¶ 7. Hill did not invoke the Posi^Conviction Relief Act in his motion to the circuit court. In fact, Hill specifically stated that he was “not attacking the legality of his sentence,” and there is no challenge to the convictions themselves. Instead, he wanted “application of Earned Good Time allowance” to be applied to his sentence. The State argues that since Hill failed to appeal from the Department of Corrections’s administrative denial of his claims, his only remaining possible recourse was the post-conviction statutes. The State finds those statutes unusable as well. The list of relevant challenges under those statutes indicates that an inmate may claim that his conviction or sentence is invalid in a variety of ways, but there is no explicit right under these statutes to challenge the internal actions of the Department of Corrections or the conditions of his confinement. Miss.Code Ann. § 99-39-5 (Rev. 2000). However, the Act is available to argue that a sentence has expired but that the movant is still incarcerated. Miss. Code Ann. § 99 — 39—5(l)(g) (Rev.2000). Does this open up the circuit court to review the application of credits to sentences, at least after the time that such denied credits would have caused the inmate’s release from prison? We do not answer the question, because the supreme court has resolved the issue in a different way.

¶ 8. The supreme court has ruled on the merits without questioning jurisdiction in a suit brought by an inmate who argued that he was “entitled to accumulate earned time while serving the mandatory portion of his armed robbery conviction that he then can apply to the time he is required to serve on a subsequent consecutive sentence.” Wilson v. Puckett, 721 So.2d 1110, 1111— 12(¶ 5) (Miss.1998). The suit was brought as a petition for writ of habeas corpus and named various officials of the Department of Corrections as defendants. The court cited an earlier appeal that also considered the merits of such a. claim regarding earned time credits; the inmate there had entitled his pleading a “Petition for Writ of Habeas Corpus or in the Alternative Motion to Show Cause.” Williams v. Puckett, 624 So.2d 496, 497 (Miss.1993). The court in neither case said that this was actually a post-conviction relief suit. In other litigation the court has found that the writ of habeas corpus remains available even though the Post Conviction Relief Act explicitly establishes the procedure to replace habeas corpus in most situations. Carson v. Hargett, 689 So.2d 753, 755 (Miss.1996), citing Miss.Code Ann. § 99-39-3(1) (Rev.2000).

¶ 9. Regardless of what the present suit should be called, we note that it was brought, as was Williams, as a “Petition to Show Cause,” and it named various officials of the Department of Corrections as the defendants.

¶ 10. The State also makes an alternative argument. Since Hill pursued an internal administrative process first and was denied relief, failure to appeal from that is in essence res judicata. If an administrative process is established for initial consideration of a claim and then judicial review is available but not sought, generally an independent action is barred since the administrative remedies were not exhausted. That rule has been applied in the prison context, which does have an administrative procedure to protect inmate rights that is followed by judicial review. Miss.Code Ann. § 47-5-807 (Rev.2000) (judicial review within 30 days of final action); Broum v. State, 752 So.2d 464, 465(¶ 4) (Miss.Ct.App.1999) (failure to appeal within 30 days bars claims). Another inmate with a similar issue on earned time credits followed the appeal process that the State urges here. Randall v. Roberts, 736 So.2d 1083, 1086(¶ 4) (Miss.Ct.App.1999). Judge Coleman for this Court found that after the internal process was over, a petition for order to show cause or for an order directing that petitioner be given certain credits was the proper approach. Id. citing the appellate review statute, Miss.Code Ann. § 47-5-807 (Rev.2000).

¶ 11. Though we find the argument a compelling one, we determine that the consideration of this issue in Williams and Wilson by the supreme court requires that we do so here. Both of those appeals addressed claims regarding the alleged mis-computation of credits for sentences, and those claims were filed directly in court after the adoption of the Administrative Review Procedure Act for the Department of Corrections in 1989. No reference was made in either opinion to the need to utilize the administrative procedures. We find that there is jurisdiction for a court to consider claims regarding the denial of various credits to sentences. We now turn to Hill’s claim.

II.

Hill’s status as an habitual criminal

¶ 12. Hill’s first argument is that he cannot be serving a sentence as an habitual criminal since the trial court found that he was eligible for parole on October 80, 2003. Basically, since anyone serving a sentence as an habitual criminal is ineligible for parole, the court’s finding must be inconsistent with his alleged status. The error in Hill’s approach is that though he is presently serving two consecutive ten-year sentences as an habitual criminal, which he began serving on October 30, 1983, there are other sentences waiting to be served when those twenty years have passed. Those later ones are not mandatory sentences, and credits of various kinds may be appropriate as to them.

III.

Equal protection violation

¶ 13. Hill next argues that other offenders serving mandatory sentences are being allowed to receive trusty earned time. We have been provided with an exhibit that reveals another prisoner who has received such credit, but it does not indicate that the inmate is serving a mandatory sentence. Thus, it is not relevant evidence.

rv.

Interpretation of statute on earned time credit

¶ 14. Hill argues that the statute applicable to earned time credit permits any inmate to be assigned to a work program and earn that credit against his or her sentence. This is the statute:

In addition to any other administrative reduction of sentence, an offender in trusty status as defined by the classification committee of the Department of Corrections may be awarded trusty time allowance of ten (10) days’ reduction of sentence for each thirty (30) days of participation in approved work programs while in trusty status.

Miss.Code Ann. § 47-5-138.1 (Rev.2000) (amended in 2001 to include specific programs for which earned time can be accumulated).

¶ 15. The statute immediately following what we have quoted contains two separate prohibitions relevant here:

(1) An inmate shall not be eligible for earned time allowance if: ...

(b) The inmate was convicted as an habitual offender under Section 99-19-81 through 99-19-87; ...
(d) The inmate was convicted of a sex crime.

Miss.Code Ann. § 47-5-139 (Rev.2000).

¶ 16. Hill was convicted of attempted rape and sentenced to ten years as an habitual offender. That sentence was to be served consecutively to a ten-year sentence conviction for armed robbery as an habitual offender. He was also convicted of rape and sentenced to twenty years. We find that the proper interpretation of these two statutes is that Hill is ineligible for earned time allowance on the habitual and mandatory portion of his sentences.

Y.

Requirement of a hearing on post-conviction relief

¶ 17. The trial court did not grant Hill a hearing on his present pleadings. He argues that his suit should be considered under the post-conviction relief statutes, and that he was entitled to a hearing.

¶ 18. If this matter should be considered under the post-conviction relief statutes, then once the trial court concludes that it “plainly appears from the fact of the motion, any annexed exhibits and the prior pleadings in the case that the movant is not entitled to any relief,” then no hearing is needed. Miss.Code Ann. § 99-39-11 (Rev.2000). Examining those same materials, we find no need for the circuit court to have granted a hearing in this case.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DENYING POST CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


source: Caselaw Access Project

author: LEE, J.,

license: Public Domain

text:
    CEF ENTERPRISES, INC., Appellant, v. Terry BETTS, Appellee.
    No. 2002-CA-00570-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2003.

      David R. Sparks, Tupelo, attorney for appellant.
    Victor Israel Fleitas, Tupelo, attorney for appellee.
    Before KING, P.J., and LEE and IRVING, JJ.
   LEE, J.,

for the court.

¶ 1. CEF Enterprises, Inc. (CEF), parent company of Burger King Restaurants, appeals the judgment granted in favor of the Appellee, Terry Betts. The County Court of Lee County, after a bench trial, awarded Betts $1,249.83 in damages plus court costs. CEF appealed to the Circuit Court of Lee County where the judgment was affirmed. Aggrieved, CEF now appeals to this Court. Finding no error, we affirm.

FACTS

¶ 2. On July 27, 1998, Mr. Terry Betts purchased a biscuit and gravy breakfast from the drive-thru window of a Burger King Restaurant in Tupelo. Betts parked in the parking lot of the Burger King and began to eat his breakfast. Betts found a bug in his food, immediately got sick and vomited. He then entered the Burger King where he spoke to employees and informed them about the bug and asked to speak to a manager. According to Betts, the employees made no other response but to laugh and snicker at him. Aggravated at this, Betts told the employees he was going to his lawyer’s office and took the adulterated food item with him.

¶ 3. After stopping at his lawyer’s office, Betts went to the emergency room sometime later. There, he was treated for nausea and given suppositories. The hospital also found that Betts’s blood pressure was high. Betts went home and later that evening had to be driven to the hospital by his wife for additional treatment for the nausea and vomiting. According to Betts, his nausea and vomiting continued for approximately two to three more weeks.

¶ 4. Betts filed a complaint with the County Court of Lee County on August, 27, 1998. This complaint alleged that CEF breached its implied warranty of merchantability by allowing its food product to become contaminated with a bug.

¶ 5. In November of 2000, Betts filed a motion to amend his original complaint. Betts sought to add strict liability, negligence per se and negligence as legal theories in addition to his original complaint of breach of implied warranty of merchantability. He also sought to increase the ad damnum amount from $49,000 to $74,999. CEF filed a motion opposing this amendment and the county court held a pretrial hearing on the matter in January 2001.

