author: LEE, J.,

text:
    Vernon NEAL a/k/a Vernon Riley, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-00049-COA.
    Court of Appeals of Mississippi.
    Aug. 3, 2004.
    Vernon Neal, appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., LEE and GRIFFIS, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On October 30, 2001, in the Circuit Court of Oktibbeha County, Vernon Neal pled guilty to one count of the sale of a controlled substance. Neal was sentenced to serve ten years in the custody of the Mississippi Department of Corrections with five years post-release supervision. Neal then filed a motion for post-conviction relief on June 1, 2002, alleging that his name was incorrect on the indictment and his attorney was ineffective for advising him to plead guilty to “a fabricated name.” On October 24, 2002, the trial judge denied Neal’s motion, finding that the name in the indictment had been corrected at the time of the plea. Neal now appeals to this Court stating that the trial court committed plain and reversible error in denying his motion for post-conviction relief.

DISCUSSION OF ISSUE

¶2. In his brief, Neal argues that his name was wrong on the indictment and also that his attorney was deficient in failing to correct the indictment in a timely manner. During the plea colloquy the State stated, “You are Vernon Neal, is that correct?” Neal responded affirmatively. At the beginning of the plea colloquy Neal is repeatedly referred to as “Mr. Neal,” and Neal did not correct the trial judge. Some point later Neal's attorney states that Neal’s legal name is “Vernon Riley.” Immediately upon hearing that, the State moved to amend the indictment to show the correct name. The trial judge amended the indictment over no objection by Neal’s attorney.

¶ 3. Uniform Circuit and County Court Rule 7.09 states that “[a]ll indictments may be amended as to form but not as to the substance of the offense charged.” An indictment may only be amended at trial if the amendment is immaterial to the merits of the case and the defense will not be prejudiced by the amendment. Griffin v. State, 584 So.2d 1274, 1276 (Miss.1991). At no point in his brief does Neal state that the wrong person was indicted. In fact, Neal included his birth certificate showing his birth name as “Riley,” but he continues to sign his briefs ‘Vernon Neal.” We cannot find that the trial judge erred in allowing the indictment to be amended during Neal’s plea colloquy.

¶ 4. In regards to Neal’s claim that his counsel was ineffective in allowing the State to proceed against him on an indictment with the incorrect name, the trial judge found that claim “to be without merit since, once the Petitioner’s counsel informed the Court of the Petitioner’s correct name, the District Attorney made a motion in open court to amend the Petitioner’s indictment.” Again, as Neal does not claim that he was wrongfully indicted, we fail to see how his attorney rendered ineffective assistance of counsel. This issue is without merit.

¶ 5. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO OK-TIBBEHA COUNTY.

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


source: Caselaw Access Project

author: SOUTHWICK, P.J.,

license: Public Domain

text:
    Dee Wayne COLLINS a/k/a Dewayne Collins, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-00713-COA.
    Court of Appeals of Mississippi.
    Aug. 3, 2004.

      Dee Wayne Collins, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., CHANDLER and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. The circuit court denied Dee Wayne Collins’ motion for post-conviction relief. Aggrieved, he appeals. We find no error and affirm.

¶ 2. Collins pled guilty to possession and sale of cocaine. He was sentenced to serve ten years for the sale of cocaine and three years for possession. The sentences were to be served concurrently. In his petition for post-conviction relief, Collins argued that the judge had sentenced him to two years for the sale of cocaine rather than ten. He contends that the sentence of ten years was incorrectly entered in the sentencing order. The circuit judge found that Collins was in fact sentenced to serve ten years and denied his petition. From this, Collins appeals.

DISCUSSION

¶ 3. The record contains a transcript of a guilty plea hearing in which the judge sentences Collins to two years imprisonment for the sale of cocaine. However, also included in the record is a sworn affidavit from the court reporter stating that she made errors in the original transcript and therefore later made a corrected copy. In the corrected transcript, the judge is shown as sentencing Collins to serve ten years, not two.

¶ 4. Other evidence of the actual sentence appears in Collins’ written acknowledgment in his plea petition that if he pled guilty, the State would recommend a sentence of ten years. The judgment itself provides that Collins was sentenced to ten years. The State reminds us of a rule that a written order controls in a conflict with an oral order. Temple v. State, 671 So.2d 58, 59 (Miss.1996). That is not quite the issue before us, as the conflict is between an initial transcript that was prepared that stated “two years,” and a corrected transcript which the court reporter assures us accurately reflects that the trial judge announced from the bench “ten years.” A court reporter’s transcript is subject to correction; no order of the court ever gave Collins a two year sentence.

¶ 5. With one exception, all the documentation in the record reveals that Collins received a ten year sentence. That exception was corrected to state what had actually occurred. We affirm.

¶ 6. THE JUDGMENT OF THE WINSTON COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO WINSTON COUNTY.

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


author: IRVING, J.,

text:
    Stacy Thomas McCAINE a/k/a Stacey Thomas McCaine, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CA-00861-COA.
    Court of Appeals of Mississippi.
    Aug. 10, 2004.
    Jason Lee Shelton, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. After Stacy Thomas McCaine’s suspended sentence was revoked, he filed in the Circuit Court of Monroe County a motion for post-conviction relief alleging that his due process rights were violated because allegedly he was not placed on probation, post-release supervision, or given explicit terms or conditions with regard to his suspended sentence. The circuit court dismissed the motion pursuant to Mississippi Code Annotated section 99-39-11(2) (Rev.2000) which allows circuit judges to summarily dismiss motions for post-conviction relief “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief....”

¶ 2. McCaine now appeals and alleges that the trial court erred in dismissing his motion. We find no error; therefore, we affirm the decision of the trial court.

FACTS

¶ 3. Stacy McCaine was indicted for robbery but pleaded guilty to accessory after the fact to robbery. He was sentenced to a term of five years with four years suspended, upon the condition that he commit “no further violation of any laws of this or any other state or the United States.” McCaine was convicted later of possession of marijuana with intent to distribute, and because of this offense, his four-year suspended sentence was revoked. Additional facts will be related during our discussion of the issue.

DISCUSSION OF THE ISSUE

¶ 4. McCaine argues that the terms of his suspended sentence were unclear and that the court did not set forth a specific time period in which he was to refrain from violating his probation. He maintains that he was not instructed on the terms and conditions of his probation and on the type of conduct that could result in his suspended sentence being revoked.

¶ 5. We find McCaine’s assertion — that the terms and conditions of his suspended sentence were vague and ambiguous — ludicrous and totally without any merit. What is vague and ambiguous about a commandment not to commit further violation of any laws of this or any other state or of the United States?

¶ 6. As to MeCaine’s assertion that he was not placed on probation and “was not afforded clear and concise instructions from the court, particularly how long he would be under the auspices and direction of the court’s suspended sentence,” we examine the sentencing order and the transcript of the sentencing proceeding. We already have quoted from the sentencing order which provided that McCaine was sentenced to five years in the custody of the Mississippi Department of Corrections, with four years suspended “pending no further violation of any laws of this or any other state or the United States.”

¶ 7. The relevant portion of the sentencing proceeding is as follows:

THE COURT: Mr. McCaine, in 97-178 Monroe County, the sentence of this Court is that you serve a term of five years in the custody of the Mississippi Department of Corrections. Four years will be suspended, pending you violate no law of any city, county, state, or of the United States. Was there any recommendation about post-release supervision, Mr. Stennett?
MR. STENNETT: Not that I’m aware of, Your Honor.
THE COURT: Ms. Williams?
MS. WILLIAMS: No, Your Honor.
THE COURT: Very well. Four years will be suspend, [sic] as I indicated, subject to you not violating any law of any city, or any state, or any county or of the United States.

¶ 8. Mississippi Code Annotated section 47-7-37 (Rev.2000) provides in pertinent part that “[t]he period of probation shall be fixed by the court, and may at any time be extended or terminated by the court, or judge in vacation. Such period with any extension thereof shall not exceed five (5) years....”

¶ 9. When a portion of a defendant’s sentence is suspended and no period of probation is specified in the sentencing order, a period of probation for the maximum period allowed by law is implied if the sentencing proceeding sufficiently conveys reasonably specific conditions of behavior as a condition of the suspended sentence. Tunstall v. State, 767 So.2d 167, 169(¶ 10) (Miss.1999); see also Wilson v. State, 735 So.2d 290, 292(¶ 6) (Miss.1999).

