author: KING, P.J.,

text:
    Ramsey ROBINSON a/k/a Ramsey Clark Robinson, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01258-COA.
    Court of Appeals of Mississippi.
    April 13, 2004.

      Phillip Broadhead, Columbia, Ross Parker Simons, Sherlock V. Grigsby, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, P.J., THOMAS and MYERS, JJ.
   KING, P.J.,

for the Court.

¶ 1. Ramsey Robinson was convicted of aggravated assault in the Jackson County Circuit Court and sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections. Aggrieved, Robinson appeals and raises the following issues which we quote verbatim:

I. The trial court erred in failing to grant defendant’s motion for a directed verdict as the State failed to prove the necessary elements of aggravated assault and the verdict was against the overwhelming weight of the evidence.

II. The court erred in failing to require the State of Mississippi to provide race-neutral reasons for exercise of its peremptory challenges after the defendant made a prima facie case of discriminatory use of such challenges.

FACTS

¶ 2. On February 12, 2001, Robinson visited one of his elderly relatives, Ms. Hester Prince, in Pascagoula. According to Ms. Prince, Robinson ate breakfast with her that morning, asked her for some money, and used her telephone. Ms. Prince gave Robinson fifty cents, after which he left. After his departure, Ms. Prince called Robinson’s mother and stated that Robinson had just had breakfast with her.

¶ 3. Later that day, Ms. Prince heard a knock at her back door. Ms. Prince testified that as she opened the door, Robinson rushed in, threw something at her, began fighting her, and chased her throughout her home. Ms. Prince stated that Robinson struck her in the head with a chair.

¶ 4. At approximately 5:30 p.m., Mrs. Carolyn Robinson, a relative, called Ms. Prince. Mrs. Robinson testified that, on the telephone, Ms. Prince sounded like she was in pain or sick. Because Ms. Prince lived alone, Mrs. Carolyn Robinson and another relative, Juanita Robinson, went to Ms. Prince’s home, where they found her injured and bleeding. Carolyn Robinson called 911 for medical assistance.

¶ 5. Officer Michael Byrd of the Pasca-goula Police Department was dispatched to Ms. Prince’s home; he noticed that Ms. Prince had a cut along her neck and a “big cut” on her forehead. Officer Byrd retrieved a “Lin-x” paint can from her home which had blood all over it and what appeared to be fingerprints.

¶ 6. Ms. Prince was transported by ambulance to Singing River Hospital where she indicated to her family that Ramsey Robinson was her attacker.

¶ 7. Officer Wendell Green of the Pasca-goula Police Department testified that he went to the hospital and asked Ms. Prince who had attacked her, to which she stated that Ramsey Robinson was the person that assaulted her.

¶ 8. Officer Kenny Johnson also from the Pascagoula Police Department talked with Ms. Prince. He took photographs of her injuries and attempted to question her. He stated that, while it was hard for her to talk due to the injuries to her throat, she did state that Ramsey Robinson was her attacker.

¶ 9. Jimmy Perdue of the Mississippi Crime Lab testified that one of the prints developed from the Lin-x can matched the fingerprint on the fingerprint card bearing the name Ramsey Clark Robinson.

¶ 10. On June 21, 2001, Robinson was indicted for aggravated assault pursuant to Mississippi Code Annotated Section 97-3-7(2)(b). After a jury trial on May 13 and 14, 2002, Robinson was convicted of aggravated assault. Robinson filed a motion for a judgment notwithstanding the verdict or in the alternative a new trial, which was denied.

ISSUES AND ANALYSIS

I.

Whether the weight and sufficiency of the evidence support the verdict.

¶ 11. Robinson contends that the evidence lacks the weight and sufficiency necessary to support a verdict of guilty. Robinson argues that the only direct evidence presented by the State was that of Ms. Prince, whom he described as being diagnosed with dementia. He also suggests that the physical evidence contradicts the testimony.

¶ 12. In addressing questions of weight and sufficiency of the evidence, this Court adheres to the following standard:

A reviewing court will not reverse and remand for a new trial on the basis that the verdict is against the overwhelming weight of the evidence unless it can conclude that allowing the verdict to stand will sanction an unconscionable injustice.

McClain v. State, 625 So.2d 774, 781 (Miss.1993).

On the other hand, sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with McClain’s guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Id. at 778 (citations omitted).

¶ 13. The State offered testimony that at the time of this attack Ms. Prince lived alone, supported herself, and prepared her own meals. The State offered Ms. Prince’s identification of Robinson as her attacker. The State offered testimony from the police officers that on at least two separate occasions Ms. Prince identified Robinson as her attacker.

¶ 14. Ms. Prince’s treating physician noted that she was somewhat forgetful at times, but there was no reason to believe that she suffered dementia prior to the attack.

¶ 15. The jury is charged with the responsibility of weighing the evidence, considering the conflicts in the evidence, and assessing the credibility of the witnesses. Moore v. State, 773 So.2d 984(¶ 6) (Miss.Ct.App.2000). The jury resolved these matters in favor of the State’s witnesses. Upon reviewing the record in this case, this Court cannot say that the jury’s decision was unsupported by credible evidence, nor can it say that the decision inflicts an unconscionable injustice upon Robinson.

II.

Whether the trial court erred in failing to require the State to provide race-neutral reasons for exercise of its peremptory challenges after Robinson made a prima facie case of discriminatory use of such challenges.

¶ 16. Robinson alleges that the State’s use of three of its peremptory challenges against African American jurors constituted a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Robinson contends that the trial court erred by failing to require the State to have racially neutral reasons for exercising its peremptory strikes.

¶ 17. On appellate review of this issue, the trial court’s decision is accorded great deference and will be reversed only when such decision is clearly erroneous. Walker v. State, 815 So.2d 1209(¶ 12) (Miss.2002).

' ¶ 18. Previously Batson required that the party objecting to the peremptory challenges must show: (1) that he is a member of a “cognizable racial group;” (2) that the prosecutor has exercised peremptory challenges toward the elimination of veniremen of his race; and (3) that facts and circumstances raised an inference that the proponent used his peremptory challenges for the purpose of striking minorities. Gibson v. State, 731 So.2d 1087(¶ 24) (Miss.1998). “However, this test was modified by the Supreme Court’s decision in Powers v. Ohio, 499 U.S. 400, 415, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), in which the Court held that a defendant may object to racially-based exercises of peremptory challenges whether or not the excluded jurors and the defendant are of the same race.” Borne v. State, 816 So.2d 425(¶ 4) (Miss.Ct.App.2002). We note that the Mississippi Supreme Court has adopted the holding in Powers as well. Id. Therefore, the pivotal question is whether the opponent of the strike has met the burden of showing that the proponent has engaged in a pattern of strikes based on race or gender, or in other words the totality of the relevant facts gives rise to an inference of discriminatory purpose. Id.

¶ 19. The trial court found that Robinson had established a prima facie case of the discriminatory exercise of peremptory strikes and thus required the State to offer racially neutral reasons for its exercise of peremptory strikes. When the State offers such reasons, the court is required to make an on-the-record determination that the peremptory strikes are facially race-neutral and are not a pretext for racial discrimination. Hatten v. State, 628 So.2d 294, 298 (Miss.1993).

¶ 20. The transcript reveals that Robinson’s attorney made a Batson challenge on the basis that three out of four blacks on the venire were struck. As to the first strike, the prosecutor stated that she asked to strike that person based on the response to her question of whether any family member or close friend had ever been charged with a crime. The potential juror indicated that he did in fact know someone who had been charged with a crime that fit into the category of family member or close friend. Regarding the next strike, the prosecutor indicated that she struck that person for the same reason that she struck the first person. In reference to the third strike, the individual stated that he was a friend of Robinson and last saw him approximately a year ago. Therefore, the prosecutor struck this person. The prosecutor did not strike another person mentioned by Robinson’s attorney. After the prosecutor stated her reasons for the exercise of the peremptory strikes, Robinson’s attorney was asked if he had further comment on the subject, he responded that he did not, thereafter the court stated on the record that it found the challenges to be racially neutral.

¶21. Finding no error in the trial court’s decision, we affirm.

¶ 22. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND ORDER TO PAY A FINE OF $10,000 AND RESTITUTION TO THE VICTIM IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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


source: Caselaw Access Project

author: BRIDGES, J.,

license: Public Domain

text:
    David S. LAWRENCE d/b/a Lawrence Investments, Appellant, v. Robert John RANKIN, Appellee.
    No. 2003-CA-00008-COA.
    Court of Appeals of Mississippi.
    April 13, 2004.