¶ 6. During this hearing, CEF claimed this motion was not actually a motion to amend but a motion to supplement the original complaint. Additionally, inasmuch as two years had passed since the case was filed, CEF claimed it would be too prejudicial to grant the motion. The trial judge granted Betts’s motion on the ground that under M.R.C.P. 15, motions to amend are to be liberally allowed. He stated that since the trial date had not been set, it would not be too prejudicial to CEF to allow the amendment. In order to insure against any future prejudice against the defendant, any further discovery would be approved by the trial judge before it could proceed.

¶ 7. The trial took place in June of 2001 in the County Court of Lee County. Through his testimony, Betts claimed to have kept the contaminated biscuit in his freezer at home. Betts admitted to past blood pressure problems and told the court he had received no other medical or psychiatric care besides the two emergency room visits. Betts claimed no loss of wages as he had been unemployed for approximately eleven years. Also at trial, two Burger King employees testified they saw no bug in Betts’s biscuit. The same two Burger King employees plus an additional employee said they kept the adulterated food and threw it away. All of them said they saw Betts leave with nothing in his hand.

¶ 8. In his opinion, the trial judge found for Betts, stating there was sufficient proof of negligence and breach of implied warranty of merchantability in that the employees knew or should have known a bug was in their food product. He also held the biscuit in question was the direct cause of Betts’s illness. Stating the damages were not permanent in nature, not overly serious, or long term, the judge awarded Betts $1,249.83 plus costs of court.

¶ 9. CEF appealed this decision to the Circuit Court of Lee County, which affirmed the judgment of the county court. CEF now is seeking relief from this Court.

STANDARD OF REVIEW

¶ 10. The county court is the finder of fact, and we, like the circuit court, are bound by the judgment of the county court if supported by substantial evidence and not manifestly wrong. Patel v. Telerent Leasing Corp., 574 So.2d 3, 6 (Miss.1990). Such findings may not be disturbed on appeal provided there is substantial supporting evidence in the trial record. Dungan v. Dick Moore, Inc., 463 So.2d 1094, 1100 (Miss.1985).

ARGUMENT AND DISCUSSION OF LAW

¶ 11. CEF assigns the following issues on appeal: (1) the circuit court erroneously affirmed the judgment of the county court, said judgment not being supported by substantial evidence, (2) the lower court erred in allowing appellee to supplement/amend his complaint more than two years after the initial fifing of the complaint, (3) the lower court erred in awarding damages to appellee, there being insufficient proof to support such award, (4) the lower court erred in failing to reconsider the entry of the judgment awarded to appellee or, in the alternative, to grant appellant a new trial, and (5) the lower court erred by applying the wrong legal standard in making its decision. Finding that issues one, three and four are redundant, we will combine them into one main issue addressing the sufficiency of the evidence and the appropriateness of the damages awarded by the lower court.

I. WHETHER THERE WAS SUFFICIENT EVIDENCE IN THE TRIAL RECORD TO SUPPORT THE JUDGMENT OF THE LOWER COURT.

¶ 12. In the order issued by the county court judge, he found that under the proof presented at trial, two theories of law were applicable: negligence and breach of implied warranty for merchantability. This Court finds adequate evidence existed to support the trial judge’s findings with regard to both of these causes of action.

¶ 13. In order to prove negligence, Betts had to show that CEF owed him a duty, breached that duty, and proximately caused Betts’s injury and damages. Foster v. Bass, 575 So.2d 967, 972 (Miss.1990).

¶ 14. The implied warranty of merchantability is found in Miss.Code. Ann. § 75-2-314 (Rev.2002). This section provides in pertinent part: (1) a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind, (2) in the case of fungible goods, they are of fair average quality within the description, and (3) are fit for the ordinary purposes for which such goods are used.

¶ 15. To recover for breach of an implied warranty, the plaintiff must establish: (1) the defendant was a merchant which sold goods of the kind involved in the transaction, (2) that the defect was present when the product left the defendant’s control, and (3) the injuries to the plaintiff were caused proximately by the defective nature of the goods. See Vince v. Broome, 443 So.2d 23, 26 (Miss.1983); Crocker v. Sears, Roebuck & Co., 346 So.2d 921, 923-24 (Miss.1977).

¶ 16. CEF argues that Betts lacked sufficient evidence to meet the elements defined in both of these causes of action and the trial judge erred in finding it liable. The standard of review in determining the sufficiency of the evidence has been stated many times. The evidence is considered “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, then the Court is required to reverse and render.” Munford Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992) (citing Litton Systems, Inc. v. Enochs, 449 So.2d 1213, 1214 (Miss.1984)).

¶ 17. With this standard in mind, our focus turns to whether there was substantial evidence in the record for a judge to find that CEF was negligent and breached the implied warranty of merchantability with regard to the food product in question.

¶ 18. CEF argues there is not a “scintilla of evidence” to support Betts’s claim. CEF points to several discrepancies in the record regarding the testimony of Betts and the Burger King employees as its basis for this argument. CEF argues that since the Burger King employees saw no bug in the biscuit and stated they threw it away, Betts’s testimony is not credible. They assert the biscuit Betts presented at trial was not the one he purchased on the day in question, but one he purchased at a later date and then placed the insect inside of it. Additionally, they claim that since there is no medical testimony which conclusively links Betts’s illness to the biscuit in question, this cannot be the proximate cause of his illness.

¶ 19. In circumstances where testimony is conflicting, the trial judge sitting as trier of fact, is in the best position to weigh the testimony and decide which is more credible. Carter v. Carter, 735 So.2d 1109 (¶ 19) (Miss.Ct.App.1999). In this instance, the trial judge made specific findings regarding the conflicting testimony of the parties involved. The judge stated that “there was a bug in Plaintiffs food. The Court is further convinced this was not a fabricated story by Plaintiff, but that his version was more believable than that testimony opposed to his.”

¶ 20. He goes on to state CEF’s claim that it threw away the product was not logical, especially since Plaintiff stated that when he became ill he was going to see his lawyer. The judge explains that “logic would be that Defendant would have kept the alleged product as evidence to protect them in their defense from any lawsuit, knowing that Plaintiff was going to see his attorney.”

¶21. The judge also points out that while there was no expert medical testimony presented by Betts, he is “convinced, as any layperson who sat on the jury” that eating food where a roach is found, would induce nausea and vomiting. This is further supported by the hospital records which indicate that Betts got sick from eating part of a roach at Burger King Restaurant.

¶ 22. Moreover, there is a long line of Mississippi cases supporting the trial judge’s ruling. In cases where a defendant business sells to the public a food product, which is contaminated by an animal, insect or other foreign object, and an individual consumes that item and becomes ill after discovering the contamination, this alone is enough to establish liability on the part of the defendant. See Stevens v. Picayune Coca-Cola Bottling Co., 224 Miss. 871, 82 So.2d 453, 453 (1955) (customer became ill after drinking from a bottle containing a decomposing bug); Coca Cola Bottling Works of Columbus v. Petty, 190 Miss. 631, 631, 200 So. 128, 128 (1941) (customer became ill after drinking from a bottle containing “animal matter”); Blount v. Houston Coca Cola Bottling Co., 184 Miss. 69, 69, 185 So. 241, 241 (1939) (customer became ill after drinking from a bottle containing a decomposing mouse or bird); Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 71, 145 So. 726, 726 (1933) (customer became ill after eating contaminated can of tomatoes); Curtiss Candy Co. v. Johnson, 163 Miss. 426, 426,141 So. 762, 762 (1932) (customer became ill after eating a candy bar containing glass); Rainwater v. Hattiesburg Coca-Cola Bottling Co., 131 Miss. 315, 315, 95 So. 444, 444 (1923) (customer became ill after drinking from a bottle containing dead flies and other insects); Jackson Coca-Cola Bottling Co. v. Chapman, 106 Miss. 864, 864, 64 So. 791, 791 (1914) (customer became ill after drinking from bottle containing a decomposing mouse).

¶ 23. As to the issue of damages, the judge considered Betts’s medical expenses which were $249.83. He stated that a jury would have to determine damages in accordance with the proof, and he must do the same. He reasoned that since the injury was not permanent, not long term or overly serious in nature, a reasonable and fair judgment would be $1,249.83, plus court costs, in favor of Betts.

¶ 24. We find no fault in the trial judge’s reasoning. His findings of liability on the part of CEF, and the amount of damages awarded are supported by the evidence.

II. WHETHER THE LOWER COURT ERRED IN ALLOWING THE APPELLEE TO AMEND HIS COMPLAINT MORE THAN TWO YEARS AFTER THE INITIAL FILING OF THE COMPLAINT.

