author: EASLEY, Justice, for the Court. GRAVES, Justice,

text:
    Irma Cohen JOHNSON v. Gutti RAO, M.D.
    No. 2005-CA-02178-SCT.
    Supreme Court of Mississippi.
    March 22, 2007.

      Wendy Schenique Wilson, and Willie T. Abston, Jackson, attorneys for appellant.
    Clinton M. Guenther, Greenwood, attorney for appellee.
   EASLEY, Justice, for the Court.

FACTUAL AND PROCEDURAL HISTORY

¶ 1. On March 3, 2004, Irma Johnson (Johnson) filed a medical malpractice action against Grenada Lake Medical Center (Grenada Lake) and Dr. Gutti Rao (Dr. Rao), collectively, “the Defendants.” Johnson asserted that Dr. Rao, a doctor at the Grenada Lake Medical Center, negligently diagnosed and treated the injury she suffered to her left foot after falling at her home. Grenada Lake filed a motion to dismiss because of the Johnson’s failure to comply with Miss.Code Ann. § 11-46-11 (Rev.2002). Dr. Rao also filed a motion to dismiss because of Johnson’s failure to give notice pursuant tó Miss.Code Ann. § 15-1-36 (Rev.2003). The trial court granted the Defendants’s motions to dismiss and dismissed the case without prejudice.

¶ 2. On December 24, 2004, Johnson filed suit again against Dr. Rao. On April 7, 2005, Deputy Sheriff James Payne (Deputy Payne) delivered a copy of the complaint and summons to Dr. Rao’s office. Although much controversy exists regarding the events surrounding Deputy Payne’s delivery of the summons and complaint, it is undisputed that he served process upon Dr. Rao’s receptionist, Melissa Powell.

¶ 3. Dr. Rao filed a motion to dismiss alleging insufficient service of process and failure to comply with the requirements of Miss.Code Ann. § 11-1-58 (Rev.2002). The trial court never addressed Dr. Rao’s second assignment of error that Johnson failed to comply with Miss.Code Ann. § 11-1-58; however, on appeal, Dr. Rao reasserts his second assignment of error. The trial court ordered a hearing to consider whether Powell was Dr. Rao’s agent, and thus authorized to accept service of process on his behalf. Powell was the only person who testified at the hearing, but Deputy Payne’s affidavit was made a part of the record.

¶ 4. Powell testified that she did not understand what was taking place when Deputy Payne effectuated service of process upon her on behalf of Dr. Rao. Powell testified that she had never personally accepted service of process, nor had she accepted service of process- on behalf of someone else. She also testified that her job duties consisted of “answering the phones, checking patients in, filing, and what ever else [that] needed to be done.” Additionally, she testified that she “accepts] stuff all the time.”

¶ 5. According to Powell, on the day in question, Deputy Payne entered the doctor’s office wearing his uniform. She testified further that Deputy Payne said he had some papers for Dr. Rao, but he did not inform her that the papers were related to a legal matter, nor did he ask to see the doctor, or identify himself. Powell asserts that Deputy Payne told her to sign the papers, so that he would have a record of who received them. She signed, but she testified that she did not read anything on the papers.

¶ 6. Deputy Payne stated in his affidavit that he identified himself to Powell upon entering the office. After identifying himself, he then requested to see Dr. Rao to serve him with the legal papers. Deputy Payne also asserts that Powell responded by saying that Dr. Rao was with a patient and unavailable, but she could sign for the papers and give them to Dr. Rao later. It is undisputed that Dr. Rao received the summons and complaint from Powell.

¶ 7. After hearing Powell’s testimony and reading Deputy Payne’s affidavit, the trial court concluded that Dr. Rao did not appoint Powell as an authorized agent to accept service of process on his behalf. Therefore, the trial court concluded that service of process was insufficient. Because the statute of limitations had subsequently expired, the trial court dismissed the case with prejudice.

¶ 8. Johnson now appeals to this Court, raising the issue of whether Deputy Payne’s delivery of the summons and complaint to Powell on behalf of Dr. Rao was sufficient service of process pursuant to M.R.C.P. 4. Dr. Rao contends that if this Court finds the service of process sufficient pursuant to M.R.C.P. 4, then the trial court’s judgment to dismiss should be affirmed due to Johnson’s failure to comply with Miss.Code Ann. § 11-1-58.

ANALYSIS

I. Service of Process

¶ 9. This Court reviews de novo a trial court’s grant or denial of a motion to dismiss. Harris v. Miss. Valley State Univ., 873 So.2d 970, 988 (Miss.2004). However, “[w]hen reviewing fact-based findings, we will only examine whether the trial court abused its discretion and whether there was substantial evidence supporting the determination.” Triple “C” Transp., Inc. v. Dickens, 870 So.2d 1195, 1197-98 (Miss.2004) (quoting Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss.2002) (“A trial court’s finding of fact on the existence of good cause for the delay in service of process has been deemed ‘a discretionary ruling ... and entitled to deferential review’ on appeal.”)).

¶ 10. Johnson raises as her sole issue on appeal, whether the trial court erred in finding that Dr. Rao was not properly served process pursuant to M.R.C.P. 4. Specifically, Johnson asserts that Dr. Rao was properly served by Deputy Payne’s leaving the summons and complaint with Dr. Rao’s receptionist, Powell. Johnson contends that Powell was acting as Dr. Rao’s agent to accept service of process on his behalf. This assertion, as the trial court concluded and ruled, is neither supported by the facts nor the law.

¶ 11. This Court has defined the word agent, “[to] include only agents vested with some general authority and discretion, and not to extend to mere employees having no independent powers.” Saxony Mills v. Wagner & Co., 94 Miss. 233, 239, 47 So. 899, 901 (1908) (citations omitted). Only employees with some authority are classified as agents authorized to accept service of process on behalf of an employer. Id.

¶ 12. In McPherson v. McLendon, 221 So.2d 75, 77-78 (Miss.1969), this Court reversed the circuit court’s grant of directed verdict where the acts on the part of the insurance company were sufficient for the jury to find that the insurance company had clothed Christine McLendon with the apparent authority to contract on their behalf and the plaintiffs had detrimentally relied on the insurance company’s actions. However, relevant to our review, the Court examined the general laws of agency and stated:

A general statement of the rule governing apparent authority is found in Steen v. Andrews, 223 Miss. 694, 78 So.2d 881 (1955), recently cited with approval in Union Compress & Warehouse Co. v. Mabus, 217 So.2d 23 (Miss.1968)[:]
The power of an agent to bind his principal is not limited to the authority actually conferred upon the agent, but the principal is bound if the conduct of the principal is such that persons of reasonable prudence, ordinarily familiar with business practices, dealing with the agent might rightfully believe the agent to have the power he assumes to have. The agent’s authority as to those with whom he deals is what it reasonably appears to be. So far as third persons are concerned, the apparent powers of an agent are his real powers. 2 C.J.S. Agency, §§ 95, 96. This rule is based upon the doctrine of estoppel. A principal, having clothed his agent with the semblance of authority, will not be permitted, after others have been led to act in reliance of the appearances thus produced, to deny, to the prejudice of such others, what he has theretofore tacitly affirmed as to the agent’s powers. 2 C.J.S., Agency, § 96(c). There are three essential elements to apparent authority: (1) Acts or conduct of the principal; (2) reliance thereon by a third person, and (3) a change of position by the third person to his detriment. All must concur to create such authority. 2 C.J.S., Agency, § 96(e). (223 Miss. at 697, 698, 78 So.2d at 883).

McPherson, 221 So.2d at 78.

¶ 13. In Williams v. Kilgore, 618 So.2d 51, 56 (Miss.1992), this Court addressed whether service of process on the office manager, Roy Cliburn, was service of process on Dr. Thomas Kilgore’s agent, Cliburn; and whether that service of process on Cliburn was sufficient to constitute service of process on Dr. Kilgore in accordance with M.R.C.P. 4(d)(1)(A). M.R.C.P. 4(d)(1)(A) provides:

The summons and complaint shall be served together. Service by sheriff or process server shall be made as follows:
(1) Upon an individual other than an unmarried infant or a mentally incompetent person,
(A) by delivering a copy of the summons and of the complaint to him personally or to an agent authorized by appointment or by law to receive service of process;

(Emphasis added).

¶ 14. Therefore, we must examine each case to determine whether the person was authorized as an agent for purposes of accepting service of process. In Williams, 618 So.2d at 56, the Court specifically examined the facts to determine if the office manager was authorized as an agent to accept service of process in order to decide whether proper service of process occurred, stating:

The summons and complaint were left with Dr. Kilgore’s office manager, Roy Cliburn. Both Cliburn and Dr. Kilgore stated in their affidavits that Cliburn was not authorized by Dr. Kilgore as his agent to accept service of process. Yet Deputy Sheriff Usry testified that on many occasions Cliburn had accepted service on behalf of Dr. Kilgore and the other doctors in his office and that he had never been instructed to the contrary on this or any other occasion. We find nothing in our case law which precludes the acceptance of service of process by an agent such as an office manager, who, by custom and practice, is vested with apparent authority to do so. Relying to his detriment on his past experiences in serving process on physicians in Dr. Kilgore’s office as well as upon Cliburn’s acceptance of the documents, the Deputy Sheriff appears to have properly served process in accordance with Rule 4(d)(1)(A).