      G. Charles Bordis, Ocean Springs, attorney for appellant.
    Robert John Rankin, pro se.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. On or about January 27, 2000, Robert John Rankin filed a civil action to cancel cloud on title to real property and improvements located at 817 13th Street, Pascagoula, Mississippi. David Lawrence, d/b/a Lawrence Investments, filed an answer and counterclaim seeking a confirmation of title to the land. On November 9, 2000, Rankin filed an amended civil action to cancel cloud on title which added the United States Small Business Administration as a defendant.

¶ 2. On April 10, 2001, the Circuit Court of Jackson County issued a ruling which set aside the chancery clerk’s conveyance to Lawrence and found that the Chancery Clerk of Jackson County, Mississippi, failed to follow notice requirements set forth in Mississippi Code Annotated section 27-43-3 (Rev.2002). The circuit court further ordered Rankin to pay Lawrence the sum of $957.84, plus interest.

¶ 3. Lawrence now appeals to this Court. It should be noted that Rankin did not file a brief in this appeal.

STATEMENT OF THE ISSUES

I. DID THE LOWER COURT COMMIT MANIFEST ERROR IN FINDING THE CHANCERY CLERK FAILED TO COMPLY WITH MISSISSIPPI CODE ANNOTATED SECTION 27-43-3?

II. DID THE LOWER COURT ERR IN FAILING TO ENTER A FINDINGS OF FACT AND CONCLUSIONS OF LAW?

III. DID THE LOWER COURT COMMIT MANIFEST ERROR IN FAILING TO AWARD DAMAGES AND INTEREST TO DAVID LAWRENCE D/B/A LAWRENCE INVESTMENTS PURSUANT TO APPLICABLE STATUTES?

FACTS

¶ 4. Robert John Rankin is the owner of land and improvements located at 817 13th Street, Pascagoula, Mississippi. He acquired fee simple title by way of a quitclaim deed which was executed on September 26, 1979, and recorded in the Office of the Chancery Clerk of Jackson County.

¶ 5. For several years, Rankin had been delinquent in the payment of his land taxes. He was informed of the delinquent taxes, notices of delinquency and the ultimate forfeiture of property for failure to pay taxes.

¶ 6. In 1996, Rankin failed to pay taxes which were due on the above listed land for 1995 and the property was sold for delinquent taxes in August 1996. The land was bought by David S. Lawrence, d/b/a Lawrence Investments, who paid the taxes which became due on the land.

¶ 7. Prior to the date of forfeiture, the Chancery Clerk of Jackson County, Mississippi, conducted a title search on the land assessed to Rankin. A notice to landowner was forwarded to Rankin by the Chancery Clerk of Jackson County, Mississippi on June 26, 1998. The notice advised Rankin that his land had been sold to Lawrence on August 26, 1996, for delinquent taxes and that a failure to redeem the land from the tax sale prior to August 26, 1998, would result in a forfeiture. The clerk forwarded the notice to Rankin via certified mail and U.S. mail, postage paid. The delivery of certified mail was attempted on June 29, 1998 and July 14, 1998; however, the certified mail was returned as unclaimed. The clerk searched telephone directories, records in the Office of the Tax Collector, records in the Office of the City Tax Collector, school index and tax rolls, tax assessor records, and court department records in an effort to locate Rankin. An affidavit setting forth the diligent search of the chancery clerk was prepared by Mrs. Jeri Heidel, deputy clerk. Following the diligent search, the Sheriff of Jackson County attempted to personally serve Rankin with the notice to landowner. The sheriffs return indicates that the deputy sheriff was advised that Rankin “relocated.” There was also a notice made in the Mississippi Press, a local newspaper, on August 20/27,1998.

¶ 8. Rankin failed to redeem his land and the chancery clerk issued a “Chancery Clerk’s Conveyance, Land Sold for Taxes” to Lawrence on October 20, 1998, thereby selling and conveying the land to Lawrence.

ANALYSIS

I. DID THE LOWER COURT COMMIT MANIFEST ERROR IN FINDING THE CHANCERY CLERK FAILED TO COMPLY WITH MISSISSIPPI CODE ANNOTATED SECTION 27-43-3?

¶ 9. In his brief, Lawrence argues the chancellor committed manifest error in declaring the tax sale invalid and setting aside the chancery clerk’s conveyance which transferred title to the real estate to Lawrence.

¶ 10. Mississippi Code Annotated section 27-43-3 (Rev.2002) requires the chancery clerk to issue notice to landowners regarding the delinquent taxes and forfeiture. This section was amended in 1975, and the pertinent parts of the amended statute follow:

In the event the notice by mail is returned undelivered and the personal notice as hereinabove required to be served by the sheriff is returned not found, then the clerk shall make further search and inquiry ... [i]f personal notice is again issued and it is again returned not found and if notice by mail is again returned undelivered, then the clerk shall file an affidavit to that effect and shall specify therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the clerk and such action shall be noted on the tax sales record.

¶ 11. The Mississippi Supreme Court, in Hart v. Catoe, 390 So.2d 1001, 1002 (Miss.1980), stated that upon an examination of the above stated statute, it “indicates that stringent requirements were placed upon the chancery clerk to notify a landowner of the tax sale and the fact that title to the land sold would mature in the purchaser on a certain date.”

¶ 12. Without going into detail the acts taken by the chancery clerk in attempting to comply with the statute, to locate and notify Rankin, the record does state that the clerk filed an affidavit which certified that search was made in specific places, such as the phone directory, city tax directory, and sectional index and rolls, only to name a few. Additionally, personal notice by certified mail was issued on two separate occasions and both times service was “returned.” There is also mention in the record that notice was served by the sheriffs department with the result being a notation on the back that he (Rankin) was relocated. Finally, there is evidence that a publication was made as prescribed by statute.

¶ 13. However, after a comprehensive reading of the record, it is undisputed that the chancery clerk failed to file the supporting affidavits required by the statute when personal notice is returned undelivered. In Mississippi, it is public policy to favor and protect landowners from loss by its sale for taxes. Carmadelle v. Custin, 208 So.2d 51, 55 (Miss.1968).

¶ 14. The statute involved in the present ease must be given a strict construction, and its requirements fully satisfied. Such was not the case here. The failure of the supporting affidavit renders the tax deed to Lawrence void. The lower court was indeed correct in cancelling the tax deed and, therefore, the judgment of the chancellor is affirmed.

II. DID THE LOWER COURT ERR IN FAILING TO ENTER A FINDINGS OF FACT AND CONCLUSIONS OF LAW?

¶ 15. At the conclusion of the hearing, the chancellor instructed counsel for both parties to submit proposed findings of fact and conclusions of law within twenty days. However, prior to the expiration of the twenty day period, the chancellor entered a ruling declaring the tax sale and the clerk’s conveyance to Lawrence invalid. Lawrence claims that the failure of the chancellor to enter findings of fact and conclusions of law constitutes manifest, reversible error.

¶ 16. Lawrence partially relies on Turpin v. Turpin, and quotes the following from that case: “To aid in appellate review, findings of fact by the chancellor, together with the legal conclusions drawn from those findings, are required.” Turpin v. Turpin, 699 So.2d 560, 565(¶ 16) (Miss.1997). While this is certainly true, it only applies to certain instances in DOMESTIC cases, which in the case of Turpin, involved division of marital assets as well as the award of periodic and/or lump sum alimony.

¶ 17. However, Mississippi Rules of Civil Procedure Rule 52 provides that:

[i]n all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specifically and state separately its conclusions of law thereon and judgment shall be entered accordingly.

In Tricon Metals & Services, Inc. v. Topp, 516 So.2d 236, 239 (Miss.1987), the Mississippi Supreme Court addressed a trial court’s responsibility to provide findings of fact and conclusions of law absent a party’s request to do so, which is the case sub judice. The court in Tricon held that the word “may” in Rule 52 should be construed to read “generally should” in complex cases, and failure to make such findings “will generally be regarded as an abuse of discretion.” Id. at 239.

¶ 18. Obviously this is not a domestic case, and this Court finds that this case is neither complex nor complicated. While we feel the chancellor should have made such findings and conclusions, this in no way creates manifest, reversible error.

III. DID THE LOWER COURT COMMIT MANIFEST ERROR IN FAILING TO AWARD DAMAGES AND INTEREST TO DAVID LAWRENCE D/B/A LAWRENCE INVESTMENTS PURSUANT TO APPLICABLE STATUTES?

¶ 19. Lawrence claims that the lower court erred in its ruling, dated May 7, 2002, in which the court ordered Rankin to refund Lawrence the taxes paid, plus interest at the rate of 8% per annum.