¶ 10. The record reflects that McCaine was given the suspended sentence on January 22, 1999. On June 9, 2000, McCaine violated the condition of his suspended sentence. This violation occurred well within the five-year implied period of probation.

¶ 11. While the trial judge, at the time of sentencing, did not question McCaine about McCaine’s understanding of the condition of the suspended sentence, we are more than satisfied that McCaine well understood the simple and clear condition that he was not to violate any laws of any city or state or of the United States.

¶ 12. The circuit court did not err in dismissing McCaine’s motion for post-conviction relief, as the motion was totally baseless.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

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


author: BRIDGES, P.J.,

text:
    Tommy PREUETT, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CA-01202-COA.
    Court of Appeals of Mississippi.
    Aug. 10, 2004.

      Thomas E. Payne, Biloxi, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorneys for appellee.
   BRIDGES, P.J.,

for the Court.

¶ 1. On January 24, 2000, Tommy Preuett (“Preuett”) pled guilty to a reduced charge of manslaughter before the Forrest County Circuit Court. He was sentenced to twenty years in the custody of the Mississippi Department of Corrections. Aggrieved, Preuett appeals from an order of the Forrest County Circuit Court denying his petition for post-conviction relief (PCR) and asserts the following issues which we quote verbatim:

I. WHETHER THE TRIAL COURT ERRED WHEN FINDING TOMMY PREUETT’S GUILTY PLEA WAS VOLUNTARILY, INTELLIGENTLY, AND KNOWINGLY GIVEN.
II. WHETHER THE TRIAL COURT ERRED WHEN FINDING THAT TOMMY PREUETT HAD RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL PRIOR TO HIS PLEA AND AT SENTENCING.

¶ 2. Finding no error in the lower court’s ruling, we affirm.

ANALYSIS

¶ 3. Preuett asks this Court to review the decision of the trial court denying his petition for post-conviction relief. ‘When reviewing a lower court’s decision to deny a petition for post-conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

I. WHETHER THE TRIAL COURT ERRED WHEN FINDING TOMMY PREUETT’S GUILTY PLEA WAS VOLUNTARILY, INTELLIGENTLY, AND KNOWINGLY GIVEN.

¶ 4. Preuett contends that his guilty plea was involuntarily entered. He states that he believed he would only receive a five year sentence and would not have pled guilty had he known he would receive a twenty year sentence.

¶ 5. The voluntariness of a confession is a factual inquiry that the trial judge must determine by the totality of the circumstances. Hicks v. State, 812 So.2d 179, 191(¶ 32) (Miss.2002). This Court will not reverse a trial court’s finding that a confession was voluntary and admissible as long as the trial judge applied the correct principles of law and the finding was factually supported by the evidence. Id. We will not reverse if the confession was the product of Preuett’s free and rational choice. Id. Preuett bears the burden of proving that he pled guilty involuntarily, and he must prove this by a preponderance of the evidence. Stevenson v. State, 798 So.2d 599, 602(¶ 7) (Miss.Ct.App.2001).

¶ 6. The lower court asked Preuett whether he understood that his sentence would be between one year and twenty years. Preuett responded that he understood. Preuett stated that no one, including his counsel, promised him anything to induce his guilty plea. Preuett indicated that no one told him that the lower court would be “lighter” with him if he pled guilty. Finally, Preuett admitted to committing the crime. Combined with the affidavit of his counsel stating that he did not provide a number of years to, which the lower court might sentence Preuett, this Court can not find any error on the part of the trial court.

II. WHETHER THE TRIAL COURT ERRED WHEN FINDING THAT TOMMY PREUETT HAD RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL PRIOR TO HIS PLEA AND AT SENTENCING.

¶ 7. To successfully claim ineffective assistance of counsel, Preuett must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Moody v. State, 644 So.2d 451, 456 (Miss.1994). Preuett must first demonstrate the deficiency of counsel’s performance. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Second, he must demonstrate that the deficiency prejudiced-his defense. Id. Preuett faces a strong, yet rebuttable presumption that his counsel performed adequately, and he must show a reasonable probability that without his counsel’s errors, he would have received a different result. Moody, 644 So.2d at 456. This Court looks at the totality of the circumstances, with deference to counsel’s actions to find a factual basis, for the claim. Id. If this Court finds that counsel was ineffective, the appropriate remedy is to remand the case for a new trial. Id.

¶ 8. Preuett alleges that his counsel was ineffective due to his counsel’s alleged representation that Preuett would receive a reduced five-year sentence, by pleading guilty. Additionally, that his counsel failed to object to the State’s recommendation of the maximum sentence on the pre-sen-tence report. As discussed above, the trial court questioned Preuett on the standard “laundry list” of questions prior to sentencing. This assertion of ineffective counsel is without merit.

¶ 9. Preuett also alleges that his plea counsel was ineffective due to counsel’s failure to produce reports that would have supported Preuett’s version of the facts and could have resulted in mitigation of his sentence, (emphasis added). Preuett alleges that the victim’s autopsy report indicated that the victim had cocaine and alcohol present at the time of his death.

¶ 10. At Preuett’s PCR hearing, the lower court inquired how the victim’s autopsy report would have affected the outcome of Preuett’s guilty plea. Preuett’s PCR counsel explained that the autopsy report corroborated Preuett’s account of the events. Particularly, that the victim was acting strange and irrational before Preuett shot him with a hunting rifle at close range. The information in the autopsy report may have been relevant had self-defense been an issue. However, self-defense was never an issue, as Preuett pled guilty. The lower court concluded that the information in the autopsy report would not have changed the outcome of Preuett’s guilty plea hearing. Furthermore, the autopsy report would not have undermined the lower court’s confidence in the outcome of Preuett’s guilty plea to manslaughter. Accordingly, there is a lack of evidence within the record that there was a reasonable probability of a different outcome, but for counsel’s error. As such, this Court does not find any error on the part of the lower court.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    In the Interest of C.R., a Minor.
    No. 2003-CA-00926-COA.
    Court of Appeals of Mississippi.
    Aug. 10, 2004.
    Damon Scott Gibson, Gulfport, attorney for appellant.
    Herbert Wayne Wilson, Gulfport, Angelique Carter White, attorneys for appellee.
   BRIDGES, P.J.,

for the Court.

¶ 1. The prosecutor for the Harrison County Youth Court filed a petition in the interest of C.R. alleging abuse. Prior to holding an adjudicatory hearing, the youth court granted the motion of the guardian ad litem, acting upon an agreement with the prosecutor, to dismiss the petition. The child’s mother, B.R., now appeals claiming that she was not provided notice of the hearing at which the motion to dismiss was presented to the court, and as a result, she was denied her right to be heard. We find her argument to be without merit and, accordingly, affirm.

I.

FACTS

¶ 2. C.R. is the minor daughter of B.R. and M.R., her mother and father, respectively. While talking to a social worker with the Harrison County Department of Human Services (hereafter “DHS”), C.R. made several statements indicating that she had been sexually abused by her father. An investigation ensued, and the intake unit for the Harrison County Youth Court subsequently recommended, in accordance with the Youth Court Act of 1979, that an abuse petition be submitted in the interest of C.R. On March 10, 2003, Herbert W. Wilson, the youth court prosecutor, filed, and the court approved, a petition alleging that C.R. was an abused child. The court additionally appointed Wade M. Baine to be the guardian ad litem for C.R., although precisely when is unclear from the record.

¶ 3. On March 11, 2003, the youth court held a shelter hearing. The more significant aspects of the resulting order from said hearing are as follows: (1) that C.R. be temporarily placed in the care and custody of the DHS, (2) that Dr. J. Donald Matherne conduct a complete psychological evaluation and mental health examination of C.R., (3) that the DHS make all reasonable efforts to obtain a physical examination of C.R., (4) that an adjudicatory hearing be held on April 7, 2003, and (5) that a trial and disposition hearing be tentatively scheduled for May 7, 2003. The court held a reconvened shelter hearing the following day, and the court entered an order reflecting the agreement of the parties that C.R. remain in the custody of the DHS until seen by Dr. Matherne, that both parents will undergo, at their own expense, psychological evaluation by Dr. Matherne, and that C.R. will be placed with T.G., a maternal aunt, pending further proceedings.

¶ 4. After reviewing Dr. Matherne’s psychological evaluations of the child’s parents, Mr. Baine met with Mr. Wilson, who was ill from having suffered a stroke some time after the shelter hearing. They both then agreed to move for dismissal of the petition. On March 31, 2003, Mr. Baine filed a motion with the youth court requesting the case be dismissed without notice and assigned in support thereof that the court’s intake unit recommended dismissal, that Mr. Wilson announced his intention to dismiss the case, that the DHS did not wish to move forward with the petition, and that he, having talked with C.R. himself, could see no reason to proceed. The court granted the motion and entered an order of dismissal.