(Emphasis added). The Court relied on the fact that the office manager, Cliburn, had in fact accepted service of process on behalf of Dr. Kilgore and other doctors in the office on many occasions in the past from this same deputy. Therefore, the Court concluded that Cliburn was authorized as an agent to accept service of process.

¶ 15. Here, the facts are distinguishable from the facts in Williams. While lengthy, Powell’s testimony is helpful in shedding light on this issue and understanding the basis of the trial court’s judgment to dismiss the complaint. Powell testified at the hearing on the motion to dismiss, held on October 4, 2005, as follows:

Q: [D]id your duties include accepting what is called service of process on Dr. Rao’s behalf if he were to be sued in a lawsuit?
A: No.
Q: Okay. Has Dr. Rao ever appointed you his agent for service of process?
A: No.
Q: Has Dr. Rao ever said anything to you to the effect of — and let me give you a[sic] for example — Melissa, if anybody ever brings a lawsuit in here to serve on me, I want you to accept it on my behalf. Has he ever said anything like that?
A: No.
Q: Have you ever been served with a summons—
A: No.
Q: —or process? Have you ever personally been sued?
A: No.
Q: Have you ever accepted — and again, this is a legal term. It’s called service of process. Let me back up. You and I first met in — first talked sometime in late April or May of this year; is that correct?
A: Right.
Q: When you and I talked, had you ever heard the term service of process before?
A: No.
Q: Okay. Have you ever accepted service of process on behalf of somebody besides yourself?
A: No.
Q: Is it the custom or practice or routine of Dr. Rao’s office for someone besides Dr. Rao to accept a summons or process for Dr. Rao?
A: No.
Q: In your course of employment at Dr. Rao’s office, have you ever accepted process for or on behalf of Dr. Rao?
A: No.
Q: On April 7 of 2005, did you accept process? Did you accept a summons and complaint for or on behalf of Dr. Rao?
A: No.
Q: On April 7 of 2005, did a[n] uni- . formed man come to the office with some papers at Dr. Rao’s office?
A: Yes.
Q: Okay. Tell the Court, please, Miss Powell, exactly to the extent you remember, everything that happened-what was said to you, and what you said in reply, and how long this all took when this uniformed man came to Dr. Rao’s office.
A: Okay. He came in. He asked if this is Dr. Rao’s office. I said yes.
Q: Speak slowly now.
A: And he handed me the papers. He asked me to sign for them. And so I signed, asking why. He said so that he would know whose hands he left it in.
Q: Okay. Did you know this man?
A: No.
Q: Now, you had told me before, that is why I asked you. You said he had a[n] uniform on. Did you recognize the uniform?
A: I knew he was a sheriff....
Q: Did he identify himself? Did he say who he was?
A: No.
Q: Did he say who he was or what he was there for, what his purpose of being at Dr. Rao’s office was for?
A: No.
Q: These papers that he mentioned, did you know what they were?
A: No....
Q: Did he ask to see Dr. Rao?
A: No.
Q: Did he say that he needed to personally give these papers to Dr. Rao?
A: No.
Q: ... Was Dr. Rao actually in the office that day?
A: Yes.
Q: Did this uniformed man make any attempt to go and see or speak with Dr. Rao?
A: No.
Q: Miss Powell, if this sheriffs deputy had asked you to let me him personally speak to Dr. Rao, what would you have done?
A: I would have went and got him and he would have came to the front—
Q: Did you tell this man that you were authorized to accept process on behalf of Dr. Rao?
A: No.

At the conclusion of the hearing, the trial court issued its bench ruling, stating:

The point is whether or not she [Powell] was authorized to do it [accept process on behalf of Dr. Rao].... Either by the doctor or as a matter of law. This is— Pm not trying to cut y’all off, but this is pretty clear-cut. This service of process is inadequate. It does not meet the requirements of Rule 4, and therefore the motion to dismiss is sustained.

¶ 16. On October 12, 2005, the trial court issued its order entering final judgment of dismissal with prejudice. The order provided:

[T]he Court finds that neither Dr. Rao, nor an agent authorized by appointment or by law to receive service of process on Dr. Rao’s behalf, was personally, sufficiently served with process in accordance with the Mississippi Rules of Civil Procedure 4 within 120 days from the filing of the Complaint herein, after which the statute of limitations herein has also expired.

¶ 17. Further, in Cooley v. Brawner, 881 So.2d 300, 301-02 (Miss.Ct.App.2004), the Court of Appeals affirmed the trial court’s judgment dismissing the complaint finding that service of process was not effectuated by service of process on a doctor’s receptionist. The court.found that the evidence neither provided that the receptionist fully understood what was occurring nor established the patterns or practices of the doctor’s office in accepting process. Id. The court reasoned as follows:

[T]he trial judge held a hearing on the motion. The trial judge found that service of the complaint upon Dr. Brawn-er’s receptionist was not effective service, and no good cause had been shown why service was not effectuated within 120 days. The trial judge entered an order dismissing the complaint ...
No live testimony was offered on the motion. However, the affidavits of both Davis, Dr. Brawner’s receptionist, and Weathers, the process server, were made a part of the record on the motion.
Davis’ affidavit, presented by the defense, stated that her duties as receptionist “are simply to answer the phone and to check patients in and out.” Davis’ affidavit stated that an unidentified female came in the office on February 1, 2002, and delivered an envelope, and that at no time did the woman identify herself or the contents of the envelope. Davis stated that the unidentified woman said that the envelope contained “legal papers” for Dr. Brawner.
Weathers’ affidavit stated that she delivered a copy of a complaint and summons for Dr. Brawner to Tupelo Eye Clinic. Weathers stated that she spoke with a female behind the desk and told her that she had “legal papers to serve Dr. Brawner with” and that the female behind the desk told Weathers “to give them to her.” Weathers states that the woman never indicated that she was not the proper person to receive the legal papers.
Neither woman was questioned during the hearing. No effort was made to identify the patterns and practices of this office. No effort was made to clarify whether Dr. Brawner’s receptionist fully understood what was taking place, or the nature of the act. The evidence before this Court is insufficient to make a determination that Davis was a de facto agent for Dr. Brawner. In the absence of sufficient factual information, this Court, like the circuit court, must hold that Davis was not the agent of Dr. Brawner.

Cooley, 881 So.2d at 301-03.

¶ 18. Here, Dr. Rao’s receptionist, Powell, testified that she was not authorized by Dr. Rao to accept service of process; that she was not aware that the papers were regarding a lawsuit against Dr. Rao; that she had never accepted service of process on behalf of Dr. Rao or anyone else, in the past; that the deputy did not ask to see Dr. Rao and did not inform her that he was there to serve process on Dr. Rao. Nothing in the record reveals that Powell was authorized to accept process or that Powell had ever accepted service of process on prior occasions. Further, nothing in the record contradicts that Powell did not have authority to accept service of process on behalf of Dr. Rao.

¶ 19. Powell was the only witness who testified at the hearing on the motion to dismiss. The only evidence submitted besides Powell’s extensive testimony at the hearing was Deputy Payne’s affidavit. Deputy Payne’s affidavit provided that he left the summons and complaint with Powell and she accepted the papers and signed for them. As the trial court concluded, it is undisputed that Powell was served the papers and she signed for the papers left by Deputy Payne. However, the trial court concluded that service of process was not sufficient as to serve Dr. Rao.

¶20. Therefore, we find that the trial court did not err in granting Dr. Rao’s motion to dismiss Johnson’s compliant due to insufficient service of process. Likewise, as the statute of limitations had expired, the trial court did not err in dismissing the complaint with prejudice.

II. Miss.Code Ann. § 11-1-58 (Rev. 2002)

¶ 21. Dr. Rao, as in Walker v. Whitfield Nursing Ctr., Inc., 931 So.2d 583, 588 (Miss.2006), essentially raises the issue of whether strict compliance with the statutory requirements of Miss.Code Ann. § 11-1-58 is required.

¶ 22. However, as the trial court determined that Dr. Rao was not properly served pursuant to M.R.C.P. 4 and dismissed the complaint with prejudice, the trial court never ruled on Dr. Rao’s other issue in his motion to dismiss regarding whether Johnson complied with Miss.Code Ann. § 11-1-58. In his motion to dismiss, Dr. Rao raised the issue of whether Johnson complied with Miss.Code Ann. § 11 — 1— 58 and reasserts this issue on appeal. However, during the hearing on Dr. Rao’s motion to dismiss, Dr. Rao did not raise Miss.Code Ann. § 11-1-58, nor did the trial court rule on this issue in its bench opinion. Likewise, the trial court did not rule on this issue in its final judgment. Further, Dr. Rao did not re-raise the issue of Miss.Code Ann. § 11-1-58 to the trial court for consideration after the trial court’s judgment failed to address it.