¶20. Mississippi Code Annotated section 27-45-3 involving redemption of land sold for taxes, states in pertinent part, as follows:

The owner, or any persons for him with his consent, or any person interested in the land sold for taxes, may redeem the same, or any part of it ... by paying to the chancery clerk, regardless of the amount of the purchaser’s bid at the tax sale, the amount of all taxes for which the land was sold, with all costs incident to the sale, and five percent (5%) damages on the amount of taxes for which the land was sold, and interest on all such taxes and costs at the rate of one and one-half percent (1-1/2%) per month, or any fractional part thereof, from the date of such sale, and all costs that have accrued on the land since the sale, with interest thereon from the date such costs shall have accrued, at the rate of one and one-half percent (1-1/2%) per month, or any fractional part thereof.

¶ 21. We find that the chancellor erred in not ordering that Rankin pay to Lawrence the interest due him as provide by the statute at one and one half percent per month, together with damages thereon at a rate of 5% per annum on such amount due as provided by statute. We are reversing this matter so that the chancellor can calculate the amount of taxes due and owing, plus said interest and damages, said amount to be ordered paid by Rankin to Lawrence.

¶ 22. We find no provision in the law for the assessment of attorney’s fees in a case such as the case sub judice. Therefore, this Court cannot order that attorney’s fees be paid. Further this Court cannot assess or order attorney’s fees in a case unless same was ordered in the trial court. Since there is no provision for the payment of such, this Court has no authority to order attorney’s fees.

¶ 23. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS AFFIRMED IN PART AS TO ISSUES I AND II AND REVERSED AND REMANDED IN PART AS TO ISSUE III. COSTS OF THIS APPEAL ARE ASSESSED, ONE HALF TO THE APPELLANT AND ONE HALF TO THE APPELLEE.

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


text:
    Michael David FLOYD, Appellant, v. Leah Marie FLOYD, Appellee.
    No. 2002-CA-01107-COA.
    Court of Appeals of Mississippi.
    April 13, 2004.

      James B. Wright, Gulfport, attorney for appellant.
    Leah Marie Floyd, appellant, pro se.
    Mark H. Watts, Pascagoula, attorneys for appellee.
    Before SOUTHWICK, P.J., BRIDGES, THOMAS AND GRIFFIS, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. Michael Floyd is appealing the chancellor of Jackson County’s decision to deny both his motion to set aside his divorce order and his motion to set aside his order of contempt.

STATEMENT OF THE ISSUE

I. WHETHER THE CHANCERY COURT ERRED IN FINDING THAT THE DEFENDANT WAS GIVEN PROPER NOTICE UNDER RULE 81 OF THE MISSISSIPPI RULES OF CIVIL PROCEDURE?

FACTS

¶ 2. In late February of 1999, Leah Floyd filed a complaint for divorce. Her husband, Michael Floyd, was personally served and his attorney filed an answer on his behalf. Michael’s attorney requested DNA testing and filed a motion to compel. Leah’s attorney filed a request for temporary relief which was signed by the special master and approved by the trial judge in November. On May 3, 2000, both parties appeared before the court. At that hearing the parties reached a verbal agreement regarding property settlement and Michael specifically answered that he understood and agreed to the settlement agreement. Michael never signed the divorce papers that were drafted as a result of those proceedings even though Leah attempted to reach him through personal service and service through his attorney.

¶ 3. In October 2000, Leah filed a motion for contempt regarding Michael’s failure to comply with the order for temporary relief. Then in an order dated November 6, 2000, Michael’s attorney was permitted to withdraw as counsel and in the same order the hearings on the motion for contempt was set for January 3, 2001. The clerk’s general docket reflects that two notices of the court setting the hearing for the contempt motion for January were issued. In December 2000, notice was given by the court setting the trial date for June 13, 2001, with testimony taken in January.

¶ 4. Following the January 3, 2001, hearing an order was issued finding Michael in contempt and sentencing him to thirty-days and also ordering him to pay $1,106 in child support arrearages and $990 in attorney’s fees. On June 13, 2001, a judgment for divorce was entered incorporating the verbal agreement reached at the May 3, 2000 hearing. Michael was not at either of these hearings. Through counsel he requested the trial judge to set aside the findings in both citing Leah’s failure to comply with the requirements of Rule 81. Michael is appealing the trial judge’s refusal to set aside the January 2001 contempt order and the June 2001 judgment of divorce.

ANALYSIS

I. WHETHER THE CHANCERY COURT ERRED IN FINDING THAT THE DEFENDANT WAS GIVEN PROPER NOTICE UNDER RULE 81 OF THE MISSISSIPPI RULES OF CIVIL PROCEDURE?

¶ 5. When Leah filed her complaint she properly served Michael with a Rule 81 summons. Michael answered the complaint and appeared in court for the first hearing. These actions gave the Chancery Court of Jackson County personal jurisdiction over Michael in this matter. It appears from the court docket that notice was sent when the hearings were set for January 3, 2001, at 9:30 a.m. and June 13, 2001 at 9:30 a.m. However, Michael argues these notices were not made with a Rule 81 summons and therefore they were improper and he should not be bound by the results of the hearings. Copies of these notices were not provided for review on appeal.

¶ 6. Rule 81(d) enumerates certain matters which require thirty days’ notice and some which require seven days’ notice by summons to a specific time and place. The motion for contempt filed by Leah is a seven day matter and the motion to enforce divorce settlement is a thirty day matter. Notice for the contempt motion is entered on the court docket as October 24, 2000, and the hearing was held on January 3, 2001, which was more than seven days’ notice. And this notice was issued fourteen days before Mr. Taylor was allowed to withdraw as Michael’s counsel. Notice for the motion to enforce divorce settlement is listed on the court docket on December 20, 2000 and the hearing was set for June, 13, 2001. This gave more than thirty day’s notice.

¶ 7. In Serton v. Serton, 819 So.2d 15 (Miss.Ct.App.2002), on one issue Mr. Ser-ton was before the chancellor facing contempt charges for failure to pay child support. Although Mr. Serton was at the hearing, this Court did not allow Mr. Ser-ton’s order of contempt to stand because he had not been properly served. Id. at 21(¶ 24). The certificate of service for the motion stated that it was served by mail and the court found no proof that a Rule 81 summons had been issued. Id. at (¶ 23). In its ruling the Court states that “service by mail, without an accompanying summons issued in accordance with the dictates of Rule 81(d)(5), does not provide the requisite service of process which will enable the court to act.” Id. at (¶ 24). (citing Caples v. Caples, 686 So.2d 1071 (Miss.1996); Sanghi v. Sanghi, 759 So.2d 1250 (Miss.Ct.App.2000)).

¶ 8. In Caples, the case that Serton cites as authority, Mr. Capíes received notice and a summons to a hearing to modify child custody. Caples, 686 So.2d at 1074. However, the Mississippi Supreme Court found the notice to be defective and refused to uphold the hearing’s findings. Id. It found that service was defective because the summons did not fully comply with either Rule 81(d)(4) or Rule 81(d)(5), in that it required Mr. Capíes to answer the motion and failed to provide a time and place for the hearing. Id.

¶ 9. “Although a Rule 81 summons must be served and personal jurisdiction is not lost once a court has personal jurisdiction over the defendant at the time of the divorce, Rule 81 matters (such as contempt), because of their nature, require special notice.” Reichert v. Reichert, 807 So.2d 1282, 1287 (citing Powell v. Powell, 644 So.2d 269, 274 (Miss.1994)). Reichert also holds that a notice of hearing is not a sufficient notice to comply with Rule 81 and that this rule must be strictly complied with in order for the judgment to be valid. Reichert, 807 So.2d at 1289.

¶ 10. In the case at bar the motion for contempt and the notice of the second hearing for the judgment of divorce are separate matters listed under Rule 81(d) and both require a proper Rule 81 summons. Had the first hearing for the judgment been properly continued on the record, a second summons would not have been necessary for that issue. Sanghi, 759 So.2d at 1257(¶ 32). In the notice that was sent, the docket entries indicate that for both proceedings notice was issued of the court’s setting the motion for a date and time specific but it does not specifically mention that the notices were a Rule 81 summons. No physical copies of these notices were provided for our review, so the specifics of their content are not known.

¶ 11. In Leah’s motion for contempt, her certificates of service provide that she mailed a copy of the motion to Michael’s attorney on September 6, 2000. This document also contains a “Notice of Motion” which does provide a time and place for the hearing, October 18, 2000, which would have been sufficient; however, it was not the date on which the hearing was eventually held. This hearing was held on January 3, 2001, and no item, either in the records or listed on the docket, reflects that anything was issued regarding the change, except the docket entry of notice on October 24, 2000.

¶ 12. The motion for a second hearing to enforce the divorce agreement was filed by Leah on July 25, 2000, and its certificate of service stated that a copy was mailed to Michael’s attorney on that same day. This certificate of service did not contain a “Notice of Hearing,” giving the date and time of the hearing. It appears from the docket entries that notice was issued regarding the setting of the hearing for August 18, 2000, but again the date was changed and another notice was sent. The hearing was eventually held on June 13, 2000.