¶ 25. CEF alleges that the lower court erred by allowing Betts to amend his original complaint after the original filing to include additional theories of recovery and amend the ad damnum clause. The standard applied to the review of a decision to allow an amendment to the pleadings is abuse of discretion. Simmons v. Thompson Machinery of Miss., Inc., 631 So.2d 798, 800 (Miss.1994). Unless the reviewing court is convinced the trial court abused its discretion, it is without authority to reverse. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

1126. This issue centers around M.R.C.P. 15(a) and 15(d). Rule 15(a) states in part “a party may amend his pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires.”

¶27. In the comment to this rule, it also states that it is irrelevant if the amendment changes the cause of action or the theory of the case. Further, the comment explains: “In practice, an amendment should be denied only if the amendment would cause actual prejudice to the opposite party.” See 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, Civil § 1484 (2d ed.1990).

¶ 28. Rule 15(d) deals with supplemental pleadings. This rule states a pleading may be supplemented upon reasonable notice and upon just terms, “setting forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented.”

¶29. In its brief, CEF assigns two errors with regard to Betts’s amended complaint. First, CEF argues Betts’s motion to amend is actually a motion to supplement the original complaint. CEF argues that although motions to amend are to be liberally allowed, the court should not liberally allow motions to supplement under the guise of a motion to amend.

¶ 30. We disagree with CEF’s assertions. Like the trial court judge stated and as this Court holds, Rule 15(d) deals with the supplementation of additional, unforeseeable or latent injuries and not additional legal theories. Also, even if Betts’s amendment actually was a supplement, the standard for allowance was met by Betts. A supplement may be allowed if there was reasonable notice and just terms. Betts’s motion was made six months before trial. CEF had ample time to prepare for the additional legal theories. We find this argument is without merit.

¶ 31. Second, CEF claims, that even if this is an amendment, it is too prejudicial since the motion was filed two years after the original complaint. CEF relies on several cases to support its argument that the amended complaint should not be allowed. This Court finds that all of these cases are distinguishable from the case at bar.

1132. The first case CEF cites to is Rhodes v. Amarillo Hosp. Dist., 654 F.2d 1148 (5th Cir.1981). In this case, an amendment was sought thirty months after the filing of the complaint and the court denied the amendment. Id. at 1153. However, the basis of the court’s denial of the amended complaint was that the amendment was sought three weeks before trial and would ultimately prove futile. Id. at 1154. The facts of this case are contrary to the case at hand. When Betts filed his motion to amend, no trial date had been set. Since there was a six month period between the pretrial hearing and the actual trial, CEF had plenty of time to prepare for trial regarding the additional causes of action.

¶ 33. CEF also relies on William Iselin and Co. v. Delta Auction and Real Estate Co., 433 So.2d 911 (Miss.1983), to support its claim. Here again, the facts differ strongly from the present case. In Iselin, the court denied the requested amendment because it was submitted after the trial and the court had rendered its opinion. Id. at 912-13. In contrast, Betts submitted his motion well before trial and the judge only allowed further discovery if he approved it. There was no danger of unfair prejudice against CEF and these two cases are not comparable.

¶ 34. Finally, CEF relies on TXG Intrastate Pipeline Co. v. Grossnickle, 716 So.2d 991 (Miss.1997). This Court is surprised by CEF’s dependance on this case because, in our interpretation, it benefits Betts. In Grossnickle, the court held that not allowing an amendment three weeks before trial constituted an abuse of discretion by the trial court. Grossnickle, 716 So.2d at 1011-12. We fail to see how this case supports CEF’s claims.

¶ 35. Given that Betts filed the motion to amend some six months before the date of trial and the judge clearly considered any prejudice that might be levied against CEF by not allowing further discovery unless he approved it, we find the trial judge did not abuse his discretion by allowing the amended complaint.

¶ 36. Additionally, even if this Court agreed that the trial judge abused his discretion by allowing the amendment, we find it would be harmless error. The granting of the amendment to the original complaint had no bearing on the outcome of the case. In his order, the trial judge found CEF liable on two theories of law: negligence and breach of implied warranty of merchantability. One of these theories, breach of implied warranty of merchantability, was presented in Betts’s original complaint. Since this theory and negligence require the same type of proof, no prejudice existed in the trial judge’s decision allowing the amendment.

III. WHETHER THE LOWER COURT ERRED BY APPLYING THE WRONG LEGAL STANDARD IN MAKING ITS DECISION.

¶ 37. CEF argues the lower court erred by applying the legal standard of negligence and breach of warranty. CEF claims thé adulterated food laws, Miss. Code Ann. §§ 75-29-1 through 75-29-31 (Rev.2000), are the applicable standard. This Court finds this argument to be misplaced. CEF, more specifically, cites to § 75-29-3 of the Code which defines adulterated foods. It claims that, if applied, the adulterated food in question would pass the statutory requirements. Under the statute, Betts would have to show that Burger King purposely introduced the bug into the food or prove the substance would ordinarily render the food injurious to health. While true the evidence in the record would probably not pass this test, this Court finds this statute is not applicable to the present case.

¶ 38. First, these statutes deal more with sanctions available to the State Board of Health, rather than specific causes of action available to individuals. Miss.Code Ann. § 75-29-1 (Rev.2000). Second, it is clear from ease law interpreting § 75-29-3, the definition of adulterated food is only applicable to meat and poultry. King v. Mississippi Power & Light Co., 244 Miss. 486, 496, 142 So.2d 222, 226 (1962). Finally, nowhere in this statute does it state that a trial judge must apply this legal standard over any other that may be applicable.

¶ 39. In the present instance, both sides were allowed to present a post trial brief discussing the applicability of the adulterated food statutes. The trial judge was able to weigh this matter and determined it did not apply. This Court finds no error in his decision and agrees the appropriate legal standards were negligence and breach of warranty of merchantability.

¶ 40. As stated previously, our scope of review is limited and we must defer to the decision of the trial judge if it is supported by substantial evidence. In a bench trial, the judge sits as the finder of fact and he is in the best position to weigh the evidence and determine credibility. Even if this Court would have come to a different conclusion, our well established standard of review does not allow us to disturb the findings of the trial judge if reasonable minds could differ. With this in mind, we cannot say the county court judge was manifestly wrong in his decision and find substantial evidence existed to support his ruling.

¶ 41. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING AND MYERS, JJ., CONCUR. CHANDLER AND GRIFFIS, JJ., NOT PARTICIPATING.


author: BRIDGES, J.,

text:
    Janice KIRK, Appellant, v. K-MART CORPORATION, Self Insured, Appellee.
    No. 2002-WC-00026-COA.
    Court of Appeals of Mississippi.
    Feb. 25, 2003.

      John Hunter Stevens, Jackson, attorney for appellant.
    H. Byron Carter, III, Jackson, attorney for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Janice Kirk, the Appellant, comes before this Court appealing a judgment of the Circuit Court of Yazoo County, affirming a denial of permanent total disability benefits and medical treatment for her mental injury. Finding no error, we affirm.

FACTS

¶ 2. Janice Kirk was first employed by K-Mart Corporation on April 29, 1976, as a cashier. She was a dedicated employee and during her employment with K-Mart she was promoted to lead office manager. Beginning in 1991, she helped open a K-Mart store in Vicksburg and commuted from her home in Yazoo City for eight weeks. This assignment resulted in increased responsibilities and working hours. She missed her fortieth birthday party because she did not get home until late. It was at this time she started experiencing headaches and thereafter sought medical treatment.

¶ 3. In 1994, Kirk oversaw the closing of the old K-Mart store in Yazoo City and the simultaneous opening of the new store in Yazoo City. This was an experience she called stressful. She worked long hours, somewhere between fifty to ninety hours per week during the transition, and took on the duties of a personnel manager who had taken medical leave. Kirk said she was overwhelmed by the amount of responsibilities.

¶ 4. In 1995, Kirk’s car broke down on a deserted road. She was frightened and ran down the road crying and yelling. She felt something pop in her head, which caused her headaches to intensify. She reported that her headaches have not stopped since this time.

¶ 5. In June 1996, Kirk fell from a ladder at work and hit her head and hip. Since then her headaches have grown noticeably worse. Kirk was diagnosed with a mental illness identified as a major depression. She has not worked since.

¶ 6. Other stressful events in Kirk’s record include: (1) several brain surgeries due to her being run over by a tractor at the age of four; (2) attempted suicide as a teenager; (3) threatened suicide in 1996 prompting her admittance to Charter Hospital; (4) deaths in the family of two brothers and a sister during her employment at K-Mart; (5) an ailing mother and father-in-law; and (6) domestic violence by her first husband.

PROCEDURAL HISTORY

f 7. Janice Kirk filed a petition to controvert with the Mississippi Workers’ Compensation Commission on June 11, 1998. Pursuant to statute, a hearing on the merits was held before the administrative law judge on June 26, 2000.

¶ 8. At trial, the administrative law judge heard testimony from Kirk; her husband, Douglas Kirk; and Kirk’s coworker, Marcia Henry. In addition to the above facts, Kirk testified that she liked working at K-Mart and she would return if she could. She also said, because of all the medication she was taking, she could not remember everything she told the doctors. Mr. Kirk’s testimony corroborated that of his wife’s.