II.

DISCUSSION

¶ 5. B.R. maintains in her appeal that the youth court, by considering the motion to dismiss, held an adjudicatory hearing, pursuant to Miss.Code Ann. § 43-21-557 (Rev.2000), thereby dispensing with the substantive issue of abuse upon C.R. as alleged in the petition, without providing her with notice of the hearing. The motion to dismiss contained the aforementioned support to be considered by the judge, and B.R. claims that, based on the information assigned in support thereof, the Youth Court Act mandates that she have the opportunity to confront and examine the person who furnished the information and introduce evidence for the purpose of controverting its contents. Miss. Code Ann. § 43-21-203(9) (Rev.2000). Moreover, B.R. contends that petitions in youth court may only be dismissed in accordance with Section 43-21-557(4) of the Youth Court Act, so as a result, the youth court lacks the authority to summarily dismiss a petition.

¶ 6. The argument advanced by B.R. is meritless because the youth court does possess the authority to dismiss an abuse petition without providing notice to all parties. This authority, however, is not provided in the Youth Court Act, but is vested in the discretion of the prosecutor.

¶ 7. Section 43-21-203(5) of the Youth Court Act declares that “[n]o proceeding by the youth court in cases involving children shall be a criminal proceeding but shall be entirely of a civil nature.” Miss. Code Ann. § 43-21-203(5) (Rev.2000). This Court, however, has noted that “though a youth court proceeding is not a criminal proceeding, it does bear some measure of similarity to a criminal case in circuit court.” In the Interest of JPC v. State, 783 So.2d 778, 780 (¶ 6) (Miss.Ct.App.2000). One such similarity exists between an order to dismiss a petition in youth court and an order to dismiss an indictment, called a nolle prosequi, in circuit court.

¶ 8. “Under Mississippi law, the entry of a nolle prosequi unconditionally dismisses a criminal indictment, but without prejudice to the state to seek re-indictment.” Beckwith v. Anderson, 89 F.Supp.2d 788, 792 (S.D.Miss.2000) (citing De La Beckwith v. State, 707 So.2d 547, 569 (¶ 73) (Miss.1997)). An order to dismiss a petition in youth court has the same effect, meaning the court simply abandons the case and does not make a determination on the merits of the petition. An order of dismissal, therefore, is not an adjudication of either abuse or the absence thereof, and as a consequence, B.R. was not entitled to notice.

¶ 9. As mentioned above, the Youth Court Act does not provide youth courts with the authority to dismiss petitions without prejudice. Under the Act, youth court judges “may at any time terminate the proceedings and dismiss the petition .... ” Miss.Code Ann. § 43-21-557(4) (Rev.2000). As the “may” language of the statute connotes, dismissal of the petition is not a mandate; therefore, the judge possesses sole discretion regarding whether to seek dismissal. See D.D.B. v. Jackson County Youth Ct., 816 So.2d 380, 382 (¶¶ 7-8) (Miss.2002). Dismissal under the statute, however, is permissible only “if the youth court finds such action to be conducive to the welfare of the child and in the best interest of the state.” Miss.Code Ann. § 43-21-557(4) (Rev.2000). This statute is entirely inapplicable to the case at bar for two reasons. First, the court can dismiss a petition on its own volition without the prosecutor moving for dismissal, and secondly, the resulting order is with prejudice based on the requirement that the court make a finding that balances the child’s welfare with the state’s interest.

¶ 10. The order dismissing the petition alleging that C.R. was an abused child was the product of prosecutorial discretion. In the case sub judice, the guardian ad litem was responsible for presenting the youth court with the motion to dismiss. The motion and resulting order, however, remain a product of prosecutorial discretion because the guardian ad litem was acting in accordance with his agreement with the prosecutor. The primary responsibility of prosecutors is to advance the interests of the state. To assist in discharging their duties, prosecutors have been endowed with broad discretion, and “the decision of whether or not to prosecute and what charge to bring generally rests in his or her discretion.” Williams v. State, 766 So.2d 815, 818 (¶ 11) (Miss.Ct.App.2000) (citing Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)). The authority to seek a nolle prosequi or dismiss an abuse petition, then, rests in the sole discretion of the prosecutor. Effectuating such dismissal, however, is limited by Section 99-15-53 of the Mississippi Code, which states that “[a] district attorney, or other prosecuting attorney, shall not compromise any cause or enter a nolle prosequi either before or after indictment found, without the consent of the court .... ” Miss.Code Ann. § 99-15-53 (Rev.2000). Consent is achieved by simply presenting a motion to the court.

III.

CONCLUSION

¶ 11. The petition alleging that C.R. was an abused child was dismissed as a result of Mr. Wilson, via Mr. Baine, the guardian ad litem, exercising his prosecu-torial discretion. The Harrison County Youth Court, upon being presented with the motion, entered an order to grant, thereby consenting to, the petition’s dismissal. The order did not render an adjudication as to the allegations in the petition; it simply abandoned the case, leaving all parties just as they were before the petition was filed. Accordingly, the youth court did not deprive B.R. of her right to notice and a hearing. Finding no error by the Harrison County Youth Court, we affirm.

¶ 12. THE JUDGMENT OF THE YOUTH COURT OF HARRISON COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . B.R. and M.R. never married; however, paternity, as well as custody and visitation, were established by order of the Harrison County Chancery Court prior to these proceedings.


text:
    Brian A. BASS, Appellant v. Lisa B. BASS, Appellee.
    No. 2003-CA-00873-COA.
    Court of Appeals of Mississippi.
    Aug. 10, 2004.

      Mark G. Williamson, Starkville, attorney for appellant.
    J. Tyson Graham, Columbus, attorney for appellee.
   BRIDGES, P.J.,

for the Court.

¶ 1. Brian and Lisa Bass were granted a divorce based on irreconcilable differences. Lisa was granted custody of their only child, Logan Bass. Aggrieved, Brian appeals the granting of custody asserting the following issue as error:

I. THE CHANCELLOR ERRED IN HER FINDINGS OF FACT AND FAILED TO PROPERLY APPLY THE ALBRIGHT FACTORS WHICH RESULTED IN AN AWARD OF CUSTODY WHICH IS NOT IN THE BEST INTEREST OF THE CHILD.

Finding no error, we affirm.

FACTS

¶ 2. Brian and Lisa Bass were married on May 31, 1997, and lived in Columbus, Mississippi. Lisa had a another child, Dustin Ballard, from a previous marriage. One child, Logan Stone Bass, was born of the marriage on November 11, 1998. Lisa filed a complaint for divorce and other relief on November 15, 2000. Brian answered and counter-claimed and a temporary order was entered on January 31, 2001, granting Lisa temporary custody of Logan and reasonable rights of visitation to Brian. Brian was ordered to pay child support. A divorce trial was held on April 11, 2002. Brian and Lisa consented to a divorce based on irreconcilable differences submitting property and custody issues to the court. The court granted custody to Lisa, with standard visitation to Brian including every other weekend, alternating holidays, and three weeks in the summer. Brian then perfected an appeal to this court based solely on the grant of custody to Lisa.

¶ 3. Lisa admitted that she had affairs before and during the marriage, and Brian admitted that he had participated in one affair with Lisa and another man before the marriage while they were dating. After they were married, Brian found out that Lisa had been seeing both the man from the affair before the marriage and another man. Lisa testified that the child never knew of the affairs. Brian asserted that Lisa had yet another man over to the marital home multiple times while the child was present, testifying to several instances after they were separated.

¶ 4. Both Brian and Lisa were and are school teachers. During the marriage, both taught in Northeast Mississippi. Before the separation, Brian went to Huntsville, Aabama, for the summer. After the separation, Lisa moved to Frisco, Texas, and Brian moved to Wichita Falls, Texas, which are approximately two hours apart. Brian’s parents lived nearby in Texas. Lisa asserts that she moved to Texas because salaries for teachers are higher there. Brian alleges that Lisa moved there because of a man with whom she had an affair in Columbus, Mike Walters, who she continues to see at the time of this appeal.