¶ 23. That being said, we find there is no need to address this assignment of error as we affirmed the trial court in Issue I which held that Dr. Rao was not properly served pursuant to M.R.C.P. 4 and affirmed its dismissal of the complaint with prejudice. As we affirmed the trial court’s judgment in Issue I, Issue I is dispositive of this appeal and this case.

CONCLUSION

¶ 24. For the foregoing reasons, the judgment of the Circuit Court of Grenada County is affirmed.

¶ 25. AFFIRMED.

SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ„ CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J. COBB, P.J., NOT PARTICIPATING.

GRAVES, Justice,

Dissenting.

¶ 26. Because it is my view that service of process upon Rao’s receptionist, Melissa Powell (Powell), was sufficient pursuant to Rule 4(d)(1)(A) of the Mississippi Rules of Civil Procedure (M.R.C.P.), and that Irma Johnson (Johnson) substantially complied with the requirements of Miss.Code Ann. § 11-1-58 (Rev.2002), I respectfully dissent.

A. Whether Service of Process Was Sufficient Pursuant to Rule J of the Mississippi Rules of Civil Procedure
M.R.C.P. 4(d)(1)(A) provides:
The summons and complaint shall be served together. Service by a sheriff or process server shall be made as follows: (1) Upon an individual other than an unmarried infant or a mentally incompetent person, (A) by delivering a copy of the summons and the complaint to him personally or to an agent authorized by appointment or by law to receive service of process.

(Emphasis added). M.R.C.P. 4(d)(1)(A) permits an agent “authorized ‘by appointment’ or ‘by law’ to receive service of process.” Although this Court has not precisely defined “by appointment,” the Southern District of Ohio has defined “by appointment [to mean] an actual appointment by the defendant, and, if such has been made, service upon the agent gives the court jurisdiction.” Whisman v. Robbins, 712 F.Supp. 632, 636 (S.D.Ohio 1988). Because Powell explicitly stated that Rao never expressly authorized her to accept service of process on his behalf, the primary issue before this Court is whether she is a valid “agent” authorized “by law ” to receive service of process on his behalf. This Court has not precisely articulated a standard to determine whether an employee is a valid “agent” authorized “by law ” authorized “by law ” to accept service of process on behalf of an employer.

¶ 27. The rules which govern service of process should be “applied in a manner that will best effectuate their purpose of giving the defendant adequate notice.” Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Circuit 1988). The Georgia Supreme Court has construed their service of process rules and statutes to achieve their underlying purpose. Scott v. Atlanta Dairies Cooperative, 239 Ga. 721, 238 5.E.2d 340, 343 (1977). That court has adopted a two-prong test to determine whether an agent is authorized to accept service of process on behalf of an employer. Henderson v. Bekaert, 932 F.2d 1410, 1412 (11th Cir.1991). The first prong of the test defines who is considered an agent for purposes of service of process. Id. “In discussing who is an ‘agent’ who can properly receive service, the Georgia Supreme Court has said that ‘since the object of service of process is to transmit notice of suit to the [defendant], it must be made on an agent whose position is such as to afford reasonable assurance that he will inform his corporate principal that such process has been served upon him.’ ” Henderson, 932 F.2d at 1412 (quoting Scott, 238 S.E.2d at 343). The second prong of the test considers whether the employer received timely actual notice of the lawsuit. Henderson, 932 F.2d at 1413.

¶ 28. This Court has defined the word “agent” when used in service of process statutes and rules, “[to] include agents vested with some general authority and discretion, and not to extend to mere employees having no independent powers.” Mills v. Wagner, 94 Miss. 233, 239, 47 So.899, 901 (1909) (citations omitted). Our definition adequately ensures that only employees with some authority are classified as agents authorized to accept service of process on behalf of an employer. However, our definition does not expressly provide that the agent must possess a position by which the agent can be expected to inform the employer that he has been served with process. The standard adopted by the Georgia Supreme Court expressly states “[service of process] must be made on an agent whose position is such as to afford reasonable assurance that he will inform his corporate principal that such process has been served upon him.” Scott, 238 S.E.2d at 343.

¶ 29. In Scott, the Georgia Supreme Court found service to be proper on an employee. Id. at 343. The court further found that, although the employee was not an officer, he was more than “a mere clerk, laborer, or servant.” Id. The employee was in charge of scheduling the delivery of milk and supervising ten other employees.

Id. The court also found that the employee’s duties also consisted of “relay[ing] communications from his employer.” Id. As such, “the employee could be expected to notify his employer that he had been served with process.” Id. See also Ogles v. Globe Oil Co., U.S.A., 171 Ga.App. 785, 786, 320 S.E.2d 848, 849 (1984) (service proper on manager of appellee’s store who was responsible for daily operations of the store and supervising other employees) and Northwestern Nat’l Ins. Co. v. Kennesaw Transp., 168 Ga.App. 701, 702, 309 S.E.2d 917, 919 (1983) (service proper on an employee who had some discretion and authority regarding the management of the office); compare with Citizens Bank of Hapeville v. Alexander-Smith Academy, 226 Ga. 871, 872, 178 S.E.2d 178, 179-80 (1970) (service not proper on “personal secretary/typist” because no evidence introduced to establish that she had any discretion or authority regarding the operation of the corporation) and Whatley’s Interiors, Inc. v. Anderson, 176 Ga.App. 406, 407, 336 S.E.2d 326, 328 (1985) (service not proper on an employee who did not perform any other duties besides those of a secretary/typist).

¶ 30. Other courts also have found service of process to be valid on an employee whose job responsibilities provide reasonable assurance that the employee will inform his employer that he has been served with process. See, e.g., Top Form Mills, Inc. v. Sociedad Nationale Industria Applicazioni Viscosa, 428 F.Supp. 1237, 1251 (S.D.N.Y.1977); (service on secretary was valid because her job responsibilities included handling the daily operations of the corporation; thus she could be expected to notify her employer that he had been served with process); Direct Mail Specialists, 840 F.2d at 688 (service of process upheld where the receptionist played a large role in the structure of the company); Leo v. General Electric Co., 111 F.R.D. 407, 414 (E.D.N.Y.1986) (service of process valid on secretary because she was a corporate employee and she redelivered the summons and complaint to an agent authorized to receive service of process); O’Connor v. Altus, 335 A.2d 545, 557 (N.J.1975) (service of process upon the receptionist of the managing agent was proper because “she was sufficiently integrated with the small organization to know what to do with the legal papers”); Flynn v. Pulaski Construction Co., 2006 WL 47304, 2006 U.S. Dist. Lexis 1680, 17 (D.C.2006) (service of process upon the receptionist/secretary proper where she was sufficiently integrated with the corporation to know what to do with the papers).

¶ 31. Similar to the cases discussed supra, Powell’s job responsibilities provided reasonable assurances that she would inform Rao that he had been served with process. The record indicates that Powell performed duties and responsibilities in addition to those of a receptionist. According to Powell’s testimony, her duties included filing, answering the phones, checking patients in, and “whatever else [that] needed to be done.” Powell also testified that she “aceeptfe] stuff all the time” on behalf of Rao. Although the record does not clearly establish “what stuff [Powell] accepts,” Rao did not offer any evidence indicating that she failed to give him any of the “stuff’ that she had previously accepted on his behalf.

¶ 32. Like the employee in Scott, Powell was more than a mere clerical employee. Her testimony that her duties included “whatever else [that] needed to be done” and “accepting] stuff all the time” on behalf of Rao indicates that although her formal title was “receptionist,” her responsibilities were more similar to those of an office manager. She had some discretion and authority regarding the operation of Rao’s office.

¶ 33. On the day in question, it is undisputed that Payne, in uniform, entered Rao’s office and served Powell with legal papers. The legal papers were not in an envelope, and the title on the first page read “SUMMONS.” Powell accepted the legal papers and signed a form acknowledging her receipt of them. Based on Powell’s job responsibilities, it would be unreasonable to assume that she would not give Rao the legal papers that were personally delivered to his office by a Deputy sheriff wearing an official uniform. “Clearly, [Powell’s] job responsibilities were such as to afford reasonable assurances that [she] would inform [Rao] of the service of process upon him; and it is undisputed that [she] in fact did so in a timely manner.” Ogles, 320 S.E.2d at 849. Hence, she is. authorized by law to serve as Rao’s agent and accept service of process on his behalf. Moreover, Rao received actual notice of the lawsuit. So the underlying purpose of the rule, which is to give the defendant adequate notice, was achieved. Because of the aforementioned reasons, I find that service of process was sufficient pursuant to Rule 4 of the M.R.C.P.

B. Whether Strict Compliance with the Statutory Requirements of Miss. Code Ann. § 11-1-58 (Rev.2002) is Required

¶ 34. Because I find that service of process was sufficient pursuant to Rule 4 of the M.R.C.P., I am compelled to address Rao’s assignment of error. Rao argues in the alternative that if service of process is found to be sufficient, the trial court’s judgment to dismiss the case with prejudice should still be affirmed. Rao essentially raises the issue of whether strict compliance with the statutory requirements of Miss.Code Ann. § 11-1-58 (Rev. 2002) is required.