¶ 9. Marcia Henry stated that she worked with Kirk while opening the new store in Yazoo City. She told the court they both worked long hours, sometimes ninety a week, but that after the new store opened, Kirk returned to working fifty to sixty hours per week. It was after this period that Henry first noticed Kirk’s headaches. She also said that Kirk was a dedicated employee and that there were occasions when Kirk came to her in tears complaining about her headaches.

¶ 10. Medical records from all of Kirk’s doctors were introduced into evidence. Dr. Faiza Jones, Kirk’s treating physician at Warren-Yazoo Mental Health Services, and her therapist, Mrs. Angela Street, both were of the opinion that Kirk’s major depression was caused or contributed to by her stressful working environment at K-Mart. In their view, which is uncontra-dicted, stress related to her work appeared to have triggered a pattern of debilitating headaches, which triggered Kirk’s mental illness. Both also were of the opinion that the physical injury she suffered in June 1996 “may have also been a contributing cause in exacerbating the pattern of headaches.” Dr. Jones and Mrs. Street felt that Kirk was totally disabled from work.

¶ 11. K-Mart admitted the physical injury, but denied Kirk’s psychological condition was work-related and further asserted the two year statute of limitation precluded Kirk’s case from being brought.

¶ 12. In his order, dated February 23, 2001, the administrative law judge found Kirk’s claim was not time barred and awarded benefits as follows: (1) temporary disability payments for Kirk’s physical injury sustained when she fell from the ladder at work, and (2) permanent total disability benefits for Kirk’s psychological injuries in the amount of $264.55 each week, beginning October 16, 1996, and continuing for 450 weeks.

¶ 13. On March 15, 2001, K-Mart filed a petition for review of the administrative law judge’s final order asserting it was not supported by clear and convincing evidence. On August 6, 2001, a Full Commission hearing was granted based on K-Mart’s petition for review. The Commission issued its order on August 20, 2001, affirming the administrative law judge’s order as it pertained to Kirk’s physical injury, but reversed and set aside the part of the order finding Kirk entitled to permanent total disability benefits and medical treatment for her mental injury.

¶ 14. Kirk appealed the Commission’s order to the Yazoo County Circuit Court, which upheld the decision of the Commission. Kirk then perfected her appeal with this Court. She asserts the lower court erred in upholding the Commission’s order because it is contrary to law, against the overwhelming weight of the evidence, and the wrong burden of proof was applied by the circuit court.

DISCUSSION OF THE ISSUE

I. WHETHER THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION’S DECISION WAS SUPPORTED BY SUBSTANTIAL EVIDENCE?

¶ 15. This appeal comes from the Yazoo County Circuit Court; however, the decision of the Commission is that which is actually under review for all practical purposes. Walden Lumber Yard v. Miller, 742 So.2d 785, 788(¶7) (Miss.Ct. App.1999). Our standard of review in worker’s compensation cases is long-standing and our scope is limited. In reviewing a decision of the Workers’ Compensation Commission, this Court gives great deference to the Commission’s determination and will only reverse it for an error of law, or when its decision is not supported by substantial evidence. Cornacchione v. Forrest County General Hospital, 755 So.2d 422, 424(¶ 12) (Miss.Ct.App.1998). As long as substantial evidence from the record exists which supports the findings of the Commission, then this Court is obligated to affirm that decision, even though we may have come to a different conclusion. Lucas v. Angelica Uniform Group, 733 So.2d 285, 287(¶ 8) (Miss.Ct.App.1998). The Commission is the finder of fact, and determines the weight and credibility to be accorded the evidence, and this Court is bound to accept that determination. City of Laurel v. Blackledge, 755 So.2d 573, 576(¶ 20) (Miss.Ct.App.2000); Comac-chione, 755 So.2d at 425(¶ 17). In other words, this Court will reverse the Commission’s order only if it is clearly erroneous and contrary to the overwhelming weight of the evidence. Myles v. Rockwell International, 445 So.2d 528, 536 (Miss.1983).

¶ 16. While Kirk assigns several errors to the lower court in her brief, the only real issue before this Court is if substantial evidence existed in the record to support the findings of the Workers’ Compensation Commission. We answer in the affirmative.

¶ 17. To recover benefits for a mental injury, Kirk must prove that her disabling mental injury was caused, contributed to or aggravated by a work-related physical injury. If the injury is unaccompanied by physical trauma, the burden of proof heightens. Kirk must prove by clear and convincing evidence that she suffers from a disabling mental injury which was either caused, contributed to or aggravated by some unusual occurrence or untoward event in order to be compensable. Stated differently, she must show something more than the ordinary incidents of employment occurred. Miss.Code Ann. § 71-3-3(b) (Rev.2000); Bates v. Countrybrook Living Center, 609 So.2d 1247, 1248-49 (Miss.1992); Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988); Myles, 445 So .2d at 537.

¶ 18. Kirk asserted that her disabling mental injury was sufficiently aggravated by the physical injury she suffered when she fell from a ladder at work. The Commission disagreed with Kirk’s assertion. The reasoning given concerned the medical evidence produced by Kirk. In the record, both Dr. Jones and Mrs. Street were of the opinion that this fall “may” have aggravated the pattern of headaches Kirk was suffering. The Commission, in considering this particular question, placed particular importance on the use of the word “may.” It stated the opinion of the doctors “does not sound to us in terms of reasonable and dependable medical probabilities, but merely in terms of possibility.”

¶ 19. This Court agrees with this conclusion. It is well settled that proof of causal connection must rise above mere possibility. Fought, 523 So.2d at 317. Especially, this is so in cases of this type, which require expert medical opinion to help establish causation. V. Dunn, Mississippi Workers’ Compensation Commission § 273 (3d ed.1982). This Court finds, like the Commission and the Circuit Court of Yazoo County, that a more definite medical opinion is required to substantiate Kirk’s claim.

¶ 20. Kirk further asserts that' even if the physical injury she sustained did not cause her mental injury, her mental injury is still work-related and caused by something other than the ordinary incidences of employment. The administrative law judge found that Kirk’s stresses of working extraordinarily long hours while closing one K-Mart store and opening another in the first part of 1994, coupled with performing the two jobs of office manager and personnel manager amounted to something more than the ordinary incidents of her employment. He went on to say that Kirk had met her burden of proof through Dr. Jones’s opinion that over time Kirk’s headaches triggered severe depression.

¶ 21. The Commission overruled the order of the administrative law judge stating that: (1) the evidence was not convincing of the fact that Kirk consistently worked eighty to ninety hours per week as she claimed; (2) that although Kirk performed additional duties during the period when K-Mart was in transition from its old store to the new store in Yazoo City, she was not without help; (3) the testimony of Kirk’s co-worker established that the requirements of Kirk’s job were not unusual, given her managerial role; and (4) the coworker further established the conditions of Kirk’s employment were not unlike others involved in the transition.

¶ 22. Additionally, the Commission cited to a recent case decided by this Court, Smith v. City of Jackson, 792 So.2d 335 (Miss.Ct.App.2001). In Smith, an employee at the City of Jackson Police Department developed a mental injury due to the fact that he was left alone for several weeks in the evidence department when one of his co-workers retired and the other took medical leave. Smith, 792 So.2d at 336 — 37(¶ 3). The stress of doing the work alone overwhelmed the employee. Id. In that case, we noted that people work in stressful situations all the time. Id. at 338(¶ 10). Employees experience many external pressures, such as death, illness and retirement, which cause stress in the workplace. Id. These events do not elude the everyday worker. Id. Additionally this Court held:

It is clear from the record that doing the job alone was difficult for Smith. We will even agree that Smith’s mental injuries stemmed from this stressful situation. But, will we go so .far as to say that his circumstances were extraordinarily unusual? We cannot. As such, we must affirm the decision of the Commission and the lower court as we find that their conclusions were supported by sufficient evidence.

Id. at 339(¶ 15). We agree with the Commission that, like the employee in Smith, Kirk’s working conditions were not extraordinarily unusual. We believe Kirk suffers from a mental illness and that her situation at K-Mart was stressful. However, given our limited scope of review, Kirk’s history of mental illness and the external stresses in her life, we cannot say that her work caused her mental illness. The Commission’s finding that no employment related events or incidents involving Kirk can be fairly labeled as extraordinary or unusual given the nature of her position with K-Mart, is a sound one and not against the overwhelming weight of the evidence.

¶23. Accordingly, this Court affirms the decision of the circuit court upholding the Commission’s order, as the evidence demonstrates no clear error.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY UPHOLDING THE DECISION OF THE WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR. LEE, J., NOT PARTICIPATING.


author: SEE, Justice.

text:
    BAY LINES, INC. v. STOUGHTON TRAILERS, INC., et al.
    1001163.
    Supreme Court of Alabama.
    Feb. 15, 2002.
    Rehearing Denied June 14, 2002.