¶ 5. Lisa lost custody of her oldest son, Dustin Ballard, to his father, Mark Ballard, in September 2001. At trial in the case at bar, several witnesses testified to being friends and co-workers of Lisa’s and that Lisa was not truthful. Lisa’s parents testified on her behalf that she is a good mother and had a good relationship with Logan. In her findings, the chancellor found both parties to be fit parents, but using the Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) analysis found that Lisa should have custody.

ANALYSIS

I. DID THE CHANCELLOR ERR IN HER FINDINGS OF FACT AND FAIL TO PROPERLY APPLY THE ALBRIGHT FACTORS WHICH RESULTED IN AN AWARD OF CUSTODY WHICH IS NOT IN THE BEST INTEREST OF THE CHILD?

¶ 6. Brian Bass asserts that the chancellor erred in her findings of fact and failed to properly apply the Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) factors which resulted in an award of custody that is not in the best interest of the child. “The standard of review in child custody cases is quite limited. A chancellor must be manifestly wrong, clearly erroneous, or applying an erroneous legal standard in order for this Court to reverse. This Court will affirm decisions of the chancellor, whenever based on credible evidence.” Lipsey v. Lipsey, 755 So.2d 564(¶ 3) (Miss.Ct.App.2000).

¶ 7. In this case we find the third ground to have no application since, upon reviewing the chancellor’s findings of fact and conclusions of law, it is clear that the chancellor applied the correct legal standard by assessing the relevant factors concerning the child’s best interests, to include the Albright factors. Albright, 437 So.2d at 1005. The sole issue before us, therefore, is whether the chancellor was plainly in error in her evaluation of the evidence, to include how that evidence impacted on the Albright factors, that ultimately led her to conclude that the best interest of the child would be served by Lisa having primary custody. We will review the Albright factors in dispute and the chancellor’s findings below:

1. Age and Sex of the Child

¶ 8. The chancellor combined the age and sex factors and found that the child was a four year-old boy, and that these factors favored both parents. Brian agrees that the age favors both parents due to a weakening of the “tender years doctrine,” but argues that the chancellor erred in not finding that the sex clearly favors him. Brian cites to Law v. Page, 618 So.2d 96 (Miss.1993) and argues that the sex of the child should carry greater weight than the age. We do not agree completely with Brian’s reading of Page; however, Page states that “the tender years doctrine seems less controlling, especially when considering [the child’s] male gender.” Page, 618 So.2d at 101. The “tender years doctrine” is less controlling due to Logan’s male gender. However, we do not read Page to say that the child’s sex is more important. The chancellor’s balancing of the young age, which historically favored the mother, and male sex, which favors the father, was not clearly in error.

2. Continuity of Care Prior to Separation and Parenting Skills

¶ 9. The chancellor found that Lisa was the primary caregiver during the marriage and that Brian assisted Lisa, although she found both parties to be very capable and willing parents. Brian asserts that the chancellor erred in this finding, asserting that Lisa had an adulterous relationship and that he took care of Logan when she was out with other men. Brian points to the other testimony he provided that contradicted Lisa. Lisa testified, as did Lisa’s parents, that Lisa was a good mother. Because the chancellor had the opportunity to personally evaluate the witnesses’s testimony and the party’s behavior, this Court must be deferential to the chancellor’s findings. Sobieske v. Prestar, 755 So.2d 410, 413(¶ 11) (Miss.2000). The chancellor did not err in her finding on this factor.

4. Employment of the Parent and Responsibilities of that Employment

¶ 10. The chancellor found that both Brian and Lisa are school teachers and that they both work hours that enable them to adequately care for Logan. Lisa at the time was able to be with Logan every morning and had him in a daycare nearby. Brian was having to travel some weekends for training as well as some weeks. Therefore, the chancellor found this factor to slightly favor Lisa. Brian asserts that his parents were nearby and Logan would be able to attend the same school where he works, allowing him to check on Logan during the day and take him home from work with him. Brian argues if this factor favors either parent, it should favor Brian. This is a close decision since both Brian and Lisa are similarly situated. Whether Brian’s parents being nearby outweighs his need to travel was a decision for the chancellor. It was not clearly error for the chancellor to find slightly in favor of Lisa in regard to this factor.

5. Physical and Emotional Fitness and Emotional Ties of Parent and Child

¶ 11. The chancellor found both parents to be in good health and to have strong emotional bonds with Logan and found both of these factors to favor both Brian and Lisa. Brian does not assert any error in regard to these two factors.

6. Moral Fitness of the Parents

¶ 12. The chancellor found that the evidence was undisputed that both Brian and Lisa engaged in unusual sexual relationships with other men and although Lisa had admittedly had sexual relationships with other men without Brian, there was no evidence of any adverse effect on the minor child. Therefore, the chancellor found this factor favors neither parent. Brian asserts that Lisa had multiple affairs and proceeded to tell everyone about them and that this factor should favor him. Our supreme court has explicitly stated that sexual misconduct is not per se grounds for denial of custody. Hollon v. Hollon, 784 So.2d 943, 949(¶25) (Miss.2001). Brian initially participated with Lisa in the adulterous relationships, and evidence was shown that he had looked for other relationships on the internet. The chancellor did not err in finding that this factor favored neither party.

7. Home, School, and Community Record of the Child

¶ 13. The chancellor found that Logan was doing well at daycare and has friends in the community where he resides with Lisa. Logan had not lived with Brian and there was no evidence of children in the area, so this factor slightly favored Lisa." Brian asserts that Logan was too young to have any community record to be of significance and the chancellor erred when it found slightly in favor of Lisa. Brian fails to cite any authority or give any other reason but Logan’s age. The chancellor did not err in taking into account Logan’s daycare and finding only slightly in Lisa’s favor.

8. Preference of the Child

¶ 14. The chancellor correctly found that Logan has not yet reached an age sufficient to express a preference. Miss. Code Ann. Sec. 93-11-65 (Rev.2000).

9. Stability of the Home Environment

¶ 15. The chancellor found that Lisa had an apartment where Logan had his own room while Brian was living with his parents while he was repairing a home he had recently purchased. Therefore, this factor favored Lisa. Brian asserts that Logan would have his own room at the parent’s home and that the repair work would only take a short time. Brian again argues Lisa’s relationship that allegedly took her to Texas and asserts a close relationship between Logan and his paternal grandparents. This was rebutted to some degree by testimony that the grandparents did not visit Logan for a long period of time when Brian was away despite living only two hours away. The chancellor did not err in her application of this factor.

10. Other Factors Relevant to the Parent-Child Relationship

¶ 16. The chancellor found no other relevant factors. Brian asserts that Lisa’s losing custody of her oldest son, Dustin Ballard, a few months before this case went to trial should be considered by the court. Brian asserts that Dustin and Logan are brothers and should be together, arguing that Lisa has tried to keep them apart. The custody of Dustin Ballard is an entirely separate matter not for review here. Despite Brian’s assertions, the fact remains that even if he had custody of Logan, Logan would be in Wichita Falls, Texas, approximately twelve hours’ drive away from Dustin who is with his father in Starkville, Mississippi. The chancellor did not err in finding that there were no other relevant factors.

¶ 17. We conclude that the chancellor did not plainly err in her evaluation of the evidence and application of the Albright factors in determining that the best interest of Logan would be served by Lisa’s having primary custody. This issue is without merit.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF LOWNDES COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    Sylvester WILLIAMS a/k/a Velp, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00546-COA.
    Court of Appeals of Mississippi.
    Aug. 10, 2004.

      Gus Grable Sermos, Summit, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., LEE, and GRIFFIS, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On March 29, 2002, Earl Vader Gibson was walking home when Sylvester Williams approached him from behind. Williams proceeded to jump upon Gibson and grab Gibson’s wallet from his back pocket. Williams and Gibson “tussled” over the wallet before Williams was able to get away with the wallet. Gibson knew Williams and was able to identify Williams as the perpetrator.

¶ 2. On February 24, 2003, a jury in the Circuit Court of Lincoln County found Williams guilty of robbery. Williams was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections, with ten years suspended and five years on post-release supervision. Williams’s sentence was to run consecutive to another sentence he was serving.

¶ 3. Williams appeals to this Court asserting that the trial court erred in failing to grant his motion for a judgment notwithstanding the verdict.