¶ 13. Rule 81 requires strict compliance. The docket does not reflect that summons was issued for either of the hearings and neither party provided a copy for the Court’s review. This Court finds that Mrs. Leah Floyd did not strictly comply with the requirements of Rule 81 in her motions for contempt and motion to enforce their divorce agreement. Therefore, the judgment of divorce and the order of contempt are held to be void and are reversed and remanded.

¶ 14. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS REVERSED AND REMANDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: THOMAS, J.,

text:
    Morgan V. McCLURG, Jr. a/k/a Morgan Vance McClurg, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-00324-COA.
    Court of Appeals of Mississippi.
    April 13, 2004.
    Morgan V. McClurg, Jr., appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

THOMAS, J.,

for the Court.

¶ 1. The State’s motion for rehearing is granted; the previous opinions of this Court are withdrawn and the following opinion substituted therefor.

¶ 2. On June 23, 2001, Morgan McClurg, Jr., an inmate in custody of the Mississippi Department of Corrections, filed a complaint in the Circuit Court of Leflore County against the State of Mississippi. McClurg asserted that he is a non-violent first time offender convicted and sentenced before January 1, 2000, and therefore must serve eighty-five per cent of his sentence while similarly situated offenders convicted after January 1, 2000, may be eligible for parole after serving only twenty-five per cent of their sentences pursuant to Mississippi Code Annotated § 47-7-3(Z )(i). McClurg argued the distinction in parole eligibility made between similarly situated offenders, specifically those first-time offenders convicted of non-violent crimes, merely on the basis of the timing of their conviction is a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

¶ 3. The circuit court dismissed the complaint, finding McClurg lacked standing to complain because with twelve sentences, he was not a first-time offender. McClurg timely filed notice of appeal in forma pau-peris. The circuit court found the petition to be one for post-conviction relief and the motion to proceed in forma pauperis was granted. In our original opinion handed down June 24, 2003, we reversed the decision of the trial court and remanded the case for determination of whether or not McClurg was a first-time offender as defined in our first opinion and thus has standing to bring suit.

¶ 4. We held that Judge Sanders was in error in treating McClurg’s case as a petition for post-conviction relief, that this was a regular civil suit and that the Department of Corrections and the Parole Board should have been made proper parties and properly served so as to allow them to defend. Nonetheless, we went on to hold that since the Attorney General had filed an appellate brief and would be representing the Parole Board and MDOC in any event, that we should proceed to a decision on the merits of the case.

¶ 5. In its motion for rehearing, the State correctly points out that our original opinion places them in a “Catch-22” position: if the Attorney General accepts the trial court’s order that the case is a PCR and files a brief, they thereby waive service of process if the appellate court rules the case is not a PCR. If the Attorney General ignores the lower court’s order and does not file a brief, thereby not waiving process, it runs the risk the appellate court will agree the case is a PCR and that a brief should have been filed.

¶ 6. We hold that McClurg should never have been allowed to proceed on appeal informa pauperis in as much as this is not a PCR, and that the original suit should have been dismissed for failure to properly name and serve the actual parties in interest, namely the Parole Board and Department of Corrections. In view of the fact the circuit court dismissed the complaint, albeit for the wrong reason, we nonetheless are able to affirm the circuit court because of the longstanding rule that we may affirm the trial court when it reaches the right result but for the wrong reason. Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993).

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OP LEFLORE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LE-FLORE COUNTY.

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


author: HARWOOD, Justice.

text:
    GAYFER MONTGOMERY FAIR CO. d/b/a Dillard’s v. Pinkey Burns AUSTIN.
    1012159.
    Supreme Court of Alabama.
    June 27, 2003.
    Timothy A. Palmer and Brian R. Bostick of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, for appellant.

      Raymond L. Jackson, Jr., and Lisa E. Boone of Jackson Law Offices, P.C., Auburn, for appellee.
   HARWOOD, Justice.

On March 15, 2002, Pinkey Burns Austin sued Gayfer Montgomery Fair Co. d/b/a Dillard’s (“Dillard’s”), her employer, seeking workers’ compensation benefits and damages for retaliatory discharge. Dillard’s is a Delaware corporation that owns and operates department stores throughout the United States; its principal place of business is in Arkansas. Dillard’s filed a motion to dismiss Austin’s retaliatory-discharge claim and to compel arbitration of that claim. In support of this motion, Dillard’s filed three affidavits of Diane Ledbetter, operations manager for the Auburn store, where Austin was employed, dated, respectively, April 9, 2002, May 17, 2002, and June 11, 2002; a copy of the “Rules of Arbitration” of Dillard’s (“the Rules”); and a copy of Austin’s signed “Acknowledgment of Receipt of Rules for Arbitration” (“the Acknowledgment”). Austin filed a response opposing the motion and submitted her own affidavit as evidentiary support for her opposition. Dillard’s then filed in the United States District Court for the Middle District of Alabama a petition to compel arbitration. Subsequently, Dillard’s filed a motion in the trial court seeking a protective order and requesting a stay of the proceedings in that court pending a ruling by the federal district court on the petition to compel arbitration, which Austin opposed. Dillard’s attached to this motion a copy of its petition to the federal district court to compel arbitration and a copy of the “Charge of Discrimination” Austin had filed with the Equal Employment Opportunity Commission (“the EEOC”). After a hearing, the trial court entered an order denying the motion for a protective order and for a stay filed by Dillard’s and denying the motion to compel arbitration filed by Dillard’s. That order stated:

“A Hearing was held on May 21, 2002 on [Dillard’s] Motion to Compel Arbitration, at which both parties submitted briefs to the Court. The Court took [Dillard’s] Motion to Compel Arbitration under advisement. Upon considering the parties’ Motions, briefs, and arguments, the Court is of the opinion that [Dillard’s] Motion for Protective Order and Request for Stay of this Proceeding is due to be Denied. The Alabama Supreme Court stated, A court should refuse to enforce an arbitration agreement where the record supports a determination of unconscionability.’ Ex parte Napier, 723 So.2d 49, 52 (Ala.1998). The Court finds this Arbitration Agreement unconscionable, as [Austin] was injured at work prior to being required to sign the Arbitration Agreement. Generally, applicable contract defenses, such as fraud, duress or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2 of the Federal Arbitration Act. Ex parte Colquitt, 808 So.2d 1018 (Ala.2001), citing Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 686-87, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996). [Dillard’s] should not be allowed to arbitrate the wrongful termination claim since [Austin] had incurred the work injury, which is the subject matter of this suit, prior to being compelled to sign the Arbitration Agreement. Furthermore, the Court finds that the above-styled case is in line with Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000)[, abrogated by Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003) ].”

According to Dillard’s, the federal district court thereafter “declined jurisdiction over [its] petition because the state court chose to rule on its state court motion.”

On August 20, 2002, Dillard’s appealed to this Court, presenting the following five issues:

“I. Whether arbitration agreements between employers and employees are unconscionable per se?
“II. Whether there was substantial record evidence presented by the plaintiff to support a finding of uneonsciona-bility?
“III. Whether the trial court’s holding impermissibly places arbitration agreements on different footing than other contractual terms in violation of United States Supreme Court precedent?
“IV. Whether the employment of a Sales Associate by a nationwide retailer to sell goods received from other states to customers from Alabama and other states involves interstate commerce?
“V. Whether the trial court should have stayed this action so that the issues could have been definitely resolved by the United States District Court as to both her state claims and the federal claims she is pursuing under the Americans with Disabilities Act?”

The standard of review for the denial of a motion to compel arbitration is well-settled. As stated in SouthTrust Bank v. Ford, 835 So.2d 990, 993 (Ala.2002) (quoting American General Finance, Inc. v. Morton, 812 So.2d 282, 284 (Ala.2001)):

“ ‘This Court reviews the denial of a motion to compel arbitration de novo. Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 502 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171, 1172 (Ala.1999). The party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction substantially affecting interstate commerce. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999).... “[A]fter a motion to compel arbitration has been made and supported, the burden is on the nonmovant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (opinion on application for rehearing) (Ala.1995).’ ”

I. Facts

The record reveals that Austin worked as a sales associate for Dillard’s at its Auburn store from August 1998 until January 2002. Ledbetter’s May 17, 2002, affidavit states, in relevant part:

“4. Dillard’s purchases clothing items and many other products and services from vendors throughout the United States. The merchandise that is sold in the Auburn store is purchased in other states and is transported to the Auburn store through a warehouse in Valdosta, Georgia. Most, if not all, of the clothing items sold in the Auburn store are purchased by Dillard’s buyers in states other than Alabama and are shipped to the Auburn and other Dillard’s stores throughout the United States for sale to the public.
“5. Many of the customers who shop in Dillard’s Store Number 273 [the Auburn store] are residents of other states. Auburn is only approximately 30 miles away from the Georgia state line and the store regularly has customers who are Georgia residents. Further, during football game weekends, we have customers in the store who are residents from the states of visiting teams ... Ms. Austin’s work as a Sales Associate affected Dillard’s business activities, including its interstate activities and its interstate sales of merchandise. Ms. Austin was paid by Dillard’s to wait on customers from states other than Alabama.
“6. Dillard’s regularly purchases and receives goods and services from numerous out-of-state vendors and Ms. Austin regularly used these goods in her job.... Dillard’s purchases Intimate Apparel products from Jodee (Florida), The Olga Company (Illinois), Donna Karan Intimates (New Jersey), Eileen West (North Carolina), Bali (Tennessee), and Vanity Fair Mills (Texas), as well as Burma, India and Hong Kong. As a sales associate, [Austin] and all other Dillard’s Sales Associates are expected to deal with customers and to help Dillard’s sell its merchandise to the public. Ms. Austin worked for Dillard’s in the Women’s Shoe Department, in the Intimate Apparel Department, and she also worked for a period of time answering the telephone for the Auburn store.
“7. Ms. Austin’s work in answering the telephone for the store also involved interstate activities. The store would often receive calls from out-of-state customers. The store regularly receives calls from Dillard’s stores in other states inquiring about particular merchandise; Dillard’s corporate personnel in Little Rock, Arkansas; Dillard’s division personnel in St. Petersburg, Florida; and Dillard National Bank personnel in Gilbert, Arizona. Ms. Austin was responsible for initially handling each of these telephone calls when she was responsible for answering the telephone for the store.
“8. Ms. Austin waited and conducted business on Dillard’s behalf with customers from states other than Alabama during her employment with Dillard’s. A recent example is a Dillard’s charge transaction rung on 01/11/02 at 12:56 p.m. — a sale in the amount of $58.05 to a West Point, Georgia customer.
“10. Ms. Austin’s paycheck was paid to her with funds from an out-of-state bank — Regions Bank in Little Rock, Arkansas. Further, Ms. Austin’s workers compensation insurance was provided through Liberty Mutual of Irving, Texas. Ms. Austin made claims and received benefits from this interstate insurance carrier.”

Austin originally worked in the shoe department at Dillard’s, but, as stated in her complaint, on April 21, 2000, she “was injured when she struck her right elbow against a steel post while retrieving a pair of shoes from the shoe store room.” Austin gave Dillard’s notice of her injury that day. Austin’s complaint also states, in pertinent part:

“9. [Her] doctor, Dr. Richard Herrick, M.D., has diagnosed [Austin] with ... compressive neuropathies, right carpal tunnel syndrome, epicondylitis, bilateral cubital tunnel syndrome, and myofacial pain/fibromyalgia. Dr. Herrick attributes the cause of these conditions to [her] workplace injury on April 21, 2000. “10. Dr. Herrick has imposed permanent workplace restrictions on [Austin] as a result of the April 21, 2000 injury.... [She] cannot perform tasks requiring repetitive pinching or grapping [sic], repetitive pushing, pulling or lifting, or tasks that require overhead lifting.”

According to Austin, because of the restrictions Dr. Herrick placed on her, Dillard’s assigned her to answer the store’s telephones from December 2000 until the end of November 2001, “as a form of light duty work.” As noted, Ledbetter’s May 17, 2002, affidavit stated that while Austin was answering its telephones, she was responsible for handling out-of-state calls from customers, other stores, and the corporate office. In August 2001, Dillard’s provided all of its employees with a copy of the Rules, which explained at one point that claims for workers’ compensation benefits were not covered by the Rules, “except for claims of retaliation.” The Rules also stated, in pertinent part:

“1. These Rules of Arbitration govern procedures in the arbitration of all covered disputes. [Dillard’s] and the Associate agree that the procedures provided in these Rules will be the sole method used to resolve any covered dispute arising between them. These rules do not preclude any associate from filing a charge with a state, local or federal administrative agency such as the [EEOC].
“Arbitration applies to any claims that could be made in a court of law, including the following Covered Disputes:
“Personal injuries except those covered by workers’ compensation.... “Retaliation for filing a protected claim for benefits (such as workers’ compensation) or exercising your protected rights under any statute.”

(Emphasis supplied.) Ledbetter stated in her April 9, 2002, affidavit, in part:

“6.... In August of 2001, Store Manager Patricia Hippely, Operations Secretary Beverly Marlett and I met with the employees in the Auburn Dillard’s on an individual basis to explain [the Rules]. Each employee was provided with his or her own copy of [the Rules].... [Austin] was provided with [a copy the Rules] and with an explanation of how [the Rules] work.
“7. During our meetings, we explained to the employees that [the Rules] would provide the sole method used to resolve any covered disputes arising between employees and Dillard’s.
“8. At the completion of our meetings, each associate was provided with [a copy of the Acknowledgment] for each employee to sign acknowledging their willingness to be bound by [the Rules].... By signing this document and continuing her employment with Dillard’s, Ms. Austin accepted and agreed to the provisions of [the Rules].”

The Acknowledgment Austin signed stated:

“The arbitration process offers a quick and fair way to resolve disagreements related to employment. This Agreement contains the rules and procedures Dillard’s and associates covered under the Agreement must follow to resolve any covered claims through arbitration. This Agreement does not waive anyone’s substantive legal rights, nor does this Agreement create or destroy any rights. It merely changes the forum where the dispute is resolved and the procedures to be followed. Arbitration does not prevent an associate from filing a charge with an administrative agency like the [EEOC].
“Effective immediately, all employees (as hereinafter defined) of Dillard’s, Inc., its affiliates, subsidiaries and Limited Liability Partnerships (the ‘Company’) shall be subject to the RULES OF ARBITRATION (the ‘Rules’) described below. Employees are deemed to have agreed to the provisions of the Rules by virtue of accepting employment with the Company and/or continuing employment therewith.
“I ACKNOWLEDGE RECEIPT OF THE AGREEMENT TO ARBITRATE CERTAIN CLAIMS AND RULES OF ARBITRATION.”

(Capitalization in original.)

In her affidavit, Austin stated that Dillard’s “withheld the paycheck of any employee that did not voluntarily come into the personnel office to sign the arbitration acknowledgement [sic] form. [Dillard’s] withheld my check until I signed the form.... ” Austin signed the Acknowledgment on August 3, 2001, while still on “light duty work” answering the telephone and thereafter continued working at Dillard’s. In her affidavit she contends:

“It was my understanding that I was merely acknowledging the receipt of [the Rules], when I signed the [Acknowledgment] form. I was not informed that the alleged arbitration agreement would apply to legal claims arising out of my pre-existing injury. In fact, I believed that the alleged arbitration agreement would not apply to any claims related to my pre-existing injury. If I had known that Dillard’s would take the position that my signing of the [Acknowledgment] form deprives me of my right to have a jury decide claims related to my injury and my ultimate termination, I would not have signed the [Acknowledgment].”

Austin, in the “Charge of Discrimination” she filed with the EEOC, stated that Ledbetter told her that she could no longer work answering the telephones “because the corporate office objected to paying [her] $9.95 per hour to answer the phones. Initially, I was placed on medical leave for six months. Subsequently, I was involuntarily taken off of medical leave and told by [Ledbetter] to return to work on the sales floor.” In December 2001, Dillard’s assigned Austin to the intimate apparel department. In the “Charge of Discrimination,” Austin also contended that

“[w]orking in the intimate apparel department required me to do repetitive pinching and grabbing.... This work causes me to suffer severe pain in my right arm.... My employer has refused to reassign me to another position that does not involve repetitive pinching and grabbing.... My employer also refused to place me on medical leave.”

In her complaint, Austin asserted that “due to the pain associated with her April 21, 2000, workplace injury and the aggravation of that injury by working in the intimate apparel department, [she] had to repeatedly miss work.” Dillard’s terminated Austin’s employment on January 29, 2002, purportedly because of excessive absenteeism. Austin stated in her complaint that her “termination was in retaliation for her reporting her workplace injury ... and for insisting that her employer comply with the requirements of the Alabama Workers’ Compensation Act.”