      Gilbert L. Fontenot of Fernandez, 01-linger, Combs & Fontenot, L.L.C., Mobile (reply brief filed by Gilbert L. Fontenot of Maples & Fontenot, L.L.P., Mobile), for appellant.
    Christopher G. Hume III and Ben H. Harris II of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for appellee Stough-ton Trailers, Inc.
    William H. Hardie and Lawrence J. Setter of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellees Crane Co. and Dyrotech Industries, Inc.
   SEE, Justice.

Bay Lines, Inc., a trucking company, leased and then subsequently purchased a number of freight trailers from a dealer who sold trailers built by Stoughton Trailers, Inc. The lease for the first trailers began in July 1991; Bay Lines eventually purchased those trailers when the lease expired in July 1996. A second lease began on May 1, 1992, and Bay Lines subsequently purchased the trailers that were the subject of that lease in May 1997. In May 1993, Bay Lines purchased several trailers directly from Stoughton.

Stoughton built each trailer using fiberglass reinforced polycore side panels manufactured by Crane Co., through Crane’s Dyrotech Industries, Inc., division, which was doing business as Cor Tec Company. Bay Lines alleged that in late 1998 the fiberglass panels on the trailers delaminat-ed, and that it notified Stoughton of the failure at that time. On January 14, 2000, Bay Lines sued Stoughton and Crane, alleging breach of express warranty, breach of implied warranty, negligent or wanton manufacture, Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”) claims, breach of a third-party contract, and revocation of acceptance. Stoughton filed a Rule 12(c), Ala. R. Civ. P., motion for a judgment on the pleadings, which the trial court granted. Crane moved to dismiss under Rule 12(b)(6), Ala. R. Civ. P., alleging that Bay Lines had faded to state a claim on which relief could be granted, and the trial court granted Crane’s motion. Bay Lines moved for a reconsideration of the Rule 12(b)(6) dismissal; the trial court granted that motion. On April 26, 2000, after further reconsideration, the trial court again dismissed the complaint as to Crane.

Bay Lines amended its complaint, again asserting claims against Crane and Stoughton, and also asserting claims against Dyrotech and Cor Tec (hereinafter referred to collectively as “Dyrotech”). Bay Lines asserted in its amended complaint that “Defendant Dyrotech Industries, Inc. ... is a wholly owned subsidiary of Defendant Crane Co. Dyrotech does business as ‘Crane Cor Tec,’ and Dyrotech holds out ‘Crane Cor Tec’ as [its] ‘division.’ ” Bay Lines asserted against all of the defendants an AEMLD claim, negligent or wanton manufacture and assembly of the freight trailers, and breach of an express warranty. Bay Lines also alleged against Dyrotech a claim based on the breach of the contract between Dyrotech and Stoughton, arguing that Bay Lines was a third-party beneficiary of any warranties given by Dyrotech to Stoughton. Against Stoughton alone Bay Lines alleged revocation of acceptance.

The amended complaint alleged that the panels manufactured by Dyrotech failed in late 1998 and that Stoughton was informed of the failures. Bay Lines alleged that the panels “contained” warranties, but that these warranties were not delivered to Bay Lines when the trailers were leased or purchased.

Two warranties were included as exhibits to the amended complaint. The “Clad-Tuff’ warranty states:

“LIMITED 10-YEAR WARRANTY “CLAD-TUFF
“Cor Tec Company warrants that all standard Clad-Tuff panels, under normal use and service, shall be free from delamination of the fiberglass reinforced plastic skin due to defects in material and workmanship for a period of 10 years from date of shipment, provided that Cor Tec is given immediate notice of such delamination and reasonable opportunity to examine the alleged defect.
“Due to the variety of uses and applications for Cor Tec products, it is the responsibility of the user to determine the suitability of Cor Tec products for their particular application. Proper installation is the responsibility of the customer, and Cor Tec assumes no responsibility for faulty or improper installation of their products.
“This warranty excludes damages due to misuse, negligence, mishandling, accident, mechanical abuse, fire or other casualty and is limited to the original equipment purchaser.
“Cor Tec will repair, provide one replacement panel or, at its option, refund the purchase price of any standard CLAD TUFF, CLAD FOAM or SUPE-ROOF panel found to be defective under this warranty.
“In no event shall Cor Tec be liable for incidental, consequential or special damages resulting from the use, service, or failure of any CLAD TUFF panel.
“In the event that a defect does occur in a panel, call or write Cor Tec Company, Customer Service Department, 2351 Kenskill, Washington Court House, Ohio, 43160. Phone 1-800-879-4377. “THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR APPLICATION. EFFECTIVE FEBRUARY 1,1987.”

(Capitalization in original.)

The second warranty that Bay Lines alleges applies appears on the reverse side of an invoice from “Cor Tec Company,- a division of Dyrotech Industries, Inc.,” to Stoughton for 15 sets of panels sold in 1993. That invoice provides:

“14. WARRANTIES. The products are warranted by Seller as follows: (a) Seller has the right to sell the Products, (b) Buyer and its customers shall have the right to enjoy the Products free of claims of third persons against Seller, and (c) The Product shall be free from manufacturing defects upon delivery in material and workmanship as described in Seller’s product specification sheets and quality assurance criteria sheets: This does not apply to any Product which has been tampered with, improperly stored, exposed to extreme heat or moisture, or otherwise subject to misuse or abuse.
“THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
“Except as otherwise agreed to in writing in each specific instance, the obligation of Seller is limited: (i) in the case of any material breach of the warranties set forth in subparagraphs (a) and (b) above, to the reimbursement of the price paid by Buyer or its customer for such Product; and (ii) in the case of any breach of the warranty set forth in subparagraph (c) above, to any of the following (at Seller’s option); refund of the purchase price, or repair, or replacement of any such defective Product without charge other than for transportation.
“15. WARRANTIES CONTINUED. Seller shall not in any event be liable for incidental, consequential or special damages resulting from any use or failure of the Products, including without limitation, liability for loss of time to, profits of Buyer or the user or for any labor or any other expense, damage or loss occasioned by any such defect.
“16. ARBITRATION. Any controversy arising under, or in any way related to this order or the subject matter hereof shall be settled by arbitration by three disinterested arbitrators in the City and State of New York, and under the laws of said State, in accordance with the rules of the American Arbitration Association then obtaining. All costs of such arbitration, and any proceedings directly or indirectly related thereto, including reasonable attorney’s fees, shall be paid by the party against whom the arbitrator shall render their award or as otherwise directed by the arbitrators.
“17. LAW. The Contract shall be governed and construed under the laws of the State of Illinois for Kemlite Products and the State of Ohio for Cor Tec Products.”

Stoughton again moved under Rule 12(c), Ala. R. Civ. P., for a judgment on the pleadings as to all claims asserted against it in the amended complaint; that motion was granted. Crane moved to strike the claims against it asserted in the amended complaint on the ground that comparable claims had already been dismissed, and because, it argued, the amended complaint was time-barred. Dyrotech moved to dismiss the claims asserted against it in the amended complaint under Rule 12(b)(6), Ala. R. Civ. P. The trial court granted Crane’s motion to strike and Dyrotech’s motion to dismiss, and dismissed the action in its entirety as to both Crane and Dyrotech.

Bay Lines appeals from these dismissals, alleging that the trial court erred (1) in determining that the term “original equipment purchaser” in the “Clad-Tuff’ warranty was unambiguous, and in its holding that the Clad-Tuff warranty did not cover the claims asserted by Bay Lines; (2) in holding that the Clad-Tuff warranty did not include the future performance of the goods, and that the statute of limitations, § 7-2-725(1), Ala.Code 1975, therefore expired before Bay Lines brought its express-warranty claims against Crane and Dyrotech; (3) in dismissing the express-warranty claim against Dyrotech; (4) in finding that the economic-loss rule prevented Bay Lines from recovering in tort for damage that was only to the product itself; (5) in striking the amended complaint against Crane, when the amended complaint was filed within 10 days of a revised motion to dismiss and added a new claim of third-party breach of contract against Crane; and (6) in dismissing the third-party breach-of-contract claim against Crane and Dyrotech. Bay Lines identifies in the negative the claims as to which it appeals; that is, it lists the claims that it does not appeal, and allows this Court to infer that it is appealing as to all other claims. It appears that Bay Lines appeals as to the express-warranty claims against Dyrotech and Crane, the negligence and/or wantonness claims against Stoughton, Crane, and Dyrotech, and the third-party-contract-beneficiary claims against Dyrotech and Crane.

The decision to grant a motion to strike under Rule 12(c), Ala. R. Civ. P., is proper when the trial court determines that the material facts are not disputed. McCullough v. Alabama By-Products Corp., 343 So.2d 508, 510 (Ala.1977). This Court reviews de novo a ruling on a motion to strike and views the facts in the complaint in the light most favorable to the nonmoving party. Willis v. Shadow Lawn Mem’l Park, 709 So.2d 1241, 1242 (Ala.Civ.App.1998).