DISCUSSION

I. DID THE TRIAL COURT ERR IN FAILING TO GRANT WILLIAMS’S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT?

¶ 4. In his only issue, Williams asserts that the trial court erred in failing to grant his motion for a judgment notwithstanding the verdict. Specifically, Williams claims that the evidence at trial was insufficient to support the guilty verdict. When testing the legal sufficiency of the State’s evidence, the applicable standard of review is that the court must review the evidence in the light most favorable to the [S]tate, accept as true all the evidence supporting the guilty verdict, and give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The court will reverse only when reasonable and fair-minded jurors could find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). Furthermore, it has long been a rule in Mississippi that it is within the discretion of the jury to accept or reject testimony by a witness, and the jury “may give consideration to all infer-enees flowing from the testimony.” Mangum v. State, 762 So.2d 337(¶ 12) (Miss.2000) (quoting Grooms v. State, 357 So.2d 292, 295 (Miss.1978))

¶ 5. Williams chiefly argues that, other than Gibson’s eyewitness testimony, there was no direct physical evidence linking him to the crime. However, “the absence of physical evidence does not negate a conviction where there is testimonial evidence.” Graham v. State, 812 So.2d 1150(¶ 9) (Miss.Ct.App.2002); see also Williams v. State, 512 So.2d 666, 670 (Miss.1987). During his testimony, Gibson stated that it was Williams who robbed him that Friday night. Gibson knew Williams and was able to identify him easily. Although Gibson waited until Monday morning to press charges against Williams, he testified that he did so in order to give Williams an opportunity to return the wallet. Gibson also stated that Williams called him several days later and apologized for the incident. On cross-examination, Gibson admitted to having two or three beers at a friend’s house two dr three hours before the robbery occurred. Williams testified on his own behalf and asserted that he had not committed the crime.

¶ 6. In reviewing the record, we cannot find that there was insufficient evidence to support the guilty verdict. Furthermore, the jury found Gibson to be a credible witness and believed his version of the events. We do not find the trial court in error for failing to grant a judgment notwithstanding the verdict. Thus, this issue is without merit.

¶ 7. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF ROBBERY AND SENTENCE OF FIFTEEN YEARS, WITH FIVE TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TEN YEARS SUSPENDED, AND FIVE YEARS’ POST-RELEASE SUPERVISION, WITH SAID SENTENCE TO RUN CONSECUTIVELY TO THE SENTENCE HE IS CURRENTLY SERVING, AND TO PAY RESTITUTION OF $90, IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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


author: HOUSTON, Justice. LYONS, Justice

text:
    POLARIS SALES, INC. v. HERITAGE IMPORTS, INC.
    1021166.
    Supreme Court of Alabama.
    Oct. 3, 2003.

      David L. Kane of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Mobile, for appellant.
    Braxton L. Kittrell of Gardner, Middle-brooks, Gibbons & Kittrell, P.C., Mobile; and David A. Bagwell, Fairhope, for appel-lee.
   HOUSTON, Justice.

Polaris Sales, Inc., appeals from an order denying its motion to compel arbitration of a dispute with Heritage Imports, Inc. We reverse and remand.

I. Facts and Procedural History

Polaris is a Minnesota corporation engaged in the sale and distribution of recreational vehicles, including personal watercraft and all-terrain vehicles, to independent dealers who are authorized to sell “Polaris products” to retail customers. Heritage, which is located in Fair-hope, Alabama, is engaged in the business of selling recreational vehicles to retail customers.

Heritage and Polaris entered into an agreement pursuant to which Heritage was appointed as a dealer to sell certain Polaris products from its store in Fairhope and Polaris agreed to sell those Polaris products to Heritage for resale to retail customers (“the dealer agreement”). In the dealer agreement, Heritage and Polaris contracted to arbitrate the following:

“All disputes, controversies, and claims arising out of or in connection with the ... interpretation ... of this Agreement, or of any provision of this Agreement (including without limitation this arbitration provision and the arbitrability of any issue), or arising out of or in connection with any claimed duty, right, or remedy (whether arising under this Agreement or any statute, regulation, ordinance, or other rule of law or otherwise) relating to any of the foregoing. ...”

The dealer agreement also stated:

“Polaris reserves the right to appoint any other dealers at any other location in its sole discretion. [Heritage] acknowledges it has not been granted any area of primary responsibility or of exclusivity.
“[Heritage] may not assign, transfer or sell all or any part of its rights or obligations under this Agreement without first providing Polaris with prior written notice and receiving the prior written consent of Polaris. Any attempt to do so without such prior written consent shall be wholly void and without effect. If [Heritage] desires to assign, transfer, or sell any rights, arising under any applicable law, regarding resale of the Products, Polaris will have the first option to acquire any such rights. If [Heritage] desires to seek written consent from Polaris to assign, transfer or sell all or any part of its rights or obligations under this Agreement, [Heritage] must have submitted all information required in the New Dealer Packet. [Heritage] acknowledges that Polaris cannot and will not begin to review the applicant’s qualifications until all such information is submitted. This Agreement shall be binding upon and inure to the benefit of the permitted successors and assigns of [Heritage] and the successors and assigns of Polaris.”

This action began as an effort to collect money Heritage owed Polaris Acceptance (“Acceptance”), arising out of Heritage’s failure to repay Acceptance for money Acceptance had advanced Heritage to purchase inventory from Polaris. Heritage expanded the action by adding Polaris as a third-party defendant and asserting a cross-claim against Polaris and a counterclaim against Acceptance alleging intentional interference with a contract.

Heritage’s cross-claim alleges that Heritage and a third party entered into a contract pursuant to which the third party agreed to purchase Heritage’s recreational-vehicle dealership, its inventory, and its franchise rights. This contract allegedly included a clause stating that the transaction was contingent upon Polaris’s approval. Heritage claims that Polaris intentionally interfered with this contract by inducing the third party to dishonor its contract with Heritage and to contract directly with Polaris.

Polaris moved the trial court to compel arbitration of Heritage’s cross-claim, based on the arbitration provision in the dealer agreement. The trial court granted Polaris’s motion to compel arbitration and transferred the action to the administrative docket pending the completion of arbitration. Approximately four months later, Polaris moved the lower court to dismiss Heritage’s cross-claim against it on the ground that Heritage failed to prosecute its claim because it had failed to initiate arbitration proceedings.

In response to Polaris’s motion to dismiss, Heritage moved the court to dissolve the stay and to reinstate the case on the active docket. The court, in response to Heritage’s motion, vacated its earlier order compelling arbitration. Polaris appeals.

II. Analysis

Appellate review of an order denying a motion to compel arbitration is de novo. Kenworth of Birmingham, Inc. v. Langley, 828 So.2d 288, 290 (Ala.2002). The party seeking to compel arbitration has the initial burden of proving the existence of a written contract calling for arbitration and proving that that contract evidences a transaction involving interstate commerce. Ameriquest Mortgage Co. v. Bentley, 851 So.2d 458 (Ala.2002). “ ‘ “[AJfter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’ ” Langley, 828 So.2d at 290 (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000), quoting in turn Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995)). The parties here do not dispute the existence of a contract calling for arbitration or that the contract involves interstate commerce.

The issues raised on appeal are: 1) whether the requirement in the dealer agreement that the arbitration proceeding take place in Minnesota and under Minnesota law is unconscionable, and 2) whether the arbitrator should decide the issue of arbitrability.

A. Are the forum-selection and choice-of-law clauses in the dealer agreement unconscionable-?

1. Forum-Selection Clause

Heritage argues that the arbitration provision contained in the dealer agreement is unconscionable because it requires the arbitration proceeding to take place in Minneapolis and that Minnesota law be applied. The trial court agreed with Heritage, stating that “the requirement that the arbitration occur in the State of Minnesota and under those laws is a clause that causes such undue hardship that it in effect is being used to prohibit anyone in contract with [Polaris] from bringing any action against it.”

Heritage’s argument and the trial court’s conclusion are contrary to the well-established law of Alabama that forum-selection clauses will be enforced so long as they are not unfair or unreasonable under the circumstances. Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 351 (Ala.1997). In Ex parte Northern Capital Resource Corp., 751 So.2d 12, 14 (Ala.1999), we set forth five factors a court should consider when determining whether a forum-selection clause is unreasonable:

“(1) Are the parties business entities or businesspersons? (2) What is the subject matter of the contract? (3) Does the chosen forum have any inherent advantages? (4) Should the parties have been able to understand the agreement as it was written? (5) Have extraordinary facts arisen since the agreement was entered that would make the chosen forum seriously inconvenient?’’

Here, the answers to these questions show overwhelmingly that enforcement of the forum-selection clause would not be unreasonable. Both parties are business entities. The subject matter of the contract is the purchase by Heritage of recreational vehicles from Polaris for resale to retail customers. Polaris is headquartered in Minneapolis. There is no evidence indicating that either party did not or could not have understood the agreement as it was written. Finally, there is no evidence indicating that extraordinary facts have arisen since the agreement was entered into that would make Minneapolis seriously inconvenient as a forum. Therefore, the forum-selection clause is valid and enforceable.