Miss.Code Ann. § 11-1-58 (Rev.2002) states:

(1) In any action against a licensed physician, health care provider or health care practitioner for injuries or wrongful death arising out of the course of medical, surgical or other professional services where expert testimony is otherwise required by law, the complaint shall be accompanied by a certificate executed by the attorney for the plaintiff declaring that:
(a) The attorney has reviewed the facts of the case and has consulted with at least one (1) expert qualified pursuant to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence who is qualified to give expert testimony as to standard of care of negligence and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action; or
(b) The attorney was unable to obtain the consultation required by paragraph (a) of this subsection because a limitation of time established by Section 15 — 1— 36 would bar the action and that the consultation could not reasonably be obtained before such time expired. A certificate executed pursuant to this paragraph (b) shall be supplemented by a certificate of consultation pursuant to paragraph (a) or (c) within sixty (60) days after service of the complaint or the suit shall be dismissed; or
(c) The attorney was unable to obtain the consultation required by paragraph (a) of this subsection because the attorney had made at least three (3) separate good faith attempts with three (3) different experts to obtain a consultation and that none of those contacted would agree to a consultation.

(Emphasis added).

¶ 35. Clearly, substantial compliance with Miss.Code Ann. § 11-1-58 (Rev.2002) satisfies the statutory requirements. Johnson substantially complied with the requirements of Miss.Code Ann. § 11-1-58 (Rev.2002) by submitting a certificate of expert consultation with the first complaint. As discussed in my dissent in Arceo v. Tolliver, I am still of the opinion that strict compliance with the statutory requirements of Miss.Code Ann. § 11-1-58 (Rev.2002) “only serves to deny the citizens of this State their right to bring claims before the courts for adjudication.” Arceo v. Tolliver, 949 So.2d 691, 698-99, ¶¶ 19-20 (Miss.2006) (Graves, J., dissenting).

¶ 36. This Court has a long-standing history of ensuring that cases are decided on the merits and are not dismissed because of the parties’ inadvertence to comply with the “formal rules of pleadings and practice.” Field v. Middlesex Bkg. Co., 77 Miss. 180, 26 So. 365 (1899). This Court has adopted the standard of substantial compliance when deciding whether a party has complied with certain provisions of the Mississippi Rules of Civil Procedure and the Mississippi Tort Claims Act. S. Cent Reg’l Med. Ctr. v. Guffy, 930 So.2d 1252, 1256 (Miss.2006); Chassaniol v. Bank of Kilmichael, 626 So.2d 127-29 (Miss.1993); City of Jackson v. Presley, 942 So.2d 777, ¶ 17 (Miss.2006). Although this Court has previously adopted such a liberal standard of compliance, we have emphasized that “we can hardly afford relief under the [MTCA] when there is no effort to comply with the procedural mandates.” Little v. Miss. Dep’t of Human Servs., 835 So.2d 9, 12-13 (Miss.2002). “Substantial compliance is not the same as, nor a substitute for, noncompliance.” Gale v. Thomas, 759 So.2d 1150, 1158 (Miss.1999) (quoting Carr v. Town of Shubuta, 733 So.2d 261, 265 (1999)). The determination of substantial compliance is a legal, though fact-sensitive, question and is therefore, necessarily decided on an ad hoc basis.” Town of Shubutd, 733 So.2d at 265.

¶ 37. In City of Jackson v. Presley, this Court held that the trial judge erred in granting a default judgment against the City. City of Jackson v. Presley, 942 So.2d 777, ¶ 18. This Court concluded that the City substantially complied with Rule . 15 of the M.R.C.P. by submitting an untimely amended answer almost four years later. Id. at ¶ 17. In fact, we stated in Presley that the “default was largely technical” in the sense that the original complaint was identical to the amended complaint except for one sentence asserting a claim for property damage. Id. The City only failed to respond to “Presley’s one sentence for property damage found in the amended complaint.” Id.

¶ 38. In contrast to Presley, this Court in Walker v. Whitfield Nursing Home, rejected the plaintiffs claims that she substantially complied with Miss.Code Ann. § 11-1-58 (Rev.2002). Walker v. Whitfield Nursing Home, 931 So.2d 583, 589 (2006). Walker argued that she substantially complied with the statute by consulting with an expert in February 2004, before filing suit on April 7, 2004. Id. However, this Court found Walker’s arguments to be unpersuasive. Id. The record revealed that the defendant never received any written reports or records from Walker’s expert. Id. In September 2005, Walker filed the expert’s report in the court record. Id. Hence, this Court found that the issue was not whether Walker substantially complied with Miss.Code Ann. § 11-1-58 (Rev. 2002). Id. Instead, this Court found that the primary issue was whether Walker, who failed to submit any notice with the filing of her complaint, satisfied the statutory requirement. Id. Because the complaint was not accompanied by any information stating that Walker had consulted with an expert and also because she never provided the defendant with any information about her expert, this Court held that she failed to comply with the requirements of Miss.Code Ann. § 11-1-58 (Rev.2002). Id.

¶ 39. The facts in the instant case are more analogous to those in Presley than those in Walker. Johnson, through inadvertence, failed to submit a certificate of expert consultation with the second complaint, whereas Walker failed to submit any notice with the filing of her complaint. Johnson, like the City in Presley, substantially complied with the requirements of Miss.Code Ann. § 11-1-58 (Rev.2002) by submitting a certificate of expert consultation with the first complaint. Additionally, Johnson’s first complaint and second complaint were also substantially the same as the original answer and amended answer in Presley. According to this Court’s holding in Presley, Johnson’s failure to attach the expert consultation to the second complaint was merely a “technical error.” Since she attached it to the first compliant and later attached it to her responsive pleadings to the second complaint.

¶ 40. The chief goal of this Court when construing the meaning of a statute is to find and apply the real intention of the Legislature. Gambrill v. Gulf States Creosoting Co., 216 Miss. 505, 62 So.2d 772, 775 (1953); see Miss. Casino Operators Ass’n v. Miss. Gaming Comm’n, 654 So.2d 892, 894 (Miss.1995). Upon a careful review of the language of Miss.Code Ann. § 11-1-58 (Rev.2002), it is undisputable that the primary purpose of the statute is to prevent the filing of frivolous suits that are not well founded in the law. Johnson, before filing suit against Rao, consulted with an expert who verified that her claims against Rao were well founded and grounded in the law. Johnson’s inadvertence was largely a “technical error” instead of a substantive error, and the overall objective and purpose of the statute was satisfied; therefore, I find that Johnson substantially complied with the requirements of the statute.

¶41. As I articulated in Arceo, this Court should not erect barriers that work to deny litigants their constitutionally guaranteed right. Arceo, 949 So.2d 691, 704, ¶ 32 (Graves, J., dissenting). To require strict compliance with Miss.Code Ann. § 11-1-58 (Rev.2002) “clearly denies, without due process of law, the plaintiffs right to pursue her claim.” See Id. (“arguing that a cause of action is a species of property which is protected by the Fourteenth Amendment’s Due Process Clause” (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265 (1982))). Because Johnson substantially complied with the requirements of Miss.Code Ann. § 11-1-58 (Rev. 2002), I would remand this case for further proceedings. Therefore, I respectfully dissent.

DIAZ, J., JOINS THIS OPINION.

      . Johnson’s complaint against Grenada Lake was dismissed with prejudice pursuant to the trial court’s April 28, 2005, order. The trial court found that Johnson failed to timely file suit pursuant to Miss.Code Ann. § 11-46-11 (Rev.2002) and is now barred by the statute of limitations. Johnson did not appeal that decision.

      . Miss.Code Ann. § 11-46-11 provides for a one-year statute of limitations for claims against governmental entities.

      . Miss Code Ann. § 15-1-36 provides “no action based upon the health care provider's professional negligence may be begun "unless the defendant has been given at least (60) days prior written notice of the intention to begin the action.”

      . Johnson also brought suit again against Grenada Lake. However, Grenada Lake filed a Motion to Dismiss the second complaint based upon the same grounds contained in its motion to dismiss the first complaint. Again, the trial court ruled in favor of Grenada Lake. However, unlike the first case, the trial court dismissed Johnson’s case with prejudice.

      . As the trial court concluded that Dr. Rao was not properly served pursuant to M.R.C.P. 4 and dismissed the complaint with prejudice, the trial court never ruled on Dr. Rao's other issue in his motion to dismiss regarding whether Johnson complied with Miss.Code Ann. § 11-1-58.

      . In Williams v. Kilgore, which the majority cites, this Court held that service of process was valid on an "office manager who, by custom and practice is vested with the apparent authority to do so.” Williams v. Kilgore, 618 So.2d 51, 56 (1992). In Williams, the deputy sheriff testified that the office manager and other employees previously accepted service of process on behalf of Kilgore. Id. Therefore, this Court concluded that since Kilgore had never instructed the deputy sheriff not to allow the office manager or any other employee to accept service of process on his behalf, the office manager was vested with the apparent authority to do so. Id. It is my view that Kilgore expressly authorized his office manager to accept service of process on his behalf by ratifying her conduct. Therefore, similar to the majority, I agree that the facts in Williams are clearly distinguishable from those in the case currently before this Court. Additionally, I further contend that this Court’s decision in Williams is totally irrelevant to the current issue before this Court as to whether Powell was authorized by law to serve as Rao’s agent for purposes of service of process.