This Court must review de novo the propriety of a dismissal for failure to state a claim and must resolve all doubts in favor of the plaintiff:

“It is a well-established principle of law in this state that a complaint, like all other pleadings, should be liberally construed, Rule 8(f), Ala. R. Civ. P., and that a dismissal for failure to state a claim is properly granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief. Winn-Dixie Montgomery, Inc. v. Henderson, 871 So.2d 899 (Ala.1979)....
“Where a 12(b)(6) motion has been granted and this Court is called upon to review the dismissal of the complaint, we must examine the allegations contained therein and construe them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff. First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala.1981). In so doing, this Court does not consider whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Kara-gan v. City of Mobile, 420 So.2d 57 (Ala.1982).”

Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985).

Warranty Claims

Express warranties are interpreted according to general contract principles. Ex parte Miller, 693 So.2d 1372 (Ala.1997).

“The construction of a written instrument is a function of the court. Federal Land Bank of New Orleans v. Terra Resources, Inc., 373 So.2d 314 (Ala.1979). Whether an agreement is ambiguous is a question of law for the trial court. When its terms are clear and certain, the court, and not the jury, has the duty to determine the meaning of the agreement. Haddox v. First Alabama Bank of Montgomery, N.A., 449 So.2d 1226 (Ala.1984). In order to ascertain the intention of the parties, the clear and plain meaning of the terms of the agreement are to be given effect, and the parties are presumed to have intended what the terms clearly state. Id.”

Terry Cove North, Inc. v. Baldwin County Sewer Auth., Inc., 480 So.2d 1171, 1173 (Ala.1985).

Crane’s Clad-Tuff warranty was given to Stoughton when Stoughton purchased the Clad-Tuff panels to build its trailers. The clear and unambiguous language of that warranty is that, “This warranty ... is limited to the original equipment purchaser.” The “equipment” discussed in the warranty is the Clad-Tuff panels, as indicated by the repeated references to Clad-Tuff panels in the text of the warranty and also by the heading above the text. The plain meaning of the term “original equipment purchaser” is the person or company that first purchased the Clad-Tuff panels from Crane.

Bay Lines argues that “original equipment purchaser” refers to the party that first purchased the completed trailers; however, that would be true only if Stoughton had issued the warranty to its purchasers. Because Crane undisputedly issued the warranty to Stoughton, the trial court correctly determined that under the plain meaning of the term “original equipment purchaser,” Stoughton — not Bay Lines — was the original equipment purchaser of the Clad-Tuff panels. Bay Lines, therefore, cannot assert a claim under Crane’s Clad-Tuff warranty. Moreover, “[a] party claiming to be a third-party beneficiary of a contract must establish that the contracting parties intended, upon execution of the contract, to bestow a direct, as opposed to an incidental, benefit upon the third party.” Weathers Auto Glass, Inc. v. Alfa Mut. Ins. Co., 619 So.2d 1328, 1329 (Ala.1993). Bay Lines presented no evidence indicating that Crane knew, when it sold the panels to Stoughton, that Bay Lines was a purchaser of Stoughton’s products, or that Crane intended to protect future customers of Stoughton, such as Bay Lines, when it warranted its products to Stoughton. Bay Lines, therefore, cannot rely on the warranty to support its claim against Crane.

A similar analysis applies to the “invoice warranty” from Dyrotech to Stoughton. Cor Tec, as a division of Dyro-tech, issued the invoice for 15 sets of panels it sold Stoughton in 1993. At most, therefore, the invoice warranty can apply only to the 1993 sales of 15 sets of panels, and not to any previous or subsequent sales. More importantly, Bay Lines claims that this warranty extends to Stoughton’s customers and, thus, to Bay Lines. This assertion misconstrues the language of the warranty.

Paragraph 14(b) of the invoice warranty grants a warranty of title to the “Buyer and its customers.” Paragraph 14(b) is the only paragraph of the warranty that grants any warranty to a party farther down the distribution chain than the original purchaser from Dyrotech. Bay Lines, however, does not raise a warranty-of-title claim in its amended complaint. Instead, Bay Lines claims defects, not in the title, but in the product itself. Bay Lines’ claim, therefore, must arise, not under paragraph 14(b), but under paragraph 14(c) of the warranty, which addresses defects upon delivery to the Buyer. However, paragraph 14(c), unlike paragraph 14(b), does not extend to subsequent purchasers. Therefore, Bay Lines cannot rely on the invoice warranty as the basis for its claims against Crane.

The standard of review for analyzing the granting of a motion to strike is the same as the standard of review for analyzing the granting of a motion to dismiss, a de novo standard in which doubts are to be resolved in favor of the nonmoving party. Under this standard of review, we conclude that the trial court correctly held that neither the Clad-Tuff warranty nor the invoice warranty applies to Bay Lines and that the trial court therefore properly dismissed Bay Lines’ warranty claims. We, therefore, affirm the trial court’s dismissal of all claims of breach of warranty.

Tort Claims

Bay Lines argues that the trial court erred in dismissing its negligence or wantonness claims. “[0]ne cannot recover in tort for negligent manufacture of a product where the only injury is to the product itself. See Dairyland Ins. Co. v. General Motors Corp., 549 So.2d 44, 46 (Ala.1989).” Ex parte Grand Manor, Inc., 778 So .2d 173, 178 (Ala.2000)(footnote omitted). This Court has explained:

“ ‘When a product injures only itself the reasons for imposing a tort duty are weak and those for leaving the party to its contractual remedies are strong.
“ ‘The tort concern with safety is reduced when an injury is only to the product itself. When a person is injured, the “cost of an injury and the loss of time or health may be an overwhelming misfortune,” and one the person is not prepared to meet. Escola v. Coca-Cola Bottling Co., 24 Cal.2d [453] at 462, 150 P.2d [436] at 441 (concurring opinion). In contrast, when a product injures itself, the commercial user stands to lose the value of the product, risks the displeasure of its customers who find that the product does not meet their needs, or, as in this case, experiences increased costs in performing a service. Losses like these can be insured. See 10A Couch on Insurance §§ 42:385-42:401, 42:414-17 (2nd ed.1982); 7 Benedict on Admiralty, Form No. 1.16.7 (7th ed.1985); 5A Appleman, Insurance Law and Practice § 3252 (1970).’ ”

Lloyd Wood Coal Co. v. Clark Equip. Co., 543 So.2d 671, 673 (Ala.1989).

Bay Lines claims that defects in the panels caused it to suffer the loss of its investment in the trailers and an additional loss that resulted from the loss of the trailers, including having to purchase replacement trailers and having to pay its customers for such problems as delayed shipping and damaged freight. Those increased costs of doing business and customer displeasure are precisely the sorts of risks that can be considered before entering into a contract and that can be allocated in the contract. We should refrain from permitting tort actions when the basis for the claims should properly be dealt with between the parties under the law of contracts. Lloyd Wood Coal, supra. Applying the proper de novo standard of review for the dismissal of those claims, we affirm the trial court’s dismissal of all the tort claims asserted against Stoughton, Crane, and Dyrotech for the injury claimed here.

Thirdr-Party Breach-of-Contract Claims

Finally, Bay Lines argues that it was error to dismiss its third-party breach-of-contract claims when it filed them within the time required by Rule 78, Ala. R. Civ. P. The trial court did not dismiss those claims solely because they fell outside the 10-day period permitted by Rule 78, but also because they fell outside of the 6-year statute-of-limitations period for contract claims. See § 6-2-34(9), Ala. Code 1975. The contracts to which Bay Lines alleges it was a third-party beneficiary were contracts for the sale of the panels to Stoughton; those contracts were all completed before May 1993. The claims filed in January 2000 were, therefore, more than six years after the dates of the completion of the contracts and were therefore time-barred. “[I]f a [judgment] correctly determines a case, the reasons on which the trial court acted are unimportant and the case will be affirmed.” City of Montgomery v. Couturier, 373 So.2d 625, 627 (Ala.1979), citing Clanahan v. Morgan, 268 Ala. 71, 74, 105 So.2d 429 (1958). We, therefore, affirm the trial court’s judgment dismissing and striking the claims for third-party breach of contract. For the foregoing reasons, the trial court’s judgment is affirmed.

AFFIRMED.

MOORE, C.J., and BROWN, HARWOOD, and STUART, JJ., concur.

      . Cor Tec is an unincorporated division of Dyrotech. It is not named as a party to this appeal.


author: JOHNSTONE, Justice.

text:
    Ex parte Willard H. CAIN. (In re Willard H. Cain v. Chandeleur Homes, Inc.)
    1001030.
    Supreme Court of Alabama.
    June 14, 2002.

      Timothy L. Dillard and Allwin E. Horn IV of Dillard & Associates, L.L.C., Birmingham; and Hugh E. Holladay, Pell City, for petitioner.
    R. Stan Morris, Birmingham, for respondent.
   JOHNSTONE, Justice.

Willard Cain petitions this Court for a writ of mandamus directing the St. Clair Circuit Court to vacate its order compelling Cain to arbitrate his claims against Chandeleur Homes, Inc. Because the evidence does not show the existence of a contract to arbitrate, we issue the writ.