2. Ckoice-of-Law Clause

Heritage and the trial court also cite the choice-of-law clause requiring that Minnesota law be applied to any dispute as a basis for invalidating the arbitration provision. This, too, is contrary to settled Alabama law. “Alabama law has long recognized the right of parties to an agreement to choose a particular state’s laws to govern an agreement.” Cherry, Bekaert & Holland v. Brown, 582 So.2d 502, 506 (Ala.1991). The trial court, therefore, erred in holding that conducting the arbitration in Minneapolis and applying Minnesota law would result in such undue hardship as to invalidate the arbitration agreement.

B. Should the arbitrator decide the question of arbitrability?

The next issue raised is whether the arbitrator should decide the arbitrability of Heritage’s claim. Questions of arbi-trability include those relating to the scope', interpretation, and application of the arbitration agreement, Jim Burke Auto., Inc. v. McGrue, 826 So.2d 122, 132 (Ala.2002), as well as the issue whether a party has waived its right to demand arbitration by “substantially invok[ing] the litigation process.” Hales v. ProEquities, Inc., [Ms. 1011015, July 11, 2003] - So.2d -, - (Ala.2003). “A trial court should not order arbitration of the issue of arbitrability except upon ‘ “clea[r] and unmistakable]” evidence’ that the parties agreed to arbitrate that issue.” Jim Burke Auto., 826 So.2d at 132 (quoting Commercial Credit Corp. v. Leggett, 744 So.2d 890, 892 (Ala.1999), quoting in turn First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)). Such clear and unmistakable evidence exists here.

Arbitration is a contract matter, and one cannot be compelled to submit to arbitration any matter that one has not agreed to so submit. Central Reserve Life Ins. Co. v. Fox, 869 So.2d 1124 (Ala.2003). In deciding whether parties agreed to arbitrate the question of arbitrability, courts should apply the ordinary state-law principles that govern contract formation. Id. (quoting Oakwood Mobile Homes, Inc. v. Barger, 773 So.2d 454, 459 (Ala.2000)).

When a court construes a contract, “the clear and plain meaning of the terms of the contract are to be given effect, and the parties are presumed to have intended what the terms clearly state.” Strickland v. Rahaim, 549 So.2d 58, 60 (Ala.1989). The arbitration clause in the dealer agreement between Heritage and Polaris provides that “all disputes, controversies, and claims arising out of or in connection with ... this Agreement ... (■including without limitation this arbitration provision and the arbitrability of any issue) ... shall be solely and finally settled by arbitration.” Thus, the plain language of the agreement unquestionably shows that in this case Heritage and Polaris agreed to arbitrate the issue of arbitra-bility. Therefore, any questions of arbi-trability relating to Heritage’s claim are for an arbitrator to decide.

III. Conclusion

The trial court erred in refusing to compel arbitration of Heritage’s claim. Therefore, we reverse the order denying Polaris’s motion to compel arbitration and remand the cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

LYONS, J., concurs specially.

LYONS, Justice

(concurring specially).

I write specially to note that doubts as to the scope of arbitration must be resolved in favor of arbitrability. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Here, any doubt as to the authority of the arbitrator to determine the arbitrability of this dispute must be resolved in favor of the arbitrator’s authority to determine that issue. Our threshold determination that it is for the arbitrator to decide arbitrability should not be taken as a determination on the merits of the question as to whether the dealer agreement is broad enough to encompass arbitration of the dispute between Polaris and Heritage alleging interference with Heritage's relationship with a third party.

Having said that, I am not naive enough to think that it will be easy to obtain an order from an arbitrator at the outset of the proceedings that would render the arbitrator’s further involvement unnecessary. Nor am I by any means the first to take note of the practical aspects of allowing an arbitrator to determine whether the arbitration should proceed. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 416, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967) (Black, J„ dissenting) (“The only advantage of submitting the issue of fraud to arbitration is for the arbitrators. Their compensation corresponds to the volume of arbitration they perform. If they determine that a contract is void because of fraud, there is nothing further for them to arbitrate. I think it raises serious questions of due process to submit to an arbitrator an issue which will determine his compensation.”). The same can be said of submitting the issue of arbitrability to the arbitrator. But, alas, the law of the land is otherwise.

      . The Court notes that although both parties' briefs were helpful, Heritage’s was a little more "down home” than the briefs usually received by this Court, a characteristic that in no way helped or hurt Heritage. For example, Heritage’s brief included the following statements: "Polaris sent a guy down here and told Kevin Clark to weasel out of the Heritage-Clark contract” (Heritage's brief, p. 6) (hereinafter page numbers cited in this footnote refer to Heritage's brief); "if in appellant's reply brief it should ‘drop the pigeon' " (p. 18); "We aren’t blind to the law ... we've been around; come on” (p. 20); "entangling Sargasso Sea of the law of arbitration” (p. 22); "we would have had a slam-dunk” (p. 24); "Well, yes; we have that rule here, too. Big deal” (p. 26); “I mean come on now ... it would sound snippy” (p. 29); "An agreement to arbitrate arbitrability just cannot become The Eggplant That Ate Chicago” (p. 30); “Plus, it would be plumb unfair to Heritage” (p. 31).

      . It is unclear from the record which Polaris entity manufactures the "Polaris products.”

      . On appeal, Polaris does not raise the issue whether the arbitrator should decide if the forum-selection and choice-of-law clauses are unconscionable.


author: LYONS, Justice. JOHNSTONE, Justice

text:
    Ex parte DILLARD DEPARTMENT STORES, INC. (In re Carrie Hardrick and Tina Irwin v. Dillard Department Stores, Inc.)
    1021239.
    Supreme Court of Alabama.
    Oct. 3, 2003.

      Fern H. Singer and Marion F. Walker of Berkowitz, Lefkovits, Isom & Kushner, P.C., Birmingham (reply brief filed by Fern H. Singer and Marion F. Walker of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham), for petitioner.
    Kenneth L. Funderburk of Funderburk, Day & Lane, Phenix City, for respondents.
   LYONS, Justice.

Dillard Department Stores, Inc. (“Dillard”), a defendant in an action pending in the Houston Circuit Court, petitions for a writ of mandamus directing Judge Jerry White to vacate his order requiring Dillard to comply with the plaintiffs’ discovery requests, which Dillard argues are overbroad and irrelevant to the claims presented. For the reasons discussed below, we grant the petition.

On November 19, 2000, Carrie Hardrick and Tina Irwin, while shopping at a Dillard department store in Dothan, were detained by an off-duty Dothan police officer employed by Dillard as a security officer because the officer thought they were shoplifting. No merchandise was found on their persons, and they were immediately released. Thereafter, Hardrick and Irwin sued Dillard and the City of Dothan Police Department, alleging false imprisonment, intentional infliction of emotional distress, and assault. The Dothan Police Department was subsequently dismissed as a party, leaving Dillard as the sole defendant.

On August 21, 2002, Hardrick and Irwin requested that Dillard, pursuant to Rule 34, Ala. R. Civ. P, produce documents in connection with a deposition. Dillard did not object within 30 days. The deposition was continued by agreement of the parties. However, on September 11, 2002, Hardrick and Irwin refiled an identical request for production. Dillard timely filed answers and objections to the September 11 request. Hardrick and Irwin then filed a motion to compel the production of the requested documents, which the trial court granted on October 21, 2002, without holding a hearing. At Dillard’s request, the trial court immediately set aside its order. On March 24, 2003, after a hearing at which Dillard argued its objections to the motion to compel, the trial court reinstated the order compelling discovery. Although in its order the trial court specifically referred to the request for production filed on August 21, 2002, rather than the identical request of September 11, 2002, the reference to the August 21 request did not bar the filing of or any response to the September 11 request. The second request for production, even though identical to the first, was an independent discovery request entitled to its own response. Dillard’s response within 30 days of the September 11, 2002, request for discovery was timely. Dillard promptly filed motions to reconsider both the trial court’s October 21, 2002, order and its March 24, 2003, order compelling production of the documents. Thus, before petitioning this Court, Dillard gave the trial court ample opportunity to address any error.