      . In University of Mississippi Medical Center v. Easterling, this Court adopted a strict compliance standard regarding the ninety-day notice requirement of the Mississippi Tort Claims Act under Miss.Code Ann. § 11-46-11(1) (Rev.2002). 928 So.2d 815 (Miss.2006)

      . Rule 15(a) of the Mississippi Rules of Civil Procedure provides: "A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.”

      . The one sentence added to the amended complaint read as follows: "Additionally, Presley has incurred property damage as a proximate result of Morton's negligence and the resulting accident.”

      . In the untimely filed amended answer the City added three additional affirmative defenses: “(1) the affirmative defense of res judicata based on the Union County law suit; (2) accord and satisfaction based on the execution of the general release in settlement of the first lawsuit; and (3) setoff or credit for sums Presley received in the settlement of the first lawsuit.”

      . Johnson attempted to cure the potential defect by attaching the certificate of expert consultation to Plaintiff’s Response to Defendant's Rebuttal to Plaintiff’s Response to Defendant’s Motion to Dismiss.


source: Caselaw Access Project

author: CARLSON, Justice, for the Court. DIAZ, Justice,

license: Public Domain

text:
    Michelle FRADELLA and GBS Properties, LLC, d/b/a Prudential Gardner Realtors (“Prudential Gardner”) v. James E. SEABERRY and Wife, Rosella M. Seaberry.
    No. 2005-CT-00404-SCT.
    Supreme Court of Mississippi.
    March 22, 2007.

      W. Edward Hatten, Jr., Gulfport, Frank D. Montague, Jr., Hattiesburg, attorneys for appellants.
    Richard C. Fitzpatrick, Poplarville, attorney for appellees.
   ts WRIT OF CERTIORARI

CARLSON, Justice, for the Court.

¶ 1. Aggrieved by the chancery court’s denial of their motion to compel arbitration pursuant to the provisions of a real estate contract, the real estate agent and her agency appealed to this Court. We assigned this case to the Court of Appeals, which affirmed the judgment of the Chancery Court of Pearl River County. Finding that the arbitration clause is valid and enforceable, we reverse the judgment of the Court of Appeals and remand this case to the Chancery Court of Pearl River County with directions to compel the parties herein to submit to arbitration consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Sammy and Joy Germany desired to sell their home on Global Lane in the City of Picayune, which is situated in Pearl River County. On February 18, 2004, the Germanys listed the property with Michelle Fradella, an agent associated with Prudential Gardner Realtors. The Ger-manys and Fradella arrived at a sale price of $319,900 for what was described as an 18-acre lot. James and Rosella (Rose) Seaberry became interested in the purchase of the Germanys’ property, and the Germanys and the Seaberrys entered into a written, dual-agency contract whereby they agreed that Fradella and her agency would serve in the role of a dual agent for both the Germanys and the Seaberrys. On February 29, 2004, the Seaberrys executed a written Agreement to Purchase or Sell (Agreement) wherein they offered to purchase the Germanys’ property (described as 18 acres) for the sum of $300,000, but this offer was contingent upon the Seaberrys selling their home in New Orleans, Louisiana. This Agreement was signed by Fradella on behalf of Prudential Gardner.

¶ 3. By way of a written counter-offer dated March 2, 2004, the Germanys rejected the Seaberrys’ offer, but counter-offered to sell their property for the sum of $317,000. On March 3, 2004, the Seaber-rys signed the written counter-offer, thus accepting the terms, including the purchase price of $317,000. Likewise, as opposed to the previous 18-acre description, the property was described as “16.68 Acres, +/-.” On March 4, 2004, Fradella faxed to Rose Seaberry a copy of the counter-offer “and map.”

¶ 4. Subsequently, the property was appraised for $350,000 and was described in the appraisal as being only 13.52 acres. By the time the Contract for the Sale and Purchase of Real Estate (real estate contract) was executed by the parties on April 19, 2004, the Germanys and the Seaberrys had agreed on a purchase price of $346,500. Although the real estate contract was executed by the Seaberrys and the Germanys, neither Fradella, nor anyone on behalf of Prudential Gardner signed this real estate contract. Under the heading “Legal Description” contained in the real estate contract, was the phrase, “As Per Title.” In other words, no acreage amount for the property was stated. Fradella did not tell the Seaberrys that the description submitted to the title insurance company described the property as being only 12.70 acres, which acreage was obviously considerably less than the 16.68 acres stated in the counter-offer, and also less than the 13.52 acres. stated in the appraisal.

¶ 5. The Seaberrys sold their New Orleans home and closed on the Global Lane property. Approximately two weeks after the closing, Fradella provided the Seaber-rys with a copy of the appraisal describing the property as being only 13.52 acres. The Seaberrys then hired a surveyor and learned that the deed description of. the property was only 12.70 acres.

¶ 6. The Seaberrys filed suit on September 28, 2004, in the Chancery Court of Pearl River County, Mississippi. In their first responsive pleading filed in this cause, Fradella and Prudential Gardner asserted as the “First Defense” in their Separate Joint Answer and Defenses that the ease should be dismissed and the matter submitted to arbitration pursuant to the terms of the applicable real estate contract. Shortly thereafter, Fradella filed a separate motion to compel arbitration, and two days later, Prudential Gardner filed a written joinder, thereby joining Fradella’s motion to compel arbitration.

¶ 7. The Chancery Court of Pearl River County, Chancellor Sebe Dale, Jr., presiding, timely considered this issue and entered a thorough written memorandum opinion, based on “the briefs of the parties, the authorities cited by each, and the documents utilized by the parties in the underlying transaction insofar as those documents are pertinent to the issues raised by the motion and response thereto.” Chancellor Dale also stated that he had examined and considered the original complaint filed by the Seaberrys. Additionally, the chancellor stated that the issue before him concerned “solely the motion by Fradella, joined by Prudential [Gardner], seeking to compel arbitration instead of litigation of the issues raised by the Seaberry complaint.” In the end, the chancellor denied the motion to compel arbitration, and we briefly discuss here the chancellor’s reasoning, as revealed in his memorandum opinion:

It appears that three (3) basic documents present the foundation for the transaction undertaken between Seaber-ry and Germany. The first document is an AGREEMENT TO PURCHASE OR SELL dated 2/29/04, signed by both James and Rosella Seaberry, submitted to and received by Michelle Fradella proposing purchase by Seaberry of the subject property referred to as 31 Global Lane. The second document is a COUNTER OFFER signed by both the Seaberrys and also by Sammy Germany and Joy Germany dated and signed 3-2-04 and 3-3-04, respectively. The third document is a CONTRACT FOR THE SALE AND PURCHASE OF REAL ESTATE dated April 19, 2004 and signed only by James E. Seaberry and Rosella Seaberry. The third document is the only document which contains any reference to, mention of, or undertaking to articulate mandatory arbitration, that appearing in paragraph 26 thereof, which is quoted verbatim by Fradella in her motion. It is noteworthy that the same document sets forth in paragraph 11 thereof specific and enumerated rights of both the Seller and the Purchaser to initiate and pursue litigation in a court of competent jurisdiction in the event of breach of contract by either said party.

(Emphasis in original)

¶ 8. In denying Fradella’s motion to compel arbitration, the chancellor primarily relied on this Court’s decision in Parker son v. Smith, 817 So.2d 529 (Miss.2002), and stated, inter alia, that one who was not a signatory to a contract could not take advantage of an arbitration clause within that contract. Additionally, Chancellor Dale found that paragraph 11 of the real estate contract allowed for litigation to settle disputes between the Seaberrys and the Germanys, and that paragraph 26, which mandated arbitration as the forum to settle disputes between either the Sea-berrys and Fradella or the Germanys and Fradella, created an ambiguity concerning whether the Seaberrys agreed to arbitrate any of their claims against anyone. Thus, the chancellor found paragraph 26 to be ineffective to the extent that the Seaberrys could not be forced to arbitrate. Upon entry of the opinion and order denying arbitration, Fradella appealed and the case was assigned to the Court of Appeals.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 9. Though the parties stated the relevant issues in different ways, the Court of Appeals appropriately restated the issues as being whether the chancery court erred (1) in denying the motion to compel arbitration by finding that paragraph 11 and paragraph 26 of the real estate contract created an ambiguity which rendered the mandatory arbitration clause in the contract ineffective; and, (2) in finding that neither Fradella nor Prudential Gardner were signatories to the real estate contract, thereby preventing them from obtaining the benefit of the arbitration clause in the contract. However, in a plurality decision, the Court of Appeals decided the case on an issue not raised by the parties on appeal. Instead of addressing these assigned issues, the plurality opinion reasoned that Paragraph 26 was a separate contract that required additional consideration by Fradella in order to be effective. The plurality stated, inter alia:

In the case sub judice, no consideration was' given by Fradella and Prudential Gardner to the Seaberrys or Germanys for the arbitration agreements. This separate arbitration contract was contained within the Seaberry-Germany contract, to which neither Fradella nor Prudential Gardner were parties. The consideration given from the Seaberrys to the Germanys, and from the Germa-nys to the Seaberrys, does not transfer to the separate arbitration agreement. Both Fradella and Prudential Gardner stand to benefit from the arbitration agreement, while neither offer anything in exchange to the Seaberrys or Germa-nys that may be classified as consideration. In order for the arbitration agreement to be enforceable, Fradella and Prudential Gardner must have some forbearance, detriment, loss or responsibility given or undertaken. Since there was none, this arbitration contract is void on its face.