On March 27, 2000, Cain purchased a new manufactured home, manufactured by Chandeleur Homes, Inc. On November 15, 2000, Cain sued Chandeleur Homes for fraudulent misrepresentation and breach of express and implied warranties “in that the said new home was not constructed in a workmanlike manner and contained numerous defects in the workmanship and materials.... ” (Exhibit A to Petition.)

Moving the trial court to compel Cain to arbitrate his claims, Chandeleur argued:

“Each and every Chandeleur home comes with a written factory warranty, which is Chandeleur’s only contract with the owner. The affidavit of David Bridges, Sales Manager of Chandeleur Homes, states that a copy of this contract of warranty, attached hereto as Exhibit ‘A,’ is placed in an accessible and safe place within the home as is required by law. Chandeleur places the warranty contract in one of the kitchen drawers in each and every home that it manufactures inside an envelope that also contains the Manufactured Home Owners Manual. Attached as Exhibit ‘B’ is a copy of one of the pages of the Homeowner’s Manual which places conditions on the warranty contract with the owner. Among these conditions is that all claims or controversies are to be submitted to arbitration, and that the owner waives any right to a jury trial.
“Plaintiffs have ratified and affirmed the warranty contract with Chandeleur by filing this lawsuit and alleging breach of this warranty therein. Plaintiffs may not pick and choose which portions of the warranty contract with Chandeleur they wish to obtain benefits under while simultaneously avoiding other provisions they do not wish to be bound by.
“Under the authority of Southern Energy Homes, Inc. v. Ard, [772 So.2d 1131 (Ala.2000)], all of Plaintiffs claims against Chandeleur are to be arbitrated.”

(Motion to Compel Arbitration, Exhibit C to Petition; emphasis added.) In support of Chandeleur’s motion to compel arbitration, Chandeleur submitted an affidavit by its sales manager, David Bridges; an affidavit by its purchasing manager, Andrew Joseph Schmidt; a copy of a “Limited One Year Service Warranty”; and a copy of one page from a “homeowner’s manual” containing an arbitration provision. The page from the manual (not the warranty) reads, in toto:

“A Special Word to you, the Manufactured Home Owner
“The National Manufactured Housing Construction and Safety Standards Act of 1974 was enacted to improve the quality and durability of manufactured homes ánd to reduce the number of injuries and deaths caused by manufactured home accidents. The Federál manufactured home construction and safety standards issued under the Act govern how manufactured homes must be constructed. Your manufactured home was manufactured to the standards. The standards cover the planning and construction of your homes. They were developed so that you would have a safe, durable home. The standards do not cover such aspects of the manufactured home as furniture, carpeting, certain appliances, cosmetic features of the home and additional rooms or sections of the home that you have added.
“The Act provides that if for some reason your manufactured home is found not to meet the standard or to contain safety hazards, the manufacturer of the manufactured home must notify you of that fact. In some cases where there is a safety hazard involved, the Act requires the manufacturer to correct the manufactured home at no cost to you or to replace the home or refund all or a percentage of the purchase price. If you believe you have a problem for which the Act provides a remedy, you should contact the dealer, the manufacturer, the manufactured home agency in your state (see the list on page 23 of this manual), or the Department of Housing and Urban Development. Our address is printed on the front cover of this manual. We recommend that you contact either your dealer or us first, because that is the quickest way to have your complaint considered.
“All disputes, claims or controversies arising from or relating to this Contract or the parties thereto should be resolved by binding arbitration by one arbitrator selected by you with my consent. This agreement is made pursuant to a transaction in interstate commerce and shall be governed by the Federal Arbitration Act at 9 U.S.C. Section 1. Judgment upon the award rendered may be entered in any county having jurisdiction. The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties understand that they have a right to litigate disputes in court, but that they prefer to resolve their disputes through arbitration, except as provided herein, THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION BY YOU (AS PROVIDED HEREIN). The parties agree and understand that all disputes arising under case law, statutory law, and all other laws including, but not limited to, all contract, tort and property disputes will be subject to binding arbitration in accord with this Contract. The parties agree that the arbitrator shall have all powers provided by law, the Contract and the agreement of the parties. These powers shall include all legal and equitable remedies including, but not limited to, money damages, declaratory relief and injunc-tive relief. Notwithstanding anything hereunto the contrary, you retain an option to use judicial relief (filing a lawsuit) or non-judicial relief to enforce a security agreement relating to the Manufactured Home secured in a transaction underlying this arbitration agreement, to enforce a monetary obligation secured by the Manufactured Home or to foreclose on the Manufactured Home. The institution and maintenance of a lawsuit to foreclose upon any collateral, to obtain a monetary judgment, or to enforce the security agreement shall not constitute a waiver of the right to any party to compel arbitration regarding any other dispute or remedy subject to arbitration in the Contract including the filing of a counterclaim in a suit brought by you pursuant to this provision.
“To assist us should we need to contact you, please insure that the dealer has filled out and mailed the first part of the Owner Registration Card which we have provided.”

(Exhibit G to Petition; capitalization in original.) The “Limited One Year Service Warranty,” a separate document from the page of the homeowner’s manual, does not contain any arbitration provision and does not contain any reference to any arbitration provision in the homeowner’s manual. The “Limited One Year Service Warranty” reads, in pertinent part:

“CHANDELEUR HOMES, INC., the manufacturer, warrants that it will remedy substantial defects in materials or workmanship in the new manufactured home identified above in the manner and to the extent stated in this limited service warranty.
“LEGAL RIGHTS: This warranty gives you specific legal rights and you may also have other rights which vary from state to state. This limited service warranty does not exclude any implied warranties to which you are entitled under state law, but any such warranties are limited to the time periods during which service will be provided by Chan-deleur under this limited service warranty. Some states do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.
“This limited warranty is intended to comply with the requirements of the Magnuson Moss Warranty Act, regulations of the Federal Trade Commission issued thereunder, and any future inquiry which you make. Chandeleur Homes needs you to register the purchase of your home with us, this is not necessary, however, for your warranty to be in effect.”

(Exhibit F to Petition; emphasis added.) The warranty is not signed by either party, although it contains a blank signature line and a blank date line at the end of the document. (Exhibit F to Petition.)

In an affidavit, Chandeleur’s Sales Manager David Bridges swore:

“As part of my duties, I manage the service department of Chandeleur Homes. Among our files, which are kept in the normal and customary method of our business, is the service file for the home made the basis of this lawsuit which contains information concerning repairs made to the home. I have reviewed the house file on this home, and note that warranty repairs were made to this home by the dealer, Johnnie’s Homes, Inc. I have also reviewed the lawsuit filed against Chandeleur in this case and note that there is a claim for breach of written warranty.
“Each and every Chandeleur home comes with a written factory warranty, which is our only contract with the owner. A copy of this contract of warranty is attached hereto as Exhibit ‘A’. Our warranty does not warrant the home to be free from defects. Our warranty instead provides that we will repair defects in the home that are reported to us.
“As required by law, our written warranty contract is placed in an accessible and sáfe place within the home. We place the warranty contract in one of the kitchen drawers in each and every home that we manufacture inside an envelope that also contains the Manufactured Homeowners Manual. Attached as Exhibit ‘B’ is a copy of one of the pages of the Homeowner’s Manual which places certain conditions on the warranty contract with the owner. Among these conditions is that all claims or controversies are to be submitted to arbitration, and that the owner waives any right to a jury trial.”

(Exhibit D to Petition; emphasis added.) In another affidavit, Chandeleur’s Purchasing Manager Andrew Joseph Schmidt swore:

“Chandeleur Homes, Inc., a Michigan Corporation with its principal offices in Boaz, Alabama is a subsidiary of Champion Enterprises, a publicly traded corporation. Chandeleur sells manufactured homes in several southern states, including Alabama. I am familiar with the process involved with the manufacturing of one of our homes, and can state that there are numerous components that go into one of our homes which are manufactured outside the state of Alabama and which are shipped into the state of Alabama via interstate commerce for inclusion in one of our homes. Attached as Exhibit ‘A’ is a partial list of ‘Out of State’ suppliers to Chandeleur Homes, Inc. for each and every home that we build, the state in which the products are made, and a description of the products that we use. For each single wide home and double wide home that we manufacture, and have manufactured for at least the last 5 years, there is at least $4,000 and $6,000, respectively, paid by Chandeleur to these ‘Out of State’ suppliers for components. Chandeleur Homes writes checks to its suppliers drawn on funds located in a bank in Ann Arbor, Michigan.”

(Exhibit E to Petition.)