II. Unconscionability

In Leonard v. Terminix International Co., 854 So.2d 529 (Ala.2002), this Court stated that “[t]he applicable standards for determining unconscionability are set forth in American General Finance[, Inc. v. Branch], 793 So.2d [738] at 748 [(Ala.2000) ] — whether there are (1) terms that are grossly favorable to a party that has (2) overwhelming bargaining power.” 854 So.2d 538. As noted, the trial court stated that the arbitration agreement evidenced by the Rules and the Acknowledgment was unconscionable because “[Austin] was injured at work prior to being required to sign the Arbitration Agreement.” The trial court further stated that “[Dillard’s] should not be allowed to arbitrate the wrongful termination claim since [Austin] had incurred the work injury, which is the subject matter of this suit, prior to being compelled to sign the Arbitration Agreement.” In her brief to this Court, Austin asserts that “[t]o the extent that the alleged arbitration agreement applies to legal claims arising out of preexisting work related injuries, the agreement is unconscionable and unenforceable under Alabama law”; however, the legal claim at issue, i.e., Austin’s retaliatory-discharge claim, does not arise directly from her preexisting work-related injuries. Austin’s injuries are not the focus of that claim; she does not contend that she was terminated simply because she was injured. Rather, she asserts in her brief, as she did in her complaint, that she was terminated “for reporting her workplace injury and for insisting that Dillard’s comply with the requirements of the Alabama Workers’ Compensation Act.” At the time Austin signed the Acknowledgment, she did not have either an existing claim or an anticipated or prospective claim for retaliatory discharge because she had not been fired, and she does not suggest that at the time she signed the Acknowledgment, either she or Dillard’s was contemplating that her employment might ultimately be terminated. In Austin’s response to the motion to dismiss and to compel arbitration filed by Dillard’s, she asserted:

“[T]o the extent that the arbitration agreement applies to legal claims arising out of preexisting injuries, the agreement is unconscionable and unenforceable under Alabama law. See, [Ala.Code 1975,] § 5-19-16 (restating the common law duty of Alabama courts to set aside unconscionable agreements.). There could not be a more unconscionable form of a contract of adhesion than an arbitration agreement forced upon a previously injured worker.”

In Green Tree Financial Corp. of Alabama v. Wampler, 749 So.2d 409, 415 (Ala.1999), this Court stated:

“Unconscionability is an affirmative defense. The party asserting an affirmative defense has the burden of proof. The party asserting unconscionability as a defense to the enforcement of an arbitration clause has the burden of proof on that issue.”

(Citations omitted.)

In Austin’s brief to this Court, she argues, in response to the argument by Dillard’s that no evidence of unequal bargaining power on the part of Dillard’s was presented, the following:

“Dillard’s is incorrect in asserting that there is no evidence that Austin .was unable to obtain other employment if she had refused to sign [the Acknowl-edgraent] and had been fired. The record shows that Austin had suffered a debilitating arm injury and had been assigned to a ‘light duty’ job at the time that Dillard’s presented [the Acknowledgment] to her.... An injured worker is not able to compete for jobs in the marketplace as uninjured workers; therefore, injured workers are part of a statutorily created protected class of persons who cannot be fired (or threatened with termination) for asserting their statutory rights.”

All Austin argued to the trial court and all she argues to this Court is that she could not have found equivalent employment at the time she was forced to sign the Acknowledgment, pursuant to which she agreed to arbitrate her disputes with Dillard’s, because she had limited use of her right arm. She has never argued that her preexisting injury or any pain or distress resulting from it in any way compromised or limited her mental ability, her emotional state, or her ability otherwise to read and comprehend the Rules and the Acknowledgment and to knowingly decide whether to enter into the arbitration agreement represented by those documents. In fact, she states in her affidavit that she could perform the light work of answering the telephones “with minimal pain and discomfort.” Austin was not singled out as a targeted employee to agree to arbitration. She states in her affidavit that Dillard’s “forced all of the employees ... in Auburn, Alabama to sign the arbitration acknowledgement [sic] form.” In Ledbetter’s April 9, 2002, affidavit, she attested that all Dillard’s employees are asked to sign an Acknowledgment and that she herself signed one.

As noted, Austin asserted in her affidavit:

“I was not informed that the alleged arbitration agreement would apply to legal claims arising out of my pre-exist-ing injury. In fact, I believed that the alleged arbitration agreement would not apply to any claims related to my preexisting injury. If I had known that Dillard’s would take the position that my signing of the [Acknowledgment] form deprives me of my right to have a jury decide claims related to my injury and my ultimate termination, I would not have signed the [Acknowledgment].”

Austin does not contend that Dillard’s misrepresented the meaning of the Rules or the Acknowledgment. Accordingly, what this Court had to say in First Family Financial Services, Inc. v. Rogers, 736 So.2d 553, 558 (Ala.1999), is equally apposite here:

“[The plaintiffs] argue that the [arbitration agreement] is unconscionable because, they say, they did not understand that they were agreeing to arbitrate disputes arising out of past transactions. ...
“... The [arbitration agreement] is clear, and in unmistakable terms it obligates the plaintiffs to arbitrate their disputes with [the defendant]. There is no evidence that the plaintiffs could not have understood what they were signing if they had taken the time to read the document. There is also no evidence that the plaintiffs were denied the opportunity to read the document or that they were otherwise tricked into signing it. In fact, the plaintiffs do not even argue that they were incapable of reading and understanding the document or that their signatures were fraudulently induced.”

Although Austin argues indirectly that Dillard’s possessed overwhelming bargaining power in the transaction in which it obtained her signature on the Acknowledgment, she never addresses the other required component of unconscionability identified by American General Finance v. Branch, 793 So.2d 738 (Ala.2000) — whether the terms of the arbitration agreement represented by the Rules and the Acknowledgment are grossly favorable to the party that has the overwhelming bargaining power.

She identifies no terms in the Rules or Acknowledgment grossly favorable to Dillard’s, and our own review of those documents discloses none. On the contrary, as Dillard’s points out in its brief to this Court, the agreement to arbitrate was equally binding on the parties; it did not limit the types of damages, such as, for example, punitive damages, Austin could recover; and her share of the arbitration fee, $100, was not disproportionate to the amount in controversy and would be reimbursed if the arbitrator found in her favor. The Rules provided Austin with an option to first seek an “internal review” before proceeding to arbitration; gave her a choice in arbitrators; allowed her to be represented at the arbitration by anyone, including an attorney; allowed prehearing discovery; and did not restrict her right to sue other parties who might have legal liability. The only thing the Rules do is specify and limit the forum in which Austin may proceed, which necessarily eliminated her right to a trial before a jury. However, as this Court stated in Ex parte McNaughton, 728 So.2d 592, 597-98 (Ala.1998):

“Instead of suffering unconscionable treatment, a party, ‘by agreeing to arbitrate, ... “trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.” ’ Gilmer [v. Interstate/Johnson Lane Corp.], 500 U.S. at 31, 111 S.Ct. 1647 [(1991)] (citations omitted).”

Even if we assume for the sake of analysis that Austin’s status as an injured and rehabilitating employee assigned to “light duty” work so reduced her opportunity for alternative employment in the job market as to provide Dillard’s with overwhelming bargaining power, nonetheless, because Austin directs our attention to no terms in the Rules that were grossly favorable to Dillard’s, we cannot agree that the agreement to arbitrate was unconscionable. We need not resolve the issue of overwhelming bargaining power in this case because it is simply one part of a two-part test that must be satisfied in order to prove uncon-scionability, and Austin has failed to carry her burden of proving the second part, i.e., that the Rules and/or the Acknowledgment contained “terms that are grossly favorable to a party that has ... overwhelming bargaining power.” American General Finance, 793 So.2d at 748. “Moreover, the Supreme Court has stated: ‘Mere inequality in bargaining power ... is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context.’ Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991).” Ex parte McNaughton, 728 So.2d at 597. Because Austin did not carry her burden in establishing that the arbitration agreement represented by the Rules and the Acknowledgment was unconscionable, we conclude that the trial court erred in finding that the agreement to arbitrate was unconscionable.

III. Substantial Effect on Interstate Commerce

We understand the concluding sentence of the trial court’s order, “[fjurthermore, the Court finds that the above-styled case is in line with Sisters of the Visitation v. Cochran Plastering Co. ...,” to represent a finding that the transaction evidenced by the Rules and the Acknowledgment, which Austin was required to sign in order to remain employed, did not substantially affect interstate commerce. However, in Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56-57, 123 S.Ct. 2037, 2040 (2003), the United States Supreme Court rejected the test set out in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000), and explained:

“We have interpreted the term ‘involving commerce’ in the [Federal Arbitration Act] as the functional equivalent of the more familiar term ‘affecting commerce’ — words of art that ordinarily signal the broadest permissible exercise of Congress’ Commerce Clause power....
“... 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.’ Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948).”

As explained in Potts v. Baptist Health System, Inc., 853 So.2d 194, 198-99 (Ala.2002) (quoting AmSouth Bank v. Dees, 847 So.2d 923, 929 (Ala.2002)):

“ ‘Section 2 of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 2, provides in pertinent part:
“ ‘ “A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”
“ ‘Section 2 preempts conflicting Alabama law, including in particular Ala. Code 1975, § 8-1-41(3), which states that “[a]n agreement to submit a controversy to arbitration” cannot be specifically enforced.’ ”

Although the trial court erred in finding that the arbitration agreement was unconscionable, its order can still be upheld if the evidence adduced did not demonstrate that Austin’s employment “involved commerce” under Citizens Bank. Dillard’s argues that the transaction — Austin’s continued employment — did affect interstate commerce, and it presented Ledbetter’s affidavits in support of that argument.