Fradella v. Seaberry, 952 So.2d 195, 200, ¶ 12, 2006 MissApp. LEXIS 272, **9-10, ¶ 12.

¶ 10. Judge Griffis wrote an insightful dissent. First, Judge Griffis disagreed that Fradella and Prudential Gardner were not parties to the final real estate contract of April 19, 2004, because the contract clearly stated that Fradella was acting as the agent of the Seaberrys and the Germanys and the contract also clearly detailed Fradella’s rights and responsibilities regarding the transaction. Second, Judge Griffis disagreed that additional consideration was necessary in order for the arbitration clause to be valid. In other words, Judge Griffis disagreed with the plurality’s “contract within a contract” theory and opined that the plurality had decided the case on an issue not properly before them. Third, Judge Griffis believed paragraphs 11 and 26 created no ambiguity regarding the arbitration provision. Fourth, Judge Griffis disagreed with the chancellor’s reliance on Parkerson because Fradella was specifically named in paragraph 26 as the beneficiary of the arbitration clause. Fifth, Judge Griffis opined that “incorporation by reference, agency, and estoppel” were bases for binding nonsignatories that applied to Fradella’s and Prudential Gardner’s motion to compel arbitration. Fradella v. Seaberry, 952 So.2d 195, 201-206 ¶¶ 19-39, 2006 Miss.App. LEXIS 272, **12-28, ¶¶ 19-39 (Griffis, J., dissenting).

¶ 11. Once the Court of Appeals’ decision was handed down, Fradella and Prudential Gardner filed a motion' for rehearing, which was denied by that Court. Fradella and Prudential Gardner then filed their petition for writ of certiorari, which we granted.

¶ 12. Finding Judge Griffis to be eminently correct in his dissent, we adopt, in part, Judge Griffis’s reasoning, and thus reverse the judgment of the Court of Appeals.

DISCUSSION

¶ 13. “This Court reviews questions of law de novo.” Pre-Paid Legal Servs. v. Battle, 873 So.2d 79, 82 (Miss.2004) (citing Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶5) (Miss.2002)). “[W]e have reviewed the grant or denial of a motion to compel arbitration under the de novo standard of review.” Id. (citing Tupelo Auto Sales, Ltd. v. Scott, 844 So.2d 1167, 1169(¶ 5) (Miss.2003); See also East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002) and Webb v. Investacorp, Inc., 89 F.3d 252, 256 (5th Cir.1996)).

¶ 14. Inasmuch as the Court of Appeals incorrectly decided the case sub judice on an issue not properly before it, we will proceed to decide the two issues that are before us, which we restate for clarity: (1) whether paragraphs 11 and 26 created an ambiguity, théreby rendering the arbitration clause ineffective; and (2) whether a nonsignatory to a contract may enforce an arbitration clause.

I. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION TO COMPEL ARBITRATION, WHEN IT FOUND THAT PARAGRAPH 11 AND PARAGRAPH 26 OF THE REAL ESTATE CONTRACT CREATED AN AMBIGUITY, THEREBY RENDERING THE MANDATORY ARBITRATION CLAUSE OF THE CONTRACT INEFFECTIVE.

¶ 15. The chancellor found that paragraphs 11 and 26 of the real estate contract created an ambiguity concerning whether the Seaberrys agreed to arbitrate. Paragraph 11 of the real estate contract states:

BREACH OF CONTRACT: Specific performance is the essence of this contract, except as otherwise specifically provided for in Paragraphs 2, 5, 11, and 14 and as further delineated below, and time is of the essence of this contract. In the event of breach of this contract by Purchaser, Seller may at his option (a) accept the earnest money deposit as liquidated damages and this contract shall then be null and void; or (b) enter suit in any court of competent jurisdiction for damages for the said earnest money deposit; or (c) enter suit in any court of competent jurisdiction for specific performance. If Seller accepts the earnest money deposit as liquidated damages, or if Seller litigates for additional damages in any court of law, Broker(s) shall be paid one half (½) of the earnest money deposit amount, or damages awarded, not to exceed the full commission herein provided. If the Seller succeeds in a suit for specific performance, Broker shall be paid a full commission by Seller.
In the event of breach of contract by Seller, Purchaser at his option may either (a) accept the return of the earnest money deposit and cancel the contract; or (b) enter suit for damages in any court of competent jurisdiction; or (c) enter suit for specific performance in any court of competent jurisdiction. In the event of breach of contract by Seller, Broker shall be paid a full commission by Seller regardless of any action taken by Purchaser, unless and except if this agreement calls for the Purchaser to pay commission. If it becomes necessary to insure the performance of the conditions of this contract for either party to initiate litigation, then losing party agrees to pay reasonable attorney’s fees and court costs in connection herewith.

Paragraph 26 states:

MANDATORY ARBITRATION: Both buyer and seller (hereinafter “parties”) acknowledge, understand, and agree that: (1) any controversy, claim, action or inaction arising out of, or relating to, the “purchase” set out herein, as against the listing company or selling company and/or their agents or representatives (hereinafter “company”) involved in this transaction, shall be resolved by arbitration administered by the American Arbitration Association in accordance with its arbitration rules; and (2) judgment of the award rendered by the arbitrators) may be entered in any court of competent jurisdiction; and (3) the arbitration proceeding shall be conducted within the county in which the dispute arose or such other location as agreed upon by the parties; and (4) if fault is found, the award of damages will conform to the terms and conditions of the “purchase”; and (5) this transaction involves interstate commerce such that the Federal Arbitration Act, 9 U.S.C. Section 1 et seq. (1947 as amended) shall govern the interpretation and enforcement of this arbitration agreement along with all claims between or among any parties and the companyfies) involved in this transaction.

¶ 16. “Where a contract is clear and unambiguous, its meaning and effect are matters of law which must be determined by the court.” IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 106 (Miss.1998) (citing Pfisterer v. Noble, 320 So.2d 383, 384 (Miss.1975)). “This Court must construe the agreement as made by the parties and give the words of the document their commonly accepted meaning. If no ambiguity exists, this Court will accept the plain meaning of the instrument as the intent of the parties.” Id. at 108.

¶ 17. Judge Griffis aptly stated in his dissent that paragraphs 11 and 26 created no ambiguity, and we agree. Judge Griffis stated, inter alia:

1 do not find the ambiguity to which the chancellor refers in his ruling. Paragraphs 11 and 26 are not in conflict. Paragraph 11 indicates that “specific performance is the essence of the contract.” It then proceeds to discuss the appropriate remedies for a breach of the contract by the buyer or the seller. In other words, if the buyer is in breach, the seller may accept liquidated damages, sue for damages or sue for specific performance. If the seller is in breach, the buyer may accept the return of his earnest money deposit, sue for damages or sue for specific performance. Paragraph 26 has nothing to do with a breach of the contract by the buyer or the seller. Instead, it provides that the buyer and seller agree to arbitrate any claim that they may have against the realtor, either the agent (Fradella) or the listing company (Prudential Gardner). I find no ambiguity between these paragraphs. Immediately following-paragraph 26, RS (Rosella Seaberry) signed her initials. The very next line contains the initials of RS (Rosella Sea-berry) and JS (James Seaberry). I believe it to be manifest error to find that there was an ambiguity in the contract or to say that the Seaberrys did not agree to be bound by paragraph 26, “Mandatory Arbitration,” for any claims they brought against Fradella or Prudential Gardner.

Fradella v. Seaberry, 952 So.2d 195, 203, ¶¶ 28-29, 2006 Miss.App. LEXIS 272, **18-19, ¶¶ 28-29 (Griffis, J., dissenting).

¶ 18. In accordance with IP Timber-lands, we will accept the plain meaning of the instrument as the intent of the parties because we find that paragraphs 11 and 26 create no ambiguity. Paragraph 11 confers upon the seller/buyer certain rights and remedies upon a breach of the contract by the buyer/seller. Other than the provision that the broker is entitled to a portion of the earnest money deposit, the full commission, or court-ordered damages in the event the seller/buyer commences litigation against the buyer/seller, paragraph 11 pertains solely to the relationship between the seller and the buyer.

¶ 19. On the other hand, paragraph 26 provides that “both buyer and seller” agree to arbitration based on “any controversy, claim, action or inaction arising out of, or relating to, the ‘purchase’ set out herein, as against the listing company or selling company and/or their agents or representatives (hereinafter ‘company’) involved in this transaction.” (Emphasis added). In other words, as opposed to the provisions of paragraph 11, which discusses the relationship between buyer and seller, the provisions of paragraph 26 discusses the relationship between both the buyer/seller with their realtor/broker.