Opposing Chandeleur’s motion to compel arbitration, Cain asserted:

“1. That the Plaintiff has never received or entered into any arbitration agreement with the Defendant. See the affidavit of the Plaintiff Willard H. Cain attached to this response. See Southern Energy Homes, Inc. v. Hennis, [776 So.2d 105] (Ala.2000).
“2. That no valid and enforceable written agreement exists between the above parties which is necessary before binding arbitration is mandated. Southern Energy Homes, Inc. v. Ard, [772 So.2d 1131] (Ala.2000).
“3. That the Plaintiff’s claim against the Defendant is not based upon any warranty given by the Defendant containing any arbitration language. The Plaintiff, therefore, has not ratified and affirmed any warranty containing an agreement to arbitrate or otherwise waived the Plaintiffs right to a trial by jury.”

(Exhibit H to Petition; emphasis added.) Cain also submitted an affidavit wherein he swore:

“My name is Willard H. Cain. I am over the age of 21 years and I am the Plaintiff in the above styled matter. Attached to this affidavit as Exhibit ‘A’ is a copy of Chandeleur Homes, Inc.’s ‘Limited One Year Service Warranty’ which was purported to have been left in my mobile home when I purchased the home in March of 2000. Also attached to this affidavit as Exhibit ‘B’ is an arbitration agreement which I understand Chandeleur Homes claims to have left at my mobile home when it was purchased. Not only have I never signed or agreed to any such arbitration agreement, no such arbitration agreement was left in my mobile home as part of any warranty agreement or as part of a Homeowner’s Manual. In fact I never received a Homeowner’s Manu al from Chandeleur Homes regarding my mobile home.
“I have never received any written warranty from Chandeleur Homes, Inc. regarding my mobile home. I was verbally told that Chandeleur Homes gave a one year warranty on the material and workmanship in my mobile home.”

(Exhibit B to Petition; emphasis added.)

A party who moves to compel arbitration bears the initial burden of establishing by substantial evidence (1) the existence of an agreement to arbitrate in (2) a contract or transaction substantially affecting interstate commerce. Conseco Fin. Corp. v. Sharman, 828 So.2d 890 (Ala.2001), and American Gen. Fin., Inc. v. Morton, 812 So.2d 282 (Ala.2001). If the movant successfully carries this initial burden, then the burden shifts to the opposing party to submit substantial evidence creating a genuine issue of material fact on either or both of those elements of arbitra-bility — the agreement and the substantial effect on interstate commerce. Id. If the opposing party carries this burden and creates such a genuine issue of material fact, then the fact-finder must decide it. If such a fact-finding is based entirely on evidence in writing — affidavits, written discovery, exhibits, or the like — or imdisput-ed oral testimony, which an appellate court can judge as well as the trial court, an appellate court will review the fact-finding de novo, with no presumption of correctness. Ex parte Horn, 718 So.2d 694 (Ala.1998), and Lilly v. Palmer, 495 So.2d 522 (Ala.1986). Only if such a fact-finding is based, at least in substantial part, on oral testimony the appellate court cannot observe as well as the trial court, will the fact-finding be accorded the ore tenus presumption of correctness. Justice v. Arab Lumber & Supply, Inc., 533 So.2d 538 (Ala.1988), and Hall v. Mazzone, 486 So.2d 408 (Ala.1986). Legal conclusions are never accorded a presumption of correctness on appellate review. Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994). If the party moving to compel arbitration fails to carry the initial burden of submitting substantial evidence supporting both of the essential elements of arbitrability — the agreement and the substantial effect on interstate commerce — then no burden shifts to the opposing party. Ex parte Greenstreet, 806 So.2d 1203 (Ala.2001). Rather, the motion to compel should be denied, Ex parte Greenstreet, and the ruling will be reviewed de novo. Sharman and Morton, supra.

The dispositive issue is whether Cain and Chandeleur agreed to arbitrate. Our resolution of this issue against Chandeleur pretermits any analysis of whether the contract or transaction substantially affected interstate commerce.

“ ‘[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ” AT & T Techns., Inc. v. Communication Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)); and see Ex parte Lovejoy, 790 So.2d 933 (Ala.2000). “ When deciding whether parties agree to arbitrate a certain matter (including arbitrability) courts generally ... should apply ordinary state-law principles that govern the formation of contracts.’ ” Oakwood Mobile Homes, Inc. v. Barger, 773 So.2d 454, 459 (Ala.2000) (quoting First Opitions of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)). “ ‘The requisite elements of [a contract] include: an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract.’ ” Ex parte Grant, 711 So.2d 464, 465 (Ala.1997) (quoting Strength v. Alabama Dep’t of Finance, Div. of Risk Mgmt., 622 So.2d 1283, 1289 (Ala.1993)). “Assent must be manifested by something. Ordinarily, it is manifested by a signature. [However], [a]ssent may be manifested by ratification.” Southern Energy Homes, Inc. v. Hennis, 776 So.2d 105, 108 (Ala.2000) (citing Southern Energy Homes, Inc. v. Harcus, 754 So.2d 622, 625 (Ala.1999)), wherein this Court remanded the case to the trial court for a finding of whether the purchasers of a manufactured home ratified and thereby accepted an arbitration provision by accepting repairs pursuant to a warranty containing the arbitration provision. Distinguishing Southern Energy Homes, Inc. v. Harcus in Southern Energy Homes, Inc. v. Hennis, this Court held:

“However, the manufacturer’s unilateral enclosure of an arbitration provision in a homeoumer’s manual is— without more — insufficient as a matter of law to show that the buyer assented to all the contents therein. Without more, the provisions contained in such a homeowner’s manual are immaterial, ‘except in the utterly collateral sense that if the plaintiffs had never purchased their mobile homes,’ Ex parte Isbell, 708 So.2d 571, 578 (Ala.l997)(emphasis and internal quotations marks omitted), they would not have received the homeowner’s manual.”

Hennis, 776 So.2d at 108-109 (some emphasis original; some emphasis added).

Chandeleur maintains that, although Cain did not sign an arbitration agreement, his assent to arbitrate is evidenced by his acceptance of the benefits of the warranty through repairs and service guaranteed by the warranty. Specifically, Chandeleur states, “Chandeleur does not dispute that the warranty contract and arbitration limitation were not signed by Petitioner; however, Chandeleur vehemently denies that Petitioner did not ratify them by requesting warranty service on his home and by alleging breach of Chan-deleur’s warranty agreement in the instant lawsuit.” (Respondent’s brief, p. 6.) Relying on Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131 (Ala.2000), Chandel-eur argues, “Petitioner cannot on one hand seek the benefits of an agreement while at the same time repudiate other provisions of it.” (Respondent’s brief, p. 7.)

Chandeleur’s reliance on Ard to require Cain to arbitrate his claims is misplaced. Ard is distinguishable from the case before us in that, there, the warranty itself contained an arbitration agreement between Southern Energy and the Ards, and the Ards did not submit any evidence to refute the existence and their acceptance of the arbitration agreement. The Ards had requested and received service under the warranty before they attempted to repudiate the arbitration agreement contained in the warranty. In the instant case, the warranty does not contain any arbitration provision. Rather, the warranty expressly states that it “gives you specific legal rights and you may also have other rights ... [and it] does not exclude any implied warranties.” (Exhibit F to Petition.)

In the case before us, the only arbitration provision is in a page from a homeowner’s manual, which Chandeleur has not proven to be a contract existing between Cain and Chandeleur. Indeed, Chandeleur Sales Manager David Bridges’s affidavit, as quoted above, swears that the “written factory warranty [containing no arbitration provision] ... is our only contract with the owner.” (Exhibit D to Petition; emphasis added.) Although Chandeleur maintains that the homeowner’s manual containing the arbitration provision “places certain conditions on the warranty contract with the owner,” see Bridges’s affidavit, the only-page of the homeowner’s manual containing the arbitration provision itself does not even mention the “Limited One Year Service Warranty” and cites only duties of a manufacturer of a manufactured home and the rights of a purchaser as provided by a federal safety statute, as distinguished from a warranty. (Exhibit G to Petition.) Furthermore, Chandel-eur’s “unilateral enclosure of an arbitration provision in a homeowner’s manual is ... insufficient as a matter of law to show that [Cain] assented to all the contents therein.” Hennis, 776 So.2d at 108-09. Moreover, unlike the Ards, Cain has submitted his affidavit as evidence that he never received either a homeowner’s manual or the “Limited One Year Service Warranty” which Chandeleur claims it left in a kitchen drawer in the manufactured home sold to Cain.

Because the evidentiary materials submitted by Chandeleur in support of its motion to compel Cain to arbitrate his claims do not establish the existence of contract containing an arbitration agreement between Cain and Chandeleur, Cain is entitled to mandamus relief. Accordingly, we issue a writ of mandamus directing the St. Clair Circuit Court to vacate its order compelling the petitioner Cain to arbitrate his claims against Chandeleur Homes.

WRIT GRANTED.

MOORE, C.J., and HOUSTON, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.

      . Rule 4(d), Ala. R.App. P., as amended effective October 1, 2001, provides that an order either granting or denying a motion to compel arbitration is reviewable by appeal. On March 8, 2001, before the effective date of this amendment, Cain filed his petition for a writ of mandamus, which was then the appropriate mode of review, Ex parte Napier, 723 So.2d 49, 51 (Ala. 1998).