We decline Hardrick and Irwin’s request that we look solely to Dillard’s failure to respond to the first request and ignore the timely response to the second request. Rule 34, Ala. R. Civ. P., does not specifically provide that a failure to respond within the time provided will result in a waiver of any objections. Rule 34 refers to a motion under Rule 37(a) as the remedy for a failure to respond. Under Rule 37(d), the failure of a party to respond to a request for production authorizes the trial court to enter such orders as are “just,” including the orders authorized under Rule 37(b)(2)(A)-(C) providing for establishing facts, disallowing claims or defenses, and striking pleadings. The trial court invoked none of those specifically described remedies, which would not have been appropriate for the occasion. Even if we were to confine our review to Dillard’s failure to respond to the initial request for production, in order to sustain the trial court’s discovery order we would have to conclude that the trial court’s order requiring production was “just.” However, it is not necessary to reach this question.

Mandamus is an extraordinary remedy and will be granted only when there is “(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court.” Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala. 2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala.2001); (b) when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank, 686 So.2d 1135, 1138 (Ala.1996); (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court’s alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case— that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ’g Co., 601 So.2d 423, 426 (Ala.1992). Dillard argues that the trial court’s order compelling the production of documents fell within one of the exceptions recognized in Ocwen Federal Bank and that an appeal would not afford it a full and adequate remedy. Dillard specifically argues that Hardrick and Irwin’s request for production was unduly burdensome and the documents requested patently irrelevant, so as to clearly constitute harassment or impose a burden on Dillard far out of proportion to any benefit Hardrick and Irwin would obtain from the production. Hardrick and Irwin make no attempt to defend the trial court’s discovery order on its merits, choosing only to resist on the basis of procedural default.

Although this Court stated in Ocwen Federal Bank that a “ ‘general statement of inconvenience’ does not provide the court with a sufficient basis for finding that a discovery request is oppressive or burdensome,” 872 So.2d at 815, Dillard provided the trial court with more than just a mere statement of inconvenience. Dillard informed the trial court that Hardrick and Irwin were seeking documents regarding (1) all actions filed against Dillard; (2) all claims that did not result in actions being filed; (3) all complaints and charges made by customers and noncustomers regarding mistreatment by employees of Dillard; (4) all customer complaints regarding the mistreatment of employees of Dillard by other employees; and (5) all records regarding current and former employees who had been accused of injuring, accusing, or detaining customers or other employees. Dillard showed that there are more than 100 Dillard department stores throughout the United States from which Hardrick and Irwin are requesting documents and that the documents they are requesting are irrelevant to this case. Even though Dillard argues that the national survey of claims and complaints filed against it was irrelevant to the issues presented, was unlikely to lead to the discovery of admissible evidence, and was impossible to gather because of the enormous number of documents represented by these requests, Hardrick and Irwin, as previously noted, make no attempt to show what benefits they could possibly derive from the production of these documents.

In Ex parte Compass Bank, 686 So.2d 1135 (Ala.1996), the plaintiff sought discovery of every Compass Bank customer file involving a variable annuity. Compass Bank objected on the grounds that compliance with such a request would require production of at least 21,246 customer files and would involve the review of files on 35,000 transactions unrelated to the plaintiffs claim. This Court overruled the trial court’s order compelling production of the documents. Id. at 1138. In Ex parte Mobile Fixture & Equipment Co., 630 So.2d 358 (Ala.1993), this Court held that the trial court was within its discretion in denying, as overbroad, a security service’s request for production of information concerning investigations, management reviews, and field audits of all employees and all customers. Id. at 360. The requested discovery would have required the review of 5,400 files and would have required the defendant to reveal the names, addresses, and telephone numbers of its customers. Hardrick and Irwin’s discovery request in the present case are just as oppressive and burdensome as the discovery requests in both Compass Bank and Mobile Fixture. We conclude, therefore, that the burden imposed on Dillard by the discovery order is far out of proportion to any benefit Hardrick and Irwin would obtain from the information requested.

The trial court exceeded its discretion in overruling Dillard’s objections. Dillard has shown a right to the relief it seeks; thus, we grant Dillard’s petition for the writ of mandamus and direct the trial court to vacate its March 24, 2003, order compelling Dillard to comply with Har-drick and Irwin’s discovery request. The scope of any future request should be restricted to occurrences similar to the matters made the basis of this action. We leave for the trial court the question whether discovery should be limited to Dillard stores in Alabama or to the Dothan store.

PETITION GRANTED; WRIT ISSUED.

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

JOHNSTONE, J., concurs in the rationale in part and concurs in the result.

JOHNSTONE, Justice

(concurring in the rationale in part and concurring in the result).

My only reason for agreeing that the defendant did not waive its right to object by missing the 30-day deadline for responding to the first request for production is that the defendant could have reasonably inferred that the second request for production (included with the second notice of deposition) superseded the first request before the deadline for responding to the first request. The first request, served on August 21, 2002, requested that the materials be produced at the deposition, which was, by that notice, scheduled for September 23, 2002. On September 11, 2002, before the 30-day deadline for responding, and by agreement between the parties, the plaintiffs served a second notice of deposition rescheduling the deposition for October 18, 2002 and requesting production of the same materials at the newly scheduled deposition. Therefore, the defendant could have reasonably inferred that its response was due 30 days after September 11 instead of 30 days after August 21.

I concur in the main opinion insofar as it addresses the merits of the discovery dispute.


author: BROWN, Justice. JOHNSTONE, Justice

text:
    Michael BOWEN and Britta Bowen v. SECURITY PEST CONTROL, INC.
    1010783.
    Supreme Court of Alabama.
    Oct. 3, 2003.

      Donald R. Harrison, Dadeville, for appellants.
    M. Andrew Donaldson and Clifton E. Slaten of Crosslin, Slaten & O’Connor, P.C., Montgomery; and Paul M. James, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
   On Application for Rehearing

BROWN, Justice.

The opinion of February 28, 2003, is withdrawn, and the following is substituted therefor.

The plaintiffs, Michael Bowen and Britta Bowen, appeal from an order of the Talla-poosa Circuit Court compelling them to arbitrate their claims against the defendant Security Pest Control, Inc. (“SPC”). We affirm.

In April 1999, Michael Bowen entered into a contract with SPC pursuant to which SPC agreed to treat the Bowens’ house for termites. The contract indicated that the cost of the treatment was $1,490, and it contained an arbitration provision, which states in its entirety:

“In the event of a dispute between [SPC] and/or its employees and Customer with respect to interpretation of the terms and conditions of this agreement, including the making of this agreement, or breach of any provision of this agreement, the parties hereby expressly agree to submit their dispute to binding arbitration for resolution in accordance with the rules and requirements of the American Arbitration Association. The parties acknowledge and understand that by agreeing to submit their dispute to binding arbitration they are effectively waiving their right to trial by jury as a means of resolving disputes. Furthermore, the parties acknowledge that they desire to arbitrate any dispute arising from this agreement in an effort to resolve such dispute(s) quickly and avoid the costs of litigation. The parties further agree that any arbitration proceedings shall take place in Alexander City, Alabama.”

SPC treated the Bowens’ house with a termiticide called “Navigator TC.” The treatment process included boring holes under the Bowens’ house with special drilling equipment.

In June 2000, the Bowens discovered that termites had damaged their house. Specifically, they allege that termites destroyed approximately one-third of the entire structure of their house, and that it will cost $50,000 to repair the damage. In May 2001, the Bowens sued SPC, asserting numerous claims, including breach of contract, negligence, and fraud. In August 2001, SPC moved the trial court to compel arbitration. The trial court granted SPC’s motion, and the Bowens appeal.

Standard of Review

“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). Furthermore:

“ ‘A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. “After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’
“Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).”

Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala.2002).

Discussion

The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”), provides:

“A written provision in ... a contract evidencing a transaction involving interstate commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable....” 9 U.S.C. § 2. We have held that the FAA “mandates the arbitration of claims encompassed by an arbitration clause that is contained in a binding ■ contract that involves interstate commerce.” Ex parte Conference America, Inc., 713 So.2d 953, 955 (Ala.1998). Moreover, the FAA “provides for ‘the enforcement of arbitration agreements within the full reach of the Commerce Clause.’ ” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 2040, 156 L.Ed.2d 46 (2003)(quoting Perry v. Thomas, 482 U.S. 483, 490, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987)). The application of the FAA is not defeated if the individual transaction at issue, taken alone, does not have a substantial effect on interstate commerce. Citizens Bank, 539 U.S. at 56, 123 S.Ct. at 2040. Instead, “Congress’ Commerce Clause power ‘may be exercised in individual cases without showing any specific effect upon interstate commerce’ if in the aggregate the economic activity in question would represent ‘a general practice ... subject to federal control.’ ” Id. (quoting Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948)).