Austin contends that her employment at the time she “was forced” to sign the Acknowledgment, involving answering the telephones, did not affect interstate commerce. In her brief to this Court, Austin contends that “[t]his Court must focus upon the narrow question of whether Austin’s part-time employment contract to answer telephones for a Dillard’s store substantially affects interstate commerce.” However, neither Austin nor Dillard’s asserts, nor does the record anywhere indicate, that Austin’s job position or job title ever changed from sales associate. Rather, it appears that she was assigned to light-duty work to accommodate her physical limitations. Her job-position designation did not change as far as the record reveals; she remained a sales associate who, in the interim after she was injured, was assigned to light-duty work and then placed on medical leave before being assigned to resume the functions of a sales associate in a new department.

Austin also asserts in her brief to this Court that by signing the Acknowledgment she did not agree to submit any claims to arbitration, but, instead, merely acknowledged her receipt of the Rules. Although the trial judge did not discuss this contention in his order, we may affirm the trial court’s order for any reason. Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). As noted, the Acknowledgment stated:

“Effective immediately, all employees ... of Dillard’s, Inc., its affiliates, subsidiaries and Limited Liability Partnerships (the ‘Company’) shall be subject to the RULES OF ARBITRATION (the ‘Rules’) described below. Employees are deemed to have agreed to the provisions of the Rules by virtue of accepting employment with the Company and/or continuing employment therewith.”

(Capitalization in original.) Further, the Rules state that “[Dillard’s] and the Associate agree that the procedures provided in these Rules will be the sole method used to resolve any covered dispute arising between them.” These facts are analogous to the facts in Baptist Health System, Inc. v. Mack, 860 So.2d 1265 (Ala.2003). In Mack, we concluded that, by continuing her employment after she received a copy of a dispute-resolution program and by signing an acknowledgment of her receipt of the program, the employee had agreed to the terms of her employer’s dispute-resolution program. Accordingly, Austin, by signing the Acknowledgment and subsequently continuing her employment with Dillard’s, expressly agreed to be bound by the Rules.

We now consider whether Austin’s employment as a sales associate for Dillard’s “involved commerce,” in accordance with Citizens Bank, supra. Dillard’s is a Delaware corporation with its principal place of business in Arkansas. Austin is a resident of Lee County, Alabama. Ledbetter’s May 17, 2002, affidavit stated that, because the store is located approximately 30 miles from the Georgia state line, the Auburn store had many customers who were residents of Georgia. Ledbetter also attested that during football-game weekends, the Auburn store had customers who were residents of the states of the visiting teams.

Ledbetter’s affidavits establish that Austin, while answering the store’s telephones, regularly answered calls from out-of-state customers, from other Dillard’s stores located out-of-state, from its corporate office in Arkansas, from its division personnel in Florida, and from Dillard National Bank personnel in Arizona. Ledbetter stated that Austin was responsible for handling these telephone calls.

Attached to Ledbetter’s June 11, 2002, affidavit was a list of more than 40 transactions Austin had completed for customers using a credit card issued by Dillard’s with an out-of-state billing address, and we can therefore infer that the merchandise sold to those customers likely traveled out-of-state. This list included transactions involving customers with billing addresses in Arizona, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, South Carolina, and Texas.

Ledbetter affirmed in her May 17, 2002, affidavit that “[mjost, if not all, of the clothing items sold in the Auburn store are purchased by Dillard’s buyers in states other than Alabama and are shipped to the Auburn store.” (Emphasis supplied.) Further, Ledbetter attested in that affidavit that “[t]he merchandise that is sold in the Auburn store is purchased in other states and is transported to the Auburn store through a warehouse in Valdosta, Georgia.” Ledbetter stated that the merchandise in the women’s shoe department and the intimate apparel department, to both of which Austin was assigned, was purchased from such states as Florida, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, Oregon, Tennessee, and Texas, and from such countries as Brazil, China, Mexico, Indonesia, Burma, and India.

In its brief in support of its motion to compel arbitration and in its brief to this Court, Dillard’s asserts that its “inter-state activities are not divisible from its intrastate activities.” Dillard’s states:

“[W]hen [Dillard’s] sells an article of clothing, its price includes the expenses incurred to bring the merchandise to the public. Expenses incurred for the employment of Ms. Austin and other sales associates are incorporated into the price of the merchandise in the same manner as other expenses such as shipping costs, vendor expenses, and advertising expenses. Further, Ms. Austin is not paid directly for her transaction with out-of-state customers as compared with the in-state customers.”

In light of the aforementioned facts, we conclude that Dillard’s has shown that the aggregate effect of Austin’s employment did “satisfy the [Federal Arbitration Act’s] ‘involving commerce’ test.” Citizens Bank, 539 U.S. at 57, 123 S.Ct. at 2040. Also, the “general practice” that Austin’s employment contract represented, i.e., the sale of consumer goods by a national retailer, involved interstate commerce. Citizens Bank, supra; see also Katzenbach v. McClung, 379 U.S. 294, 302, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964)(“This Court has held time and again that this power [to regulate commerce] extends to activities of retail establishments, ... which directly or indirectly burden or obstruct interstate commerce.”). Further, Ledbetter also attested to the fact that “Austin’s paycheck was paid to her with funds from an out-of-state bank — Regions Bank in Little Rock, Arkansas.” In certain circumstances, this Court has held that that fact alone can satisfy the requirement of proving that an employment agreement had an effect on interstate commerce. See Ameriquest Mortgage Co. v. Bentley, 851 So.2d 458, 465 (Ala.2002) (“While [the employee] was employed as an account executive at Ameriquest, [the employee] received her monthly salary from Ameriquest’s California headquarters. This fact, which is undisputed, sufficiently satisfies Ameriquest and Harmon’s burden of proof regarding the employment contract’s effect on interstate commerce.”).

Accordingly, the trial court’s denial of the motion to compel arbitration filed by Dillard’s cannot be upheld on the basis that Austin’s employment with Dillard’s did not affect interstate commerce.

IV. Motion to Stay

In view of our disposition of the motion to compel arbitration, the arguments Dillard’s makes to the effect that the trial court erred by not staying the proceedings until the federal district court action was decided are moot.

V. Conclusion

The judgment of the trial court denying the motion to compel arbitration filed by Dillard’s is reversed and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

MOORE, C.J., and JOHNSTONE, J., dissent.

      . In its brief to this Court, Dillard's states that it "[does] not seek to compel arbitration of Austin’s underlying claim for workers' compensation benefits because that claim [is] expressly excluded under [its] Rules of Arbitration.”

      . Austin asserted in her response to the motion for a protective order and a stay filed by Dillard’s that she filed the EEOC complaint "merely to preserve her rights under the Americans with Disabilities] Act ... prior to the expiration of the 180-day time limit to file an EEOC complaint” and that she has not filed any federal-law claims.

      . After the trial court entered its order, Dillard's filed a motion to sever Austin's claim for workers’ compensation benefits from her retaliatory-discharge claim, which the trial court granted.

      . In American General Finance v. Branch, 793 So.2d 738 (Ala.2000), this Court stated that these two essential elements were formulated by consolidating the four components of the test described in Layne v. Garner, 612 So.2d 404, 408 (Ala.1992): " '(1) whether there was an absence of meaningful choice on one party’s part, (2) whether the contractual terms are unreasonably favorable to one party, (3) whether there was unequal bargaining power among the parties, and (4) whether there were oppressive, one-sided or patently unfair terms in the contract.’ ” 793 So.2d at 748.

      . The Rules provided that Austin and Dillard’s would receive a list of seven neutral arbitrators from which they would agree on an arbitrator, but it also provided that Austin could request a second or third list.

      . This Court stated in Selma Medical Center, Inc. v. Fontenot, 824 So.2d 668, 674 (Ala.2001):
      "It is well settled that Congress can regulate three broad categories of activity pursuant to its commerce power: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce or persons or things in interstate commerce; and (3) those activities having a substantial effect on interstate commerce."

      (Original emphasis omitted; emphasis supplied.)


author: SEE, Justice.

text:
    NATIONWIDE INSURANCE COMPANY v. Jason RHODES.
    1020160.
    Supreme Court of Alabama.
    June 27, 2003.

      J. Lenn Ryals and Jason J. Baird of Slaten & O’Connor, P.C., Montgomery, for appellant.
    Frank G. Alfano and Joseph P. Schilleci, Jr., of Gorham & Waldrep, P.C., Birmingham, for appellee.
   SEE, Justice.