¶ 20. In sum, the Seaberrys and the Germanys no doubt contracted with each other to be able to go to court to resolve any disputes between them; however, on the other hand, the Seaberrys and the Germanys contracted with Fradella to resolve any disputes with their agent/broker by way of arbitration.

¶21. The Seaberrys likewise asserted procedural and substantive unconscionability in their efforts to defeat the arbitration clause. East Ford, Inc. v. Taylor, 826 So.2d 709, 714 (Miss.2002). We quickly dispatch with the unconscionability argument, finding, inter alia, that this case is clearly distinguishable from Pitts v. Watkins, 905 So.2d 553 (Miss.2005), in which this Court found substantive unconsciona-bility to be present in a termite contract dispute because (1) one party retained the right to pursue remedies in court, while the other party was limited to arbitration; (2) a limitation of liability provision had the practical effect of being extremely one-sided; and, (3) a limitations period shortened the statutory period for commencement of any action for remedies. Id. at 556-58. In today’s case, Paragraph 11 of the real estate contract did not create any right to Fradella to commence a court action against the Seaberrys or the Ger-manys. Instead, paragraph 11 only “protected” Fradella’s commission if the Sea-berrys or the Germanys, sued each other in court. Paragraph 26 of the real estate contract expressly set out that any dispute which the Seaberrys and/or the Germanys had with Fradella would be resolved by arbitration. Contrary to the assertions by the Seaberrys, we find nothing in the record which would lend support to a finding of procedural and/or substantiative uncon-scionability as it relates to paragraph 26 of the real estate contract. Neither the Court of Appeals’ plurality opinion or dissenting opinion discussed the unconsciona-bility issue, nor will this Court. We thus see no reason to enter into a discussion concerning the intricacies of procedural and substantive unconscionability and the like as discussed in such cases as Russell v. Performance Toyota, Inc., 826 So.2d 719, 725-26 (Miss.2002), East Ford, 826 So.2d at 714, and their progeny.

¶ 22. For the reasons stated, we find this issue to have merit; therefore, we are constrained to find that the chancellor erred in denying the motion to compel arbitration on the basis of an ambiguity between paragraphs 11 and 26, thus rendering the arbitration clause to be ineffective. No ambiguity existed as to the provisions of paragraph 11 and paragraph 26; therefore, the Seaberrys cannot prevail on this issue.

II. WHETHER THE TRIAL COURT ERRED WHEN IT FOUND THAT NEITHER FRADELLA NOR PRUDENTIAL GARDNER ARE SIGNATORIES TO THE REAL ESTATE CONTRACT, THEREBY PREVENTING THEM FROM OBTAINING THE BENEFIT OF THE MANDATORY ARBITRATION CLAUSE OF THE REAL ESTATE CONTRACT.

¶ 23. The chancellor relied heavily on our decision in Parkerson, and he found that this Court had unequivocally stated that a nonsignatory to a contract could not rely on an arbitration clause within that contract. Judge Griffis, in his dissent, set out his reasoning for finding Parkerson inapplicable to the case sub judice.

The chancellor began his conclusions of law. stating that neither Fradella nor Prudential Gardner executed the document. The chancellor cited Parkerson for the proposition that “with clarity and without equivocation our Supreme Court stated that one who is not a signatory to the document containing an arbitration clause cannot take advantage of the arbitration clause to compel arbitration.” Any review of Parkerson begins with the understanding that it was a plurality decision by the Supreme Court, with four separate opinions.
In Parkerson, Ms. Parkerson bought a mobile home. She signed a document entitled “Retail Installment Contract, Security Agreement, Waiver of Trial by Jury and Agreement to Arbitration or Reference or Trial by Judge Alone.” Ms. Smith signed it for the seller, Town & Country Mobile Homes, Inc. The arbitration clause read in part:
Dispute Resolution. Any controversy or claim between or among you [Ms. Parkerson] and me [Ms. Smith and Town & Country] or our assignees arising out of or relating to this Contract or any agreements or instruments relating to or delivered in connection with this Contract, including any claim based on or arising from an alleged tort, shall, if requested by either you or me, be determined by arbitration, reference, or trial by a judge as provided below. A controversy involving only a single claimant, or claimants who are related or asserting claims arising from a single transaction, shall be determined by arbitration as described below. Any other controversy shall be determined by judicial reference of the controversy to a referee appointed by the court or, if the court where the controversy is venued lacks the power to appoint a referee, by trial by a judge without a jury, as described below. YOU AND I AGREE AND UNDERSTAND THAT WE ARE GIVING UP THE RIGHT TO A TRIAL BY JURY, AND THERE SHALL BE NO JURY WHETHER THE CONTROVERSY OR CLAIM IS DECIDED BY ARBITRATION, BY JUDICIAL REFERENCE, OR BY TRIAL BY A JUDGE.

Parkerson, 817 So.2d at 531(¶ 3).

Ms. Parkerson brought a claim against the manufacturer of the mobile home, Champion Home Builders Co., Inc. Id. at (¶ 1). Champion sought the benefit of the arbitration clause. Justice McRae wrote:

Champion was not a party to the contract containing the arbitration provision, and therefore may not invoke the arbitration clause to which it was never a party. To hold otherwise would allow a manufacturer which is not a signatory to an agreement to assert rights found in that agreement. The Wilson [v. Waverlee Homes, Inc., 127 F.3d 40 (11th Cir.1997) ] court declined to make such a broad interpretation, as do we. Parkerson, 817 So.2d at 535 (¶ 19). Indeed, Champion was not mentioned in the arbitration clause. Such is not the case here. Paragraph 26, “Mandatory Arbitration,” specifically provides for arbitration as the means of resolution of any claims that either the buyers or the sellers have against Fra-della or Prudential Gardner. These factors (sic) clearly distinguishable from Parkerson. In my opinion, Parkerson provides no guidance to the outcome of this case and it was manifest error for the chancellor to rely on Parkerson for its ruling.

Fradella v. Seaberry, 952 So.2d 195, 203204, ¶¶ 30-33, 2006 Miss.App. LEXIS 272, **19-22, ¶¶ 30-33 (Griffis, J., dissenting).

¶ 24. As noted by Judge Griffis in his dissent in today’s case, Parkerson generated four separate opinions. We likewise agree with Judge Griffis that Parkerson has no applicability to today’s case. In Parkerson, not only was Champion (the one seeking the benefit of the arbitration clause) a non-signatory to the contract containing the arbitration clause, Champion was not even mentioned in the arbitration clause. However, in today’s case, Fradel-la/Prudential Gardner was clearly mentioned in the arbitration clause. The arbitration clause, in express terms, informed both the buyers and the sellers that by initialing and signing the contract, they were agreeing to resolve by arbitration “any controversy, claim, action or inaction arising out of, or relating to, the ‘purchase’ set out herein, as against the listing company or selling company and/or their agents or representatives (hereinafter ‘company’) involved in this transaction.” (Emphasis added).

¶ 25. The initial Agreement to Purchase or Sell dated February 29, 2004, signed by the Seaberrys and Fradella on behalf of Prudential Gardner, created, inter alia, certain rights and responsibilities for Prudential Gardner. Certainly, at the time of the execution of this contract, reasonable persons would expect that if subsequent discussions and negotiations between the buyers and the sellers culminated in a joint agreement for the Seaberrys’ purchase of the Germanys’ home on certain specified terms and conditions, a written contract would be generated to memorialize the agreement. In today’s case, the end result of negotiations between the buyers and the sellers, with the involvement of the realtor/broker, was the execution by the Seaberrys and the Germanys of a Contract for the Sale and Purchase of Real Estate, dated April 19, 2004. It is this contract which contained the arbitration clause which is at the heart of today’s case. Although not signed by Fradella, or anyone on behalf of Prudential Gardner, this contract clearly created certain rights and responsibilities on the part of Prudential Gardner.

¶26. Fradella was indisputably acting as the Seaberrys’ real estate agent. Furthermore, the Seaberrys’ breach of contract claim is unquestionably intertwined with the duties Fradella was to perform according to the terms and provisions of the real estate contract. But for the real estate contract containing the arbitration clause at issue, the Seaberrys could not bring a claim of breach of contract. Because the Seaberrys rely on the document for their breach of contract claim, they cannot deny Fradella the benefit of the arbitration clause within the real estate contract that she relied upon to delineate her duties and responsibilities with regard to the transaction. When the pertinent documents concerning this real estate transaction are read in their totality, the fact that Fradella, or anyone on behalf of Prudential Gardner, did not sign this contract is of no moment. Sullivan v. Protéx Weatherproofing, Inc., 913 So.2d 256, 261 (Miss.2005). See also Smith Barney, Inc. v. Henry, 775 So.2d 722, 727 (Miss.2001). Unquestionably, Parkerson is distinguishable and thus totally inapplicable to today’s case. For the reasons stated, we find that this issue therefore has merit in that the chancellor erred in finding that Fradella/Prudential Gardner, as non-signatories to the real estate contract which contained the arbitration clause, could not seek the benefit of the arbitration clause.