The Bowens argue that SPC failed to prove that the transaction in this case sufficiently affected interstate commerce. In Citizens Bank, an Alabama lending institution, Citizens Bank, agreed to provide operating capital to Alafabco, Inc., a construction company. 539 U.S. at 53, 123 S.Ct. at 2038. Alafabco subsequently began suffering financial difficulties, allegedly because ■ of misconduct ■ on Citizens Bank’s part. Alafabco sued "Citizens Bank, alleging, among other things, breach of contract, fraud, and breach of fiduciary-duty. One of the loan agreements between Citizens Bank and Alafabco contained an arbitration provision, which Citizens Bank attempted to invoke; Alafabco, however, argued that the provision was unenforceable because, it argued, the transaction did not sufficiently affect interstate commerce to trigger application of the FAA. As this Court noted recently in Wolff Motor Co. v. White, 869 So.2d 1129, 1133 (Ala.2003) (citing Citizens Bank, 539 U.S. at 56, 123 S.Ct. at 2040), the United States Supreme Court held that the transaction at issue sufficiently involved interstate commerce for at least three reasons: “(1) Alafabco engaged in business throughout the southeastern United States; (2) the transaction involved a business that purchased substantial quantities of goods that have moved in interstate commerce; and (3) the ‘general practice’ of the transaction at issue was of the sort subject to Congress’s Commerce Clause power.”

Based upon the United States Supreme Court’s holding in Citizens Bank, we hold that the transaction at issue in the instant case sufficiently involves interstate commerce to trigger application of the FAA. First, SPC is engaged in commerce in both Alabama and Georgia. Although SPC has its principal place of business in Alexander City, Alabama, it also services accounts in Georgia, and it is licensed to do business in that state. Second, SPC purchased the Navigator TC termiticide from a corporation located in Connecticut, and purchased the tools and equipment used to apply the termiticide from a corporation located in Tennessee. Finally, Navigator TC is registered with the Environmental Protection Agency and is approved by that agency for use to control subterranean termites. For these reasons, we hold that the transaction in this case sufficiently affected interstate commerce as to trigger application of the FAA. See Citizens Bank, supra; Wolff Motor Co., 869 So.2d at 1133.

The Bowens also maintain that the trial court erred in ordering that Brit-ta Bowen’s claims be arbitrated. Specifically, the Bowens argue that Britta did not sign the arbitration agreement; therefore, they argue, she did not agree to arbitration.

“Whether a contract exists must be determined under general state-law contract principles. Crown Pontiac, Inc. v. McCarrell, 695 So.2d 615 (Ala.1997). The purpose of a signature on a contract is to show mutual assent, see Ex parte Holland Mfg. Co., 689 So.2d 65 (Ala.1996); Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297 (Ala.1986); Ex parte Pointer, 714 So.2d 971 (Ala.1997); however, the existence of a contract may also be inferred from other external and objective manifestations of mutual assent. Unless a contract is required by a statute to be signed (the FAA contains no such requirement), or by the Statute of Frauds to be in writing (the contract here is not subject to Alabama’s Statute of Frauds, Ala.Code 1975, § 8-9-2, which requires the signature of the party against whom enforcement is sought), or unless the parties agree that a contract is not binding until it is signed by both of them (there is no evidence of such an agreement), it need not be signed by the party against whom enforcement is sought, provided it is accepted and acted upon.”

Ex parte Rush, 730 So.2d 1175, 1177-78 (Ala.1999).

Although Britta did not sign the document containing the arbitration provision, she did sign a document that described the areas of the home that SPC treated. Moreover, Britta is suing SPC based on allegations of, among other things, breach of contract.

A plaintiff cannot seek the benefits of a contract but at the same time avoid the arbitration provision in the contract. Wolff Motor Co., 869 So.2d at 1136. Instead, “she must accept or reject the entire contract.” Credit Sales, Inc. v. Crimm, 815 So.2d 540, 546 (Ala.2001). Britta’s claims, including her breach-of-contract claim, rely on the contract to support her claims for damages. Therefore, she is bound by the arbitration provision in the contract. Infiniti of Mobile, Inc. v. Office, 727 So.2d 42, 48 (Ala.1999); Delta Constr. Corp. v. Gooden, 714 So.2d 975, 981 (Ala.1998).

Finally, the Bowens argue that this Court should remand the case for the trial court to consider whether the arbitration provision is unconscionable. The record indicates that the parties thoroughly argued this issue before the trial court in their various pleadings submitted both in support of and in opposition to SPC’s motion to compel arbitration. The trial court’s order compelling arbitration does not, however, state its grounds for ordering arbitration or include any findings of fact. When a trial court does not state specific grounds or findings in its ruling on a motion to compel arbitration, this Court will assume that the trial court made those findings necessary to justify its judgment. Ryan Warranty Servs., Inc. v. Welch, 694 So.2d 1271, 1273 (Ala.1997); see also Smith v. Citicorp Person-to-Person Fin. Ctrs., Inc., 477 So.2d 808, 309 (Ala.1985)(“When the trial court makes no formal findings of fact, the reviewing court will assume that the trial court made those findings which will justify the [judgment] rendered.”). Therefore, we must assume that the trial court found the arbitration provision not to be unconscionable. Because the Bowens argue only that the trial court failed to make this finding, and do not assert the underlying merits of this claim, we must affirm the trial court’s judgment as to this issue.

Conclusion

We hold that the trial court correctly compelled the Bowens to submit their claims against SPC to arbitration. The judgment is affirmed.

APPLICATION GRANTED; OPINION OF FEBRUARY 28, 2003, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

JOHNSTONE, J„ dissents.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent. The nexus to interstate commerce in the case before us does not begin to match any of the features the United States Supreme Court found sufficient in Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003).

The first Citizens Bank feature is that “Alafabco [the plaintiff opposing arbitration] engaged in business throughout the southeastern United States using substantial loans from the bank that were renegotiated and redocumented in the debt-restructuring agreements.” 539 U.S. at 57, 123 S.Ct. at 2040 (emphasis added). In the case before us, the record is devoid of evidence that the plaintiffs engaged in any business whatsoever in any other state or used any quantity of any product from Security Pest in any other state. Nor does the record contain evidence that Security Pest used any quantity, much less a substantial quantity, of anything doing business in any other state. Security Pest argues only that it “does maintain licenses to perform pest control services in the state of Georgia.” Brief, p. 19 (emphasis added).

The second Citizens Bank feature is that

“the restructured debt was secured by all of Alafabco’s business assets, including its inventory of goods assembled from out-of-state parts and raw materials. If the Commerce Clause gives Congress the power to regulate local business establishments purchasing substantial quantities of goods that have moved in interstate commerce, it necessarily reaches substantial commercial loan transactions secured by such goods.”

539 U.S. at 57, 123 S.Ct. at 2040 (citation omitted; emphasis added). In the case before us, the record is devoid of evidence that “substantial quantities of goods ... have moved in interstate commerce” for this transaction. Security Pest does not quantify the cost of the chemicals it used and does not reveal any interstate movement of equipment occasioned by this transaction as distinguished from some long-past movement of equipment obtained for use in the business of Security Pest in general.

The third Citizens Bank feature is premised with this explanation:

“Congress’[s] Commerce Clause power may be exercised in individual eases without showing any specific effect upon interstate commerce if in the aggregate the economic activity in question would represent a general practice ... subject to federal control. Only that general practice need bear on interstate commerce in a substantial way.”

539 U.S. at 56-57, 123 S.Ct. at 2040 (internal citations and quotation marks omitted; ellipsis original). The third Citizens Bank feature itself is that “No elaborate explanation is needed to make evident the broad impact of commercial lending on the national economy or Congresses] power to regulate that activity pursuant to the Commerce Clause.” 539 U.S. at 58, 123 S.Ct. at 2041. In the case before us, the record does not establish that the pest control business “bear[s] on interstate commerce in a substantial way” or that the pest control business exerts a “broad impact ... on the national economy,” 539 U.S. at 57, 123 S.Ct. at 2040, and 539 U.S. at 58, 123 S.Ct. at 2041.

Because the record does not establish the nexus to interstate commerce necessary for the Federal Arbitration Act to apply, the trial court erred in ordering arbitration in violation of § 8-1^41(3), Ala. Code 1975. I therefore respectfully submit that the order compelling arbitration in this case should be reversed.