Jason Rhodes suffered multiple injuries in an automobile accident involving a vehicle driven by James Green, an uninsured motorist. At the time of the accident, Rhodes lived in a mobile home that he and his wife owned at 1047 Fields Road in Bessemer. Before moving to his own mobile home approximately two years before the accident, Rhodes had lived for a year in a mobile home that he rented; before that he had lived with his parents at 9361 Old Toadvine Road, Bessemer.

At the time of the accident, Rhodes had an automobile-insurance policy with Nationwide Insurance Company (“Nationwide”). Rhodes’s father also had an automobile-insurance policy with Nationwide. After the accident, Rhodes sought coverage under the uninsured-motorist (“UM”) portion of his own policy. After exhausting the coverage limits of his own policy, Rhodes attempted to obtain additional coverage under the UM limits of his father’s Nationwide automobile-insurance policy. Nationwide denied Rhodes’s claim under his father’s policy, and Rhodes sued Nationwide seeking UM coverage under his father’s policy.

Nationwide moved for a summary judgment; Rhodes then moved for a summary judgment. The parties stipulated that the only dispute between them was whether Rhodes qualified as a covered “relative” within the meaning of his father’s automobile-insurance policy with Nationwide. The trial court entered a summary judgment for Rhodes, finding that the Nationwide insurance policy was ambiguous on that issue and awarding Rhodes $60,000 in UM benefits under his father’s policy. Nationwide appeals. Because we find that the trial court erred in finding that the language of the Nationwide policy was ambiguous, we reverse and remand.

We review a trial court’s summary judgment de novo, giving no presumption of correctness to the ruling by the trial judge. Gossett v. Twin County Cable TV, Inc., 594 So.2d 635, 638 (Ala.1992). To grant a motion for a summary judgment, the court must determine that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Mitchell v. Richmond, 754 So.2d 627, 628 (Ala.1999). In this case, the parties have stipulated that no genuine issue of material fact remains. Therefore, the only issue before the trial court, and before this Court on its de novo review, is whether Rhodes is entitled to a judgment as a matter of law.

“The issue whether a contract is ambiguous or unambiguous is a question of law for a court to decide. McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853, 855 (AIa.1991). ‘If the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court....’ Id. ...
“ ‘The test to be applied by [a] court in determining whether there is ambiguity is not what the insurer intended its words to mean, but what a reasonably prudent person applying for insurance would have understood them to mean.’ Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 21:14, pp. 21-23 (3d ed. 1997).... In determining whether an ambiguity exists, a court should apply the common interpretation of the language alleged to be ambiguous. See Alabama Farm Bureau Mut. Cas. Ins. Co. v. Goodman, 279 Ala. 538, 541, 188 So.2d 268, 270 (1966). This means that the terms of an insurance policy should be given a rational and practical construction. Green v. Merrill, 293 Ala. 628, 308 So.2d 702 (1975). Also, a court cannot consider the language in the policy in isolation, but must consider the policy as a whole. Turner v. United States Fidelity & Guar. Co., 440 So.2d 1026 (Ala.1983).”

State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 308-09 (Ala.1999).

The automobile-insurance policy Rhodes’s father had with Nationwide included UM coverage for “relatives”; it defined “relative” to mean “one who regularly lives in your household and who is related to you by blood, marriage or adoption (including a ward or foster child). A relative may live temporarily outside your household.” The trial court determined that this definition was ambiguous and that it should therefore be construed against the drafter, Nationwide. Crossett v. St. Louis Fire & Marine Ins. Co., 289 Ala. 598, 269 So.2d 869 (1972).

Rhodes presented the trial court with certain evidence he claimed proved that he “regularly live[d]” in his father’s household and that he was therefore entitled to coverage under both his own UM coverage and the UM coverage in his father’s policy. That evidence included evidence indicating that Rhodes slept at his parents’ house, with or without his wife, approximately one night a month; that he occasionally ate meals at his parents’ house; that he had a key to his parents’ house and came and went as he pleased; that a room at his parents’ house was designated as “his room” and that the furniture in that room was “his,” though his father had paid for that furniture; that he still received mail at his parents’ house; that he had not changed the address on his driver’s license or voter’s registration from his parents’ address to the address of the mobile home he owned with his pregnant wife; and that he claimed to have a “present intention” to return to his parents’ house.

Nationwide did not dispute the evidence Rhodes presented; rather, it disputed the inference to be drawn from that evidence. Nationwide points out that Rhodes stated in his deposition that he had been financially independent from his parents for several years; that he was a married, employed, 28-year-old man with a child on the way; and that even Rhodes’s own testimony showed that Rhodes slept most nights in his own mobile home. As for Rhodes’s claim that he had not changed the address on his driver’s license to reflect his new address because, he said, he resided with his parents, Nationwide points out that Rhodes obtained the driver’s license in 1999 while he still lived with his parents, and that in 2001 when the accident occurred the license had not yet come up for renewal. Also, we note that Rhodes’s acquisition of his own automobile-insurance policy indicates bis understanding that he needed separate insurance from that of his parents.

This Court held in Davis v. State Farm Mutual Automobile Insurance Co., 583 So.2d 225 (Ala.1991), that the term “live with” as used in an insurance policy was ambiguous as a matter of law, and in Ex parte American National Property & Casualty Co., 742 So.2d 1212, 1214-15 (Ala.1999), this Court held that the term “living in the same household” was likewise ambiguous. However, the Nationwide automobile-insurance policy in this case uses the term “regularly lives in your household,” which Nationwide argues is a phrase that has been properly modified to clarify any previous ambiguity. In support of this argument, Nationwide cites Nationwide Mutual Insurance Co. v. Budd-Baldwin, 947 F.2d 1098, 1102 (3d Cir.1991), in which the United States Court of Appeals for the Third Circuit noted that “words of refinement” can modify ambiguous words so as to remove the ambiguity.

The Alabama Court of Civil Appeals in B.D.B. v. State Farm Mutual Automobile Insurance Co., 814 So.2d 877 (Ala.Civ.App.2001), held that the modifier “primarily” clarified the ambiguity of the phrase “lives with you” so that the definition of a relative as “a person related to you or your spouse by blood, marriage, or adoption who lives primarily with you” was deemed not to be ambiguous. 814 So.2d at 879. In that case, the daughter, B.D.B., a minor whose primary physical custody was with her mother, was exercising scheduled visitation with her father when she was struck by a vehicle. The court determined that B.D.B. was not an “insured” under her father’s policy because she was not “a person ... who lives primarily with [her father]” even though she had visitation with her father two Saturdays a month and kept personal belongings at her father’s house. Id. Rhodes argues that Nationwide’s use of the word “regularly” to modify “lives with you” instead of the word “primarily” as did the policy at issue in B.D.B. distinguishes B.D.B. from his case. Nationwide’s argument, however, that B.D.B. is significant not merely for its adoption of a particular word as a modifier but for its consideration of modifiers to clarify previously ambiguous terms is well-taken.

“Regularly” is defined by the Webster’s Encyclopedic Unabridged Dictionary of the English Language (1989), as the adverbial form of “regular,” which is defined as “usual, normal or customary.” The Third Circuit Court of Appeals, considering the same phrase, held: “It appears to us that Nationwide heeded the Superior Court’s suggestion ... that insurers add ‘words of refinement’ if they intend the term ‘residence’ to mean something more than its common law definition.” Budd-Baldwin, 947 F.2d at 1102. Because the phrase “regularly lives in your household” is an unambiguous contract term, this Court must give that phrase its common, everyday meaning and interpret it as a reasonably prudent person in the insured’s position would have. See Alabama Farm Bureau Mut. Cas. Ins. Co. v. Goodman, 279 Ala. 538, 541, 188 So.2d 268, 270 (1966). We hold that the phrase “regularly lives in your household” is unambiguous, meaning someone who usually, normally, or customarily lives in the insured’s household.

Adopting that definition, we cannot say that Rhodes “regularly lives” in his parents’ household. His once-a-month overnight visits, occasional meals, and receipt of mail at his parents’ house do not indicate that the Old Toadvine Road residence is his usual, normal, or customary residence. Rhodes has provided no evidence of his professed “present intent to return” to his parents’ house, and the fact that he and his wife own another residence where Rhodes admittedly spends the greatest portion of his time weighs strongly against any conclusion other than that his mobile home is his usual, normal, or customary residence.

Because the legal question of the ambiguity of the contract term “regularly lives in your household” was the only issue in dispute between the parties, the trial court incorrectly decided the question of law as to the ambiguity of the contract language and therefore incorrectly entered a summary judgment for Rhodes. We therefore reverse that judgment and remand the case for the trial court to enter a summary judgment for Nationwide. We need not address Rhodes’s argument that this Court should consider the award of damages under another standard of review because we find no liability, as a matter of law, on Nationwide’s part.

REVERSED AND REMANDED.

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