CONCLUSION

¶27. We are constrained to find that the Court of Appeals erred in finding that the arbitration clause in the real estate contract was void for lack of consideration. We find that no ambiguity was created by paragraph 11 and paragraph 26 of the real estate contract of April 19, 2004. Furthermore, for the reasons discussed, we find that Fradella was entitled to rely on the arbitration provision because the Seaber-rys expressly agreed to arbitrate as to Fradella.

¶ 28. For the foregoing reasons, we reverse the judgment of the Court of Appeals, which affirmed the chancellor’s denial of Fradella’s motion to compel arbitration, and we remand this case to the Chancery Court of Pearl River County with directions to compel the parties, James E. Seaberry, Rosella M. Seaberry, Michelle Fradella, and GBS Properties, LLC, d/b/a Prudential Gardner Realtors, to submit to arbitration consistent with this, opinion.

¶ 29. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED.

THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER COUNTY IS REVERSED, AND THIS CASE IS REMANDED TO THAT COURT WITH DIRECTIONS TO COMPEL THE PARTIES TO SUBMIT TO ARBITRATION CONSISTENT WITH THIS OPINION.

SMITH, C.J., WALLER, P.J., EASLEY, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. COBB, P.J., NOT PARTICIPATING.

DIAZ, Justice,

Dissenting.

¶ 30. This case is not a difficult one. We are asked one question: may a non-party, non-signatory to a contract, who has provided no consideration to the contract, take advantage of a clause in that contract? Centuries of law say “no,” and indeed the majority cites no cases for their proposition that a non-signatory to a contract who has provided no consideration to the contract may find refuge within the contract to which it is a stranger. Because the majority’s reasoning is not based upon basic legal principles or stare decisis I must respectfully dissent.

¶ 31. Arbitration can only exist when created by a contract. For “[arbitration is strictly a matter of contract; if the parties have not agreed to arbitrate, the courts have no authority to mandate that they do so.” Thomson-CSF, S.A. v. American Arbitration Ass’n, 64 F.3d 773, 779 (2d. Cir.1995). Even when there is a contract for arbitration, state and common law defenses to contract law remain valid under both federal law and U.S. Supreme Court precedent.

¶ 32. A signature is not necessarily required to become a party to a contract, but one must at least be a “party” under some contractual or legal understanding of the term. While the majority struggles, without benefit of citation, to stitch out of whole cloth a reason why a non-party, non-signatory who did not provide consideration can invoke the contract, there are times when a nonsignatory may find refuge in a contract. In general, “nonsignatories may be bound to an arbitration agreement under ordinary contract and agency principles.” Javitch v. First Union Securities, Inc., 315 F.3d 619, 629 (6th Cir.2003). “Traditionally, five theories for binding a nonsignatory to an arbitration agreement have been recognized: (1) incorporation by references; (2) assumption; (3) agency; (4) veil-piercing/alter-ego; and (5) estoppel,” and “[sjometimes a sixth theory, third-party beneficiary, is added, but it is closely analogous to the estoppel theory.” Ellsworth v. American Arbitration Ass’n, 148 P.3d 983, 989 n. 11 (Utah 2006) (examining Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 417 (4th Cir.2000) and Bridas S.A.P.I.C. v. Gov’t of Turkm., 345 F.3d 347, 356, 362 (5th Cir.2003)).

¶ 33. No contract defense or equitable result demands that a non-party, non-signatory who has not provided any consideration under the contract can bind the actual parties to a contract. “Because arbitration is a matter of contract, exceptional circumstances must apply before a court will allow a non-contracting party to impose a contractual agreement to arbitrate.” Denney v. Jenkens & Gilchrist, 412 F.Supp.2d 293, 297 (S.D.N.Y.2005) (internal quotations omitted). The burden of demonstrating this defense is on Fradella, and no such defense has been shown.

¶ 34. This was a contract for the sale of land by one party to another. By the reasoning of the majority — that the broker was mentioned in passing — an incalculable and limitless host of persons could take advantage of any contract, if their name is but mentioned. This ignores common sense and the strict language of the contract, which clearly states that arbitration is between “[b]oth buyer and seller,” not “both buyer, seller, and any other party that may be affected by fraud.”

¶ 35. This does not make legal sense, and it does not make sense from a policy standpoint. I must continue to ask, why are we so hostile to the constitutional rights of Mississippians? As I have noted before, arbitration as a concept is wholly valid — if parties wish to settle disputes outside of the legal system, they should be able to contract for such a result. It is so much more than a choice of forum, because it affects multiple constitutional rights. It is my deepest belief that all Mississippians have a fundamental constitutional right to both a jury of their peers and access to the court system. See Cleveland v. Mann, 942 So.2d 108, 121-22 (Miss.2006) (Diaz, J., dissenting).

¶ 36. Because today the majority continues consciously and aggressively down a path which strips our citizenry of fundamental constitutional rights, I must respectfully dissent. I would have affirmed the decision of the Pearl River County Chancery Court and the Court of Appeals denying arbitration for Fradella.

GRAVES, J., JOINS THIS OPINION.

      . GBS Properties, LLC, is a foreign limited liability company that does business in Mississippi as Prudential Gardner Realtors. Michelle Fradella is the Prudential Gardner real estate agent who was involved in this transaction; therefore, for the sake of clarity, unless it is necessary to refer separately to Fradella or Prudential Gardner, we will simply refer to Fradella and Prudential Gardner Realtors jointly as "Fradella."

      . Of course, there were other terms listed in the counter-offer, as well as the other documents discussed in this opinion, but we will discuss only those contractual terms which are relevant to today's discussion.

      . We note that the record reveals two copies of the identical real estate contract, with one copy of the real estate contract being initialed and signed by only James and Rose Seaberry, and the other copy of the real estate contract being initialed and signed by only Sammy and Joy Germany. Thus, the record does not contain a copy of the real estate contract revealing the initials and signatures of the Seaber-rys and the Germanys on the same document. However, the parties do not assert this fact as an issue.

      .The Seaberrys’ original suit in the Chancery Court of Pearl River County, named as defendants "Michelle Fradella, GBS Properties, L.L.C., d/b/a Prudential Gardner Realtors, Sammy Clark'Germany and wife, Joy Morgan Germany, Individually and as Co-Trustees of the Germany Family Revocable Trust, April Pulley, Greystone Mortgage Co., L.L.C., Nations Title Agency of Mississippi, Inc., formerly Advantage Title, Inc. and Option One Mortgage Corporation.” Further, the Seaberrys’ claims included breach of contract, rescinding the sale, accounting, damages, temporary restraining order, and preliminary injunction. However, Fradella and Prudential Gardner are the only defendants participating in this appeal, and the chancellor’s denial of Fradel-la’s motion to compel arbitration is the only issue before this Court today.

      . We will set out in detail the applicable provisions of the real estate contract of April 19, 2004, including the arbitration clause, in the course of our discussion.

      . This document was signed by Fradella, but was not signed by the Germanys because they did not accept the Seaberrys' offer.

      . This finding by the chancellor, if not erroneous, is at the very least, ambiguous. As we have already noted, another, identical contract for the sale and purchase of real estate was initialed and signed only by the Germanys. The trwo contracts were signed at different times by the parties. Thus, both the Seaberrys and Germanys signed identical contracts.

      .It is important to note that both the Seaber-rys and the Germanys specifically placed their initials beside paragraph 26 in addition to placing their initials at the bottom of each page of the contracts. Therefore, the Seaber-rys and the Germanys clearly acknowledged the existence of the arbitration provision.

      . Chief Judge King wrote the plurality opinion, joined by two other judges, and one judge concurred in result only, while one judge concurred in part and in the result. Judge Griffis authored the dissent, which was joined by four other judges.

      . The non-signatory status of Fradella and Prudential Gardner will be discussed in Issue II, infra.

      . Presiding Justice McRae wrote the majority opinion, joined by Justices Diaz, Easley and Graves, and Justice Carlson concurred in result only. Justice Diaz wrote a concurring opinion, joined by Presiding Justice McRae, and Justices Easley and Graves. Justice Cobb wrote a dissenting opinion. Chief Justice Pittman likewise wrote a separate opinion wherein he concurred in part, and dissented in part, and this opinion was joined by Justice Waller, and was joined in part by Justices Cobb and Carlson. Presiding Justice Smith did not participate.

      . This is because there is always a basic two-step inquiry we undertake when scrutinizing an agreement under the FAA. See East Ford, 826 So.2d at 713. First we must determine if the parties intended to arbitrate the dispute; if so, we next consider "whether legal constraints external to the parties' agreement foreclosed the arbitration of those claims.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (U.S.Puerto Rico 1985); East Ford at 826 So.2d at 713. "Under the second prong, applicable contract defenses available under state contract law such as fraud, duress, and unconscionability may be asserted to invalidate the arbitration agreement without offending the Federal Arbitration Act.” Id. at 713; see 9 U.S.C. § 2 (an "agreement in writing to submit to arbitration an existing controversy ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”).